Gross v. Sun Life Assurance Co. of Canada , 734 F.3d 1 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-1175
DIAHANN L. GROSS,
Plaintiff, Appellant,
v.
SUN LIFE ASSURANCE COMPANY OF CANADA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Thompson, Selya, and Lipez,
Circuit Judges.
Michael D. Grabhorn, with whom Jonathan M. Feigenbaum and
Grabhorn Law Office, PLLC were on brief, for appellant.
Joshua Bachrach, with whom Wilson, Elser, Moskowitz, Edelman
& Dicker LLP was on brief, for appellee.
August 16, 2013
LIPEZ, Circuit Judge. This case requires us to
determine, inter alia, whether the "safe harbor" exception to the
Employee Retirement Income Security Act of 1974 ("ERISA") applies
to the long term disability insurance policy that covers appellant
Diahann Gross. The district court found that it did not. The
court therefore held that Gross's state law claims were preempted.
Furthermore, it concluded that her insurer was entitled to the
highly deferential "arbitrary and capricious" review prescribed for
certain ERISA benefits decisions. Using that standard, the court
upheld the insurer's denial of benefits to Gross.
On appeal, Gross asserts that the district court triply
erred. She first argues that the safe harbor exception applies,
removing her benefits claim from the ERISA scheme. She further
maintains that, even accepting that ERISA governs, the court
reviewed the insurer's decision under the wrong standard and --
even under that standard -- reached the wrong result.
Each of appellant's contentions raises a substantial
question. Although we agree with the district court that the safe
harbor exception is inapplicable, we hold that the benefits denial
was subject to de novo review. Joining several other circuits, we
conclude that language requiring proof of disability "satisfactory
to us" is inadequate to confer the discretionary authority that
would trigger deferential review. We also conclude that the
administrative record is inadequate to allow a full and fair
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assessment of Gross's entitlement to disability benefits. Hence,
we vacate the judgment and remand the case to the district court so
that it may return the matter to Sun Life for further development
of the record as described below.
I.
In reciting the facts germane to resolution of this ERISA
appeal, we draw on the record that was before the claims
administrator. Buffonge v. Prudential Ins. Co. of Am., 426 F.3d
20, 22 (1st Cir. 2005).
A. Background
Appellant Gross, an optician and office manager for
Pinnacle Eye Care LLC in Lexington, Kentucky, was placed on
disability leave in early August 2006, when she was 34 years old.
She complained of severe pain, weakness and numbness in her legs
and arms, and recurring headaches that had been worsening since
early 2004. Gross's treating physician concluded that she had
reflex sympathetic dystrophy ("RSD"),1 fibromyalgia, migraines, and
chronic fatigue. In a report signed in September 2006, the doctor
wrote that Gross "cannot work."
Gross is covered under a long term disability ("LTD")
policy that Pinnacle obtained from Medical Group Insurance
Services, Inc. ("MGIS"), a company that sells employee benefit
1
RSD is apparently considered equivalent to complex regional
pain syndrome, or "CRPS," and we thus refer to the two conditions
interchangeably.
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coverage provided by the United Health Services Employer's Trust
("the Trust"). Pinnacle had obtained group policies from the
Trust, through MGIS, since 2003,2 with the policies originally
written by The Hartford Life & Accident Insurance Company
("Hartford") and, beginning in 2006, by appellee Sun Life Assurance
Company of Canada. Pinnacle paid 100 percent of its employees'
premiums for life and accidental dismemberment and death ("AD&D")
insurance, but the employees themselves paid for LTD coverage.
Despite the payment differences, the policies were administered
under the same group number, MGIS Group. No. 20178808, and all of
the coverage was billed to Pinnacle in a single monthly statement.3
Shortly after leaving her job, Gross filed a claim with
MGIS seeking long term disability benefits. The administrative
record includes voluminous medical evidence, some submitted by
Gross to support her application for benefits and some solicited by
Sun Life to aid in its evaluation. Sun Life also hired an
investigator to perform a background check and video surveillance
on Gross. In April 2007, Sun Life notified Gross that it had
denied her request for benefits because of "insufficient objective
evidence to substantiate" a disability that precluded her from
2
The Trust provides group life, accidental death, and
disability insurance.
3
The monthly statements indicate that Pinnacle arranged for
short term, as well as long term, disability coverage. We are
unable to determine from the record who pays for the short term
coverage.
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performing her duties at Pinnacle. In so concluding, the insurer
relied, inter alia, on its video surveillance and the opinions of
consulting physicians who reviewed Gross's medical history but did
not physically examine her. Gross filed an administrative appeal,
which Sun Life rejected in January 2008 with the explanation that
it had found "no basis on which to conclude that Ms. Gross would be
unable to perform the Material and Substantial Duties of her Own
Occupation." Sun Life emphasized the discrepancy between Gross's
activities while under surveillance and her appearance and behavior
during medical visits.
B. Procedural History
Gross initially filed a lawsuit against Sun Life in
Kentucky state court challenging the insurer's denial of benefits
on state law grounds, but later dismissed that action without
prejudice. In September 2009, she filed suit in Norfolk County
Superior Court in Massachusetts, again alleging only state law
causes of action.4 Sun Life removed the new action to federal
district court and filed a motion to dismiss based on ERISA
preemption. After the court ruled in Sun Life's favor, Gross
amended her complaint to add claims under 29 U.S.C. § 1132, which,
among other things, provides a cause of action for an ERISA plan
4
Gross evidently chose to file her original lawsuit in
Kentucky because she lives there. After Sun Life removed that
action to federal court, Gross dismissed it and filed a new
complaint in the Massachusetts county where Sun Life maintains its
principal United States place of business.
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participant "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."
29 U.S.C. § 1132(a)(1)(B).
In February 2011, Gross filed a motion asking that the
district court apply de novo review in its evaluation of her ERISA
claims, based on the Supreme Court's decision in Firestone Tire &
Rubber Co. v. Bruch, 489 U.S. 101 (1989). See id. at 115 (stating
that the default standard for ERISA claims is de novo). The court
denied the motion, and cross motions for summary judgment followed.
On January 6, 2012, the district court granted summary judgment for
Sun Life and denied Gross's parallel motion. The court held that
Sun Life's decision to deny benefits was not arbitrary and
capricious, and thus complied with ERISA's requirements. In so
ruling, the court noted that plan administrators "'are not
obligated to accord special deference to the opinions of treating
physicians,'" Gross v. Sun Life Assurance Co. of Canada, No. 09-
11678-RWZ, 2012 WL 29061, at *4 (D. Mass. Jan. 6, 2012) (quoting
Black & Decker Disability Plan v. Nord, 538 U.S. 822, 825 (2003)),
and that "even 'sporadic surveillance capturing limited activity'
may be used to uphold termination of benefits, particularly where
videos show plaintiff engaging in activities that specifically
contradict her claims as to 'how she spent her time and what
[actions] she could tolerate,'" id. at *5 (quoting Maher v. Mass.
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Gen. Hosp. Long Term Disability Plan, 665 F.3d 289, 295 (1st Cir.
2011)).
On appeal, Gross asserts that the district court
incorrectly found that: (1) her long term disability policy was
part of an ERISA plan; (2) the plan gave Sun Life discretionary
authority to make claims decisions, thus allowing only arbitrary
and capricious review of the insurer's rejection of benefits; and
(3) Sun Life permissibly exercised its discretion in denying
benefits to her. We begin as we must with Gross's contention that
her claims do not fall under ERISA.
II.
A finding that ERISA governs a benefits plan typically
will impact a plaintiff's appeal of her insurer's denial of
benefits in ways that will make that challenge more difficult. See
Johnson v. Watts Regulator Co., 63 F.3d 1129, 1131-32 (1st Cir.
1995). The application of ERISA triggers preemption of state-law
principles, see 29 U.S.C. § 1144(a), which "may cause potential
state-law remedies to vanish, or may change the standard of review,
or may affect the admissibility of evidence, or may determine
whether a jury trial is available." Watts Regulator, 63 F.3d at
1131-32 (citations omitted); see also Aetna Health Inc. v. Davila,
542 U.S. 200, 215 (2004) ("The limited remedies available under
ERISA are an inherent part of the 'careful balancing' between
ensuring fair and prompt enforcement of rights under a plan and the
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encouragement of the creation of such plans." (quoting Pilot Life
Ins. Co. v. Dedeaux, 481 U.S. 41, 55 (1987)). Gross's vigorous
opposition to applying ERISA to her claim is therefore
unsurprising.
With exceptions not pertinent here, ERISA applies to "any
employee benefit plan if it is established or maintained . . . by
any employer engaged in commerce or in any industry or activity
affecting commerce." 29 U.S.C. § 1003(a)(1).5 We have observed
that "the existence of a plan turns on the nature and extent of an
employer's benefit obligations," Belanger v. Wyman-Gordon Co., 71
F.3d 451, 454 (1st Cir. 1995), and, accordingly, the two common
ways to show that a benefits decision falls outside ERISA both
involve inquiry into the employer's relationship with the benefits
under scrutiny. First, the regulatory "safe harbor" provision
excludes "group or group-type insurance programs" from ERISA's
oversight if they satisfy four criteria:
(1) the employer makes no contributions on
behalf of its employees;
(2) participation in the program is voluntary;
(3) the employer's sole functions are to
collect premiums and remit them to the
insurer, and, without endorsing the program,
to allow the insurer to publicize the program
to its employees; and
5
ERISA also applies to plans established or maintained by
employee organizations or "organizations representing employees
engaged in commerce or in any industry or activity affecting
commerce." 29 U.S.C. § 1003(a)(2).
-8-
(4) the employer receives no consideration for
its efforts, other than reasonable
compensation for administrative services
necessary to collect premiums.
See 29 C.F.R. § 2510.3-1(j); see also Watts Regulator, 63 F.3d at
1133.
A benefits program that fails the safe harbor test will
not necessarily be deemed an ERISA plan, however. Watts Regulator,
63 F.3d at 1133. Exemption also may result from application of
"the conventional tests" for determining whether ERISA governs.
