
USCA1 Opinion

	




United States Court of Appeals
For the First Circuit






No. 02-1656


KATHLEEN COOK,


Plaintiff, Appellee,


v.


LIBERTY LIFE ASSURANCE COMPANY OF BOSTON,


Defendant, Appellant.




APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]




Before

 Boudin, Chief Judge,

Torruella and Lipez, Circuit Judges.



William D. Pandolph, with whom Sulloway & Hollis, P.L.L.C. was
on brief for appellant.
 Glenn R. Milner, with whom Cook & Molan, P.A. was on brief for
appellee.





February 5, 2003






 LIPEZ, Circuit Judge.  Liberty Life Assurance Company
("Liberty") appeals from the district court's entry of summary
judgment for Kathleen Cook, a former participant in one of its
long-term disability insurance plans governed by the Employee
Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq.
(2002).  Cook had been receiving disability benefits for more than
three years when Liberty terminated her benefits on the ground that
she no longer met the plan's definition of "disabled."  The
district court found that Liberty's decision was "arbitrary and
capricious."  Agreeing with that conclusion, we affirm the court's
grant of summary judgment to Cook.  We also affirm the district
court's award of back benefits and accompanying relief, finding
that such an award was within its discretion.  
I.
A. Cook's Illness and Her Eligibility for Benefits
	Kathleen Cook had been employed with Lockheed Sanders,
Inc. ("Sanders") since 1983.  Sanders provides its employees with
short- and long-term disability benefits under policies provided
and administered by Liberty.  Cook filed a claim for short-term
disability benefits in February 1995, having been out of work since
November 1994 with symptoms of Chronic Fatigue Syndrome ("CFS"), as
diagnosed by her treating physician, Dr. W. Stewart Blackwood. (1) 
Dr. Blackwood's notes from that period report that Cook was
complaining of fatigue, loss of appetite, a constant cough, and
depression.  Diagnostic tests revealed an elevated level of the
Epstein Barr virus.  As recorded in the Physician's Statement of
Disability accompanying Cook's claim, Dr. Blackwood stated that he
was seeing Cook on a monthly basis, that she was totally disabled
from both her regular occupation and any other occupation, and that
he did not know when she would be able to return to work.  
	After her short-term benefits expired in April 1995, Cook
filed another claim with Liberty for benefits under the long-term
disability policy.  At this point, she was still unable to return
to work.  Attached to her claim form was a note from Dr. Blackwood. 
He stated that her diagnosis continued to be CFS; her symptoms were
"severe fatigue, cough, nasal congestion, malaise, a[s]thma, sleep
disturbance and depression"; and her treatment plan included
homeopathic medications, vitamin supplements, acupuncture,
continued counseling and Zoloft.  He classified her physical
capacity as "severe[ly] limited: incapable of minimum activity." 
Liberty approved Cook's claim on May 8, 1995.  
	Under the terms of Liberty's long-term disability
benefits policy, a claimant must be "disabled" and require the
regular attendance of a physician in order to be eligible for
benefits.  "Disabled" is defined by the policy:
	1. "Disability" or "Disabled" means during the
Elimination Period and the next 24 months of
Disability the Covered Person is unable to
perform all of the material and substantial
duties of his occupation on an Active
Employment basis because of an Injury or
Sickness; and

	2. After 24 months of benefits have been paid,
the Covered Person is unable to perform, with
reasonable continuity, all of the material and
substantial duties of his own or any other
occupation for which he is or becomes
reasonably fitted by training, education,
experience, age and physical and mental
capacity.

