Disability claim verdicts against Hartford

Info here

Doctors Paid To Aid Insurers In Disability Claim Denials

Disability industry's dirty secret: Doctors are hired to deny disability claims on flimsy pretext.

"Dr. Suresh Mahawar, a practicing internist in Fremont, moonlights by reviewing disability cases for University Disability Consortium.


He nearly never disagrees with the insurer.


In 202 cases he was assigned to review for The Hartford Financial Services Group between 2005 and 2007, court records show he only found nine people who were so sick or injured they could not return to work.
"

Discovery, if allowed  by the court, should be used to uncover the financial relationships between the doctor and the insurance company.
More details here

Case law:Court finds Hartford reliance on paper review of medical documentation by a physican grounds for 'Arbitrary and Capricious'

 Here is another case that details how the court has denied Hartford's reliance on paper review of medical documents. Link

Case law:Court finds Hartford reliance on paper review of medical documentation by a physican grounds for 'Arbitrary and Capricious'

This is the text of a related case that seeks to recover plaintiff's attorney fees. The plaintiff prevailed. However, the case mentions that

"This Court held that Hartford’s decision to deny Bowers’s application for long-term disability (“LTD”) benefits was “arbitrary and capricious” based on: (1) Hartford’s conflict of interest in determining whether Bowers was eligible for benefits and when, if ever, benefits should be paid; (2) the failure of Hartford’s medical reviewer to document upon which evidence he rested his decision that Bowers is not disabled; (3) the failure of Hartford’s medical reviewer to consider all evidence, specifically, the Functional Capacity Evaluation, when finding a lack of clinical data documenting Bowers’s disability; and (4) Hartford’s failure to consider the actual requirements of Bowers’s occupation and the circumstances surrounding the Occupational Analysis."

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CONNIE BOWERS, :

:

Plaintiff, : Case No. 2:09-CV-290

:

v. : JUDGE ALGENON L. MARBLEY

:

HARTFORD LIFE AND ACCIDENT : Magistrate Judge King

INSURANCE COMPANY :

:

Defendant. :

:

OPINION & ORDER

I. INTRODUCTION

This matter comes before the Court on Plaintiff, Connie Bowers’s (“Bowers”) Motion for

Attorney’s Fees. (Doc. 38). Pursuant to 29 U.S.C. § 1132(g)(1), Bowers seeks an award of

$23,590.00 in attorney’s fees and $445.98 in costs. For the reasons set forth below, Bowers’s Motion

for Attorney’s Fees is GRANTED.

II. BACKGROUND

On May 17, 2010, this Court issued an Opinion and Order denying Defendant Hartford Life

and Accident Insurance Co.’s (“Hartford”) Motion for Judgment on the Administrative Record and

granting in part Bowers’s Motion for Judgment on the Administrative Record (Doc. 29). This Court

held that Hartford’s decision to deny Bowers’s application for long-term disability (“LTD”) benefits

was “arbitrary and capricious” based on: (1) Hartford’s conflict of interest in determining whether

Bowers was eligible for benefits and when, if ever, benefits should be paid; (2) the failure of

Hartford’s medical reviewer to document upon which evidence he rested his decision that Bowers

is not disabled; (3) the failure of Hartford’s medical reviewer to consider all evidence, specifically,

the Functional Capacity Evaluation, when finding a lack of clinical data documenting Bowers’s

disability; and (4) Hartford’s failure to consider the actual requirements of Bowers’s occupation and

the circumstances surrounding the Occupational Analysis. Bowers v. Hartford Life and Acc. Ins. Co.,

No. 2:09-CV-290, 2010 WL 1963412, at *9 (S.D. Ohio May 17, 2010) (“Bowers I”).1

Based on its finding that Hartford’s denial of Bowers’s LTD benefits was arbitrary and

capricious, this Court remanded the case to the Plan Administrator to determine whether Bowers’s

physical limitations rendered her unable to perform her previous duties as a Senior General Office

Administrator with Kenworth. Id. at *9. Bowers then moved this Court for reconsideration of the

remedy. Bowers argued: (1) that the Court should have ordered a retroactive reinstatement of

benefits, rather than remand the case to the Plan Administrator, and (2) that the Court should have

ordered Hartford to pay pre-judgment interest on the retroactive award. Because remand was a

proper remedy for Bowers’s claim, this Court denied Bowers’s Motion to Alter or Amend the

Judgment. While Bowers’s Motion to Alter or Amend the Judgment was pending, Bowers filed a

Motion for Attorney’s Fees under 29 U.S.C. § 1132(g)(1). That motion is now before the Court.

III. STANDARD OF REVIEW

“In most lawsuits seeking relief under the Employee Retirement Income Security Act of

1974 (ERISA), ‘a reasonable attorney’s fee and costs’ are available ‘to either party’ at the court’s

‘discretion.’” Hardt v. Reliance Standard Life Ins., --- U.S. ---, ---, 120 S.Ct. 2149, 2152 (2010)

(quoting 29 U.S.C. § 1132(g)(1)) (citation omitted). Though the language of the statute is silent

1 For clarity and convenience, the Court’s initial Opinion & Order in this case will be referred to

as “Bowers I,” while the Court’s Opinion & Order on Bowers’s Motion to Alter or Amend the

Judgment will be referred to as “Bowers II.”

2

regarding the degree of success a party must achieve in order to be eligible for an award of

attorney’s fees, in Hardt, the Supreme Court interpreted the language of § 1132(g)(1) to allow an

award of attorney’s fees “‘in its discretion’ . . . ‘to either party’ . . . as long as the fee claimant has

achieved ‘some degree of success on the merits.’” Id. (quoting Ruckelshaus v. Sierra Club, 463 U.S.

680, 694, 103 S.Ct. 3274, 77 L.Ed.2d 938 (1983); 29 U.S.C. § 1132(g)(1)). Additionally, the

Supreme Court cautioned against the use of factor tests to determine a claimant’s eligibility for

attorney’s fees under § 1132(g)(1). The Fourth Circuit’s five-factor test considered in Hardt is

identical to the King test utilized in this Circuit. Compare Hardt, ---U.S.---, 130 S.Ct. at 2155 n.1

(quoting Quesinberry v. Life Ins. Co. of North Am., 987 F.2d 1017, 1029 (4th Cir. 1993) (setting out

the Fourth Circuit test)) and Gaeth, 538 F.3d at 529 (setting out the Sixth Circuit test). The Supreme

Court did not, however, “foreclose the possibility that once a claimant has satisfied this requirement

[some success on the merits], and thus becomes eligible for a fees award under § 1132(g)(1), a court

may consider the five factors adopted by the Court of Appeals . . . in deciding whether to award

attorney’s fees.” Hardt, --- U.S. ---, 130 S.Ct. at 2158 n.8. Hardt, therefore, adds a threshold

determination to a court’s analysis of a motion for fees under § 1132(g)(1). Once a court determines

that a claimant has achieved “some degree of success on the merits,” it may apply a factor test to

determine whether to award fees.

