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 No. 13-2379 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

NANCY A. HARRISON, 

Plaintiff-Appellant, 

v. 

WELLS FARGO BANK, N.A. et al., 

Defendants-Appellees. 

On Appeal from the United States District Court 

for the Eastern District of Virginia at Richmond 

SECRETARY OF LABOR AS AMICUS CURIAE 

IN SUPPORT OF PLAINTIFF-APPELLANT 

M. PATRICIA SMITH ELIZABETH HOPKINS 

Solicitor of Labor Counsel for Appellate 

and Special Litigation 

G. WILLIAM SCOTT GAIL PERRY 

Acting Associate Solicitor for Senior Trial Attorney 

Plan Benefits Security U.S. Department of Labor 

P.O. Box 1914 

Washington, D.C. 20210 

(202) 693-5595 

 

	 

TABLE OF CONTENTS
 

TABLE OF AUTHORITIES .................................................................................... ii 

QUESTION PRESENTED ........................................................................................1 

STATEMENT OF IDENTITY, INTEREST AND AUTHORITY TO FILE ...........2 

STATEMENT OF THE CASE..................................................................................3 

1. Factual Background ...............................................................................3 

2. Harrison's Claim for Benefits................................................................6 

3. Procedural History and Rulings ..........................................................11 

SUMMARY OF ARGUMENT ...............................................................................16 

ARGUMENT ...........................................................................................................18 

 A CLAIMS ADMINISTRATOR ABUSES ITS DISCRETIONS IF ITS 

 BENEFITS DENIAL IS NOT BASED ON A FULL AND FAIR REVIEW 

 OF ALL RELEVANT FACTS AND CIRCUMSTANCES ...............................18 

A.	 Wells Fargo, as the fiduciary decisionmaker in this case, abused its 

discretion by failing to obtain and consider readily-available 

information necessary to decide Harrison's benefit claim ..................17 

B. Wells Fargo violated the claims regulation, and thereby failed to 

provide Harrison with a full and fair review.......................................25 

CONCLUSION .......................................................................................................28 

CERTIFICATE OF COMPLIANCE 

CERTIFICATE OF SERVICE 
 


 

TABLE OF AUTHORITIESFederal Cases: Page 

Berry v. Ciba-Geigy Corp., 

761 F.2d 1003 (4th Cir. 1985) ................................................................. 15, 22 n.2 

Booth v. Wal-Mart Stores, Inc., 

201 F.3d 335 (4th Cir. 2000) ................................................................... 13, 15, 26 

Booton v. Lockheed Med. Benefit Plan, 

110 F.3d 1461 (9th Cir. 1997) ....................................................................... 20, 22 

Elliott v. Sara Lee Corp., 

190 F.3d 601 (4th Cir. 1999) ................................................................... 15, 22 n.2 

Evans v. Eaton Corp., 

514 F.3d 315 (4th Cir. 2008) ................................................................................ 27 

Gaither v. Aetna Life Ins. Co., 

394 F.3d 792 (10th Cir. 2004) ............................................................. 12 & passim 

Gilbertson v. Allied Signal, Inc., 

328 F.3d 625 (10th Cir. 2003) .............................................................................. 20 

Harden v. Am. Express Fin. Corp., 

384 F.3d 498 (8th Cir. 2004) ................................................................................ 27 

Hardt v. Reliance Standard Life Ins. Co., 

560 U.S. 242(2010) .............................................................................................. 14 

HealthSouth Rehab. Hosp. v. Am. Nat'l Red Cross, 

101 F.3d 1005 (4th Cir. 1996) .............................................................................. 14 

Kunin v. Benefit Trust Life Ins. Co., 

910 F.2d 534 (9th Cir. 1990) ................................................................................ 22 

LeFebre v. Westinghouse Elec. Corp., 

747 F.2d 197 (4th Cir. 1984) ................................................................................ 21 

ii
 
 


 

