## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 1 2004 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KATHY A. WELCH,

Plaintiff-Appellee,

v. No. 02-3220 UNUM LIFE INSURANCE COMPANY OF AMERICA,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Kansas (D.C. No. 00-1439-DWB)
Lynn D. Preheim (Geron J. Bird with him on the brie f), Stinson Morrison Hecker LLP, Wichita, Kansas, for Defendant-Appellant. Kurt A. Harper, Sherwood & Harper, Wichita, Kansas, for Plaintiff-Appellee.

Before HENRY, BRISCOE, andMcCONNELL, Circuit Judges.

HENRY , Circuit Judge.

Plaintiff-appellee Kathy A. Welch was an employee o f the Coleman Company and was eligible for coverage under Coleman ’s long-term disability2

(“LTD”) insurance plan. Coleman’s plan was issued and administered by defendant-appellant UNUM. Ms. Welch suffers from f ibromyalgia and went on disability leave on January 31, 1998. At the time she submitted her claim, the LTD plan provided for benefits until Ms. Welch turn ed sixty-five, and in no case less than sixty months. In August 1998, UNUM and C oleman amended the LTD plan through “Amendment 23,” which replaced the oldplan with a new plan and which contained a 24-month limitation period for payments on “disabilities, due to sickness or injury, which are primarily based onself-reported symptoms.” Aplt’s App. vol. I, at 143. The effective date of Amendment 23 was retroactive to January 1, 1998, and it stated that “[c]laims for d isabilities that occur prior to January 1, 1998 [would] be determined according to the policy(ies) in effect prior to this amendment.” Id . at 118. Subsequent to the enactment of Amendment23, UNUM notified Ms. Welch that her long-term disabili ty benefits would only be paid through July 29, 2000, because her disability qualified under the amended plan’s “self-reported symptoms” limitation. In September 2000, Ms. Welch filed suit against UNU M, seeking a declaration that she is entitled to LTD benefits un der the pre-amendment plan (“the initial plan”), not the post-amendment plan ( “the new plan”). She also argued that even if the court should decide that th e new plan controls, her condition of fibromyalgia does not fall within the self-reported symptoms3

limitation. Ms. Welch and UNUM both filed motions for summary j udgment, and the magistrate judge granted Ms. Welch’s motion and den ied UNUM’s. The magistrate judge found that the LTD plan provided t hat benefits would vest upon the plan’s termination and that Amendment 23 causedthe initial plan to terminate. Therefore, the magistrate judge found that UNUM cou ld not retroactively apply Amendment 23 to deprive Ms. Welch of vested benefit s, and he ordered that UNUM pay her benefits in accordance with the initia l plan. UNUM now appeals. Because we disagree with the lower court that Amend ment 23 caused the plan to terminate, we reverse and remand.

I. BACKGROUND At all pertinent times, Ms. Welch was an employee o f the Coleman Company. On March 1, 1979, Coleman entered into anagreement with UNUM to provide LTD insurance for all full-time employees. Ms. Welch became eligible for this insurance on September 11, 1980. Prior to the enactment of Amendment 23 in August 19 98, the LTD plan provided that for an employee who became disabled b efore the age of sixty, the maximum benefit period was until age sixty-five, bu t not less than sixty months. Aplt’s App. vol. I, at 49. This initial plan conta ined a termination provision4

which stated, “[t]ermination of this policy under a ny conditions will not prejudice any payable claim which occurs while this policy is in force.” Id . at 63. It also contained a provision stating that the “policy may be changed in whole or in part.” Id . at 65. On January 31, 1998, Ms. Welch became disabled, cla iming that she was no longer able to work due to fatigue, joint pain, and headaches. On or about July 23, 1998, UNUM received Ms. Welch’s claim for LTD b enefits. She reported that she was unable to work due to chronic pain andextreme fatigue. Ms. Welch was diagnosed with fibromyalgia, which is a “chroni c pain disorder” characterized by “[w]idespread musculoskeletal painand excess tenderness” and fatigue. Id . at 317-18. In a letter dated September 25, 1998, UNUM notifiedMs. Welch that her claim for disability benefits had been approved ret roactive to July 30, 1998. Id . at 161. The LTD plan provides for a 180-day eliminati on period, which is a “period of consecutive days of disability for which no bene fit is payable. The elimination period . . . begins on the first day of disability. ” Id . at 52. Because Ms. Welch became disabled on January 31, 1998, her eliminatio n period did not conclude until July 29, 1998. The letter also gave an expla nation of how Ms. Welch’s benefits were calculated and when to expect monthlybenefits checks, as well as notice that ongoing benefits were conditioned upon her ability to meet the5

