Jill Marcin v. Reliance Standard Life Insura, et al

Filing

OPINION [1682108] filed (Pages: 24) for the Court by Judge Wilkins. [16-7125]

USCA Case #16-7125

Document #1682108

Filed: 06/30/2017

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 5, 2017

Decided June 30, 2017
No. 16-7125
JILL MARCIN,
APPELLEE
v.

RELIANCE STANDARD LIFE INSURANCE COMPANY AND MITRE
CORPORATION LONG TERM DISABILITY INSURANCE PROGRAM,
APPELLANTS

Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-01308)

Joshua Bachrach argued the cause and filed the briefs for
appellants.
Scott B. Elkin argued the cause and filed the brief for
appellee.
Before: TATEL, PILLARD and WILKINS, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKINS.

Page 1 of 24

USCA Case #16-7125

Document #1682108

Filed: 06/30/2017

2
WILKINS, Circuit Judge: This appeal concerns Jill
Marcin’s recovery of long-term disability benefits under an
ERISA-governed plan. In 2008, Ms. Marcin filed for
disability benefits under the Mitre Long Term Disability Plan,
Group Policy Number 111701 (the “Plan” or “Policy”), citing
numerous ailments that affected her cognitive abilities and
motor functioning. Reliance Standard Life Insurance
Company (“Reliance”), the Plan administrator, denied Ms.
Marcin’s request for benefits, explaining that she did not meet
the definition of “Total Disability.” In particular, Reliance
concluded that Ms. Marcin was capable of performing all
material duties of her employment on a full-time basis.
Following an unsuccessful administrative appeal, Ms. Marcin
filed suit against Reliance and the Plan in District Court in
2010. See Marcin v. Reliance Standard Life Ins. Co. (Marcin
I), 895 F. Supp. 2d 105 (D.D.C. 2012). The District Court
remanded the case to Reliance, requesting additional
explanation as to how the record supported Reliance’s
conclusion that Ms. Marcin was not disabled.
In early 2013, Reliance again denied Ms. Marcin’s claim
for disability benefits. Ms. Marcin filed a second lawsuit in
District Court, which serves as the basis for this appeal. See
Marcin v. Reliance Standard Life Ins. Co. (Marcin II), 138 F.
Supp. 3d 14 (D.D.C. 2015). Following an additional remand,
the District Court entered judgment in favor of Ms. Marcin on
October 14, 2015. Specifically, the District Court found that
there was not substantial evidence in the record to support
Reliance’s denial of disability benefits, though it cautioned
that it was not making a finding that Ms. Marcin was Totally
Disabled. Id. at 30. In subsequent orders, the District Court
determined that Ms. Marcin was entitled to disability benefits
in the amount of $2,409.74 per month, along with postjudgment interest at the rate of 0.27 percent per annum from

Page 2 of 24

USCA Case #16-7125

Document #1682108

Filed: 06/30/2017

3
October 14, 2015, and attorney’s fees in the amount of
$72,240.
Reliance timely appealed, arguing that the District Court
erred by awarding Ms. Marcin disability benefits and
miscalculating the amount of benefits owed. Reliance’s
strongest argument on appeal is that benefits under the Plan
cannot be awarded without a factual finding of Total
Disability. Given that the District Court explicitly disavowed
making this determination, Reliance contends that an award
of benefits was legally precluded. While we agree with
Reliance that a finding of Total Disability was a prerequisite
to the receipt of benefits, we are mindful of our de novo
standard of review for summary judgment. Pursuant to this
standard, we may affirm the District Court on any ground, and
elect to do so on the basis that Ms. Marcin proved Partial
Disability. According to the express terms of the Plan, Partial
Disability is equivalent to Total Disability, and we find that
Ms. Marcin was Totally Disabled within the relevant period.
We also affirm the District Court’s calculation of disability
benefits owed to Ms. Marcin.
I.
For almost seven years, Ms. Marcin has been engaged in
litigation under the Employee Retirement Income Security
Act (“ERISA”) to recover disability benefits owed under the
Plan. To date, the litigation has spanned two lawsuits, at least
three remands, and now an appeal. While the procedural
posture of this case is tortuous, the issue we must decide is
relatively straightforward: did Ms. Marcin prove Total
Disability in accordance with the terms of the Plan? The
factual evidence in this case shows that she did.

Page 3 of 24

USCA Case #16-7125

Document #1682108

Filed: 06/30/2017

4
A.
Prior to developing her disability, Ms. Marcin “worked as
a multi-discipline systems engineer at Mitre, a non-profit
organization that supports federally funded research and
development centers with systems engineering and
information technology assistance.” Marcin I, 895 F. Supp. 2d
at 107. Beginning January 1, 2005, Reliance issued Group
Long-Term Disability Insurance Policy No. LTD 111701 to
Mitre, and Ms. Marcin subsequently received coverage
pursuant to the terms of this Plan. See id. As the claims
review fiduciary, Reliance is responsible for determining
eligibility for benefits under the Policy. Id.
To be eligible for disability benefits, the Plan explicitly
requires an insured to satisfy four elements. First, the
individual must be “Totally Disabled as the result of a
Sickness or injury covered by this Policy.” J.A. 2131. The
term “Totally Disabled” (or, alternatively, “Total Disability”)
means:
(1)

during the Elimination Period and for the
first 24 months for which a Monthly Benefit
is payable, an Insured cannot perform the
material duties of his/her regular occupation;
(a)

