F I L E D

United States Court of Appeals

Tenth Circuit

PUBLISH

MAY 6 2003

UNITED STATES COURT OF APPEALS

PATRICK FISHER

TENTH CIRCUIT

Clerk

LOUISE GILBERTSON,
Plaintiff-Appellant,
v.

No. 01-2324

ALLIED SIGNAL, INC. and LIFE

INSURANCE COMPANY OF
NORTH AMERICA,
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. CIV-99-1065 LH/LFG)
Michael D. Armstrong, Albuquerque, New Mexico, for Plaintiff-Appellant.
Carol Lisa Smith of Krehbiel, Bannerman & Williams, P.A., Albuquerque, New
Mexico, for Defendant-Appellee Allied Signal Inc.; Tracy M. Jenks of Rodey,
Dickason, Sloan, Akin & Robb, P.A., Albuquerque, New Mexico, for DefendantAppellee Life Insurance Company of North America.
Before SEYMOUR and McCONNELL , Circuit Judges, and
Judge. *

KRIEGER , District

McCONNELL , Circuit Judge.

The Honorable Marcia S. Krieger, United States District Judge for the
District of Colorado, sitting by designation.
*

The question in this case is whether an ERISA plan administrators denial

of disability benefits is entitled to deference when the administrator failed to
render a decision within the time limits and the claim was deemed denied by
operation of law.
BACKGROUND
Louise Gilbertson began working for AlliedSignal as an Administrative
Support Coordinator in 1992. In March, 1998, Mrs. Gilbertson consulted her
family physician, Dr. Gwen Robinson, complaining of chronic pain in her neck,
shoulders, and arms, as well as frequent headaches, sleep disturbance, and
difficulty concentrating. Based on these symptoms, and on the discovery of
certain pressure points in Mrs. Gilbertsons neck, shoulders, arms, and legs, Dr.
Robinson rendered a diagnosis of fibromyalgia. 1 Mrs. Gilbertson took short-term
disability leave, which lasted through September 30, 1998. On that date,
AlliedSignal terminated her employment.

A group of common nonarticular disorders characterized by achy pain,

tenderness and stiffness of muscles, areas of tendon insertions and adjacent softtissue structures. The Merck Manual 481 (17th ed. 1999). Since fibromyalgia
only manifests itself through clinical symptoms, there are no laboratory tests that
can confirm the diagnosis. See Dorsey v. Provident Life and Accident Insurance
Co. 167 F.Supp.2d 846, 855 (E.D. Pa. 2001), citing Harrisons Principles of
Internal Medicine 1706-07 (Kurt J. Isselbacher et al. eds. 13th ed. 1994).
1

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Following her termination, Mrs. Gilbertson promptly applied for long-term

disability (LTD) benefits under AlliedSignals Salaried Employees Pension Plan
(the Plan). The Plan is covered by the Employee Retirement Income Security Act
of 1974 (ERISA), 29 U.S.C. 1001 et seq. The Plan names AlliedSignal as the
Plan Administrator and provides the Administrator with discretionary authority to
administer the plan, interpret its terms, and delegate its authority to third parties.
AlliedSignal hired a third party claims administrator, Life Insurance Company of
North America (LINA), to administer the plan and to determine eligibility for
benefits.
In support of her application for LTD benefits, Mrs. Gilbertson submitted
documentation prepared by Dr. Robinson setting forth the diagnosis of
fibromyalgia. LINA then requested that Dr. Robinson provide additional
information, including any abnormal clinical test results. In her response, Dr.
Robinson submitted test results, including blood analysis and urinalysis, all of
which were normal, and reaffirmed her diagnosis of fibromyalgia based on trigger
points and Mrs. Gilbertsons reported symptoms. Dr. Robinson also provided
treatment records, in which Mrs. Gilbertson reported that, though her condition
had improved somewhat due to her participation in water aerobics, tai chi, and
chiropractic treatments, she remained unable to return to work.