These definitions of disability are referred to throughout this
litigation as the "own occupation" (first 24 months) and "any
occupation" (after 24 months has expired) definitions of
disability.  Liberty paid Cook long-term disability benefits from
April 1995 to April 1997 because it found she met the "own
occupation" definition of "disabled."  In March 1997, as her first
24 months of benefits came to an end, Liberty informed Cook that it
would be reviewing the status of her disability to determine
whether she met the "any occupation" definition of "disabled."  In
April of that year, Dr. Blackwood returned a Physical Capacities
Form to Liberty in which he reported that Cook was still suffering
from CFS, but that her only limitations were "to avoid getting
over-tired or working in excess of 40 hours a week."  Around the
same time, Dr. Blackwood issued Cook a medical certificate (2) saying
she could return to work on April 14, 1997, on a "trial basis," so
long as she was working no more than 40 hours per week and could
take regular breaks. (3)   The administrative record indicates that
Cook presented this certificate to Sanders, which forwarded it to
Liberty.  Cook returned to work on that day and Liberty temporarily
suspended her benefits.
	Her return to work was brief.  On May 5, 1997, Dr.
Blackwood pulled Cook out of work again after she had a severe
reaction to an infected tooth.  Her medical records indicate that
she complained about muscle aches and difficulty with sleeping. 
Also, she told Dr. Blackwood that she was feeling stress because
she could not complete the work Sanders had assigned her without
working more than 40 hours per week.  The combination of her
infection and the stress she experienced during her return to work
led Dr. Blackwood to conclude that she had suffered a recurrence of
CFS.  His chart notes from that day also reflect his decision to
"put her back out of work on an indefinite basis, noting that the
note we gave her previously was for a trial return to work."  On
May 9, 1997, Liberty renewed Cook's disability benefits and updated
her status to "approved" under the "any occupation" definition of
"disabled."
	Between May 1997 and July 1998, Cook remained out of work
and regularly saw Dr. Blackwood.  In December 1997 and August 1998,
she and Dr. Blackwood responded to Liberty's requests for updated
medical information, and Liberty continued to pay her disability
benefits.  The most recent set of Cook's medical records included
in the administrative record reveals that in June 1998, Cook
reported that her fatigue had recently worsened and she was
suffering generalized aches and pains, but that she was not
experiencing any stress.  Dr. Blackwood renewed his diagnoses of
asthma, CFS, and fibromyalgia. (4)
	During this time, Liberty learned that Cook had been
working part-time with a real estate agency.  When asked about it,
Cook told the analyst handling her claim that she had worked two
Sundays showing houses for the agency.  Liberty wrote to the agency
asking for Cook's work and earnings history.  They responded that
her duties included "occasional open houses, showings, [and]
customer phone calls," and that she had earned $175.02 between
April and July of 1997.  Liberty informed Cook that her long-term
disability benefits would be offset by the amount of money she was
earning from her part-time job, but if she earned less than 20
percent of her pre-disability salary, there would be no offset.
B. The Termination of Cook's Benefits
	In late July 1998, a Liberty analyst conducting a regular
review of Cook's file wrote to Dr. Blackwood asking for Cook's
updated medical information.  In August, Dr. Blackwood returned to
Liberty copies of Cook's chart notes from October 1996 to June 1998
along with a medical certificate dated March 24, 1997, and signed
by Dr. Blackwood.  This certificate stated that Cook could work no
more than 40 hours per week and needed to have regular breaks. 
After receiving this information, Liberty wrote to Dr. Blackwood on
August 18, 1998, and asked whether the restrictions and limitations
listed in the March 24, 1997, certificate were still applicable to
Cook.  Liberty attached the certificate in question to the letter
it sent to Dr. Blackwood.  Dr. Blackwood responded by sending back
the letter with the word "Yes" written on it and circled.  As later
became clear, Dr. Blackwood had misunderstood the medical
certificate at issue.  He thought he was saying "Yes" to a medical
certificate he had issued on May 5, 1997, which stated that Cook
was "out of work indefinitely."  The conclusion listed on this
medical certificate was also recorded in Cook's chart notes from
May 5, 1997, a copy of which had been presented to Liberty the last
time it had reviewed Cook's claim in December 1997.
	Shortly after receiving Dr. Blackwood's response, Liberty
forwarded Cook's file to Carol S. Vroman, a Vocational and
Rehabilitation Consultant.  Reviewing Cook's work restrictions and
limitations as listed in the March 24, 1997, medical certificate,
and taking into consideration her education and work history,
Vroman concluded that Cook was "not disabled from either her own or
any other occupation."  On October 16, 1998, Liberty informed Cook
that she was no longer eligible for long-term disability benefits. 
The denial letter explained the contents of the March 1997 medical
certificate Dr. Blackwood had provided Liberty and the fact that he
had affirmed that those restrictions and limitations were still
applicable.  It then stated that "[a] vocational assessment dated
October 14, 1998 reveals that there are many employment options
available to you based on her [sic] education with an MBA and your
restrictions and limitations. ... Since you have the ability to
perform occupations outside your previous position, you do not meet
Lockheed Sander's [sic] definition of disability beyond October 31,
1998."
	Cook responded to this letter by asking Liberty to review
its decision to terminate her eligibility.  She forwarded to
Liberty letters written by Dr. Blackwood stating that she was
totally disabled due to stress, fatigue, and "severe, chronic
asthma."  Dr. Blackwood explained to Liberty that "he mistakenly
thought your letter was referring to my disability form completed
on May 5, 1997 which indicated that she was out of work
indefinitely."  He attached this "disability form" (medical
certificate) to his letters.  Cook also attached a letter Dr.
Blackwood had written on March 23, 1998, to the attorney handling
Cook's claim for Social Security Disability benefits. (5)  This letter
stated that Cook "fit[] the diagnostic criteria for chronic fatigue
syndrome," and concluded "[t]he fatigue she feels after doing any
normal daily activities makes it difficult to see how she could
maintain a regular job, as she would have to be out of work
intermittently to recover."
	Liberty added this information to its file but affirmed
its termination of benefits on April 12, 1999.  It explained its
reasoning in another letter:
	We have reviewed the additional medical
information submitted by Dr. Blackwood.  The
medical information submitted does not support
limitations that would render you incapable of
performing the material and substantial duties
of any occupation.

	A Vocational Disability Review was performed
taking into consideration your limitations,
education and experience.  Several occupations
were identified and communicated to you in our
letter of December 1, 1998, which is enclosed
for your review. ...

	Based on the above cited information, and in
the absence of objective medical documentation
to substantiate total disability from any
occupation, no further Long Term disability
benefits are payable.

