HARTZ, Circuit Judge.
Plaintiff Bryan K. Nance appeals the district court's entry of summary judgment in favor of Sun Life Assurance Company of Canada (Sun Life) on his claim for long-term disability benefits under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001, et seq. The district court ruled that Sun Life's decision to deny benefits based on Plaintiff's back condition and depression was not arbitrary or capricious. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Louis Dreyfus Natural Gas (Dreyfus) hired Plaintiff to work as an accountant in 1993. In July 1997 Plaintiff was injured in a car accident. Because of his injuries, Plaintiff left work on September 17. He never returned.
As an employee of Dreyfus, Plaintiff was a participant in the company's employee disability benefit plan (the Plan), which was funded and administered by Sun Life. He received short-term benefits under the Plan from September of 1997 through March 4, 1998. According to Sun Life, Dreyfus terminated Plaintiff's employment on March 4. Plaintiff contends that his termination date was March 13, but our decision does not require choosing between the two dates.
In January 1998 Plaintiff made a claim for long-term disability benefits based on a diagnosis of, and surgery for, "left thoracic outlet syndrome" (LTOS), a compression of the nerves and blood vessels between the collarbone and first rib, causing, among other things, pain in the arms. See The Sloane-Dorland Annotated Medical-Legal Dictionary 511 (1992). After initially denying those benefits, Sun Life reconsidered and ultimately approved them on April 27, 1999. During the interim between initial denial and approval of benefits, however, one of Plaintiff's doctors wrote a letter releasing him "to return to his regular activities without restrictions." Based on this letter Sun Life limited Plaintiff's benefits to the period ending one day prior to the date of the doctor's release, or July 21, 1998.
On June 4, 1998, while Sun Life was considering Plaintiff's claim based on LTOS, it received a letter from his surgeon noting that he had become "exceedingly depressed." Then, two weeks after Plaintiff was granted limited long-term benefits, his attorney notified Sun Life of a possible claim for benefits based on a back condition allegedly caused by the same car accident that caused his LTOS. After reviewing additional evidence, Sun Life denied the back claim on June 8, 1999, because (1) it was based on a congenital condition unrelated to his LTOS and (2) the medical records reflected that he did not suffer back pain until after his termination from employment. Two months later Sun Life denied Plaintiff's depression claim, finding again that the evidence did not support the existence of a disabling condition prior to his termination. In February and March 2000 Plaintiff forwarded additional material concerning his back pain and depression, but Sun Life refused to reopen his claim because all levels of appeal had been exhausted.
II. Standard of Review
Summary judgment is appropriate if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "We review the grant of summary judgment de novo, applying the same standard as [should have been applied by] the district court" in reviewing the decision by Sun Life to deny benefits. Amro v. Boeing Co., 232 F.3d 790, 796 (10th Cir.2000). What that standard should be is disputed by the parties on appeal, as it was in district court. Plaintiff urges that we review Sun Life's denial of benefits de novo, whereas Sun Life argues that we must uphold its decision unless we find it to be arbitrary or capricious.
In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), the Supreme Court wrote that a denial of benefits challenged under § 1132 "is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." If the plan grants discretionary authority to the administrator or fiduciary, the exercise of that authority will be set aside only if it is arbitrary or capricious. See Chambers v. Family Health Plan Corp., 100 F.3d 818, 825 (10th Cir.1996).
In applying Firestone, it is essential to focus precisely on what decision is at issue, because a plan may grant the administrator discretion to make some decisions but not others. Plaintiff challenges two decisions by Sun Life in denying him benefits. First, he contends that Sun Life misconstrued the Plan when it decided that he was covered for a disability only if the disability began before his employment with Dreyfus was terminated. Second, he contends that Sun Life erred in its factual decision that he was not disabled at the time of termination. Depending on the specific language of the Plan, the standard for our review of Sun Life's interpretation of the Plan and the standard for our review of Sun Life's fact finding may or may not be the same.
Unfortunately, the arguments in the parties' briefs concerning the standard of review do not distinguish between the two challenged aspects of Sun Life's denial of benefits. In any event, we need address only the standard of review for Sun Life's fact finding. The standard of review does not affect our decision regarding Sun Life's interpretation of the Plan with respect to coverage of disabilities. Assuming, without deciding, that we should apply de novo review, we confirm Sun Life's interpretation later in this opinion. Because Sun Life's interpretation survives the more stringent de novo review, the interpretation could not be arbitrary or capricious.
We now consider whether the Plan confers discretion on Sun Life in finding the facts relating to disability. Some Plan provisions do not use language suggesting discretion. The Plan states that "[i]f Sun Life receives Notice and Proof of Claim that an Employee is Totally or Partially
Relying primarily on the Seventh Circuit's opinion in Herzberger v. Standard Insurance Co., 205 F.3d 327 (7th Cir.2000), Plaintiff argues that the language of the Plan does not grant the plan administrator discretionary authority to determine facts relating to Plaintiff's claim. In our view, however, common meaning, Tenth Circuit precedent, and the weight of authority elsewhere (including Herzberger) support the district court's decision.