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On December 9, 1998, LINA denied Mrs. Gilbertsons application for long

term disability benefits on the ground that she had failed to provide adequate
objective medical evidence demonstrating that she was disabled according to the
Plans definition. 2 In the denial letter, LINA explained that, though Mrs.
Gilbertsons supporting documentation indicated symptoms of fibromyalgia, it did
not adequately address how those symptoms affected her capacity to perform her
work. LINA also noted that the documentation did not explain how symptoms of
more than fifteen months duration had suddenly rendered her unable to work and
that Dr. Robinsons notes actually indicated some improvement from exercise and
other treatments.
The denial letter notified Mrs. Gilbertson of her right to request that LINA
review the denial. The letter encouraged Mrs. Gilbertson to submit additional
information promptly, because LINA would issue a final decision within either 60

The Plan defines disability as:

[A]ny physical or mental condition which, in the judgement

[sic] of the Plan Administrator, based on evidence satisfactory
to the Plan Administrator
(a) will prevent the Member from engaging in his normal
occupation or a substantially comparable occupation; and
(b) will prevent the Member, after he has been disabled for two
years, from performing any occupation for which he is suited
by training and education.
Appellants App. 108.
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days of receiving a request for review, or 120 days, if LINA specified that special
circumstances required the extra time. LINAs explanation of this timeline
mirrors a provision in the Plan requiring the administrator to make a final
decision within the applicable 60- or 120-day deadline. The Plan provision in
turn follows a Department of Labor ERISA regulation that articulates the
applicable deadline and provides further that claims not decided within the
deadline are deemed denied on review:
(1)(i) A decision by an appropriate named fiduciary shall be made
promptly, and shall not ordinarily be made later than 60 days after
the plans receipt of a request for review, unless special
circumstances . . . require an extension of time for processing, in
which case decision shall be rendered as soon as possible, but not
later than 120 days after receipt of a request for review.
...
(4) . . . If the decision on review is not furnished within such time,
the claim shall be deemed denied on review.
29 C.F.R. 2560.503-1(h) (1999). 3
On January 14, 1999, LINA received Mrs. Gilbertsons request for review.
LINA responded on January 28, assuring Mrs. Gilbertson that she would be
notified of a final decision within 60 days of LINAs receipt of the request. On
February 16, LINA sent a fax to Mrs. Gilbertson extending the deadline for

We refer to the Code of Federal Regulations as of 1999. The quoted

regulation, 29 C.F.R. 2560, was amended in 2000, but the amendments apply
only to claims filed on or after January 1, 2002. The amendments, among other
changes, cut the deadline for review of denials of disability claims to 45 days.
3

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additional submissions of medical information until March 31. The February 16

fax was the last communication Mrs. Gilbertson received from LINA.
Mrs. Gilbertson hired an attorney, who sent a letter to LINA on February 25
notifying LINA of his representation. On March 25, Mrs. Gilbertsons attorney
provided LINA with additional medical records from Mrs. Gilbertsons
chiropractor, Dr. Bender, and statements from Mrs. Gilbertsons family, friends,
and supervisor attesting to her disabled condition. On April 7, one week after the
agreed upon deadline for such submissions, Mrs. Gilbertsons attorney provided
more material from Dr. Robinson documenting Mrs. Gilbertsons fibromyalgia
and explaining how its symptoms prevented her from performing her prior job at
AlliedSignal.
LINA apparently took no action on the claim until early May, when the
company referred the file to its medical consultant, Dr. Thomas Franz, for review.
On May 25, Dr. Franz provided LINA with his Physical Case Review. Dr. Franz
agreed that Mrs. Gilbertsons symptoms met the criteria for fibromyalgia, but he
found the functional limitations asserted by Mrs. Gilbertson and her doctors to be
implausible and inconsistent with her ability to derive therapeutic benefit from
aerobics and tai chi. His review recommended that Mrs. Gilbertson be scheduled
for an independent medical examination to include functional capability testing.
Dr. Franzs report was not communicated to Mrs. Gilbertson or her attorney, nor
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did they receive any other communication from LINA or AlliedSignal regarding
the claim.
On June 1, Mrs. Gilbertsons attorney sent a letter to LINA asking the
company to advise whether it would accept or reject the claim. LINA opted to do
neither, deciding instead to refer Mrs. Gilbertson for an independent examination.
LINA, however, neglected to inform Mrs. Gilbertson or her attorney of this
decision, and she therefore had no way of knowing the status of her claim.
Finally, on August 20, Mrs. Gilbertson received a certified letter from
HealthSouth, an institution hired by LINA to perform the independent medical
examination, informing her that she was scheduled for an appointment on
September 9. Mrs. Gilbertson canceled the HealthSouth appointment and,
treating her claim as having been deemed denied by operation of the regulatory
deadline for decision on an appeal, filed suit on August 25.
In federal district court, LINA and AlliedSignal moved for summary
judgment, arguing that LINAs denial of benefits was entitled to judicial
deference under the arbitrary and capricious standard. Mrs. Gilbertson contended
that LINAs failure to meet the ERISA deadline should trigger de novo review.
The district court acknowledged that LINA had failed to meet the deadline, but
nevertheless applied the deferential standard of review. The district court seems
to have determined, based on the cases cited by the parties, that where an
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administrator with discretionary authority renders an initial decision and does not
subsequently change its reasoning, the courts should apply a deferential standard
even if the appeal is deemed denied as a result of delay. The district court also
found it important that Mrs. Gilbertson herself had acted outside the Plans time
limits in that she asked for extensions of the deadline to submit materials,
continued to submit materials past the agreed-upon deadline, and in general
continued to participate in the appeals process. Order Granting Defendants
Motion For Summary Judgment, dated November 11, 2000, at 7, Appellants App.
86.
The district court therefore reviewed LINA s deemed denied decision
under the arbitrary and capricious standard. It found substantial evidence in the
record supporting the denial and granted summary judgment to LINA and
AlliedSignal. Mrs. Gilbertson now appeals the grant of summary judgment,
arguing that the proper standard of review in this case is de novo. We agree.

