PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

CARL VAN STEEN Plaintiff-Appellee/Cross-Appellant,

v. LIFE INSURANCE COMPANY OF NORTH AMERICA,Defendant-Appellant/CrossAppellee. Nos. 16-1405 & 16-1421

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

(D.C. No. 1:15-C V-00137-WYD-MJW)
Kevin P. Ahearn (Bradley A. Levin with him on th e brief) of Levin Sitcoff, PC, Denver, Colorado, for Plaintiff-A ppellee/Cross-Appellant. Jack M. Englert, Jr., of Holland & Ha rt, LLP, Greenwood V illage, Colorado, for Defendant-Appellant/Cross-Appellee.

Before MATHESON , McKAY , and McHUGH , Circuit Judges.

McKAY , Circuit Judge.
These cross-appeals arise out of Life Insurance Company of North America’s termination of Carl Van Steen’s long-term disability benefits under Lockheed Martin’s FILED United States Court of Appeals Tenth Circuit 

### January 2, 2018
Elisabeth A. Shumaker Clerk of Court2 ERISA Plan. Life Insurance Company of North America a ppeals the district court’s finding that its decision to terminate M r. Van Steen’s benefits was arbitrary and capricious. Mr. Van Steen, in turn, appeals the district court’s denial of his attorney’s fees request. We affirm the district court on both issues.
I. Mr. Van Steen is employed as a Syst ems Integration Business Analyst at Lockheed Martin Corporation. As such, he is a participant in the Lockheed Martin Group Benefits Plan, which is administered by Li fe Insurance Company of North America, or LINA. LINA also funds Lockheed’s long-term disabil ity policy. ER ISA governs the Plan and policy. In October 2011, Mr. Van Steen was physic ally assaulted during an altercation while walking his dog. The a ssault resulted in a mild trauma tic brain injury (mTBI) that impacted Mr. Van Steen’s co gnitive abilities. Following th e incident, Mr. Van Steen sought care from his primary treating physic ian, Dr. David Reinhard, neuropsychologist Dr. James Berry, and a handfu l of other providers. The cognitive dysfunction from Mr. Va n Steen’s mTBI prevented him from returning to work 1 until September 10, 2012, at which point Dr. Reinhard cleared him for part-time work every other day. Mr. Van Stee n was allowed to return to part-time work on a daily basis roughly six weeks later. Even on a part-time schedule, however, Mr. Van

1 Mr. Van Steen made an attempt to retu rn to part-time work shortly after his accident, but Dr. Reinhard opted to take him back off work in Ja nuary 2012 after Mr. Van Steen reported difficulties f unctioning in his job.3 Steen experienced cognitive fatigue and headac hes that required him to frequently rest. He often worked from home where it was easier to take naps throughou t the day. Due to his inability to stay organized and keep track of deadlines after the assault, Mr. Van Steen received poor feedback on his job performance. Mr. Van Steen’s claim for partial long-ter m disability benefits was approved on March 30, 2012. Roughly a year later, LINA reviewed Mr. Van Steen’s file and contacted Dr. Reinhard’s offi ce for more information ab out Mr. Van Steen’s condition and restrictions. Dr. Reinhard’s nurse told LINA that Mr. Van Steen’s restrictions were basically permanent as he was “not likely to improve.” (Appellant’s App. at 620.) Despite this prognosis, LINA sent Mr. Van St een a letter one week later terminating his long-term disability benefits, explaining that “the medical documentation on file does not continue to support the current restrictions and limitations to preclude you from resuming a full-time work schedule.” ( Id . at 813.) Mr. Van Steen appealed this decision on November 25, 2013, providing a list of his basic job duties and arguing that th ere was no evidence to support LINA’s determination that he is or had been able to perform each and every material duty of his regular occupation full-time. Mr. Van St een supplemented this appeal with a psychological and vocational evaluation from psychologist David Zi erk. LINA denied Mr. Van Steen’s appeal on Febr uary 27, 2014, asserting that “an explanation of [Mr. Van Steen’s] functionality and how [his] functiona l capacity continuous ly prevented [him] from performing the material duties of [his ] occupation from March 16, 2013 through the present and beyond was not clinically supported.” ( Id . at 800-01.) Mr. Van Steen4 appealed again on August 8, 2 014, with supplemental medica l records, only to receive LINA’s second denial on October 28, 2014. Having exhausted his administrative appe als under the Plan, Mr. Van Steen next sought relief before the district court. Th e district court reversed LINA’s decision to terminate Mr. Van Steen’s par tial long-term disability benefits on the grounds that it was arbitrary and capricious, but denied Mr. Van Steen’s request for attorney’s fees.
II. “The district court’s determination of whether an ERISA benefits decision is arbitrary and capricious is a legal c onclusion subject to de novo review.” Graham v. Hartford Life & Accident Ins. Co. , 589 F.3d 1345, 1357 (10th Cir. 2009) (internal quotation marks omitted). The arbitrary and ca pricious standard applies to review of a plan administrator’s benefits decision wh en “the plan grants the administrator discretionary authority to dete rmine eligibility for benefits or to construe the plan’s
terms.” Id. (internal quotation marks omitted). Here , as Lockheed’s Plan Administrator, LINA has full discretionary au thority to interpret and cons true the terms of the ERISA Plan. Thus, the parties agree that we revi ew LINA’s underlying termination decision under the arbitrary and capricious standard. Under arbitrary and capricious review, this court upholds LINA’s determination so lo ng as it was made on a reasoned basis and supported by substantial evidence. Id