Cook then hired counsel and again requested review of her
termination.  On May 22, 2000, Liberty apparently refused to
reconsider Cook's arguments, responding:  "Ms. Cook was afforded an
opportunity to appeal the initial denial of benefits under ERISA
guidelines.  Liberty reviewed this appeal and have rendered [sic]
our final determination on Ms. Cook's claim for benefits beyond
October 31, 1998." 
C. Cook's Lawsuit
	Cook brought suit against Liberty in Hillsborough County
(New Hampshire) Superior Court, alleging state law violations and
breach of contract claims arising from Liberty's termination of
Cook's benefits.  Liberty removed the action to the federal
district court of New Hampshire on the ground that Cook's state law
claims were preempted by ERISA, and Cook agreed that the court
should construe the allegations and claims in her state law
complaint as a claim for benefits under ERISA § 502 (a)(1)(B), 29
U.S.C. § 1132(a)(1)(B) (2001). (6)  Although only Liberty moved for
summary judgment, the parties agreed "that the lawfulness of
Liberty's termination decision [was] ripe for disposition on the
administrative record."  Cook v. Liberty Life, No. 00-408-B, slip
op. at 2 (D.N.H. Jan. 15, 2002).  
	The district court ruled that Liberty's termination of
Cook's long-term disability benefits was arbitrary and capricious. 
It found that Liberty based its decision to terminate benefits on
Dr. Blackwood's statement that Cook was able to work forty hours a
week and Carol Vroman's vocational analysis showing that there were
a number of jobs Cook could take.  "The obvious flaw in Liberty's
reasoning," the court concluded, "is that it overlooks the fact
that Dr. Blackwood informed Liberty shortly after it terminated
Cook's benefits that it could not rely on either his March 24, 1997
medical certificate or his response to Liberty's August 18, 1998
letter because neither document reflected his views concerning
Cook's ability to work."  Id. at 14.  Liberty ignored this
retraction, and "failed to point to any other evidence to
contradict the medical evidence that Cook produced to support her
disability claim."  Id. at 14-15.  Its termination of her benefits,
therefore, was an abuse of its discretion as a plan administrator. (7) 
Although Liberty pointed to other evidence in the administrative
record to support its decision, the court declined to review it,
concluding that it could not "review decisions that Liberty never
made."  Id. at 15.  Based on this decision, the court entered
judgment for Cook for "benefits owed under the plan."  Id.
	In response to this ruling, Liberty argued that the court
should remand the case back to the plan administrator to reconsider
whether Cook was disabled in October 1998 (when it terminated her
benefits), or at any time between October 1998 and the district
court's judgment.  The court found that such an exercise was
unnecessary, given that "the only rational decision that [Liberty]
could have reached on the administrative record it developed was
that Cook's disability benefits should continue."  Cook v. Liberty
Life, No. 00-408-B, slip op. at 12 (D.N.H. Mar. 29, 2002).  The
district court summarized the facts that it took into consideration
when making its decision:
	(1) Liberty initially found Cook to be
disabled and never suggested that its initial
decision was erroneous; (2) the relevant
documentation contained in the administrative
record (as opposed to the non-probative
"evidence" Liberty manufactured from Dr.
Blackwood's error) did not suggest any
material change in Cook's condition at or
around the time Liberty terminated her
benefits; and (3) Liberty never offered a
reasoned explanation as to why the
administrative record failed to demonstrate
that Cook remained disabled.