DISCUSSION
I. Standard of Review
Mrs. Gilbertsons complaint arises under 29 U.S.C. 1132(a), which
provides that a beneficiary may bring suit to recover benefits due to him under
the terms of his plan, to enforce his rights under the terms of the plan, or to
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clarify his rights to future benefits under the terms of the plan. Although ERISA
does not explicitly specify the standard of review that district courts should
employ in reviewing such claims, the Supreme Court has held that a denial of
benefits challenged under 1132(a)(1)(B) 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.
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). Where the Plan
grants such discretionary authority to the administrator, the court reviews the
administrators denial according to an arbitrary and capricious standard.
Chambers v. Family Health Corp., 100 F.3d 818, 825 (10th Cir. 1996).
AlliedSignals Plan expressly vests discretionary authority to determine
benefits eligibility in the Plan Administrator (AlliedSignal), who has delegated its
discretion to LINA. Such delegation is permitted by the Plan. Therefore, because
the Plan, albeit indirectly, grants discretionary authority to LINA, LINAs
decisions on benefit claims should generally be reviewed under the arbitrary and
capricious standard.
Mrs. Gilbertson contends, however, that the arbitrary and capricious
standard is inapplicable when the claim has been automatically deemed denied
by operation of ERISA regulations. She takes the position that if the
administrator fails to issue a decision before the applicable deadline as required
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by ERISA, and the claim is thereby deemed denied, the court must review the
denial de novo.
The parties positions as to when Mrs. Gilbertsons claim could be deemed
denied as provided in ERISA regulations are somewhat unclear. Mrs. Gilbertson
seems to argue that the claim should be deemed denied as of 60 days after LINAs
receipt of the appeal on January 14. This, however, is not necessarily the proper
date.

The regulations provide for an additional 60 days if the administrator

articulates a special need. 29 C.F.R. 2560.503-1(h) (1999). Mrs. Gilbertson

requested and was granted an extension of the deadline by which she was required
to submit supporting medical documentation to March 31. LINAs grant of the
extension could be construed either as notice to Mrs. Gilbertson that LINA would
need the extra 60 days or as a tacit agreement between both parties to re-start the
clock on March 31 (the deadline) or April 7 (the date of Mrs. Gilbertsons final
submission). This latter interpretation is supported by Mrs. Gilbertsons written
request for review, in which she states, I understand that I will receive a decision
on my claim no later that [sic] 120 days after I provide you with the additional
information that is being gathered. Appellants App. 278. The deemed denied
date could therefore be as late as late July or August. 4
The old ERISA regulations that govern this case are silent as to whether
the time limits for a decision on review should be tolled until the claimant has
(continued...)
4