. In applying this standard, this court must also consider the po ssibility that LINA’s dual role as “both insurer and administrator of the plan creates an inherent conflict of interest between its discretion in paying claims and its need to stay financially sound,”5 id. at 1358 (internal quotati on marks omitted), weighing the conflict “as a factor in determining whether the plan administrator has abused its discretion in denying benefits.” Metro. Life Ins. Co. v. Glenn , 554 U.S. 105, 108 (2008). The importance of a conflict of interest is “proportionate to the likelihood that the conflict a ffected the benefits decision.” Graham , 589 F.3d at 1358. In this case, LI NA had a dual role as an insurer and administrator of the Plan and took steps to mi tigate any conflict. In any event, we need not and do not rely on conflict of interest considerations to resolve this case. Lockheed’s Plan states th at an employee is “Disable d if, because of Injury or Sickness,
1. he or she is unable to perform each and every material duty of his or her regular occupation; and 2. after Monthly Benefits have been pa yable for 24 months, he or she is unable to perform each and every material duty of any occupation for which he or she may reasonably become qualified based on education, training or experience.” (Appellant’s App. at 436.) An employee is “Residually Disabled” under the Plan “if, during the Benefit Waiting Period and while Disab ility Benefits are payable, he or she is unable to perform each and every material duty of his or her regular occupation on a Fulltime basis.” ( Id. ) “Full-time means the number of hours set by the Employer as a regular work day for Employees in the Employee’s eligibility class.” ( Id. at 431.) For Mr. Van Steen’s position as a Systems Analyst, full-time work app ears to refer to an eight-hour day and a five-day work week. Thus , in order for this Co urt to uphold LINA’s decision to terminate Mr. Van Steen’s long -term disability benefits, there must be substantial evidence in the reco rd supporting the determination that Mr. Van Steen is able6 to perform each and every material duty of a Systems Analyst for eight hours a day. A thorough review of the reco rd reveals no such evidence. When LINA first approved Mr. Van Steen’s claim for long-term disability benefits in the spring of 2012 , it noted his “deficits in executiv e functioning, attention, memory and higher level attention/ speed of processing.” ( Id . at 606.) These limitations were especially problematic for a return to work because Mr. Van Steen’s “occupation [as a Systems Analyst] requires high executive function.” ( Id. ) When LINA asked Dr. Reinhard for an update on Mr. Van Steen’s co ndition a year later, Dr. Reinhard explained that Mr. Van Steen “is limited by cognitive fati gue and is simply unable to tolerate full time work activities yet.” ( Id. at 1260.) Mr. Van Steen’s lim itations were believed to be permanent, as his condition was unlikely to improve. The record does not reflect significant improvements in Mr. Van Steen’s cognitive functioning between his part-time return to work in September 2012 and LINA’s internal revi ew of his claim status in March 2013. Despite this, LINA terminat ed Mr. Van Steen’s long-term disability benefits on April 8, 2013. LINA argues that its April 2013 termina tion was well-supported because it “based its decision to end the payment of residua l LTD benefits to Van Steen on updated medical evidence and the review of that ev idence by on-staff Nurse Case Managers, an on-staff physician Board Certified in O ccupational Medicine (Dr. Vatt), and an independent Board Certified Clinical Neuropsyc hologist (Dr. Attfield).” (Appellant’s Br. at 28.) Yet, none of these reviewers actua lly determined from the medical evidence that Mr. Van Steen was capable of performing all of his material job duties on a full-time7 basis. For example, Dr. Attfield opined that Mr. Van Steen’s symptoms were not severe enough “to preclude occupational function,” so “a structured, graduated schedule of work reintroduction would appear pr udent.” (Appellant’s App