definition of disability and that the maximum perio d of payment was to age sixtyfive. Id . at 161-62. On August 6, 1998, the LTD plan was amended by UNUMand Coleman. The amendment, referred to as Amendment 23, stated that “[t]he entire policy is replaced by the policy attached to this amendment.” Id. at 118. Amendment 23 contained a twenty-four-month limitation period forpayments on “disabilities, due to sickness or injury, which are primarily base d on self-reported symptoms.” Id. at 143. Amendment 23 defined “self-reported sympto ms” as the manifestations of your condition which you tell your doctor, that are not verifiable using tests, procedures, or clinical examinations standardly accepted in the practice of medicine. E xamples of selfreported symptoms include, but are not limited to h eadaches, pain, fatigue, stiffness, soreness, ringing in ears, dizz iness, numbness and loss of energy. Id . at 144. Amendment 23 provided that “[t]he effect ive date of these changes is January 1, 1998.” Id . at 118. Claims for disabilities which occurred p rior to that date were to be determined according to the initial plan, while claims for disabilities which occurred after that date were to be determined with reference to Amendment 23. Id

. On April 23, 1999, UNUM wrote to Ms. Welch about th e status of her LTD claim. Id . at 170-71. The letter informed her that her bene fits, assuming her condition remained the same, would only be paid thr ough July 29, 2000. Id . The letter explained that the plan under which UNUM wou ld be providing benefits6

had a twenty-four-month limitation for disabilities based on self-reported symptoms and that the medical information contained in Ms. Welch’s file with UNUM indicated that her disability fell within the limitation. Id

. On September 17, 1999, Ms. Welch requested UNUM to reconsider its decision to limit her benefits pursuant to the “sel f-reported symptoms” limitation. Id . at 328-331. She asserted that this limitation wa s not included in the plan summary available to Coleman or to her at the time she left Coleman and thus should not be applied to her. Id . Ms. Welch also disputed UNUM’s position that her illness was not verifiable, and she enclosed co pies of medical records from November 1992, January 1995, July 1997, and June 19 99, as well as copies of letters from her doctor. Id

. In a letter dated November 12, 1999, UNUM advised M s. Welch that it had reviewed the information she had provided, along wi th the medical records previously contained in her file. Id . at 337-38. However, UNUM stated that Ms. Welch’s claim would continue to be paid under the s elf-reported symptoms limitation since “an organic etiology for [her] symptoms ha[d] not been determined.” Id . at 337. While acknowledging that Ms. Welch was d iagnosed with fibromyalgia, UNUM asserted that “the severityof your Fibromyalgia is based solely on your self reported symptoms.” Id . After several more such exchanges, UNUM sent Ms. Welch a letter dated Septe mber 6, 2000, stating that7

after completing its review, UNUM’s original decisi on to deny Ms. Welch’s continued benefits was appropriate. Id . at 364-65. The letter also stated that “because Ms. Welch is claiming disability as of Jan uary 31, 1998, she is subject to the provisions of the policy dated January 1, 19 98.” Id . at 365. On September 22, 2000, Ms. Welch filed suit in the District Court of Sedgwick County, Kansas, seeking a declaratory judg ment that UNUM had improperly discontinued her LTD benefits. UNUM rem oved to the federal district court for the District of Kansas pursuant to 28 U.S .C. § 1441 on the undisputed ground that the suit implicates the Employee Retire ment and Income Security Act (ERISA), 29 U.S.C. §§ 1001-1461. Both parties subm itted motions for summary judgment to the magistrate judge hearing the case. The magistrate judge ruled in favor of Ms. Welch and against UNUM. The magistrate judge found that UNUM had the power to retroactively amend the LTD plan. However, he found that “[c]ourts, in a variety of contexts, have rejected retroactive application of modificati ons if it affects benefits that have vested or already become due.” Aplt’s App. vo l. II, at 566 (Magistrate Judge’s Mem. & Order, filed Mar. 13, 2002) (citing Chiles v. Ceridian Corp.,
Inc ., 95 F.3d 1505 (10th Cir. 1996)). The magistrate judge found that the termination provision of the initial LTD plan provi ded that benefits would vest if and when the plan was terminated. Additionally, th e court found that “[w]hen8