“Partially Disabled” and “Partial
Disability” mean that as a result of an
Injury or Sickness an Insured is capable
of performing the material duties of
his/her regular occupation on a parttime basis or some of the material
duties on a full-time basis. An Insured
who is Partially Disabled will be
considered Totally Disabled, except
during the Elimination Period;

Page 4 of 24

USCA Case #16-7125

Document #1682108

Filed: 06/30/2017

5
(b) “Residual Disability” means being
Partially
Disabled
during
the
Elimination Period. Residual Disability
will be considered Total Disability; and
(2)

after a Monthly Benefit has been paid for 24
months, an Insured cannot perform the
material duties of any occupation. Any
occupation is one that the Insured’s
education, training or experience will
reasonably allow. We consider the Insured
Totally Disabled if due to an Injury or
Sickness he or she is capable of only
performing the material duties on a part-time
basis or part of the material duties on a Fulltime basis.

J.A. 2123. In other words, an insured is entitled to disability
benefits under this first prong of the Policy if, due to her
ailments, she was incapable of performing all of the material
duties of her occupation on a full-time basis. A Partial
Disability under the Policy is equivalent to Total Disability.
Further, the Policy provides that the insured’s coverage
will terminate on “the first of the Policy month coinciding
with or next following the date the Insured ceases to meet the
Eligibility Requirements.” J.A. 2129, 2156. To meet the
Eligibility Requirements, an insured must be an “Eligible
Person,” meaning that she is a full-time or part-time employee
actively at work. The term “Actively at Work” means that the
insured is performing the material duties of her job on a fulltime or part-time basis in the place and manner in which the
job is normally performed. This encompasses approved time
off, including vacation and jury duty, but does not include
time off as a result of injury or sickness. Thus, an insured’s

Page 5 of 24

USCA Case #16-7125

Document #1682108

Filed: 06/30/2017

6
disability must develop while she is still covered by the Plan.
A disability that arises after coverage has ceased is not
eligible for benefits.
Second, the insured must be under the regular care of a
physician. Third, the individual must have completed the
“Elimination Period.” The Elimination Period is defined by
the Policy as a “period of consecutive days of Total Disability
. . . for which no benefit is payable. It begins on the first day
of Total Disability,” J.A. 2122, and is “[t]he greater of
expiration: 180 consecutive days of Total Disability or the
end of The MITRE Corporation’s continuation program,” J.A.
2120. Accordingly, an insured must show that during this
180-day period, she was incapable of performing the material
duties of her regular occupation on a full-time basis. Fourth,
the individual must submit “satisfactory proof of Total
Disability” to Reliance. J.A. 2131. For any Total Disability,
the insured must send written proof within ninety days after
the Total Disability occurs or as soon as reasonably possible.
If an insured satisfies these four requirements, then Reliance
is obligated to pay monthly benefits under the Plan. Only the
first element is at issue in this case.
B.
Beginning November 2005, Ms. Marcin was diagnosed
with numerous medical conditions, including kidney cancer,
portal vein thrombosis, Factor V Leiden, splenorenal shunt,
anemia, and polycystic ovarian syndrome. See Marcin I, 895
F. Supp. 2d at 108. The joint appendix chronicles the myriad
doctors’ appointments, diagnoses, and medical procedures
that Ms. Marcin underwent starting in 2005. According to the
record, Ms. Marcin submitted an application for long-term
disability benefits under the Plan on March 25, 2008. In this
application, Ms. Marcin claimed that her last day of work

Page 6 of 24

USCA Case #16-7125

Document #1682108

Filed: 06/30/2017

7
before becoming disabled was August 19, 2007. See id. While
Ms. Marcin did return to work between November 2007 and
February 2008, it was only on a part-time basis, and she
ceased working altogether on February 15, 2008. On
December 18, 2007, Mitre notified Reliance of Ms. Marcin’s
disability claim. Id.
In support of her disability claim, Ms. Marcin provided
Reliance with voluminous medical records, her work history,
witness statements, and scientific literature concerning her
illness. Ms. Marcin’s medical records showed a decline in her
well-being and functional capabilities from August 2007 to
March 2008. Following her kidney surgery in late August
2007, a Preliminary Report dated October 26, 2007 by Dr.
Richard Guido noted that Ms. Marcin “is doing fairly well.”
J.A. 76. Ms. Marcin was then released by her doctor to return
to work, but only “as tolerated.” At a follow-up visit on
November 30, 2007, Dr. Anthony Felice explained that Ms.
Marcin “feels reasonably well” and “has no pain.” J.A. 89,
2063. Approximately one month later on December 31, 2007,
Dr. Felice stated in a Progress Note that Ms. Marcin “is
reasonably well although [she] has some mild fatigue,” and
will take iron to counteract her anemia. J.A. 91, 2065.
However, on February 29, 2008, Dr. Felice acknowledged
that although Ms. Marcin “is feeling better,” she “still has
much fatigue,” which “limits her ability to work.” J.A. 82.
Dr. Felice’s findings were further confirmed by Dr.
Kareem Abu-Elmagd on March 20, 2008, when he noted that
Ms. Marcin “is currently in Pittsburgh for additional testing”
and “will need to remain off of work until further notice,
pending test results.” J.A. 2205. Five days later, Dr. AbuElmagd completed an Attending Physician Statement
(“APS”), in which he stated that Ms. Marcin suffered from
“extreme fatigue, [and] frequent illness.” J.A. 2025. Dr. Abu-

