Richardson v. Metropolitan Life Insurance Company

Filing 24

ORDER AND REASONS - the Court REMANDS to the administrator for further proceedings consistent with this opinion. Plaintiff's request for attorney's fees is DENIED.. Signed by Chief Judge Sarah S. Vance on 3/14/14.(jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KEITH L. RICHARDSON

CIVIL ACTION

VERSUS

NO: 12-2802

METROPOLITAN LIFE INSURANCE COMPANY

SECTION: R

ORDER AND REASONS
Plaintiff Keith Richardson and defendant Metropolitan Life
Insurance Company ("MetLife") have submitted this case for
decision on the administrative record.

After reviewing the

record, the parties' briefing, and the relevant law, the Court
determines that remand to the administrator is necessary.
MetLife denied plaintiff's claim on appeal for a different reason
than the one articulated in the initial claim denial.

Failure to

provide a second level of administrative appeal under these
circumstances amounts to a denial of "full and fair review" under
29 U.S.C. § 1133.

The Court remands the case so that plaintiff

may administratively appeal MetLife's final denial of his claim.
The Court also determines that Richardson is not entitled to an
award of attorney's fees at this time.

I.

BACKGROUND
Plaintiff Keith Richardson was employed as a plant equipment

technician for 35 years with Total Petrochemicals & Refining USA,
Inc.

As part of his benefits package, he was enrolled in an

employee welfare benefit plan that included health, life, and
disability coverage.1

In addition to the $50,000 basic life

insurance coverage available through defendant MetLife, plaintiff
selected $148,000 in optional supplemental life insurance
coverage under the MetLife policy, for which he paid an
additional premium.

The policy provides for a "Continuation of

Life Insurance Protection" benefit that maintains life insurance
coverage under the policy and waives premiums while an insured is
disabled.

To qualify, an applicant must be "totally disabled" as

defined by the plan:
Total Disability or Totally Disabled means that due to an
injury or sickness:
•
You are unable to perform the material duties of Your
regular job; and
•
You are unable to perform any other job for which You
are fit by education, training or experience.2
An insured is eligible for the life premium waiver only if
his or her total disability continues without interruption for
six consecutive months after the insured becomes totally
disabled.

This is known as the continuation waiting period.3

Within three months of the expiration of the continuation waiting
period, the insured must submit proof of disability at the time
his or her continuation-eligible life insurance coverage ended

1

R. Doc. 18-2.

2

Id. at 48.

3

Id.
2

(which is the date on which the insured became totally disabled),
as well as proof that the disability continued without
interruption through the expiration of the six-month waiting
period.4

The plan does not specify what type of medical evidence

is required as proof of disability.

The plan reserves to the

claims administrator the right to choose a physician to examine
the applicant to determine if he or she is eligible for the life
premium waiver.5
Finally, the plan gives discretionary authority to plan
fiduciaries:
[T]he Plan administrator and other Plan fiduciaries shall
have discretionary authority to interpret the terms of the
Plan and to determine eligibility for and entitlement to
Plan benefits in accordance with the terms of the Plan. Any
interpretation or determination made pursuant to such
discretionary authority shall be given full force and
effect, unless it can be shown that the interpretation or
determination was arbitrary and capricious.6
In July 2011, plaintiff filed a claim with MetLife for a
life premium waiver.

He submitted a Group Life Insurance

Statement of Review indicating that his "Date Last Worked" was
December 2010 and that the cause of his disability was a back
injury.7

Plaintiff also provided the names and contact

4

Id. at 84-86.

5

Id. at 86.

6

Id. at 60.

7

R. Doc. 18-4 at 7.
3

information of two treating physicians.8

Plaintiff's

orthopedist, Dr. Jack Loupe, completed a MetLife Attending
Physician Statement ("APS").

The APS was dated July 5, 2011 and

was submitted along with plaintiff's initial claim.9

It reveals

that Dr. Loupe had advised plaintiff to cease working on November
15, 2010 due to lower back pain referred into the right lower
extremity and disc bulges at L5-S1, L4-5 and L3-4.

Dr. Loupe

listed plaintiff's limitations as follows:
•

Sit six hours intermittently

•

Stand three hours intermittently

•

Walk 2-3 hours intermittently

•

No climbing, twisting, bending, stooping, reaching
above shoulder level, or operating a motor vehicle

•

Lift up to ten pounds occasionally (1-35%)

•

Lift over ten pounds never.10

The form also contained a question that read "Patient can
work ___ hours per day?"

Dr. Loupe filled in the blank with "8"

but wrote next to the question, "after recovery, not now."11
also checked two boxes indicating that plaintiff was totally
disabled "for his/her regular occupation" and "for any

8

Id.

