Silver v. Executive Car Leasing Long-Term Disability Plan

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARC S. SILVER, 
Plaintiff-Appellant,
v. No. 04-55747
EXECUTIVE CAR LEASING LONG-  D.C. No.
CV-02-05279-SVW
TERM DISABILITY PLAN, an
employee welfare benefits plan OPINION
under ERISA,
Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted
February 14, 2006—Pasadena, California
Filed August 7, 2006
Before: Betty B. Fletcher, Warren J. Ferguson, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge B. Fletcher
8907
8910 SILVER v. EXECUTIVE CAR LEASING
COUNSEL
Lyle R. Mink, Esq., Los Angeles, California, for the plaintiff-
appellant.
Stacey R. Turner, Esq., Los Angeles, California, for the
defendant-appellee.
OPINION
B. FLETCHER, Circuit Judge:
Marc Silver claims that he is disabled due to the deteriorat-
ing condition of his heart. He argues that, as a result of his
disabling heart condition, he is entitled to benefits under an
insurance policy issued by the UNUM Life Insurance Com-
pany of America (“UNUM”). UNUM claims that Silver
recovered from his disability and that under the terms of the
policy he is therefore not entitled to benefits. Following a
bench trial, the district court upheld UNUM’s decision to
deny Silver’s claim. We now reverse.
I. FACTUAL AND PROCEDURAL BACKGROUND
Since 1974, Executive Car Leasing has provided coverage
for its employees under a long-term disability insurance pol-
SILVER v. EXECUTIVE CAR LEASING 8911
icy (“Policy”). The Policy is administered by UNUM and
governed by the Employee Retirement Income Security Act
(“ERISA”), 29 U.S.C. §§ 1001 et seq. It provides benefits to
Executive Car Leasing employees who suffer a loss of earn-
ings due to disability. To qualify as disabled under the Policy,
a claimant must demonstrate that “because of injury or sick-
ness . . . [he] cannot perform each of the material duties of his
regular occupation.” Also, because the Policy covers only
long-term disabilities, it establishes a 90-day “elimination
period,” during which time no benefits are payable. Thus, to
receive benefits under the UNUM Policy, a claimant must
establish not only that he is disabled, but also that he is dis-
abled continuously for 90 days following the initial date on
which he claims disability. If the claimant fails to show that
he is continuously disabled throughout this elimination period
and does not return to work after those 90 days, coverage
under the Policy terminates.
Silver, an Executive Car Leasing employee who was cov-
ered under the UNUM Policy, has a lengthy history of severe
heart disease. He is a long-time smoker — medical records
indicate that he smoked up to one and a half packs a day for
as many as 30 years — and for nearly as long he has suffered
from claudication, or cramping, in his legs, which is a symp-
tom of peripheral heart disease. In 1980, he suffered a myo-
cardial infarction (a heart attack). Doctors discovered that
three vessels in his heart were blocked, and he underwent
triple-bypass surgery to circumvent the obstructions. In 1983,
he suffered another heart attack when one of the grafts from
his bypass surgery became completely obstructed. He
returned to the hospital complaining of chest pain in 1989 and
1991, and when he returned yet again in 1992, cardiologists
found multiple pathways obstructed and conducted another
triple-bypass surgery. In November of 1998, doctors again
found that several of Silver’s blood vessels were partially or
entirely occluded. This time, they performed angioplasty —
a procedure in which a small balloon is first inserted into the
8912 SILVER v. EXECUTIVE CAR LEASING
obstructed blood vessel and then inflated to clear the obstruc-
tion.
Despite these medical problems, Silver continued to work
as a sales manager at Executive Car Leasing. His job gener-
ally required him to work around nine hours a day and
demanded that he fulfill sales quotas for the company. Silver
claims that the work was stressful for him, and UNUM has
conceded that his employment at Executive Car Leasing
required him to work under stressful conditions.
The events giving rise to this lawsuit started to unfold
when, in December of 2000, he once again started having
chest pain. On December 14, 2000, Silver sought treatment at
Western Medical Center in Santa Ana, California, after expe-
riencing acute chest pain and angina, or shortness of breath.
An initial examination excluded the possibility of another
heart attack, but concluded that Silver would require a cardiac
catheterization (his fifth such procedure) and possibly another
angioplasty procedure. Further examination revealed that
there were lesions in two of his blood vessels and that several
other vessels were occluded, or blocked, with the openings in
some of these vessels narrowed by as much as 95 percent.
Doctors performed another angioplasty on Silver, his second.