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The exact date does not really matter in this case because LINA never
issued a decision denying Mrs. Gilbertsons appeal. LINA and AlliedSignal have
conceded their failure to render a decision prior to the deadline (whatever it is)
and do not contest Mrs. Gilbertsons contention that the claim must be deemed
denied pursuant to ERISA regulations. Nevertheless, LINA and AlliedSignal
argue that the deemed denial of an ERISA claim does not affect the deferential
standard of review.
The question presented is therefore whether a plan administrator with
discretionary authority whose delay in deciding a claim results in its being
deemed denied is entitled to judicial deference. The issue is of first impression
in this circuit. We hold that when substantial violations of ERISA deadlines
result in the claims being automatically deemed denied on review, the district
court must review the denial de novo, even if the plan administrator has
discretionary authority to decide claims.
The Supreme Courts ruling in Firestone seems to require this holding.
Firestone establishes de novo review as the default standard for reviewing ERISA

(...continued)
finished submitting additional information. The new, amended regulations
provide that the period for making the benefit determination on review shall be
tolled from the date on which the notification of the extension is sent to the
claimant until the date on which the claimant responds to the request for
additional information. 29 C.F.R. 2560.503-1(h)(4) (2002).
4

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claims, with deferential review only in those instances where an administrators

decision is an exercise of a discretion vested in them by the instrument under
which they act. Firestone, 489 U.S. at 111 (emphasis in original) (internal
quotations omitted). Therefore, to be entitled to deferential review, not only must
the administrator be given discretion by the plan, but the administrators decision
in a given case must be a valid exercise of that discretion. It follows that where
the plan and applicable regulations place temporal limits on the administrators
discretion and the administrator fails to render a final decision within those limits,
the administrators deemed denied decision is by operation of law rather than
the exercise of discretion, and thus falls outside the Firestone exception. When
the administrator fails to exercise his discretion within the required timeframe,
the reviewing court must apply Firestones default de novo standard.
The underlying rationale articulated by the Supreme Court in Firestone also
supports this holding. Because ERISA is silent with respect to the standard of
review, the court looked to applicable common law principles to decide the
question. Firestone held that ERISAs language, legislative history and
interpretive precedents required that [in] determining the appropriate standard of
review . . . , we are guided by principles of trust law. Firestone, 489 U.S. at 110
(citations omitted). Thus, the Firestone decision was essentially an application of
the common law of trusts to judicial review of ERISA claim denials. Trust law
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traditionally did not sanction judicial interference with a trustees discretion when
the original parties, by means of the trust instrument, authorized the trustee to
exercise discretionary powers. Id. at 111 (citing Restatement (Second) of Trusts
187 (1959)). The purpose of this principle is evident: trust settlors and trustees
may, for a number of reasons, prefer that the trustee render individualized,
discretionary-type decisions without a court second-guessing the trustees
judgments. The most obvious reason for such an arrangement is that the trustees
or administrators expertise and familiarity with the overall scheme, as well as the
details of each case, make him more likely to get the decision right than a court.
This purpose, however, is not served by judicial deference to automatically
deemed denied decisions. Such decisions are not exercises of discretionary
power vested in the trustee, as intended by the trust instrument, because in these
instances the terms of the plan and its governing regulations require that a
decision be rendered within a specified time. Deference to the administrators
expertise is inapplicable where the administrator has failed to apply his expertise
to a particular decision. Thus, because LINA never used its discretionary
authority to make and issue a final, reasoned decision on Mrs. Gilbertsons
appeal, LINA has provided no actual exercise of discretion or application of
reasoned judgment to which a court can defer.