Page 7 of 24

USCA Case #16-7125

Document #1682108

Filed: 06/30/2017

8
Elmagd included his assessment that Ms. Marcin was, at
most, capable of sedentary work, that she had not yet
achieved maximum medical improvement, and that it was
“unknown” whether she would make a full recovery. J.A.
2026, 2205. Finally, an October 24, 2008 Functional Capacity
Evaluation (“FCE”) reported that Ms. Marcin has a “below
part time workplace tolerance” and “is unable to return to
work in her previous position or any other position.” 1 J.A.
559. Dr. Costa explained on this FCE that Ms. Marcin
suffered from these same work restrictions from August 2007
through October 2008.
Indeed, Ms. Marcin’s medical assessments are further
substantiated by her inability to engage in full-time
employment. An examination of Ms. Marcin’s sick leave
shows that she never returned to work full time after the onset
of her disability in August 2007. Rather, the number of sick
days Ms. Marcin took increased exponentially from
November 2007 to February 2008, and Ms. Marcin never
worked a 40-hour week during that time period.
Despite this evidence, Reliance denied Ms. Marcin’s
disability claim. See Marcin I, 895 F. Supp. 2d at 108.
Reliance based its denial on the grounds that “the medical
records on file do not support work impairment at date of loss
or beyond 11/6/07 when you were released to work status post
nephrectomy.” J.A. 1993; see Marcin I, 895 F. Supp. 2d at
108. In support of its decision, Reliance noted that there was
no written documentation from Ms. Marcin’s physicians
supporting her inability to work. Reliance relied upon notes
from Ms. Marcin’s doctors stating that she only had “some
mild fatigue,” but overall “look[ed] well.” J.A. 1993. All of
1

The October 24, 2008 FCE was not included in the original claim
record, but was added to the record after Reliance’s first denial of
benefits.

Page 8 of 24

USCA Case #16-7125

Document #1682108

Filed: 06/30/2017

9
Ms. Marcin’s labs on file document hemoglobin slightly
below normal, but Reliance inferred that these labs did not
support work impairment. Reliance thus concluded that Ms.
Marcin did not meet the Plan’s definition of disability.
Ms. Marcin appealed her claim denial on December 29,
2008, and Reliance denied the appeal on September 29, 2009.
Specifically, Reliance re-examined the claim record and
evaluated the medical opinions of two physicians hired by
Reliance – Dr. Stuart Shipko and Dr. Herbert Dean. Reliance
found that Ms. Marcin’s own doctor released her to return to
work “as tolerated” on November 6, 2007, and that Ms.
Marcin did in fact work part time from November 2007 to
February 2008. It was Reliance’s position, “based on the
totality of information in the claim file, that Ms. Marcin was
capable of performing the material duties of her own
occupation at the time that she was released to return to work
on 11/6/07 following her nephrectomy.” J.A. 2004.
C.
Ms. Marcin filed suit in the District Court on October 26,
2010, challenging Reliance’s denial of disability benefits.
Marcin I, 895 F. Supp. 2d at 112. After conducting a detailed
analysis of the record, the District Court found that Reliance
“failed to adequately explain how the evidence in the record
supports its determination that [Ms. Marcin] is not entitled to
disability benefits.” Id. at 123. The District Court observed
that Ms. Marcin clearly suffered from severe medical
conditions, but thought she had done “little to meet her
burden under the policy to demonstrate that she was disabled”
during the relevant time period. Id. at 122. At the same time,
the District Court also noted that Reliance had “failed to point
to much evidence to support the finding” that Ms. Marcin was
not disabled at the relevant time. Id. Accordingly, the District

