FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARC S. SILVER, 

Plaintiff-Appellant, No. 04-55747

v. D.C. No.

EXECUTIVE CAR LEASING LONGCV-02-05279-SVW 

TERM DISABILITY PLAN, an ORDER AND

employee welfare benefits plan AMENDED

under ERISA, OPINION

Defendant-Appellee. 

Appeal from the United States District Court

for the Central District of California

Stephen V. Wilson, District Judge, Presiding

Argued and Submitted

February 14, 2006—Pasadena, California

Filed August 7, 2006

Amended October 6, 2006

Before: Betty B. Fletcher, Warren J. Ferguson, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge B. Fletcher

17345
COUNSEL

Lyle R. Mink, Esq., Los Angeles, California, for the plaintiffappellant.

Stacey R. Turner, Esq., Los Angeles, California, for the

defendant-appellee. 

ORDER

The opinion filed August 7, 2006 at slip op. 8907 is

amended as follows: 

The final paragraph of the Standard of Review Section at

slip op. 8918-19 is deleted and replaced by the following: 

We note that scrutiny is especially warranted when,

after conducting de novo review of a decision by an

ERISA plan administrator, a district court adopts

verbatim the administrator’s proposed factual findings and legal conclusions. We have previously

17348 SILVER v. EXECUTIVE CAR LEASING
emphasized that, when they conduct de novo review,

district courts have a responsibility under the ERISA

framework to undertake an independent and thorough inspection of an administrator’s decision. See

Mongeluzo, 46 F.3d at 943 (emphasizing the obligation of the district court to conduct a sufficiently

thorough review of the record, as well as its authority to introduce additional evidence into the record,

in order to “enable the full exercise of informed and

independent judgment”). When a district court

adopts wholesale and verbatim the findings and conclusions of an ERISA plan administrator, it behooves

us to review the district court’s findings carefully to

ensure that the trial court has adequately discharged

its responsibility. Wariness of a district court’s verbatim adoption of a plan administrator’s proposed

findings is especially warranted in the ERISA context because of the complex and sometimes conflicting roles of plan administrators. See Abatie v. Alta

Health & Life Ins. Co., No. 03-55601, slip op. at

9630 (9th Cir. Aug. 15, 2006) (noting that a district

court’s review of an administrator’s decision must be

“tempered by skepticism commensurate with the

plan administrator’s conflict of interest”); In re T.H.

Richards Processing Co., 910 F.2d 639, 643 n.2 (9th

Cir. 1990) (noting that courts must be wary of borrowed findings in any event); Sealy, Inc. v. Easy Living, Inc., 743 F.2d 1378, 1385 n.3 (9th Cir. 1984)

(same). 

With that amendment we reinstate the mandate.

OPINION

B. FLETCHER, Circuit Judge: 

Marc Silver claims that he is disabled due to the deteriorating condition of his heart. He argues that, as a result of his

SILVER v. EXECUTIVE CAR LEASING 17349
disabling heart condition, he is entitled to benefits under an

insurance policy issued by the UNUM Life Insurance Company of America (“UNUM”). UNUM claims that Silver

recovered from his disability and that under the terms of the

policy he is therefore not entitled to benefits. Following a

bench trial, the district court upheld UNUM’s decision to

deny Silver’s claim. We now reverse. 

I. FACTUAL AND PROCEDURAL BACKGROUND

Since 1974, Executive Car Leasing has provided coverage

for its employees under a long-term disability insurance policy (“Policy”). The Policy is administered by UNUM and

governed by the Employee Retirement Income Security Act

(“ERISA”), 29 U.S.C. §§ 1001 et seq. It provides benefits to

Executive Car Leasing employees who suffer a loss of earnings due to disability. To qualify as disabled under the Policy,

a claimant must demonstrate that “because of injury or sickness . . . [he] cannot perform each of the material duties of his

regular occupation.” Also, because the Policy covers only

long-term disabilities, it establishes a 90-day “elimination

period,” during which time no benefits are payable. Thus, to

receive benefits under the UNUM Policy, a claimant must

establish not only that he is disabled, but also that he is disabled continuously for 90 days following the initial date on

which he claims disability. If the claimant fails to show that

he is continuously disabled throughout this elimination period

and does not return to work after those 90 days, coverage

under the Policy terminates. 