Medical reports from this hospitalization indicate that the pro-
cedure was successful and that the results from the angio-
plasty were excellent. Upon his release from the hospital,
Silver consulted his long-time cardiologist, Dr. Melvin
Tonkon, who advised him to stop working. Silver followed
Dr. Tonkon’s advice, stopped working, and filed a claim for
benefits under the UNUM Policy. He described his disability
as “heart disease and angioplasty,” and he listed his date of
disability as December 14, 2000 — the date on which his sec-
ond angioplasty procedure had been performed.
In the 90 days that followed his second angioplasty proce-
dure — i.e., during the critical “elimination period” that fol-
lowed his purported “date of disability” — Silver continued
SILVER v. EXECUTIVE CAR LEASING 8913
to experience complications related to his cardiac condition.
He visited a pulmonary specialist, Dr. Fox, whose records
contain mixed news on Silver’s condition — while Dr. Fox
noted that there was only “mild obstruction” of some of Sil-
ver’s blood vessels, he also reported that Silver complained of
shortness of breath, that Silver was experiencing decreased
blood flow on the left side of his body (which another doctor
attributed to a partially occluded artery), and that Silver had
symptoms consistent with chronic bronchitis and emphysema.
Silver also visited a sleep specialist, who diagnosed Silver as
having “obstructive sleep apnea,” a condition related to high
blood pressure and other cardiovascular disease that causes its
sufferers to stop breathing repeatedly during their sleep,
sometime hundreds of times during the night and often for a
minute or longer. Again during the elimination period Silver
returned to the emergency room after waking up with “sharp,
stabbing” chest pain. The medical records from this visit con-
tain mixed results. Some tests indicated an “abnormal resting
electrocardiogram” and “changes of uncertain significance” in
Silver’s heart condition, including one diagnosis that sus-
pected partial blockage of his “left subclavian” artery. With
other tests, doctors noted that there had been improvement in
the area where angioplasty had been performed, and they ulti-
mately released Silver from the hospital without change in his
medical condition. Throughout the elimination period, Silver
worked with Dr. Tonkon on a program of cardiac rehabilita-
tion; due to concerns about being able to drive safely to and
from the proper medical facilities, he pursued this rehabilita-
tion program at home.
Following the end of the 90-day elimination period, Sil-
ver’s cardiac woes continued. He returned to Western Medi-
cal Center on May 28, 2001, complaining of chest pain. Once
again, doctors found his heart in poor condition, with his right
coronary artery and his left anterior descending artery nearly
completely blocked. Again, doctors performed an angioplasty
procedure. This third angioplasty procedure was completed
with “no complications,” and Silver was again released.
8914 SILVER v. EXECUTIVE CAR LEASING
Thereafter, Silver successfully pursued a claim for disability
benefits from the Social Security Administration (SSA).
Though the SSA ultimately determined that Silver was enti-
tled to benefits as a result of a psychological exam diagnosing
him with affective mood disorder, the SSA also determined
that Silver “became disabled under our rules on December 14,
2000,” indicating that Silver’s psychological problems were at
least related to, if not triggered by, his cardiac condition and
the angioplasty procedure that took place on that date.
UNUM ultimately rejected Silver’s claim, ruling that Sil-
ver’s cardiac condition had substantially improved following
the angioplasty procedure and that he therefore had not dem-
onstrated that he was continuously disabled during the 90-day
elimination period, which expired on March 14, 2001.
UNUM’s letter stated: “After comprehensive review of the
medical information in file, it is our medical department’s
opinion that your cardiac condition was resolved within the
elimination period and no longer precludes you from perform-
ing the material and substantial duties of your occupation as
a sales manager.”1 Letter from Patrick Taylor, Associate Cus-
tomer Care Specialist, UNUM Life Insurance Company, to
Marc S. Silver, at 1 (May 4, 2001) (hereinafter “UNUM Let-
1
Silver argues that UNUM’s letter denying benefits did not adequately
explain the company’s decision to reject his claim and thereby deprived
him of the ability to challenge that decision effectively. We are satisfied
that the denial letter met the requirements set forth in the applicable fed-
eral regulations. See 29 C.F.R. § 2560.503-1(g). The letter explained why
Silver’s claim was denied and pointed to the specific provision in the Pol-
icy on which the decision was based, i.e. the clause relating to the elimina-
tion period. Further, UNUM advised Silver why UNUM considered the
claim inadequate, including the basis for its judgment that a restriction on
working was “medically unnecessary,” and it informed Silver about how
to obtain a review of UNUM’s decision. We hold that UNUM’s denial let-
ter complied strictly with applicable federal regulations and that it satisfied
the “common sense” requirement that plan administrators engage in
“meaningful dialogue” with claimants about the reasons for denying their
claims. Booton v. Lockheed Med. Benefit Plan, 110 F.3d 1461, 1463 (9th
Cir. 1997).