Id. at 12.  The court recognized that the case law was divided on
whether a court should award benefits and reinstatement if it found
a plan's decision to terminate benefits to be arbitrary and
capricious, or whether it should remand to the plan for a new
determination of the participant's disability status.  However, it
concluded that "the better reasoned cases do not require remand
where, as here, the claimant was receiving benefits and had her
benefits arbitrarily terminated without any record evidence
supporting the termination."  Id. at 13.  
	Finally, the court decided that it would have been
"inequitable ... to permit Liberty to terminate Cook's benefits as
of some date after October 31, 1998 but prior to now on grounds
that Cook cannot now prove that she was disabled at all times
during the past three-plus years" that her administrative appeals
and litigation were pending.  Id. at 13-14.  The court recognized
that Liberty's termination could make the presentation of such
proof even more difficult:  "[a]n arbitrary termination of
disability benefits to a disabled claimant could well starve the
claimant of the resources necessary to generate evidence of
continuing disability...."  Id. at 14 n.7.  On that basis, the
district court awarded Cook 42 months of back benefits,
reinstatement to the plan as of May 1, 2002 (two days after it
entered judgment), attorney's fees, and prejudgment interest. 
Liberty filed this timely appeal.
II.
A. The Termination Decision
	We review the district court's grant of summary judgment
de novo.  Terry v. Bayer Corp., 145 F.3d 28, 34 (1st Cir. 1998). 
A federal court reviews an insurer's termination decision "under a
deferential arbitrary and capricious standard [if] the language of
the underlying plan reserves discretion to the insurer in
determining eligibility for benefits."  Pari-Fasano, 230 F.3d at
418 (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101
(1989)). (8)  The disability plan in question affords Liberty the
power "to construe the terms of this policy and to determine
benefit eligibility hereunder."  The parties do not contest that
this language sufficiently reserves discretion to Liberty. 
Therefore, we agree with the district court that we can overturn
the termination decision only if we find it was arbitrary and
capricious.  In order to arrive at such a conclusion, we would have
to find "that the insurer's eligibility determination was
unreasonable in light of the information available to it."  Pari-Fasano, 230 F.3d at 419.  In making this determination, we look to
the record as a whole; "the 'whole' record consists of that
evidence that was before the administrator when he made the
decision being reviewed."  Mitchell v. Eastman Kodak Co., 113 F.3d
433, 440 (3d Cir. 1997).
	The District Court concluded that Liberty abused its
discretion in terminating Cook's benefits because it relied on Dr.
Blackwood's response to Liberty in August 1998 that Cook could work
40 hours a week without considering Dr. Blackwood's subsequent
explanation that this response was in error.  Our reading of the
administrative record leaves us with a slightly different
understanding of Liberty's response to Dr. Blackwood's correction. 
Liberty's April 1999 letter to Cook informing her that her appeal
of the termination had been denied states: "We have reviewed the
additional medical information submitted by Dr. Blackwood."  The
record indicates that such a review in fact took place.  After the
Liberty analyst handling Cook's claim received Dr. Blackwood's
explanatory letters and Cook's updated medical certificate, she
reviewed all of the medical information Cook had submitted since
March 1997, including Dr. Blackwood's chart notes and medical
certificates, and summarized her findings.  Her conclusion,
memorialized in an internal memorandum, was that she questioned
"the validity of ... [Dr. Blackwood's] assessment of [Cook's]
condition" (emphasis added).  Therefore, we disagree with the
district court's conclusion that Liberty "overlooked" or
"ignore[d]" Dr. Blackwood's May 1997 certificate.  Liberty
considered that certificate and disagreed with its conclusions. 
Nevertheless, we still agree with the district court's holding that
Liberty's termination of Cook's benefits was arbitrary and
capricious.  We do so because we find the termination was
"unreasonable in light of the information available" to Liberty at
the time of its decision.  Pari-Fasano, 230 F.3d at 419.
1. Evidence in the Administrative Record

	To support her administrative appeal, Cook presented to
Liberty the same type of evidence she had been submitting for the
past three years to support her continued eligibility for benefits
-- letters and forms filled out by Dr. Blackwood in which he gives
his opinion that Cook is suffering from "totally disabling
ailments," is "not able to perform with any reasonable continuity
the material and potential duties of her job or any similar
occupation," and should be kept "out of work indefinitely."  When
Liberty informed Cook that her appeal had been denied -- that it
was upholding the termination of her benefits even after
considering Dr. Blackwood's letters and medical certificate -- it
told her that "[t]he medical information submitted does not support
limitations that would render you incapable of performing the
material and substantial duties of any occupation."  This statement
reflects Liberty's conclusion that Dr. Blackwood's May 1997
certificate declaring that Cook should be kept "out of work
indefinitely" was not credible.  
	The record reveals three overriding reasons for this
rejection.  We assess them in turn.
a. Inconsistent Medical Certificates
	Liberty doubted the correctness of the May 1997
certificate because it directly conflicted with the March 1997
medical certificate Dr. Blackwood inadvertently forwarded to it. (9) 
In its brief to this court, Liberty tries to explain this doubt on
two bases.  First, it suggests that Dr. Blackwood succumbed to
pressure from his patient:  "regardless of whether Dr. Blackwood
was actually confused by Liberty's August 18, 199[8] letter ... or
was changing his prior opinion in response to pressure from Cook to
help her with her 'problem with the insurance company.'" (emphasis
added).  Second, it suggests that Dr. Blackwood fabricated the May
certificate with its reference to the "purported May 5, 1997
medical certificate" (emphasis added).  
	These insinuations are not supported by the record.  When
it received Dr. Blackwood's letters and the May 5, 1997,
certificate on November 5, 1998 (as part of Cook's internal
appeal), Liberty never contended that the certificate was
fraudulent or backdated.  There is no indication in the record that
the Liberty analysts assigned to Cook's case believed Dr. Blackwood
fabricated this May 5, 1997, certificate to help Cook obtain her
benefits, and no one mentioned this possibility in the internal
memoranda exchanged while evaluating Cook's appeal.  Additionally,
the medical opinion proffered in the May 5, 1997, certificate was
supported by evidence already in Cook's file.  On May 5, 1997, Dr.
Blackwood recorded on Cook's chart his intent to "put her back out
of work on an indefinite basis" after she suffered a "recurrence of
chronic fatigue syndrome."  Although the record does not establish
that the May 5, 1997, certificate itself was forwarded to Liberty
on or about that date, Liberty's internal memorandum of May 9,
1997, indicating that Cook's long-term disability benefits had been
restored, permits a fair inference that the substance of Dr.
Blackwood's opinion about Cook's severe work limitations was
communicated to Liberty in some fashion on or about May 5, 1997. 
Also, Dr. Blackwood's chart notes, which had been forwarded to
Liberty in December 1997 (and again in August 1998) upon its
request as part of its regular review, all confirm Cook's severe
work limitations.
	The Liberty analyst reviewing Cook's claim in August 1998
likely was confused by the apparent inconsistency between the chart
notes (reporting Cook's inability to work) and the erroneously
submitted March 1997 medical certificate attached to those chart
notes (clearing her to work 40 hours a week).  Although Liberty
gave Dr. Blackwood the opportunity to explain this inconsistency,
he erred again with his "yes" response to Liberty's questioning. 
Nevertheless, to support Cook's administrative appeal, Dr.
Blackwood explained his mistake, reiterated the currently-applicable diagnosis, and submitted the May 1997 medical
certificate to buttress his explanation.  In submitting that
certificate, Dr. Blackwood was not creating a new document or a new
diagnosis.  Instead, he was reminding Liberty of his long-standing
diagnosis of Cook, modified only for that brief period of time when
she returned to work in April 1997, and previously accepted by
Liberty as a sound basis for the payment of disability benefits. 
Therefore, the highly charged suggestions of succumbing to pressure
from a patient and fabrication have no support in the record.
b. Lack of Objective Evidence