Federal Cases--(continued): Page 

Metropolitan Life Ins. Co. v. Glenn, 

554 U.S. 105 (2008) ............................................................................................. 24 

Nance v. Sun Life Assur. Co., 

294 F.3d 1263 (10th Cir. 1996) ............................................................................ 21 

Quinn v. Blue Cross & Blue Shield Ass'n, 

161 F.3d 472 (7th Cir. 1998) ................................................................................ 22 

Sandoval v. Aetna Life & Cas. Ins. Co., 

967 F.2d 377 (10th Cir. 1992) .............................................................................. 21 

Sec'y of Labor v. Fitzsimmons, 

805 F.2d 682 (7th Cir. 1986) (en banc) .................................................................. 2 

Vega v. Nat'l Life Ins. Servs., Inc., 

188 F.3d 287 (5th Cir. 1999) ................................................................................ 21 

Woo v. Deluxe Corp., 

144 F.3d 1157 (8th Cir. 1998) ....................................................................... 22 n.3 

Federal Statutes: 

Employee Retirement Income Security Act of 1974, 

as amended, 29 U.S.C. 1001 et seq: 

Section 403, 29 U.S.C. § 1103 ............................................................................. 23 

Section 404, 29 U.S.C. § 1104 ........................................................................ 2, 18 

Section 404(a)(1)(A), 29 U.S.C. § 1104(a)(1)(A) ................................................ 23 

Section 404(a)(1)(B), 29 U.S.C. § 1104(a)(1)(B) ......................................... 12, 23 

Section 502(a)(1(B), 29 U.S.C. § 1132(a)(1)(B) ..................................................12 

Section 503, 29 U.S.C. § 1133 .................................................................. 2, 12, 18 

 Section 504, 29 U.S.C. §1134 ................................................................................ 2 

iii
 
 

 
 

Federal Statutes—(continued): Page 

Section 505, 29 U.S.C. § 1135 ...............................................................................2 

Miscellaneous: 
 

29 C.F.R. § 2560.503-1(g)(1)(iii) ............................................................... 25, 26 n.6 

Fed. R. App. P. 29(a) .................................................................................................2 

29 C.F.R. § 2560.503-1(h)(1) ..................................................................................23 

iv 
 

QUESTION PRESENTED 

This case involves a claim for short-term disability benefits by Nancy 

Harrison during a period when she was undergoing three surgical procedures for an 

extremely enlarged thyroid that pressed on her trachea and extended into her chest 

cavity and was suffering psychological difficulties because of the sudden death of 

her husband, which exacerbated previous psychological difficulties that followed 

the deaths of her children and mother in a house fire seven years earlier. Wells 

Fargo – the plan sponsor, plan administrator and final decisionmaker under an 

ERISA-covered disability plan – originally granted her claim for short-term 

disability benefits starting in June 2011. It cut off her disability benefits as of 

September 10, 2011, without obtaining necessary and readily-available medical 

evidence and without informing her that this evidence was necessary to perfect her 

claim. 

The question presented is whether the district court erred in upholding the 

administrator's determination, particularly given the administrator's failure to 

obtain necessary and readily-available medical records and assessment from the 

claimant's treating psychiatrist or to inform the claimant that this evidence was 

necessary to perfect her claim as required by the ERISA's claims procedure 

regulation. 

 

STATEMENT OF IDENTITY, INTEREST, AND AUTHORITY TO FILE 

The Secretary has primary enforcement and interpretive authority for Title I 

of ERISA. See 29 U.S.C. §§1134, 1135. The Secretary's interests include 

promoting uniformity of law, protecting plan participants and beneficiaries, 

enforcing fiduciary standards, and ensuring the financial stability of employee 

benefit plans. See Secretary of Labor v. Fitzsimmons, 805 F.2d 682, 692-93 (7th 

Cir. 1986) (en banc). In this case, the district court interpreted case law in the 

Fourth Circuit to deprive a plan participant of a meaningful review of a denial of 

benefits by deferring to the decision of a claims administrator that acted without 

obtaining readily-available medical information necessary to decide this claim. 

Because the Secretary has an interest in ensuring that plan fiduciaries strictly 

comply with their fiduciary obligations as set forth in ERISA section 404, 29 

U.S.C. § 1104, and that they give proper consideration to the claims of plan 

participants and beneficiaries as required under ERISA section 503, 29 U.S.C. § 

1133, and the accompanying claims regulation, the Secretary files this amicus 

brief, under Federal Rule of Appellate Procedure 29(a), in support of plaintiff's 

argument that Wells Fargo violated its fiduciary duties and abused its discretion 

when it failed to adequately investigate Harrison's claim. 