Id. An ERISA welfare benefit plan has "five essential
constituents":
(1) a plan, fund or program (2) established or
maintained (3) by an employer or by an
employee organization, or by both (4) for the
purpose of providing medical, surgical,
hospital care, sickness, accident, disability,
death, unemployment or vacation benefits,
apprenticeship or other training programs, day
care centers, scholarship funds, prepaid legal
services or severance benefits (5) to
participants or their beneficiaries.
Wickman v. Nw. Nat'l Ins. Co., 908 F.2d 1077, 1082 (1st Cir. 1990)
(quoting Donovan v. Dillingham, 688 F.2d 1367, 1370 (11th Cir.
1982) (en banc)). We have observed that "[t]he crucial factor in
determining if a 'plan' has been established is whether the
purchase of the insurance policy constituted an expressed intention
by the employer to provide benefits on a regular and long term
basis." Id. at 1083. The inquiry is performed from the
perspective of a reasonable person: "[A] 'plan, fund or program'
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under ERISA is established if from the surrounding circumstances a
reasonable person can ascertain the intended benefits, a class of
beneficiaries, the source of financing, and procedures for
receiving benefits." Id. at 1082 (quoting Donovan, 688 F.2d at
1373).
Thus, even if the Sun Life policy does not fall within
the regulatory safe harbor, we must separately determine if it was
a "plan" or "program" that was "established or maintained" by
Pinnacle. Although we often start with the safe harbor inquiry,
we begin here by examining whether Pinnacle's benefits arrangement
is properly classified as an ERISA plan because that sequence
better fits our analysis.
A. Standard of Review
Although the district court's refusal to remand this case
to state court was a ruling on subject-matter jurisdiction
engendering de novo review, see Samaan v. St. Joseph Hosp., 670
F.3d 21, 27 (1st Cir. 2012); BIW Deceived v. Local S6, Indus. Union
of Marine & Shipbuilding Workers of Am., 132 F.3d 824, 830 (1st
Cir. 1997), the underlying jurisdictional issue -- whether ERISA
governs the Pinnacle plan -- is a mixed question of fact and law
triggering scrutiny "along a degree-of-deference continuum," Watts
Regulator, 63 F.3d at 1132. Where, as here, factual questions
about the plan dominate the inquiry, the clear-error standard will
be our primary tool. See id. We keep in mind, however, that "the
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removing party bears the burden of persuasion vis-à-vis the
existence of federal jurisdiction." BIW Deceived, 132 F.3d at 831.
B. Existence of an ERISA Plan
The record demonstrates beyond debate that the "crucial
factor" we identified in Wickman is satisfied here, i.e., that
Pinnacle undertook to provide benefits for its employees "on a
regular and long term basis." 908 F.2d at 1083; see also, e.g.,
Anderson v. UNUM Provident Corp., 369 F.3d 1257, 1263 (11th Cir.
2004) ("[T]he 'established or maintained' requirement is designed
to ensure that the plan is part of an employment relationship
. . . ." (alteration in original) (internal quotation marks
omitted)). Pinnacle has participated in the United Health Services
Employer's Trust since at least October 2003, when the company and
MGIS representatives signed a one-page "Group Benefit Summary"
issued by the Trust that described the life, accidental death, and
LTD coverages available to Pinnacle's employees and their
beneficiaries.6 So far as the record shows, each of those benefits
has been offered to employees or provided at no cost on an ongoing
basis since that time.
Gross does not address ERISA's applicability to
Pinnacle's insurance benefits generally, but focuses instead on the
6
The Trust also provided short-term disability coverage for
Pinnacle. The "Remarks" section of the Group Benefit Summary
directs the reader to "[s]ee [the] attached addendum for Short Term
Disability benefits." The addendum is not in the record.
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LTD policy. Emphasizing that the LTD policy is the only one the
employees must pay for themselves,7 she seeks to divorce that
policy from any benefit "program" and have us separately evaluate
whether ERISA applies to it. The district court, however, viewed
the LTD policy as one part of a "comprehensive employee benefit
plan." Gross v. Sun Life Assurance Co. of Can., No. 09-11678-RWZ,
2010 WL 817409, at *2 (D. Mass. March 4, 2010). We detect no clear
error in that conclusion. As detailed below, the record provides
ample support for the court's finding that Pinnacle's package of
insurance benefits constituted a unitary ERISA program.8
Significantly, the Trust identifies all of the Pinnacle
employee policies by a single group number. In addition, as noted
above, the Group Benefit Summary issued by the Trust referred to
all of those policies. Paul Wedge, the "owner-member" of Pinnacle
who signed the Summary on behalf of the employer, is noted on the
7
As noted earlier, the record does not reveal whether
Pinnacle funded its employees' short-term disability coverage,
although the district court stated that, while Gross paid her own
LTD premium, Pinnacle funded "all the others." Gross v. Sun Life
Assurance Co. of Can., No. 09-11678-RWZ, 2010 WL 817409, at *1 (D.
Mass. March 4, 2010).
8
Gross points to a statement by Paul Wedge of Pinnacle that
the company did not intend to create an ERISA welfare benefits
plan. The question, however, is not the employer's intent vis-à-
vis ERISA, but whether the employer "intended to establish or
maintain a plan to provide benefits to its employees as part of the
employment relationship." Anderson, 369 F.3d at 1264; see also,
e.g., Watts Regulator, 63 F.3d at 1136 n.5 (discussing the Safe
Harbor elements and noting that "this case turns on the employer's
activities, not its intentions").
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document as the administrative contact, without distinction among
policies. Similarly, invoices sent to Pinnacle by MGIS in 2006
list the life, AD&D, LTD, and short-term disability policies with
the amounts due for each. The record also contains an "Employer's
Participation Agreement," signed by Wedge in 2006, requesting
membership in the Trust "and coverage under the Group Policies
issued to the Trustees of the Trust now in effect or later modified
or replaced," again without distinction among the different types
of insurance offered by the Trust.
The Trust polices have thus consistently been treated as
a unit, despite their different contribution requirements.
Moreover, the information provided to employees was in keeping with
that approach. The record contains single-page summary fliers for
the life insurance and LTD coverages that are similar in
appearance, both containing the Sun Life logo in the upper right
corner and both offering "Highlights" of the particular policy "for
Employees of Pinnacle Eye Care, LLC." The disability flier
contains instructions on how to enroll, directs employees to return
the form to their employer, and tells them that they "must elect or
refuse insurance coverage within 31 days of your date of
eligibility" -- creating an explicit link between that form of
insurance and Pinnacle notwithstanding the employer's lack of
financial involvement. The link is reinforced by the requirement
that an enrolling employee acknowledge the following understanding:
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"I am requesting LTD coverage under a Group Insurance policy
offered by my employer. This coverage will end when my employment
terminates." Yet another indicator of Pinnacle's role is the fine
print at the bottom of the flier describing the LTD coverage as a
"benefit[] available from your employer" and advising employees
that Pinnacle will provide a copy of Sun Life's LTD booklet with
complete details "[w]hen you become eligible for benefits under the
plan."
In these circumstances, we see no justification for
isolating the long-term disability policy from Pinnacle's insurance
package for purposes of our ERISA inquiry. A "plan" under ERISA
may embrace one or more policies, see Donovan, 688 F.2d at 1373(noting that a benefits plan or program may consist of "a group
policy or multiple policies"), quoted in Wickman, 908 F.2d at 1083,
and it strikes us as both impractical and illogical to segment
insurance benefits that are treated as a single group and managed
together, potentially placing some under ERISA and some outside the
statute's scope. In so concluding, we join several other courts
that have declined to "unbundle[]" a set of policies or benefits
offered by an employer to its employees when evaluating whether
ERISA governs. Postma v. Paul Revere Life Ins. Co., 223 F.3d 533,
538 (7th Cir. 2000); see also Gaylor v. John Hancock Mut. Life Ins.
Co., 112 F.3d 460, 463 (10th Cir. 1997) (rejecting plaintiff's
attempt to "sever her optional disability coverage from the rest of
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the benefits she received through her employer's plan");9 Peterson
v. Am. Life & Health Ins. Co., 48 F.3d 404, 407 (9th Cir. 1995)
(concluding that policy that did not on its own comply with ERISA
requirements nonetheless fell under the statute because it "was
just one component of [the] employee benefit program and . . . the
program, taken as a whole, constitutes an ERISA plan");10 Pando v.
Prudential Ins. Co. of Am., 511 F. Supp. 2d 732, 736 (W.D. Tex.
2007) ("[W]here the employer contributes to some, but not all,
benefits which arise from the employment relationship, a court will
separately evaluate whether a particular policy is an ERISA plan
9
Gross asserts that Postma and Gaylor are distinguishable
because the companies in each instance paid the premiums for all of
the policies. She is correct that, in Postma, the employer took
over paying the LTD premium from the employees. See 223 F.3d at
537-38. The circumstances in Gaylor are less clear. The opinion
states in one place that the employer contributed part of the LTD
premium "for certain employees," 112 F.3d at 462, but elsewhere
indicates that the plaintiff paid the full cost of her coverage,
see id. at 463. Regardless of these distinctions, the pertinent
point is that "the disability policy was part of a broader benefits
package maintained by [the employer] for its employees." Postma,
223 F.3d at 538.
10
In Peterson, the policy at issue would not on its own have
qualified as an ERISA plan because coverage was provided only to a
partner in a business partnership and not to any employees. See 48
F.3d at 407 (citing 29 C.F.R. § 2510.3-3(b)). We offer no view on
the Peterson court's conclusion that a policy ineligible for ERISA
coverage may nevertheless be governed by the statute if it is part
of an ERISA-covered employee benefit program. In a somewhat
similar context -- where the benefit at issue (reimbursement for
educational expenses) is not among those protected by ERISA -- the
Eleventh Circuit held that the benefit's inclusion in a plan
providing ERISA-covered employee benefits did not bring the non-
ERISA benefit within the statute's scope. See Kemp v. IBM Corp.,
109 F.3d 708, 713 (11th Cir. 1997).
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only when it is clearly separate from the benefits plan to which
the employer does contribute."); cf. Smith v. Jefferson Pilot Life
Ins. Co., 14 F.3d 562, 567 (11th Cir. 1994) (rejecting plaintiff's
attempt "to sever the dependent coverage feature from the benefits
package provided . . . through the Plan").11
Having concluded that the LTD policy must be treated as
part of Pinnacle's longstanding insurance benefits program, we also
conclude that a reasonable person could readily ascertain the
program's specific elements -- the benefits, the class of
beneficiaries, the source of funding, and procedures for obtaining
benefits. See Wickman, 908 F.2d at 1082. The one-page Highlights
fliers for the LTD and the combined life and AD&D insurance
policies generally describe the benefits, costs, and enrollment
procedure, and they direct employees to Sun Life's detailed
booklets for "complete plan details." The life insurance flier
notes that eligible employees will need to designate beneficiaries
using one of two identified forms, and the LTD flier states that
11
As the Eleventh Circuit noted in Smith, 14 F.3d at 567 n.3,
the Supreme Court, in a different context, has recognized the
importance of treating benefits plans holistically. See Shaw v.