Amendment 23 was enacted on August 6, 1998, the [in itial] policy was replaced in its entirety and was therefore terminated.” Id . at 576. Therefore, the magistrate judge ruled that Ms. Welch’s benefits ha d vested and that UNUM’s retroactive application of Amendment 23 improperly deprived her of her vested benefits. He declared that Ms. Welch’s LTD “benefi ts cannot be limited to 24 months under the self-reported symptom provision of the new 1998 plan,” and that she was “entitled to receive [benefit payments ] each month until she reaches age 65, but not less than 60 months, as long as she continues to be disabled as defined by the provisions of the pre-1998 plan.” Id . at 579. UNUM filed a motion to alter or amend judgment, which the magist rate judge denied. UNUM now appeals, asserting that (1) the magistrate judge improperly held that Ms. Welch’s benefits under the initial plan ve sted upon termination, (2) the magistrate judge improperly held that the initial p lan was terminated by the enactment of Amendment 23, and (3) the magistrate j udge, as a matter of law, should have entered summary judgment for UNUM. Bec ause we agree that the initial plan did not terminate, we reverse the gran t of summary judgment in favor of Ms. Welch. However, because the magistrate judg e did not determine whether it was arbitrary and capricious for UNUM to apply A mendment 23’s self-reported symptoms limitation to Ms. Welch’s claim for benefi ts based on her condition of fibromyalgia, we also remand to the district court for further proceedings9

consistent with this opinion.

II. DISCUSSION
A. Standard of review “We review de novo the district court’s grant of su mmary judgment, considering the evidence in the light most favorabl e to the appellant.” Meiners v. University of Kansas , 359 F.3d 1222, 1229 (10th Cir. 2004). “In interpreting the terms of an ERISA plan[,] we examine the plan docum ents as a whole and, if unambiguous, we construe them as a matter of law.” Chiles v. Ceridian Corp ., 95 F.3d 1505, 1511 (10th Cir. 1996). We “apply the de novo standard of review to interpret the terms of a plan, giving the language its common and ordinary meaning as a reasonable person in the position of the [plan] participant, not the actual participant, would have understood the words to mean.” Id . (internal quotation marks and citations omitted). B. Vesting Under A Welfare Benefit Plan “ERISA regulates two types of benefit plans, pensio n benefit plans that create vested rights and welfare benefit plans thatneed not create vested rights.” Member Servs. Life Ins. Co. v. Am. Nat’l Bank & Trust Co. of Sapulpa , 130 F.3d 950, 954 (10th Cir. 1997). The Coleman LTD Plan is a welfare benefit plan “because disability insurance plans are considered welfare, not pension, benefits.”10

Chiles , 95 F.3d at 1510. Welfare benefit plans are exempt from the statutory vesting requirements thatERISA imposes on pension benefits. Accordingly, an employer may ame nd the terms of a welfare benefit plan or terminate it entirely. How ever, benefits under a welfare benefit plan may vest under the terms of the plan itself. . . . [and] an amendment to any ERISA plan may not operate retr oactively if that amendment deprives a beneficiary of a veste d benefit