2
 

 

STATEMENT OF THE CASE 

1. Factual Background 

At the time she initially made her claim for benefits in June 2011, Harrison 

was a 32-year-old employee of Wells Fargo, who participated in the company's 

self-funded disability plan, the Wells Fargo and Company Short-Term Disability 

Plan (Plan). Wells Fargo was both the sponsor and administrator of the plan, as 

well as the named trustee. Joint Appendix ("JA") 425-503. Although it delegated 

responsibility for initial claims administration and decisionmaking to Liberty Life 

Assurance Company of Boston, Wells Fargo itself retained discretionary authority 

to make final benefits determinations through its Wells Fargo Short-Term 

Disability Appeals Committee (Committee). JA 484. 

Harrison worked as an On-line Customer Service Representative for Wells 

Fargo. JA 39. Her job was described by the company as sedentary and entailed 

answering customer service calls on the phone and computer, responding to 

customer service emails, and selling Wells Fargo products. JA 200-201. She was 

required to work 10-hour shifts four days a week and, among other things, to stay 

attentive and focused in a "fast-paced" environment and manage stress when 

dealing with sometimes irate customers in a calm and professional manner. JA 

200-201. 

3
 

 

Under the Plan terms, Harrison was entitled to short-term disability benefits 

if she had a medically certified health condition (including a psychological 

condition) that rendered her unable to perform the "essential functions" of her own 

job (elsewhere described by the Plan as an inability to perform "some or all of her 

job duties"). JA 475. Although the Plan states that it is the participant's 

responsibility to ensure that Liberty receives necessary medical records, JA 479, it 

also states that if the claim is denied because Liberty did not receive sufficient 

information, the claims decision will describe the additional information needed 

and explain why such information is needed. JA 484. Moreover, the Plan 

explicitly provides that Liberty may contact the claimant's physicians to obtain 

medical information, provided that a release from the claimant is obtained (JA 477, 

480), which Liberty obtained from Harrison in this case in June of 2011. JA 225. 

The Plan also states that a claimant may file a claim based on a new disability so 

long as he or she is on an approved leave of absence at the time of the request. JA 

480. Finally, under the terms of Wells Fargo's related long-term disability plan, 

unless Harrison received short-term disability benefits for 26 weeks, she could not 

apply for and obtain long-term disability benefits. JA 481-482. 

On May 20, 2011, Harrison was admitted to a hospital emergency room 

based on complaints of chest pain. JA 62 -63. The doctors there discovered a 

large mass in her chest cavity, which her primary care physician, Dr. Mark 

4
 

 

Petrizzi, hypothesized, was an enlarged thyroid extending from Harrison's neck 

into her chest. JA 139-161. At the same time, Harrison was being treated for 

depression and receiving Lexapro, as well as Valium. JA 146. In his August 2011 

medical report, Dr. Petrizzi increased Harrison's dosage of Lexapro from 10 mg to 

20 mg. JA 99, 111, 114-116. 

Harrison stopped working on June 8, 2011, and the next day underwent a 

surgical biopsy called a bronchoscopy, JA 193, which revealed that the mass was 

thyroid tissue, as Dr. Petrizzi suspected, and that it was causing significant 

compression of Harrison's trachea. She was referred to an ear, nose and throat 

specialist, Dr. Daniel Van Himbergen, who recommended surgery to remove her 

thyroid. JA 146-153. Before she could have this surgery, however, her husband 

died unexpectedly on July 1, 2011, and she went back to Dr. Petrizzi complaining 

of depression and chest pain. JA 286. Dr. Petrizzi performed an 

electrocardiogram, which was normal, and referred her to a psychiatrist, Dr. Glenn, 

whom she began to see for treatment of her depression. JA 286. 

On August 17, 2011, Harrison underwent the recommended surgery, a 

thyroidectomy, performed by Dr. Van Himbergen and described by him as 

significantly more difficult than normal thyroid surgery due to the size and location 

of the thyroid tissue involved. Indeed, although this surgery was successful in 

removing Harrison's thyroid, the mass in her chest could not be removed during 

5
 

 

this procedure. JA 328-333. Afterwards, her symptoms were noted by Van 

Himbergen to be "slightly improved," but she continued to complain of chest pain, 

leg pain and swelling, shortness of breath and difficulty swallowing. JA 350-357. 