Silver, an Executive Car Leasing employee who was covered under the UNUM Policy, has a lengthy history of severe

heart disease. He is a long-time smoker — medical records

indicate that he smoked up to one and a half packs a day for

as many as 30 years — and for nearly as long he has suffered

from claudication, or cramping, in his legs, which is a symptom of peripheral heart disease. In 1980, he suffered a myocardial infarction (a heart attack). Doctors discovered that

17350 SILVER v. EXECUTIVE CAR LEASING
three vessels in his heart were blocked, and he underwent

triple-bypass surgery to circumvent the obstructions. In 1983,

he suffered another heart attack when one of the grafts from

his bypass surgery became completely obstructed. He

returned to the hospital complaining of chest pain in 1989 and

1991, and when he returned yet again in 1992, cardiologists

found multiple pathways obstructed and conducted another

triple-bypass surgery. In November of 1998, doctors again

found that several of Silver’s blood vessels were partially or

entirely occluded. This time, they performed angioplasty —

a procedure in which a small balloon is first inserted into the

obstructed blood vessel and then inflated to clear the obstruction. 

Despite these medical problems, Silver continued to work

as a sales manager at Executive Car Leasing. His job generally required him to work around nine hours a day and

demanded that he fulfill sales quotas for the company. Silver

claims that the work was stressful for him, and UNUM has

conceded that his employment at Executive Car Leasing

required him to work under stressful conditions. 

The events giving rise to this lawsuit started to unfold

when, in December of 2000, he once again started having

chest pain. On December 14, 2000, Silver sought treatment at

Western Medical Center in Santa Ana, California, after experiencing acute chest pain and angina, or shortness of breath.

An initial examination excluded the possibility of another

heart attack, but concluded that Silver would require a cardiac

catheterization (his fifth such procedure) and possibly another

angioplasty procedure. Further examination revealed that

there were lesions in two of his blood vessels and that several

other vessels were occluded, or blocked, with the openings in

some of these vessels narrowed by as much as 95 percent.

Doctors performed another angioplasty on Silver, his second.

Medical reports from this hospitalization indicate that the procedure was successful and that the results from the angioplasty were excellent. Upon his release from the hospital,

SILVER v. EXECUTIVE CAR LEASING 17351
Silver consulted his long-time cardiologist, Dr. Melvin

Tonkon, who advised him to stop working. Silver followed

Dr. Tonkon’s advice, stopped working, and filed a claim for

benefits under the UNUM Policy. He described his disability

as “heart disease and angioplasty,” and he listed his date of

disability as December 14, 2000 — the date on which his second angioplasty procedure had been performed. 

In the 90 days that followed his second angioplasty procedure — i.e., during the critical “elimination period” that followed his purported “date of disability” — Silver continued

to experience complications related to his cardiac condition.

He visited a pulmonary specialist, Dr. Fox, whose records

contain mixed news on Silver’s condition — while Dr. Fox

noted that there was only “mild obstruction” of some of Silver’s blood vessels, he also reported that Silver complained of

shortness of breath, that Silver was experiencing decreased

blood flow on the left side of his body (which another doctor

attributed to a partially occluded artery), and that Silver had

symptoms consistent with chronic bronchitis and emphysema.

Silver also visited a sleep specialist, who diagnosed Silver as

having “obstructive sleep apnea,” a condition related to high

blood pressure and other cardiovascular disease that causes its

sufferers to stop breathing repeatedly during their sleep,

sometime hundreds of times during the night and often for a

minute or longer. Again during the elimination period Silver

returned to the emergency room after waking up with “sharp,

stabbing” chest pain. The medical records from this visit contain mixed results. Some tests indicated an “abnormal resting

electrocardiogram” and “changes of uncertain significance” in

Silver’s heart condition, including one diagnosis that suspected partial blockage of his “left subclavian” artery. With

other tests, doctors noted that there had been improvement in

the area where angioplasty had been performed, and they ultimately released Silver from the hospital without change in his

medical condition. Throughout the elimination period, Silver

worked with Dr. Tonkon on a program of cardiac rehabilitation; due to concerns about being able to drive safely to and

17352 SILVER v. EXECUTIVE CAR LEASING
from the proper medical facilities, he pursued this rehabilitation program at home. 