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Our holding is in harmony with a recent decision of the Ninth Circuit,

Jebian v. Hewlett Packard Company, 310 F.3d 1173 (9th Cir. 2002). In Jebian, a
plan administrator denied an employees claim for long term disability benefits
after the claim had already been deemed denied under the terms of the plan and
applicable ERISA regulations. The district court reviewed the denial under the
arbitrary and capricious standard because the plan vested the administrator with
the discretionary authority that, under Firestone, triggers arbitrary and capricious
review. Jebian, 310 F.3d at 1176-77. The Ninth Circuit reversed, holding that
where a claim is deemed . . . denied on review after the expiration of a given
time period, there is no opportunity for the exercise of discretion and the denial is
reviewed de novo. Id. at 1177.
The Jebian court also relied heavily on the logic of Firestone to reach its
conclusion. According to Jebian, Firestone affords deferential review only to
discretionary decisions that conform to the limits placed upon the administrators
discretionary authority by the plan and ERISA regulations. 310 F.3d at 1177-78.
Thus, [d]ecisions made outside the boundaries of conferred discretion are not
exercises of discretion and are not entitled to deferential review. Jebian, 310
F.3d at 1178.
Another recently-decided, analogous case, this one in the Third Circuit,
supports the principle that deemed denied decisions should be reviewed de
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novo. In Gritzer v. CBS, Inc., 275 F.3d 291 (3rd Cir. 2002), a plan administrator
with discretionary authority failed to respond to a claim until after it was deemed
denied. The Third Circuit reversed the district courts application of the arbitrary
and capricious standard, holding that, under Firestones application of trust law
principles to ERISA cases, if a trustee fails to act or to exercise his or her
discretion, de novo review is appropriate because the trustee has forfeited the
privilege to apply his or her discretion; it is the trustees analysis, not his or her
right to use discretion or a mere arbitrary denial, to which a court should defer.
Id. at 296. 5
Other circuits, however, have decided the issue differently. The Fifth
Circuit has held that the standard of review is no different whether the claim is
actually denied or deemed denied. Southern Farm Bureau Life Ins. Co. v.
Moore, 993 F.2d 98, 101 (5th Cir. 1993). The court, however, provided no
explanation or authority for this statement. In McGarrah v. Hartford Life, the
Eighth Circuit reviewed a plan administrators denial of benefits for abuse of
discretion, even though the administrator never responded to the claimants
appeal. 234 F.3d 1026, 1030-31 (8th Cir. 2000). The court acknowledged that
the plan administrators failure to respond was a serious procedural irregularity,
We note that the district court did not have the benefit of the decisions in
Jebian or Gritzer, as both were decided after the district court granted summary
judgment in this case.
5

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but nevertheless held that the mere presence of a procedural irregularity is not
enough to strip a plan administrator of the deferential standard of review. Id. at
1031. Because the plan administrators initial decision thoroughly explained the
basis for the adverse decision and the claimants submissions on appeal contained
no new medical evidence contradicting the initial decision, the court held that
the claimants appeal required no response by [the administrator] to permit
meaningful judicial review. Id.
McGarrah, then, holds that even deemed denied decisions can be
afforded judicial deference if the reviewing court determines that the
administrators initial denial and statement of reasons can effectively be applied
to the claimants appeal. Id. That is, the court should interpret the
administrators silence on the claimants appeal as implicitly affirming the
original denial for the reasons set forth therein. LINA urges us to adopt a similar
interpretation of its non-response to Mrs. Gilbertsons appeal and insists that the
reasons it provided in the initial denial are clearly applicable to and dispositive of
the appeal.
Even if the McGarrah approach is permissible under Firestone, it should be
limited to situations where the claimant does not provide meaningful new
evidence or raise significant new issues in the appeal. In McGarrah, the
administrators initial denial contained overwhelming evidence that McGarrah
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was no longer disabled, including videotaped surveillance of McGarrah moving