9

R. Doc. 18-5 at 75-76.

10

Id.

11

Id. at 76.
4

He

occupation."12

He further indicated that it was "undetermined"

when plaintiff could return to work.13
On July 19, 2011, MetLife denied Mr. Richardson's claim.14
After reciting the definition of "total disability," the letter
stated:
After a thorough review of your file, we have determined
that you have been released to return to work for 8 hours as
of July 5, 2011. Accordingly, your claim does not satisfy
the Plan definition of disability. Therefore, we must deny
your claim.15
The letter revealed no other deficiencies in plaintiff's claim.
Plaintiff appealed the decision on July 28, 2011, explaining
that MetLife had misread the APS when it concluded that plaintiff
had been cleared to work.16

The appeal letter emphasized that in

the APS, Dr. Loupe had indicated (1) that plaintiff was totally
disabled for any occupation; (2) that it was undetermined when
plaintiff would be able to resume work; and (3) that if plaintiff
does improve, he would be permanently restricted to light to
moderate work.17

Plaintiff also attached a copy of Dr. Loupe's

12

Id.

13

Id.

14

Id. at 69-70.

15

Id.

16

Id. at 71.

17

Id.
5

treatment notes from an April 12, 2011 office visit.18

The

office visit note ("OVN") described his symptoms and included the
following recommendations:
The patient should continue to take very good care of his
back which he has been doing. He is not able to return
to work. He cannot stand for more than 30 minutes at a
time. He cannot do any bending and lifting type of
activities at all. He is showing some signs of
improvement but his disability is going to be ongoing for
an undetermined period of time. I can see him on an as
needed basis since I do not have any other treatment to
recommend.19
On August 17, 2011, MetLife wrote to plaintiff requesting
(1) a completed Personal Profile Evaluation ("PPE"), which was
enclosed with the letter, (2) an updated APS from plaintiff's
current treating provider(s), and (3) any other test results, lab
findings, or x rays that would support his claim.20

The letter

did not indicate that MetLife was considering upholding the
denial of his claim on a different basis.

Plaintiff completed

the PPE and provided a second APS as requested, but it was
virtually identical to the first, as Dr. Loupe merely underlined
some of his comments from the first APS.21

Plaintiff also

provided his results from an MRI performed on November 30, 2010,

18

Id. at 77-78.

19

Id.

20

R. Doc. 18-4 at 11.

21

Id. at 35-39, 20-22.
6

which was shortly before he stopped working.22
On September 19, 2011, plaintiff contacted MetLife and
informed an employee that he had been approved for Social
Security Disability Insurance ("SSDI").23

Plaintiff asked if he

should provide MetLife with a copy of the determination, and the
employee indicated that "we would not need that."24
MetLife sent plaintiff's claim file to nurse consultant
Diane Englert for review.

Englert's evaluation, which was made

available only to MetLife, acknowledged that the initial denial
of plaintiff's claim was in error.

She indicated that Dr. Loupe

had not actually cleared plaintiff to work eight hours per day.25
After reviewing plaintiff's APS, PPE, OVN and MRI results,
however, Englert drafted a "denial summary" in which she
concluded that there was a second, unrelated basis for denying
plaintiff's claim:
Your appeal letter of July 28, 2011 states Dr Loupe writing
8 hours of work ability on the Attending Physician
Statement was only after you had recovered, which is indeed
correct. However, there is still a lack of objective
clinical evidence of a severity of functional limitations
related to your back that would prevent you from all work
activities. Dr Loupe also recorded on the Attending
Physician Statements of July 28 and August 26, 2011 that
you would have permanent restrictions to doing light to

22

Id. at 23.

23

R. Doc. 18-3 at 9-10.

24

Id.

25

R. Doc. 18-5 at 79.
7

moderate work activities, which does not preclude all work.
In addition there is no information related to your
recovery, as there is only one office note from April 12,
2011. On that day your exam showed you had no limitations
in range of motion in your back, no abnormal neurological
findings except one that had been present for 20 years, and
the only abnormality was a 40% weakness in your right foot.
There was no evidence that meets the criteria to support a
severity of functional impairment precluding all work as
would be evidenced by measured deficits in your ability to
sit, stand and walk, physical examination findings for the
presence of severely limited range of motion to your spine,
significant and persistent muscle weakness and/or muscle
atrophy to your extremities, sensory deficits, and/or
abnormal gait pattern, or the need for use of an assistive
device for ambulation. There is also no information on
your recovery or response to treatment over time, or that
you were pursuing active treatment towards a recovery, such
as physical therapy, further spinal injections, or possible
surgery. The lumbar MRI done on November 29, 2010 showed
degenerative changes and some bulging discs, but as this
was done when you were still working, it is unclear what
occurred to cause you to go out of work as of January 3,
2011.
We acknowledge that you may be unable to return to work to
your prior occupation which may entail more strenuous
physical duties, however taking into consideration the
definition of disability that requires that you be unable
to perform any occupation, as well as the limited medical
information submitted, we have determined that you do not
meet the definition of disability as defined by the plan.
Therefore, after reviewing everything in your file, we
uphold our original decision that the information is does
[sic] not adequately support a severity of functional
impairment that would preclude your ability to return to
work as defined by the plan.26
On September 28, 2011, MetLife sent Dr. Loupe a copy of
Nurse Englert's evaluation along with a request for his comments,
"specifically addressing but not limited to, [plaintiff's]