SILVER v. EXECUTIVE CAR LEASING 8915
ter”). UNUM based its ruling on the conclusions of its in-
house medical personnel that Silver’s cardiac condition had
stabilized and that “[t]here is no documented indication of
continued chest pain.” Id. at 2. Silver pursued an administra-
tive appeal, which UNUM denied.
Silver then filed this lawsuit to contest UNUM’s decision.
The district court found that de novo review of UNUM’s rul-
ing was appropriate because the ERISA plan adopted by
Executive Car Leasing did not give UNUM discretionary
authority to make benefit determinations and to interpret the
plan. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S.
101, 115 (1989); Bendixen v. Standard Ins. Co., 185 F.3d 939,
942 (9th Cir. 1999); see also Kearney v. Standard Ins. Co.,
175 F.3d 1084, 1090 & n.2 (9th Cir. 1999) (en banc) (holding
that a policy with similar terms rendered the insurance com-
pany’s decision subject to de novo review). The district court
conducted this de novo review of the UNUM decision with a
bench trial.2 Following the bench trial, the district court
(Text continued on page 8917)
2
In general, a district court may consider only evidence within the
administrative record at the time of the administrator’s decision. See Taft
v. Equitable Life Assurance Soc’y, 9 F.3d 1469, 1472 (9th Cir. 1993). This
restriction is based on the principle that federal district courts should not
function “as substitute plan administrators,” and that expanding the record
on appeal “would frustrate the goal of prompt resolution of claims by the
fiduciary under the ERISA scheme.” Id. (quoting Perry v. Simplicity
Eng’g, 900 F.2d 963, 967 (6th Cir. 1990)). Yet there is an exception to this
general exclusionary rule where, as here, a federal court reviews an
administrator’s decision de novo. See Mongeluzo v. Travenol Long Term
Disability Benefit Plan, 46 F.3d 938, 943-44 (9th Cir. 1995). The Ninth
Circuit “permits the district court in its discretion to allow evidence that
was not before the plan administrator,” but we have advised that “[t]he
district court should exercise its discretion . . . only when circumstances
clearly establish that additional evidence is necessary to conduct an ade-
quate de novo review of the benefit decision.” Id. at 944 (quoting Quesin-
berry, 987 F.2d at 1025). See also Bendixen v. Standard Ins. Co., 185 F.3d
939, 944 & n.2 (9th Cir. 1999).
Here, Silver contests some of the evidentiary rulings made by the dis-
trict court during the bench trial. We conclude that none of the items
8916 SILVER v. EXECUTIVE CAR LEASING
excluded by the district court were necessary to its de novo review. The
first, a formal letter from the Social Security Administration describing its
approval of Silver’s application for benefits, merely repeats information
that was already available to UNUM. The second, a report prepared by a
“vocational expert,” which describes the requirements of Silver’s job and
opines that his heart condition rendered him unable to perform them, con-
tains new information only about undisputed facts (e.g., the stressful
nature of Silver’s job) and otherwise merely reviews medical records
already contained in the record. And the third, a letter written by Silver’s
attorney in response to UNUM’s decision to deny Silver’s administrative
appeal, contains only argument disputing UNUM’s decision — argument
that Silver presented directly to the district court when it argued the case
at trial. Because none of these items of evidence was necessary to the dis-
trict court’s de novo review, we hold that the court did not abuse its discre-
tion by excluding them.
We further reject Silver’s argument that the district court improperly
admitted documents prepared by UNUM in the course of the administra-
tive appeal. Silver contends that UNUM unfairly kept the record open for
itself after closing the record to him, but there is no other way that UNUM
could have addressed Silver’s appeal except by waiting until he had sub-
mitted all of his material. Simply put, in order for UNUM to evaluate Sil-
ver’s administrative appeal fairly, it had to wait until Silver had submitted
all of his materials; for UNUM to do otherwise would either undermine
Silver’s ability to present all of his supporting information or lead to an
interminable back-and-forth between the plan administrator and the claim-
ant. Further, the paperwork generated by UNUM in the course of its
review was fully disclosed to Silver during trial at the district court, at
which point Silver had ample opportunity to respond.