furniture and carrying other heavy objects, and McGarrah submitted no
meaningful new medical evidence on appeal. Id.
The facts here are quite different. LINAs initial denial explained that Mrs.
Gilbertson had failed to produce sufficient evidence regarding how her condition
affected her capacity to perform job-related functions. In response, she submitted
information both from her physician and her chiropractor that addressed her
inability to perform job functions, as well as affidavits from friends and
colleagues attesting to the same. In this situation, it makes no sense to apply the
reasoning of LINAs initial denial to Mrs. Gilbertsons submissions on appeal.
The initial claim was denied for failure to submit certain kinds of evidence, and
Mrs. Gilbertson then submitted evidence purporting to satisfy LINAs objections.
The court therefore cannot infer from the initial denial what LINA thought of
Mrs. Gilbertsons subsequent submissions. Because LINA never issued a
reasoned evaluation of the new evidence, it is impossible for a court to discern,
much less properly review, the basis for LINAs adverse decision. This precludes
deferential review of LINAs decision on appeal.
LINA also argues that applying a de novo standard of review to deemed
denied decisions is inconsistent with the plain meaning and broader purposes of
the applicable ERISA regulations. According to LINA, the only purpose of the
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mandated deadlines and the deemed denied provision is to make it clear that,
upon expiration of the deadline, the claimant has fully exhausted her
administrative remedies and may then file suit. LINA thus suggests that the
deemed denied provision serves simply as an admission ticket to court, and not
as a deadline that, if violated, should strip the administrator of his discretion.
Accordingly, depriving the administrator of his discretion for a minor procedural
irregularity that did not substantively harm the claimant would reflect a hyperproceduralism that is inconsistent with the flexibility and discretion contemplated
by the Plan and ERISA regulations.
This argument is not wholly without merit. The Supreme Court has held
that the deemed denied provision allows the claimant to bring a civil action to
have the merits of his application determined, just as he may bring an action to
challenge an outright denial of benefits, but that an administrators delay is not
necessarily a substantive violation giving rise to a private right of action.
Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 144 (1985). See also
Heller v. Fortis Benefits Ins. Co., 142 F.3d 487, 492 (D.C. Cir. 1998), cert.
denied, 525 U.S. 930 (1998). Courts have also been willing to overlook
administrators failure to meet certain procedural requirements when the
administrator has substantially complied with the regulations and the process as a
whole fulfills the broader purposes of ERISA and its accompanying regulations.
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See, e.g., Sage v. Automation, Inc. Pension Plan and Trust, 845 F.2d 885, 895
(10th Cir. 1988) ([n]ot every procedural defect will upset the decision of plan
representatives); Halpin v. W.W. Granger, Inc., 962 F.2d 685, 690 (7th Cir.
1992) (In determining whether a plan complies with the applicable regulations,
substantial compliance is sufficient.); Kent v. United of Omaha Life Ins. Co., 96
F.3d 803, 807-08 (6th Cir. 1996) (upholding denial that violated procedural
requirements because, despite violations, claimant was notified of reasons and
was given fair opportunity for review); Donato v. Metro. Life Ins. Co., 19 F.3d
375, 382-83 (7th Cir. 1994) (substantial compliance with regulations is sufficient
when claimant received enough information to allow effective review); Sheppard
& Enoch Pratt Hosp., Inc. v. Travelers Ins. Co., 32 F.3d 120, 127 (4th Cir. 1994)
(plans decision that violated applicable deadlines of 29 C.F.R. 2560.503-1
substantially complied with regulation because the claimant was not prejudiced).
We agree that a substantial compliance approach is appropriate in this
case. Accordingly, our holding does not require that every decision that comes on
the 61 st or 121 st day following the claimants notice of appeal must be subject to
plenary review in federal court. Such a hair-trigger rule could inhibit collection
of useful evidence and create perverse incentives for the parties. Even in cases
where additional medical information is clearly necessary for a proper decision,
administrators would have an incentive to issue a final denial on the inadequate
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record in order to preserve their right to deferential review, rather than to wait for
the information and risk losing deference. On the other side, claimants might be
encouraged to delay a final decision by suggesting that they intend to produce
additional information, only to pull the plug and demand de novo review in
federal court on the 121 st day. This result would be antithetical to the aims of
ERISA. ERISAs procedural regulations are meant to promote accurate,
cooperative, and reasonably speedy decision-making, not to generate an endless
stream of business for employment lawyers. See Varity Corp. v. Howe, 516 U.S.
489, 497 (1996) (congressional purpose in enacting ERISA was not to create a
system that is so complex that administrative costs, or litigation expenses, unduly
discourage employers from offering welfare benefit plans). Thus, in the context
of an ongoing, good faith exchange of information between the administrator and
the claimant, inconsequential violations of the deadlines or other procedural
irregularities would not entitle the claimant to

de novo review.