26

Id. at 80-81.
8

impairments, restrictions, and/or limitations."27

It instructed

Dr. Loupe to provide clinical evidence in support of his
conclusions if he disagreed with the evaluation and set a
deadline of October, 12, 2011 for any response.28
MetLife notified plaintiff that it had sent its review to
Dr. Loupe "so that he may review and comment," but it did not
specify the position MetLife proposed to take on the claim.

It

stated:
Please be advised that if Dr. Loupe does not respond to our
request by October 12, 2011, we will make our determination
with the medical information we have on file. Please contact
your physician to ensure they received our report and are
aware of the above due date.29
When plaintiff asked Dr. Loupe to forward the report to him, Dr.
Loupe contacted MetLife to determine whether he had permission to
do so.

MetLife granted this request, and plaintiff received a

copy of the letter from Dr. Loupe at some point in the last six
days before Dr. Loupe's deadline to comment.30

Dr. Loupe did not

provide MetLife with a response to the letter.
MetLife informed plaintiff of its final decision by letter

27

R. Doc. 18-4 at 48-50.

28

Id.

29

Id. (emphasis in original).

30

R. Doc. 18-3 at 6.
9

on October 14, 2011.31

The letter was substantially identical to

the draft sent to Dr. Loupe for comment, and it was the first
instance in which MetLife acknowledged to the plaintiff that the
initial denial was made in error based on a misreading of the
APS.

Nonetheless, MetLife upheld the denial on the new ground

articulated by Nurse Englert in the denial summary: that there
was "still a lack of objective clinical evidence of a severity of
functional limitations related to [plaintiff's] back that would
prevent [him] from all work activities."32

The letter also

informed plaintiff that he had exhausted his administrative
remedies under the plan and that no further appeals would be
considered.33
On April 17, 2012 and May 7, 2012, plaintiff filed
complaints with the Louisiana Department of Insurance and the
Texas Department of Insurance.34

The complaints contained a

detailed "Injury Sequence of Events" and an "Application for
Premium Life Waiver/Denial - Chronology of Events."35

They

describe plaintiff's symptoms in greater detail than the
information provided to MetLife.

The complaint included copies

31

R. Doc. 18-4 at 53-55.

32

Id. at 54.

33

Id. at 55.

34

Id. at 56-73; R. Doc. 18-5 at 1-81.

35

Id. at 40-41, 60-62; R. Doc. 18-4 at 56-62, 70-73.
10

of the letters in which plaintiff was approved for both shortand long-term disability by UNUM, his employer-provided
disability insurance carrier.36

Plaintiff indicated in his

complaint letters that he also was including copies of approval
letters for SSDI and for disability insurance through his credit
union's disability insurer, CUNA, but those letters were not made
part of the record before the Court,37 and MetLife asserts that
it never saw them.

Finally, plaintiff submitted additional OVNs

from November 15, 2010, January 13, 2010, and March 15, 2011 that
he had not provided previously to MetLife and that go into
greater detail regarding plaintiff's symptoms.38
MetLife had a second nurse consultant conduct a "courtesy
review" of the information it already had on file, as well as of
the newly submitted OVNs, all of which predated the April 2011
OVN submitted with his original claim.39

The nurse concurred

with the decision MetLife had made on appeal.

She acknowledged

that plaintiff
appears to have had an exacerbation of back pain that
radiates to the [right lower extremity] at the onset of
disability. However the additional information still does
not clarify [plaintiff's] current functional ability and

36

R. Doc. 18-5 at 5-9.

37

R. Doc. 18-4 at 71.

38

R. Doc. 18-5 at 43-47.

39

R. Doc. 18-3 at 3-4.
11

ongoing response to treatment since April 12, 2011.40
MetLife communicated its decision to the Departments of
Insurance by letter and took no further action relating to
plaintiff's complaint.41

Plaintiff filed this suit pursuant to

Section 502(a) of ERISA, 29 U.S.C. § 1132(a), on October 17,
2012.42

He requests that judgment be entered in his favor: (1)

awarding and/or reinstating basic and optional employee life
continued protection coverage and premium waiver benefits; (2)
declaring that he has a right to future basic and optional
employee life and continued protection coverage and premium
waiver benefits; (3) reimbursing him for all amounts paid towards
his policy premiums that should have been waived; and (4)
awarding all attorney's fees, costs, and prejudgment and postjudgment interest until paid.43

MetLife removed to federal court

40

Id.