IV. LAW & ANALYSIS

A. HARDT ANALYSIS

Bowers’s eligibility for attorney’s fees and costs under § 1132(g)(1) turns on the question

of whether she has achieved “some degree of success on the merits.” Hardt, --- U.S.---, 130 S.Ct.

at 2158. The “some degree of success” standard is not satisfied if the claimant achieves only “trivial

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success on the merits or a purely procedural victory, but [is satisfied] if the court can fairly call the

outcome of the litigation some success on the merits without conducting a lengthy inquiry into the

question whether a particular party’s success was substantial or occurred on a central issue.” Id.

(internal quotations omitted). In Hardt, the Supreme Court expressly left open the question of

whether a remand order alone, without a finding regarding the plaintiff’s disability, constitutes

“some success on the merits.” Id. at 2159. Since Hardt, lower courts have determined that a remand

requiring the plan administrator to address deficiencies in the original review of a plaintiff’s claim

constitutes “some success on the merits” even if the district court made no determination regarding

the plaintiff’s disability status. See Richards v. Johnson & Johnson, No. 2:08-cv-279, 2010 WL

3219133 at *3 (E.D. Tenn. Aug. 12, 2010) (finding some success on the merits where the plaintiff

achieved a remand requiring the plan administrator to “address the many deficiencies that occurred

during review of Plaintiff’s claim,” and creating the possibility that the defendant plan administrator

might substantiate plaintiff’s disability). Thus, remand does not preclude a finding of “some success

on the merits.”2 Id.

In finding Hartford’s decision to terminate Bowers’s LTD benefits to be arbitrary and

capricious, this Court recognized serious deficiencies in Hartford’s review of Bowers’s claim. For

example, in the course of compiling the report that was the sole basis for Hartford’s denial of

Bowers’s LTD benefits, this Court found that Hartford’s medical reviewer did not examine Bowers,

properly acknowledge the opinions of Bowers’s treating physicians or take the Functional Capacity

Evaluation into account. On remand, Hartford will have to consider this evidence, which may lead

2 After this Court remanded Bowers’s claim, she filed a Motion to Alter or Amend the Judgment.

In that motion Bowers sought a retroactive reinstatement of her LTD benefits. The Court denied

Bowers’s motion finding that remand to the Plan Administrator was an appropriate remedy.

4

to a reinstatement of Bowers’ benefits. This Court, therefore, concludes Bowers has achieved

“some success on the merits” at this remand stage and is, therefore, eligible for attorney’s fees under

§ 1132(g)(1).

B. KING ANALYSIS

Bowers’s eligibility for attorney’s fees, however, does not establish her entitlement to them.

See Hardt, ---U.S. at ---, 130 S.Ct. at 2158 n.8 (“[O]nce a claimant . . . becomes eligible for a fees

award . . . a court may consider the five factors . . . in deciding whether to award attorney’s fees.”)

The factors of the King test must weigh in favor of an award of attorney’s fees before a district court

in this Circuit will exercise its discretion to grant such fees. See Kauffman, 2007 WL 490896 at *1.

The King factors are as follows: (1) the degree of the opposing party’s culpability or bad faith; (2)

the opposing party’s ability to satisfy an award of attorney’s fees; (3) the deterrent effect of an award

on other persons under similar circumstances; (4) whether the party requesting fees sought to confer

a common benefit on all participants and beneficiaries of an ERISA plan or resolve significant legal

questions regarding ERISA; and (5) the relative merits of the parties’ positions. Gaeth, 538 F.3d at

529. Because no single factor is determinative, the Court will consider each factor in turn. Moon v.

Unum Provident Corp., 461 F.3d 639, 642-43 (6th Cir. 2006).

1. Culpability or Bad Faith

This Court’s finding that Hartford’s denial of benefits was arbitrary and capricious does not

mean that the denial was made in bad faith. Foltice v. Guardsman Products, Inc., 98 F.3d 933, 937

(6th Cir. 1996). Rather, “the Court considers the circumstances surrounding the denial,” in order to

determine the level of Defendant’s culpability or bad faith. Kauffman v. Sedalia Medical Center,

Inc., No. 204-CV-543, 2007 WL 490896, at *1 (S.D. Ohio Feb. 9, 2007). It is important to note that

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culpability and bad faith are not synonymous—as is demonstrated by the disjunctive “or” in the King

test. See Pelchant v. Unum Life Ins. Co., No. 3:02CV7282, 2003 WL 21479170, at *2 (N.D. Ohio

June 25, 2006). “Culpability is merely defined as ‘blameworthiness.’” Pelchant, 2003 WL

21479170, at *2 n.1 (citing Black’s Law Dictionary 385 (7th ed. 1999)). Bad faith, on the other

hand, has been defined by the Sixth Circuit as “arbitrary, reckless, indifferent, or intentional

disregard of the interests of the person owed a duty.” Benkert v. Medical Protective Co., 842 F.2d

144, 149 (6th Cir. 1988). See also Foltice, 98 F.3d at 940 (Wiseman, J., dissenting).

While this Court does not find Hartford’s decision was in bad faith, the evidence shows

Hartford was culpable in terminating Bowers’s LTD benefits. The Sixth Circuit has found that

“[w]here a plan administrator engages in an inadequate review of a beneficiary’s claim or otherwise

acts improperly in denying benefits,” the culpability aspect of the King test is satisfied. See Shelby

County Health Care Corp v. Majestic Star Casino, 581 F.3d 355, 377 (6th Cir. 2009). A paper

review that fails to take treating physicians’ opinions into account is an example of an inadequate

review. See Moon v. Unum Provident Corp., 461 F.3d 639, 643-44 (6th Cir. 2006) (reversing the

district court and weighing the culpability factor in favor of petitioner where the administrator’s

physician conducted only a paper review that failed to take into account treating physicians’

opinions). Hartford engaged in such an inadequate review of Bowers’s claim. Hartford’s

independent reviewer, Dr. Baum, failed to credit the opinions of Bowers’s treating physicians,

including the Functional Capacity Evaluation performed by Dr. Bonasso, and offered no reasons

for his failure to do so. Bowers I, 2010 WL 1963412 at *14-*16. While Hartford is not required to

give special deference to Bowers’s treating physicians, it “may not arbitrarily refuse to credit a

claimant’s treating physician.” Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003).

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If the opinion of a treating physician is not credited, the plan administrator “must give reasons for

adopting an alternative opinion.” Williams v. Hartford Life and Acc. Ins. Co., slip op. 2009 WL

3127761, at *10 (S.D. Ohio September 25, 2009) (citing Evans v. Unum Provident Corp., 434 F.3d

866, 877 (6th Cir. 2006)). Because Dr. Baum offered no such explanation as to why his view

differed from Bowers’ treating physicians’ opinion, Hartford, as the insurer did in Moon, engaged

in an inadequate review, which fulfills the culpability standard under the King analysis. Thus, this

Court finds that the first King factor weighs in favor of awarding attorney’s fees.

2. Hartford’s Ability to Satisfy an Award of Attorney’s Fees

Hartford does not dispute their ability to satisfy an award of attorney’s fees. See generally

(Def.’s Memo. Opp.). This factor, therefore, weighs in favor of such an award.