	The Liberty analyst handling Cook's claim concluded that
there were no "clinical objective findings to support the
fibromyalgia or chronic fatigue syndrome" diagnoses.  She added
that Dr. Blackwood's assessment of Cook's condition appeared "to be
based on just [Cook's] subjective complaints."  Although this
analyst asked Dr. Blackwood for "copies of all diagnostic testing"
and "a copy of the complete pulmonary function test," she did not
receive this information.  
	Liberty sought evidence from tests that were independent
of Cook's reporting of her symptoms.  In many instances, such a
requirement would be justified.  However, as we have recognized,
"[d]iagnosing CFS is not sport for the short-winded."  Rose v.
Shalala, 34 F.3d 13, 18 (1st Cir. 1994).  "[T]here is no 'dipstick'
laboratory test for chronic fatigue syndrome."  Sisco v. HHS, 10
F.3d 739, 744 (10th Cir. 1993).  See also Vega v. Comm. of Social
Security, 265 F.3d 1214, 1219 (11th Cir. 2001) ("We note that the
Social Security Administration recently concluded that there are no
specific laboratory findings that are widely accepted as being
associated with CFS.").  Given the nature of Cook's disease, it was
not reasonable for Liberty to expect her to provide convincing
"clinical objective" evidence that she was suffering from CFS. (10)
See Mitchell, 113 F.3d at 443 ("[I]t would defeat the legitimate
expectations of participants in the [] Plan to require those with
CFS to make a showing of clinical evidence of such etiology as a
condition of eligibility for LTD benefits.").
c. Work at a Real Estate Agency
	As a final reason for rejecting Dr. Blackwood's medical
opinion as sufficient "proof," the Liberty analyst handling Cook's
claim cites "[t]he fact that [Cook] has been working part time as
a realator [sic] during the time her MD has stated she is
completely disabled."  In May 1997, an employee of Sanders informed
Liberty that Cook was working at a real estate agency while she was
receiving disability benefits from Liberty.  Cook acknowledged that
she had started working "a few hours a week doing real estate open
houses and a few showings."  A Liberty claims analyst informed her
that her disability benefits would be offset by the income she was
receiving from her part-time job. (11)  She was further told that she
could work on a part-time basis while continuing to receive
benefits, so long as her earnings did not go above a certain limit. 
As a follow-up to this conversation, he faxed her a section of the
plan document explaining the offset process.  He then contacted the
agency for which Cook was working and requested Cook's earnings
history.  The agency informed Liberty that Cook had begun working
in April 1997, and between April and July 1997, she had netted $175
in income.  Her job duties included "occasional open houses,
showings, [and] customer phone calls," but Cook was not putting in
"desk time."  This is the extent of the information in the
administrative record relating to Cook's part-time job.  In
February 1998, Liberty requested that Cook provide information
regarding her total earnings from this job, and in August 1998, it
sent the same request to the real estate agency.  It does not
appear from the documents in the record that either responded.  
	In relying on Cook's limited work at the real estate
agency as a basis for rejecting Dr. Blackwood's assessment of
Cook's total disability, Liberty ignores the fact that Cook had
discussed her part-time work with Liberty analysts.  None of them
mentioned to her that her work left her in danger of losing her
disability benefits.  In fact, the plan states: "If the Covered
Person is earning less than 20% of his Pre-Disability Earnings, the
Disability Benefit will be paid."  Therefore, the plan specifically
contemplates the possibility that a person receiving full
disability benefits could also be working part-time -- but she
could earn no more than 20% of her former salary at Sanders.
	Moreover, even with deferential review, Liberty possessed
too little information regarding Cook's part-time work history to
support a decision to terminate her benefits on that ground.  At
the time it made its initial decision, Liberty knew only that Cook
had earned $175 over three months in 1997 and had worked a few
Sundays tending open houses.  It is true that Liberty requested,
and Cook failed to provide, her W-2 form for 1997 from the real
estate agency.  She should have provided that information.  Yet
Liberty did not rely on Cook's lack of response to its request for
her W-2 form as a basis for its termination decision.  Instead, it
saw in Cook's realtor work another reason for questioning the
veracity of Dr. Blackwood's opinion that she was "out of work
indefinitely."  However, Liberty's evidence that Cook was working
elsewhere was so thin and outdated that it could not have
reasonably relied on it as a basis for rejecting Dr. Blackwood's
assessment of Cook's severe working limitations.  Indeed, Liberty
did not point out to Cook, either in its initial termination
letter, or in its letter affirming its denial, that her part-time
work at the agency factored into its decision.  The failure to do
so suggests Liberty's own recognition of the weakness of this
evidence as a basis for terminating Cook's benefits.
2. Conclusion
	In pursuing her appeal with Liberty, Cook provided the
same type of evidence that she had always proffered to prove her
claim -- Dr. Blackwood's medical opinion, backed up by his chart
notes.  These documents were the only medical documents in Cook's
file.  Cook had been receiving disability benefits since May 1995,
including under the "any occupation" definition of disabled since
May 1997.  Except for a slight period of improvement in March-April
1997, Cook's CFS and related ailments had been sufficiently
disabling throughout that time, according to the medical evidence
provided, to justify the payment of disability benefits.  In
changing course, Liberty greatly exaggerated the significance of a
confused but promptly explained response from Dr. Blackwood, made
an unjustified (and consequently, unfulfilled) demand for objective
medical evidence, and relied on sketchy information of part-time
work.  None of this is sufficient to reverse Liberty's previous
acceptance of Dr. Blackwood's medical opinion.
	These deficiencies in record support would not be so
consequential if Liberty had developed any contradictory medical
evidence in the record to support its decision to reject Cook's
evidence.  For example, if it seriously questioned the veracity of
Dr. Blackwood's opinion, Liberty could have required Cook to get an
Independent Medical Examination or subjected Dr. Blackwood's chart
notes and opinions to review by another physician.  None of this
happened.  To be sure, we are not suggesting that such steps are
necessary in every termination of disability benefits case to
establish a reasonable basis for the termination.  Satisfying that