Moreover, she had developed a new problem: right shoulder pain due to a rotator 

cuff injury, which occurred during surgery. JA 320. Furthermore, she continued 

to suffer from depression and anxiety, and she began treatment with the 

psychiatrist, Dr. Glenn, to whom she was referred for treatment of her 

psychological symptoms. And because she still had a mass of thyroid tissue in her 

chest, she was scheduled to undergo another surgery to remove this mass. On 

October 31, 2011, she underwent this surgical procedure, called a sternotomy, 

which entailed splitting her sternum to reach and attempt to remove the remaining 

thyroid tissue in her chest. This surgery, performed by Dr. Darius Hollings, a 

thoracic surgeon, was only partially successful, in that not all of the tissue could be 

removed. JA 372-373 

2. Harrison's Claim for Benefits 

Shortly after stopping work in June, Harrison applied for short-term 

disability benefits beginning on June 8, 2011, which were initially approved by 

Liberty at the first level of review under the Plan. JA 240-241; 388. On June 23, 

2011, Harrison provided Liberty with an "Authorization to Obtain and Release 

Information." JA 225. On August 25, 2011, Liberty contacted Harrison about her 

6
 

 

expected return to work, at which time she explained that she was having 

additional surgery in October and that she was scheduled to again see Dr. Van 

Himbergen, who had performed the thyroidectomy, on September 7, 2011. As a 

result of this call, Liberty extended her short-term disability benefits through 

September 10, 2011. JA 380. 

On September 9, 2011, the day before benefits were scheduled to end, 

Liberty called Harrison for an update on her condition. She reiterated that she was 

going to have additional surgery to remove the remaining masses and that, in the 

meantime, she was taking medicine in an attempt to shrink the thyroid tissue in her 

chest in advance of the surgery. In addition, she informed Liberty about the rotator 

cuff injury resulting from her prior surgery. Liberty also obtained medical records 

from Dr. Petrizzi and Dr. Van Himbergen, which continued to report complaints of 

chest pain from the remaining masses in her chest and confirmed that she had a 

rotator cuff injury, was suffering from depression and was going to have additional 

surgery. Despite all of this, and without seeking to contact any of her doctors for 

additional information, Liberty concluded that Harrison was not entitled to 

additional benefits beyond September 10, 2011, and it informed Harrison of this 

decision through a phone call on September 16, 2011, and a letter of the same date. 

During this call, Harrison informed Liberty that, above and beyond her physical 

7
 
 


 

1 

conditions, she was also suffering from disabling depression and post-traumatic 

stress disorder. JA 389-390.1 

Shortly thereafter, Harrison, who was not represented by counsel, appealed 

the decision and submitted additional materials, including a letter from Dr. 

Petrizzi. In this letter, Dr. Petrizzi expressed his view that Harrison's continued 

chest pain, as well as the significant anxiety for which he had referred her to a 

psychiatrist, made her unable to return to her job, which he recognized entailed 

"desk work." She also submitted her own letter, explaining that she was suffering 

from "severe depression" due to the loss of her husband and felt unable to return to 

work until she could "process [her] grief." She included the telephone numbers for 

each of her treating physicians, including Dr. Glenn, her psychiatrist. Immediately 

thereafter, she called Liberty to inquire about filing a new claim for short-term 

 The district court stated that Harrison was told to provide medical 

documentation of Harrison's psychological condition in support of an appeal. JA 

548. Although there was no testimony in district court on the issue, the district 

court probably based its statement on notations concerning telephone calls with 

Harrison in the claims materials. The denial letter did not, however, tell Harrison 

she needed to provide documentation from her treating psychiatrist about her 

psychological condition, but instead just generally informed Harrison that she must 

provide "all documentation, such as hospital records, discharge summaries, exam 

findings, operative reports, office visit notes, diagnostic test results, chiropractic 

notes, physical therapy notes, orthopedic notes, endocrinology notes, referrals, 

consultations, restrictions, limitations, treatment plans, and any other medical 

information from all treating providers, which you feel will support your claim for 

continued benefits." As discussed infra, the Department's regulations, like the plan 

documents in this case, require written notification of documentation needed to 

support an appeal, which was not provided in this denial letter. 

8
 

 

disability benefits and was informed, contrary to the Plan terms, that she could not 

do so unless she returned to work. JA 342-357. 