3. Deterrent Effect of a Fee Award

“The key question in analyzing this third factor is . . . whether the fee award [will] have a

deterrent effect on other plan administrators.” Gaeth, 538 F.3d at 532. The deterrent effect on other

plan administrators is likely to have more significance in a case where the defendant is highly

culpable—where “deliberate misconduct is in the offing,” rather than when the plan administrator

has just made an “honest mistake.” Foltice, 98 F.3d at 937. Lack of bad faith should not impact

whether a court finds fees could have a deterrent effect. Moon, 461 F.3d at 645.

In this case, Hartford’s benefits determination does fall within the category of

“misconduct”rather than just an “honest mistake.” Hartford’s plan administrator based its decision

to deny the Bowers’s benefits on the opinion of a medical reviewer who conducted a less than

thorough file review. As discussed earlier, a cursory review of a claimant’s file constitutes culpable

conduct. See Moon, 461 F.3d at 645. Thus, even in the absence of bad faith, an award of attorney’s

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fees here can have a deterrent effect. Similar to the Sixth Circuits’s reasoning for awarding fees in

Moon, awarding Bowers fees will warn plan administrators that “before terminating a plan

participant’s benefits, a plan administrator should ensure that the opinions upon which they rely to

make their decisions are based on a thorough review of the administrative record.” Id. Thus, this

third King factor also weighs in favor of awarding attorneys fees.

4. Conferring a Common Benefit on Plan Participants or Resolving a Significant Legal

Question Under ERISA

Bowers admits that she filed this case for her own benefit. Accordingly, she has not sought

to confer a common benefit on other plan participants. Moon, 461 F.3d at 645. Additionally, no

significant ERISA legal question has been or will be resolved by this case. Bowers argues that her

Motion to Alter or Amend Judgment presented a “novel and unresolved legal issue”: whether

Bowers should continue receiving benefits until Hartford determines Bowers’s eligibility for

benefits under the “any occupation” and the “own occupation” standards. This Court, however, did

not consider the question when ruling on the Motion to Alter or Amend Judgment because it lacked

jurisdiction. Bowers v. Hartford Life and Accident Ins. Co., slip op., No. 2:09-CV-290, 6-7 (S.D.

Ohio Aug. 24, 2010) (“Bowers II”). See also Smith v. Bayer Corp. Long Term Disability Plan, 275

Fed. Appx. 495, 511 (6th Cir. 2008). This Court also noted that the case law cited by Bowers to

support her position that Hartford was required to perform an “any occupation” review prior to the

end of the “own occupation” period did not stand for such a proposition. Bowers II, No. 2:09-CV-

290 at 7. Thus, as Bowers’s case will not resolve any difficult ERISA questions, this factor weighs

against awarding attorney’s fees.

8

5. Relative Merits of the Parties’ Positions

In holding that Hartford’s denial of Bowers’s LTD benefits was arbitrary and capricious, this

Court found that Bowers proved that the plan administrator’s decision-making process in denying

her LTD benefits was inadequate. Rather than reinstating her benefits, however, this Court remanded

the case to Hartford’s plan administrator to re-examine Bowers’s eligibility for LTD benefits.

Bowers, 2010 WL 1963412 at *8-*9. See Bowers II, No. 2:09-CV-290 at 4, 5. It is entirely possible,

therefore, that upon reexamination, the plan administrator again will determine that Bowers is not

entitled to benefits under the plan. When the record leaves open the possibility that the plan

administrator might ultimately prevail, the merits of the claimant’s position are questionable as

compared to the merits of the plan administrator’s. See Gaeth, 538 F.3d at 534. This factor,

therefore, favors Hartford and weighs against awarding attorney’s fees.

6. Summary

None of the factors examined above is alone dispositive. See Foltice, 98 F.3d at 937. The

factors, do, however, inform the discretion of this Court. See id. at 936 (“When exercising the

discretion vested in the district court by 29 U.S.C. § 1132(g)(1), we have said, the district court

should consider the [King] factors . . .”). On balance, three factors weigh in favor of awarding

attorneys fees, and two weigh against. Considering these King factors in light of the evidence on the

record, this Court awards reasonable costs and attorney’s fees to Bowers.

V. REASONABLENESS OF FEES

The starting point for determining the amount of reasonable attorney’s fees is the “lodestar”

amount. Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 551 (6th Cir. 2008). This is calculated

by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly

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rate. Id. “Where the party seeking attorney fees has established that the number of hours and the rate

claimed are reasonable, the lodestar is presumed to be the reasonable fee to which counsel is

entitled.” Pennsylvania v. Del. Valley Citizens Council for Clean Air, 478 U.S. 546, 106 S.Ct. 3088,

92 L.Ed.2d 439 (1986).

A. Hours Reasonable Expended

In determining the hours reasonable expended by a prevailing party’s counsel,

[t]he question is not whether a party prevailed on a particular motion or whether in

hindsight the time expenditure was strictly necessary to obtain the relief requested.

Rather, the standard is whether a reasonable attorney would have believed the work

to be reasonably expended in pursuit of success at the point in time when the work

was performed.

Woolridge v. Marlene Indus. corp., 898 F.2d 1169, 1173 (6th Cir. 1990). Bowers submits that 67.4

hours were reasonably expended by her counsel on this case. Defendants have not objected to the

hours Bowers has claimed. After reviewing counsel’s billing records, the Court finds these hours

reasonable.

B. Reasonable Hourly Rates

Bowers suggests that a reasonable rate in this case is $350 per hour. Bower’s counsel’s

affidavit establishes counsel’s work experience in the ERISA field to justify the rate requested. The

affidavit further established that the market supports the rate requested in this case—Bower’s

counsel has previously worked on other cases at a rate of $350 per hour. Finally, the affidavit sets

out a range of fees that have been approved in this Circuit, ranging from $350 per hour to $550 per

hour, based on the complexity of the work and the experience of the attorney. Defendants have not

objected to the rate Bowers has claimed. This Court finds, based on the above cited reasons, that

$350 per hour is a reasonable rate. As of the time the Motion for Attorney’s Fees was filed, per the

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affidavit of Plaintiff’s counsel, the total amount of fees incurred was $23,590.00, and the total

amount of costs incurred was $445.98 for a total of $24,035.98. This is a reasonable award in this

case.

VI. CONCLUSION

This Court finds Plaintiff Bowers is eligible for attorney’s fees under 29 U.S.C. § 1132(g)(1)

because she has achieved more than trivial success on the merits of her claim. This Court also finds

the King factors weigh in favor of awarding Bowers’s requested attorney’s fees, which are

reasonable with regard to the number of hours and rate requested. Therefore, Bowers’s Motion for

Attorney’s Fees is GRANTED. Defendants are ORDERED to pay Bowers the requested fees and

costs of $24,035.98.

IT IS SO ORDERED.

S/Algenon L. Marbley

Algenon L. Marbley

United States District Judge

Dated: October 19, 2010

11

---

Montour vs Hartford Ninth Circuit

Case law for Ninth circuit. This is important and therefore reproduced below.

Montour v. Hartford Life & Accident Insuranc Co.

  UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

    
November 19, 2009ROBERT MONTOUR, AN INDIVIDUAL; TINA MONTOUR, AN INDIVIDUAL, PLAINTIFFS-APPELLANTS,
v.
HARTFORD LIFE & ACCIDENT INSURANCE COMPANY, A CONNECTICUT CORPORATION, DEFENDANT-APPELLEE.

Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding D.C. No. 2:07-cv-05215-DSF-RZ

Counsel

Bradley P. Knypstra, Knypstra & Associates, Irvine, California, for the plaintiffs-appellants.

Bruce D. Celebrezze, Dennis G. Rolstad (argued) and Erin A. Cornell, Sedgwick, Detert, Moran & Arnold Llp, San Francisco, California, for the defendant-appellee.

The opinion of the court was delivered by: Clifton, Circuit Judge

FOR PUBLICATION

Argued and Submitted June 1, 2009-Pasadena, California

Filed September 14, 2009; Amended November 19, 2009

Before: William A. Fletcher, Richard R. Clifton and Milan D. Smith, Jr., Circuit Judges.

OPINION

This case presents the question of how a district court should apply the abuse of discretion standard when reviewing a decision by the administrator of an employee benefits plan governed by the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29 U.S.C. §§ 1001-1461, when that administrator has a conflict of interest. We conclude that a reviewing court must take into account the conflict and that this necessarily entails a more complex application of the abuse of discretion standard. Specifically, a modicum of evidence in the record supporting the administrator's decision will not alone suffice in the face of such a conflict, since this more traditional application of the abuse of discretion standard allows no room for weighing the extent to which the administrator's decision may have been motivated by improper considerations.
Robert Montour appeals the district court's order granting summary judgment in favor of Hartford Life and Accident Insurance Company in his action challenging Hartford's decision to terminate his long-term disability benefits as an abuse of its discretion. We reverse and, applying the proper standard of review to the facts of this case, conclude that Hartford abused its discretion because its conflict of interest too heavily influenced its termination decision. Accordingly, we remand to the district court for an order reinstating Montour's long-term disability benefits.

I. Background

As an employee of Conexant Systems, Inc. for approximately thirty-seven years, Montour participated in his employer's group long-term disability insurance plan, which is a welfare benefit plan governed by ERISA. Hartford is both the insurer and the administrator of the Plan. The Plan grants Hartford, as the administrator, discretionary authority to interpret Plan terms and to determine eligibility for benefits,*fn1 and it places the burden of proving both initial and ongoing disability on the claimant.

In July 2003 Montour took a medical leave of absence from his position as a telecommunications manager after developing symptoms of acute stress disorder. At the time, he was fifty-five years old. In January 2004, following a period of 180 days during which no benefits were payable under the Plan, Hartford accepted Montour's application for benefits under the Plan and began paying him disability benefits.

At the outset of his psychiatric illness, Montour consulted several times with his primary care physician, Dr. Samuel Park. In September 2003 he began regular psychotherapy sessions with a psychiatrist. His last documented psychotherapy session took place in April 2005.

Meanwhile, in June 2004 Montour consulted Dr. Kenneth Kengla, an orthopedic surgeon, about pain in his right knee and his lower back. Dr. Kengla diagnosed Montour with degenerative changes in both regions and notified Hartford in September 2004 that Montour was at that time also suffering from physical disability that prevented him from returning to the labor force. In October 2004 Dr. Kengla performed arthroscopic surgery on Montour's right knee. The subject of Montour's back condition did not come up again during their consultations until April 2005. Subsequently, Montour consulted Dr. Kengla about his back pain during appointments in December 2005 and May 2006.

Dr. Kengla consistently maintained to Hartford that Mon-tour remained physically disabled and unable to work in any job as a result of his back and knee impairments. Specifically, he listed the following restrictions on Montour's physical activities: 1) "no sitting for more than 15-20 min[utes] at a time"; 2) "no prolonged walking"; 3) "no standing greater than 15 min[utes] at a time"; 4) "no lifting or carrying greater than 10 [pounds;]" 4) "no work at or above shoulder level"; 5) "no moderate pushing activities"; 6) "no moderate pulling activities"; and 7) "no driving greater than 30 min[utes] at a time."

In November and December 2005 Hartford hired two outside companies to conduct surveillance on Montour over the course of four nonconsecutive days. Video footage from this surveillance depicted Montour driving his car to perform occasional errands, such as picking up his grandchildren from school, going to the pharmacy, and getting a haircut. He was observed once bending at the waist to reach into his car.
In March 2006 a Hartford investigator conducted a personal interview with Montour at his home, during which Montour listed a "bad back, [an] arthritic right knee, and sleep apnea" as the "disabling medical condition(s)" preventing him from returning to work. He also described an inability to concentrate, which he attributed to the medication he must take to treat his "constant pain." The investigator observed that Mon-tour remained alert and responsive during the entire four-anda-half hour interview, although he called the investigator by the wrong name about two hours into the interview. Montour acknowledged that the surveillance video footage accurately depicted his level of functionality. He was physically able to complete the interview, but he demonstrated signs of pain in front of the investigator, such as moaning when he stood up or twisted, walking around his house stiffly with a slight limp, and complaining of back pain three times during the final two hours.

In May 2006 a Hartford nurse case manager submitted letters to Dr. Kengla and Dr. Park surmising that Montour was capable of performing "sedentary to light" work and soliciting their agreement. Dr. Park signed and returned the letter, which signified that he either agreed or found "no contraindications to this work capacity level." Dr. Kengla, on the other hand, indicated that he disagreed with Hartford's conclusions, citing Montour's persistent orthopedic symptoms and physical restrictions.

In July 2006 Hartford hired a consulting physician, Dr. Gale Brown, to conduct a file review. Dr. Brown analyzed Montour's medical records for the 2003-2006 period, including X-rays and MRIs of Montour's lower back taken in June 2004 and May 2006, Montour's pharmacy records for the 2004-2006 period, Hartford's surveillance video and accompanying reports, and the personal interview report. He also spoke with Dr. Kengla on the phone. Dr. Brown concluded that medical evidence supported the existence of a lower back condition called "degenerative spondylostenosis/DDD" but that Dr. Kengla's offered restrictions were excessive for this "mild to moderate" condition and understated Montour's demonstrated and admitted physical abilities. Dr. Brown acknowledged that medical evidence supported Montour's chronic pain but found that Montour was nevertheless capable of working full-time with modest restrictions, such as changing positions every thirty to forty-five minutes.

Hartford next enlisted a vocational rehabilitation expert to compile an Employability Analysis Report, which evaluated Montour's experience, qualifications, and the physical restrictions identified by Dr. Brown. That expert concluded that Montour was capable of working in a high-level managerial capacity in five different fields.

In August 2006 Hartford informed Montour of its decision to terminate his benefits in light of its conclusion that he no longer met the policy's definition of disability. Montour appealed this decision internally and included a vocational appraisal report by Gene Bruno. The Bruno report concluded that Montour was "not employable in any setting" and that Hartford's decision was based on numerous mistakes, including a disregard for the fact that the Social Security Administration (SSA) considered Montour to be "totally disabled."