Page 9 of 24

USCA Case #16-7125

Document #1682108

Filed: 06/30/2017

10
Court stated that “whether the insurer’s determination was
reasonable on this record depends in large measure on what
that determination was and the stated reasons behind it.” Id. at
119. The District Court, however, was unable to decipher
Reliance’s rationale for denying disability benefits and
remanded the case. Id. at 123.
On January 7, 2013, Reliance responded to the remand by
again denying Ms. Marcin’s claim for disability benefits. As
an initial matter, Reliance clarified that eligibility for longterm disability benefits “depends on whether the definition of
Total Disability is met, which includes a determination
regarding Partial Disability.” J.A. 2013. In its prior denial,
Reliance found that Ms. Marcin did not meet the definition of
Total Disability and was capable of performing the material
duties of her occupation with Mitre. However, in accordance
with the District Court’s order, Reliance addressed whether,
based upon the medical evidence, Ms. Marcin was Totally
Disabled, taking into consideration Partial Disability, as
defined by the Policy. Unsurprisingly, Reliance concluded
that Ms. Marcin was not Partially Disabled because “the
medical evidence supports that she is capable of performing
all of the material duties of her occupation on a full-time
basis.” J.A. 2013; see J.A. 2015.
Ms. Marcin again appealed Reliance’s denial of her
disability claim on June 28, 2013. Along with this appeal, Ms.
Marcin “submitted voluminous materials to Reliance,”
including a copy of the Social Security Administration’s 2010
decision awarding Ms. Marcin disability benefits, and a new
report from a vocational specialist. Reliance, however,
refused to entertain another appeal, stating that its internal
guidelines only provide for one appeal and Ms. Marcin
exhausted this remedy.

Page 10 of 24

USCA Case #16-7125

Document #1682108

Filed: 06/30/2017

11
D.
Following Reliance’s second denial of her disability
claim, Ms. Marcin filed the complaint in this case on August
28, 2013. Reliance filed a motion for summary judgment on
July 29, 2014. The District Court remanded the case to
Reliance again, and Reliance issued its response to the second
remand on May 22, 2015. In its response, Reliance denied
Ms. Marcin’s disability claim a third time. In addition to
addressing the Social Security Administration’s disability
decision, Reliance also tackled the important question of
whether Ms. Marcin was Partially Disabled or Residually
Disabled before March 1, 2008. Reliance explained that
because “the evidence failed to show that [Ms. Marcin’s]
impairments prevented her from performing all the material
duties of her regular occupation on a full-time basis,” she
could not be Partially Disabled or Residually Disabled. J.A.
2183. Reliance expressly acknowledged that it “reviewed the
evidence indicating that Ms. Marcin worked on a part-time
basis between November 6, 2007 and March 1, 2008,
however, the medical evidence did not support her inability to
maintain a full-time schedule.” J.A. 2183. Therefore, Reliance
concluded that because Ms. Marcin could work full time, she
was not Partially Disabled.
Faced with Reliance’s final determination, the District
Court entered judgment in favor of Ms. Marcin on October
14, 2015. The District Court found that “although certain
aspects of Reliance’s Final Decision were reasonable, the
insurer’s ultimate conclusion that [Ms. Marcin] ‘was capable
of performing all of the material duties of her regular
occupation on a full time basis between November 6, 2007
and March 1, 2008’ is not supported by ‘substantial
evidence.’” Marcin II, 138 F. Supp. 3d at 22 (citation
omitted). Specifically, the District Court noted that “Reliance

Page 11 of 24

USCA Case #16-7125

Document #1682108

Filed: 06/30/2017

12
entirely failed to grapple with the fact that [Ms. Marcin] never
worked full time between November 2007 and February
2008, and that the hours she did work declined sharply in the
weeks before she stopped altogether.” Id. at 23. Therefore, the
District Court could not “conclude that Reliance’s
determination that [Ms. Marcin] was capable of working fulltime on March 1, 2008, was ‘reasonably supported by the
administrative record.’” Id.
In making this determination, however, the District Court
expressly limited the scope of its opinion. The District Court
explained that its holding was restricted to whether substantial
evidence existed in the record to support Reliance’s
conclusion that Ms. Marcin was capable of full-time work.
See id. at 30. Although the District Court acknowledged that
“the medical evidence might well support a decision based on
a finding that [Ms. Marcin] was not ‘totally disabled’ at the
relevant time,” it could not “see how the records provide any
support for the conclusion that [Ms. Marcin] ‘was capable of
perform[ing] all of the material duties of her regular
occupation on a full time basis’ when she stopped working.”
Id. at 28. However, the District Court expressly cautioned
“that it has not made a determination about whether [Ms.
Marcin] was or was not ‘totally disabled’ within the meaning
of the plan.” Id. at 30. “Rather, its holding is that the record in
this case does not reasonably support the plan administrator’s
decision that [Ms. Marcin] was capable of full-time work
when she stopped, and since that is the basis for the denial of
the benefits, the denial cannot stand.” Id.
Following this determination, the District Court
addressed the parties’ disagreement regarding the amount of
damages that should be awarded. The District Court
concluded that Ms. Marcin’s salary “was approximately
$90,000 per year, or about $43 per hour, and that the first 24

