Terri Truitt v. Unum Life Ins Co. of America , 729 F.3d 497 ( 2013 )


Menu:
  •      Case: 12-50142   Document: 00512365109     Page: 1    Date Filed: 09/06/2013
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    September 6, 2013
    No. 12-50142                    Lyle W. Cayce
    Clerk
    TERRI TRUITT, also known as Truitt Terri Griffith,
    Plaintiff - Appellee
    v.
    UNUM LIFE INSURANCE COMPANY OF AMERICA,
    Defendant - Appellant
    Appeal from the United States District Court
    for the Western District of Texas
    Before DAVIS, GRAVES and HIGGINSON, Circuit Judges.
    HIGGINSON, Circuit Judge:
    Plaintiff-Appellee Terri Truitt claimed that her lower-back, leg, and foot
    pain prevented her from working as an attorney. Defendant-Appellant Unum
    Life Insurance Company of America (“Unum”) awarded Truitt long-term
    disability benefits. Years later, a former companion of Truitt provided Unum
    with emails indicating that, while claiming to be disabled, Truitt engaged in
    activities, such as traveling abroad, that were inconsistent with her asserted
    disability. Based, in part, on these emails, Unum denied Truitt’s claims, and
    sought more than $1 million in reimbursements for benefits paid.
    Case: 12-50142     Document: 00512365109      Page: 2    Date Filed: 09/06/2013
    No. 12-50142
    The district court found that there was substantial evidence to support
    Unum’s denial of benefits. Nonetheless, the district court held, among other
    things, that the denial was procedurally unreasonable, and therefore an abuse
    of discretion, because Unum did not fulfill its duty to “consider the source” of the
    emails. In evaluating whether a plan administrator wrongfully has denied
    benefits under the Employee Retirement Income Security Act (“ERISA”),
    however, this court never has imposed a duty to investigate the source of
    evidence. Instead, the burden is on the claimant to discredit evidence relied on
    by the plan administrator. Because we find that Unum did not act arbitrarily
    and capriciously, we REVERSE.
    I. FACTS AND PROCEEDINGS
    Truitt worked as a partner in the Houston office of the Mayer Brown law
    firm. Her expertise was international oil and gas litigation. In that capacity,
    she traveled abroad, to countries including Sweden and Turkmenistan, for
    arbitrations.   “Lifting and handling boxes in excess of 25 pounds” was a
    “frequent requirement” of these trips.
    Truitt claimed that she first experienced numbness and pain in her lower
    back, left leg, and left foot in 1999. Citing her continued pain and lack of
    mobility, Truitt stopped working in 2002.        She also applied for long-term
    disability benefits.
    The benefits plan (the “Plan”), administered by Unum, defined “disability”
    to mean that, “because of injury or sickness”:
    1.    the insured cannot perform each of the material duties of his
    regular occupation; or
    2.    the insured, while unable to perform all of the material duties
    of his regular occupation on a full-time basis, is:
    a.     performing at least one of the material duties of his
    regular occupation or another occupation on a part-time
    or full-time basis; and
    2
    Case: 12-50142     Document: 00512365109     Page: 3   Date Filed: 09/06/2013
    No. 12-50142
    b.     earning currently at least 20% less per month than his
    indexed pre-disability earnings due to the same injury
    or sickness.
    Note: For attorneys, “regular occupation” means the specialty in the
    practice of the law which the insured was practicing just prior to the
    date disability started.
    Finding that Truitt was disabled under the terms of the Plan, Unum
    awarded her benefits in a May 2003 letter. However, Unum advised Truitt that
    it required updated medical information to “clarify [her] current restrictions and
    limitations.” Unum also notified Truitt that it reserved the right to discontinue
    benefits, and to seek repayment of benefits paid, if, after receiving the updated
    information, it determined that she was no longer disabled.
    Unum’s continued review of Truitt’s claim produced some evidence that
    supported Truitt’s asserted disability. For example, neurologist Igor Cherches
    found: that Truitt had “constant intractable pain”; that she was unable to stand
    or walk for more than thirty minutes; and that she could not lift more than ten
    pounds. Internist Karen Hoermann found that Truitt was “unable to carry legal
    files required for employment,” and that “pain prevent[ed]” her from “remaining
    seated for” more than one hour.
    This continuing review also produced evidence inconsistent with Truitt’s
    disability. For example, surveillance videos showed Truitt walking, driving, and
    bending down, and lifting and carrying boxes, bags, coolers, pumpkins, and a
    dog. After conducting an Independent Medical Examination (“IME”), orthopedic
    surgeon Michael Graham found that “it is clear that [Truitt] has little or no
    physical impairment.”
    Unum explained that, “[d]espite the inconsistencies between Truitt’s
    stated symptoms and observed activities, [it] continued to pay benefits.” Then,
    on March 1, 2006, occupational therapist Steven Clark conducted a functional
    capacity evaluation (“FCE”) of Truitt. Clark found: that Truitt was “inconsistent
    3
    Case: 12-50142     Document: 00512365109       Page: 4   Date Filed: 09/06/2013
    No. 12-50142
    with her gait, lumbar range of motion, and posture”; that Truitt “was observed
    to be able to sit for up to 60 minutes at a time and stand for up to 50 minutes at
    a time”; and that Truitt was also “observed to be able to sit for approximately 2
    hours of the total time she was observed in the clinic.” Clark observed that,
    while he could not offer a recommendation because of Truitt’s “self[-]limiting
    behaviors and inconsistencies in abilities,” Truitt’s condition improved when she
    was “unaware of observation.”
    Truitt contested Clark’s findings. She wrote in an April 24, 2006 letter
    that Clark had “inflicted . . . intense pain” on her, and that, “[a]s a direct result
    of that exam, I since have been confined to bed rest for approximately 15 hours
    a day.” However, Unum conducted additional surveillance from April 6-8 that
    showed Truitt: “removing items from the back seat of [her] Mercedes”;
    “scrubbing the seats”; driving neighbors; and unloading items from her vehicle.
    Given this apparent inconsistency, Unum scheduled another IME.
    Physician Aaron Levine examined Truitt, reviewed her medical records, and
    watched her surveillance videos.       Levine concluded that, although Truitt
    suffered from disc degeneration, her scores on physical tests showed a “severe
    perception of physical disability in excess of her physical findings.” He added
    that, although sedentary work might “accentuate her symptoms,” there was
    “nothing objective in my examination to prevent her from doing sedentary work.”
    In a twelve-page letter dated August 21, 2006, Unum notified Truitt that
    it was terminating her benefits. Unum explained that, based on its review of
    Truitt’s medical records and the surveillance videos, there was “no objective
    information that supports [Truitt’s] inability to perform [her] occupational
    demands as a trial attorney.” Unum added that it believed Truitt could work as
    a trial attorney because she could “sit[ ] on a frequent to constant basis or on a
    prolonged nature” and “stand[ ] and walk[ ] for brief periods of time,” and
    4
    Case: 12-50142      Document: 00512365109    Page: 5   Date Filed: 09/06/2013
    No. 12-50142
    because “[i]t would be reasonable that accommodations c[ould] be made” for her
    lifting restrictions.
    Truitt filed an administrative appeal. She argued, among other things,
    that Unum did not fully consider the specific demands of her job, in particular
    her extensive business travel.
    Vocational specialist Richard Byard reviewed Truitt’s file. He found that
    Truitt’s “occupation [did] not require repetitive bending, climbing, stooping or
    kneeling motions.” He nonetheless concluded that the “physical demands” of
    Truitt’s job “would exceed [her] level of work capacity” because the “business[-
    ]related travel demands of her occupation,” such as “lengthy flights,” were
    “incompatible” with the “requirement that she ‘be allowed to change posture as
    needed, likely 2-3 times per hour.’”
    Based largely on Byard’s findings, Unum notified Truitt in a July 2007
    letter that it was reinstating her benefits. Unum again advised Truitt that she
    would need to provide “periodic updates of her medical status to determine if she
    remains eligible for continued benefits under the applicable policy provisions.”
    Around the same time that Truitt’s benefits were reinstated, a man
    identifying himself as Andrew Mark Thomas called Unum. Thomas said: that
    he had been in a personal relationship with Truitt for “a number of years”; that
    Truitt had him “locked up” and deported to the United Kingdom; that, as a
    result, he wanted “to see the b**** locked up”; and that he had photos, travel
    itineraries, and other documents that showed that Truitt was not totally
    disabled. Thomas sent Unum a follow-up email asking to be paid six times “the
    current monthly payments made to” Truitt in exchange for providing “complete
    evidence that [she] is obtaining monthly (disability) payments under false
    preten[s]es.” He warned: “This is a one[-]time offer, and no further thought will
    be given if you decide to decline.”
    5
    Case: 12-50142       Document: 00512365109         Page: 6    Date Filed: 09/06/2013
    No. 12-50142
    Unum responded that it “does not pay for fraud[-]related information,” but
    that Thomas was “free to call” if he was willing “to provide this information
    without compensation.”
    Thomas proceeded to provide, without compensation, some emails
    purportedly sent by Truitt. Unum asked Thomas if there were “any additional
    emails/information available which might shed additional light regarding this
    case?” Responding that “this is personal to me,” Thomas provided Unum with
    additional emails.1 In total, Thomas provided more than 600 pages of emails,
    spanning March 2005 to July 2007.
    The emails revealed that, while Truitt claimed to be disabled, she
    apparently engaged in activities that were inconsistent with her asserted
    limitations.     For example, the emails—which included flight and hotel
    itineraries, and eTickets—indicated that Truitt flew to: Amarillo, Texas;
    Oklahoma City; New York City; Akumal, Mexico; Cancun, Mexico; Jamaica;
    Guatemala; Venezuela; England; Ireland; France; and Italy:
    •       March 15, 2005: Truitt writes that she is “here in . . . NYC.”
    In a later email, she references “hav[ing] been in NYC.”
    •       April 6, 2005: Truitt writes: that she intends to be in Russia
    in October; that she “already paid for a trip to Ireland”; that
    she was “thinking of doing a road tour” of Ireland; and that
    she plans to return to Akumal. She later receives an itinerary
    listing her as flying to Ireland.
    •       April 12, 2005: Truitt writes to an employee at a Guatemala
    hotel that she “bid on and won . . . a three night stay” at the
    hotel, and that she would like to “extend [her] stay for a
    1
    Thomas also offered to “sign an affidavit and give sworn evidence to a court if
    required.” Unum responded that “[o]nce we have received and reviewed this documentation,
    we would create an affidavit for you to review and sign regarding this material.” What
    happened next is unclear, but it appears that Thomas refused to provide an affidavit. Truitt
    swore, in a July 2011 affidavit, that she received a May 2011 email from Thomas in which he
    wrote: “I haven’t actually given a signed statement or any more information to UNUM just yet,
    but they keep asking me. [Unum] has phoned & mailed me a couple of times, I’ve not
    responded to his requests yet.” (Emphasis added.)
    6
    Case: 12-50142    Document: 00512365109       Page: 7   Date Filed: 09/06/2013
    No. 12-50142
    longer period.” She later receives a reservation listing her as
    flying to Guatemala.
    •     July 24, 2005: Truitt writes that she is “scheduled to do some
    heavy[-]duty traveling Aug. through Dec. out of the country,
    mostly.”
    •     September 9, 2005: Truitt forwards an itinerary listing her
    as flying to Oklahoma City. She also mentions that she has
    “rented a car in Okla City.”
    •     September 23, 2005: Truitt writes: “I got on your same
    flights from Dallas to Rome . . . and have a seat next to yall
    for the Dallas to London leg of the trip. I will stay after you all
    leave Rome, and I will travel in France, etc. for a few weeks.”
    She also forwards a flight itinerary listing her as traveling to
    Rome.
    •     September 24, 2005: Truitt writes that she has been in “6
    different airports . . . in the last 48 hours.”
    •     September 28, 2005: Truitt forwards an itinerary listing her
    as flying from Rome to Paris. She later forwards hotel
    reservations listing her as staying in France and Italy.
    •     January 11, 2006: Truitt books a hotel room in Jamaica.
    •     May 31, 2006: Truitt forwards an eTicket listing her as flying
    to Guatemala.
    •     June 12, 2006: Truitt forwards an itinerary listing her as
    flying from Rome to Paris.
    •     June 16, 2006: Truitt forwards an itinerary listing her as
    flying round trip from San Antonio to London.
    •     August 31, 2006: Truitt forwards an itinerary listing her as
    flying to Amarillo.
    •     December 23, 2006: Truitt forwards an itinerary listing her
    as flying to Cancun.
    •     February 24, 2007: Truitt writes that she is “going to be
    traveling lots beginning mid[-]April to mid[-]Sept this year.”
    •     April 10, 2007: Truitt writes that she will be in Akumal, and
    that she is “thinking of flying straight from Cancun to
    Minneapolis.”
    •     May 11, 2007: Truitt forwards an eTicket listing her as flying
    to England.
    •     May 18, 2007: Truitt forwards an email discussing a four-
    week hotel reservation in Akumal.
    •     May 22, 2007: Truitt forwards an itinerary listing her as
    flying to Venezuela.
    7
    Case: 12-50142    Document: 00512365109     Page: 8    Date Filed: 09/06/2013
    No. 12-50142
    The emails indicated that Truitt engaged in, or planned to engage in,
    activities that appear to be physically demanding:
    •     April 4, 2005: Truitt writes that she is dancing on her deck.
    •     May 6, 2005: Truitt writes that she’s been “out working and
    riding,” and that “[i]t’s loads of work to keep up with 2 acres
    by myself, much less this house.”
    •     October 18, 2005: Truitt writes that she’s “[b]een busting a**
    cleaning both my house and Julie’s next door.”
    •     June 3, 2006: Truitt writes that she is in Guatemala, and
    that she traveled in “[p]lanes, a van on the most winding,
    curving mountainous 2 lane road for 3 hours, then a boat ride
    across Lake Atitlan in the clouds and lightning! Good thing
    I’m a seasoned traveler!”
    •     June 11, 2006: Truitt writes: “I personally picked up 88
    gallons of trash just on my property alone each day of the
    Memorial Day weekend.”
    •     March 26, 2007: Truitt writes that, while in Europe, she and
    Thomas will be driving for two days to reach Italy.
    •     May 13, 2007: Truitt writes: “[W]e are all on our way to . . .
    the farm to shoot guns[.]”
    •     May 19, 2007: Truitt writes: “Had to clean [her house] for 2
    days, total of about 14 hours, still didn’t get it all done and
    broke my . . . back doing it.”
    •     May 23, 2007: After expressing interest in sailing to an
    island off the coast of Venezuela, Truitt writes: “[W]e are
    ready to sail when you are!”
    •     June 28, 2007: Truitt writes that she is on an island off the
    coast of Venezuela, and “would like to do” a “fishing trip with
    snorkeling included.”
    The emails suggested that Truitt engaged in legal work:
    •     July 24, 2005: Truitt writes that she “ha[s] a hearing [she is]
    prepping for in the am.”
    •     January 2, 2006: Truitt requests a meeting to discuss:
    “discovery issues”; “arbitration prep and strategy”; “fee
    arrangement”; “other items on case”; and “tasks for [Truitt] to
    assist with on the case.” Truitt adds that she is “planning a
    European trip,” but that, “[d]epending on the case, which will
    take top priority for me through the final hearing, I will fly
    back to work on it with you.”
    8
    Case: 12-50142       Document: 00512365109         Page: 9     Date Filed: 09/06/2013
    No. 12-50142
    •      April 5, 2006: Truitt writes that she “missed [a] board
    meeting” because she is “swamped working on a case about to
    go to mediation and trial.”
    •      May 12, 2006: Truitt writes that she is “in trial this coming
    week in Houston.”
    •      May 25, 2006: Truitt writes: “We finally finished our
    trial/arbitration last week after 4 years of toil and ordeal
    going after Prudential and Wachovia and their broker for
    stealing my Grandad’s life savings in a Ponzi Scheme. . . . WE
    WON!”
    •      October 27, 2006: Truitt writes that she is “working on
    recreating [her] law practice . . . and focusing on mediation
    rather than litigation.”
    •      May 25, 2008: Truitt writes: “After this Unum drama is over,
    I am hoping to have a part[-]time mediation practice in the
    San Antonio area[.]”2
    The emails also implied that Truitt knowingly was misleading Unum:
    •      October 11, 2005: Truitt writes: “Fell today on the rainy
    steps . . . and banged myself up really good on both knees, one
    elbow, both wrists and right eye . . . and lips. I look like
    someone beat the s*** out of me. . . . The good news is that I
    am very sore, so that should help with tomorrow’s exam.”
    •      April 21, 2007: In response to an email from her attorney
    warning her to “be on the guard that [Unum] ha[s] used
    private eyes in the past and will probably still be using them,”
    Truitt writes: “It looks like I have to stay put till Unum has
    made its determination.”
    •      April 22, 2007: Truitt writes: “I hope to get a lot done. Trying
    to motivate myself, but must remember the cameras may be
    watching.”
    •      April 23, 2007: Truitt writes: “Let me know if you need me to
    bring anything you may need or may have forgotten when I
    2
    After initiating her lawsuit against Unum, Truitt explained in an affidavit that many
    of these emails reference a case to recover money stolen from her grandfather, and that,
    although she “attend[ed] the mediation and arbitration hearing,” she “was not an attorney of
    record.” Although “[w]e limit our review of the interpretation of a benefits plan under ERISA
    to the administrative record,” LifeCare Mgmt. Servs. LLC v. Ins. Mgmt. Adm’rs Inc., 
    703 F.3d 835
    , 841 (5th Cir. 2013), we note, as detailed below, that we do not rely on the emails
    suggesting that Truitt engaged in legal work to support our finding that the plan
    administrator properly terminated her benefits.
    9
    Case: 12-50142     Document: 00512365109     Page: 10   Date Filed: 09/06/2013
    No. 12-50142
    am finally able to come down [to Venezuela]. I’m pissed Unum
    is controlling my life once more.”
    •    April 24, 2007: Truitt writes: “I am hoping Unum will have
    made some sort of determination so I can come see my honey
    in [Venezuela].”
    •    May 8, 2007: Truitt wrote to her attorney: “I had planned to
    go on a family vacation out of the country, but I certainly do
    not want to jeopardize our claim. What are your thoughts
    about this?” Her attorney responded: “You need to continue
    living your life.”
    In a March 2009 letter, Unum wrote: “It has come to our attention that
    [Truitt] has been engaging in the practice of law and that she has been traveling
    extensively by airplane internationally.” As a result, Unum explained, it was
    suspending Truitt’s benefits pending an investigation into her disability status.
    Unum added that, if Truitt “ha[d] additional information to support her request
    for disability,” it would “be happy to reconsider her claim.”
    Truitt sent Unum a three-page affidavit. Truitt recounted how she had