Because the issue before us is whether Sun Life properly refused to grant disability benefits based on Plaintiff's depression or back condition, the pertinent language is the requirement that "[p]roof [of long term disability] must be satisfactory to Sun Life." To begin our analysis, we distinguish this language — in particular, the words "satisfactory to Sun Life" — from language in other plans that requires only submission of satisfactory proof, without reference to who must be satisfied. Most circuits that have considered the issue have concluded that the mere requirement to submit satisfactory or adequate proof of eligibility does not confer discretion upon an administrator. See Herzberger, 205 F.3d at 331; Kearney v. Standard Ins. Co., 175 F.3d 1084, 1089-90 (9th Cir.1999) (benefits provided "upon receipt of satisfactory written proof"); Bounds v. Bell Atl. Enters. Flexible Long-Term Disability Plan, 32 F.3d 337, 339 (8th Cir.1994) (claims will be paid "after [the administrator] receives adequate proof of loss"). To say that proof must be "satisfactory" may be to say only that it must meet some objective standard — what a reasonable person would find to be satisfactory. See Herzberger, 205 F.3d at 330-31; Kearney, 175 F.3d at 1089. Construing any ambiguity in plan language in favor of the beneficiary, courts are likely to interpret the term "satisfactory" as conveying such an objective standard, without granting any deference to the factual determinations of the plan administrator. See Kearney, 175 F.3d at 1089-90. Indeed, only one circuit (by an 8-6 margin in an en banc decision) has held that language requiring submission of "satisfactory" proof of loss, without specifying who determines the sufficiency of that proof, is by itself adequate to trigger the arbitrary-and-capricious standard of review. See Perez v. Aetna Life Ins. Co., 150 F.3d 550, 556-57 (6th Cir.1998).
Going one step further in denying that a plan confers discretion, some courts have held that plan language requiring that a claimant "submit[ ] satisfactory proof of Total Disability to [the administrator]" does not confer discretion on the administrator because the language should be construed
On the other hand, when, as in this case, a plan states that the grant or denial of a particular benefit is to be determined by proof satisfactory to the administrator, courts have said that deferential review is proper. See Donato v. Metro. Life Ins. Co., 19 F.3d 375, 379 (7th Cir.1994) ("proof must be satisfactory to us"); Herzberger, 205 F.3d at 331 (describing the language in Donato as "indicat[ing] with the requisite if minimum clarity that a discretionary determination is envisaged"); Ferrari v. Teachers Ins. & Annuity Ass'n, 278 F.3d 801, 806 (8th Cir.2002) (describing plan as stating that "proof must be satisfactory to [the administrator]"); Perez, 150 F.3d at 558 (Boggs, J., dissenting) (disagreeing with majority's opinion that plan language granted discretion, but stating that Donato plan language "clearly gives discretion[ ] ... to the administrator").
Although language in Kinstler, 181 F.3d at 252, suggests that the Second Circuit might disagree,
Kimber v. Thiokol Corp., 196 F.3d 1092, 1098 (10th Cir.1999) (citations and quotation marks omitted). Even so, the district court concluded, and we agree, that Sun Life operated the Plan under a conflict of interest because it was both the insurer and administrator of the fund. Accordingly, we must consider and weigh the conflict as "a factor in applying this flexible standard." Chambers, 100 F.3d at 827.
III. Scope of Record to be Reviewed
Plaintiff argues that certain evidence submitted to Sun Life several months after August 9, 1999 (the date of its last denial of benefits), should be considered on review of Sun Life's decision. We disagree. "In determining whether the plan administrator's decision was arbitrary and capricious, the district court generally may consider only the arguments and evidence before the administrator at the time it made that decision." Sandoval v. Aetna Life & Cas. Ins. Co., 967 F.2d 377, 380 (10th Cir.1992); see Chambers, 100 F.3d at 823. Hence, we will not consider the material submitted by Plaintiff to Sun Life after its decision on August 9, 1999, unless Sun Life acted in an arbitrary or capricious manner by refusing to reopen Plaintiff's claim to consider additional factual submissions.
We find no such error by Sun Life. The Plan states that for long-term disability benefits,
To give Plaintiff the benefit of the latest possible due date for his proof of claim, we assume that his claimed disability caused by a bad back or depression began on the date of his termination of employment in March 1998. (We will hold in the next section of this opinion that Sun Life was correct in deciding that Plaintiff was not covered if the claimed disabilities commenced after his termination from employment.) Because the Elimination Period under the Plan was 180 days, Plaintiff's proof of claim was due, if "possible," within 270 days of his termination from employment — in December 1998, long before his submissions in February and March 2000.