burden will always depend on the specific facts of the case.  There
may well be cases where the opinion of the claimant's treating
physician can be rejected without reliance on any contradictory
medical evidence developed by the plan administrator.  Here,
however, without another reasonable basis for rejecting Dr.
Blackwood's opinion, the absence of that contradictory evidence is
fatal to Liberty's case.  Cf. Miller v. United Welfare Fund, 72
F.3d 1066, 1073 (2d Cir. 1995) ("In effect, the Fund argues that
both 'common sense' and the very decision it was reviewing were
sufficient to overcome [the doctor's] statement that he and the
medical team at [the hospital] believed that private nursing care
was necessary for [the claimant's] full recovery.  We find that the
Fund's ipse dixit pronouncement ... [was] insufficient to
contradict the only piece of expert evidence.").    
B. Remedy
	After concluding that Liberty's decision was arbitrary
and capricious, the district court entered a final judgment in
favor of Cook for forty-two months of back benefits and pension
contributions for the period between November 1, 1998 and May 1,
2002 (two days after judgment was entered), reinstatement to the
plan as of May 1, 2002, attorney's fees, and prejudgment interest. 
Liberty argues on appeal that the court should have remanded to the
plan administrator the issue of whether Cook was disabled during
the litigation and the pendency of her appeal.  We disagree.
	An appellate court reviews a district court's choice of
remedy for an ERISA violation for abuse of discretion.  Zervos v.
Verizon New York Inc., 277 F.3d 635, 648 (2d Cir. 2002); Grosz-Salomon v. Paul Revere Life Ins. Co., 237 F.3d 1154, 1163 (9th Cir.
2001).  Once a court finds that an administrator has acted
arbitrarily and capriciously in denying a claim for benefits, the
court can either remand the case to the administrator for a renewed
evaluation of the claimant's case, or it can award a retroactive
reinstatement of benefits.  See Welsh v. Burlington N., Inc.,
Employee Benefits Plan, 54 F.3d 1331, 1340 (8th Cir. 1995)
(recognizing that a district court has power to calculate and award
unpaid benefits).  
	Liberty cites the familiar proposition that ERISA
"provides no authority for a court to render a de novo
determination of an employee's eligibility for benefits" in support
of its argument that the district court could not award Cook
retroactive benefits.  Peterson v. Cont'l Cas. Co., 282 F.3d 112,
117 (2d Cir. 2002).  Important though it is in many other contexts,
this axiom underlying the principle of ERISA deference does not
deprive a court of its discretion to formulate a necessary remedy
when it determines that the plan has acted inappropriately.
"[R]etroactive reinstatement of benefits is appropriate in ERISA
cases where, as here, 'but for [the insurer's] arbitrary and
capricious conduct, [the insured] would have continued to receive
the benefits' or where 'there [was] no evidence in the record to
support a termination or denial of benefits.'"  Grosz-Salomon, 237
F.3d at 1163 (modifications in original) (quoting Quinn v. Blue
Cross & Blue Shield Ass'n., 161 F.3d 472, 477 (7th Cir. 1998)); 
see also Zervos, 277 F.3d at 648 ("[A] remand of an ERISA action
seeking benefits is inappropriate where the difficulty is not that
the administrative record was incomplete but that a denial of
benefits based on the record was unreasonable.") (internal
quotations marks omitted); Levinson v. Reliance Standard Life Ins.
Co., 245 F.3d 1321, 1330 (11th Cir. 2001) ("We do not agree,
however, that a remand to the plan administrator is appropriate in
every case."); Grosz-Salomon, 237 F.3d at 1163 ("[A] plan
administrator will not get a second bite at the apple when its
first decision was simply contrary to the facts.").  
	We acknowledge that several of these quotations may
overstate the matter.  We have no doubt that in some situations a
district court, after finding a mistake in the denial of benefits,
could conclude that the question of entitlement to benefits for a
past period should be subject to further proceedings before the
ERISA plan administrator.  This might be true, for example, if the
denial is less flagrant than in this case and if there were good
reason to doubt that a reassessment would justify benefits for some
or all of the past period.  However, the variety of situations is
so great as to justify considerable discretion on the part of the
district court and, in this instance, it has not been abused.
	Liberty argues that there is no evidence of Cook's
disability status after October 1998, when it terminated her
disability benefits, and hence no basis for awarding her disability
benefits past that date.  However, the absence of information about
Cook's disability status resulted directly from Liberty's arbitrary
and capricious termination of her benefits.  As a recipient of
disability benefits, Cook was under a continuing obligation to
adduce proof of her disability pursuant to the long-term disability
plan.  Once Liberty terminated her benefits, she was no longer
obliged to update Liberty on her health status.  It would be
patently unfair to hold that an ERISA plaintiff has a continuing
responsibility to update her former insurance company and the court
on her disability during the pendency of her internal appeals and
litigation, on the off chance that she might prevail in her
lawsuit.  Moreover, as the district court notes in its decision,
reconstruction of the evidence of disability during the years of
litigation could be difficult for a recipient of long-term
disability benefits wrongly terminated from a plan.
	This is not to say that Liberty cannot terminate Cook's
benefits in the future.  Once she is reinstated to the plan, she
will again be obligated to prove that she is disabled under the
"any occupation" definition listed in the plan documents.  If she
cannot do so, or if Liberty acquires sufficient evidence to
contradict her doctor's opinion, it could pursue termination of her
eligibility for benefits at that time.
	The district court also awarded Cook attorney's fees, as
it has discretion to do under 29 U.S.C. § 1132(g)(1).  An appellate
court reviews an award of attorney's fees solely for abuse of
discretion.  Cottrill v. Shapprow, Johnson & Ursillo, Inc., 100
F.3d 220, 223 (1st Cir. 1996).  We find no abuse of discretion in
that award.  
III.
	For the aforementioned reasons, we affirm the trial
court's determination that Liberty arbitrarily and capriciously
terminated Cook's eligibility for long-term disability benefits. 
We also affirm the court's award of forty-two months of back
benefits and pension contributions, its order of reinstatement to
the plan effective May 1, 2002, and the award of attorney's fees. 
Appellant is responsible for all costs associated with this appeal.
 So ordered.
Appendix: Important Dates and Events
February 1995		Cook files claim with Liberty for short-term
disability benefits.