    been assaulted by Thomas. She then stated: that Thomas was “a computer and
    hacker expert”; that he “copied onto his laptop virtually all of the data from my
    personal computer”; and that his “laptop also has computer hacking programs
    and communications stating that Mr. Thomas was planning to ‘grass’ me up to
    UNUM and steal money from me.” Truitt characterized an email purportedly
    from Thomas—in which he threatened to tell Unum that he had “detailed
    knowledge & evidence of a long[-]term fraud being commi[t]ted by a[n] insured
    client of Unum”—as “threatening to send false information to UNUM.” She also
    asserted that “[n]one of the statements Mr. Thomas threatened to make to
    UNUM are true.”
    Along with the affidavit, Truitt sent Unum documents confirming that
    Thomas pled guilty to assaulting Truitt by strangling her during a November
    2007 camping trip. She also sent medical records, tax returns, and relevant case
    law.
    10
    Case: 12-50142     Document: 00512365109      Page: 11   Date Filed: 09/06/2013
    No. 12-50142
    Unum physician Suzanne Benson reviewed Truitt’s updated file, which
    included these additional documents. Benson found that the “file information
    did not support clinically significant structural insufficiency at the knee or
    spine.” Benson concluded: that the emails “describe claimant activity in excess
    of what she reported at the FCE and what [a]ttending [p]hysicians report she
    can do”; that “[t]ravel described in claimant e-mails was consistent with
    tolerance of constant sitting”; and that therefore “[a] requirement for a change
    in posture every 20 to 30 minutes is not needed and is not supported by the
    travel described in claimant e-mails.”
    “Because of the difference in opinion between Dr. Benson and Truitt’s
    attending physicians,” Unum had additional medical experts review the updated
    file. Physician Malcolm McPhee agreed that, although there was conflicting
    evidence of Truitt’s disability, the emails “indicate that the claimant has been
    functioning at least at a light level of physical activity.” Vocational consultant
    Anthony Morin concluded that “it would appear that [Truitt] would be able to
    perform the duties of her own occupation.”
    Unum notified Truitt in a fourteen-page letter dated October 27, 2009 that
    it was terminating her benefits. Unum first explained that “[t]he flight itinerary
    information we received, as well as e-mails, which originated from [Truitt],
    contradict statements she made to us during the course of her . . . claim.” For
    example:
    •     Truitt contacted Unum on August 20, 2005 to say: that her
    condition had gotten worse; that her mother was taking care
    of her; that she would not be able to attend an FCE scheduled
    for September 2, 2005; and that she would not be available
    until September 24, 2005. Yet Truitt’s travel records showed
    that she was traveling in Europe between August 7, 2005 and
    September 22, 2005.
    •     Truitt told Unum in an April 24, 2006 letter that, since a
    March 1, 2006 FCE, she had “been confined to bed rest for
    approximately 15 hours per day.” Yet video surveillance on
    11
    Case: 12-50142      Document: 00512365109         Page: 12    Date Filed: 09/06/2013
    No. 12-50142
    April 6, 2006 showed Truitt “driving for most of the day and
    removing several items from her vehicle.”
    •      Truitt told physician Levine during a June 9, 2006 IME that
    she had stayed in bed for 15 hours a day since the March 1,
    2006 FCE. Yet “[d]uring this time period, some of the
    activities she was performing included international
    traveling, working, purchasing tickets to attend a Gala event,
    riding and keeping up two acres of property by herself.”
    Unum then concluded, relying on the emails, medical reports, and surveillance
    videos, that Truitt was not disabled under the terms of the plan because: she
    “has clearly demonstrated the ability to sit and stand for extended periods of
    time”; she “was able to perform activities beyond her repeated limitations”; she
    was “not only able to travel, but in fact traveled extensively both nationally and
    internationally”; and she “continued to practice law.” Unum further advised
    Truitt that, because she wrongfully received benefits from March 2005 through
    August 2007, she owed Unum more than $1 million in reimbursements.
    Truitt filed a thirty-one page administrative appeal challenging Unum’s
    termination of benefits. Although seeming to acknowledge that she had been
    “traveling internationally for recreation,”3 Truitt argued that the surveillance
    videos and emails were unreliable. Specifically, Truitt maintained that “the
    information provided by Thomas is no basis for suspension or denial of benefits”
    because “Thomas is biased and willing to do anything to hurt Ms. Truitt.”
    Truitt also sent Unum expert reports in support of her appeal. Insurance
    claims expert Ted Marules concluded that Unum wrongfully based its denial of
    benefits on a “biased interpretation of selected medical information,” an
    “inaccurate description of [Truitt’s] actual job responsibilities and daily
    activities,” and “[i]nformation provided by a known criminal whose intent was
    3
    In her appeal, Truitt characterized her apparent trips abroad as “traveling
    internationally for recreation,” but did not dispute that she took such trips. Instead, she
    focused on the distinction between recreational and business travel.
    12
    Case: 12-50142      Document: 00512365109    Page: 13    Date Filed: 09/06/2013
    No. 12-50142
    clearly biased towards” Truitt. Rehabilitation counselor Barbara Dunlap found
    that the “[a]bility to take a vacation involving international travel does not
    equate with the mental and physical rigors of work[-]related travel.” She also
    observed that “[c]onversational emails have no objective measure of reliability
    or validity; the subjective information contained within an email can be
    fabricated and exaggerated and conversational emails are frequently on the
    same level as gossip.” “[E]lectronics countermeasure expert” Dennis Chevalier
    noted that “[e]mail and password thefts are extremely easy . . . for the novice and
    expert to do,” and that “[b]ecause this is such an easy activity to perform by
    anyone, information obtained from these emails has to be suspect.”
    In response to Truitt’s appeal, Unum again reviewed her claim.
    Vocational expert Byard, who previously had concluded that the business travel
    required by Truitt’s job “would exceed [her] level of work capacity,” found that
    his “prior concerns” were “no longer . . . relevant.” Rebutting Dunlap’s assertion
    that recreational travel does not equate to business travel, Byard noted that
    Truitt’s “frequen[t] and extensive[ly] demonstrated recreational travel can be
    viewed as a direct measure of her ability to successfully participate in business[-
    ]related air travel.”    Physician Andrew Krouskop likewise concluded that,
    “[c]onsidering the claimant’s conditions in aggregate, no additional restrictions
    are supported.”
    Unum notified Truitt in a July 2010 letter that it was upholding its
    decisions to discontinue benefits and seek reimbursement of the more than $1
    million in overpayments. Unum again detailed the medical records, vocational
    reviews, and emails that supported its decisions. Unum then explained: “While
    you state in your appeal letter that email information can be manipulated and
    tampered with you have not demonstrated that this has occurred in this case.”
    Unum added: “The emails between [Truitt] and Mr. Thomas not only discuss
    personal matters but they also contain specific references to what was
    13
    Case: 12-50142    Document: 00512365109       Page: 14   Date Filed: 09/06/2013
    No. 12-50142
    happening during [Truitt’s] disability claim. Thus, your statements that
    conversational emails are not reliable and are on the same level of gossip are
    incorrect as it pertains to this claim.”
    Truitt filed suit, alleging that Unum wrongfully terminated her benefits.
    Unum filed a counterclaim seeking to recover more than $1 million in benefits
    it alleged that Truitt fraudulently obtained.
    The district court granted Truitt’s motion for judgment based on the
    administrative record. The district court explained that it was “not holding the
    record lacks substantial evidence in support of Unum’s decision.” Instead, the
    district court found that, although Unum’s administrative process is not “limited
    to considering only legally admissible evidence,” the “decision Unum made to
    rely on Thomas’ emails, and the weight it granted the information contained in
    them, was arbitrary and capricious.” Given that “Unum has failed to establish
    Plaintiff’s representations to it were false,” the district court also rejected
    Unum’s counterclaim for reimbursement of overpayments. Unum appeals.
    II. ANALYSIS
    The two issues on appeal are (1) whether the plan administrator abused
    its discretion in denying Truitt’s benefits; and (2) whether Truitt must reimburse
    more than $1 million in benefits.
    (1) Unum’s Denial of Benefits
    “This court reviews de novo the district court’s conclusion that an ERISA
    plan administrator . . . abuse[d] its discretion in denying benefits, and in doing
    so reviews the plan administrator’s decision from the same perspective as the
    district court.” Anderson v. Cytec Indus., Inc., 
    619 F.3d 505
    , 511-12 (5th Cir.
    2010) (per curiam) (internal citation omitted).
    The district court found, and the parties do not dispute, that the benefits
    plan at issue in this case gave Unum discretionary authority to construe the
    terms of the plan and render benefits decisions. We therefore review the plan
    14
    Case: 12-50142    Document: 00512365109       Page: 15   Date Filed: 09/06/2013
    No. 12-50142
    administrator’s decision to deny benefits for abuse of discretion. See Holland v.
    Int’l Paper Co. Ret. Plan, 
    576 F.3d 240
    , 246 (5th Cir. 2009).
    A plan administrator abuses its discretion if it acts “arbitrarily or
    capriciously.” Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc., 
    168 F.3d 211
    ,
    214 (5th Cir. 1999) (quoting Sweatman v. Commercial Union Ins., Co., 
    39 F.3d 594
    , 601 (5th Cir. 1994)). A decision is arbitrary and capricious only if it is
    “made without a rational connection between the known facts and the decision
    or between the found facts and the decision.” Meditrust, 
    168 F.3d at 215
     (quoting
    Bellaire Gen. Hosp. v. Blue Cross Blue Shield of Mich., 
    97 F.3d 822
    , 828 (5th Cir.
    1996)); see Vega v. Nat’l Life Ins. Servs., Inc. 
    188 F.3d 287
    , 302 (5th Cir. 1999)
    (en banc) (observing that there only need be “concrete evidence in the
    administrative record that supports the denial of the claim”), overruled on other
    grounds by Metro. Life Ins. Co. v. Glenn, 
    554 U.S. 105
     (2008); Holland, 
    576 F.3d at 247
     (“Our ‘review of the administrator’s decision need not be particularly
    complex or technical; it need only assure that the administrator’s decision fall
    somewhere on a continuum of reasonableness—even on the low end.’”) (quoting
    Corry v. Liberty Life Assurance Co. of Boston, 
    499 F.3d 389
    , 398 (5th Cir. 2007)).
    In deciding whether there was an abuse of discretion, we also consider
    whether the plan administrator has a conflict of interest. See Firestone Tire &
    Rubber Co. v. Bruch, 
    489 U.S. 101
    , 115 (1989). A plan administrator has a
    conflict of interest if it “both evaluates claims for benefits and pays benefits
    claims.” Glenn, 
    554 U.S. at 112
    . “[C]onflicts are but one factor among many that
    a reviewing judge must take into account.” 
    Id. at 116
    . “[A]ny one factor will act
    as a tiebreaker when the other factors are closely balanced, the degree of
    closeness necessary depending upon the tiebreaking factor’s inherent or
    case-specific importance.” 
    Id. at 117
    . “The conflict of interest . . . should prove
    more important (perhaps of great importance) where circumstances suggests a
    higher likelihood that it affected the benefits decision, including, but not limited
    15
    Case: 12-50142         Document: 00512365109           Page: 16     Date Filed: 09/06/2013
    No. 12-50142
    to, cases where an insurance company administrator has a history of biased
    claims administration.” Id.; see Holland, 
    576 F.3d at 248
     (observing that “the
    specific facts of the conflict will dictate its importance”). “It should prove less
    important (perhaps to the vanishing point) where the administrator has taken
    active steps to reduce potential bias and to promote accuracy[.]” Glenn, 
    554 U.S. at 117
    .
    The district court found, and the parties do not dispute, that there was
    substantial evidence to support Unum’s decision to deny Truitt’s benefits. The
    parties also do not argue that Unum denied Truitt a “full and fair review” of her
    benefits claim.4 This appeal therefore reduces to whether Unum otherwise
    abused its discretion in denying Truitt’s benefits.
    A. Unum’s Finding that Truitt was not Disabled
    The district court found that a “factor the reviewing court may consider
    in determining whether the administrator abused its discretion [is] whether
    circumstances surrounding the administrator’s decision suggest ‘procedural
    unreasonableness.’”           The     district    court    acknowledged         that    “Unum’s
    administrative process is [not] limited to considering only legally admissible
    evidence,” but nonetheless found that Unum (i) did not “investigat[e] into the
    accuracy of the information it gleaned from the emails,” and (ii) did not fulfill its
    “duty to consider the source of the information it considers and weigh the
    4
    A plan administrator fails to provide a “full and fair review” if it does not comply with
    the “procedures set forth in [29 U.S.C.] § 1133 of ERISA and in the Department of Labor
    regulations promulgated pursuant to that section.” Schadler v. Anthem Life Ins. Co., 
    147 F.3d 388
    , 393 (5th Cir. 1998). These procedures require, among other things, that a plan
    administrator provide a claimant with “specific reasons” for terminating benefits, see Robinson
    v. Aetna Life Ins. Co., 
    443 F.3d 389
    , 392-93 (5th Cir. 2006), and identify “medical or vocational
    experts whose advice was obtained on behalf of the plan in connection with a claimant’s
    adverse benefit determination.” Lafleur v. La. Health Serv. & Indem. Co., 
    563 F.3d 148
    , 154
    (5th Cir. 2009) (quoting 
    29 C.F.R. § 2560.503-1
    (h)(3)(iv)). As discussed below, the “procedural
    unreasonableness” of a plan administrator’s decision is a separate concept that is a subset of
    our conflict of interest analysis.
    16
    Case: 12-50142       Document: 00512365109          Page: 17     Date Filed: 09/06/2013
    No. 12-50142
    information accordingly.” The district court concluded that the “decision Unum
    made to rely on Thomas’ emails, and the weight it granted the information
    contained in them, was arbitrary and capricious.”
    This concept of “procedural unreasonableness” traces to the Supreme
    Court’s Glenn decision. In Glenn, a plan administrator denied a claim for
    benefits based on the Social Security Administration’s (“SSA”) finding that the
    claimant could do sedentary work. See 
    554 U.S. at 118
    . The Supreme Court
    observed that this “course of events . . . suggested procedural unreasonableness”
    because the plan administrator initially had urged the claimant to argue to the
    SSA that she could not work. 
    Id.
     In Schexnayder. v. Hartford Life & Accident
    Ins. Co., this court interpreted the Supreme Court’s reference to “procedural
    unreasonableness” to mean that a “reviewing court may give more weight to a
    conflict of interest, where the circumstances surrounding the plan
    administrator’s decision suggest ‘procedural unreasonableness.’” 
    600 F.3d 465
    ,
    469 (5th Cir. 2010). This court concluded: “Although substantial evidence
    supported [the plan administrator’s] decision, the method by which it made the
    decision”—that is, the plan administrator’s “[f]ailure to address a contrary SSA
    award”—“was unreasonable, and the conflict, because it is more important under
    the circumstances, acts as a tiebreaker for us to conclude that [the plan
    administrator] abused its discretion.”5 
    Id. at 471
    . This court’s subsequent
    decision in Crowell v. CIGNA Grp. Ins. reinforced that a plan administrator’s
    “procedural unreasonableness” informs “how much weight to afford the apparent
    conflict.” 410 F. App’x 788, 793-94 (5th Cir. 2011).
    This precedent indicates that whether the plan administrator’s decision
    is “procedurally unreasonable”—that is, whether the “method by which [the plan
    administrator] made the decision was unreasonable”—is a factor that informs
    5
    The SSA found that Truitt was “not disabled under [its] rules.” Truitt does not argue,
    and the record does not support, that Unum gave any weight to the SSA’s finding.
    17
    Case: 12-50142      Document: 00512365109        Page: 18    Date Filed: 09/06/2013
    No. 12-50142
    whether the “reviewing court may give more weight to [the plan administrator’s]
    conflict of interest.” Schexnayder, 
    600 F.3d at 469-71
    . This precedent does not
    support that procedural unreasonableness is an independent basis on which a
    district court can find abuse of discretion.6
    The district court did not indicate whether its finding of procedural
    unreasonableness was an independent basis for holding that the plan
    administrator abused its discretion. The district court erred to the extent that
    it treated procedural unreasonableness as anything more than a component of
    its analysis of Unum’s conflict.        However, even if the district court only
    considered procedural unreasonableness within the framework of its conflict
    analysis, it nonetheless erred by imposing a burden on Unum that is absent from
    our case law.
    (i) Unum’s Duty to Investigate
    The district court first found procedural unreasonableness, in part,
    because Unum did not “investigat[e] into the accuracy of the information it
    gleaned from the emails.” However, this court’s unanimous en banc decision in
    Vega v. Nat’l Life Ins. Servs., Inc. forecloses imposing such a duty to investigate
    on a plan administrator. See 
    188 F.3d at 299
    . In Vega, the panel decision
    imposed a “duty to conduct a good faith, reasonable investigation” on a plan
    administrator that had a conflict of interest. 
    Id. at 289
    . The en banc court
    overturned the panel decision, holding that, “when confronted with a denial of
    benefits by a conflicted administrator, the district court may not impose a duty
    to reasonably investigate on the administrator.” 
    Id. at 299
    . The en banc court
    explained:
    There is no justifiable basis for placing the burden solely on the
    administrator to generate evidence relevant to deciding the claim,
    6
    By contrast, “full and fair review,” discussed above, is an independent basis to
    overturn a plan administrator’s denial of benefits. See Lafleur, 
    563 F.3d at 160
    .
    18
    Case: 12-50142       Document: 00512365109         Page: 19     Date Filed: 09/06/2013
    No. 12-50142
    which may or may not be available to it, or which may be more
    readily available to the claimant. If the claimant has relevant
    information in his control, it is not only inappropriate but inefficient
    to require the administrator to obtain that information in the
    absence of the claimant’s active cooperation.
    Instead, we focus on whether the record adequately supports the
    administrator’s decision. In many cases, this approach will reach
    the same result as one that focuses on whether the administrator
    has reasonably investigated the claim. The advantage to focusing
    on the adequacy of the record, however, is that it (1) prohibits the
    district court from engaging in additional fact-finding and (2)
    encourages both parties properly to assemble the evidence that best
    supports their case at the administrator’s level.
    