41

R. Doc. 18-4 at 63-64; R. Doc. 18-5 at 63-64.

42

R. Doc. 1-1.

43

R. Doc. 19 at 14. In his complaint, plaintiff also
requested "actual damages, all special and general damages
contemplated by law, [and] penalties," without specifying what
these damages would be. R. Doc. 1-1 at 8. He also mentions his
alleged entitlement to accidental death and dismemberment
coverage in the complaint. Id. at 7. Plaintiff abandons these
additional claims in his trial brief and did not respond to
MetLife's argument that he is not entitled to them. Accordingly,
they will not be considered.
12

on November 20, 2012.44

The parties submitted the case on the

administrative record on August 16, 2013.45

II.

LEGAL STANDARD
ERISA does not expressly delineate a standard of review for

actions challenging benefits determinations. Rather, the
appropriate standard has been set forth in case law from the
Supreme Court and the Fifth Circuit and depends upon whether the
district court is asked to review an issue of plan interpretation
or a factual determination by the plan administrator. In
Firestone Tire & Rubber Co. v. Bruch, the Supreme Court held that
an administrator's denial of benefits is reviewed de novo, unless
the benefit plan gives the administrator "discretionary authority
to determine eligibility for benefits or to construe the terms of
the plan." 489 U.S. 101, 115 (1989). If the plan grants such
discretion, a court will reverse an administrator's decision only
for abuse of that discretion. See id.
Regardless of the discretion granted an administrator, the
Fifth Circuit has held that all factual determinations under
ERISA plans are to be reviewed under an abuse of discretion
standard.

See Meditrust Fin. Servs. Corp. v. The Sterling

Chemicals, Inc., 168 F.3d 211, 215 (5th Cir. 1999) (citing Pierre

44

R. Doc. 1.

45

R. Doc. 18; R. Doc. 19; R. Doc. 21; R. Doc. 23.
13

v. Connecticut Gen. Life Ins. Co., 932 F.2d 1552, 1562 (5th Cir.
1991)). See also Chabert v. Provident Life & Accident Co., CIV.A.
94-1185, 1994 WL 374213, at *4–5 (E.D. La. July 11, 1994)
(reviewing factual determinations for abuse of discretion even
when plan did not confer discretion on administrator).

Here, the

plan expressly grants MetLife "discretionary authority to
interpret the terms of the Plan and to determine eligibility for
and entitlement to Plan benefits in accordance with the terms of
the Plan."

Accordingly, the abuse of discretion standard

applies.
Under the abuse of discretion standard, the Court considers
whether the plan administrator's actions were arbitrary and
capricious.

See Meditrust, 168 F.3d at 215; Sweatman v.

Commercial Union Ins. Co., 39 F.3d 594, 601 (5th Cir. 1994)
(quoting Salley v. E.I. DuPont de Nemours & Co., 966 F.2d 1011,
1014 (5th Cir. 1992)).

The Court must determine if substantial

evidence exists in the record to support the decision.
Meditrust, 168 F.3d at 215.

See

Substantial evidence "is more than a

mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion."

Girling

Health Care, Inc. v. Shalala, 85 F.3d 211, 215 (5th Cir. 1996)
(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)); accord
Rhodes v. Panhandle E. Corp., CIV.A. 93-0429, 1993 WL 346188, at
*8 (E.D. La. Aug. 31, 1993) (substantial evidence requires more
14

than a scintilla but less than a preponderance) (internal
quotations omitted) (quoting Sandoval v. Aetna Life and Cas. Ins.
Co., 967 F.2d 377, 381 (10th Cir. 1992)).

"[T]he law requires

only that substantial evidence support a plan fiduciary's
decisions, including those to deny or terminate benefits," and it
is irrelevant whether "substantial evidence (or for that matter,
even a preponderance) exists to support the employee's claim of
disability."

Ellis v. Liberty Life Assurance Co., 394 F.3d 262,

273 (5th Cir. 2005).

The court charged with reviewing the denial

of benefits under an ERISA plan may not substitute its judgment
for that of the plan administrator.