. Member Services , 130 F.3d at 954 (citations and quotation marks om itted) (emphasis added). See also Chiles , 95 F.3d at 1510 (“Benefits provided under a welfare benefit plan need never vest. . . . An emp loyer or plan sponsor may unilaterally modify or terminate welfare benefits, unless it contractually agrees to grant vested benefits.”). “[P]laintiffs carry the burden of showing an agreement or other demonstration of employer intent to have c ompany-paid [benefits] vest under the plan.” Chiles , 95 F.3d at 1511. Because UNUM retroactively applied Amendment 23 (wh ich was enacted August 6, 1998) to limit benefits for Ms. Welch’s d isability (which began January 31, 1998), we must determine whether the Coleman/UN UM LTD plan included a contractual promise that benefits would vest upon the occurrence of some condition. “Because an employee benefit plan must be established by a written instrument, a promise to provide vested benefits mu st be incorporated, in some fashion, into the formal written ERISA plan.” Id

. (internal quotation marks omitted). We interpret the terms of the LTD plan d e novo to determine whether the plan included a promise to vest benefits. Id . If it did, and if Ms. Welch’s11

benefits had indeed vested under it, then it was in appropriate for UNUM to retroactively apply Amendment 23 to Ms. Welch’s cla im. UNUM contests (1) the magistrate judge’s finding th at the LTD plan vested benefits upon the termination of the plan; as well as Ms. Welch’s arguments that the LTD plan vested benefits upon (2) the conclusio n of the elimination period, and (3) the attainment of her disability. We addre ss each contention in turn. Because we conclude that Ms. Welch’s benefits were not vested under the LTD plan, we hold that it was not improper for UNUM to retroactively apply Amendment 23 to Ms. Welch’s claim for benefits. 1. Vesting Upon Plan Termination a. Did the Plan Provide for Vesting Upon Plan Termi nation? The initial LTD plan contained a provision which st ated, “[t]ermination of this policy under any conditions will not prejudice any payable claim which occurs while this policy is in force.” Aplt’s App. vol. I, at 63. The magistrate judge found that this provision constituted a contr actual promise to vest benefits in the event of the plan’s termination. See Aplt’s App. vol. II, at 574 (reasoning that “a reasonable person in the position of [Ms. W elch] would read the termination provision in the [initial] plan . . . a s allowing UNUM/Coleman to change the terms of the plan, but if the plan termi nates, her disability benefits may not be prejudiced, e.g ., reduced or withdrawn, if she had a ‘payable clai m’12

before the plan was terminated”). Subsequently, th e magistrate found that the enactment of Amendment 23 caused the plan to termin ate, triggering the vesting of Ms. Welch’s benefits, such that it was improper for UNUM to retroactively apply Amendment 23 to limit Ms. Welch’s disability benefits. Id . at 576-77. Because we hold, as discussed below, that the initi al LTD plan did not terminate, it is unnecessary for us to decide whether or not the plan’s termination clause included the “clear and express language” necessaryto guarantee the contractual vesting of a welfare benefit. Chiles , 95 F.3d at 1513 (internal quotation marks omitted). b. Was the Initial Plan Terminated by Amendment 23? The magistrate judge found that Amendment 23 effect ively terminated the initial LTD plan and replaced it with a new plan. To reach this conclusion, the court relied on (1) the language of Amendment 23, w hich stated that “[t]he entire policy is replaced by the policy attached to this a mendment,” Aplt’s App. vol. I, at 118, and (2) a review of the history of the Cole man/UNUM long-term disability plan, which showed that [i]n the past, some ‘amendments’ purported to simpl y modify portions of the plan by changing only specific sections of t he plan and substituting a few new pages in the policy. . . . However, other ‘amendments’ – including Amendment 23 which is rele vant here – purported by their own terms to entirely replace the old plan , with a completely new policy attached to the amendment. Aplt’s App. vol. II, at 576-77.13

As the magistrate judge noted, “there is a scarcityof guidance on questions of welfare plan termination.” Chiles , 95 F.3d at 1516. Thus, we must evaluate all of the circumstances surrounding the enactment of A mendment 23 to determine whether it actually effected a termination of the i nitial plan. We conclude that the factors considered by the magistrate are not dispos itive of a plan termination. Rather, we hold that the facts of this case show th at the LTD plan was modified, not terminated. First we observe that UNUM did not undertake any ad ministrative steps that would indicate that Amendment 23 terminated th e initial plan and created a new plan. UNUM did not follow the guidelines set f orth in the plan documents for terminating the plan. “With respect to termination of a welfare plan, ERISA only requires that ‘[t]he assets of a welfare plan which terminates shall be distributed in accordance with the terms of the pla n except as otherwise provided in the regulations of the Secretary.’” Chiles , 95 F.3d at 1516 (quoting 29 U.S.C. § 1103(d)(2)). The initial Coleman LTD plan only s pecifies that if the company terminates the plan, it must “giv[e] written notice to the policyholder[s] at least 31 days in advance.” Aplt’s App. vol. I, at 63. T he Coleman LTD policyholders did not receive notice of a plan termination at the time of the enactment of Amendment 23. Moreover, Coleman employees were notpresented with an opportunity to opt in or out of a new plan. Altho ugh Amendment 23 made14