    Id. at 298
    . This court has reiterated, in cases subsequent to Vega, this principle
    “that a conflicted administrator is not under a duty to ‘reasonably investigate’
    a claim.” Gooden v. Provident Life & Accident Ins. Co., 
    250 F.3d 329
    , 331-33 (5th
    Cir. 2001) (finding that the district court erred by imposing a duty to investigate
    on the plan administrator); see, e.g., Dramse v. Delta Family-Care Disability &
    Survivorship Plan, 269 F. App’x 470, 479 (5th Cir. 2008) (per curiam) (same).
    Accordingly, Unum did not violate its duty to investigate because no such duty
    exists.7
    (ii) Unum’s Duty to Consider the Source of Evidence
    The district court also faulted Unum for not “consider[ing] the source of
    the information it considers and weigh[ing] the information accordingly.”
    However, the parties do not identify, and we could not find, a case in which we
    imposed on a plan administrator an affirmative duty to consider the source of
    7
    We nonetheless note that Unum made an effort to investigate the accuracy of the
    emails. First, after Thomas provided the first batch of emails, Unum asked if there were “any
    additional emails/information available which might shed additional light regarding this
    case?” Second, according to an email from Thomas that Truitt quoted in her July 2011
    affidavit, Unum “ke[pt] asking” Thomas to “give[ ] a signed statement or any more
    information.” (Emphasis added.) Third, Unum compared the events described in the emails
    to Truitt’s claim file.
    19
    Case: 12-50142    Document: 00512365109       Page: 20   Date Filed: 09/06/2013
    No. 12-50142
    evidence. The primary case relied on by the district court for the proposition
    that a plan administrator has a duty to consider the source of evidence, Pierre
    v. Conn. Gen. Life Ins. Co., instead stands for the proposition that, by itself,
    hearsay evidence cannot support a plan administrator’s finding unless the
    evidence “meet[s] certain indicia of reliability.” See 
    932 F.2d 1552
    , 1562-63 (5th
    Cir. 1991) (noting that, if “the evidence had been only the . . . hearsay statement
    . . . unsupported by corroborating evidence, then the abuse of discretion standard
    would permit us to conclude that, because of the witness’s self-serving interests,
    the decision to deny benefits based on this statement, without more, would be
    beyond the bounds of a reasonable judgment,” but concluding that “the plan
    administrator’s decision was based on corroborating evidence,” and therefore
    “was not an abuse of discretion”). We reiterate that, in the context of ERISA,
    evidence is tested through a probing administrative process, and that, in that
    process, issues of inauthenticity, contradiction, unreliability, and bias all may
    be pertinent. This probing process contemplates that the plan administrator
    must first identify evidence to support its decision to deny benefits. See
    Robinson, 
    443 F.3d at 392-93
     (observing that, under 
    29 U.S.C. § 1133
    , a plan
    administrator must identify “specific reasons” for denying benefits). Then the
    claimant may attempt to discredit that evidence by, among other things,
    attacking its source. See Vega, 
    188 F.3d at 298
     (“If the claimant has relevant
    information in his control, it is not only inappropriate but inefficient to require
    the administrator to obtain that information in the absence of the claimant’s
    active cooperation.”); Pierre, 
    932 F.2d at 1554
     (“The plaintiffs . . . contested the
    accuracy and admissibility of [the] hearsay statements.”). And, finally, the plan
    administrator will consider whether, given its asserted deficiencies, the evidence
    in question continues to support its decision to deny benefits. See Vega, 
    188 F.3d at 298
     (“[W]e focus on whether the record adequately supports the
    administrator’s decision.”); Pierre, 932 F.3d at 1562-63 (noting that, despite the
    20
    Case: 12-50142       Document: 00512365109          Page: 21     Date Filed: 09/06/2013
    No. 12-50142
    claimant’s assertion that the hearsay evidence in question was unreliable, there
    was nonetheless sufficient evidence to support the plan administrator’s decision
    to deny benefits). As we summarized in Vega, therefore, “[t]here is no justifiable
    basis for placing the burden solely on the administrator to generate evidence
    relevant to deciding the claim, which may or may not be available to it, or which
    may be more readily available to the claimant.” 
    188 F.3d at 298
    .
    Unum adhered to this process. Unum first identified evidence to support
    its decision to deny Truitt’s benefits, including: the emails showing that Truitt
    engaged in activities, including international travel, that were inconsistent with
    her asserted disability; the surveillance videos showing that Truitt was able to
    drive, walk, and bend, and lift and carry pumpkins, dogs, coolers, and other
    items, with no apparent discomfort; and evaluations by physicians and
    vocational consultants finding that there was little objective evidence to support
    Truitt’s subjective reports of pain and lack of mobility.
    Truitt then provided evidence of her own in rebuttal, including: an
    affidavit from Truitt swearing that Thomas was “a computer and hacker expert”
    and that he “threaten[ed] to send false information to Unum”; documents
    showing that Thomas pled guilty to assaulting Truitt; and expert reports
    providing that “[c]onversational emails have no objective measure of reliability
    or validity,” and that “[e]mail and password thefts are extremely easy.”8
    Unum then considered, and rejected, Truitt’s rebuttal evidence. After
    having two more medical experts review Truitt’s file, Unum concluded that the
    surveillance videos, medical records, and emails continued to support its decision
    8
    Truitt maintains that she was unable to rebut Unum’s evidence because “from March
    4, 2009 until October 27, 2009, Truitt unsuccessfully sought no less than 13 times to discover
    the basis for Unum’s denial and to respond thereto.” As Unum notes, however, “[a] decision
    to terminate Truitt’s benefits was not made until October 27, 2009, and she was provided with
    a complete copy of her file by November 4, 2009. Truitt’s appeal was requested over four
    months later on March 18, 2010 and additional documents were forwarded on April 28, 2010.”
    21
    Case: 12-50142    Document: 00512365109      Page: 22    Date Filed: 09/06/2013
    No. 12-50142
    to terminate Truitt’s benefits. Unum specifically addressed Truitt’s challenge
    to the emails, observing that, “[w]hile you state in your appeal letter that email
    information can be manipulated and tampered with you have not demonstrated
    that this occurred in this case,” and that “[t]he emails between [Truitt] and Mr.
    Thomas not only discuss personal matters but they also contain specific
    references to what was happening during [Truitt’s] disability claim.”
    Given this probing process—which included a thorough discourse of
    disability—coupled with the deference we owe plan administrators, see Holland,
    