Following the end of the 90-day elimination period, Silver’s cardiac woes continued. He returned to Western Medical Center on May 28, 2001, complaining of chest pain. Once

again, doctors found his heart in poor condition, with his right

coronary artery and his left anterior descending artery nearly

completely blocked. Again, doctors performed an angioplasty

procedure. This third angioplasty procedure was completed

with “no complications,” and Silver was again released.

Thereafter, Silver successfully pursued a claim for disability

benefits from the Social Security Administration (SSA).

Though the SSA ultimately determined that Silver was entitled to benefits as a result of a psychological exam diagnosing

him with affective mood disorder, the SSA also determined

that Silver “became disabled under our rules on December 14,

2000,” indicating that Silver’s psychological problems were at

least related to, if not triggered by, his cardiac condition and

the angioplasty procedure that took place on that date. 

UNUM ultimately rejected Silver’s claim, ruling that Silver’s cardiac condition had substantially improved following

the angioplasty procedure and that he therefore had not demonstrated that he was continuously disabled during the 90-day

elimination period, which expired on March 14, 2001.

UNUM’s letter stated: “After comprehensive review of the

medical information in file, it is our medical department’s

opinion that your cardiac condition was resolved within the

elimination period and no longer precludes you from performing the material and substantial duties of your occupation as

a sales manager.”

1

 Letter from Patrick Taylor, Associate Cus1Silver argues that UNUM’s letter denying benefits did not adequately

explain the company’s decision to reject his claim and thereby deprived

him of the ability to challenge that decision effectively. We are satisfied

that the denial letter met the requirements set forth in the applicable federal regulations. See 29 C.F.R. § 2560.503-1(g). The letter explained why

SILVER v. EXECUTIVE CAR LEASING 17353
tomer Care Specialist, UNUM Life Insurance Company, to

Marc S. Silver, at 1 (May 4, 2001) (hereinafter “UNUM Letter”). UNUM based its ruling on the conclusions of its inhouse medical personnel that Silver’s cardiac condition had

stabilized and that “[t]here is no documented indication of

continued chest pain.” Id. at 2. Silver pursued an administrative appeal, which UNUM denied. 

Silver then filed this lawsuit to contest UNUM’s decision.

The district court found that de novo review of UNUM’s ruling was appropriate because the ERISA plan adopted by

Executive Car Leasing did not give UNUM discretionary

authority to make benefit determinations and to interpret the

plan. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S.

101, 115 (1989); Bendixen v. Standard Ins. Co., 185 F.3d 939,

942 (9th Cir. 1999); see also Kearney v. Standard Ins. Co.,

175 F.3d 1084, 1090 & n.2 (9th Cir. 1999) (en banc) (holding

that a policy with similar terms rendered the insurance company’s decision subject to de novo review). The district court

conducted this de novo review of the UNUM decision with a

bench trial.2 Following the bench trial, the district court

(Text continued on page 17356)

Silver’s claim was denied and pointed to the specific provision in the Policy on which the decision was based, i.e. the clause relating to the elimination period. Further, UNUM advised Silver why UNUM considered the

claim inadequate, including the basis for its judgment that a restriction on

working was “medically unnecessary,” and it informed Silver about how

to obtain a review of UNUM’s decision. We hold that UNUM’s denial letter complied strictly with applicable federal regulations and that it satisfied

the “common sense” requirement that plan administrators engage in

“meaningful dialogue” with claimants about the reasons for denying their

claims. Booton v. Lockheed Med. Benefit Plan, 110 F.3d 1461, 1463 (9th

Cir. 1997). 