April 1995		Cook files claim with Liberty for long-term
disability benefits. 

May 8, 1995		Her claim is approved because she meets the
"own occupation" definition of disabled.

March 1997		Liberty requests updated medical information
and informs Cook it will be reviewing her
disability status to determine whether she
meets the "any occupation" definition of
disabled.

April 1997		Dr. Blackwood reports that Cook's condition
has improved and he releases her to return
to work "on a trial basis."

April 14, 1997		Cook returns to work and Liberty temporarily
suspends her disability benefits.  Cook
presents Liberty with a "medical
certificate" signed by Dr. Blackwood
authorizing her return to work.

May 5, 1997		Cook suffers a recurrence of CFS as a result
of an infected tooth.  Dr. Blackwood
determines Cook is no longer able to work 40
hours a week, and records in his notes that
she is "out of work on an indefinite basis."

May 9, 1997		Liberty renews Cook's long-term disability
benefits under the "any occupation"
standard.

July 23, 1998		Liberty requests updated medical information
from Cook and Dr. Blackwood.  

		August 13, 1998		Dr. Blackwood responds to Liberty's request,
forwarding copies of chart notes and a
"medical certificate" dated March 24, 1997.

August 18, 1998		Liberty writes to Dr. Blackwood, asking
whether the work limitations listed on the
medical certificate were still applicable to
Cook.  Liberty attaches the medical
certificate in question to this letter.

September 9, 1998	Dr. Blackwood responds "Yes" to Liberty's
inquiry.

October 16, 1998		Liberty terminates Cook's benefits.

November 5, 1998		Cook appeals Liberty's decision.  She
attaches three letters from Dr. Blackwood
that describe her disability and its
attendant work limitations.  She also
forwards a "medical certificate" signed by
Dr. Blackwood and dated May 5, 1997, which
states that Cook is "out of work
indefinitely."

April 12, 1999		Liberty affirms its decision. 