In response to this appeal, Liberty had her claim reviewed by a nurse 

consultant, who made no attempt to contact Dr. Glenn (or her other doctors), but 

instead concluded that Harrison did not have an impairment that prevented her 

from performing her duties as a "mortgage consultant," which was not, of course, 

her job. JA 338-340. By letter of November 28, 2011, Liberty advised Harrison 

that it was upholding its benefit denial on the basis of the nurse's review, 

concluding that "the medical evidence did not contain physical or mental exam 

status findings, diagnostic test results, evidence of a marked prolonged 

deterioration, or other medical documentation substantiating that your symptoms 

were of such severity that they resulted in restrictions and limitations rendering 

you unable to perform the essential duties of your job," which Liberty, like the 

reviewing nurse, incorrectly described as a "mortgage consultant." JA 338-340. 

The denial did not notify claimant that medical records had not been obtained from 

Dr. Glenn or that those records might be necessary to perfect her claim. JA 338-

340. 

Again acting pro se, Harrison appealed the denial for second-level review 

under the Plan. JA 342-344. In support of this appeal, she submitted a letter 

detailing her psychological difficulties and explaining that she was "currently on 

9
 

 

approved medical leave of absence with Wells Fargo because of what I have been 

through physically and emotionally." JA 342-344. In addition, she submitted a 

letter from her sister, who was her primary caregiver during this time, detailing 

Harrison's significant physical and psychological difficulties and how these 

affected her ability to perform even simple activities of daily living. JA 345-346. 

Harrison also submitted additional medical records from Dr. Petrizzi and Dr. 

Hollings in support of her claim. JA 372-381. 

In response to the newly submitted materials, Wells Fargo, which had 

responsibility at this level of appeal for deciding the claim, sought medical 

opinions from both an internal medicine specialist, Dr. Dan Gerstenblitt, and a 

psychiatrist, Dr. A.E. Daniel. Dr. Gerstenblitt opined that "there was nothing 

really to indicate that she could not return to work in a sedentary type occupation" 

and that "the fact that the patient had chest pain is not necessarily a reason to be 

unable to work." JA 394-395; 397-401. Without any more analysis of the medical 

evidence or the specific requirements of Harrison's job, and without accounting for 

the letter from Harrison's sister documenting her lack of functionality at home, Dr. 

Gerstenblitt concluded that "as of September 7, 2011, she was fully recovered from 

her thyroidectomy, and evidence-based guidelines would support a return to 

clerical work by September 11, 2011." JA 394-395; 397-401. 

10
 
 


 

On the other hand, the report from Dr. Daniel, the reviewing psychiatrist, 

was simply inconclusive. He spoke to Dr. Petrizzi, whom he noted "deferred her 

psychiatric status to Dr. Glen[n]." But Dr. Daniel did not request her medical 

records from Dr. Glenn or make any effort to contact him. Instead, Dr. Daniel 

concluded that while "the loss of her children and mother in a family fire could 

have cause PTSD, which could have been aggravated by the loss of her husband 

and current health issues . . . [i]n the absence of psychiatric/psychological records 

or telephone conference with her psychologist, an opinion as to whether her 

psychiatric status limited her functional capacity cannot be provided." JA 391-393. 

On the basis of these peer reviews, and without attempting to contact Dr. 

Glenn or obtain relevant medical records or his opinion, the committee at Wells 

Fargo charged with conducting the final review upheld the denial of benefits after 

September 10, 2011. In the denial letter Wells Fargo sent to Harrison on May 24, 

2012, it concluded that "there is no documented evidence that would indicate 

ongoing impairment that would preclude [her] ability to do [her] job," and that 

"there is no documented evidence that [her] anxiety symptoms limited [her] 

functional capacity." JA 389-390. 

3. Procedural History and Rulings 

On May 2, 2013, Harrison filed a two-count complaint in the Eastern 

District of Virginia against the Plan and Wells Fargo, alleging that the denial of 

11
 

 

benefits after September 10, 2011, was improper under ERISA section 

502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), and that she had been denied the "full and 

fair" review of her benefit claim required by ERISA section 503, 29 U.S.C. § 1133. 

She alternatively asked the court either to reinstate her short-term disability 

benefits or to send the case back to Liberty for it to conduct a "full and fair" 

review. JA 5-11. 

Harrison argued that Wells Fargo's denial was unreasonable because: (1) it 

unreasonably concluded that Harrison had "fully recovered" from her August 17, 

2011 thyroidectomy; (2) it unreasonably viewed the medical records selectively in 

its favor; (3) it unreasonably relied on flawed peer review, especially from Dr. 

