                                                                      [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                                                                             FILED
                              ________________________              U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                    No. 06-14406                          JUNE 15, 2007
                              ________________________                 THOMAS K. KAHN
                                                                            CLERK
                      D. C. Docket No. 05-00425 CV-T-30-MSS

CHARLES FRANK MACK,

                                                              Plaintiff-Appellant,

                                            versus

METROPOLITAN LIFE INSURANCE COMPANY,
a foreign corporation,

                                                              Defendant-Appellee.

                              ________________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                           _________________________

                                        (June 15, 2007)


Before BIRCH, FAY and CUDAHY,* Circuit Judges



*Honorable Richard D. Cudahy, United States Circuit Judge for the Seventh Circuit, sitting by
designation.
PER CURIAM:

      Charles Frank Mack is a troubled man. He suffered severe abuse while

institutionalized in his childhood and is now full of tension and anger, beset by

violent impulses and disturbing thoughts. One psychiatrist diagnosed him with

Bipolar Affective Disorder, Post Traumatic Stress Disorder (PTSD), Antisocial

Personality Disorder and Depression. To make matters worse, he is an alcoholic.

At one point, he was ingesting over thirty alcoholic drinks per day. While

working as a salesman for a car dealership in 2003 he applied for and received

short-term disability benefits for alcoholism and PTSD from an employee benefit

plan administered by the defendant, Metropolitan Life Insurance Co. (MetLife).

On April 18, 2004, however, MetLife stopped Mack’s benefits, finding that he was

able to work and was not undergoing appropriate treatment for his alcoholism.

Mack filed an unsuccessful administrative appeal and then brought this action

against MetLife under Employee Retirement Income Security Act § 502(a)(1)(B),

29 U.S.C. § 1132(a)(1)(B) (ERISA), “to recover benefits due to him under the

terms of his plan.” The district court granted summary judgment to MetLife.

Mack appeals; we affirm.

      The parties dispute the appropriate standard of review. Mack argues,

sensibly enough, that summary judgment against him is appropriate only if the

                                         2
record evidence “show[s] that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c); Shaw v. Conn. Gen. Life Ins. Co., 353 F.3d 1276, 1282 (11th Cir. 2003);

Brown v. Blue Cross & Blue Shield of Ala., Inc., 898 F.2d 1556, 1559 (11th Cir.

1990). MetLife contends that although the district court explicitly granted

MetLife’s motion for “summary judgment” (as opposed to its motion in the

alternative for a Rule 52 judgment on the administrative record, which was also

before the district court), this court should treat the district court’s Rule 56

judgment as a Rule 52 judgment, so that the district court’s factual findings stand

unless clearly erroneous. Fed. R. Civ. P. 52(a). This position has some practical

attraction because there is no right to a jury trial on ERISA claims, Shaw, 353 F.3d

at 1286 (11th Cir. 2003); Stewart v. KHD Deutz of Am. Corp., 75 F.3d 1522, 1527

(11th Cir. 1996), and because when a plan grants its administrator discretionary

authority to interpret it (which the parties agree is the case here) the parties may

not generally introduce new evidence of disability in the district court, so that the

case must be decided on the administrative record, Levinson v. Reliance Standard

Life Ins. Co., 245 F.3d 1321, 1326 (11th Cir. 2001); Jett v. Blue Cross & Blue

Shield of Ala., Inc., 890 F.2d 1137, 1139 (11th Cir. 1989). Because the standard

for judgment at trial is less demanding than the standard for summary judgment, a

                                           3
judge who mistakenly grants summary judgment to one party in such a situation

would likely also grant that party a Rule 52 judgment, making a remand’s outcome

predictable and the remand itself arguably unnecessary. Crume v. Metro. Life Ins.

Co., 417 F. Supp. 2d 1258, 1272 (M.D. Fla. 2005); Liston v. Unum Corp. Officer

Severance Plan, 330 F.3d 19, 24 (1st Cir. 2003); see also Patton v. MFS/Sun Life

Fin. Distributors, Inc., 480 F.3d 478, 484 (7th Cir. 2007) (discussing harmless

error in this context). The First and Ninth Circuits have adopted MetLife’s

proposed construction of ERISA “summary judgment” motions. Bard v. Boston

Shipping Ass’n., 471 F.3d 229, 235 (1st Cir. 2006); Bendixen v. Standard Ins. Co.,

185 F.3d 939, 942 (9th Cir. 1999).

      The positions taken respectively by the parties would be in their respective

interests from an ex post perspective; given that some sort of judgment has been

granted under some rule, Mack would prefer Rule 56 and MetLife would prefer

Rule 52. But we wonder if the parties have considered how their different

versions of ERISA “summary judgment” would operate in future litigation. Mack

claims that the majority of summary judgment motions in ERISA cases are filed by

plan administrators and describes the high standards for a grant of summary

judgment as “procedural safeguards which protect the ERISA litigant”

(Appellant’s Reply Br. at 4), but summary judgment is a tool that potentially

                                         4
benefits the movant. That is why so many parties move for summary judgment

rather than barrel straight into trial. A summary judgment motion terminates the

litigation if successful, and if unsuccessful gives the movant a sneak peek at the

opposing party’s theory of the case and litigation strategy before facing a final

decision. Despite these benefits MetLife argues basically that summary judgment

should not exist in a good portion of ERISA cases, and that if a party moves for

summary judgment the trial court should treat it instead as a motion for judgment

on the record. But does MetLife really want to lose the exploratory benefits of

summary judgment in all such future cases?