Finally, we reject two other evidentiary objections raised by Silver.
First, we conclude that the district court properly excluded a 46-page dec-
laration submitted by Silver’s attorney; that declaration, which was sub-
mitted in response to the court’s request for post-trial briefing, contains
legal argument that was not appropriate for a declaration, as well as analy-
sis of complex medical procedures as to which Silver’s attorney would not
have been competent to testify. See Fed. R. Civ. P. 56(e) (providing that
declarations “shall set forth such facts as would be admissible in evidence,
and shall show affirmatively that the affiant is competent to testify to the
matters stated therein”). The district court also properly rejected Silver’s
request for judicial notice. The sixteen exhibits attached to that request
included more than 250 pages of medical materials from sources as
SILVER v. EXECUTIVE CAR LEASING 8917
upheld UNUM’s decision. In rendering its decision, the dis-
trict court adopted wholesale and verbatim 25 pages of factual
findings and legal conclusions that UNUM had proposed.
Like UNUM — or, more accurately, via UNUM’s attor-
neys — the district court concluded that Silver had failed to
meet the burden of proving his disability. The court found
that, because Silver had failed to provide sufficient proof of
his disability and had not returned to work after the elimina-
tion period, coverage under the Policy had terminated.
Accordingly, the district court entered judgment in favor of
UNUM.
Silver appealed the district court’s decision. We have juris-
diction under 28 U.S.C. § 1291.
II. STANDARD OF REVIEW
Where, as here, a district court has conducted a de novo
review of an ERISA plan administrator’s decision, we review
the court’s factual findings only to determine whether they are
“clearly erroneous.” Kearney, 175 F.3d at 1095. Even when
a district court adopts wholesale the findings of fact proposed
by one party, as the district court did here, we do not alter this
standard of review. See Anderson v. City of Bessemer, 470
U.S. 564, 572 (1985) (“[E]ven when the trial judge adopts
proposed findings of fact verbatim, the findings are those of
the court and may be reversed only if clearly erroneous.”);
Barnett v. Sea Land Serv., Inc., 875 F.2d 741, 745 (9th Cir.
1989) (“We refuse to apply a stricter standard of review based
diverse as Yahoo!Health and the website for the Japanese Circulation
Society; we agree that these items were not sufficiently reliable to be judi-
cially noticeable, and that Silver has not demonstrated that their exclusion
was prejudicial to him. See FED. R. EVID. 201(b) (requiring requests for
judicial notice to set forth facts that are “capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be
questioned”).
8918 SILVER v. EXECUTIVE CAR LEASING
on the fact that the district court may have adopted certain
findings proposed by either party.” (citing Bessemer, 470 U.S.
at 572)).
Nonetheless, the wholesale and verbatim adoption of one
party’s findings requires us to review the record and the dis-
trict court’s opinion more thoroughly. The Ninth Circuit has
reiterated, both before and after the Supreme Court’s decision
in Bessemer, that it reviews a district court’s findings of fact
“with special scrutiny” when a district court “engage[s] in the
regrettable practice of adopting the findings drafted by the
prevailing party wholesale.” Sealy, Inc. v. Easy Living, Inc.,
743 F.2d 1378, 1385 (9th Cir. 1984); see also In re T.H. Rich-
ards Processing Co., 910 F.2d 639, 643 n.2 (9th Cir. 1990)
(quoting Sealy, 743 F.2d at 1385). Thus, we review the dis-
trict court’s decision “with special scrutiny,” Sealy, 743 F.2d
at 1385, to determine whether its findings were “clearly erro-
neous,” Bessemer, 470 U.S. at 572. While there is some disso-
nance between the deferential standard of review we now
apply and our practice of scrutinizing the findings of a district
court that uncritically adopts the proposed opinion of the vic-
torious party, these two lines of authority are not incompati-
ble; indeed it is entirely consistent to review a district court’s
conclusions for clear error, while applying that standard of
review with a careful inspection of the record. See Commodi-
ties Futures Trading Comm’n v. Topworth Int’l, Ltd., 205
F.3d 1107, 1112 (9th Cir. 1999) (noting that factual findings
are “reviewed for clear error, but with particularly close scru-
tiny [where] the district court adopt[s] [one party’s] proposed
findings”).