Delta Air Lines, Inc., 463 U.S. 85, 107-108 (1983) ("The
administrative impracticality of permitting mutually exclusive
pockets of federal and state jurisdiction within a plan is
apparent."); see also Smith, 14 F.3d at 567 n.3 (stating that,
based on Shaw, "we may infer that, generally, ERISA plans may not
be severed so that portions of them may be excluded from regulation
under ERISA").
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the benefits are "[a]vailable to all full time employees working 30
or more hours per week."
Also in the record is an individualized LTD "Benefit
Highlights" form prepared for Gross that lists pertinent details of
the Sun Life policy, among them the waiting period for eligibility
("1st of the month following full-time employment"); the benefit
percentage of earnings (sixty percent); the maximum monthly benefit
($9,000); and the elimination period (180 days). Sun Life's forty-
seven page LTD booklet contains instructions on filing a claim and
explains the appeals process, including "your right to bring a
civil action under ERISA, § 502(a) following an adverse
determination on review." See Wickman, 908 F.2d at 1083 (noting
that handbook detailing ERISA rights, distributed to employees, "is
strong evidence that the employer has adopted an ERISA regulated
plan"); cf. Thompson v. Am. Home Assurance Co., 95 F.3d 429, 437
(6th Cir. 1996) (noting, among facts undermining finding of
employer endorsement, that "[t]he policy documentation . . .
nowhere mentions that the policy is subject to ERISA" nor describes
employee's ERISA rights).
In combination, the documents in the record associated
with Pinnacle's employee benefits program establish all five of the
constituent elements of an ERISA plan listed in Wickman: (1) a
plan, (2) established and maintained (3) by an employer (4) to
provide multiple types of insurance benefits (5) to employees and,
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in some cases, their beneficiaries.12 The materials further show
that a reasonable Pinnacle employee would understand the nature of
the plan, including the scope of coverage, the costs for the plan's
different components, and the claims procedures. Inescapably,
Pinnacle's arrangement with MGIS and the Trust represented a
"calculated commitment to qualified employees for similar benefits
regularly in the future." Wickman, 908 F.2d at 1083. We therefore
conclude that Pinnacle offered LTD benefits to its employees under
a "plan" or "program" that is subject to ERISA.
C. The Safe Harbor Exception
Gross's argument that the safe harbor exception applies
depends on her assumption that the LTD policy may be examined
independently from the rest of Pinnacle's insurance benefits plan.
Based on that assumption, she asserts that three of the four safe
harbor requirements are clearly met: Pinnacle does not contribute
to her LTD policy, her participation was voluntary, and Pinnacle
did not receive any consideration in connection with the sale of
the LTD policy to its employees. See Watts Regulator, 63 F.3d at
1133. She states that only the fourth requirement -- that the
12
An ERISA plan may be created without formal documentation.
See Donovan, 688 F.2d at 1372 (noting that "[t]here is no
requirement of a formal, written plan in either ERISA's coverage
section . . . or its definitions section"); see also N.E. Mut. Life
Ins. Co. v. Baig, 166 F.3d 1, 5 n.6 (1st Cir. 1999) (citing
Donovan).
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employer's sole functions are administrative and do not reflect
endorsement of the policy -- is "reasonably in dispute."
Our rejection of Gross's assumption that Pinnacle
provided multiple, independent plans is fatal to her safe harbor
argument. The exception does not apply unless all four
requirements are met, id., and Pinnacle's full funding of the life
and AD&D insurance is thus sufficient to disqualify the Pinnacle
plan. In addition, with respect to the "endorsement" criterion,
the Pinnacle plan falls short as well. Our discussion above shows
the close relationship between the LTD plan and the other Pinnacle
insurance benefits, which were treated alike except for who paid
the premiums. In an affidavit, Pinnacle's Wedge stated that the
employer "did not negotiate the terms of the voluntary long term
disability insurance policy from Sun Life." Although the employer
did not specify the policy's terms, MGIS's benefits manager
reported that Pinnacle did provide guidelines for eligibility,
submitting "a list of eligible employees as well as class
definitions, classes for each employee, plan waiting periods, and
plan designs."
Thus, eligibility for this LTD policy was not only tied
to employment at Pinnacle, but Pinnacle also determined which
employees had access to that benefit. Consequently, both in
outward appearance and internally, Pinnacle played more than a
bystander's role concerning the LTD policy. See Watts Regulator,
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63 F.3d at 1134 (linking endorsement to the employer's "engagement
in activities that would lead a worker reasonably to conclude that
a particular group insurance program is part of a benefit
arrangement backed by the company"); Thompson, 95 F.3d at 436(holding that a finding of endorsement may be appropriate "where
the employer plays an active role in . . . determining which
employees will be eligible for coverage"); ERISA Op. Letter No. 94-
26A, 1994 WL 369282, at *3 (July 11, 1994) (stating that
endorsement occurs "if the [employer] engages in activities that
would lead [an employee] reasonably to conclude that the program is
part of a benefit arrangement established or maintained by the
[employer]").
In short, because Pinnacle's insurance benefits program
is an ERISA plan, and the safe harbor exception is inapplicable, we
must determine the proper ERISA standard of review.
III.
A. Background
The question of what standard of review is applicable to
a benefits decision governed by ERISA is an issue of law that we
review de novo. Maher, 665 F.3d at 291. The default standard for
reviewing benefits decisions also is de novo, and plenary review is
displaced only if the benefit plan gives discretionary authority to
the administrator or fiduciary to determine eligibility for
benefits. See Firestone, 489 U.S. at 115; Maher, 665 F.3d at 291.
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If the plan affords such discretion, the court applies "a
deferential 'arbitrary and capricious' or 'abuse of discretion'
standard." Maher, 665 F.3d at 291 (quoting Cusson v. Liberty Life
Assurance Co. of Bos., 592 F.3d 215, 224 (1st Cir. 2010)).13
The district court summarily denied Gross's motion
seeking application of de novo review. Sun Life urges us to affirm
that ruling, arguing that the LTD policy contains sufficiently
clear language granting discretionary authority to the insurer and
that Pinnacle accepted that language, and the resulting
deferential review of benefits decisions, when it signed the
Employer's Participation Agreement with the Trust.14 Sun Life
points specifically to two statements in the policy: "Proof [of
claim] must be satisfactory to Sun Life" and "Benefits are payable
when Sun Life receives satisfactory Proof of Claim." Sun Life
relies on our decision in Brigham v. Sun Life of Canada, 317 F.3d
72 (1st Cir. 2003), where we accepted the view that language in a
different Sun Life policy comparable to the pertinent language here
13
The parties' arguments on this issue rely on the language
contained in a booklet that is described therein as "intended to
provide a summarized explanation of the current Group Policy
Benefits." The booklet warns that "the Group Policy is the
document which forms Sun Life's contract to provide benefits."
Because the parties do not assert otherwise, we presume that the
language in the booklet and the language in the policy are the same
for our purposes.
14
The Agreement states, inter alia, that "upon acceptance for
participation under the policies, Participant will be bound by the
terms of this Request form and Policies."
-21-
constituted "an indicator of subjective, discretionary authority on
the part of the administrator." Id. at 81.
Although Sun Life is correct that the language at issue
in Brigham is similar to the language now before us,15 two factors
important to our decision in Brigham are absent here. First,
plaintiff Brigham advocated for de novo review for the first time
on appeal, having assumed throughout the district court proceedings
that the arbitrary and capricious standard applied. We saw no
injustice in rejecting Brigham's belated argument based on our well
established raise or waive rule, and without "undertak[ing] a
thorough exploration of the issue," in light of the "widespread
acceptance" by courts at that time that the phrase "satisfactory to
us" triggers discretionary review. Id. at 82.
Since our decision in Brigham, however, the precedential
landscape -- the second important factor -- has changed. In
Brigham, decided more than a decade ago, we noted the split in the
circuits on whether policy provisions containing a "satisfaction"
requirement were sufficient to confer discretionary authority
triggering deferential review. Id. at 81-82. We reported that
some circuits considered the use of "to us" after "satisfactory" to
15
To the extent it differs, the Brigham language is more
expansive. The Sun Life policy there stated that the insurer "'may
require proof in connection with the terms or benefits of [the]
Policy'" and further declared: "'If proof is required, we must be
provided with such evidence satisfactory to us as we may reasonably
require under the circumstances.'" Brigham, 317 F.3d at 81(alteration in original) (emphasis removed).
-22-
be "an indicator of subjective, discretionary authority on the part
of the administrator, distinguishing such phrasing from policies
that simply require 'satisfactory proof' of disability, without
specifying who must be satisfied." Id. at 81 (citing, inter alia,
Nance v. Sun Life Assurance Co. of Can., 294 F.3d 1263, 1267-68
(10th Cir. 2002); Ferrari v. Teachers Ins. & Annuity Ass'n, 278
F.3d 801, 806 (8th Cir. 2002)). Only the Sixth Circuit, in an 8-6
en banc decision, had held that discretionary review is triggered
by a requirement of "'satisfactory proof' without specification of
who must be satisfied." Id. at 81-82 (citing Perez v. Aetna Life
Ins. Co., 150 F.3d 550, 556-58 (6th Cir. 1998) (en banc)). The
Second Circuit, in dicta, stood alone in suggesting that the
"satisfactory to us" language might not convey discretion. Id. at
82 (citing Kinstler v. First Reliance Standard Life Ins. Co., 181
F.3d 243, 252 (2d Cir. 1999)).