1.  See the Appendix for a chronology of important dates and
events in this case.
2.  This document is a pre-printed form entitled "medical
certificate" and provided by the medical center with which Dr.
Blackwood is affiliated.  In this case, Dr. Blackwood used this
form to communicate with Sanders regarding Cook's work limitations. 
The form has lines to fill in the patient's name, diagnosis,
expected return to work or school date, and limitations.  This
medical certificate -- listing Cook's return to work date as April
14, 1997, and permitting her to work 40 hours a week -- is the
first of three medical certificates that are involved in this case.
3.  Cook had previously reported that Sanders required her to
work 50-60 hours each week and oftentimes she was unable to take
lunch or dinner breaks.
4.  Fibromyalgia is a disorder characterized by widespread
musculoskeletal pain, fatigue and multiple tender points.  National
Institutes of Health, Questions and Answers About Fibromyalgia, at
http://www.niams.nih.gov/hi/topics/fibromyalgia/fibrofs.htm
(December 1999).  Dr. Blackwood had first diagnosed the disease in
May 1996.  
5.  Liberty had encouraged Cook to apply for Social Security
Disability benefits, and informed her that any award would offset
the benefits the long-term disability plan was paying her every
month.  Liberty referred her to a law firm that specialized in such
claims and told Cook it would pay the costs of hiring this firm to
secure her benefits.  The firm regularly apprised Liberty of the
state of Cook's social security case.  On August 9, 1998, the
Social Security Administration approved Cook's claim for benefits. 
However, we recognize that "benefits eligibility determinations by
the Social Security Administration are not binding on disability
insurers."  Pari-Fasano v. ITT Hartford Life & Accident Ins. Co.,
230 F.3d 415, 420 (1st Cir. 2000). 
6.  Section 502 states, in pertinent part: 


	A civil action may be brought-		

	(1)	by a participant or beneficiary-
	. . .

	to recover benefits due to him under the terms of his
plan, to enforce his rights under the terms of the plan,
or to clarify his rights to future benefits under the
terms of the plan;

	. . . 
7.  As the district court correctly pointed out, this Circuit
has held that there are no substantive differences between
"arbitrary and capricious" and "abuse of discretion" review in the
ERISA context.  Id. at 13 (citing Pari-Fasano, 230 F.3d at 418-19).
8.  As we have recently recognized, there is no "conflict
between the standard of review that federal courts must apply on
summary judgment [de novo] and the degree of deference that such
courts ultimately owe to plan administrators [arbitrary and
capricious],"  as "[t]he degree of deference owed to a plan
fiduciary is an underlying legal issue that remains the same
through all stages of federal adjudication."  Leahy v. Raytheon
Co., No. 02-1215, 2002 U.S. App. LEXIS 25903, at *12-13 (1st Cir.
Dec. 17, 2002).
9.  A close examination of the record provides more support for
Dr. Blackwood's explanation that he erred both in forwarding the
March 24, 1997, certificate to Liberty, and in affirming that the
limitations listed on it were still applicable to Cook.  As noted
in footnote 2, the medical certificate was used by Dr. Blackwood to
communicate to an employer the work limitations of an employee in
his care.  He did not use these certificates for internal record-keeping purposes.  There are three medical certificates involved in
this dispute: 
	(1) A certificate dated March 24, 1997, stating Cook could
return to work on April 3, 1997, with the restriction that she
could not work more than 40 hours each week and had to have
regular breaks.  This is the certificate Dr. Blackwood
forwarded to Liberty in August 1998 attached to Cook's medical
records.
	(2) An undated certificate stating Cook could return to work
on April 14, 1997, with the restriction that she could not
work more than 40 hours each week and had to have regular
breaks.  This is the certificate Cook gave to Sanders when she
returned to work.  Sanders shortly thereafter forwarded it to
Liberty.
	(3) A certificate dated May 5, 1997, stating Cook was "out of
work indefinitely." 
Although Dr. Blackwood forwarded certificate (1) to Liberty more
than a year after he wrote it, he had never in fact issued this
certificate to Cook to present to Sanders.  Cook did not return to
work on April 3, 1997, as the certificate predicts, nor did she
present certificate (1) when she reported to Sanders.  When she
finally returned to work on April 14, Cook presented to Sanders
certificate (2).  Certificate (1) is only relevant to this case
because it was mistakenly attached to the chart notes Dr. Blackwood
sent to Liberty.
10.  Tests are available to determine whether a CFS sufferer has
an elevated level of Epstein-Barr Virus ("EBV") antibodies, but the
relationship between EBV and CFS is unclear.  As the National
Institute of Health reports: "High levels of EBV antibodies have
now been found in some healthy people as well as in some people
with CFS.  Likewise, some people who don't have EBV antibodies, and
who thus have never been infected with the virus, can show CFS
symptoms."  National Institutes of Health, Fact Sheet:  Chronic
Fatigue Syndrome, at http://www.niaid.nih.gov/factsheets/ cfs.htm
(January 2001).  When Dr. Blackwood first diagnosed Cook, he
reported she had an elevated level of EBV.
11.  This analyst was referring to the Quick Recovery Program in
the long-term disability policy.  Under this program, someone who
is partially disabled and thus unable to work full-time can receive
a "Loss of Earnings Monthly Benefit" to make up for some of the gap
between her former salary and her part-time salary.  The plan
defines someone who is "partially disabled" as one who is "able to
perform all the material and substantial duties of his own or any
other occupation on a part-time basis."  