[1] We note that wariness is especially warranted in the
context of an ERISA claim where, as here, the district court
has adopted the proposed factual findings and legal conclu-
sions of a plan administrator who has an inherent, structural
conflict of interest in its position as the ostensible “benefi-
ciary” of the claimant in the case. See Pinto v. Reliance Stan-
dard Life Ins. Co., 214 F.3d 377, 389 (3d Cir. 2000) (noting
SILVER v. EXECUTIVE CAR LEASING 8919
that “the most important reason for deferential review is lack-
ing” when federal courts review the beneficiary determina-
tions of insurance companies in light of “the unique role of
insurance companies within ERISA”). When a district court
adopts wholesale and verbatim the findings and conclusions
of an ERISA plan administrator, it behooves us to review the
district court’s findings carefully to ensure that the trial court
has adequately discharged its responsibility to conduct a de
novo review of the administrator’s decision. See Mongeluzo,
46 F.3d at 943 (emphasizing the obligation of the district
court to conduct a sufficiently thorough review of the record
during the bench trial “to enable the full exercise of informed
and independent judgment”).
III. DISCUSSION
Both UNUM and the district court found that Silver was
not entitled to benefits under the Policy because he had recov-
ered from his disability within the 90-day elimination period.
We hold that this finding is clearly erroneous.
[2] There can be no dispute that Silver was disabled within
the meaning of the Policy’s terms when, on December 14,
2000, he went to the emergency room to seek treatment for
his cardiac condition. The sole question is whether, during the
following three months, Silver was able to perform the mate-
rial functions of an admittedly stressful job, or whether his
cardiac condition prevented his return to work during those 90
days.
[3] The district court upheld UNUM’s determination “that
[Silver] was not disabled as of March 14, 2001, the conclu-
sion of the elimination period.” Much of its reasoning, how-
ever, does not withstand scrutiny. For example, the district
court reasoned in part that Silver was not impaired during the
elimination period because he “had worked for approximately
20 years with coronary artery disease, and continued to work
following bypass surgeries and prior angioplasty procedures.”
8920 SILVER v. EXECUTIVE CAR LEASING
Such a finding disregards the progressive and degenerative
nature of Silver’s cardiovascular disease, and it overlooks the
recommendations of Silver’s treating cardiologist, who had
advised Silver only in recent visits that he was in no shape to
be working. Likewise, the findings proposed by UNUM and
adopted by the district court focus myopically on the test
results indicating improvement in cardiovascular function fol-
lowing Silver’s angioplasty procedure. While the post-
angioplasty tests do indeed indicate some improvement in Sil-
ver’s condition as to the affected areas of Silver’s heart, they
fall short of demonstrating Silver’s ability to return to a stress-
ful work environment, especially given the contemporaneous
evidence of ongoing cardiac difficulty. In the same fashion,
UNUM’s in-house specialists and the district court’s opinion
repeatedly refer to Silver’s rehabilitation routine as evidence
of his recovery; these specialists argued that Silver was not
disabled because he had been able to complete an exercise
routine three to four times per week, while ignoring state-
ments establishing that he was still having trouble walking
distances and sometimes could not clean his own house or
bathroom. In short, the district court’s factual findings and
legal conclusions do not reflect a complete examination of the
record and disregard significant evidence recommending the
seriousness of Silver’s impairment.
[4] Contrary to UNUM’s position, Silver presented ample
evidence that his cardiac problems did not dissipate following
his second angioplasty procedure. As noted above, during the
elimination period he visited a pulmonary specialist and a
sleep specialist, and he returned to the hospital after experi-
encing chest pain. Test results from these medical consulta-
tions produced myriad indications that his heart was still
seriously diseased, ranging from a diagnosis of sleep apnea to
high blood pressure (for which he received additional medica-
tion) to an abnormal electrocardiogram to symptoms of bron-
chitis and emphysema. Silver’s cardiologist specifically wrote
to UNUM to indicate the seriousness of Silver’s status: “My
read on a patient that has suffered two myocardial infarctions
SILVER v. EXECUTIVE CAR LEASING 8921
[sic], has undergone two bypass surgeries, and several angio-
plasties, with multiple recurrent admissions for acute coronary
syndromes, is not a patient who should be working under any
conditions.” Letter from Dr. Melvin J. Tonkon to Patrick Tay-
lor, Associate Customer Care Specialist, UNUM Insurance
Company, at 1 (March 30, 2001). This letter further reviewed
Silver’s longstanding and continuing symptoms of angina
(shortness of breath) and a handicapping “inability to walk”
due to claudication (cramping), and it recounted several epi-
sodes within days of the elimination period’s expiration when
Silver had taken nitroglycerin while experiencing “periods of
stress.” Id. Notwithstanding these offers of proof of disability,
UNUM’s medical staff concluded that Dr. Tonkon had failed
to provide “objective evidence to support impairment.” In our
view, the evidence regarding Silver’s status during the elimi-
nation period presents a far more compelling case for ongoing
impairment than either UNUM or the district court recog-
nized.