substantive changes to the plan that affected parti cular claims for benefits, like Ms. Welch’s, the employees’ coverage under the planwas not disrupted in a way that would indicate that the initial plan had termi nated and a new plan had been initiated. Indeed, this case bears little resemblance to cases in which we have held that there was a plan termination. In Chiles , 95 F.3d at 1515-16, when an employer sold one of its divisions to another company, new trustees were appointed to a replacement LTD plan instituted by t he buyer, the buyer became the administrator of the new plan, the seller trans ferred money to fund the new plan, and the buyer assumed all of the seller’s obl igations with respect to LTD plan participants. We held that “[g]iven the facts of this case, the [seller’s] Plan terminated with respect to [the] division employees when [the seller] was released from its obligation to fund the plan with respect t o those employees and the employees could look to the [buyer’s] LTD Plan for benefits.” Id . at 1516. Accord, Courtney v. Am. Airlines, Inc ., 40 F. Supp. 2d 389, 396 (N.D. Tex. 1999) (holding that LTD plan terminated upon the merger o f two companies). Clearly, none of these factors are present in the case at ba r. The enactment of Amendment 23 did not affect Coleman’s control of the plan or its obligations under it. Accordingly, we cannot find that the plan “terminat ed” under the reasoning of Chiles

.15

Finally, we note that the changes to the plan were effected by an amendment . Despite UNUM’s choice of words that the amendment “entire[ly] . . . replaced” the initial plan, Aplt’s App. vol. I, at 118, it is apparent that UNUM intended to merely modify or amend the initial plan , not to end it and institute a completely new one. In fact, Amendment 23 seems to have made few substantive changes to the plan. For instance, the benefit per centage remains the same, as does the waiting period, the elimination period, an d the maximum benefit period. Compare Aplt’s App. vol. I, at 48-49 with id . at 123. Although the language on the face of Amendment 23 indicated that “[t]he enti re policy is replaced by the policy attached to this amendment,” id . at 118, and a complete copy of the new plan was attached to Amendment 23, we deem it plaus ible that UNUM used these words to indicate its intention to provide Coleman’ s employees with a complete, integrated copy of the plan in the interest of conv enience. This wording is not ideal, but it does not amount to termination of the plan, especially since UNUM retained the right to change the plan “in whole or in part.” Id . at 65. Taking into account all of the circumstances, we ho ld that Coleman’s initial LTD plan was amended, not terminated, by Amendment 23. Therefore, assuming without deciding that the initial LTD plan containe d language sufficient to contractually vest Ms. Welch’s benefits upon plan t ermination, the enactment of Amendment 23 would not have triggered the vesting o f Ms. Welch’s benefits.16

2. Vesting at the Conclusion of the Elimination Per iod or Upon Ms. Welch’s Disability UNUM contests Ms. Welch’s arguments, which she rais ed below and which she reasserts on appeal, that her LTD benefits “wer e capable of vesting and did vest, at the conclusion of the waiting [i.e. elimin ation] period,” Aple’s Br. at 15, or upon the date she became disabled. Id . at 16-17. We reiterate that “[a]n employer or plan sponsor may unilaterally modify or terminate welfare benefits, unless it contractually agrees to grant vested benefits.” Chiles , 95 F.3d at 1510. With regard to the payment of d isability benefits, the initial LTD plan provides that When the Company receives proof that an insured is disabled due to sickness or injury and requires the regular attendance of a physician, the Company will pay the insured a monthly benefit afte r the end of the elimination period. The benefit will be paid for t he period of disability if the insured gives to the Company proof of contin ued: 1. disability; and 2. regular attendance of a physician.