Although the division of opinion remains, three circuits
have in the interim adopted the Second Circuit's suggestion that
the "to us" amplification on "satisfactory" is inadequate in itself
to confer discretion. See Viera v. Life Ins. Co. of N.A., 642 F.3d
407, 414-417 (3d Cir. 2011) (describing cases); Feibusch v.
Integrated Device Tech., Inc. Emp. Benefit Plan, 463 F.3d 880, 884
(9th Cir. 2006); Diaz v. Prudential Ins. Co. of Am., 424 F.3d 635,
639-40 (7th Cir. 2005). In reaching that conclusion, the Seventh
Circuit panel departed from its own prior precedent and thus
-23-
submitted its proposed decision to all active judges before it was
published. No judge requested en banc review. See Diaz, 424 F.3d
at 640. On the other hand, at least one circuit has reaffirmed its
earlier view that a plan requiring submission of "'satisfactory
proof of Total Disability to [the plan administrator]'" granted
discretion to the administrator. See Tippitt v. Reliance Standard
Life Ins., 457 F.3d 1227, 1233-34 (11th Cir. 2006) (quoting
Levinson v. Reliance Standard Life Ins., 245 F.3d 1321, 1324-25
(11th Cir. 2001)).
The procedural backdrop of Brigham and the intervening
circuit court decisions mean that the standard of review issue in
this case cannot be resolved, as Sun Life cursorily asserts, on the
ground that it is governed by Brigham. That decision explicitly
relied on the plaintiff's procedural default, which we declined to
sidestep because of the then-current state of the law: "[W]ith the
possible exception of the Second Circuit in dicta, no federal
appeals court has viewed the type of language at issue in this case
as inadequate to confer discretion on the plan administrator." 317
F.3d at 82. Here, where we do not have procedural default and we
do have out-of-circuit precedent rejecting the adequacy of
"satisfactory to us," our acceptance of the language in Brigham is
not binding. Rather, the time is now appropriate for the "thorough
exploration of the issue" that we put off in Brigham, 317 F.3d at
82.
-24-
B. The Pursuit of Clarity
We have long recognized that the threshold question in
determining the standard of review is whether the provisions of the
benefit plan at issue "reflect a clear grant of discretionary
authority to determine eligibility for benefits." Leahy v.
Raytheon Co., 315 F.3d 11, 15 (1st Cir. 2002) (emphasis added). In
Leahy, for example, we observed that the "discretionary grant
hardly could be clearer" where the plan documents gave the insurer
"'the exclusive right, in [its] sole discretion, to interpret the
Plan and decide all matters arising thereunder,'" and further
provided that the insurer's decision "in the exercise of that
authority 'shall be conclusive and binding on all persons unless it
can be shown that the . . . determination was arbitrary and
capricious.'" Id. (alteration and omission in original); see also,
e.g., Twomey v. Delta Airlines Pilots Pension Plan, 328 F.3d 27, 31
(1st Cir. 2003) (giving administrative committee "'such duties and
powers as may be necessary to discharge its responsibilities under
the Plan, including . . . decid[ing] all questions of eligibility
of any Employee . . . to receive benefits,'" with such decisions,
assuming good faith, "'to be final and conclusive'" (first omission
and alteration in original)).
The wording at issue here is obviously a far cry from the
explicit provisions in Leahy and Twomey. There are no required
"magic words," however, to confer discretion, and "language that
-25-
falls short of th[e] ideal" can suffice. Brigham, 317 F.3d at 81.
Here, the two pertinent sentences appear in a section of the LTD
insurance booklet in which a series of questions about claims
procedures are asked and answered. The first three questions
address how a claim is submitted. The next question asks "What is
considered Proof of Claim?" The response includes one of the
sentences under scrutiny:
Proof of Claim must consist of at least the
following information:
-a description of the disability;
-the date the disability occurred; and
-the cause of the disability.
Proof of claim may include, but is not limited
to, police accident reports, autopsy reports,
laboratory results, toxicology results,
hospital records, x-rays, narrative reports,
or other diagnostic testing materials as
required.
Proof of Claim for disability must include
evidence demonstrating the disability
including, but not limited to, hospital
records, Physician records, Psychiatric
records, x-rays, narrative reports, or other
diagnostic testing materials as appropriate
for the disabling condition.
Sun Life may require as part of the Proof,
authorizations to obtain medical and non-
medial information.
Proof of your continued disability and regular
and continuous care by a Physician must be
given to Sun Life within 30 days of the
request for proof.
Proof must be satisfactory to Sun Life.
-26-
App. at 250 (emphasis added). The next question in sequence asks
when benefits will be received, with this response: "Benefits are
payable when Sun Life receives satisfactory Proof of Claim." Id.(emphasis added).
We note initially that the second reference to
satisfactory proof lacks the "to us" modifying phrase and is thus
used in a way that, as we noted in Brigham, most courts consider
inadequate to signify discretionary authority. See 317 F.3d at 81;
see also Viera, 642 F.3d at 414. We agree, and we therefore focus
on the "satisfactory to us" (here, "satisfactory to Sun Life")
formulation.
The courts deeming even the "to us" wording
insufficiently explicit have offered several justifications for
their conclusions. The Second Circuit observed that specifying the
need to satisfy the administrator adds nothing to the obvious point
that "[n]o plan provides benefits when the administrator thinks
that benefits should not be paid." Kintsler, 181 F.3d at 252.
That assessment was echoed in Diaz: "All plans require an
administrator first to determine whether a participant is entitled
to benefits before paying them; the alternative would be to hand
money out every time someone knocked on the door, which is
obviously out of the question." 424 F.3d at 637. According to
these courts, there must be language that "unambiguously
indicate[s] that the plan administrator has authority, power, or
-27-
discretion to determine eligibility or to construe the terms of the
Plan." Feibusch, 463 F.3d at 884 (internal quotation marks
omitted); see also Viera, 642 F.3d at 417 (stating that in order
for a plan to be insulated from de novo review, it must reveal that
the administrator "'has the power to interpret the rules, to
implement the rules, and even to change them entirely'" (quoting
Diaz, 424 F.3d at 639)); Diaz, 424 F.3d at 639-40 ("[T]he critical
question is whether the plan gives the employee adequate notice
that the plan administrator is to make a judgment within the
confines of pre-set standards, or if it has the latitude to shape
the application, interpretation, and content of the rules in each
case.").
Both the Ninth and Seventh Circuits emphasized that the
"satisfactory to us" construct fails to alert plan participants to
the administrator's discretion because it is ambiguous as to what
must be satisfactory to Sun Life. When faced with language and
context virtually identical to that before us -- also in a Sun Life
policy -- the Ninth Circuit easily dismissed the wording as
inadequate:
[T]he Sun Life policy language simply does not
clearly indicate that Sun Life has discretion
to grant or deny benefits. Indeed, the
language makes no reference whatsoever to
granting or denying benefits, and is included
under the policy heading "What is considered
proof of claim?" We construe ERISA policy
ambiguities in favor of the insured.
-28-
Feibusch, 463 F.3d at 884. The Seventh Circuit likewise found the
"satisfactory to us" phrase ambiguous, observing that,
[f]airly read, it suggests only that the plan
participant must submit reliable proof of two
things: continuing disability and treatment by
a doctor. In short, under [the policy], the
only discretion reserved is the inevitable
prerogative to determine what forms of proof
must be submitted with a claim -- something
that an administrator in even the most tightly
restricted plan would have to do.
Diaz, 424 F.3d at 639; see also Viera, 642 F.3d at 417 (observing
that "the only discretion reserved by this single phrase, nested
within a section wholly regarding the procedural requirements for
submission of a claim, is 'the inevitable prerogative to determine
what forms of proof must be submitted with a claim'" (quoting Diaz,
supra)).16
All four courts rejecting the adequacy of "satisfactory
to us" recommended the use of language that either explicitly
"stat[es] that the award of benefits is within the discretion of
the plan administrator or . . . is plainly the functional
equivalent of such wording," and three of the courts proposed
16
The policy at issue in Viera covered accidental death and
dismemberment. The pertinent language appeared in a section
labeled "Proof of Loss" and stated: "'Written or authorized
electronic proof of loss satisfactory to Us must be given to Us at
Our office, within 90 days of the loss for which claim is made.'"
642 F.3d at 411. The court explained the ambiguity in the language
as follows: "In other words, it is not clear whether 'satisfactory
to Us' means 'electronic proof of loss [in a form] satisfactory to
Us' or 'electronic proof of loss [substantively and subjectively]
satisfactory to Us.'" Id. at 417.
-29-
specific language. Kinstler, 181 F.3d at 252; see also Viera, 642
F.3d at 417 ("'Benefits under this plan will be paid only if the
plan administrator decides in [its] discretion that the applicant
is entitled to them.'" (quoting Herzberger v. Standard Ins. Co.,
205 F.3d 327, 331 (7th Cir. 2000)); Feibusch, 463 F.3d at 883 ("The
plan administrator has discretionary authority to grant or deny
benefits under this plan." (internal quotation marks omitted));
Diaz, 424 F.3d at 637 (stating that "the surest way" for a plan to
insulate its benefits denial from de novo review is to "includ[e]
language that either mimics or is functionally equivalent" to the
Herzberger language).