2

In general, a district court may consider only evidence within the

administrative record at the time of the administrator’s decision. See Taft

v. Equitable Life Assurance Soc’y, 9 F.3d 1469, 1472 (9th Cir. 1993). This

restriction is based on the principle that federal district courts should not

function “as substitute plan administrators,” and that expanding the record

on appeal “would frustrate the goal of prompt resolution of claims by the

17354 SILVER v. EXECUTIVE CAR LEASING
fiduciary under the ERISA scheme.” Id. (quoting Perry v. Simplicity

Eng’g, 900 F.2d 963, 967 (6th Cir. 1990)). Yet there is an exception to this

general exclusionary rule where, as here, a federal court reviews an

administrator’s decision de novo. See Mongeluzo v. Travenol Long Term

Disability Benefit Plan, 46 F.3d 938, 943-44 (9th Cir. 1995). The Ninth

Circuit “permits the district court in its discretion to allow evidence that

was not before the plan administrator,” but we have advised that “[t]he

district court should exercise its discretion . . . only when circumstances

clearly establish that additional evidence is necessary to conduct an adequate de novo review of the benefit decision.” Id. at 944 (quoting Quesinberry, 987 F.2d at 1025). See also Bendixen v. Standard Ins. Co., 185 F.3d

939, 944 & n.2 (9th Cir. 1999). 

Here, Silver contests some of the evidentiary rulings made by the district court during the bench trial. We conclude that none of the items

excluded by the district court were necessary to its de novo review. The

first, a formal letter from the Social Security Administration describing its

approval of Silver’s application for benefits, merely repeats information

that was already available to UNUM. The second, a report prepared by a

“vocational expert,” which describes the requirements of Silver’s job and

opines that his heart condition rendered him unable to perform them, contains new information only about undisputed facts (e.g., the stressful

nature of Silver’s job) and otherwise merely reviews medical records

already contained in the record. And the third, a letter written by Silver’s

attorney in response to UNUM’s decision to deny Silver’s administrative

appeal, contains only argument disputing UNUM’s decision — argument

that Silver presented directly to the district court when it argued the case

at trial. Because none of these items of evidence was necessary to the district court’s de novo review, we hold that the court did not abuse its discretion by excluding them. 

We further reject Silver’s argument that the district court improperly

admitted documents prepared by UNUM in the course of the administrative appeal. Silver contends that UNUM unfairly kept the record open for

itself after closing the record to him, but there is no other way that UNUM

could have addressed Silver’s appeal except by waiting until he had submitted all of his material. Simply put, in order for UNUM to evaluate Silver’s administrative appeal fairly, it had to wait until Silver had submitted

all of his materials; for UNUM to do otherwise would either undermine

Silver’s ability to present all of his supporting information or lead to an

interminable back-and-forth between the plan administrator and the claimant. Further, the paperwork generated by UNUM in the course of its

SILVER v. EXECUTIVE CAR LEASING 17355
upheld UNUM’s decision. In rendering its decision, the district court adopted wholesale and verbatim 25 pages of factual

findings and legal conclusions that UNUM had proposed. 

Like UNUM — or, more accurately, via UNUM’s attorneys — the district court concluded that Silver had failed to

meet the burden of proving his disability. The court found

that, because Silver had failed to provide sufficient proof of

his disability and had not returned to work after the elimination period, coverage under the Policy had terminated.

Accordingly, the district court entered judgment in favor of

UNUM. 

Silver appealed the district court’s decision. We have jurisdiction under 28 U.S.C. § 1291. 

II. STANDARD OF REVIEW

Where, as here, a district court has conducted a de novo

review of an ERISA plan administrator’s decision, we review

review was fully disclosed to Silver during trial at the district court, at

which point Silver had ample opportunity to respond. 

Finally, we reject two other evidentiary objections raised by Silver.

First, we conclude that the district court properly excluded a 46-page declaration submitted by Silver’s attorney; that declaration, which was submitted in response to the court’s request for post-trial briefing, contains

legal argument that was not appropriate for a declaration, as well as analysis of complex medical procedures as to which Silver’s attorney would not

have been competent to testify. See Fed. R. Civ. P. 56(e) (providing that

declarations “shall set forth such facts as would be admissible in evidence,

and shall show affirmatively that the affiant is competent to testify to the

matters stated therein”). The district court also properly rejected Silver’s

request for judicial notice. The sixteen exhibits attached to that request

included more than 250 pages of medical materials from sources as

diverse as Yahoo!Health and the website for the Japanese Circulation

Society; we agree that these items were not sufficiently reliable to be judicially noticeable, and that Silver has not demonstrated that their exclusion

was prejudicial to him. See FED. R. EVID. 201(b) (requiring requests for

judicial notice to set forth facts that are “capable of accurate and ready

determination by resort to sources whose accuracy cannot reasonably be

questioned”). 