In response, Hartford hired Dr. Renat Sukhov to conduct a second file review. Dr. Sukhov reviewed Montour's records for evidence of a physical condition that would preclude sedentary work and, like Dr. Brown, found none. He noted in particular a lack of objective, clinical data demonstrating the extent to which Montour's pain impacted his functionality. He also noted that Montour's activities depicted on the surveil-lance videos exceed the activity requirements of a sedentary job. Dr. Sukhov concluded that Montour could work, at minimum, in a sedentary job with reasonable restrictions, such as avoiding static work posture, not lifting objects weighing more than twenty pounds, and not pushing or pulling loads weighing more than thirty to thirty-five pounds.

In light of concerns raised in the Bruno report, Hartford also requested a vocational specialist to conduct an Employability Analysis Report addendum, which reached the same conclusion as the Employability Analysis Report regarding the sedentary nature and thus the feasibility of the five proposed managerial positions. In February 2007 a Hartford appeal specialist affirmed the company's previous decision to terminate Montour's benefits.

Having exhausted his administrative remedies, in June 2007 Montour and his wife, Tina Montour, filed suit against Hartford in California Superior Court to recover benefits under ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B). The complaint also alleged breach of fiduciary duty, promissory estoppel, invasion of privacy, intentional infliction of emotional distress, and loss of consortium. Hartford removed the case to the Central District of California and promptly moved to dismiss. The district court dismissed the causes of action for breach of fiduciary duty and promissory estoppel, remanded the claims for invasion of privacy, intentional infliction of emotional distress, and loss of consortium back to state court, and proceeded to hold a bench trial on the administrative record for the remaining ERISA benefits recovery claim.

In April 2008 the court entered its Findings of Fact and Conclusions of Law ordering Judgment in favor of Hartford. The district court concluded that although Hartford had a structural conflict of interest in its position as both the administrator of the insurance policy and the payor of benefits, it did not abuse its discretion in determining that Montour failed to provide sufficient evidence to demonstrate disability within the meaning of the policy.

Montour timely appealed.

II. Standard of Review

The district court's findings of fact in a bench trial on the administrative record are reviewed under the clearly erroneous standard. See Pannebecker v. Liberty Life Assurance Co. of Boston, 542 F.3d 1213, 1217 (9th Cir. 2008); see also Kearney v. Standard Ins. Co., 175 F.3d 1084, 1095 & n.6 (9th Cir. 1999) (en banc). In contrast, we review "a district court's choice and application of the appropriate standard for reviewing benefits decisions by an ERISA plan administrator" de novo. Sznewajs v. U.S. Bancorp Amended & Restated Supplemental Benefits Plan, 572 F.3d 727, 732 (9th Cir. 2009) (internal quotation marks omitted).As for review of a plan administrator's decision, "[t]he Supreme Court has held that a denial of benefits 'is to be reviewed under a de novo standard unless the benefit plan gives the administrator . . . discretionary authority to determine eligibility for benefits or to construe the terms of the plan.' " Burke v. Pitney Bowes Inc. Long-Term Disability Plan, 544 F.3d 1016, 1023 (9th Cir. 2008) (quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)). Where, as here, the plan "does grant such discretionary authority, we review the administrator's decision for abuse of discretion." Saffon v. Wells Fargo & Co. Long Term Disability Plan, 522 F.3d 863, 866 (9th Cir. 2008). The manner in which a reviewing court applies the abuse of discretion standard, however, depends on whether the administrator has a conflicting interest.
[1] In the absence of a conflict, judicial review of a plan administrator's benefits determination involves a straightforward application of the abuse of discretion standard. See Sznewajs, 572 F.3d at 733-35; Boyd v. Bert Bell/Pete Rozelle NFL Players Ret. Plan, 410 F.3d 1173, 1178-79 (9th Cir. 2005). In these circumstances, the plan administrator's decision can be upheld if it is "grounded on any reasonable basis." See Sznewajs, 572 F.3d at 734-35 (internal quotation marks omitted). In other words, where there is no risk of bias on the part of the administrator, the existence of a "single persuasive medical opinion" supporting the administrator's decision can be sufficient to affirm, so long as the administrator does not construe the language of the plan unreasonably or render its decision without explanation. See Boyd, 410 F.3d at 1179; see also Sznewajs 572 F.3d at 733-35.

[2] Commonly, however, the same entity that funds an ERISA benefits plan also evaluates claims, as is the case here. See Metro. Life Ins. Co. v. Glenn, 128 S. Ct. 2343, 2346, 2348 (2008) ("MetLife II").*fn2 Under these circumstances, the plan administrator faces a structural conflict of interest: since it is also the insurer, benefits are paid out of the administrator's own pocket, so by denying benefits, the administrator retains money for itself. Application of the abuse of discretion standard therefore requires a more complex analysis. See Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 965 (9th Cir. 2006) (en banc) ("[T]he existence of a conflict of interest is relevant to how a court conducts abuse of discretion review." (emphasis added)). Simply construing the terms of the underlying plan and scanning the record for medical evidence supporting the plan administrator's decision is not enough, because a reviewing court must take into account the administrator's conflict of interest as a factor in the analysis. See MetLife II, 128 S. Ct. at 2346, 2348, 2350; Abatie, 458 F.3d at 968-69.
[3] More particularly, the court must consider numerous case-specific factors, including the administrator's conflict of interest, and reach a decision as to whether discretion has been abused by weighing and balancing those factors together. See MetLife II, 128 S. Ct. at 2351-52 (describing the garden variety "combination-of-factors method of review"). Under this rubric, the extent to which a conflict of interest appears to have motivated an administrator's decision is one among potentially many relevant factors that must be considered. Other factors that frequently arise in the ERISA context include the quality and quantity of the medical evidence, whether the plan administrator subjected the claimant to an in-person medical evaluation or relied instead on a paper review of the claimant's existing medical records, whether the administrator provided its independent experts "with all of the relevant evidence[,]" and whether the administrator considered a contrary SSA disability determination, if any.*fn3 See MetLife II, 128 S. Ct. at 2352; see also Saffon, 522 F.3d at 869-73.The weight the court assigns to the conflict factor depends on the facts and circumstances of each particular case. For example, the Supreme Court has explained that this factor

should prove more important (perhaps of great importance) where circumstances suggest a higher likelihood that it affected the benefits decision, including, but not limited to, cases where an insurance company administrator has a history of biased claims administration. 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, for example, by walling off claims administrators from those interested in firm finances, or by imposing management checks that penalize inaccurate decisionmaking irrespective of whom the inaccuracy benefits.