. . . Disability benefits will cease on the earliest of: 1. the date the insured is no longer disabled; 2. the date the insured dies; 3. the end of the maximum benefit period; 4. the date the insured’s current earnings exceed 8 0% of his indexed pre-disability earnings; 5. the date the insured receives retirement benefit s under the employer’s retirement plan due to his voluntary ele ction to receive such benefits. Aplt’s App. vol. I, at 57, 60. The plan also advis es that “[t]his policy may be changed in whole or in part.” Id . at 65.1 Because the magistrate judge found that UNUM couldnot retroactively

apply Amendment 23 to limit Ms. Welch’s claims, he did not address the merits of Ms. Welch’s argument that her benefits vested pu rsuant to language contained in Amendment 23 that “[a]ny decrease in coverage wi ll take effect immediately but will not affect a payable claim that occurs pri or to the decrease.” Aplt’s App. vol. I, at 132. The magistrate judge merely stated that “Plaintiff has repeatedly asserted that the old plan is the one applicable to her. The [above language ] is part of the new plan .” Id . vol. II, at 571-72. Because we hold that UNUM properly applied Amendment 23 to Ms. Welch’s claims , Ms. Welch’s argument may remain tenable. We note that there is no indic ation in the record that UNUM actually considered this policy language when it wa s considering whether to limit the benefit period for Ms. Welch’s disability payme nts. 17 “Contractual vesting of a welfare benefit is an ext ra-ERISA commitment that must be stated in clear and express language. . . . [It] is a narrow doctrine.” Chiles , 95 F.3d at 1513 (internal quotation marks omitted ). There is no language in the LTD plan that provides for the vesting of cl aims for benefits upon disability or at the end of the elimination period, and the plan specifically reserves UNUM’s right to change the plan. We canno t read a vesting requirement into the contract. See id . (declining to read LTD plan as providing for vest ing upon the unexpressed condition of attaining disabil ity when the plan “clearly pinpoint[ed] plan termination, not employee disabil ity, as the vesting trigger”). Therefore, we hold that Ms. Welch’s benefits did no t vest upon her attaining disability or at the conclusion of the elimination period. 1 C. Application of Amendment 23 As detailed in the foregoing discussion, we hold th at Ms. Welch’s benefits18

were not vested under the LTD plan. Accordingly, w e hold that it was not improper for UNUM to retroactively apply Amendment 23 to Ms. Welch’s claims, because it did not deprive her of vested benefits. Member Services , 130 F.3d at 954. However, the question remains as to whether UNUM appropriately applied Amendment 23’s self-reported symptoms limitation to Ms. Welch’s claim for disability benefits based upon a diagnosis of fibro myalgia. Amendment 23’s twenty-four-month self-reported symp toms limitation applies to payments on “disabilities, due to sickne ss or injury, which are primarily based on self-reported symptoms.” Aplt’s App. vol. I, at 143. “Self-reported symptoms” are defined as the manifestations of your condition which you tell your doctor, that are not verifiable using tests, procedures, or clinical examinations standardly accepted in the practice of medicine. E xamples of selfreported symptoms include, but are not limited to h eadaches, pain, fatigue, stiffness, soreness, ringing in ears, dizz iness, numbness and loss of energy. Id . at 144. UNUM contends that Ms. Welch “could present no evid ence, other than ‘self-reported symptoms’ to justify continuation of her disability benefits” for fibromyalgia. Aplt’s Br. at 26. Ms. Welch, on the other hand, contends that her “condition is confirmed by the results of a varietyof objective tests performed over a period of time, showing varying degrees of c onnective tissue and inflammatory disease.” Aple’s Br. at 19. “Because proving the disease is19