. at 608, 1280-81.) This conclusion is hardly revelatory . Mr. Van Steen was already wo rking part-time as part of Dr. Reinhard’s graduated schedule of wo rk reintroduction in which he would be periodically reevaluated to see if he could handle worki ng more hours. LINA further contends that its denials of Mr. Van Steen’s two appeals were also reasonable based on “review of the medical evidence by two more independent Board Certified Clinical Neuropsychologists (Dr. Ko lbell and Dr. Fiano) and an independent Board Certified Otolaryngologist (Dr. Grossman).” (Appellant’s Br. at 28.) Yet, none of these reviewers remedy LINA’s evidentiary de ficiency. Dr. Kristin Fiano, an outside neuropsychologist, concluded that Mr. Van Steen’s “combination of psychological and cognitive symptoms would not be considered to be at a le vel that would entirely preclude continuous gainful employment.” (Appellant ’s App. at 560, 564, 932-44.) Mr. Van Steen’s part-time work status already made it obvious that his symptoms did not entirely preclude him from engaging in “continuous ga inful employment.” Like LINA’s other evidence, Dr. Fiano’s analysis provides no insight into Mr. Van Steen’s ability to perform all of his material job dutie s on a full-time basis. Dr. Kolbell acknowledged that Mr. Van Stee n is “mildly impaired with respect to rapid information processing” and “will require more time to complete complex tasks . . . such as might be encounte red in work settings,” but did not discuss how these accommodations would impact M r. Van Steen’s ability to perfo rm his material job duties8 on a full-time basis. ( Id . at 1034-36.) Dr. Gro ssman is LINA’s only expert to mention an eight-hour work day, but he limited his op inion that Mr. Van Steen could “lift 10-20 pounds occasionally a nd could sit, stand a nd move around frequently over an eight-hour day” to “an otolaryngologist perspective.” ( Id