[5] Moreover, and most importantly, there is additional evi-
dence that Silver’s disability continued long after his hospital-
ization in December of 2000. Indeed, this would be a very
different case, and we would be hard-pressed to make a find-
ing of clear error, if Silver had continued to live without seri-
ous incident after his second angioplasty procedure. If that
were the case, the record would contain only the competing
evaluations of Silver’s cardiologists and consultants and
UNUM’s in-house medical staff. Thus, despite its lopsided
evaluation of the record regarding Silver’s condition during
the elimination period, the district court’s decision would
stand under those circumstances, for the record would provide
“two permissible views of the evidence.” United States v.
Working, 224 F.3d 1093, 1102 (9th Cir. 2000) (en banc). But
that is not what happened here.
[6] What leaves us with the “definite and firm impression
that a mistake has been committed,” Easley v. Cromartie, 532
U.S. 234, 242 (2001), is the fact that Silver returned to the
8922 SILVER v. EXECUTIVE CAR LEASING
emergency room in May of 2001, only weeks after the elimi-
nation period, and required yet another angioplasty procedure
because two of his arteries were nearly completely blocked.
This evidence of continuing heart problems, which again
required hospitalization and invasive medical procedures,
convinces us that UNUM and the district court clearly erred
in ruling that Silver had “recovered” from his cardiac condi-
tion. The district court’s opinion discounts Silver’s subse-
quent return to the operating room, arguing that his cardiac
complications in May of 2001 “did not present evidence [of]
a deterioration in his condition during the elimination period.”
In other words, the court’s position, as articulated by UNUM,
is that Silver would have been entitled to benefits if he had
undergone angioplasty several weeks earlier, but that this
third angioplasty procedure did not provide sufficiently con-
vincing evidence that Silver was actually suffering from any
disability during the elimination period.
[7] We think it incredible that a man in Silver’s physical
condition, though completely disabled due to cardiac condi-
tions in December and the following May, could have had his
“cardiac condition . . . resolved within the elimination peri-
od.” This view stubbornly refuses to recognize that Silver’s
acute symptoms in December of 2000 and May of 2001 were
in fact part and parcel of an ongoing cardiac condition. While
there may have been no acute episode during elimination, the
subsequent record clearly demonstrating continuing disability
due to precisely the same degenerative cardiac disease makes
UNUM’s position untenable. In light of his rehospitalization
in May, we conclude that the only proper interpretation of the
evidence is that Silver suffered from an illness that prevented
him from working under stressful conditions during the three
months after his second angioplasty in December of 2000. We
do not view the Policy as requiring Silver to have needed
angioplasty on each of the ninety days during his elimination
period; rather, we construe it as requiring Silver to demon-
strate, consistent with its plain language, that he could not
perform the material tasks of his job during this 90-day period
SILVER v. EXECUTIVE CAR LEASING 8923
because of his serious heart condition — a condition that
UNUM itself acknowledges had been disabling. We are satis-
fied that Silver had met his burden.
[8] To use a metaphor, UNUM’s position throughout this
litigation has been that a vehicle would be suitable to drive in
the months after its faulty transmission had been replaced,
notwithstanding serious and credible signs pointing to the fact
that the steering wheel was defective and the brakes were
about to fail. Simply put, UNUM never came to terms with
the argument advanced by Silver and his cardiologist that his
disability extended beyond merely the vehicle’s transmission
problem — that is, beyond his second angioplasty and to a
host of ongoing cardiovascular difficulties. See Booton, 110
F.3d at 1463 (noting the disincentive of an ERISA administra-
tor to “come to grips” with a more comprehensive view, albeit
a more sensible one, of a claimant’s physical condition).
Because the evidence, viewed in its entirety, supports no con-
clusion except that Silver was incapable of returning to work
between December 15, 2000, and March 14, 2001, we must
reverse the judgment of the district court.
IV. CONCLUSION
We find that Silver met his burden of proving his disability
under the terms of the Policy issued by UNUM, and we hold
that the district court’s contrary conclusion was clearly erro-
neous. Accordingly, we REVERSE and REMAND for the
district court to calculate an award of benefits consistent with
this opinion.