MetLife II, 128 S. Ct. at 2351 (internal citation omitted and emphases added); see also Abatie, 458 F.3d at 967 (holding that in weighing a conflict of interest, the court's discretionary review must be "informed by the nature, extent, and effect" that conflict may have had "on the decision-making process").Our court has implemented this approach by including the existence of a conflict as a factor to be weighed, adjusting the weight given that factor based on the degree to which the conflict appears improperly to have influenced a plan administrator's decision. See Abatie, 458 F.3d at 968; see also Nolan v. Heald College, 551 F.3d 1148, 1153-54 (9th Cir. 2009); Saffon, 522 F.3d at 867-68. These cases should not be mistaken to imply that the existence of a conflict of interest alters the standard of review itself, rather than merely its application. As Abatie explicitly held, if a conflict of interest exists, "abuse of discretion review applies" and "that conflict must be weighed as a factor in determining whether there is an abuse of discretion." 458 F.3d at 965 (internal quotation marks and alteration omitted). In fact, Abatie "conscious[ly] reject[ed]" the "sliding scale metaphor" that some other circuits had adopted, which involved adjusting the level of "deference" or "scrutiny" in the standard of review itself in proportion to the "seriousness of the conflict." Id. at 967 (internal quotation marks omitted); see also id. at 968 ("[I]n any given case, all the facts and circumstances must be considered, and nothing 'slides[.]' "). This comports with the Supreme Court's more recent pronouncement "that a reviewing court should consider [a] conflict as a factor in determining whether the plan administrator has abused its discretion in denying benefits[,] and that the significance of the factor will depend upon the circumstances of the particular case." MetLife II, 128 S. Ct. at 2346.

[4] In any event, Abatie explained that the court should adjust the level of skepticism with which it reviews a potentially biased plan administrator's explanation for its decision in accordance with the facts and circumstances of the case. See 458 F.3d at 969; see also Saffon, 522 F.3d at 868. If those facts and circumstances indicate the conflict may have tainted the entire administrative decisionmaking process, the court should review the administrator's stated bases for its decision with enhanced skepticism: this is functionally equivalent to assigning greater weight to the conflict of interest as a factor in the overall analysis of whether an abuse of discretion occurred.

[5] In clarifying the standard of review, Abatie abrogated a line of cases, including Jordan v. Northrop Grumman Corporation Welfare Benefit Plan, 370 F.3d 869 (9th Cir. 2004), and Bendixen v. Standard Insurance Company, 185 F.3d 939 (9th Cir. 1999), to the extent that the cases directed reviewing courts to disregard structural conflicts of interest and affirm an administrative decision "grounded on any reasonable basis," unless a plaintiff could produce sufficient evidence that the conflict was "serious." See Abatie, 458 F.3d at 966-67, 969. This more traditional application of the abuse of discretion standard allowed no room for a reviewing court to factor the existence of a conflict of interest into the analysis. See Jordan, 370 F.3d at 878-80; Bendixen, 185 F.3d at 944. In the wake of Abatie, therefore, the traditional application of administrative discretionary review that our court still applies in cases where no conflict exists does not apply to the review of a decision by an inherently conflicted plan administrator. See, e.g., Sznewajs, 572 F.3d at 734-36 (holding that "[u]nder the deferential standard which courts must use to review the administrator's interpretation in the absence of any evidence of conflict of interest," the "plan administrator's decision to deny benefits must be upheld under the abuse of discretion standard if it is based upon a reasonable interpretation of the plan's terms and if it was made in good faith" (internal quotation marks omitted and emphasis added)).

For this reason, the district court's reliance in this case on Boyd, another decision in which there was apparently no evidence of a conflict of interest, was incorrect. See 410 F.3d at 1178-79. The district court acknowledged there were "signs of bias in Hartford's determination" but, applying Boyd, deemed itself capable of reversing Hartford's decision as an abuse of discretion "only . . . if it [found] clear error in Hart-ford's determination" that Montour failed to provide sufficient evidence to demonstrate his disability. (Emphasis added.) While the district court found that Hartford's conflict of interest tainted much of the administrative decisionmaking process, its "analysis of the plan administrator's basis for terminating benefits does not include any discussion of the role that . . . conflict of interest may have played in [Hartford]'s decision nor appear to give that conflict any weight." MetLife I, 461 F.3d at 666. Likewise, the court acknowledged the dissonance between the SSA's disability determination and Hart-ford's contrary conclusion, but it does not appear to have given this factor adequate consideration or weighed it against other factors. Instead, the court relied on Boyd, a case involving no conflict and thus a less complex application of the abuse of discretion standard, to conclude that no abuse of discretion occurred because the record contained some medical evidence supporting Hartford's decision to deny benefits. In fact, the language of the district court's decision suggests that because of that evidence, the court felt itself obliged to affirm, irrespective of any taint. After Abatie, this is incorrect.

[6] As the district court's decision did not appropriately balance the pertinent factors, and in particular the conflict factor, we proceed to do so here. Judicial review of an ERISA plan administrator's decision on the merits is limited to the administrative record,*fn4 so "we are in the same position as the district court . . . ." See Moapa Band of Paiute Indians v. U.S. Dep't of Interior, 747 F.2d 563, 565 (9th Cir. 1984); see also, e.g., Ranchers Cattlemen Action Legal Fund United Stock-growers of Am. v. U.S. Dep't of Agric., 499 F.3d 1108, 1114-15 (9th Cir. 2007) (reaching the merits in a case requiring administrative record review because the court of appeals faced the same task as the district court did). Therefore, while we accept the district court's factual findings, we apply the standard of review de novo. See Ramstad v. Hodel, 756 F.2d 1379, 1382 (9th Cir. 1985).

III. The Merits

[7] We begin with the district court's comprehensive description of the "signs of bias" exhibited by Hartford throughout its decisionmaking process:Hartford was both the plan administrator and funder of the Plan, and evidence of this conflict of interest appears throughout the record. For example, in its letters to Plaintiff, Hartford overstates and over-relies on surveillance of Plaintiff. Plaintiff was observed over forty daylight hours on four days in November and December 2005. During this time, he was observed making two twenty minute trips to pick up or drop off his grandchildren from school and one trip of about two and a half hours conducting errands at various stores. He was also observed to be away from his home on two occasions for about an hour and forty minutes. During this time, he was observed bending once at the waist and picking up a small bag of medication.

This observed activity was brief and consistent with Plaintiff 's self-reported limitations. Plaintiff admitted that he was able to drive for up to thirty minutes, could walk short distances, and could lift objects lighter than five pounds. Yet Hartford claimed that Plaintiff 's "self-reported limitations were not consistent with his observed activities." Hartford strung together a laundry list of discrete activities observed over the course of four days, suggesting that Plaintiff was capable of sustaining those activities throughout the day, as would be required in a sedentary occupation. However, that Plaintiff could perform sedentary activities in bursts spread out over four days does not indicate that he [ ]is capable of sustaining activity in a full-time occupation.

Furthermore, despite its own internal observation that Plaintiff walked "in a slightly stiff and slow manner" and entered his car in "a somewhat slow and deliberate manner", Hartford indicates that Plaintiff "did not show any limitation in his movement and demonstrated no sign of physical distress." This statement is also inconsistent with Hartford's report on the in-home interview, which noted that Plaintiff showed signs of pain and discomfort, moaning the majority of times that he stood or twisted.Hartford's attempts to obtain information from Plaintiff 's physicians were marred by this overstatement of the surveillance findings, as well as apparent advocacy for the position that Plaintiff was not disabled. In the letter sent to Drs. Park and Kengla, Hartford again strung together discrete activities observed in short bursts over several days, stated that he was seen "walking at a brisk pace," and noted that his activities were "performed without apparent difficulty, hesitation, or the use of assistive devices." Instead of noting the observations of pain seen during Plaintiff 's in-home interview, the letter stated that Plaintiff "displayed minimal physical or mental limitation" while participating in the interview.