      We do not need to address this issue in the present case. Summary

judgment is normally appropriate where no genuine issue of material fact exists,

and such an issue exists only where a reasonable fact finder could find in favor of

the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986);

Slomcenski v. Citibank, N.A., 432 F.3d 1271, 1277 (11th Cir. 2005). In the present

case no one could reasonably find Mack entitled to benefits under the plan, and so

summary judgment was proper even under Mack’s proposed standard of review.

(Because we conclude on de novo review, without deferring to MetLife’s

reasoning or findings, that its benefits determination must have been correct, we

also need not discuss the complex apparatus of arbitrary and capricious review.

                                          5
See Tippitt v. Reliance Standard Life Ins. Co., 457 F.3d 1227, 1231-32 (11th Cir.

2006).)

       A participant in MetLife’s plan is entitled to short-term disability benefits if

he is disabled. A participant is disabled if

       due to sickness, pregnancy or accidental injury you:
       (1) are receiving Appropriate Care and Treatment from a doctor on a
       continuing basis; and
       (2) are unable to earn more than 80% of your Predisability earnings at
       your Own Occupation for any employer in your Local Economy.
       (STD Certificate at 14-15.)


       The parties dispute whether Mack satisfied either criterion; we discuss only

the first. Neither party explains the meaning of “Appropriate Care and Treatment”

(even though MetLife’s plan offers a definition of the phrase that both parties

largely ignore), but both regard it to mean something like, “all treatment one

should reasonably undergo in order to become well.” That expresses some aspects

of the definition well enough,1 and captures the provision’s undoubted purpose:


       1
          MetLife’s plan defines “Appropriate Care and Treatment” to mean treatment that
satisfies five criteria:

       1. it is received from a Doctor whose medical training and clinical experience are
       suitable for treating your Disability;
       2. it is necessary to meet your basic health needs and is of demonstrable medical
       value;
       3. it is consistent in type, frequency and duration of treatment with relevant
       guidelines of national medical, research and health care coverage organizations
       and governmental agencies;

                                               6
MetLife wants its claimants to get well as soon as possible so it can stop paying

them benefits, and it therefore requires them to undergo the treatment most likely,

under all the circumstances, to get them healthy.

       MetLife argues that summary judgment is proper in light of its expert Dr.

Ian Lipsitch’s opinion that “[a]ppropriate treatment for alcoholism unequivocally

includes abstinence and the claimant has repeatedly avoided becoming abstinent.”

(AR 103.) Mack contends that it is simplistic to assert that treatment for

alcoholism “unequivocally includes abstinence.” MetLife agrees that alcoholism

is a “sickness” rather than simply a habit or disposition. See James E. Royce,

Alcohol Problems and Alcoholism: A Comprehensive Survey ch. 7 (rev. ed. 1989).

The purpose of treatment for this sickness is to induce the alcohol addict to cease

feeding his addiction–in simple terms to stop drinking. But steadfast abstinence

may be beyond the powers of the addict at the onset of treatment–even though it

remains the goal, and, in fact, is the sure indicator of successful treatment.

Because the purpose of the policy’s “appropriate treatment” requirement is to

encourage claimants to undertake measures to restore their health, it cannot



       4. it is consistent with the diagnosis of your condition; and
       5. its purpose is maximizing your medical improvement. (STD Certificate at
       15.)

The meaning that the parties assign to the term is fairly well reflected in criteria four and five.

                                                  7
reasonably be construed as requiring success (abstinence) at the outset but only as

undertaking treatment which focuses on abstinence as an immediate and

continuing goal.

      But although an alcoholic may not be able to stop drinking, he is able to try

to stop drinking by taking steps that will weaken the disease’s hold on him. Id. at

121 (“[T]he relation between habit and free choice is very complex and subtle, and

we need a balance between powerlessness over being alcoholic and responsibility

for what we can do about it.”). It is obvious from context that this is what Lipsitch

meant. According to him, Mack’s problem was not simply that he was not

abstinent, but that he had “repeatedly avoided becoming abstinent” by adopting a

weak treatment regimen that lacked “a chance of being effective.” (AR 103.) The

patient’s treatment does not necessarily have to be successful, but the patient does

have to get whatever sort of treatment is called for under the circumstances to fight

the illness as effectively as the patient reasonably can.