See Rigby v. Bayer Corp.,

933 F.Supp. 628, 633 (E.D. Tex. 1996) (citing Denton v. First
Nat'l Bank of Waco, 765 F.2d 1295 (5th Cir. 1985)).

See also

Pierre, 932 F.2d at 1559 (“The Courts simply cannot supplant plan
administrators, through de novo review, as resolvers of mundane
and routine fact disputes.”) (citation omitted); Kolodzaike v.
Occidental Chem. Corp., 88 F.Supp.2d 745, 749 (S.D. Tex. 2000)
(“Just because this court may have conducted the investigation
differently . . . does not mean that the Administrator abused her
discretion.”).
Nonetheless, when an entity acts as both the insurer and the
claims administrator, a conflict of interest arises, and a
reviewing court must consider that conflict as a factor in
determining whether the plan administrator has abused its

15

discretion in denying benefits.

Metropolitan Life Ins. Co. v.

Glenn, 554 U.S. 105, 108 (2008).

The significance of this factor

will depend on the circumstances of the particular case.

Id.

A

reviewing court may give more weight to the conflict of interest
"where the circumstances surrounding the plan administrator's
decision suggest 'procedural unreasonableness.'"

Schexnayder v.

Hartford Life and Acc. Ins. Co., 600 F.3d 465, 469 (5th Cir.
2010) (quoting Glenn, 554 U.S. at 118).

This conflict also

carries greater importance when the administrator "has a history
of biased claims administration."

Holland v. Int'l Paper Co.

Retirement Plan, 576 F.3d 240 (5th Cir. 2009) (quoting Glenn, 554
U.S. at 118).

III. DISCUSSION
A.

Admissibility of Late-Submitted Evidence

A threshold question in this case is whether the Court will
consider the evidence plaintiff submitted to the Departments of
Insurance that was not made available to MetLife on direct
review.

The evidence consists of the three OVNs predating the

April 2011 OVN, the CUNA disability insurance approval letters,
and plaintiff's self-reported timeline of events.

The Court's

review of whether an administrator abused its discretion in
making factual determinations is limited to the record evidence
before the plan administrator.

See Vega v. Nat'l Life Ins.
16

Serv., Inc., 188 F.3d 287, 299 (5th Cir. 1999) (en banc)
(collecting cases), abrogated in part on other grounds by Glenn,
554 U.S. 105).

In Vega, the Fifth Circuit sitting en banc held

that "the administrative record consists of relevant information
made available to the administrator prior to the complainant's
filing of a lawsuit and in a manner that gives the administrator
a fair opportunity to consider it."

Id. at 300.

If a claimant

submits additional information to the administrator and requests
that the administrator reconsider his or her decision, "that
additional information should be treated as part of the
administrative record."

Id.

Recently, the Fifth Circuit has retreated somewhat from this
position.

In Anderson v. Cytec Indus., Inc., 619 F.3d 505 (5th

Cir. 2010), the Court considered whether to admit information
that the plaintiff had mailed to the administrator after his
appeal became final.

It observed that

[s]ubsequent panels of this court and several district
courts within the circuit have wrestled with this language
from Vega, which could be read to allow claimants to add
material to the administrative record long after exhausting
their final administrative appeal, even without a showing
that the evidence was unavailable to them while their
administrative appeal was pending or that they made a goodfaith effort to discover or submit the information during
the administrative process. . . . Indeed, Vega could be read
to require ERISA administrators to keep the administrative
record open, and to continually consider new information
submitted by claimants who have already exhausted the
administrative appeals process, almost indefinitely. Such a
policy would be a marked change from this court's pre-Vega
rule, under which the administrative record "consisted of
those documents before the administrator at the time the
17

claims decision was made." It would also make this
circuit's administrative record law more expansive than that
of the rest of the circuits. Cf. Majeski v. Metro. Life
Ins. Co., 590 F.3d 478, 483 (7th Cir. 2009) (describing Vega
as "an outlier whose reasoning does not stand on firm
ground"); Liston v. Unum Corp. Officer Severance Plan, 330
F.3d 19, 23 (1st Cir. 2003) (noting that "virtually all of
the circuits" share the view "that the record on review is
limited to the record before the administrator," "with the
possible exception of the Fifth Circuit") (citing, inter
alia, Wildbur v. ARCO Chem. Co., 974 F.2d 631, 636-42 (5th
Cir. 1992)).
Id. at 516 & n. 9 (internal citations omitted).

Ultimately, the

Court did not decide the question, because the late-submitted
evidence was cumulative and irrelevant to the Court's decision.
Id. at 516.

The precise requirements of Vega remain uncertain.

