United States Court of Appeals

For the First Circuit

No. 14-1293

JOSEPH McDONOUGH,

Plaintiff, Appellant,

v.

AETNA LIFE INSURANCE COMPANY,

Defendant, Appellee.

BIOGEN INC. and BIOGEN INC. GROUP LONG TERM DISABILITY PLAN,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Barron, Selya and Stahl,

Circuit Judges.

Mala M. Rafik, with whom Socorra A. Glennon and Sean K.

Collins were on brief, for appellant.

Stephen D. Rosenberg, with whom Caroline M. Fiore and The

Wagner Law Group were on brief, for appellee.

April 15, 2015
SELYA, Circuit Judge. This case, brought under the

Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.

§§ 1001-1461, presents two issues. The first concerns the

operation of an "own occupation" test within the definition of

disability contained in a long-term disability (LTD) plan. The

second concerns the operation of ERISA's penalty provision for late

disclosure or non-disclosure of relevant plan documents. See 29

U.S.C. § 1132(c)(1)(B). After careful consideration, we vacate the

district court's entry of summary judgment with respect to the

termination of disability benefits and remand that issue for

further consideration by the claims administrator. At the same

time, we affirm the district court's imposition of a $5,000 penalty

for the belated production of a plan document.

I. BACKGROUND

Plaintiff-appellant Joseph McDonough worked in the

information technology division of Biogen Idec, Inc., now known as

Biogen Inc. (Biogen). In March of 2007, he assumed the position of

Senior Analyst III, Systems Administration. This was a highpressure job, with responsibility for providing support for the

server infrastructure at Biogen locations around the world (24

hours a day, 365 days a year).

In November of the following year, the appellant suffered

the sudden onset of right-side numbness, dizziness, and blurred

vision. He was hospitalized and provisionally diagnosed with a

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stroke. Although this diagnosis could not be confirmed, some of

his symptoms persisted and he did not return to work.

The appellant was eligible for disability benefits

through a Biogen employee welfare benefit plan underwritten by

defendant-appellee Aetna Life Insurance Company (Aetna). Biogen

serves as the plan administrator and Aetna serves as the claims

administrator. Withal, Aetna has plenary discretion to determine

"whether and to what extent employees and beneficiaries are

entitled to benefits."

A plan participant is disabled within the meaning of the

plan on any day that the participant is "not able to perform the

material duties of [his] own occupation solely because of: disease

or injury; and [his] work earnings are 80% or less of [his]

adjusted predisability earnings." A participant's material duties

are those "normally required for the performance of [the

participant's] own occupation," so long as they "cannot be

reasonably[] omitted or modified." The plan defines a

participant's "own occupation" as the occupation "routinely

perform[ed]" by the participant at the time the disability began as

that occupation is "normally performed in the national economy,"

rather than how it is performed for the employer.

The appellant successfully applied for LTD benefits under

the plan, commencing May 23, 2009. From that point forward, he and

his health-care providers kept Aetna informed of his treatment and

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prognosis. Despite extensive therapy, the appellant continued to

experience physical symptoms including sudden right-side weakness

and loss of balance. He also suffered from anxiety, panic attacks,

and the like. With this in mind, the appellant's primary care

physician (PCP) referred him for mental health care in June 2009.

Some of his health-care providers suggested that his physical

symptoms might be a reaction to stress associated with the

demanding nature of his job.

In September of 2009, the appellant's PCP reported that

the appellant was continuing to experience right-side weakness but

had a "sedentary level of functionality" and "could work 5 days a

week and 8 hours per day." Based on this report, Aetna began to

evaluate the appellant's continued eligibility for benefits. Soon

thereafter, two of the appellant's mental health providers jointly

reported that he suffered debilitating panic attacks four to five

times per week and projected that — due to a combination of these

attacks, sleeplessness, and anxiety — the appellant would be unable

to work for a year.