Page 12 of 24

USCA Case #16-7125

Document #1682108

Filed: 06/30/2017

13
months of benefits should be calculated on that basis.” J.A.
2284; see J.A. 2286-89. Based on the Policy benefit of 60% of
covered monthly earnings, the District Court found that Ms.
Marcin was entitled to disability benefits of $2,409.74 per
month for the 24-month period between February 16, 2008
and February 16, 2010, or $57,833.76, plus post-judgment
interest at the rate of 0.27 percent per annum from October
14, 2015. After a third remand, the District Court entered final
judgment for Ms. Marcin “in the amount of $2,409.74 per
month for the 103 months between February 16, 2008 and
September 19, 2016, for a total award of $248,203.22.” J.A.
2302.
Although Reliance concedes that Ms. Marcin is now
totally disabled under its Policy – and indeed, unable to work
in any occupation – the insurer maintains that Ms. Marcin was
ineligible for benefits under its Policy when she stopped
working in 2008. Reliance thus appeals four rulings from the
District Court: (1) September 19, 2016 Final Judgment for
Ms. Marcin in the amount of $248,203.22, along with prejudgment interest and attorney’s fees of $72,240; (2) August
4, 2016 Memorandum Opinion and Order awarding disability
benefits to Ms. Marcin at $2,409.74 per month; (3) October
14, 2015 Memorandum Opinion denying Reliance’s motion
for summary judgment and entering judgment in favor of Ms.
Marcin; and (4) April 14, 2015 Memorandum Opinion and
Order denying Reliance’s motion for summary judgment and
remanding the claim for further action. Appellant Br. i-ii. This
Court has jurisdiction to hear the appeal pursuant to 28 U.S.C.
§ 1291.
II.
Our review of this case is governed by the interplay of
two separate standards. First, we review de novo the District

Page 13 of 24

USCA Case #16-7125

Document #1682108

Filed: 06/30/2017

14
Court’s decision to grant summary judgment. Grimes v.
District of Columbia, 794 F.3d 83, 88-89 (D.C. Cir. 2015);
Arrington v. United States, 473 F.3d 329, 333 (D.C. Cir.
2006). Because this Court analyzes the District Court’s
judgment, not its reasoning, we may affirm on any ground
properly raised. EEOC v. Aramark Corp., 208 F.3d 266, 268
(D.C. Cir. 2000). Summary judgment is appropriate if there is
no genuine issue of material fact, and judgment can be
granted as a matter of law. FED. R. CIV. P. 56(a). In assessing
a summary judgment motion, the Court must view all facts
and evidence in the light most favorable to the nonmoving
party. Arrington, 473 F.3d at 333; Carter v. George Wash.
Univ., 387 F.3d 872, 878 (D.C. Cir. 2004). Summary
judgment will only be granted if no reasonable jury could find
for the nonmoving party. See Jones v. Bernanke, 557 F.3d
670, 674 (D.C. Cir. 2009); Carter, 387 F.3d at 878. To
survive a motion for summary judgment, the party with the
burden of proof at trial must offer evidence showing that there
is a triable issue of fact regarding an essential element of the
claim. Arrington, 473 F.3d at 335.
Second, although we review summary judgment
determinations using a de novo standard, we must decide the
appropriate framework through which to consider an ERISA
plan. While ERISA is a “comprehensive and reticulated
statute,” it does not set out the appropriate standard of review
for actions challenging benefit eligibility determinations.
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 108-09
(1989). The Supreme Court has held that a denial of benefits
challenged under § 1132(a)(1)(B) of ERISA is to be reviewed
under a de novo standard unless the benefit plan gives the
administrator discretionary authority to determine eligibility
for benefits or to construe the terms of the plan. Metro. Life
Ins. Co. v. Glenn, 554 U.S. 105, 111 (2008); Firestone, 489
U.S. at 115. Where the plan gives the administrator

Page 14 of 24

USCA Case #16-7125

Document #1682108

Filed: 06/30/2017

15
discretionary authority, then a deferential standard of review
applies. Firestone, 489 U.S. at 111. This deferential standard
is one of reasonableness. Pettaway v. Teachers Ins. & Annuity
Ass’n of Am., 644 F.3d 427, 435 (D.C. Cir. 2011).
In the present case, the ERISA policy provides that
Reliance “shall serve as the claims review fiduciary with
respect to the insurance policy and the Plan. The claims
review fiduciary has the discretionary authority to interpret
the Plan and the insurance policy and to determine eligibility
for benefits.” J.A. 2238 (emphasis added). Thus, the
deferential standard of review applies, and we must examine
Reliance’s decision to deny disability benefits for abuse of
discretion. See Firestone, 489 U.S. at 111. Accordingly,
Reliance’s denial of benefits will not be overturned if it was
the result of a deliberate and reasoned process and if it is
supported by “substantial evidence,” which is “more than a
scintilla but less than a preponderance.” Grand Canyon Air
Tour Coal. v. FAA, 154 F.3d 455, 475 (D.C. Cir. 1998)
(quoting Burns v. Dir., Office of Workers’ Comp. Programs,
41 F.3d 1555, 1562 n.10 (D.C. Cir. 1994)).
Importantly, however, there is an inherent conflict of
interest that arises when a plan administrator both evaluates
claims for benefits and pays those benefits. Glenn, 554 U.S. at
112. The Supreme Court has explained that this conflict of
interest is a “factor” to be considered and that “any one factor
will act as a tiebreaker when the other factors are closely
balanced.” Id. at 117. While the factors to be examined in any
ERISA case will vary based on the factual circumstances,
Glenn makes clear that the conflict of interest factor must be
evaluated alongside these other determinations. Thus, when
reviewing the lawfulness of Reliance’s decision to deny
disability benefits, we must remember the conflict of interest
factor and weigh it appropriately.