In response to this letter, Dr. Park, who saw Plaintiff twice a year and was not treating him for his back condition, stated that he either agreed or found no contraindication to the sedentary work capacity suggested by Hartford. Dr. Kengla, who saw Plaintiff once a month for the conditions that rendered him disabled, stated that Plaintiff remained disabled. Dr. Park was apparently less familiar with Plaintiff 's condition and thus more apt to be swayed by Hartford's slanted presentation of the facts. Nonetheless, Hartford found the disagreement between Dr. Park and Dr. Kengla to be significant, and sent Plaintiff 's file to Dr. Brown for independent review.

Although he based his opinion on a number of factors, Dr. Brown relied on both the surveillance and the conflict of opinion between Drs. Park and Kengla in reaching the conclusion that Plaintiff was able to return to work. In conducting a further review of Plaintiff 's medical records after Plaintiff appealed the denial of benefits, Dr. Sukhov again overemphasized the surveillance, stating that the "video clearly shows the claimant performing activities above those required for a sedentary job." As noted above, this was clearly not the case.Thus, there is a common theme, both in Hartford's communications with Plaintiff and in the assessments of those professionals Hartford hired to evaluate Plaintiff 's condition, of presenting evidence of capability in the best possible light, while failing to subject evidence of capability to the same skepticism and rigorous analysis applied to evidence of disability.

(Alterations and internal citations omitted). In other words, Hartford's bias infiltrated the entire administrative decision-making process, which leads us to accord significant weight to the conflict.

[8] Another factor is Hartford's failure to present extrinsic evidence of any effort on its part to "assure accurate claims assessment[,]" such as utilizing procedures to help ensure a neutral review process. See MetLife II, 128 S. Ct. at 2351. To the contrary, in fact, Hartford's nurse case manager took an advocacy position in her letters to Montour's physicians soliciting their agreement with her disability conclusion. While Hartford was not required to present evidence demonstrating its efforts to achieve claims administration neutrality, the Supreme Court's decision in MetLife II placed it on notice as to the potential significance of such evidence in defense of a suit by a claimant challenging an adverse benefits determination. See id. at 2351; cf. id. at 2356 (Kennedy, J., concurring in part and dissenting in part). On the other hand, Montour also did not submit any extrinsic evidence of bias, such as statistics regarding Hartford's rate of claims denials or how frequently it contracts with the file reviewers it employed in this case. See id. at 2351; Abatie, 458 F.3d at 968-69; cf. Nolan, 551 F.3d at 1152 & n.3.

[9] Another factor is Hartford's decision to conduct a "pure paper" review in this case, that is, to hire doctors to review Montour's files rather than to conduct an in-person medical evaluation of him. While the Plan does not require a physical exam by a non-treating physician, in this case that choice "raise[s] questions about the thoroughness and accuracy of the benefits determination[,]" Bennett v. Kemper Nat'l Servs., Inc., 514 F.3d 547, 554 (6th Cir. 2008) (quotation marks omitted), as it is not clear the Plan presented Dr. Brown and Dr. Sukhov "with all of the relevant evidence." MetLife II, 128 S. Ct. at 2352. Specifically, neither of Hartford's professional experts mentioned the SSA's contrary conclusion, "not even to discount or disagree with it, which indicates that [they] may not even have been aware of it." See MetLife I, 461 F.3d at 669 (internal quotation marks and alterations omitted).

In its decision to terminate Montour's benefits, Hartford relied significantly on the conclusions reached by Dr. Brown and Dr. Sukhov. Dr. Brown, who conducted the first file review, diagnosed Montour with a "mild to moderate" back condition that he felt should not cause Montour as much pain as he was reportedly suffering. Likewise, the second file reviewer, Dr. Sukhov, based his conclusion of non-disability in part on the lack of objective medical data to support Montour's alleged pain levels, in addition to the lack of a self-reported pain scale or some form of quantification of the impact of his pain on his functional abilities. It would probably have been unreasonable for Hartford to require Montour to produce objective proof of his pain level, per Dr. Sukhov, or to reject his subjective claims of "excess pain" based solely on Dr. Brown's observation. See Smolen v. Chater, 80 F.3d 1273, 1281-82 (9th Cir. 1996); Fair v. Bowen, 885 F.2d 597, 601-03 (9th Cir. 1989); see also Saffon, 522 F.3d at 872-73 & n.3. However, Dr. Brown and Dr. Sukhov also observed that: (1) Montour's pharmacy records indicate he was using limited and relatively mild pain medication; and (2) his medical records with Dr. Kengla suggest that he had not recently engaged in any pain treatment programs. These observations probably constitute sufficient "objective" evidence to support their conclusion that Montour's pain does not rise to the level of disabling pain. See Orn v. Astrue, 495 F.3d 625, 637-38 (9th Cir. 2007); Fair, 885 F.2d at 602-03.

On the other hand, Dr. Sukhov also fixated on the lack of progression (i.e., lack of further degeneration) in Montour's back condition, as evidenced by X-rays and MRIs taken in June 2004 and May 2006, and Hartford noted this in its decision on appeal. It is not clear "why further degeneration is necessary to sustain a finding that [Montour] is disabled." Saffon, 522 F.3d at 871. Given that Hartford found Montour disabled in 2004 and paid him benefits for over two years, "[i]n order to find [him] no longer disabled, one would expect the MRIs to show an improvement, not a lack of degeneration." Id.

[10] One final factor is Hartford's failure to grapple with the SSA's contrary disability determination. The Plan requires claimants to apply for social security disability benefits from the SSA and, if denied, to exhaust all possible appeals. Hartford emphasized this requirement to Montour in its initial award letter and then again in a separate letter the following month. In March 2004, the SSA concluded that Montour was disabled and awarded him disability benefits retroactively to January 2004. Hartford benefitted from this award significantly, as it received a dollar-for-dollar financial offset, nearly halving its liability. As of April 2005 and December 2006, the SSA considered Montour's disability to be "continuing." In August 2006, Hartford nevertheless concluded that Montour was no longer disabled. Although Montour had immediately forwarded the SSA's April 2005 notice of continuing disability to Hartford, the plan administrator made no mention of the SSA's contrary determination in its initial termination decision. In its decision denying Montour's appeal, Hartford acknowledged the SSA's decision but did not articulate why the SSA might have reached a different conclusion. See MetLife I, 461 F.3d at 671 n.3 (noting that there is a distinction between mentioning a contrary determination and discussing it).

[11] While ERISA plan administrators are not bound by the SSA's determination, complete disregard for a contrary conclusion without so much as an explanation raises questions about whether an adverse benefits determination was "the product of a principled and deliberative reasoning process." See MetLife I, 461 F.3d at 674; see also MetLife II, 128 S. Ct. at 2352; cf. id. at 2361 (Scalia, J., dissenting). In fact, not distinguishing the SSA's contrary conclusion may indicate a failure to consider relevant evidence. See MetLife II, 128 S. Ct. at 2355 (Roberts, C.J., concurring in part and concurring in the judgment).