Cf. Corry v. Liberty Life Assur. Co. of Boston, 499 F.3d 389 (5th
Cir. 2007) (citing Vega and holding that affidavits submitted
after a final administrative appeal but more than one year before
the claimant filed her federal suit were properly considered part
of the record), with Keele v. JP Morgan Chase Long Term
Disability Plan, 221 F.App'x 316 (5th Cir. 2007) (noting Vega's
departure from precedent and raising without deciding some of the
questions left unanswered by the decision).
MetLife urges the Court to disregard the additional
information submitted to the Departments of Insurance.

It argues

that, as a matter of law, the information sent by Plaintiff
to the Departments of Insurance six months after the claim
denial was upheld - which was also six months after
Plaintiff had exhausted his administrative remedies under
the Plan - should not be considered by this court in
determining whether MetLife abused its discretion because it
18

was not considered by the claims administrator in making its
determination.
MetLife also points out that plaintiff never submitted this
additional evidence to the administrator; rather, the evidence
"was sent directly by the Departments [of Insurance] to MetLife
for comment."

MetLife conducted the "courtesy review" in order

to respond to those requests for comment, not to give plaintiff a
second appeal.
Plaintiff does not articulate why the Court should consider
this additional evidence; rather, he simply refers to the
evidence as though it were already in the record when his
administrative appeal became final.

Because MetLife contends

that the evidence "was not considered by the claims administrator
in making its determination," and more importantly, because the
information contained in those documents is irrelevant to the
Court's decision, the Court does not consider them.

B.

Failure to Comply with ERISA Notice Requirements

MetLife initially denied plaintiff's claim on the sole
ground that Dr. Loupe had cleared him to work eight hours per
day.

Plaintiff appealed this basis for the denial, and after

considering his appeal, MetLife upheld the denial on a different
basis: a lack of objective evidence of functional impairment.
Because MetLife changed its reasoning for denying the claim, it
was required to provide plaintiff with a second opportunity to
19

administratively appeal the denial.

MetLife failed to do so, and

the Court remands the case to provide plaintiff with this
opportunity.
Upon denying a claim for benefits, Section 503(1) of ERISA
requires a plan administrator to provide the claimant with
“adequate notice in writing ... setting forth the specific
reasons for such denial, written in a manner calculated to be
understood by the participant.”

29 U.S.C. § 1133(1).

The

claimant must be afforded "a reasonable opportunity . . . for a
full and fair review by the appropriate named fiduciary of the
decision denying the claim."

Id. § 1133(2).

ERISA regulations

further require that the administrator provide to the claimant a
"description of any additional material or information necessary
for the claimant to perfect the claim and an explanation of why
such material or information is necessary . . . ." 29 C.F.R. §
2560.503–1(g)(1)(iii).
The procedures actually provided by an administrator in a
particular case are evaluated under the substantial compliance
standard.

See Robinson v. Aetna Life Ins. Co., 443 F.3d 389,

392-93 (5th Cir. 2006) (citing Lacy v. Fulbright & Jaworski, 405
F.3d 254, 257 (5th Cir.2005)).

"This means that [t]echnical

noncompliance with ERISA procedures will be excused so long as
the purposes of section 1133 have been fulfilled."

Robinson, 443

F.3d at 393 (internal quotation marks omitted) (quoting White v.

20

Aetna Life Ins. Co., 210 F.3d 412, 414 (D.C. Cir. 2000)).
ERISA regulations state, however, that absent compliance with the
appeals procedures set forth in § 2560.503–1(h), "[t]he claims
procedures of a plan providing disability benefits will not, . .
. be deemed to provide a claimant with a reasonable opportunity
for a full and fair review of a claim and adverse benefit
determination . . . ."

29 C.F.R. § 2560.503–1(h)(4).

In Robinson, the Fifth Circuit held that Section 1133
requires an administrator to provide review of the specific
ground for an adverse benefits decision, even if that ground is
first articulated on final appeal.

443 F.3d at 393.

The

plaintiff sought disability benefits after suffering a stroke
that impaired his vision and rendered him incapable of driving,
because his job as sales representative required him to drive
800-1000 miles per week.

Id. at 391.

Aetna initially denied the

plaintiff's claim for disability benefits because it determined
that he was able to drive.

Id. at 393.

Upon review, Aetna

informed the plaintiff for the first time in its review letter
that it had determined that the position of sales representative
did not require driving, and it indicated to the plaintiff that
he had exhausted his administrative remedies.

Id.