Page 15 of 24

USCA Case #16-7125

Document #1682108

Filed: 06/30/2017

16
III.
Faced with both de novo and discretionary review, our
inquiry in this case is as follows: did Reliance act
unreasonably when it denied Ms. Marcin disability benefits
on the basis that she was capable of full-time work and,
therefore, not Partially or Totally Disabled? To answer this
question, we must first consider a related issue: did Ms.
Marcin satisfy her burden of proof to show that she was
Partially or Totally Disabled during the relevant period? We
find that because Ms. Marcin proved Partial Disability,
Reliance acted unreasonably in denying her benefits.
1.
The record in this case favors a finding of Partial
Disability. As an initial matter, we note that, pursuant to the
terms of the Policy, Ms. Marcin’s disability had to arise
before March 1, 2008, when her coverage terminated under
the Plan. 2 We begin first with Ms. Marcin’s lengthy medical
records. There is no dispute that Ms. Marcin suffered from
numerous ailments, including kidney cancer, portal vein
thrombosis, Factor V Leiden, splenorenal shunt, and anemia.
See Marcin I, 895 F. Supp. 2d at 108. Rather, the
disagreement concerns whether these medical diagnoses were
debilitating. In its denial letters, Reliance repeatedly claimed
that Ms. Marcin was not Partially Disabled because she only
suffered mild fatigue and had not been instructed by her
doctors to stop working. In fact, Reliance emphasized that
2

Ms. Marcin’s last day of work was February 18, 2008. The Policy
states that coverage will terminate on the first of the month
following the date the insured ceases to meet the Eligibility
Requirements. Thus, because Ms. Marcin stopped meeting the
Eligibility Requirements in February 2008, her coverage under the
Policy terminated on March 1, 2008.

Page 16 of 24

USCA Case #16-7125

Document #1682108

Filed: 06/30/2017

17
Ms. Marcin was cleared to return to work by her own doctor
in November 2007. Reliance, however, misconstrues the
evidence.
A chronological examination of Ms. Marcin’s medical
records shows a progression of her illness to the point of
disability. Prior to returning to work, Ms. Marcin saw Dr.
Guido on October 26, 2007 for a follow-up visit. At that time,
Dr. Guido noted that Ms. Marcin “is doing fairly well.” J.A.
76. Ms. Marcin was released to return to work in November
2007 only “as tolerated,” clearly implying that her ability to
work was partially impaired. Following her return to work,
Ms. Marcin saw Dr. Felice on November 30, 2007. At this
visit, Dr. Felice explained that Ms. Marcin “feels reasonably
well” and “has no pain.” J.A. 89, 2063. Approximately one
month later on December 31, 2007, Dr. Felice noted that Ms.
Marcin “is reasonably well although [she] has some mild
fatigue,” and suggested that Ms. Marcin take iron to
counteract her anemia. J.A. 91, 2065. Accordingly, at the end
of 2007, Ms. Marcin’s illness began producing recognizable
symptoms.
The medical evidence in support of disability becomes
more prevalent in February and March of 2008. At a followup visit on February 29, 2008, Dr. Felice acknowledged that
although Ms. Marcin “is feeling better,” she “still has much
fatigue,” which “limits her ability to work.” J.A. 82. There is
a marked change in Dr. Felice’s description of Ms. Marcin’s
fatigue from “mild” in December 2007 to more severe in
February 2008. Reliance completely ignores this clear
alteration in terminology used by Dr. Felice.
Further, Dr. Felice’s characterization of Ms. Marcin’s
symptoms is supported by Dr. Abu-Elmagd. On March 20,
2008, Dr. Abu-Elmagd noted that Ms. Marcin is undergoing

Page 17 of 24

USCA Case #16-7125

Document #1682108

Filed: 06/30/2017

18
additional testing and “will need to remain off of work until
further notice.” J.A. 2205. Reliance discredits this report
because Dr. Abu-Elmagd instructed Ms. Marcin to cease
working only after she quit her job at Mitre. While a doctor’s
note explaining Ms. Marcin’s work limitations would have
been helpful before she ceased working, it was by no means a
prerequisite to the establishment of her disability. The fact
that such documentation comes a mere twenty days later does
not eliminate its probative value. Rather, Dr. Abu-Elmagd’s
recommendation that Ms. Marcin remain off of work is still
temporally related to Ms. Marcin’s decision to leave her
employment in late February/early March 2008 and provides
additional evidence that Ms. Marcin was Partially Disabled
before the end of February.
Moreover, Dr. Abu-Elmagd provided a more in-depth
assessment of Ms. Marcin’s capabilities five days later in the
APS. In that document, Dr. Abu-Elmagd characterized Ms.
Marcin’s fatigue as “extreme” and explained that she also
suffered from “frequent illness.” J.A. 2025. Thus, we see that
from November 2007 to March 2008, Ms. Marcin progressed
from having no fatigue to “mild” fatigue to “much” fatigue to
“extreme” fatigue. Again, Reliance ignores this progression.
Further, Dr. Abu-Elmagd explained that given Ms. Marcin’s
symptoms and diagnoses, she was, at most, capable of
sedentary work. Specifically Dr. Abu-Elmagd stated that
during an eight-hour day, Ms. Marcin could only stand, walk,
and drive for one to three hours, and could sit for three to five
hours. Additionally, Ms. Marcin could only lift ten pounds
and it was “unknown” whether she would make a full
recovery.
Reliance discredited Dr. Abu-Elmagd’s findings by
relying on the reports of two independent medical physicians
– Dr. Dean and Dr. Shipko. After reviewing Ms. Marcin’s