    576 F.3d at 246
    , we cannot say that Unum’s decision to consider the emails was
    an abuse of discretion. Truitt did not introduce any evidence that the emails
    were forged or hacked. Cf. Pierre, 
    932 F.2d at 1563
     (noting that the plan
    administrator asked the claimant to “submit any evidence” to dispute the
    contents of the hearsay, but that it “[r]eceiv[ed] no additional information” from
    the claimant).    Moreover, the emails showed that Truitt traveled abroad
    extensively, for weeks at a time, yet Truitt did not introduce evidence showing
    that, at any point when the emails indicated that she was abroad, she instead
    was in the United States. Instead, she seemed to confirm the accuracy of the
    emails by appearing to acknowledge that she had been “traveling internationally
    for recreation.” The emails also showed: that Truitt was “out working and
    riding” to “keep up with 2 acres by [her]self”; that she rode in a “van on the most
    winding, curving mountainous 2 lane road for 3 hours”; that she “personally
    picked up 88 gallons of trash” in a single weekend; and that she “[h]ad to clean
    [her house] for 2 days, total of about 14 hours.” Truitt never denied engaging in
    any of these physical activities, but instead submitted an affidavit stating
    generally that Thomas “threaten[ed] to send false information to Unum,” and
    that “[n]one of the statements Mr. Thomas threatened to make to UNUM are
    true.”    Although Truitt submitted expert reports stating, generally, that
    “[c]onversational emails have no objective measure of reliability or validity,” and
    22
    Case: 12-50142    Document: 00512365109      Page: 23    Date Filed: 09/06/2013
    No. 12-50142
    that “[e]mail and password thefts are extremely easily,” the reports did not
    identify any specific discrepancies suggesting that the emails were inauthentic
    or compromised.
    Two other factors further support the plan administrator’s decision to
    credit the emails. First, the emails appeared to be authentic. They spanned
    more than 600 pages, and included eTickets and hotel and flight reservations.
    Second, the time line presented in the emails was consistent with Truitt’s claim
    file. For example, the emails showed that Truitt was traveling in Europe from
    August 20, 2005 to September 22, 2005; Truitt’s file showed that, after Unum
    scheduled an FCE for September 2, 2005, Truitt told Unum that she would not
    be available until September 24, 2005.
    Given that the emails “me[t] certain indicia of reliability”—facial
    authenticity, a time line consistent with Truitt’s file, and either acknowledged
    by her or only indirectly disavowed—we cannot say that Unum decision to credit
    the emails was “beyond the bounds of a reasonable judgement.” Pierre, 
    932 F.2d at 1563
     (finding that there was an abuse of discretion because “the plan
    administrator’s decision was based on corroborating evidence”).
    (iii) Substantial Evidence of Disability
    The district court found in the alternative that, “[e]ven if Unum’s
    acceptance of the emails were not an abuse of discretion . . . Unum’s conclusion
    that the emails establish Truitt is able to perform her own occupation [was]
    arbitrary” because Truitt’s travels “fall[ ] somewhat short of” extensive, and
    because “even extensive leisure travel cannot be viewed as equivalent to the
    rigors of business travel.” These findings are in tension with the district court’s
    conclusion that there was substantial evidence to support Unum’s denial of
    benefits. These findings also overlook that the plan administrator identified
    considerable evidence other than the emails—including, as discussed above,
    23
    Case: 12-50142     Document: 00512365109      Page: 24    Date Filed: 09/06/2013
    No. 12-50142
    surveillance videos and medical records—to support its decision to terminate
    Truitt’s benefits.
    Although we decline to substitute our judgment for that of the plan
    administrator, see Schadler, 
    147 F.3d at 398
    , we further note that, even
    conceding that “each of the material duties of [Truitt’s] regular occupation”
    involved extensive travel and lifting files, there was “concrete evidence in the
    administrative record that support[ed] the denial of the claim.” Vega, 
    188 F.3d at 302
    .
    First, there was concrete evidence that Truitt could engage in extensive
    business travel. The emails showed that Truitt traveled to locales including
    England, France, Rome, Venezuela, Guatemala, Jamaica, and Mexico, for weeks
    at a time, while claiming to be disabled. The emails also showed that Truitt’s
    travel schedule was rigorous. Truitt wrote: that she was “scheduled to do some
    heavy[-]duty traveling Aug. through Dec. out of the country”; that she had been
    in “6 different airports . . . in the last 48 hours”; that she was “going to be
    traveling lots beginning mid[-]April to mid[-]Sept this year”; and that she rode
    in “a van on the most winding, curving mountainous 2 lane road for 3 hours.”
    Likewise, medical experts found that Truitt could engage in business travel,
    noting: that “[t]ravel described in claimant e-mails was consistent with tolerance
    of constant sitting”; that “[a] requirement for a chance in posture every 20 to 30
    minutes is not needed and is not supported by the travel described in claimant
    emails”; and that “recreational air travel trips . . . can be viewed as a direct
    measure of her ability to successfully participate in business[-]related air travel.”
    Second, there was concrete evidence that Truitt could lift files. The
    surveillance videos showed Truitt: walking, driving, and bending down, and
    lifting and carrying boxes, bags, coolers, pumpkins, and a dog. The emails
    showed that Truitt: was “out working and riding” to “keep up with 2 acres by
    [her]self”; that she “personally picked up 88 gallons of trash” in a single
    24
    Case: 12-50142    Document: 00512365109      Page: 25    Date Filed: 09/06/2013
    No. 12-50142
    weekend; and that she “[h]ad to clean [her house] for 2 days, total of about 14
    hours.” Likewise, medical experts found: that “it is clear that [Truitt] has little
    or no physical impairment”; that there was a “severe perception of physical
    disability in excess of her physical findings”; and that “it would appear that
    [Truitt] would be able to perform the duties of her own occupation.”
    Given that the emails, surveillance videos, and medical records show that
    Truitt could complete the “material duties of [her] regular occupation,” there was
    “concrete evidence in the administrative record that support[ed] the denial of the
    claim.” Vega, 
    188 F.3d at 302
    .
    B. Unum’s Conflict of Interest
    Because we find that Unum’s factual determination that Truitt was
    capable of performing her job duties was not an abuse of discretion, the issue
    before us further narrows to whether Unum’s structural conflict of interest,
    evaluated against the backdrop of its asserted history of biased claims
    administration, supports finding an abuse of discretion.
    The district court found, and the parties do not dispute, that Unum had
    a structural conflict of interest because it “both determines whether Truitt is
    eligible for benefits and pays for benefits out of its own pocket.” The district
    court then gave greater weight to this conflict because “a number of courts . . .
    have recognized Unum’s history of biased claims administration.”
    We agree that Unum had a structural conflict of interest. See Glenn, 
    554 U.S. at 112
    . However, the district court gave improper weight to this conflict.
    See 
    id. at 117
    . The district court relied on five cases decided between 2007 and
    2010, including its own decision in Burton v. Unum Life Ins. Co., 
    2010 WL 2430767
    , at *10 (W.D. Tex. June 14, 2010), to show that Unum had a “history of
    biased claims administration.” Yet the full Burton decision reveals that “Unum
    has—since Glenn—adopted new claims-handling practices” that have helped
    cure this history of “biased claims administration.” 
    2010 WL 2430767
    , at *11.
    25
    Case: 12-50142    Document: 00512365109      Page: 26    Date Filed: 09/06/2013
    No. 12-50142
    Indeed, the district court in Burton relied on these “new claims-handling
    practices” to conclude that it would “not assume Unum is biased every time it
    denies a claim merely because it has a parsimonious claims-granting history.”
    