On October 29, 2009, Aetna informed the appellant by

letter that his LTD benefits would be terminated as of October 31,

2009. In Aetna's judgment, the appellant no longer met the plan's

definition of disability. This judgment was premised in large part

on his PCP's conclusion that he could perform sedentary work 40

hours per week. Aetna wrote off the contradictory report of the

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appellant's mental health providers, concluding that it "lacked

examination findings [sufficient] to support a functional

impairment from a clinical standpoint."

The appellant challenged the benefits-termination

decision through Aetna's internal appeals procedure. In support,

he submitted medical records from physicians, mental health

providers, and physical therapists, highlighting the symptomatology

that (in his view) precluded him from satisfying the physical and

cognitive requirements of his job. These symptoms included rightside numbness and weakness, which he said significantly impeded his

fine-motor skills for typing and writing. They also included

anxiety, sleeplessness, and frequent panic attacks, which he said

would impair his ability to cope with the stressful and timeintensive nature of his position. Finally, he submitted a report

by a vocational consultant who reviewed his medical records to

assess his work capacity.

At this juncture, Aetna engaged four doctors, two

specializing in occupational medicine and two specializing in

psychology, to review the appellant's medical records and other

documents submitted in support of his appeal. Aetna has conceded

that all four of these doctors should be treated as Aetna employees

rather than independent medical reviewers. In written reports,

each of the four purposed to evaluate the medical evidence in

detail. All of them concluded that the appellant was no longer

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disabled, stating variously that the record "[f]ails to support

functional impairment," that the appellant's "functional deficits

would not preclude him from working in his own sedentary level

occupation," that "from a psychological/psychiatric perspective,

the claimant is not impaired from working. . . . in his own job or

any job," and that the medical evidence "does not support a

functional impairment, from a psychological perspective." These

reports uniformly listed among the documents reviewed, in what

seems to be a boilerplate formulation, a job description, job

analysis worksheet, and occupation description — yet none of the

reviewers discussed either the demands of the appellant's position

as it is normally performed in the national economy or how his

symptoms would affect his ability to meet those demands.

In November of 2010, Aetna denied the internal appeal. 

In doing so, Aetna determined that "[f]rom an [o]ccupational

[m]edicine perspective," the appellant did not suffer from the

sequelae of a stroke; and that while he had some functional

impairment, his functional deficits "would not preclude him from

working in his own sedentary level occupation." Aetna

acknowledged, "[f]rom a psychology perspective," the reports of

panic attacks and anxiety, as well as the reported likelihood that

these symptoms would cause the appellant to miss more than four

work days per month. It concluded, however, that the medical

records did not warrant a finding that any of the appellant's

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mental health problems were of "a severity likely to have impaired

his occupational functioning." Aetna's denial letter did not

discuss, directly or indirectly, the requirements of the

appellant's position as it is normally performed in the national

economy.

Dismayed by this decision, the appellant decamped to the

federal district court, invoked ERISA, and sued for wrongful

termination of benefits. See 29 U.S.C. § 1132(a)(1)(B). Although

his suit named multiple defendants, the parties later agreed that

Aetna was the only proper defendant with respect to the benefitstermination claim.

Early on, the appellant made written requests of both

Aetna and Biogen, pursuant to 29 U.S.C. § 1024(b)(4), for "a

complete copy of [his] plan, summary plan description, policy, and

any and all attachments and amendments relating to his [LTD] Plan." 

Aetna responded by providing documents entitled "Your Group Plan"

and "Summary of Coverage." But as the deadline neared for filing

summary judgment motions, Aetna disclosed for the first time the

policy agreement between Aetna and Biogen. Unlike the previously

disclosed plan documents, the policy agreement contained language

granting Aetna complete discretion over all benefits-eligibility

decisions. This language was important: it had the effect of

altering the standard of judicial review. See McDonough v. Aetna

Life Ins. Co., No. 11-11167, 2014 WL 690319, at *12 (D. Mass. Feb.

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19, 2014). The appellant promptly amended his complaint to add a

request for penalties for failure to produce all relevant plan

documents within the statutorily prescribed time. See 29 U.S.C.