Page 18 of 24

USCA Case #16-7125

Document #1682108

Filed: 06/30/2017

19
medical file, Dr. Dean, a hematologist and oncologist, opined
that Ms. Marcin’s likelihood of cure from kidney cancer is
greater than 90%, and that she should have no medically
related problems from this procedure. This statement,
however, does not address Ms. Marcin’s likelihood of cure
from her other ailments. Dr. Dean also generally agreed with
Dr. Abu-Elmagd’s findings in the APS with the exception of
Ms. Marcin’s lifting and sitting capabilities. Dr. Dean found
that Ms. Marcin should be able to sit for up to six hours, walk
and stand for up to three hours, and drive for up to three
hours. Additionally, Ms. Marcin should be able to lift up to
twenty pounds occasionally and ten pounds frequently. Dr.
Dean based part of his assessment on the fact that Ms. Marcin
travels frequently to the University of Pittsburgh Medical
Center, which is over 200 miles from her home, for follow-up
visits. Accordingly, Dr. Dean stated that Ms. Marcin is
capable of work that falls in the “light” category, which her
job at Mitre satisfies. Further, both Dr. Dean and Dr. Shipko
noted that Ms. Marcin did not have any cognitive disabilities
that would impair her functioning.
Our precedent is clear that “plan administrators are not
obliged to accord special deference to the opinions of treating
physicians.” Black & Decker Disability Plan v. Nord, 538
U.S. 822, 825 (2003). While the plan administrator must
provide a “full and fair” assessment of the claims and clearly
communicate to the insured the “‘specific reasons’ for benefit
denials,” these requirements “do not command plan
administrators to credit the opinions of treating physicians
over other evidence relevant to the claimant’s medical
condition.” Id. Similarly, there is no heightened burden of
explanation placed on the plan administrator if it decides to
reject a treating physician’s opinion. Id. at 831. We have
specifically held that, when “[f]aced with contradicting
[medical] opinions and no requirement to prefer one opinion

Page 19 of 24

USCA Case #16-7125

Document #1682108

Filed: 06/30/2017

20
over another, we cannot conclude that [the plan administrator]
acted unreasonably when it valued the opinion of its own
personnel over that of [the insured’s] surgeon.” Pettaway, 644
F.3d at 435.
That said, it must be clear that the independent medical
reviewer rendered a decision that is “reliable.” Black, 538
U.S. at 834 (“[N]or may courts impose on plan administrators
a discrete burden of explanation when they credit reliable
evidence that conflicts with a treating physician’s evaluation.”
(emphasis added)). We think a “reliable” opinion is one that
includes an examination of all pertinent evidence. Here,
however, we cannot conclude that Dr. Dean grappled with the
evidence concerning Ms. Marcin’s partial disability. Dr. Dean
never contends with the fact that Ms. Marcin only returned to
work part time, and says nothing about the progression of her
fatigue. Rather, Dr. Dean only remarks that Ms. Marcin “does
complain of fatigue, which can be [multifactorial], and is
reported to be present in patients with portal hypertension as
well as seen with depression.” J.A. 2146. While Dr. Dean
offers a brief recitation of Ms. Marcin’s medical visits from
October 2007 through January 2009, he in no way explains
how his conclusions are rationally related to the medical
evidence. Rather, Dr. Dean relies on the fact that Ms. Marcin
has a 90% chance of cure from renal cancer, and seemingly
ignores the symptoms associated with her other diagnosed
conditions as well as her cancer. See Marcin II, 138 F. Supp.
3d at 28-29. Further, the availability of a cure has little
bearing on whether Ms. Marcin is capable of working full
time in her present condition. Id. at 29. It is difficult to credit
a decision as “reliable” when the reviewer fails to link his
conclusions to the patient’s medical history. See id. at 28
(explaining that while Reliance was not obligated to accord
special deference to Ms. Marcin’s physicians, its “selective