C. Our Conclusion
Our acknowledgment in Brigham of "an increasing
recognition of the need for the clearest signals of administrative
discretion" foreshadowed the insistence on "greater precision" that
has surfaced in the later cases. 317 F.3d at 82. Although we
refrained there from entering the discussion in light of the
appellant's procedural default, we did "wholly endorse" the
Herzberger model language that the Third and Seventh Circuits have
since expressly recommended. Id. at 81. Having now fully
considered the issue, we agree with those courts holding that the
"satisfactory to us" wording, without more, will ordinarily fail to
meet the "requisite if minimum clarity" necessary to shift from de
novo to deferential review. Herzberger, 205 F.3d at 331. We are
-30-
persuaded primarily by the ambiguity of the phrase, which
reasonably may be understood to state Sun Life's right to insist on
certain forms of proof rather than conferring discretionary
authority over benefits claims. Indeed, in the present context,
the language more naturally supports the former reading, as the
phrase appears following a listing of the required information and
appropriate types of evidence to prove a claim.17 We reiterate that
no precise words are required. Yet, to secure discretionary
review, a plan administrator must offer more than subtle inferences
drawn from such unrevealing language. To conclude otherwise would
negate our requirement of a clear grant of discretion. See
Brigham, 317 F.3d at 80 ("We have 'steadfastly applied Firestone to
mandate de novo review of benefits determinations unless "a
benefits plan . . . clearly grant[s] discretionary authority to the
administrator."'" (alterations in original) (quoting Terry v. Bayer
Corp., 145 F.3d 28, 37 (1st Cir. 1998)); Feibusch, 463 F.3d at 883("'Neither the parties nor the courts should have to divine whether
discretion is conferred. It either is, in so many words, or it
isn't." (quoting Sandy v. Reliance Standard Life Ins. Co., 222 F.3d
1202, 1207 (9th Cir. 2000)).
17
Although the language as used here is unquestionably
ambiguous, we do not foreclose the possibility that the same phrase
may be clear if used in a context where the only plausible meaning
would link it to the administrator's discretion to make eligibility
determinations.
-31-
Two additional factors contribute to our decision.
First, it is not difficult to craft clear language. The model text
offered by other courts -- including the wording endorsed in
Brigham -- demonstrates that "clear language can be readily drafted
and included in policies." Kinstler, 181 F.3d at 252; see also
Feibusch, 463 F.3d at 883-84 ("[I]t is easy enough to confer
discretion unambiguously if plan sponsors, administrators, or
fiduciaries want benefits decisions to be reviewed for abuse of
discretion." (internal quotation marks omitted) (alteration in
original)). Second, the drafters of ERISA plans have had ample
time to take heed of the developing precedent rejecting the
adequacy of the "satisfactory to us" language.
Indeed, Sun Life had every opportunity to avoid an
adverse ruling on this issue. Our decision in Brigham, which
indicated discomfort with the clarity of the "satisfactory to us"
wording, made reliance on that language a risky strategy for
securing discretionary review of benefits decisions. Sun Life's
relationship with the Trust began in 2006 -- three years after
Brigham and a year after Diaz. Sun Life was also the insurer in
Brigham. We see no reason why it could not have inserted more
explicit language in either its policy or the summary policy
booklet that it provided to Gross and the other employees covered
by the Trust's group policies.
-32-
In sum, the "satisfactory to us" language as used in the
Sun Life policy insuring Gross does not state with sufficient
clarity "that the plan administrator is to make a judgment largely
insulated from judicial review by reason of being discretionary."
Herzberger, 205 F.3d at 332. Hence, Sun Life's rejection of
Gross's claim for benefits is subject to de novo review.
IV.
A. Standards of Review
As with any summary judgment appeal, we review a district
court's decision on the merits of an ERISA benefits case de novo.
See Kansky v. Coca-Cola Bottling Co. of New Eng., 492 F.3d 54, 57
(1st Cir. 2007). Given that we play the same role as the district
court in evaluating Sun Life's denial of benefits, we have chosen
not to remand to that court for application of the correct, de
novo, standard for reviewing Sun Life's decision.
Both in the district court and on appeal, however, the
summary judgment analysis in ERISA benefits cases differs from the
ordinary summary judgment inquiry "in one important aspect."
Orndorf v. Paul Revere Life Ins. Co., 404 F.3d 510, 517 (1st Cir.
2005). In these cases, "where review is based only on the
administrative record before the plan administrator and is an
ultimate conclusion as to disability to be drawn from the facts,
summary judgment is simply a vehicle for deciding the issue." Id.The non-moving party in an ERISA benefits case is thus not entitled
-33-
to the usual inferences in its favor. Id.; see also Cusson, 592
F.3d at 223-24.
Where, as here, a challenged denial of benefits is
subject to de novo review under ERISA because there has been no
grant of discretionary authority, "our task on appeal 'is to
independently weigh the facts and opinions in the administrative
record to determine whether the claimant has met [her] burden of
showing that [she] is disabled within the meaning of the policy.'"
Scibelli v. Prudential Ins. Co. of Am., 666 F.3d 32, 40 (1st Cir.
2012) (quoting Richards v. Hewlett-Packard Corp., 592 F.3d 232, 239
(1st Cir. 2010)). In so doing, we give no deference to the
administrator's opinions or conclusions. Id.We begin by summarizing both the evidence in the
administrative record and Sun Life's decisions rejecting Gross's
claim for benefits.
B. Gross's Medical Evidence
1. Dr. Rita Egan
The physician who recommended that Gross stop working,
Dr. Rita Egan, a rheumatologist, began treating Gross in February
2006. The doctor ordered a triple-phase bone scan to look for
evidence of RSD, but the results were negative. Dr. Egan
nonetheless concluded that Gross probably had the disease in her
right arm, as well as other conditions that were contributing to
her difficulties. For the first of three insurance-related
-34-
assessments that Dr. Egan subsequently completed, the doctor
prepared an Attending Physician's Statement dated September 23,
2006, classifying Gross's impairment level from her combination of
medical problems as a "[s]evere limitation of functional capacity;
incapable of minimum (sedentary[]) activity." On the line asking
for "objective findings," Dr. Egan wrote that Gross experienced
"[p]ain to touch all over but [right] arm is untouchable." The
doctor did not note any mental impairment, although she had
prescribed an anti-depressant to Gross in April 2006 and stated at
that time that, if the drug did not work, Gross would "need[] to
see a psychiatrist to help us with her medication."18
In the second such statement, completed in October 2006,
Dr. Egan stated that Gross's pain had worsened over time, despite
treatment, and that Gross could not sit in one place or drive for
more than ninety minutes, use her right hand, or firmly grasp with
18
In notes dated September 20, 2006, Dr. Egan reported:
1. Chronic migraines -- a little improved with present
regimen of medications.
2. Widespread pain and right arm reflex sympathetic
dystrophy -- she is doing a little better with the
medications we have her on, but I think a lot of the
problem is depression. It certainly is contributing to
her pain. She also is not sleeping well. At this point,
I am going to look into another neurosurgeon or
anesthesiologist who may be able to put an implantable
stimulator or consider cranial stimulation therapy, which
I have been reading about with fibromyalgia, and also the
patient needs to see a psychiatrist to help with a lot of
issues.
-35-
her left hand. She reiterated her findings that Gross suffered
from RSD, fibromyalgia, widespread pain, and fatigue. Two months
later, in the third report ("Attending Physician's Supplemental
Statement"), Dr. Egan confirmed Gross's limitations,19 adding that
she could not lift more than ten pounds. The doctor described
Gross's diseases as "chronic" and stated that her condition was
expected to last for her lifetime.
2. Other Medical Evaluations
In addition to her ongoing treatment with Dr. Egan, Gross
consulted with several other medical practitioners. In October
2005, before she began seeing Dr. Egan, Gross was evaluated by Dr.
Tarvez Tucker for complaints of headaches, neck pain, and
scoliosis. Diagnostic tests showed no abnormalities, but Dr.
Tucker noted her pain and weakness symptoms:
[Gross] has intractable transformed migraine,
chronic daily headache, which has not been
responsive to a variety of
preventatives. . . . She also has . . . a lot
of radicular upper extremity and cervical pain
associated with tingling and numbness of the
right arm and hand, which is worse at the end
of the day. She has on examination a drift of
the outstretched right upper extremity without
pronation, weakness of the intrinsic hand
muscles, and diminished perception of primary
sensory modalities in the right arm and face.
19
This report varied slightly from the previous one, stating
that Gross could not stand or walk for more than an hour, drive for
more than ninety minutes, or sit in one place for more than two
hours.
-36-
In December, Dr. Tucker noted that her headaches had improved, but
Gross reported worsening joint and muscle pain.
Dr. Egan twice referred Gross to pain management
specialists. In April and May 2006, she saw Dr. William Witt, who
diagnosed her with fibromyaligia, CRPS, and "probable post
traumatic stress disorder" related to a history of sexual abuse.20
In May, Dr. Witt observed that "[h]er right hand continues to be
reddened, somewhat swollen, and she is holding in a claw position."
He deferred medical intervention until after a scheduled evaluation
and treatment by a psychologist,21 but there is no indication in the
record that such an evaluation took place.22 The following year,
20
Among his written findings were the following:
She has multiple health-related problems, various aches
and pains throughout her body. . . .
. . . She has definite swelling of the right hand as
compared with the left. There is obviously differential
sweating as well. . . . [Her gait] is slow and
purposeful . . . . She has multiple tender points in all
of the classic sites for fibromyalgia.
21
Dr. Witt noted that he was "very hesitant to engage in any
interventional treatment or any further medical treatment . . .
until we have had a chance to work with her from a behavioral
standpoint which may serve several purposes . . . as this is
clearly a sympathetically maintained pain."
22
As reported in another doctor's notes, Gross apparently
explained to Dr. Egan that she could not afford to see the
psychiatrist to whom she originally was referred and was to
investigate other options. Dr. Egan stated in August 2006 that her
scheduled appointments with a psychologist "did not work out . . .
because they cancelled." Gross was, however, treated with anti-
depressants.
-37-
in March 2007, Gross saw Dr. Fred Coates, who joined the chorus of
doctors who diagnosed her with fibromyalgia and either RSD or CRPS.
Dr. Coates observed that she was "showing signs of severe pain
while seated," and further noted that her right arm hung "limply at
her side." He described her right hand as "red, slightly swollen,
cool to the touch and sweating." He also recommended psychiatric
or psychological counseling and treatment.
