NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 04a0031n.06 Filed: October 15, 2004 No. 03-5673 UNITED STATES COURT OF APPEALS FOR THE S IXTH CIRC

UIT ROBERT O. YONTS, Plaintiff -Appellant ,

v. CONTINENTAL CASUALTY COMPANY, Defendan t-Appellee. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FO R THE EASTERN DISTRICT O F TENNESSEE

/ Before: KEITH, MA RTIN, and

ROGERS, Circuit Jud

ges. BOYCE F. MARTIN , JR., Circ uit Judge. R

obert O. Yo nts appeals t he district co

urt’s judgment affirming Continental Casualty Company ’s denia l of Yonts’ s request for long term disability benefits. Because we believe tha t the C ompany ac ted arbitrari ly and capric iously in refusing to consider certain medi cal evidence su bmitted by

Yonts, we v acate the dis trict court’s judgment and remand this case for further proceedings. I. In1991, Robert Yonts suffered an on-the-job back inj ury whil e working f or Howme

t Corporation. Several yea

rs later he suf

fered a rela

pse that nece ssitated bac k surgery. Unfortunately, the surgery pro ved to be uns uccessful, and Yonts c eased worki ng for How

met on Jul

y 14, 1998. On October 25, 1998, Y onts first a

pplied for disabil ity benefit s under the G roup Long T erm Disab ility Policy established

by Howm et through C ontinental C asualty Com pany. On Ja

nuary 27, 1999, the Company approved Yonts’s application and awarded benefits fora maxim um of thi rty-six mo nths.No. 03-5673

Yonts v. Continental Casualty Co. Page 2 Pursuant to the plan, however, a fter thirty- six month s Yonts wou ld receive be

nefits only

if he could demonstrate that he was “totally disabled” such that he was unable to per form any occupation. InSeptembe

r 2001, the C ompany notified Yo nts that his d isability be

nefits wou

ld terminate

on January 19, 2002, at the end of the t

hirty-six m

onth period , as a result o f a physica l therapist’s functiona l capacity evaluation that indicat ed that Yont s would be able to perform several alternative occupation s. The physica l therapist’s

conclusion

was based in

part on his o

pinion that Y onts exhibited “Inappropr

iate Illness B ehaviors”

and “Sym

ptom Exag geration” du

e to “dispropor

tionate verbalization about his hi gh levels of pain and dec

reased func tional abilities.” The Company afforded Yonts the opportunity to submit additional medical information in support of hi s cla im before January 19, 2002. In November 2001, Yonts subm itted reports

from two physicians , which the Company

determine d were insuf

ficient to p rove that he w as totally di sabled. In D ecember, Yonts requested

reconsideration and a window of sixty days in which to p rovide addi

tional med

ical evidence. The Company obliged and agreed to ho ld

his record op en for sixty

days, until

February 13, 2002. Yonts submitted additional medical reports prior to that deadline, but t o no avail. On February 13 , the day on w hich the sixt

y-day exten sion was to e xpire, coun sel for Yon ts faxed a le tte r to the Com

pany reques ting that the administr

ative record

be kept open

for an additional sixty days to

allow Yont s the opport

unity to perf

ect his app eal with add

itional me dical records

. Within twenty-four hours, Yonts submitted a report by Dr. Kelley Walker, his treating psychiatris t, opining that Yonts was unable to perform any foreseeabl e job duties d ue to his ongoing chronic low back pa

in as well as h

is severe sym

ptoms of major dep ression. Yonts conside rs Dr. Walker’sreport particularly sign ificant because it explains and justi fies the beh avioral abno rmalitiesNo. 03-5673

Yonts v. Continental Casualty Co. Page 3 exhibited by Yonts t hat affect ed the phy sical th erapist ’s deter mi nation that he was not to tally disabled. The faxed cover letter accompanying Dr. Walker’s report info rmed the Comp any that suc h report “will complete the information we needed in order to perfect Mr. Yonts’s appeal.” That same day, February