IV. Administrator's Decision to Deny Benefits
Finally, Plaintiff argues that Sun Life's denial of his long-term benefits was based on an unreasonable interpretation of the Plan and was not founded on substantial evidence. We first address the claim regarding interpretation of the Plan. We need not decide whether Sun Life had discretion in interpreting the Plan provisions at issue, because we can affirm Sun Life's interpretation even under de novo review.
A. Interpretation of Plan Provisions
Plaintiff asserts that "[b]oth the Louis Dreyfus Employee Handbook and the LTD policy provide that [his] LTD coverage continued while he was disabled," and that he "is entitled to LTD benefits for all of the disabilities that began during the period he was disabled under the terms of the LTD plan, i.e., from September 17, 1997 to the present." We begin with the policy and then discuss the handbook provisions, which are the pertinent parts of the SPD.
The Plan definitions include the following:
Thus, it is not enough that the disability be caused by an occurrence while the employee is insured; the disability itself must begin while the employee is insured. To determine when an employee is "insured under this Policy," one turns to Plan Section V, entitled "Termination Provisions," which states: "An Employee will cease to be insured on the earliest of the following dates: ... 6. the date employment terminates...." (We need not decide whether any of the other dates would be earlier.) Taken as a whole, the quoted language clearly expresses the requirement that disability begin before the employee is terminated.
Plaintiff apparently contends that exception (a)(ii) applies to him because Section IV, entitled "Benefit Provisions," contains the sentence "LTD premium payments for a Totally or Partially Disabled Employee are waived during any period LTD benefits are payable under this Policy."
Plaintiff's argument fails, however, because the exception applies only to an "Employee." It states that "insurance will be continued for an Employee absent due to a disability...." (emphasis added). The Plan defines "Employee" as "a person who is employed by the Employer, working at least the number of hours shown in Section I, Schedule of Benefits [30 hours per week], and paid regular earnings." The exception benefits an employee who would otherwise be deemed terminated for failure to be "Actively at Work," which, as defined by the Plan, generally means working a full workday. Plaintiff does not, and could not, argue that he was an employee after his termination in March 1998.
Next, Plaintiff claims that language in the Plan provides for continued long-term disability coverage for successive periods of disability. In particular, he argues that his psychiatric disability should be covered because the medical evidence shows he suffered from depression while still receiving benefits based on his LTOS disability. He relies on the following provision of Plan Section IV, "Benefit Provisions," under the heading "Successive Periods":
Plaintiff focuses on the first quoted sentence, ignoring the second. But reading the two sentences together, it is clear that they relate only to how the Elimination Period is calculated. Ordinarily, when an employee becomes totally disabled, the employee cannot start receiving long-term disability payments under the Plan until the disability has lasted 180 continuous days (the Elimination Period). Under the above-quoted language, however, the employee need not wait that period to begin receiving benefits for a second disability if (1) the new disability has a cause related to the cause of the original disability and begins within six months of the end of the original disability, or (2) the new disability begins within a day of the end of the original disability. This language says nothing about what disabilities are covered by the Plan; it assumes the second disability is covered and just sets forth an exception to the usual Elimination Period requirement. In particular, the language
We now turn to Plaintiff's contention that the SPD in the Employee Handbook confers coverage for disabilities that arise during a prior disability. Although he cites to two pages in the handbook, he does not refer to any specific language other than the sentence, "All benefits under the Program will end for you and your eligible dependents if and when you become a part-time employee or your employment terminates, unless you are eligible for LTD benefits." Plaintiff's error is to confuse continuation of benefits with continuation of coverage. The quoted sentence merely informs readers that disability payments — the benefit — can continue even after one leaves employment. It does not say that disability insurance — the coverage — continues after one leaves employment. In other words, once one leaves employment, one is no longer covered for a new disability that arises. Indeed, a chart on the same page as the quoted sentence states that for long-term disability, upon termination of employment "Coverage stops."
Furthermore, the handbook declares: "If there is any discrepancy between this SPD and the actual plan documents, the discrepancy is unintentional, and your rights will be determined in accordance with the plan documents." We have held that "[w]here the SPD incorrectly describes benefits in the plan, to secure relief, [the claimant] must show some significant reliance upon, or possible prejudice flowing from, the faulty plan description." Chiles v. Ceridian Corp., 95 F.3d 1505, 1519 (10th Cir.1996) (internal quotation marks and citation omitted). Plaintiff has not suggested any detrimental reliance or prejudice.
Thus, we agree with Sun Life that Plaintiff is not entitled to coverage under the Plan unless his disability began while he was still employed by Dreyfus.