difficult . . . , fibromyalgia presents a conundrum for insurers and courts evaluating disability claims.” Walker v. Am. Home Shield Long Term Disability Plan , 180 F.3d 1065, 1067 (9th Cir. 1999). Compare id. (holding that “no objective test exists” for proving fibromyalgia); Jordan v. Northrop Grumman Corp. Welfare Benefit Plan , 370 F.3d 869, 872 (9th Cir. 2004) (“[F]ibromyalgi a’s cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjectiv e.”); Green-Younger v. Barnhart , 335 F.3d 99, 108 (2d Cir. 2003) (“[A] growing num ber of courts, including our own, . . . have recognized that fibro myalgia is a disabling impairment and that ‘there are no objective tests w hich can conclusively confirm the disease.’”) (quoting Preston v. Sec. of Health and Human Servs. , 854 F.2d 815, 818 (6th Cir. 1988)); Hawkins v. First Union Corp. Long-Term Disability Plan , 326 F.3d 914, 919 (7th Cir. 2003) (noting that fi bromyalgia “itself can be diagnosed more or less objectively by the 18-point test . . . , but the amount of pain and fatigue that a particular case of it produ ces cannot be”); and McPhaul v. Bd. of Comm’rs of Madison County , 226 F.3d 558, 562 (7th Cir. 2000) (holding that fibromyalgia’s “cause is unknown, there is no cure, and the symptoms are entirely subjective”); with Boardman v. Prudential Life Ins. Co. of Am. , 337 F.3d 9, 16 n.5 (1st Cir. 2003) (“While the diagnoses of chronic fatigue syndrome and fibromyalgia may not lend themselves to objective c linical findings, the physical20

limitations imposed by the symptoms of such illness es do lend themselves to objective analysis.”); Brosnahan v. Barnhart , 336 F.3d 671, 678 (8th Cir. 2003) (noting that Social Security claimant’s testimony a nd reports to the Social Security Administration were “supported by objectiv e medical evidence of fibromyalgia”); and Russell v. UNUM Life Ins. Co. of Am. , 40 F. Supp. 2d 747, 751 (D.S.C. 1999) (considering a nearly identical s elf-reported symptoms limitation and holding that fibromyalgia is an obje ctively diagnosable condition). There is no dispute that the Coleman LTD plan gives UNUM discretionary authority to determine eligibility for benefits and to construe the terms of the plan. Aplt’s App. vol. I, at 50. However, in maki ng those discretionary determinations, UNUM, as the plan administrator andinsurer, operates under a conflict of interest. Pitman v. Blue Cross and Blue Shield of Okla., 217 F.3d 1291, 1296 n.4 (10th Cir. 2000) (holding that when one party serves “as both insurer and administrator of the plan, there is an inherent conflict of interest between its discretion in paying claims and its nee d to stay financially sound”). In these circumstances, under our circuit’s “slidin g scale” approach, a court reviewing a benefits determination “will always app ly an arbitrary and capricious standard, but the court must decrease the level of deference given to the conflicted administrator’s decision in proportion t o the seriousness of the conflict.” Chambers v. Family Health Plan Corp ., 100 F.3d 818, 825 (10th Cir.21

1996). In this case, the magistrate judge’s finding that A mendment 23 could not be applied to Ms. Welch “obviate[d] the need to decide whether fibromyalgia falls within the self-reported symptom limitation of the new plan.” Aplt’s App. vol. II, at 579. Therefore, the lower court never applied t he arbitrary and capricious standard to UNUM’s benefits determination for Ms. W elch. “As a general rule, we do not consider issues not p assed on below, and it is appropriate to remand the case to the district court to address an issue first.” N. Tex. Prod. Credit Ass’n v. McCurtain County Nat’l B ank, 222 F.3d 800, 812 (10th Cir. 2000). Accordingly, we remand the case to giv e the district court the opportunity to consider the evidence and arguments of the parties regarding UNUM’s determination that fibromyalgia falls into the self-reported symptoms limitation.

III. CONCLUSION We hold that (1) even assuming, without deciding, that the Coleman LTD plan vested benefits upon the plan’s termination, M s. Welch’s benefits did not vest because Amendment 23 did not cause the initial plan to terminate, and (2) the LTD plan did not provide for benefits to contractua lly vest upon disability or at the end of the elimination period. Therefore, we REVERSE the magistrate22

judge’s grant of summary judgment to Ms. Welch and REMAND the case for further proceedings consistent with this opinion.