17356 SILVER v. EXECUTIVE CAR LEASING
the court’s factual findings only to determine whether they are

“clearly erroneous.” Kearney, 175 F.3d at 1095. Even when

a district court adopts wholesale the findings of fact proposed

by one party, as the district court did here, we do not alter this

standard of review. See Anderson v. City of Bessemer, 470

U.S. 564, 572 (1985) (“[E]ven when the trial judge adopts

proposed findings of fact verbatim, the findings are those of

the court and may be reversed only if clearly erroneous.”);

Barnett v. Sea Land Serv., Inc., 875 F.2d 741, 745 (9th Cir.

1989) (“We refuse to apply a stricter standard of review based

on the fact that the district court may have adopted certain

findings proposed by either party.” (citing Bessemer, 470 U.S.

at 572)). 

Nonetheless, the wholesale and verbatim adoption of one

party’s findings requires us to review the record and the district court’s opinion more thoroughly. The Ninth Circuit has

reiterated, both before and after the Supreme Court’s decision

in Bessemer, that it reviews a district court’s findings of fact

“with special scrutiny” when a district court “engage[s] in the

regrettable practice of adopting the findings drafted by the

prevailing party wholesale.” Sealy, Inc. v. Easy Living, Inc.,

743 F.2d 1378, 1385 (9th Cir. 1984); see also In re T.H. Richards Processing Co., 910 F.2d 639, 643 n.2 (9th Cir. 1990)

(quoting Sealy, 743 F.2d at 1385). Thus, we review the district court’s decision “with special scrutiny,” Sealy, 743 F.2d

at 1385, to determine whether its findings were “clearly erroneous,” Bessemer, 470 U.S. at 572. While there is some dissonance between the deferential standard of review we now

apply and our practice of scrutinizing the findings of a district

court that uncritically adopts the proposed opinion of the victorious party, these two lines of authority are not incompatible; indeed it is entirely consistent to review a district court’s

conclusions for clear error, while applying that standard of

review with a careful inspection of the record. See Commodities Futures Trading Comm’n v. Topworth Int’l, Ltd., 205

F.3d 1107, 1112 (9th Cir. 1999) (noting that factual findings

are “reviewed for clear error, but with particularly close scruSILVER v. EXECUTIVE CAR LEASING 17357
tiny [where] the district court adopt[s] [one party’s] proposed

findings”). 

[1] We note that scrutiny is especially warranted when,

after conducting de novo review of a decision by an ERISA

plan administrator, a district court adopts verbatim the administrator’s proposed factual findings and legal conclusions. We

have previously emphasized that, when they conduct de novo

review, district courts have a responsibility under the ERISA

framework to undertake an independent and thorough inspection of an administrator’s decision. See Mongeluzo, 46 F.3d

at 943 (emphasizing the obligation of the district court to conduct a sufficiently thorough review of the record, as well as

its authority to introduce additional evidence into the record,

in order to “enable the full exercise of informed and independent judgment”). When a district court adopts wholesale and

verbatim the findings and conclusions of an ERISA plan

administrator, it behooves us to review the district court’s

findings carefully to ensure that the trial court has adequately

discharged its responsibility. Wariness of a district court’s

verbatim adoption of a plan administrator’s proposed findings

is especially warranted in the ERISA context because of the

complex and sometimes conflicting roles of plan administrators. See Abatie v. Alta Health & Life Ins. Co., No. 03-55601,

slip op. at 9630 (9th Cir. Aug. 15, 2006) (noting that a district

court’s review of an administrator’s decision must be “tempered by skepticism commensurate with the plan administrator’s conflict of interest”); In re T.H. Richards Processing

Co., 910 F.2d 639, 643 n.2 (9th Cir. 1990) (noting that courts

must be wary of borrowed findings in any event); Sealy, Inc.

v. Easy Living, Inc., 743 F.2d 1378, 1385 n.3 (9th Cir. 1984)

(same). 