    Id.
     Other decisions subsequent to Burton likewise have recognized Unum’s
    improved “claims-handling practices.” See, e.g., Daniel v. UnumProvident Corp.,
    No. CV-04-1073, 
    2010 WL 8292157
    , at *15 (E.D.N.Y. Oct. 27, 2010); Hagopian
    v. Johnson Fin. Grp., Inc. Long-Term Disability Plan, No. 09-C-926, 
    2010 WL 3808666
    , at *11-12 (E.D. Wis. Sept. 23, 2010).
    We also note, based on our “case-specific” review of the complete
    administrative record, that “circumstances” do not “suggest a higher likelihood
    that” Unum’s conflict “affected the benefits decision.” Glenn, 
    554 U.S. at 117
    ; see
    Holland, 
    576 F.3d at 248-49
    . As discussed in detail above, Unum conducted a
    years-long investigation into Truitt’s disability. During that investigation,
    Unum consulted with, or reviewed reports by, more than ten medical and
    vocational experts, only some of whom were aware of the emails. Unum gave
    Truitt opportunities to introduce evidence in support of her disability, and to
    rebut its evidence showing that Truitt was not disabled. Unum also appeared
    to give due consideration to Truitt’s claim, as evidenced by its initial appellate
    decision to restore Truitt’s benefits.
    Given Unum’s “new claims-handling practices,” see Burton, 
    2010 WL 2430767
    , at *11, and our “case-specific” finding that Unum gave careful
    consideration of Truitt’s claim, see Glenn, 
    554 U.S. at 117
    , we find that the
    district court improperly emphasized Unum’s structural conflict. See Holland,
    