In order to determine when an administrator who fails to render a timely

decision might nevertheless be in substantial compliance with the regulatory
requirements, we must consider the purpose of the mandated deadlines in the
context of other ERISA procedural requirements.

Donato, 19 F.3d at 382 (In

determining whether there has been substantial compliance, the purpose of 29

U.S.C. 1133 and its implementing regulations, 29 C.F.R. 2560.503-1(f), serves
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as our guide). Fortunately, the broader purpose of the relevant ERISA regulation
seems fairly clear. The regulation requires that plan administrators follow certain
procedures within the specified deadlines when they deny claims. Among other
things, the administrator must provide the claimant with a comprehensible
statement of reasons for the denial, including [a] description of any additional
material or information necessary for the claimant to perfect the claim and an
explanation of why such material or information is necessary and [a]ppropriate
information as to the steps to be taken if the participant or beneficiary wishes to
submit his or her claim for review. 29 C.F.R. 2560.503-1(f)(3), (4) (1999).
The regulation also requires that the decision on review shall include specific
reasons for the decision, written in a manner calculated to be understood by the
claimant, as well as specific references to the pertinent plan provisions on which
the decision is based . . . The decision on review shall be furnished to the
claimant within the appropriate time . . .. 29 C.F.R. 2560.503-1(h)(3), (4)
(1999). In Judge Kozinskis felicitous formulation:
In simple English, what this regulation calls for is a meaningful
dialogue between ERISA plan administrators and their beneficiaries.
If benefits are denied . . . the reason for the denial must be stated in
reasonably clear language, . . . if the plan administrators believe that
more information is needed to make a reasoned decision, they must
ask for it. There is nothing extraordinary about this: its how civilized
people communicate with each other regarding important matters.
Booton v. Lockheed Medical Benefit Plan,

110 F.3d 1461, 1463 (9th Cir. 1997).

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The deadlines play a crucial role in this meaningful dialogue. Although

plan administrators may believe that they have articulated good reasons for their
requests for more records or additional diagnostic tests, from the claimants
perspective these requests are often indistinguishable from pointless stalling. In
addition, the costs of delay are generally much higher for claimants, who may
need disability benefits to buy their daily bread, than for plans and administrators.
See, e.g., Booton , 110 F.3d at 1463 n.6 (expressing concern that administrator had
little incentive to come to grips with [beneficiaries] claims). It would be
manifestly unfair to claimants if plan administrators could extend the process
indefinitely by continually requesting additional information. The deadlines
therefore empower the claimant to call a halt to the evidence-gathering process
and insist on an up or down decision on the record as it stands. It follows, then,
that an administrator who fails to render a timely decision can only be in
substantial compliance with ERISAs procedural requirements if there is an
ongoing productive evidence-gathering process in which the claimant is kept
reasonably well-informed as to the status of the claim and the kinds of
information that will satisfy the administrator.

See Halpin, 962 F.2d at 691 (plan

administrator cannot deny claim based on claimants failure to provide

information if claimant lacked opportunity to provide information because
administrator never informed claimant what information was missing).
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No such meaningful dialogue took place in Mrs. Gilbertsons case. The