§ 1132(a)(1)(A), (c)(1)(B).

In due season, the parties cross-moved for summary

judgment. The district court granted summary judgment for Aetna on

the benefits-termination claim. See McDonough, 2014 WL 690319, at

*19. With respect to the appellant's other claim, the court

determined that a relevant document had been disclosed belatedly

and assessed a $5,000 penalty against Aetna.1 See id.

II. ANALYSIS

The appellant advances two claims of error. The first

relates to the district court's finding that Aetna's benefitstermination decision is supportable. The second relates to what

the appellant regards as the skimpiness of the penalty assessed. 

We address these claims of error sequentially.

A. Termination of Benefits.

In ERISA cases, an inquiring court must peruse the plan

documents in order to determine the standard of judicial review

applicable to a claims administrator's denial of benefits. See

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). A

challenge to a denial of benefits is to be reviewed de novo "unless

1 The parties agreed that any penalty imposed should be

charged exclusively to Aetna (and not to Biogen). See McDonough,

2014 WL 690319, at *19.

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the benefit plan gives the administrator or fiduciary discretionary

authority to determine eligibility for benefits or to construe the

terms of the plan." Id. But where the plan documents grant the

claims administrator full discretionary authority, the decision is

reviewed for abuse of discretion. See id. at 111; Colby v. Union

Sec. Ins. Co. & Mgmt. Co. for Merrimack Anesthesia Assocs. LTD

Plan, 705 F.3d 58, 61 (1st Cir. 2013). Because both trial and

appellate courts are tasked to inspect the claims administrator's

actions through the same lens, our review of the district court's

approval or rejection of a benefits-termination decision is de

novo. See Colby, 705 F.3d at 61 n.2.

In this case, the parties agree that, given the sweeping

phraseology of the belatedly produced policy agreement, abuse of

discretion review applies. A court that undertakes abuse of

discretion review in an ERISA case must determine whether the

claims administrator's decision is arbitrary and capricious or,

looked at from another angle, whether that decision is reasonable

and supported by substantial evidence on the record as a whole. 

See id. at 61. Although this is a deferential metric, it is not

without some bite. See id. at 62 (noting that "there is a sharp

distinction between deferential review and no review at all"); see

also Conkright v. Frommert, 559 U.S. 506, 521 (2010). Here,

moreover, abuse of discretion review has a special gloss. Aetna is

the entity that both resolves benefits claims and pays meritorious

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claims. As such, Aetna suffers from a structural conflict of

interest. While the existence of such a structural conflict does

not alter the standard of review, it is a factor that a court may

draw upon to temper the deference afforded to the claims

administrator's decision. See Colby, 705 F.3d at 62.

Moving from the general to the specific, the appellant

contends that Aetna's termination of his LTD benefits constituted

an abuse of discretion; that is, that the benefits-termination

decision was arbitrary, capricious, and not supported by the

record. Specifically, the appellant contends that Aetna failed to

evaluate his documented functional limitations in light of the

duties of his own occupation as it is normally performed in the

national economy. He adds that Aetna conflated the "own

occupation" standard with that of "any sedentary occupation,"

thereby giving short shrift to the cognitive demands of the

appellant's own occupation. And, finally, he submits that the

claims administrator mis-weighed the medical and vocational

evidence.

The record contains a plethora of reports from a wide

variety of physicians and mental health professionals.2 These

reports take different slants and, read in the ensemble, they do

2 For a comprehensive and in-depth catalogue of the copious

medical and vocational reports relating to the appellant's case, we

refer the reader to the district court's meticulous opinion. See

McDonough, 2014 WL 690319, at *2-9.

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not at first blush paint a clear picture of either the extent or

duration of the appellant's disability. As we explain below,

however, there is a threshold issue here — and this appeal does not

turn on what the medical evidence shows.