The Court

rejected Aetna's argument that because it had reviewed the
ultimate decision that the plaintiff was not disabled, it had
complied with Section 1133:

21

Subsection (1)'s mandate that the claimant be specifically
notified of the reasons for an administrator's decision
suggests that it is those “specific reasons” rather than the
termination of benefits generally that must be reviewed
under subsection (2). See McCartha v. Nat'l City Corp., 419
F.3d 437, 446 (6th Cir. 2005) (holding that an administrator
failed to substantially comply with section 1133 where the
initial notice of termination failed to state one of the
grounds on which it ultimately relied). Furthermore, this
Court has previously read the two subsections of section
1133 as complementing each other. In Schadler v. Anthem Life
Insurance, this Court explained that “the requirement that
the administrator disclose the basis for its decision is
necessary so that beneficiaries can adequately prepare for
any further administrative review ....” 147 F.3d 388, 394
(5th Cir. 1998) (internal punctuation omitted). The notice
requirements of ERISA help ensure the “meaningful review”
contemplated by subsection (2). Id. (quoting Halpin v. W.W.
Grainger, Inc., 962 F.2d 685, 689 (7th Cir. 1992)); see
Hackett, 315 F.3d at 775 (stating that effective review
requires “a clear and precise understanding of the grounds
for the administrator's position”). Additionally, mandating
review of the specific ground for a termination is
consistent with our policy of encouraging the parties to
make a serious effort to resolve their dispute at the
administrator's level before filing suit in district court.
See Vega v. Nat'l Life Ins. Serv., Inc., 188 F.3d 287, 300
(5th Cir.1999) (en banc). Thus, Aetna failed to comply with
section 1133(2) when it terminated Robinson's benefits
without reviewing the specific ground for that decision.
Id.
Like the administrator in Robinson, MetLife denied plaintiff
the opportunity to seek review of the specific ground on which
his claim denial was upheld.

MetLife's initial denial of

plaintiff's claim was based on a misreading of Dr. Loupe's APS,
which led MetLife to conclude erroneously that plaintiff had been
cleared to return to work for eight hours per day.

This was the

only reason MetLife gave in denying plaintiff's claim.

After

plaintiff appealed, MetLife acknowledged that it had misread the
22

APS but decided to uphold its decision on a new, unrelated
ground: that plaintiff had failed to provide sufficient objective
evidence of his disability.

The final denial letter was the

first time MetLife communicated to the plaintiff that the
information he submitted did not "adequately support a severity
of functional impairment precluding [his] ability to return to
work, including alternate, less physical job demands."

Though

MetLife faxed the denial summary to Dr. Loupe for comment, it did
not provide plaintiff with a copy of those findings.

The letter

to plaintiff informed him that MetLife's conclusions were before
Dr. Loupe for comment, but it did not reveal what action MetLife
planned to take on the appeal, and it did not invite plaintiff to
provide his own comments or evidence.

Further, that Dr. Loupe

felt the need to ask MetLife's permission before sharing the
proposed findings with plaintiff merely highlights the fact that
Dr. Loupe was not acting as an agent of the plaintiff.

While Dr.

Loupe was authorized to speak to MetLife concerning the
plaintiff, he was never authorized to act on plaintiff's behalf
with respect to perfecting the claim.

Accordingly, inviting the

doctor to comment did not amount to substantial compliance with
the requirement that plaintiff be given an opportunity to appeal
each basis for the denial.
Because plaintiff was never given an opportunity to perfect

23

his claim at the administrative level,46 the Court concludes that
MetLife failed to substantially comply with Section 1133.
Remand to the plan administrator for full and fair review is
usually the appropriate remedy when the administrator fails to
substantially comply with the procedural requirements of ERISA.
Lafleur v. Louisiana Health Serv. & Indem. Co., 563 F.3d 148, 157
(5th Cir. 2009) (collecting cases).

"When the procedural

violations are non-flagrant, remand is typically preferred over a
substantive remedy to which the claimant might not otherwise be
entitled under the terms of the plan."

Id. at 157-58.

A court

may, however, find in favor of the plaintiff on the merits "where
the record establishes that the plan administrator's denial of
the claim was an abuse of discretion as a matter of law."

Id. at

158 (citing Gagliano v. Reliance Standard Life Ins. Co., 547 F.3d
230, 240 (4th Cir. 2008); Robinson, 443 F.3d at 397).

"A remand

for further action is unnecessary only if the evidence clearly
shows that the administrator's actions were arbitrary and
capricious, or the case is so clear cut that it would be

46

MetLife's "courtesy review" of plaintiff's file was, as
MetLife has argued, outside the scope of the administrative
review process. In any event, there is no evidence that the
courtesy review satisfied any of the procedural requirements for
administrative appeals. See 29 C.F.R. § 2560.503–1(h).
Moreover, MetLife indicates that it never actually saw copies of
plaintiff's SSDI determination or the letters from his credit
union disability insurance provider despite plaintiff's apparent
attempt to include them in his complaints to the insurance
departments.
24

unreasonable for the plan administrator to deny the application
for benefits on any ground."