    576 F.3d at 248-49
    .
    Even if we were too imbue Unum’s structural conflict with “great
    importance,” however, this conflict, which is “but one factor among many that
    a reviewing judge must take into account,” does not support finding an abuse of
    discretion. See Glenn, 
    554 U.S. at 116-17
    . As discussed above, surveillance
    26
    Case: 12-50142       Document: 00512365109          Page: 27     Date Filed: 09/06/2013
    No. 12-50142
    videos, medical records, and emails all supported that Truitt was not disabled
    under the terms of the plan. Therefore, Unum’s structural conflict was “clearly
    outweighed by the substantial evidence supporting [Unum’s] decision.” Crowell,
    410 F. App’x at 794.
    In sum, we hold: that Unum did not have an affirmative duty either to
    investigate the accuracy of the emails or to investigate and further consider their
    source; that, instead, Truitt failed to discredit Unum’s proof through the
    administrative process; and that, therefore, Unum did not arbitrarily and
    capriciously rely on and weigh the emails and other items of evidence relating
    to Truitt’s condition. We also hold that the district court gave improper weight
    to Unum’s structural conflict, but that, regardless of the weight assigned to the
    conflict, Unum did not abuse its discretion.
    (2) The Reimbursement of Benefits
    Unum filed a counterclaim seeking reimbursement of more than $1 million
    in benefits that it alleged Truitt fraudulently obtained. Applying Texas law, the
    district court found that Truitt did not defraud Unum because Unum did not
    establish, among other things, that it relied on Truitt’s representations. Unum
    argues, and Truitt does not actively dispute, that the district court erred by
    applying Texas law.9
    We agree that federal common law, and not Texas law, governs Unum’s
    counterclaim. ERISA does not outline how a plan administrator may recover
    benefits that it alleges were fraudulently obtained, see 
    29 U.S.C. § 1132
    (a)(3),
    and “[w]e have consistently held that any hiatus in ERISA’s text must be filled
    by application of federal common law rather than the law of any particular
    9
    Truitt did not appeal the district court’s initial ruling that Unum’s counterclaim
    qualified as “appropriate equitable relief” under the terms of the plan. Because this issue is
    not before us on appeal, and because it is not necessary to our finding, discussed below, that
    the district court incorrectly applied Texas law, we decline to address this ruling.
    27
    Case: 12-50142    Document: 00512365109       Page: 28   Date Filed: 09/06/2013
    No. 12-50142
    state.” Bombardier Aerospace Employee Welfare Benefits Plan v. Ferrer, Poirot
    & Wansbrough, 
    354 F.3d 348
    , 358-59 (5th Cir. 2003) (finding, in the context of
    ERISA, that Texas law did not apply when evaluating “whether a showing of
    either actual fraud or unjust enrichment . . . is required before a constructive can
    be imposed on . . . disputed funds”); see Provident Life & Accident Ins. Co. v.
    Sharpless, 
    364 F.3d 634
    , 641 (5th Cir. 2004) (“Federal common law governs
    rights and obligations stemming from ERISA-regulated plans[.]”).
    This misapplication of Texas law affected the district court’s analysis. The
    district court found that Unum did not satisfy the Texas standard for
    “fraudulent misrepresentation,” which requires that “the party acted in reliance
    on the representation.” In re FirstMerit Bank, N.A., 
    52 S.W.3d 749
    , 758 (Tex.
    2001). In so finding, the district court based its analysis on the Texas rule that
    “where a [party] makes [its] own investigation of the facts, or relies on expert
    opinion [it] has [itself] obtained, [it] cannot sustain a cause of action based upon
    misrepresentation by others.” (Quoting Ehler v. St. Paul Fire & Marine Ins. Co.,
    