Meanwhile, in January 2007, Gross underwent a functional
capacity evaluation ("FCE") to determine her physical capabilities.
The physical therapist who performed the evaluation offered a
"[p]rimary" diagnosis of CRPS or RSD, and a "[s]econdary" diagnosis
of fibromyalgia. He reported swelling of her right hand, as well
as a "shiny" appearance, perspiration, and "increased temperature
to touch vs. the left." The report identifies a number of "key
limitations" in Gross's physical abilities, including lack of
functional use of her right arm, poor standing balance, inability
to perform sustained overhead activity, need for assistance or a
handrail to negotiate stairs, and inability to crouch, kneel, squat
or crawl. The document also lists numerous medications that Gross
reported using on a daily basis: Wellbutrin, Duragesic patches,
Klonipin, Tizanadine, Lortab, Ambien CR, Valtrex, Estrostep FE,
Senokot, Tylenol Rapid Release, Excedrin Tension Headache, and
Phaxyme. The FCE concludes that Gross
does not present at a functional level that
could maintain sustained work activity. Her
-38-
overall level of physical activity is well
below the sedentary level category based upon
the frequent position change requirement, lack
of bilateral activity ability, and short
length of time able to perform activity.
Unless there is a significant change in her
current level of activity, it is not known
what form of employment this client would be
able to obtain.
C. Surveillance Evidence
Sun Life supplemented the medical evidence by arranging
for nine days of video surveillance of Gross during November 2006
and in January and February 2007. The investigator's written
reports reveal little activity by Gross during most of the
surveillance days, with three exceptions. First, on November 9,
2006, shortly after dropping off a teenager believed to be her
stepdaughter at school, Gross was observed driving for about an
hour and a half to her mother's home, with a brief stop at a rest
area along the way. Second, during the evening of January 11,
2007, Gross drove a short distance with her stepdaughter to a
Kmart, where she was observed bending down toward lower-level
shelves, extending her arms above her head to retrieve items, and
kneeling to examine other items. Third, on February 21, after
receiving a phone call that her mother had been admitted to the
hospital with chest pain, Gross drove to a gas station, pumped gas
using her right hand, and then drove for two hours to the hospital,
-39-
with a brief stop halfway through the trip. About two hours later,
she left the hospital and drove home.23
The surveillance reports showed inconsistencies in
Gross's stamina and physical abilities. On multiple occasions, she
was seen limping, but also was twice described as "jogging" a few
steps. On November 7, for example, Gross left home with her
husband at 7:17 AM to vote at a local elementary school, returned
home at 7:34 AM, and then departed again with her stepdaughter at
8:21 AM for an apparent appointment at a nearby office building.
When they returned home at 9:27 AM, Gross appeared to be limping.
The investigator remained on the scene, but observed no further
activity before his departure at about 4 PM. Two days later, the
investigator reported that Gross "jogged down the sidewalk" to her
car before driving her stepdaughter to school.
D. The Independent Medical Examination ("IME")
On February 22, 2007, the last day of video surveillance
and the day after Gross had driven to the hospital to see her
mother, an IME was conducted at Sun Life's request by a
23
Sun Life states in its brief that Gross made the return trip
without stopping. Although that may be a fair inference from the
record, Gross correctly notes that the investigator did not
explicitly say that she did not stop. Despite stating that he
"followed [Gross] approximately the same distance back towards her
residence," he evidently lost sight of her at some point because,
when he arrived at her residence, her car was already parked and
she had entered her home.
-40-
neurologist, Dr. Rukmaiah Bhupalam.24 The investigator observed
Gross walk with a limp as she left home that morning for the
appointment and, when she emerged from the doctor's office more
than four hours later, she was seated in a wheelchair pushed by her
husband. Once they reached home, Gross's husband opened the car
door for her, though she stood up without assistance. The couple
embraced before walking arm-in-arm up the driveway toward the
house. About halfway to the front door, Gross's husband held on to
her right arm as she walked, with a slight limp, the remaining
distance.
In his initial report of the IME, dated March 19, Dr.
Bhupalam stated that Gross's husband had "to assist her to move
from [a] chair to the bed as she appeared to be in significant pain
and she could not use her right hand." Gross told Dr. Bhupalam
that "she is usually able to walk 6 hours after she changes her
Duragesic patch [pain medication delivered through the skin], and
24
This independent evaluation was recommended by Dr. James
Sarni, a Sun Life medical consultant who had reviewed the
information in Gross's chart. Dr. Sarni noted that
the documentation does not strongly support a diagnosis
of reflex sympathetic dystrophy or complex regional pain
syndrome. . . .
Therefore, it would be helpful if this patient were to be
evaluated by a neurologist who would have experience in
treating migraine headaches. Any neurologist should be
able to comment intelligently upon the right upper
extremity and whether or not they believe it is
consistent with complex regional pain syndrome or RSD and
what steps could be taken to both diagnose and treat it.
-41-
she can function better for approximately 10 to 12 hours after that
and again she goes downhill." The doctor stated that Gross's "main
difficulty is ambulating because of pain and also use of her right
hand." He diagnosed Gross with, inter alia, chronic fibromyalgia
and "probably complex regional pain syndrome," but speculated that
"emotional factors . . . could be contributing to her pain
symptomatology," and recommended that she be seen by a behavioral
specialist or mental health professional. In conclusion, Dr.
Bhupalam stated that Gross is "unable to return to [her] prior
occupation and is totally disabled even for sedentary work even on
a part time basis."
Immediately after receiving Dr. Bhupalam's report, Sun
Life sent him copies of the video surveillance. After viewing the
recordings, the physician changed his assessment:
[I]t does appear that she can function very
well without any difficulty and appears
neurologically normal even the day before my
examination. On the day of examination she
was limping even in the videotape however,
this appears to be a functional component.
Based on the observation in the video tape,
especially on the day before, and also to
previous videotapes in January and November, I
do feel that she can function quite well and
probably will be able to return to her
previous occupation as a manager in a multi
physician opthalmology and optometric office.
However, a re-evaluation might be beneficial.
It does appear that she can use both upper and
lower extremities quite well and her gait also
appears to be normal, and she does not appear
to be in any pain or discomfort in the video
recorded on February 21, 2007 just a day
before my evaluation in the office. Even on
-42-
the videos that were done in November and
January, it appears that she can function
quite well, based on my review of the video.
Following Dr. Bhupalam's examination, Sun Life obtained a paper
review of Gross's medical records from another medical consultant,
Dr. William Hall, who likewise noted that the surveillance videos
undermined Gross's subjective reports of pain and functional
limitations.
E. Sun Life's Benefits Decisions
In a seven-page letter dated April 23, 2007, Sun Life
notified Gross that it had denied her benefits claim because of
"insufficient objective evidence to substantiate" a disability that
precluded her from performing her duties at Pinnacle. The letter
cited to the surveillance evidence, which in Sun Life's view
demonstrated "a capacity for activity that far exceeds" the limits
described in Gross's claim forms. The insurer specifically
referred to Dr. Bhupalam's reports, and it quoted from Dr. Hall's
file review. Dr. Hall's evaluation highlighted the absence of
"[c]onsistent and abnormal objective physical and neurological
findings," other than the doctors' reports of swelling, temperature
variation, perspiration, and discoloration of her right arm. He
further noted that, while Gross's medical records "provisionally
support diagnosis of RSD right arm and hand," the surveillance
video "compellingly weighs against" that diagnosis and
corresponding activity restrictions.
-43-
Gross filed an appeal of Sun Life's decision, which she
supported with results of a fourth functional capacity evaluation
by Dr. Egan.25 In that November 2007 report, the doctor again
diagnosed CRPS in the right arm, fibromyalgia, severe migraines,
and chronic fatigue, as well as depression. She observed that
Gross's right arm was colder and discolored, "as is seen in complex
regional pain syndrome," and that Gross "can hardly raise her arm."
She further reported that Gross spends most of her day in bed or on
a recliner and that "[a]ctivity leads to worsening pain."
Predicting that Gross was "unlikely to improve," the doctor
summarized her conclusions as follows:
She has had symptoms for many years. No
medication or other modality has made her able
to function well enough to have a life at home
much less at work. With these diagnoses, she
is unlikely to get to the point she will be
able to work.
Dr. Egan stated that Gross was limited to sitting and
standing for no more than one hour per day, and that she could
neither push nor lift any weight. The physician also noted that
Gross's work capacity was further limited by the effects of four
prescription medications, which left her tired or with trouble
thinking, or both.
25
Gross submitted a forty-seven page letter to Sun Life in
December 2007, which, inter alia, reviewed evidence that she
previously had submitted and described the results of Dr. Egan's
most recent assessment.
-44-
Sun Life rejected the appeal on January 23, 2008. Its
letter of explanation relied heavily on a report from a third-party
medical consultant, who had performed a paper review of Gross's
medical file earlier that month. The physician, Dr. Alan Neuren,
noted "the marked dichotomy between [Gross's] reported appearance,
behavior, and findings when seen by healthcare providers . . .
compared with her appearance under surveillance," and asserted that
"[t]he only reasonable conclusion" to be drawn "is that she has
deliberately embellished her symptoms to her providers for
secondary gain." Invoking the multiple medical reports that had
questioned the medical support for, and thus the veracity of,
Gross's complaints, Sun Life stated that "[t]he severe restrictions
and limitations, as noted by Dr. Egan on . . . September 23, 2006,
are clearly not credible when viewed in light of Ms. Gross'
demonstrated functional capacity on the surveillance video." The
insurer thus found "no basis on which to conclude that Ms. Gross
would be unable to perform the Material and Substantial Duties of
her Own Occupation."
F. Discussion
Gross argues primarily that Sun Life gave unjustified
weight to the surveillance videotapes. She asserts that the
insurer wrongly depicted the activity seen during the surveillance
as inconsistent with the physical limitations determined by the
physicians and physical therapist who examined her, and she
-45-
emphasizes that the episodes highlighted by Sun Life constituted a
small percentage of the time she was observed. With respect to the
long-distance driving in particular, she objects to Sun Life's
failure to take into account -- and inform its medical consultants
about -- her mother's poor health and medical emergency. Sun Life,
meanwhile, insists that the surveillance videotapes provide
substantial evidence in support of its denial of Gross's claim, and
it highlights the absence of objective evidence in support of her
proffered diagnoses and limitations.