We begin with bedrock: an ERISA benefits determination

must be a reasoned determination, and "[a] benefits determination

cannot be 'reasoned' when the [claims] administrator sidesteps the

central inquiry." Id. at 67. By the plain language of the plan at

issue here, the key inquiry is whether the claimant is "able to

perform the material duties of [his] own occupation" as "normally

performed in the national economy." Thus, a reasoned determination

of the existence of disability vel non requires, inter alia, a

review of the material duties of the claimant's particular position

and an assessment of how those duties align with the position as it

is normally performed in the national economy. See Elliott v.

Metro. Life Ins. Co., 473 F.3d 613, 618-19 (6th Cir. 2006). Only

then can a claims administrator distill the medical and vocational

evidence, apply it to the occupational profile, and make a reasoned

determination of whether or not the claimant is disabled.

Viewed against this backdrop, Aetna's decision to

terminate the appellant's LTD benefits was not a reasoned

determination. None of the four internal reviewers upon whom Aetna

relied compared the appellant's symptoms or impairments to any

description of the physical and cognitive demands of his own

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occupation as that term is defined in the plan documents. Nor does

the administrative record support an inference that Aetna itself

made any such comparison. While the record is rife with accounts

of the appellant's medical and psychological symptoms, Aetna never

took the obligatory step of assessing whether and to what extent

(if at all) the appellant's impairments compromised his ability to

carry out the material duties of his own occupation as normally

performed in the national economy.

To be sure, some of the internal reviews as well as

Aetna's letter denying the internal appeal made passing references

to the appellant's "own occupation" or "own sedentary level

occupation." But these references were unaccompanied by any

attempt to articulate the material duties of the appellant's own

occupation as that occupation is normally performed in the national

economy. Both the reviewers' reports and the denial letter are

silent as to the dimensions of the own occupation benchmark.3

 On

this opaque record, there is simply no way to tell whether the

reviewers were applying a correct conception of the appellant's own

3

 Moreover, at least one of the reviewers drew in large part

from the Social Security Administration's standards for complete

disability — and never gave so much as lip service to the own

occupation benchmark. Another referred to only the appellant's

"own sedentary level occupation," which strongly suggests a focus

on certain physical demands to the exclusion of others (such as

fine motor skills) and disregards the cognitive demands of the

appellant's own occupation.

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occupation (as defined in the plan documents) or some other

conception.

Although the administrative record as a whole lends

support to the conclusion that neither Aetna nor its reviewers were

drawing on a settled articulation of the material duties of the

appellant's own occupation as normally performed in the national

economy, there is one small fragment that may point in a contrary

direction. In the past, the United States Department of Labor

published a standard work called the Dictionary of Occupational

Titles (DOT), and a claims administrator may properly consider a

position description drawn from the DOT in assessing a claim of

disability as long as it involves duties comparable to those of the

claimant's own job. See Tsoulas v. Liberty Life Assur. Co. of

Bos., 454 F.3d 69, 78 (1st Cir. 2006). We have found, buried in

the amplitudinous record, an internal assessment by an Aetna

employee purporting to correlate the appellant's job description

with a position description contained in the DOT.4

In the final analysis, this internal assessment is little

more than a waif in the wilderness: it is not mentioned by Aetna in

its brief, and neither the denial letter itself nor the reviewers'

reports ever discussed it. In any event, the record is utterly

devoid of any explanation of the Aetna employee's rationale for

4

 The complete job description used to conduct this assessment

appears nowhere in the administrative record.