    66 F.3d 771
    , 774 (5th Cir. 1995) (applying Texas law).) The district court found
    that Unum “obtained numerous opinions from a variety of consultants and
    experts” and thus, “[a]bsent the requisite reliance” on Truitt’s representations,
    “Unum’s counterclaim for fraud fails.” Yet this court has not listed reliance as
    an element of fraudulent misrepresentation under federal common law. See
    Sharpless, 
    364 F.3d at 641
    .
    The district court’s erroneous finding that the emails were not credible
    also may have affected its analysis. The district court based its finding that
    Truitt did not defraud Unum, in part, on its conclusion that “the ‘evidence’ of
    falsity Unum relies on is questionable in its reliability.” Although we decline to
    address whether the emails establish “evidence of falsity” for the purpose of
    fraudulent misrepresentation, we note, as discussed above, that the emails
    28
    Case: 12-50142        Document: 00512365109          Page: 29     Date Filed: 09/06/2013
    No. 12-50142
    appeared facially reliable, presented a time line consistent with Truitt’s claim
    file, and were not persuasively discredited by Truitt.
    Given that the district court incorrectly applied Texas law, that the district
    court based its analysis on a principle of Texas law that is not controlling under
    federal common law, and that the district court’s finding that the emails were
    unreliable also may have affected its analysis, we vacate the district court’s
    holding that Truitt did not fraudulently obtain benefits, and remand for further
    proceedings. See Wildbur v. ARCO Chem. Co., 
    974 F.2d 631
    , 644-46 (5th Cir.
    1992).10
    III. CONCLUSION
    Accordingly, we REVERSE the district court’s holding that Unum
    wrongfully denied Truitt benefits, and RENDER judgment for Unum. We
    VACATE the district court’s holding that Truitt did not fraudulently obtain
    benefits, and REMAND for further proceedings consistent with this opinion. We
    also VACATE the district court’s award of attorney’s fees to Truitt, and
    REMAND for further proceedings consistent with this opinion.
    10
    Correspondingly, we vacate the district court’s award of attorney’s fees to Truitt, and
    remand for further proceedings. See Hardt v. Reliance Standard Life Ins. Co., 
    130 S. Ct. 2149
    ,
    2157-59 (2010).
    29
    