Gerstenblitt; (4) it unreasonably discounted evidence submitted by Harrison and 

her sister describing her limited functional capacity; (5) it unreasonably failed to 

obtain medical records or other information from Dr. Glenn, her treating 

psychiatrist; and (6) it inadequately and incorrectly analyzed Harrison's 

occupational duties. See Plaintiff's Opposition to Defendants' Motion for 

Summary Judgment at pp. 15-18. As support for her argument that Wells Fargo 

had an obligation to obtain needed information from Dr. Glenn, Harrison cited the 

Tenth Circuit's decision in Gaither v. Aetna Life Ins. Co., 394 F.3d 792, 807 (10th 

Cir. 2004), which held that a fiduciary has an obligation to obtain available 

information when the record evidence indicates that the information might confirm 

12
 

 

the claimant's theory of entitlement, and there is little or no record evidence to 

refute the theory. Id. at 17-18. 

In a decision issued on November 8, 2013, the district court granted 

summary judgment to the defendants, concluding that the denial of benefits was 

not an abuse of discretion under the plan. In rendering its decision in favor of 

defendants, the district court reviewed the decision under an abuse of discretion 

standard because the Plan language gave Wells Fargo full discretionary authority 

to administer and interpret the Plan, and applied the eight non-exclusive factors to 

consider for an abuse of discretion set forth in Booth v. Wal-Mart Stores, Inc., 201 

F.3d 335, 342 (4th Cir. 2000). JA 553. The court began by noting that "[w]hile 

the administrative record provides some subjective support in favor of Harrison's 

incapacity, objective indications of her physical and psychological limitations are 

severely lacking in the administrative record." JA 553. The court then noted that 

the record provided support for three different medical conditions – Harrison's 

rotator cuff injury, her psychological difficulties, and her thyroid condition – which 

either separately or in combination could have provided a basis for her disability 

claim, and considered each in turn. JA 554 -555. 

The court quickly disposed of the rotator cuff injury, noting that Harrison 

did not show that this injury precluded her from performing the essential functions 

of her job. JA 555. Turning next to Harrison's psychological difficulties, the court 

13
 

 

likewise found the objective medical evidence supporting this claim to be lacking. 

In this regard, the court reasoned that Dr. Petrizzi "deferred Harrison's treatment 

entirely to Dr. Glenn and neither Harrison nor Dr. Glenn ever provided objective 

medical documentation to support the conclusion that Harrison's anxiety made her 

unable to perform her job duties." JA 555. Thus, noting that Harrison had 

repeatedly been informed that it was her duty "to provide all documentation 

supporting her claim," and that the Plan language supported this, the court 

essentially faulted Harrison for failing to submit documentation from Dr. Glenn 

supporting her claim of psychological impairment. JA 556. In this regard, the 

court rejected Harrison's argument that the failure by Liberty to contact Dr. Glenn 

when it had contacted Dr. Petrizzi was unreasonable, reasoning that this was in 

essence an estoppel argument of the kind that the Fourth Circuit had previously 

rejected where there is Plan language to the contrary. JA 557, citing HealthSouth 

Rehab. Hosp. v. Am. Nat'l Red Cross, 101 F.3d 1005, 1010 (4th Cir. 1996). 

Similarly, the court rejected Harrison's reliance on the Tenth Circuit's Gaither 

decision, which held that ERISA's administrators have the duty to seek out "readily 

available information" in some benefits cases. JA 557. Although the court found 

that the Tenth Circuit's reasoning in Gaither to be "sound," the court concluded that 

the Fourth Circuit had already held that ERISA administrators "have no duty to 

seek out additional information supporting a claim where the record contains 

14
 

 

evidence supporting denial." JA 557-558 (citing Elliott v. Sara Lee Corp., 190 

F.3d 601 (4th Cir. 1999); Berry v. Ciba-Geigy Corp., 761 F.2d 1003, 1008 (4th 

Cir. 1985)). The court recognized that Harrison's claim did not fall neatly within 

the Fourth Circuit's Elliott rule because, with the exception of Dr. Petrizzi's 

"conclusory diagnosis and Harrison's self-reported troubles," the record was 

"completely devoid of evidence supporting either approval or denial of the 

benefits." JA 558. The court reasoned that "[a]rguably in this case, the material 

considered by Wells Fargo was lacking, as was the material provided by Harrison." 