review process actually began well. After receiving Mrs. Gilbertsons request for
review on January 14, 1999, LINA promptly assured her that she would be
notified of the final decision within 60 days. Mrs. Gilbertson then asked for an
extension of time in order to submit additional medical information. LINA
graciously granted the extension (to March 31) by a fax sent to Mrs. Gilbertson on
February 16. The March 31 extension would toll the running of the deadline, and
LINA was not required to render a final decision until 60 days thereafter. So far
so good.
Unfortunately, Mrs. Gilbertson never heard from LINA again. A letter
from her attorney and submissions of additional medical information (both before
and after the March 31 deadline) went unanswered. On June 1, near or after the
60-day deadline (depending on whether the clock starts on March 31, the agreed
upon deadline, or April 7, the date of Mrs. Gilbertsons final submission), Mrs.
Gilbertsons attorney sent another letter asking LINA to advise whether it would
accept or reject the claim. No response. In fact, LINA never issued any decision
on Mrs. Gilbertsons appeal at all. Instead, it simply sat on the claim until well
after it was automatically deemed denied by operation of ERISA regulations.
Even the direct request by Mrs. Gilbertsons attorney for a decision, or at least
some sort of a status update, failed to elicit a response.
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Finally, after more than six months of radio silence from LINA, Mrs.
Gilbertson received a notice of a scheduled appointment from LINAs outside
doctors. There was no explanation of why LINA thought the additional tests were
necessary, nor did LINA offer any reasoned evaluation of the additional
submissions from Mrs. Gilbertsons physician, chiropractor, and co-workers.
LINA had ceased participating in a meaningful dialogue with Mrs. Gilbertson
more than six months previously, and it never got around to exercising its
discretion or applying its administrative expertise to reach a final decision. This
cannot be construed as substantial compliance with ERISAs procedural
requirements.
We therefore REVERSE the district court and REMAND for
reconsideration according to the appropriate standard of review.

We do not hold

that Mrs. Gilbertson is entitled to damages or other substantive remedies because

of LINAs violation of the deadline, nor do we decide that she is entitled to
receive benefits under the Plan. Rather, we instruct the district court to conduct a
de novo review of Mrs. Gilbertsons claim of eligibility for LTD benefits under
the Plan based on the record before LINA at the time she filed suit.

The district court need not allow the parties to submit additional
evidence, unless it determines that supplementation of the record is necessary to
conduct an adequate de novo review. See Hall v. UNUM Life Ins. Co. of Am., 300
F.3d 1197, 1202 (10th Cir. 2002).
6

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II. Treating Physician Rule

As a second and independent ground for appeal from the district courts
grant of summary judgment to LINA and AlliedSignal, Mrs. Gilbertson contends
that, under the treating physician rule, the district court should have given
controlling weight to the opinion of her treating physician that she was disabled.
The treating physician rule, generally applied in social security cases, requires
deference to the opinions of the claimants treating physician.

See, e.g.,

Mondragon v. Apfel , 3 Fed.Appx. 912, 915 (10th Cir. 2001) (unpublished). This
circuit has not ruled on whether to apply the treating physician rule in the ERISA
context.
The circuits are split on this.

See Regula v. Delta Family-Care Disability

Survivorship Plan , 266 F.3d 1130, 1139 (9th Cir. 2001) (holding that the treating
physician rule applies to ERISA plan decisions);
Disability Plan , 296 F.3d 823 (9th Cir. 2002),

Nord v. Black & Decker

cert. granted 123 S.Ct. 817 (2003)

(applying treating physician rule in ERISA context);

Ins. Co. , 317 F.3d 516, 532 (6th Cir. 2003) (same);
894, 901 (8th Cir. 1996) (same).

Darland v. Fortis Benefits

Donaho v. FMC Corp , 74 F.3d

But see Connors v. Conn. Gen. Life Ins. Co.

272 F.3d 127, 136 n.4 (2d Cir. 2001) (concluding that the treating physician rule
serves no purpose in

de novo review of ERISA cases);

Jett v. Blue Cross & Blue

Shield of Ala., Inc. , 890 F.2d 1137, 1140 (11th Cir. 1989) (holding treating
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physician rule inapplicable to ERISA plan administrators decision);

E.I.Dupont de Nemours & Co.,

Salley v.

966 F.2d 1011, 1016 (5th Cir. 1992) (doubting

whether rule applies to ERISA cases). The Supreme Court has recently granted
certiorari on the issue.

See Black & Decker Disability Plan v. Nord,

123 S. Ct.

817 (2003) .
In light of our disposition of the first issue in this case, it is not necessary
to decide this question. The district court declined to follow a treating physician
rule, in the context of a case in which it granted deference to the plan
administrator. We do not know how the district court will treat the treating
physicians evidence on remand, under the

de novo standard. By the time the

district court is required to confront that question, it may have received further
guidance from the Supreme Court.
III.
For the foregoing reasons, we REVERSE the district courts grant of
summary judgment to LINA and AlliedSignal and REMAND for a
of Mrs. Gilbertsons eligibility for long-term disability benefits.

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de novo review