      The record indicates that Mack did not undergo several doctor-

recommended treatments for his alcoholism. MetLife stopped paying Mack

benefits as of April 18, 2004 (though it considered his claim through August 1,

2004, when it officially denied benefits). In notes from a March 23, 2004 meeting

between Mack and his mental health and addiction counselor Ben Vyzas, Vyzas

                                           8
indicated that Mack was “upset” by his psychiatrist Dr. Sheehan’s “suggestions re.

abstinence.” He refused to use the alcoholism drug Antabuse because of stomach

problems; he refused to dry out in an inpatient detox program because he

“c[ould]n’t stand locked doors” (apparently because of the abuse he suffered while

institutionalized as a child); he refused to attend Alcoholics Anonymous meetings

because he could not “see [him]self talking to a group.” Vyzas described Mack as

“not ready to stop” and “not comfortable w/goal of abstinence.” (AR 124.) By

June 18, two months after benefits had been cut off, Mack had significantly

reduced his alcohol intake (from an astounding thirty to a still very high ten drinks

a day), but apparently had still not taken any of the actions suggested by Sheehan

and Vyzas.2

       Mack admits that he did not follow their advice, but insists it was bad

advice. He claims that because of his PTSD and other psychological and physical

conditions, he could not safely endure the treatments that would offer him the best



       2
         Mack contends that he entered some sort of outpatient alcohol treatment program at
some point in June, pointing to a brief note in MetLife’s computer system indicating that to be
the case. (AR 10.) Assuming that is true (the note is unexplained and contradicted by other
record evidence, such as a letter from Mack requesting in late June that MetLife refer him to an
outpatient program, see AR 100), it did not match his doctors’ advice (Sheehan had
recommended an inpatient program, see AR 74, 124) and came too late to save his claim.
MetLife requires treatment on a “continuing basis,” and, as the district court found, that certainly
does not include treatment begun after an unjustified delay, after benefits have already been
discontinued.

                                                 9
chance of becoming sober, and that consequently the only reasonable treatment for

him was to see a psychiatrist and counselor. This argument is not inherently

implausible. It is theoretically possible that, for instance, Mack’s temporary

confinement in an inpatient detox program might pose a risk of psychological

harm that would outweigh the chance of benefits in his struggle against

alcoholism.

      But to defeat summary judgment Mack must offer evidence from which a

jury could reasonably believe his arguments, and an argument resting on

psychology and medicine requires the testimony of an expert witness qualified in

those fields. See Fed. R. Evid. 701 & 702; Colsa Corp. v. Martin Marietta Servs.,

Inc., 133 F.3d 853, 855 n.4 (11th Cir. 1998). Mack offers no such evidence to

support his claims. For instance, Mack suffers from Barrett’s Esophagus, a throat

condition that is associated with, though not definitively caused by, acid reflux

disease and that is, rarely, precancerous (see generally Nat. Inst. of Diabetes &

Digestive & Kidney Diseases, Barrett’s Esophagus (2004), available at

http://digestive.niddk.nih.gov/ddiseases/pubs/barretts/index.htm); he claims that

this prevents him from using the drug Antabuse, which discourages drinking by

interacting with alcohol to produce effects similar to a massive hangover, which

can include vomiting. But we are aware of no evidence that the risk of vomiting

                                         10
posed by Antabuse would outweigh the potential benefit of reduced alcohol

consumption offered by the drug (especially since excessive alcohol consumption

itself might pose a risk of vomiting). In fact, the record contains no evidence at all

on the nature of Barrett’s Esophagus or Antabuse. (The record reflects that Mack

told Vyzas he couldn’t use Antabuse because it induced vomiting, but Mack is not

a doctor, and neither is his attorney, who repeats Mack’s assertions in his brief.)

      Similarly, Mack claims that an inpatient detox program would be

“inappropriate given [his] traumatic history” of childhood abuse (Appellant’s

Initial Br. at 26), but there is again nothing but Mack’s own assertion to support

the claim. Mack told a hired expert, Dr. George Northup, that Mack himself

thought that he “would not be able to tolerate a locked facility” and “would likely

assault someone” in such an institution. (AR 176.) But Mack is not a

psychologist, and while Northup acknowledged Mack’s fears (see AR 177 (“He

believes he will not tolerate an inpatient type program. Whether or not he would

be able to tolerate a residential treatment program is questionable, as well.”)), he

did not agree that Mack could not or should not enter into an inpatient program.

Indeed, he stated that “[a] more intensive program regarding sobriety would give

him a better chance for relief from psychiatric symptoms and return to work, as




                                          11
well.” (AR 177.) And finally, there is no explanation at all why Mack could not

attend AA or similar meetings beyond his personal aversion to them.

       We do not mean to belittle Mack’s problems. It may well not be easy for

him to undergo any of the treatments suggested. But neither is it easy to live with

the conditions he faced in 2004 and may, for all the record reveals, still face

today.3 All the medical evidence in this case suggests that Mack could best serve

his own mental and physical health by following his doctors’ advice. Because the

evidence on that point is unanimous, any reasonable factfinder would have to

conclude that Mack’s psychiatric treatment was not, by itself, appropriate care and

treatment within the meaning of MetLife’s benefits plan.

       For the foregoing reasons, we affirm the judgment of the district court.




       3
        Mack has requested long-term disability benefits in his complaint (which we cannot
grant–he never requested long-term benefits under the plan and was therefore not entitled to them
under ERISA § 502(a)(1)(B)).

                                               12