In considering these arguments, we initially put to one
side the video surveillance, considering its impact only after
examining the medical evidence.
1. Medical Analysis
We have no difficulty concluding that the medical
evidence in the record, if credited, is adequate to prove Gross's
entitlement to disability benefits. Her long history of migraines,
extreme fatigue, and widespread muscular pain is well documented,
and the progressive weakness and numbness affecting her right arm
and hand are also supported by numerous medical reports. Without
exception, the doctors who examined her viewed her symptoms to be
consistent with RSD, CRPS, fibromyalgia, or more than one of those
illnesses. Although many of Gross's physical complaints may not be
readily susceptible to objective confirmation, findings of chronic
pain may not automatically be dismissed by a benefits administrator
-46-
for lack of confirmable symptoms. See, e.g., Maher, 665 F.3d at
304 (Lipez, J., dissenting) ("Our court has emphasized before that
in dealing with hard-to-diagnose, pain-related conditions, it is
not reasonable to expect or require objective evidence supporting
the beneficiary's claimed diagnosis."); Cusson, 592 F.3d at 227(recognizing that "fibromyalgia is a disease that is diagnosed
primarily based on a patient's self-reported pain symptoms");
Denmark v. Liberty Life Assurance Co. of Bos., 481 F.3d 16, 37 (1st
Cir. 2007), vacated on other grounds, 566 F.3d 1 (1st Cir. 2009)
("We have previously found it unreasonable for an insurer to
require objective evidence to support a diagnosis of a condition
that is not subject to verification through laboratory testing.").
Importantly, however, the record here includes objective
evidence, as well as the recognition by Sun Life's own medical
consultant, Dr. Hall, that Gross's "musculoskeletal symptoms, as
presented by her, are credible to treating and consulting
physicians." Indeed, Dr. Hall wrote that the medical records he
had reviewed "support her reported subjective symptoms, and
provisionally support diagnosis of RSD right arm and hand." For
example, each of the medical professionals who examined Gross found
her right arm to be visibly abnormal in one or more ways,
including: reddened, blue or purplish, swollen, "profuse sweating,"
shiny, cool to the touch, or with "increased temperature to touch
vs. the left." Multiple doctors viewed these distortions as
-47-
symptomatic of RSD or CRPS.26 In addition, the physical therapist
who performed her FCE, Chris Kaczmarek, noted that the "[g]eneral
muscle tone of the right upper extremity and bilateral lower
extremities was . . . hypotonic."27
Moreover, not only did the examining doctors uniformly
perceive her complaints of pain and limited capacity to be
credible, but Kaczmarek also reported that, when undertaking tasks
for the FCE, Gross was cooperative and "willing to work to maximum
abilities in all test items." He further observed that Gross's
"perceived abilities . . . are consistent with client's functional
abilities objectively identified during the FCE." His assessment
that she "gave maximal effort on all test items" was based on his
observations of "predictable patterns of movement including
increased accessory muscle recruitment, counterbalancing and use of
momentum, and physiological responses such as increased heart
rate." These objective indicators of effort diminish the
possibility that Gross was deliberately "failing" the capacity test
and lend weight to Kaczmarek's report that Gross was "physically
26
The Mayo Clinic's list of indicators of CRPS, which is
defined as "an uncommon form of chronic pain that usually affects
an arm or leg," includes many of these qualities, including
swelling of the affected area, changes in skin temperature,
discoloration, and a shiny skin appearance. See Complex Regional
Pain Syndrome, MayoClinic.com, www.mayoclinic.com/health/complex-
regional-pain-syndrome/DS00265 (last visited Aug. 7, 2013).
27
"Hypotonic," in the physiological sense, is defined as
"[h]aving less than the normal tone." Random House Dictionary of
the English Language (2d ed. 1987) 945.
-48-
unable to perform" a range of tasks. Medical notes from various
doctors show that her weight dropped by about thirty pounds between
October 2005 and March 2007.
Gross's good faith in describing her limitations is also
reinforced by letters from her co-workers and employers -- not
mentioned in either of Sun Life's denial letters -- describing her
persistence in continuing to work despite obvious pain and
compromised physical capacity. Indeed, contrary to Sun Life's
assertion in its initial denial letter that Gross chose to stop
working,28 Pinnacle's Paul Wedge told the insurer that "[w]e stopped
her from working when we received her doctor orders that she was
not fit to work." In a "To Whom It May Concern Letter" written in
February 2007, the general manager of the optometry practice where
Gross worked described the "steady decline in the use of her arms
and legs for nearly nine months."29 Simply put, this does not seem
28
The pertinent paragraph in the denial letter was as follows:
Therefore, it does not appear that you would be eligible
for Total Disability benefits, Partial Disability
benefits or benefits under the rider attached to your
policy based on our thorough review of all of the
medical, occupational and other information in the claim
file. Rather, any loss of income appears to be as a
result of a choice to stop working for your Employer and
not as a result of any change in restrictions and
limitations that would prevent you from performing a
light occupation.
29
Gross's boss, Mike Feeney, elaborated in his letter as
follows:
Countless times I spoke with Diahann about the need to
-49-
to be the history of a person seeking to exaggerate her illnesses
to avoid working and obtain disability pay. Cf. Gannon v. Metro.
Life Ins. Co., 360 F.3d 211, 213 (1st Cir. 2004) (observing that
claimant's performance during FCE was inconsistent and she "did not
put forth her maximum effort during the tests").
Of course, the medical evidence is not entirely favorable
to Gross. All of her diagnostic tests, including a bone scan that
is sometimes used to diagnose RSD, were negative, and Dr. Bhupalam
noted that "there is no definitive evidence" for that syndrome.
Dr. Hall noted that neither Gross's "symptoms nor varying right arm
or hand findings explained by appropriate MRI, CT, radioisotope or
electrophysiologic findings or by hematologic, metabolic,
endocrinologic or renal testing." Dr. Coates pointed, inter alia,
to Gross's report that her Fentanyl pain-relief patch inexplicably
take time off, to take care of herself before the job
responsibilities. Stubborn is not a strong enough term
each time she told me to mind my own business. She
wasn't going to give in until she absolutely had to. She
never lacked in doing a great job in the office. It
wasn't until early May of 2006 when I witnessed her fall
in the office, that I felt I could do something to try
and help. That day after falling, she couldn't use her
legs and get up. Dr. Baier (staff Optometrist) and
myself assisted her up into a chair, and I refused to
take no for an answer. The two of us drove her home,
helping her into her home. I did not allow her back into
the office until she obtained a doctor's note releasing
her for work. She gave me that on May 10, 2006 and
returned.
Another letter, from Dr. Baier, noted that, in August 2006, "Ms.
Gross finally succumbed to the advice of her physicians, family,
friends and co-workers and terminated her employment."
-50-
wore off "in what would normally be the middle of the dosing." The
doctors who performed physical examinations speculated that the
severity of her symptoms might be attributable in part to
psychological factors and recommended that she obtain counseling or
behavioral treatment. See, e.g., App. at 416 (Dr. Egan, in
September 2006, stating that she believes "a lot of the problem is
depression" and that Gross "needs to see a psychiatrist"); id. at
394 (Dr. Coates in March 2007); id. at 448 (Dr. Witt); id. at 459
(Dr. Bhupalam). She did not do so.
Nonetheless, even with negative tests and some puzzlement
over the extent of her reported pain, doctors continued to diagnose
her with RSD and fibromyalgia. The negative bone scan --
emphasized by Sun Life -- is not decisive. A CRPS fact sheet
prepared by the National Institute of Neurological Disorders and
Stroke ("NINDS"), a 2007 version of which is contained in the
record, reported that "CRPS is diagnosed primarily through
observation of the signs and symptoms" and stated that "there is no
specific diagnostic test for CRPS." R. 03359. The NINDS fact
sheet further explained:
[T]he most important role for testing is to
help rule out other conditions. Some
clinicians apply a stimulus (such as touch,
pinprick, heat, or cold) to the area to see if
it causes pain. Doctors may also use triple-
phase bone scans to identify changes in the
bone and in blood circulation.
-51-
Id.30 The repeated referrals to counseling also reflect common
practice in treating CRPS.31
In sum, the sustained and progressive nature of Gross's
complaints, their facial credibility to the medical practitioners
who personally examined her, and the objective symptoms consistent
with RSD -- given the absence of any method for reaching a
conclusive diagnosis -- support a finding of total disability. Cf.
Maher, 665 F.3d at 293 n.4 (observing that the claimant arguably
would be unable "to fool so many doctors over so many years if
there were little or no serious pain"). The narrative changes,
however, with the addition of the surveillance evidence.
2. Surveillance Videotapes
The immediate about-face of Dr. Bhupalam, an independent
medical consultant whose April 2007 report was the final medical
30
The current version of the fact sheet appears at
http://www.ninds.nih.gov/disorders/reflex_sympathetic_dystrophy/d
etail_reflex_sympathetic_dystrophy.htm#241003282 ("NINDS Fact
Sheet") (last visited Aug. 7, 2013).
31
The current NINDS fact sheet lists psychotherapy as one form
of treatment for relieving the symptoms of CRPS. It states:
CRPS and other painful and disabling conditions often are
associated with profound psychological symptoms for
affected individuals and their families. People with
CRPS may develop depression, anxiety, or post-traumatic
stress disorder, all of which heighten the perception of
pain and make rehabilitation efforts more difficult.
Treating these secondary conditions is important for
helping people cope and recover from CRPS.
NINDS Fact Sheet, supra.
-52-
evaluation before the initial rejection of Gross's claim, reveals
the impact of the surveillance evidence on Sun Life's decision to
deny benefits. Although Dr. Bhupalam's examination of Gross and
her medical history had led him to conclude that Gross "is totally
disabled even for sedentary work even on a part time basis," the
videotapes led him to the opposite conclusion: "I do feel that she
can function quite well and probably will be able to return to her
previous occupation as a manager in a multi physician ophthalmology
and optometric office."