Id. (quoting Caldwell v. Life Ins.

Co. of N. Am., 287 F.3d 1276, 1289 (10th Cir. 2002) (internal
citations and quotation marks omitted)).

If the administrative

record reflects a colorable claim for upholding the denial of
benefits, remand is generally the appropriate remedy.
(citing Gagliano, 547 F.3d at 240).

Id.

The court must make this

determination on a case-by-case basis.

See Robinson, 443 F.3d at

397 & n. 5.
Here, it is not clear that the administrator's actions were
arbitrary and capricious or that it would have been unreasonable
for the administrator to deny plaintiff's claim on any ground.
The plan required proof that plaintiff's total disability
continued without interruption from the date of onset until the
end of the six-month continuation waiting period.

Plaintiff's

last OVN was from April 2011, two months before the end of that
period.

MetLife requested an updated APS, but Dr. Loupe merely

underlined his comments on the first APS from July 2011.
Plaintiff did not provide the results of a functional capacity
examination or other tests that would confirm his subjective
reports of pain or otherwise support the restrictions listed by
Dr. Loupe.

There was no evidence that plaintiff was actively

pursuing treatment or whether he was continuing to improve over
time.

Finally, though perhaps through no fault of the plaintiff,

25

Dr. Loupe declined MetLife's invitation to comment on its
conclusions.

Because it is not clear that MetLife abused its

discretion, remand to the administrator is necessary in order to
give plaintiff the opportunity to administratively appeal the
specific grounds for denial given by MetLife in its final letter
to plaintiff.

C.

Attorney's Fees

ERISA grants the Court discretion to award reasonable
attorney's fees and costs to either party.
1132(g)(1).

29 U.S.C. §

The claimant must show some degree of success on the

merits before a court may award attorney's fees.

Hardt v.

Reliance Standard Life Ins. Co., 560 U.S. 242, 255 (2010).

Once

the Court determines that a party is eligible for fees under this
standard, it may, but is not required to, consider the following
factors: (1) the degree of the opposing parties' culpability or
bad faith; (2) the ability of the opposing parties to satisfy an
award of attorney's fees; (3) whether an award of attorney's fees
against the opposing party would deter other persons acting under
similar circumstances; (4) whether the parties requesting
attorney's fees sought to benefit all participants and
beneficiaries of an ERISA plan or to resolve a significant legal
question regarding ERISA itself; and (5) the relative merits of
the parties' positions.

See Hardt, 560 U.S. at 256 & n.9;
26

LifeCare Mgmt. Servs. LLC v. Ins. Mgmt. Adm'rs, Inc., 703 F.3d
835, 847 (5th Cir. 2013) (characterizing the factors as
discretionary).
In some cases, a claimant who secures a remand during
district court review of an administrator's denial of benefits
may be eligible for attorney's fees.

See Huss v. IBM Med. &

Dental Plan, 418 F. App'x 498, 511-12 (7th Cir. 2011) (concluding
that plaintiff was eligible for attorney's fees where she
"secured a reversal of the administrative denial of benefits, a
remand for further proceedings involving a different controlling
document, and the imposition of a statutory penalty against the
Defendants").47

It is not settled, however, whether a remand

order, without more, is sufficient to render a plaintiff eligible
for attorney's fees.

See Hardt v. Reliance Standard Life Ins.

Co., 560 U.S. 242, 256 (2010) ("[W]e need not decide today
whether a remand order, without more, constitutes "some success
on the merits" sufficient to make a party eligible for attorney's
fees under § 1132(g)(1).").

Even if plaintiff is eligible for

fees in this matter, the five-factor analysis leads the Court to
conclude that an award is not warranted.

47

The Court has not

Though plaintiff was eligible for fees, the Court
expressed doubts as to whether the district court's decision to
award them was warranted in light of the defendant's apparent
lack of bad faith. The Court vacated the award for
reconsideration by the district court in light of the remainder
of its holding. Id. at 512-13.
27

expressed an opinion on the merits of plaintiff's substantive
claim, and there is no evidence that MetLife acted in bad faith.
Plaintiff's claims do not seek to benefit all participants in the
plan or to resolve a significant legal question regarding ERISA
itself.

Accordingly, plaintiff's request for attorney's fees is

denied.

IV.

CONCLUSION

For the foregoing reasons, the Court REMANDS to the
administrator for further proceedings consistent with this
opinion.

Plaintiff's request for attorney's fees is DENIED.

New Orleans, Louisiana, this

14th

day of March, 2014.

SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

28