. at 792, 928-29.) While this gets closer to the type of evidence that would support LI NA’s decision, it does not address how Mr. Van Steen’s cognitive limitations would impact his job perfo rmance over an eight-hour period, nor does it outline his key job responsibilities. See, e.g. , Caldwell v. Life Ins. Co. of N. Am. , 287 F.3d 1276, 1285 (10th Cir. 2002) (a well-reasoned benefits decision must consider all essential job dutie s). None of these reviewer s concluded Mr. Van Steen was capable of performing each and every material duty of his regular occupation on a fulltime basis. LINA argues that its medical reviewer s did not opine about Mr. Van Steen’s ability to perform his material job duties on a full-time basis because giving opinions on disability or occupational status was not with in their purview. Yet, none of LINA’s vocational experts found that Mr. Van Steen was capable of performing each and every one of his material duties on a full-time basi s either. During the first appeal, LINA’s reviewing vocational rehabilitation counselor determined that Mr. Van Steen’s cognitive restrictions and limitations we re “consistent with the required demans [sic] of his occupation of systems analyst [and t]herefore [medical records] do not support functional deficits that preclude [Mr. Van Steen] from [ret urning to work in] his own occupation.” (Appellant’s App. at 576.) This evaluatio n made no distinction be tween Mr. Van Steen’s ability to return to work on a full-time basis rather than a part-time basis.9 Similarly, during the second appeal, LINA’s vocational rehabilitation counselor concluded that “the [restrictions a nd limitations] of mild impairment in directing/controlling/planning ac tivities of others, having no impairment in dealing with people, and no impairment in making judgeme nts and decisions are consistent with the customers[’] own occupation.” ( Id . at 921.) This time, LINA provided a brief list of tasks that Mr. Van Steen was capable of perfo rming, but only in a broad, generalized sense. The LINA reviewers failed to expl ain the connection betw een this list and Mr. Van Steen’s actual material job duties, or hi s ability to sustain them for an eight-hour work day. LINA claims that the list of Mr. Van Steen’s abilities and restrictions was compared to the demands of his job as a Systems Analyst, but this occupational assessment is not included anyw here in the record, and it is not clear from this description whether the assessment considered the dema nds of Mr. Van Steen’s job on a full-time basis. Ultimately, LINA’s experts—whether medi cal or vocational—failed to evaluate Mr. Van Steen’s ability to perf orm his material job duties on full-time basis. LINA tries to dismiss this shortfall as “semantics,” cl aiming that, in concludi ng that Mr. Van Steen was capable of working in his occupation, its experts were impliedly referring to full-time work. (Appellant’s Response and Reply Br. at 29-32.) The plain la nguage of the Plan cannot be dismissed so easily. The Plan ’s residual disability clause requires a determination as to whether a claimant is able to perform each and every material duty of his job on a full-time basis. Here, where M r. Van Steen is already working part-time, clear support and analysis are required to show that his restrictions and limitations do not10 prevent him from performing his material jo b duties full-time. This distinction is especially relevant for Mr. Van Steen’s case, as the record co ntains extensive descriptions of his cognitive fatigue, even on a part-time schedule. LINA would have us believe that Mr. Van Steen has the cognitive st amina to sustain an eight-hour work day for five days a week, yet offers no evidence to support that conclusion. The physicians and experts who did anal yze the distinction between a part-time and full-time work schedule all concluded that Mr. Van Steen is not capable of working an eight-hour day with his current limitations . Doctors Reinhard and Berry both wrote letters to LINA in October 20 13 opining that Mr. Van Steen could not manage a full-time return to work and should have his bene fits reinstated. Si milarly, Dr. Zierk—a psychologist who conducted a psychological and vocational evaluation of Mr. Van Steen as part of the first appeal—concluded that “[b]ased on Mr. Van Steen’s diminished cognitive functioning, it is rec ognized he is no longer capa ble of performing the higher order cognitive functions associated with his customary occu pation on a full-time, uninterrupted basis and without the provisi on of considerable accommodations.” (Appellant’s App. at 1056.) LINA has discretion in interpreting and ad ministering the Plan, but this discretion does not stretch so far as to ignore the language of the Plan itself. In order to be “wellreasoned,” LINA’s decision to terminate benef its must be based on medical evidence that Mr. Van Steen is capable of performing each and every material duty of his occupation as a Systems Analyst on a full-time basis. LINA has provided no such evidence. For this11 reason, we echo the district court in concluding that LINA ’s decision was “unsupported by substantial evidence,” and is, ther efore, arbitrary and capricious. ( Id . at 233-35.)
III. This court reviews a district court’s fee decision in an ERISA matter for an abuse of discretion. Gordon v. U.S. Steel Corp. , 724 F.2d 106, 108 (10t h Cir. 1983). Pursuant to 29 U.S.C. § 1132(g)(1), th e “court in its discretion may allow a reasonable attorney’s fee and costs of action to either party” in an ERISA matter. Courts generally analyze five factors or guidelines in determining if an award is appropriate under 29 U.S.C. § 1132(g)(1): (1) the degree of the opposing partie s’ culpability or bad faith; (2) the ability of the opposing pa rties to personally satisfy an award of attorney’s fees; (3) whether an award of attorney’s fees against the opposing parties would deter others from acting under similar circumstances; (4) whether the parties requesting fees sou ght to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA; and (5) the relative merits of the parties’ positions. Gordon , 724 F.2d at 109. Courts need not cons ider each factor, but no single factor should be held dispositive. McGee v. Equicor-Equitable HCA Corp. , 953 F.2d 1192, 1209 n.17 (10th Cir. 1992). The district court denied Mr. Van Steen’s request for attorney’s fees, finding that (1) there was no compelling evid ence LINA had acted culpably or in ba d faith; (2) LINA did have the ability to pay the fee; (3) an award would not deter others in similar circumstances; (4) Mr. Van Steen’s claim did not seek to benefit all Plan participants or resolve a significant legal question; (5) LI NA’s arguments were not wholly without12 merit. Mr. Van Steen appeals this decision, arguing that the district court erred in its analysis of the Gordon factors. “Under the abuse of discretion standard [,] a trial court’s decision will not be disturbed unless the appellate court has a defin ite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.” Moothart v. Bell , 21 F.3d 1499, 1504 (10th Cir. 1994) ( quoting McEwen v. City of Norman , 926 F.2d 1539, 1553-54 (10th Cir. 1991)). While the district court could well have weighed the Gordon factors differently, Mr. Van Steen’s arguments fail to convince us that the district court’s decision was based on a clear error of judgment or exceeded the bounds of permissi ble choice. Rather, our review of the record persuades us that the district court did not abuse its discretion in applying the Gordon factors to this

case. IV. We AFFIRM the district court’s decision to reverse LINA’s denial of Mr. Van Steen’s long-term disability benefits. We further AFFIRM the district court’s denial of Mr. Van Steen’s attorney’s fees request.