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selecting that particular position from the DOT's compendium of

available job classifications.5

Let us be perfectly clear: under an own occupation

standard, medical evidence is only part of the equation. See

Elliott, 473 F.3d at 618, 623. To assess a claimant's ability to

perform his own occupation, a decisionmaker must be aware of, and

apply, the requirements of the occupation. See id. at 618. Here,

those requirements are measured by how the occupation is normally

performed in the national economy — but the claims administrator

and the various reviewers seem to have ignored that fact. Because

they failed to take such requirements into account, the

determination of disability under the plan cannot be said to be

reasoned. See id. (concluding that benefits-termination decision

was arbitrary and capricious because the administrator "did not

rely on an application of the relevant evidence to the occupational

standard"); see also Miller v. Am. Airlines, Inc., 632 F.3d 837,

855 (3d Cir. 2011) (concluding in the context of a somewhat

different "own occupation" definition that "it is essential that

any rational decision to terminate disability benefits

5

 For his part, the appellant submitted a vocational

assessment in support of his administrative appeal, which

identified a different DOT position as most closely analogous to

his job. Aetna never acknowledged this facet of the report, nor

did it provide a reasoned basis for rejecting the recommended DOT

classification.

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. . . consider whether the claimant can actually perform the

specific job requirements of a position").

It is especially fitting, we think, that Aetna be held to

account for this gap in the record. The appellant's claim of

continuing disability is tied to the cognitive demands of a highpressure environment where he was on call 24 hours a day, 365 days

a year and responsible for managing systems and employees. That

claim is also tied to physical demands specific to this kind of

position, such as frequent right-hand use for computing, typing,

and writing. On this record, however, no reasonable claims

administrator could tell to what extent these matters were or were

not integral to the appellant's occupation as that occupation is

normally performed in the national economy. Such a claims

administrator could only guess — and a determination based on

guesswork is the antithesis of a reasoned determination.

There is another reason to hold Aetna strictly to account

here. The own occupation standard limned in the plan was not

handed down from Mount Olympus. Rather, it was prescribed by Aetna

— and having set up the benchmark, Aetna should not be heard to

complain when a court holds it to its own prescription.

To say more would be to paint the lily. We hold that

Aetna's failure to articulate the contours of the own occupation

standard, apply that standard in a meaningful way, and reason from

that standard to an appropriate conclusion regarding the

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appellant's putative disability renders its benefits-termination

decision arbitrary and capricious. See Miller, 632 F.3d at 855;

Elliott, 473 F.3d at 618-19. This holding will necessitate further

administrative proceedings. After all, this is a close case. As

the district court aptly observed, the medical evidence is both

voluminous and conflicting. See McDonough, 2014 WL 690319, at *2. 

We therefore vacate the entry of summary judgment on the benefitstermination claim and remand to the district court with

instructions to remit the matter to Aetna for further review in

light of our opinion.6 See Maher v. Mass. Gen. Hosp. LTD Plan, 665

F.3d 289, 295 (1st Cir. 2011); Buffonge v. Prudential Ins. Co. of

Am., 426 F.3d 20, 31-32 (1st Cir. 2005). We take no view as to the

outcome of further proceedings.

B. Amount of Penalty.

This brings us to the appellant's plaint that the

district court levied too paltry a penalty for Aetna's tardy

disclosure of the policy agreement. Lamenting that Aetna's

disclosure was 1,157 days late, the appellant suggests that a

penalty amounting to roughly $4 per day is inadequate to serve the

deterrent purpose of the penalty statute. Our review of a district

court's imposition of penalties under ERISA is for abuse of

6 Were this an instance of a claimant who had been denied

benefits to which he clearly was entitled, no remand would be

required. See Buffonge v. Prudential Ins. Co. of Am., 426 F.3d 20,

31 (1st Cir. 2005). But this case is not of that genre.

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discretion. See Sullivan v. Raytheon Co., 262 F.3d 41, 52 (1st

Cir. 2001); Rodriguez-Abreu v. Chase Manhattan Bank, 986 F.2d 580,

588 (1st Cir. 1993).

The controlling statute is 29 U.S.C. § 1132(c)(1)(B),

which provides that when an administrator "fails or refuses to

comply" with a proper request for plan documents inside 30 days,

the court in its discretion may impose a monetary penalty "of up to

$100 a day." By a regulation promulgated prior to the events at

issue here, the maximum daily penalty was increased to $110 per

day. See 29 C.F.R. § 2575.502c-1.