Page 20 of 24

USCA Case #16-7125

Document #1682108

Filed: 06/30/2017

21
description of the medical evidence further undermines the
reasonableness of its decision”).
While we make no ultimate determination as to the
reasonableness of Reliance’s decision to credit Dr. Dean’s
medical opinion, we note that Dr. Dean’s report is by no
means compelling. Dr. Dean never addressed the fact that Ms.
Marcin did not return to work full time, nor does he ever
dispute Dr. Abu-Elmagd’s finding in the APS that Ms. Marcin
suffered from severe fatigue and frequent illness. Nothing in
Dr. Dean’s opinion substantially undermines Dr. AbuElmagd’s APS. At best, Dr. Dean’s report is an incomplete
assessment of Ms. Marcin’s abilities.
Finally, the FCEs contained in the record support a
finding of Partial Disability. Ms. Marcin’s first FCE occurred
on October 24, 2008, several months after she left her
employment at Mitre. In this FCE, Carlos Martinez, a
physical therapist, noted that Ms. Marcin has a “below part
time workplace tolerance” and “is unable to return to work in
her previous position or any other position.” J.A. 559. Several
years later, on May 7, 2013, Dr. Costa echoed these findings,
noting that Ms. Marcin could not complete an eight-hour
work day on a sustained basis. As part of this evaluation, Dr.
Costa stated that he agreed with Mr. Martinez’s findings in
the October 24, 2008 FCE. Further, because Dr. Costa was
one of Ms. Marcin’s treating physicians at the time her
disability occurred, he was asked on the FCE if Ms. Marcin
suffered from the same restrictions as indicated in the October
24, 2008 FCE from August 2007 through October 2008. Dr.
Costa responded in the affirmative. This shows that Ms.
Marcin’s inability to work full time existed during her
eligibility period from November 2007 to March 2008. While
we are hesitant to place too much weight on the FCEs because
they were conducted several months or years outside the

Page 21 of 24

USCA Case #16-7125

Document #1682108

Filed: 06/30/2017

22
disability period, we nonetheless acknowledge their findings
as an important data point.
When viewed in totality, the medical record shows that
Ms. Marcin could not sustain a full-time work schedule.
Reliance’s conclusions to the contrary based on this evidence
are therefore unreasonable.
2.
In addition to the medical record, Ms. Marcin’s work
history supports a finding of Partial Disability. The parties do
not dispute that Ms. Marcin never returned to work full time
following her surgery in August 2007. To the contrary, the
record is quite clear that Ms. Marcin experienced a significant
decline in hours worked during January, February, and March
2008. From November 12, 2007 through February 24, 2008,
there were only five weeks in which Ms. Marcin did not miss
a single day of work due to illness. Of these five weeks, two
occurred between Christmas and New Year, when Ms. Marcin
was only scheduled to work two hours each week. In contrast,
there were five weeks where Ms. Marcin missed between
20% and 40% of her scheduled work hours due to illness, and
four weeks where Ms. Marcin’s disability caused her to miss
greater than 50% of her scheduled work hours. Further,
during late January and February 2008, when Ms. Marcin
missed between 40% and 100% of her scheduled work hours,
the medical records confirm that she was suffering from a
severe sinus infection. Frequent infections are a side effect of
leukopenia, which is one of Ms. Marcin’s numerous
diagnoses. Dr. Abu-Elmagd even noted frequent infections as
one of Ms. Marcin’s symptoms in the APS. Thus, there is a
direct link in the record between Ms. Marcin’s sick days and
her disability. Given this data, it is evident that Ms. Marcin

Page 22 of 24

USCA Case #16-7125

Document #1682108

Filed: 06/30/2017

23
suffered a disability that limited her capacity to work full
time.
Reliance, however, fails to adequately address this data in
its numerous denial letters. Instead, while acknowledging that
Ms. Marcin never returned to work full time, Reliance
nonetheless argues that she is capable of full-time work.
Reliance relies heavily on the fact that Ms. Marcin did not
have a doctor’s recommendation to leave her employment,
and instead was released back to work in November 2007 “as
tolerated.” Through her work history, Ms. Marcin has proven
that working part-time is the best she can “tolerate” given her
disability. It is contradictory for Reliance to fault Ms. Marcin
for not providing a medical recommendation to cease working
when she was only ever released to work “as tolerated.” There
would have been no reason for the doctors to inform Ms.
Marcin to work only “as tolerated” if they believed that she
was capable of working full time and that her medical
condition would not affect her ability to work. Thus, provided
Ms. Marcin’s work history and the “as tolerated” language in
her release, Reliance’s conclusion that Ms. Marcin could
work full time was unreasonable.
***
Given the above evidence and considerations, we find
that Reliance acted unreasonably in denying Ms. Marcin
disability benefits. The conflict of interest factor in the
standard of review, combined with Ms. Marcin’s medical
record, lack of full-time work, and release to return to work
only “as tolerated” convince us that Ms. Marcin established
Partial Disability as required by the Policy. Reliance has not
satisfactorily supported its conclusion that Ms. Marcin was
ever capable of full-time work after November 2007.
Therefore, Ms. Marcin was Totally Disabled under the terms

Page 23 of 24

USCA Case #16-7125

Document #1682108

Filed: 06/30/2017

24
of the Policy and entitled to disability benefits. The judgment
of the District Court on this issue is affirmed. Further, because
we find that Ms. Marcin’s salary at the time of disability was
$90,000, we affirm the District Court’s calculation of benefits
owed.
So ordered.

Page 24 of 24