JA 558. The court nevertheless concluded that, given the Plan language, which 

placed on Harrison the burden to provide the evidence supporting her claim, the 

defendants did not act unreasonably in denying benefits. Id., citing Booth, 201 

F.3d at 342 (requiring consideration, among other factors, of the relevant plan 

language). 

In its analysis of Harrison's thyroid condition, the court pointed out, as an 

initial matter, that "Wells Fargo based its denial . . . only on Harrison's ability to 

work between September 11, 2011, and the date of Harrison's sternotomy," and 

noted that "there is a distinct lack of objective medical evidence in the record to 

guide a determination of whether Harrison suffered from physical limitations 

precluding her from working" during this period. JA 560. The only "objective" 

evidence, in the court's view, was the letter from the thoracic surgeon, Dr. 

15
 

 

Hollings, which was not available until the second-level appeal and which 

indicated decreased air and blood flow resulting from the remaining mass in her 

chest, thus supporting her complaints of pain and shortness of breath even before 

her sternotomy. JA 560. The court considered the remaining evidence from 

Harrison and her doctors, including the report from the peer review doctor, to be 

both subjective and conflicting as to the severity of her conditions and concluded 

that Wells Fargo did not abuse its discretion in concluding that this evidence was 

insufficient to show that Harrison was unable to perform her essential job duties. 

In so holding, the court rejected Harrison's arguments that Wells Fargo cherrypicked or disregarded any evidence, erred in relying on the peer review doctor over 

Harrison's treating physician, and failed to properly analyze the requirements of 

Harrison's job. 

SUMMARY OF THE ARGUMENT 

1. Wells Fargo, as the plan fiduciary charged with making benefits 

determinations under the disability plan it offered to its employees, had an 

obligation to seek out the readily-available medical evidence from Harrison's 

psychiatrist about the extent of Harrison's psychological problems. This obligation 

has been recognized by the Tenth Circuit and is supported by decisions from the 

Seventh and Ninth Circuits. In Gaither v. Aetna Life Assur. Co., 394 F.3d 792 

(10th Cir. 2004), the court held that an administrator abuses its discretion if it fails 

16
 

 

to investigate a claim where record evidence suggests that the information might 

confirm claimant's theory of entitlement and there is little or no evidence to refute 

the claim. Here, although Wells Fargo arranged for peer review of the medical 

evidence by both an internal medicine specialist and a psychiatrist, the reviewing 

psychiatrist made no effort to contact Harrison's treating psychiatrist or obtain the 

necessary medical records from him, even though he had been given the name of 

her treating psychiatrist and Harrison had signed a medical release. Wells Fargo 

then denied benefits based on the reviewing psychiatrist's conclusion that there 

simply was not enough medical evidence for him to provide an opinion about 

whether Harrison was disabled by her psychiatric status. As the fiduciary 

decisionmaker, Wells Fargo had an obligation to seek to obtain this needed 

medical evidence and its failure to do so under the circumstances of this case was 

an abuse of discretion. 

2. Wells Fargo also violated the Secretary's claims regulation and its 

own Plan terms by failing to specifically inform Harrison in its written denials that 

she should submit evidence from her treating psychiatrist. This deficiency 

separately supports a conclusion that Wells Fargo abused its discretion in denying 

Harrison's claim for benefits. 

17
 

 

ARGUMENT 

A CLAIMS ADMINISTRATOR ABUSES ITS DISCRETION IF ITS 

BENEFITS DENIAL IS NOT BASED ON A FULL AND FAIR 

REVIEW OF ALL RELEVANT FACTS AND CIRCUMSTANCES 

A. Wells Fargo, as the fiduciary decisionmaker in this case, abused its 

discretion by failing to obtain and consider readily-available information 

necessary to decide Harrison's benefit claim 

The Fourth Circuit has not squarely addressed the question of whether a 

claims administrator, as a fiduciary to the plan and its participants, has a duty to 

seek necessary and readily-available additional information in deciding a claim for 

plan benefit. In the Secretary's view, ERISA's "full and fair" review provision, 29 

U.S.C § 1133, which rejects an adversarial approach in claims processing and 

instead requires both adequate notice of the basis for a denial and a meaningful 

dialogue between claimant and claims administrator, in tandem with ERISA's 

fiduciary prudence and loyalty provisions, see 29 U.S.C. § 1104, require a claims 

administrator to investigate and seek to obtain readily-available information 

necessary to decide a benefit claim. A fiduciary decisionmaker who fails to do so 

abuses its discretion in denying benefits. For this reason, we urge the Fourth 

Circuit to follow the lead of the Tenth Circuit, which has correctly held that a 

claims administrator cannot ignore readily-available information that could 

confirm a participant's entitlement to benefits under an ERISA plan. 