Here, the appellant demanded the plan documents on

November 5, 2009. While he received much of the pertinent

information promptly, he did not receive the policy agreement until

February 4, 2013. The court below determined that Aetna violated

the statute by failing to turn over the policy agreement in a

timeous manner and imposed a $5,000 penalty. See McDonough, 2014

WL 690319, at *19.

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On appeal, Aetna does not gainsay that its late

disclosure of the policy agreement violated ERISA.7 The battle is

over the penalty amount.

The district court imposed the challenged penalty in

order to "capture Aetna's attention to its statutory obligations." 

Id. Although the statute and regulations identify a maximum

penalty rate for calculating penalties — $110 per day — a deviation

from this rate is not (as the appellant implies) a per se abuse of

discretion. The statutory/regulatory maximum is a ceiling on the

amount of any daily penalty that may be imposed. There is no need

for a district court to use a daily rate at all and — as long as

the aggregate penalty does not offend the ceiling (days of delay

times daily rate) — the amount of the penalty has been left by

Congress to the sound discretion of the district court.

All failures to make timely disclosures are not created

equal, and we think it fair to infer that Congress intended

district courts to consider the totality of the circumstances in

fixing a penalty amount. See Kwan v. Andalex Grp. LLC, 737 F.3d

7

 We recently held that an insurer not specifically designated

as the "plan administrator" in the plan documents may not be

treated as "the administrator" within the meaning of ERISA's

penalty provision. See Tetreault v. Reliance Std. Life Ins. Co.,

769 F.3d 49, 59-60 (1st Cir. 2014) (construing 29 U.S.C.

§ 1132(c)(1)). Here, however, Aetna represented to the district

court (pre-Tetreault) that it, not Biogen, should bear the brunt of

any penalty. That representation was accepted by both the

appellant and the district court, see supra note 1, and Aetna is

bound by it.

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834, 848 (2d Cir. 2013); Romero v. SmithKline Beecham, 309 F.3d

113, 120 (3d Cir. 2002); see also Sullivan, 262 F.3d at 52. These

circumstances ordinarily will include, at a bare minimum, whether

the belated disclosure was in bad faith; whether it caused harm to

the opposing party; and if so, the nature and extent of that harm. 

See, e.g., Kwan, 737 F.3d at 848; Sullivan, 262 F.3d at 52.

The court below concluded that Aetna's late disclosure

was due to "inattentiveness," not bad faith. McDonough, 2014 WL

690319, at *19. The court made no express finding of prejudice,

and none is apparent: although the late disclosure implicated the

standard of review, the policy agreement was received by the

appellant before briefing on summary judgment began.

We need not tarry. A district court is charged with the

management of the cases on its docket. Over time, that court

develops an understanding of the nuances of a case — an intimate

understanding that an appellate court cannot hope to replicate. 

Given the district court's superior coign of vantage, its hands-on

judgment as to the need for a penalty and the quantification of

that penalty (if one is needed) is entitled to considerable

respect. See United States v. Smithfield Foods, Inc., 191 F.3d

516, 526-27, 529 (4th Cir. 1999); United States v. Ekco Housewares,

Inc., 62 F.3d 806, 814, 816 (6th Cir. 1995).

This is such a case. In the past, we have affirmed

decisions declining to impose any monetary penalty for late

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disclosures of plan documents absent a showing of either bad faith

or prejudice. See, e.g., Kerkhof v. MCI WorldCom, Inc., 282 F.3d

44, 55-56 (1st Cir. 2002); Sullivan, 262 F.3d at 52; RodriguezAbreu, 986 F.2d at 588-89. Especially when considered in light of

those decisions, the $5,000 penalty imposed by the court below

falls comfortably within the wide encincture of its discretion.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

the judgment with respect to the benefits-termination claim is

vacated and that claim is remanded to the district court with

instructions to remit it to the claims administrator for further

proceedings. The award of a statutory penalty in the amount of

$5,000 is affirmed. The parties shall bear their own costs.

So Ordered.

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