Unlike the SSA, Hartford was not bound by the treating physician rule, which accords "special weight" to the opinions of a claimant's treating physician. See Black & Decker Disability Plan v. Nord, 538 U.S. 822, 825, 831, 834 (2003) (holding that while ERISA administrators may not arbitrarily ignore a treating physician's opinion, that opinion also is not entitled to any "special deference"). However, this distinction alone does not provide a basis for disregarding the SSA's determination altogether, because in some cases, such as this one, the SSA deploys a more stringent standard for determining disability than does the governing ERISA plan. See, e.g., MetLife I, 461 F.3d at 668 & n.1; Calvert v. Firstar Fin., Inc., 409 F.3d 286, 294 n.4 (6th Cir. 2005). Specifically, after twenty-four months the Plan defines "disability" as being prevented by, inter alia, accidental bodily injury or sickness from performing an essential duty of any occupation for which the claimant is "qualified by education, training or experience" that pays at least as much as the claimant would otherwise be eligible for if receiving benefits under the Plan, which consists of a formula based in part on the claimant's past earnings. The SSA's standard is more strict, defining "disability" as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical . . . impairment" that is of "such severity that [the claimant] . . . cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives." 42 U.S.C. § 423(d)(1)(A), (2)(A). In other words, unlike the Plan, the SSA's standard does not take into account a claimant's past earnings or location. Accord MetLife I, 461 F.3d at 668 n.1; cf. DeLisle v. Sun Life Assurance Co. of Canada, 558 F.3d 440, 446 (6th Cir. 2009) ("Even though [the administrator] did not have the opinion accompanying the notice of award, it still was well aware of the uniform federal standard that applies to Social Security claims.").

Ordinarily, a proper acknowledgment of a contrary SSA disability determination would entail comparing and contrasting not just the definitions employed but also the medical evidence upon which the decisionmakers relied. See, e.g., MetLife I, 461 F.3d at 668. Unfortunately, the administrative record in this case only contains the SSA's award letters without the opinion by the SSA administrative law judge (ALJ) or the SSA administrative record on which that decision was based. This omission makes the process of comparing and contrasting the two opposing disability determinations more difficult.

Although the Plan places the burden on Montour to submit "written proof" of his disability, that is, the pertinent documents and information necessary to facilitate a disability determination, regulations promulgated by the Secretary of Labor authorize, if not require, plan administrators working with an apparently deficient administrative record to inform claimants of the deficiency and to provide them with an opportunity to resolve the problem by furnishing the missing information. See 29 C.F.R. § 2560.503-1(f)(3)-(4), (g)(1)(iii); see also Saffon, 522 F.3d at 870 ("In resolving [Montour]'s claim for benefits, [Hartford] was required to give [him] 'a description of any additional material or information' that was 'necessary' for [him] to 'perfect the claim[.]' . . ." (quoting 29 C.F.R. § 2560.503-1(g)(1)(iii) (alterations omitted))). We have also construed this regulation to require a plan administrator denying benefits in the first instance to notify the claimant not just of the opportunity for internal agency review of that decision but also of what additional information would be necessary "to perfect the claim[.]" Chuck v. Hewlett Packard Co., 455 F.3d 1026, 1032 (9th Cir. 2006).

Although the record reflects that Montour kept Hartford regularly apprised of his continuing disability status with the SSA, Hartford's initial decision in this case made no mention of the contrary SSA disability determination and did not advise Montour that further documentation, such as the ALJ's decision or the underlying administrative record, would facilitate Hartford's review. At the appeals stage, Hartford's sole acknowledgment was that the SSA's contrary determination was "a consideration and part of the totality of the evidence[,]" but it then continued with the statement that its decision "must be based on the weight of the evidence in this file . . . ."

To the extent this latter statement implies that the missing ALJ opinion and underlying record precluded Hartford from attributing much weight to the SSA's contrary determination, this information came too late. See Chuck, 455 F.3d at 1032; Saffon, 522 F.3d at 871 ("Insofar as [Hartford] believed that" additional documentation establishing the reasoning and evidence underlying the SSA's disability determination "was necessary for it to evaluate [Montour]'s claim," it should have said so "at a time when [Montour] had a fair chance to present evidence on this point."); see also 29 C.F.R. § 2560.503-1(h)(2)(iv) (requiring plan administrators to consider documentation submitted by a claimant at the appeal stage). Mon-tour does not challenge the reasonableness of Hartford's claims procedures on appeal. See 29 C.F.R. § 2560.503-1(h)(2), (l). Nevertheless, we explained in Abatie that "an administrator that adds, in its final decision, a new reason for denial, a maneuver that has the effect of insulating the rationale from review, contravenes the purpose of ERISA[,]" and "[t]his procedural violation must be weighed . . . in deciding whether [the administrator] abused its discretion." 458 F.3d at 974.

Ultimately, Hartford's failure to explain why it reached a different conclusion than the SSA is yet another factor to consider in reviewing the administrator's decision for abuse of discretion, particularly where, as here, a plan administrator operating with a conflict of interest requires a claimant to apply and then benefits financially from the SSA's disability finding. See MetLife II, 128 S. Ct. at 2352 ("This course of events [is] not only an important factor in its own right (because it suggest[s] procedural unreasonableness), but also would . . . justif[y] the court in giving more weight to the conflict (because [Hartford]'s seemingly inconsistent positions were both financially advantageous).").[12] Weighing all of the foregoing factors together, we conclude that Hartford's conflict of interest improperly motivated its decision to terminate Montour's benefits. This constituted an abuse of its administrative discretion.
IV. Conclusion

[13] We reverse the district court's summary judgment in favor of Hartford and remand to the district court to enter summary judgment in favor of Montour and to order the reinstatement of long-term disability benefits in accordance with this opinion and the terms of the Plan. See Pannebecker, 542 F.3d at 1221 ("[W]hether the administrator abused its discretion because the decision was substantively arbitrary or capricious, or because it failed to comply with required procedures, benefits may still be reinstated if the claimant would have continued receiving benefits absent the administrator's arbitrary and capricious conduct.").

REVERSED and REMANDED.

 

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 Opinion Footnotes  

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*fn1 Specifically, the policy provides:
Who interprets policy terms and conditions?
We [Hartford] have full discretion and authority to determine eligibility for benefits and to construe and interpret all terms and provisions of the Group Insurance Policy.*fn2 We refer to the Supreme Court's decision as "MetLife II" because we also reference the lower court's opinion, infra, which MetLife II affirmed.*fn3 For example, in MetLife II the Supreme Court endorsed the approach taken by the Sixth Circuit, which weighed three factors, namely, the medical evidence, a contrary SSA disability determination, and the administrator's inherent conflict of interest, and ultimately concluded that the administrator had abused its discretion in denying benefits to the claimant. See Glenn v. MetLife, 461 F.3d 660, 666-74 (6th Cir. 2006) ("MetLife I"), aff'd by MetLife II, 128 S. Ct. at 2351-52 (finding "nothing improper in the way in which the [Sixth Circuit] conducted its review").*fn4 In the ERISA context, the "administrative record" consists of "the papers the insurer had when it denied the claim." See Kearney, 175 F.3d at 1086.