B. Sun Life's Fact Finding
Having construed the Plan provisions, we now address whether Sun Life was arbitrary or capricious in determining that Plaintiff had not satisfied the requirements for coverage of his claimed disabilities arising from a bad back and depression. The issue with respect to each claim is whether Plaintiff was disabled by the condition by the time of his termination from employment in March 1998. The Plan states:
With respect to the bad-back claim, it is enough to note that (1) when Plaintiff saw an orthopedic surgeon in October 1998, he told the doctor that although he had injured
Turning to the depression claim, Sun Life first learned of a possible claim based on depression when it received a letter written by Plaintiff's surgeon, Dr. Michael Reif, dated May 15, 1998. The letter included the following three sentences:
Sun Life wrote Dr. Reif on August 17 to request further information regarding Plaintiff's depression, including the onset date of Plaintiff's complaints, the medication he was taking, and the name of any treating psychiatric specialist. Dr. Harrison Smith, a clinical psychologist, responded by letter a week later. He had been working with Plaintiff since his accident and was currently seeing him biweekly. He wrote:
On September 3, 1998, Sun Life wrote Dr. Smith to request "a copy of [Plaintiff's] complete medical record, including but not limited to the following:
Dr. Reif and Dr. Smith provided additional records and comments later that month.
On October 19 Sun Life denied Plaintiff's disability claim. The ground for denying disability due to a mental/nervous condition (which is not the ground Sun Life ultimately relied upon) was that he "did not begin seeing a specialist for his
The information acquired by Sun Life shows that Plaintiff's depression claim is a substantial one. Plaintiff saw Dr. Smith on February 16, 1998, at which time his wife reported that he slept all the time and was depressed. Dr. Smith had further contact with the Nances by telephone or office visit on March 4, April 2, and April 10. Also on April 10, Dr. Jim Lowery, a psychiatrist, saw Plaintiff on a referral from Dr. Smith "to evaluate symptoms of depression with suicidal ideation." Plaintiff reported to Dr. Lowery that his job had been terminated on March 13 and he had been denied long-term disability. He said he had been considering suicide for two to three weeks. Dr. Lowery advised him to continue seeing Dr. Smith and to return in two months.
There is little doubt that Plaintiff was emotionally troubled when his employment was terminated. The question is whether he had disabling depression at that time. Given that termination from employment and the simultaneous discontinuation of short-term disability benefits would be emotionally traumatic to anyone, it would not be unreasonable to seek specific information regarding Plaintiff's mental health at the time of termination, rather than a few weeks later. This is what Sun Life did.
Evidence of Plaintiff's mental condition at the time of termination was scanty. Dr. Lowery, who did not see Plaintiff until April 10, could not provide that information. One doctor who saw Plaintiff during the pertinent period was Dr. Reif, Plaintiff's surgeon. He reported to Sun Life: "While it is not clear when I began discussing some depression with [Plaintiff], he clearly has had depressive symptoms and difficulty sleeping and I prescribed Elavil on February 2, 1998, which, in my mind, was to help with pain relief, but with chronic pain, depression is certainly a factor." His office notes for February 2, February 16, and March 16, 1998, did not, however, mention depression. His notes for April 13 state:
Dr. Reif's notes from July 28, 1998, say that "[Plaintiff] is sleeping better, although
The best evidence would probably be Dr. Smith's office notes, but they are almost totally illegible, and he declined Sun Life's request to transcribe them. He did, however, send a letter on September 22, 1998, describing Plaintiff's current condition and stating that "[h]e is clearly disabled." He also agreed to a telephone interview sometime after April 27, 1999. In his interview with Sun Life consulting psychiatrist Dr. Ronald Pies, he stated that his September letter "generally characterized [Plaintiff's] overall condition during the period" from February to September 1998. But he was not more precise about the evidence of Plaintiff's symptoms prior to his termination from employment.
In short, there was minimal evidence of depression, much less disabling depression, in the records of Dr. Reif and Dr. Smith at the pertinent time, and their oral opinions regarding Plaintiff's disability were both vague and many months after the fact. In our view, Sun Life could reasonably determine that the evidence submitted by Plaintiff (which was significantly supplemented by Sun Life's own efforts, such as the interview with Dr. Smith) was insufficient to establish that he suffered from disabling depression at the time of his termination from employment. Even taking into account Sun Life's conflict of interest, we hold that Sun Life's denial of benefits was not arbitrary or capricious.
We briefly note one final argument by Plaintiff. He asserts that Sun Life modified the Plan's definition of total disability by requiring that proof must be by "objective contemporaneous documentation." That phrase, however, does not appear in any rulings by Sun Life on Plaintiff's claims. It appears only in Dr. Pies' reports. Plaintiff presents no evidence that Sun Life imposes an absolute requirement of "objective contemporaneous documentation" of disability, so we have no occasion to decide whether such a requirement would violate the Plan.
The district court did not err in granting Sun Life summary judgment. The judgment is AFFIRMED.