III. DISCUSSION

Both UNUM and the district court found that Silver was

not entitled to benefits under the Policy because he had recov17358 SILVER v. EXECUTIVE CAR LEASING
ered from his disability within the 90-day elimination period.

We hold that this finding is clearly erroneous. 

[2] There can be no dispute that Silver was disabled within

the meaning of the Policy’s terms when, on December 14,

2000, he went to the emergency room to seek treatment for

his cardiac condition. The sole question is whether, during the

following three months, Silver was able to perform the material functions of an admittedly stressful job, or whether his

cardiac condition prevented his return to work during those 90

days. 

[3] The district court upheld UNUM’s determination “that

[Silver] was not disabled as of March 14, 2001, the conclusion of the elimination period.” Much of its reasoning, however, does not withstand scrutiny. For example, the district

court reasoned in part that Silver was not impaired during the

elimination period because he “had worked for approximately

20 years with coronary artery disease, and continued to work

following bypass surgeries and prior angioplasty procedures.”

Such a finding disregards the progressive and degenerative

nature of Silver’s cardiovascular disease, and it overlooks the

recommendations of Silver’s treating cardiologist, who had

advised Silver only in recent visits that he was in no shape to

be working. Likewise, the findings proposed by UNUM and

adopted by the district court focus myopically on the test

results indicating improvement in cardiovascular function following Silver’s angioplasty procedure. While the postangioplasty tests do indeed indicate some improvement in Silver’s condition as to the affected areas of Silver’s heart, they

fall short of demonstrating Silver’s ability to return to a stressful work environment, especially given the contemporaneous

evidence of ongoing cardiac difficulty. In the same fashion,

UNUM’s in-house specialists and the district court’s opinion

repeatedly refer to Silver’s rehabilitation routine as evidence

of his recovery; these specialists argued that Silver was not

disabled because he had been able to complete an exercise

routine three to four times per week, while ignoring stateSILVER v. EXECUTIVE CAR LEASING 17359
ments establishing that he was still having trouble walking

distances and sometimes could not clean his own house or

bathroom. In short, the district court’s factual findings and

legal conclusions do not reflect a complete examination of the

record and disregard significant evidence recommending the

seriousness of Silver’s impairment. 

[4] Contrary to UNUM’s position, Silver presented ample

evidence that his cardiac problems did not dissipate following

his second angioplasty procedure. As noted above, during the

elimination period he visited a pulmonary specialist and a

sleep specialist, and he returned to the hospital after experiencing chest pain. Test results from these medical consultations produced myriad indications that his heart was still

seriously diseased, ranging from a diagnosis of sleep apnea to

high blood pressure (for which he received additional medication) to an abnormal electrocardiogram to symptoms of bronchitis and emphysema. Silver’s cardiologist specifically wrote

to UNUM to indicate the seriousness of Silver’s status: “My

read on a patient that has suffered two myocardial infarctions

[sic], has undergone two bypass surgeries, and several angioplasties, with multiple recurrent admissions for acute coronary

syndromes, is not a patient who should be working under any

conditions.” Letter from Dr. Melvin J. Tonkon to Patrick Taylor, Associate Customer Care Specialist, UNUM Insurance

Company, at 1 (March 30, 2001). This letter further reviewed

Silver’s longstanding and continuing symptoms of angina

(shortness of breath) and a handicapping “inability to walk”

due to claudication (cramping), and it recounted several episodes within days of the elimination period’s expiration when

Silver had taken nitroglycerin while experiencing “periods of

stress.” Id. Notwithstanding these offers of proof of disability,

UNUM’s medical staff concluded that Dr. Tonkon had failed

to provide “objective evidence to support impairment.” In our

view, the evidence regarding Silver’s status during the elimination period presents a far more compelling case for ongoing

impairment than either UNUM or the district court recognized. 