Document Info

Docket Number: 12-50142

Citation Numbers: 729 F.3d 497, 56 Employee Benefits Cas. (BNA) 2602, 2013 U.S. App. LEXIS 18639, 2013 WL 4777327

Judges: Davis, Graves, Higginson

Filed Date: 9/6/2013

Precedential Status: Precedential

Modified Date: 11/5/2024

Authorities (17)

Kenneth E. Wildbur, Sr. v. Arco Chemical Co. , 974 F.2d 631 ( 1992 )

Meditrust Financial Services Corp. v. Sterling Chemicals, ... , 168 F.3d 211 ( 1999 )

Sweatman v. Commercial Union Insurance , 39 F.3d 594 ( 1994 )

Corry v. Liberty Life Assur. Co. of Boston , 499 F.3d 389 ( 2007 )

Bombardier Aerospace Employee Welfare Benefits Plan v. ... , 354 F.3d 348 ( 2003 )

Provident Life & Accident Insurance v. Sharpless , 364 F.3d 634 ( 2004 )

Schadler v. Anthem Life Insurance , 147 F.3d 388 ( 1998 )

Gooden v. Provident Life & Accident Insurance , 250 F.3d 329 ( 2001 )

Anderson v. Cytec Industries, Inc. , 619 F.3d 505 ( 2010 )

Schexnayder v. Hartford Life & Accident Insurance , 600 F.3d 465 ( 2010 )

Bellaire General Hospital v. Blue Cross Blue Shield of ... , 97 F.3d 822 ( 1996 )

Gilbert Ehler v. St. Paul Fire and Marine Insurance Company , 66 F.3d 771 ( 1995 )

Holland v. International Paper Co. Retirement Plan , 576 F.3d 240 ( 2009 )

Vilma Lissette Vega Jose Vega v. National Life Insurance ... , 188 F.3d 287 ( 1999 )

Lafleur v. Louisiana Health Service & Indemnity Co. , 563 F.3d 148 ( 2009 )

Alton Robinson v. Aetna Life Insurance Company , 443 F.3d 389 ( 2006 )

Celestine Pierre and the Estate of James Nolan Pierre, Jr. ... , 932 F.2d 1552 ( 1991 )

View All Authorities »