Dr. Neuren, whose paper review of Gross's file was the
final medical assessment before Sun Life's second rejection of her
claim, similarly placed substantial weight on the videotapes. He
noted "the marked dichotomy between her reported appearance,
behavior, and findings when seen by healthcare providers (her own
treating physicians, along with Dr. Bhupalam and therapist
Kaczmarek) compared with her appearance under surveillance."
Addressing the one objectively manifested symptom noted by all
examiners, Dr. Neuren stated that "[t]he reported sweating,
redness, etc. can be self induced and may have been in this
instance." Dr. Neuren opined that the inconsistencies between
Gross's "observed activities while under surveillance and her
appearance in the physicians' offices are . . . indicative of
symptom embellishment," and he concluded that "[i]t is obvious that
there has been no loss of function."
-53-
We have long recognized that even limited surveillance is
a useful way to check the credibility of individuals who claim
disability based on symptoms that are difficult to evaluate through
objective tests. See, e.g., Cusson, 592 F.3d at 229 ("We have
permitted ERISA plan administrators to use this type of sporadic
evidence in the past."); Denmark, 481 F.3d at 38 (recognizing that
insurer could properly use an investigator's report and photographs
in making the benefits determination); Tsoulas v. Liberty Life
Assurance Co., 454 F.3d 69, 80 (1st Cir. 2006) (approving insurer's
reliance on both surveillance evidence and medical advice). Where
the activities captured on video directly contradict a claimant's
asserted limitations, and there is no definitive evidence of a
disabling condition, the surveillance alone could provide adequate
support for a denial of benefits. See, e.g., Cusson, 592 F.3d at
229-30 (noting that the insurer "reached its decision not because
it failed to consider the evidence in [claimant's] favor, but
because it determined that the surveillance results undermined the
credibility of important portions of that evidence"); Tsoulas, 454
F.3d at 74-75 (affirming denial of benefits where claimant stated,
inter alia, that she could not walk or stand without assistance and
spent fourteen to eighteen hours in bed each day and surveillance
showed her walking without assistance and "traveling to a hotel, a
parking garage, a restaurant, a comedy club, a night club, and back
to the hotel on a single day").
-54-
Sun Life maintains that this is such a case. On this
record, under a de novo standard of review, we cannot agree. In
our view, the most significant incompatibilities between Gross's
reports and her observed functional capacity arise in three
episodes recorded by the investigator: the two lengthy drives to
see her mother, and the evening shopping excursion to Kmart in
which Gross was seen in a short span of time reaching over her
head, bending, and kneeling, with "no signs of guarded motion."
Without these more ambitious activities, the remainder of the
observations cited by Sun Life -- Gross's jogging a few steps on
two occasions, driving short distances for errands or appointments,
and walking without limping or other signs of pain -- could be
dismissed as day-to-day variations in physical ability related,
inter alia, to fluctuations in her level of fatigue and the timing
of pain medications. Indeed, even the ninety-minute drive to her
mother's home on the morning of November 9, 2006 was within the
limitations specified by Dr. Egan, who reported that Gross could
not sit or drive for more than that amount of time. Notably, Gross
stopped at a rest area one hour into the trip, and it is not known
when she drove home. The investigator left while Gross was still
at her mother's home, and no surveillance took place the next day.
The trip to Kmart on January 11, which spanned an hour
door-to-door in the early evening, is more at odds with Gross's
reported limitations. Though accompanied by her stepdaughter,
-55-
Gross was seen reaching for an item above her head, bending down to
the lower level of the shelves, and kneeling to examine other
items. Once at home, Gross carried two plastic bags as well as her
purse from the car to the house. All of these movements occurred
with no reported hesitancy or instability. According to physical
therapist Kaczmarek, however, Gross reported a week later that "she
tolerates short bouts of activity for less than a few minutes," and
that she has "difficulty walking with frequent falls." Based on
his testing, Kaczmarek concluded that Gross had "[p]oor standing
balance," "[u]nstable gait pattern requiring assistance of device
or hand held assistance," and "[i]nability to get into and out of
positions such as crouching, kneeling, squatting, crawling."
The 120-mile round-trip drive on February 21 from her
home to the medical center in Ashland, Kentucky, is particularly
troubling. Before setting off on the trip, Gross pumped gas,
"us[ing] her right hand to hold the gas nozzle in her gas tank."
She then drove for an hour before stopping at a rest area, where
she was observed "walk[ing] quickly and show[ing] no signs of
guarded motion." When she exited the restroom, she was seen
walking quickly to her vehicle and taking two jogging steps before
entering the car. She drove for another hour to the medical
center, arriving at about 1:30 PM, and two hours later made the
return trip home -- possibly without a rest stop along the way.
Gross's activity on this day was singled out by Dr. Bhupalam in his
-56-
revised assessment of her ability to work. Her manipulation of the
gas pump is especially noteworthy given her reports of pain and
numbness and "little functional usage" of her right hand.
Dr. Bhupalam also noted, however, that "a re-evaluation
might be beneficial" -- an observation we understand to suggest
that the video surveillance, while damaging to Gross, did not
necessarily undermine her claim. Indeed, the record does not show
that either Dr. Bhupalam or Dr. Neuren knew that Gross's travel to
the medical center in Ashland was in response to a phone call
reporting that her mother had experienced a medical emergency,
possibly a heart attack. Dr. Neuren, in fact, commented in his
report that "[i]t is unclear who the claimant was seeing [at the
medical building in Ashland] or why she would need to travel so far
to be seen." We consider knowledge of the reason for Gross's
unusual travel that day essential for any reliable appraisal of her
medical condition. Individuals often rise to the occasion in the
event of an emergency. Hence, on the current record, we are unable
to judge whether Gross's condition and physical limitations, as she
reports them, are necessarily inconsistent with her activities that
day. In context, the extra driving, the hurried movements, the
pumping of gas may have been at the far edge of what she could
manage with the aid of medication in the face of a family crisis.32
32
Gross reported to two different doctors in March 2007 that
she retained at least some use of her right arm. She told Dr.
Coates that she could lift her arm slightly after changing her pain
-57-
In addition, the pain and functional limitations observed by Dr.
Bhupalam during his examination of Gross the next day might
possibly have been the price she paid for those actions, supporting
her claim that she could not handle such activities on a daily
basis. It is also noteworthy that on February 23, two days after
the trip and the day after the doctor's visit, the investigator
observed no activity by Gross.
Sun Life's handling of the inconsistencies between the
medical reports and the video surveillance -- specifically its
apparent failure to provide important context to Dr. Bhupalam and
its internal reviewers -- raises a legitimate question about
whether Sun Life has made a bona fide effort to determine Gross's
capabilities. On de novo review, we have no choice but to remand.
As the record now stands, we are unable to resolve the debate
between the parties on the significance of the surveillance
evidence. Although the medical evidence in Gross's favor is
impressive, it is not monolithic and the surveillance results
diminish its force. The capabilities documented on video,
particularly on January 11 and February 21, require us to look more
skeptically at Gross's self-reported complaints of constant pain,
fatigue, and limited function. Yet, we are unwilling to disregard
the evidence in her favor without any contextualized assessment of
medication patch, and she told Dr. Bhupalam that she felt the
"right upper extremity" is "almost useless almost 95% of the time."
-58-
the most significant departures from her professed limitations.
See Marantz v. Permanente Med. Grp, Inc. Long Term Disability Plan,
687 F.3d 320, 329 (7th Cir. 2012) ("[T]he weight given to
surveillance evidence of this type depends both on the amount and
nature of the activity observed."); Maher, 665 F.3d at 295 (same).
We recognize that Gross bears the burden to prove
disability. Moreover, as Sun Life pointed out in rejecting her
appeal, she did not submit a statement from her own doctor refuting
Sun Life's assertion in its original denial letter that the
surveillance "show[ed] a capacity for activity that far exceeds"
the limitations she claims. This omission highlights what we
regard as the open question: the effect that the surveillance
evidence, when viewed in context, may have on other evidence
indicating disability.33
Hence, as in Maher, we cannot "say with assurance that
[Sun Life] denied [Gross] benefits to which she was entitled," but
we also have doubts about Sun Life's justification for its
decision. 665 F.3d at 295. We will remand this case so that the
parties can further address both the significance of the video
evidence in assessing Gross's limitations and the veracity of her
self-reported and observed symptoms, particularly concerning the
33
Relatedly, we note that Dr. Neuren's assertion that the
physical abnormalities affecting Gross's right arm could have been
self-induced is unexplained and thus provides dubious support for
his conclusion that Gross likely exaggerated her symptoms. This
gap, too, can be explored in future proceedings.
-59-
condition of her right arm. Cf., e.g., Buffonge, 426 F.3d at 22(ordering remand to the claims administrator for a new review);
Quinn v. Blue Cross & Blue Shield Ass'n, 161 F.3d 472, 477 (7th
Cir. 1998).
V.
To recap, we hold that Pinnacle's disability policy was
a component of a benefits plan governed by ERISA and that the
applicable standard of review for benefits claims under the plan is
de novo. Applying that standard to the evidence currently in the
record, we cannot determine whether Sun Life justifiably rejected
Gross's disability claim on the basis of the surveillance video and
the likelihood of symptom embellishment, particularly relating to
her right arm.
We therefore vacate the judgment appealed from and remand
the case to the district court, with directions that it remand the
matter to Sun Life for proceedings consistent with this opinion.
The insurer, as plan administrator, will have the opportunity to
address the concerns that we have identified, i.e., the
significance of the video evidence in assessing Gross's limitations
and the veracity of her self-reported and observed symptoms.
Gross, in turn, must be given the opportunity to respond. Before
the district court enters its remand order, it should hear from the
parties on whether to allow the record to be supplemented beyond
those specific inquiries. We leave to the district court's
-60-
discretion whether to retain jurisdiction while the supplemental
administrative process goes forward. We take no view as to the
outcome of the further proceedings to be held on remand.
So ordered. Each party to bear its own costs.
-61-