17360 SILVER v. EXECUTIVE CAR LEASING
[5] Moreover, and most importantly, there is additional evidence that Silver’s disability continued long after his hospitalization in December of 2000. Indeed, this would be a very

different case, and we would be hard-pressed to make a finding of clear error, if Silver had continued to live without serious incident after his second angioplasty procedure. If that

were the case, the record would contain only the competing

evaluations of Silver’s cardiologists and consultants and

UNUM’s in-house medical staff. Thus, despite its lopsided

evaluation of the record regarding Silver’s condition during

the elimination period, the district court’s decision would

stand under those circumstances, for the record would provide

“two permissible views of the evidence.” United States v.

Working, 224 F.3d 1093, 1102 (9th Cir. 2000) (en banc). But

that is not what happened here. 

[6] What leaves us with the “definite and firm impression

that a mistake has been committed,” Easley v. Cromartie, 532

U.S. 234, 242 (2001), is the fact that Silver returned to the

emergency room in May of 2001, only weeks after the elimination period, and required yet another angioplasty procedure

because two of his arteries were nearly completely blocked.

This evidence of continuing heart problems, which again

required hospitalization and invasive medical procedures,

convinces us that UNUM and the district court clearly erred

in ruling that Silver had “recovered” from his cardiac condition. The district court’s opinion discounts Silver’s subsequent return to the operating room, arguing that his cardiac

complications in May of 2001 “did not present evidence [of]

a deterioration in his condition during the elimination period.”

In other words, the court’s position, as articulated by UNUM,

is that Silver would have been entitled to benefits if he had

undergone angioplasty several weeks earlier, but that this

third angioplasty procedure did not provide sufficiently convincing evidence that Silver was actually suffering from any

disability during the elimination period. 

[7] We think it incredible that a man in Silver’s physical

condition, though completely disabled due to cardiac condiSILVER v. EXECUTIVE CAR LEASING 17361
tions in December and the following May, could have had his

“cardiac condition . . . resolved within the elimination period.” This view stubbornly refuses to recognize that Silver’s

acute symptoms in December of 2000 and May of 2001 were

in fact part and parcel of an ongoing cardiac condition. While

there may have been no acute episode during elimination, the

subsequent record clearly demonstrating continuing disability

due to precisely the same degenerative cardiac disease makes

UNUM’s position untenable. In light of his rehospitalization

in May, we conclude that the only proper interpretation of the

evidence is that Silver suffered from an illness that prevented

him from working under stressful conditions during the three

months after his second angioplasty in December of 2000. We

do not view the Policy as requiring Silver to have needed

angioplasty on each of the ninety days during his elimination

period; rather, we construe it as requiring Silver to demonstrate, consistent with its plain language, that he could not

perform the material tasks of his job during this 90-day period

because of his serious heart condition — a condition that

UNUM itself acknowledges had been disabling. We are satisfied that Silver had met his burden. 

[8] To use a metaphor, UNUM’s position throughout this

litigation has been that a vehicle would be suitable to drive in

the months after its faulty transmission had been replaced,

notwithstanding serious and credible signs pointing to the fact

that the steering wheel was defective and the brakes were

about to fail. Simply put, UNUM never came to terms with

the argument advanced by Silver and his cardiologist that his

disability extended beyond merely the vehicle’s transmission

problem — that is, beyond his second angioplasty and to a

host of ongoing cardiovascular difficulties. See Booton, 110

F.3d at 1463 (noting the disincentive of an ERISA administrator to “come to grips” with a more comprehensive view, albeit

a more sensible one, of a claimant’s physical condition).

Because the evidence, viewed in its entirety, supports no conclusion except that Silver was incapable of returning to work

17362 SILVER v. EXECUTIVE CAR LEASING
between December 15, 2000, and March 14, 2001, we must

reverse the judgment of the district court. 

IV. CONCLUSION

We find that Silver met his burden of proving his disability

under the terms of the Policy issued by UNUM, and we hold

that the district court’s contrary conclusion was clearly erroneous. Accordingly, we REVERSE and REMAND for the

district court to calculate an award of benefits consistent with

this opinion. 

SILVER v. EXECUTIVE CAR LEASING 17363