14, the Appeals

Commit tee sent coun sel for Yon ts a letter indicating that

no further extensions w ould be gran ted and that

no further m

edical evide

nce would be consider

ed. The lett

er stated, in

pertinent pa

rt: At this time, Appeals fi

nds reasona

ble the original

60-day exte

nsion grant

ed by [the Company] and; will no l onger conti nue to hold o

pen the abov e reference d administrative record. The refore, your request for an additional 60-day extension is hereby denied and; the appellate review in this matter has been completed w hi le relying on the content of the administrative record as it is cur rently held. The Appeals Committee’s decision upholding the denial of benefits was also issued on February 14. Thus, it is clear that D r. Walker’ s report was excluded from the administrative record and was not considered by either the Company or the Appeals Committee. Yonts subsequent

ly filed sui

tin the district court challenging the Company’s termination of disability benefits. On May 5, 2003, the district court issued a memorandum opinion upholding the denial of benefits and entering judgment for the Company. This timely appeal followed. II. We review de novo the district court’s grant of summary judgment in an action involving a claim pursuant to the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. Williams v. Int’l Paper Co. , 227 F.3d 706, 710-11 (2000) (citing Killian v. H ealthsourc e Provident A dm’rs, Inc. , 152 F.3d 5 14, 520 (6th Cir. 1998)) . The standa

rd of review

for a plan administrator’s denial of benefits is de novo unless the plan grants disc retionary authority to theNo. 03-5673

Yonts v. Continental Casualty Co. Page 4 administr ator to deter

mine eligi

bility for b enefits or t

o construe th e terms of

the plan, in

which case the administrator’s actions are reviewed under the ar bitrary and capricious standard. Firestone T

ire & Rubber

Co. v. Bruc

h , 489 U.S. 101, 115 (1 989); Williams , 227 F.3d at 710-11. It is undispu

ted that the p lan at issue i n this case contains an ex press grant o f discretio nary authority to

the claims

administr

ator; thus, t

he arbitrary

and capricio

us standard

of review applies. Yonts claim s that the Co mpany act ed in an arbit

rary and cap ricious fas hion by fai ling to give suff icient weigh

t to the med

ical opinion s of his trea

ting physic ians and by f

ailing to consider the

report of D r. Walker. Under the ci rcumstanc es presented

in this case, we agree tha t the Company’s refusal to grant Yonts’s February 13 request for an additional brief extensi on of time withi

n which to su

bmit furt her medica

l evidence –

specifical ly, Dr. W alker’s repo rt – was arbitrary and capricious , particular ly consideri

ng the dispr

oportionate ly long perio d of time t hat the Company had to gather its medical evidence. See Killian , 152 F.3d a t 521-22 (ho lding that a plan admi nistrator act

ed in an arbit

rary and cap ricious ma

nner by ref

using to con sider additi onal medical ev

idence subm

itted by the c laimant af

ter the adm

inistrator’s

initial denia

l of benef its, because the

plan did not

“require” th e administ

rator to “fo restall cons ideration of additional evidence”). Even an extension of one day would have been suff icient to allow Yonts to s ubmit the remainder of the evidence “needed in order to perfect [his] appeal.” Moreover, given t hat the physical the

rapist’s report – which re lied heavily upon the behavioral abnormalities t hat Yonts exhibited during the examination – was the primary piece of medical evidence supporting theNo. 03-5673

Yonts v. Continental Casualty Co. Page 5 Company’s denial of benefits, Dr. Walker’s report was crucial to Yonts because it explained the psychiatric reasons for Yonts’s behavior during the physical t herapist’s examination. For these rea sons, this c ase will be re manded with instructi ons for the Company

to admit Dr. Walke

r’s report int

o the admi

nistrative re cord and to c onsider it, a long with th e other evidence su

bmitted in

connection

with Yonts ’s claim, i

n determin

ing whether

Yonts is ent

itled to long term d

isability be

nefits. Th e district cou

rt’s judgm ent is theref

ore VACAT ED and the c ase is REMANDED for further proceedings consistent with this opinion.No. 03-5673

Yonts v. Continental Casualty Co. Page 6 ROGERS, J., dissenting. I respectfully dissent. With 37 days remaining, the administr ator had prev

iously gran

ted a 60-day

extension o f time to s

ubmit fu rther mate

rials. It was reasonable for the administrator to deny a last-minute request for an additiona l 60 days. Certainly the denial did not amount to an abuse of discretion.