18
 

 

In the Tenth Circuit case, an employee of Monsanto, Donald B. Gaither, 

needed to take a significant amount of narcotics in order to control the bone pain 

caused by his multiple myeloma. Gaither, 394 F.3d at 794-95. Gaither filed a 

claim for disability benefits after he "was suspended from employment because his 

employer determined that his medical condition – his use of narcotic painkillers – 

made him unable to perform his job." Id. at 794. "At the same time, his 

employer's ERISA plan administrator [Aetna] denied him disability benefits 

because his medical condition did not render him unable to perform his job." Id. 

When the administrator defended "on the essential ground that it did not know, and 

was under no obligation to find out, why Gaither lost his job," the Tenth Circuit 

balked and reversed the district court's decision affirming the denial. The court 

acknowledged language in the relevant plan stating "that the claimant has a duty to 

provide relevant evidence." Id. at 804. But, relying on other plan language that 

both granted Aetna discretion to determine the type of evidence needed to evaluate 

a claim's validity and required the participant to cooperate with any request for 

information, the court pointed out that "[b]oth in theory and practice, the Plan gave 

Aetna considerable discretion to gather evidence as needed, and allowed Aetna to 

request both medical and nonmedical information about the case from Monsanto." 

Id. at 806. Because of this, and because "the signs in the record were sufficient to 

alert Aetna to the possibility of a narcotics relapse," the court rejected Aetna's 

19
 
 


 

contention "that the obligation to gather evidence in support of his claim is Mr. 

Gaither's alone," and instead agreed with Gaither that "Aetna acted arbitrarily and 

capriciously by denying his claim without obtaining more information first." Id. at 

804. 

In reaching this conclusion, the Tenth Circuit correctly relied on indications 

in ERISA's claims procedure provision and its accompanying regulation (which, as 

in this case, was adopted in the language of the plan itself) that claims processing 

is meant to be collaborative, not adversarial. See Gaither, 394 F.3d at 807. Thus, 

the court cited earlier Tenth Circuit precedent, which correctly recognized that 

because the claims regulation "'calls for [] a meaningful dialogue between ERISA 

plan administrators and their beneficiaries . . . if the plan administrators believe 

that more information is needed to make a reasoned decision, they must ask for it.'" 

Id. (citing Gilbertson v. Allied Signal, Inc., 328 F.3d 625, 635 (10th Cir. 2003), 

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

1997)). Moreover, the court reasoned that although "a fiduciary has a duty to 

protect a plan's assets against spurious claims; it also has a duty to see that those 

entitled to benefits receive them." 394 F.3d at 807-08. Indeed, to comply with its 

statutory duties, a fiduciary deciding a claim "must consider the interests of 

deserving beneficiaries as it would its own," when "presented with a claim that a 

20
 
 


 

little more evidence may prove valid [the fiduciary] should seek to get to the truth 

of the matter." Id. at 808. 

Moreover, Gaither correctly distinguished earlier decisions from the Tenth 

Circuit that had held that "'[i]f a plan participant fails to bring evidence to the 

attention of the administrator, the participant cannot complain of the 

administrator's failure to consider this evidence.'" 394 F.3d at 804 (quoting 

Sandoval v. Aetna Life & Cas. Ins. Co., 967 F.2d 377, 381 (10th Cir. 1992) and 

citing Nance v. Sun Life Assur. Co., 294 F.3d 1263, 1269 (10th Cir. 1996)). The 

court reasoned that those cases merely stood for the general principle that "nothing 

in ERISA requires plan administrators to go fishing for evidence favorable to a 

claim when it has not been brought to their attention that such evidence exists." 

Gaither, 394 F.3d at 804. Nor did the court see any conflict with the Fifth Circuit's 

en banc decision in Vega v. Nat'l Life Ins. Servs., Inc., 188 F.3d 287, 298 (5th Cir. 

1999), which refused to place "the burden solely on the administrator to generate 

evidence relevant to deciding the claim," or with the Fourth Circuit's decision in 

LeFebre v. Westinghouse Elec. Corp., 747 F.2d 197, 208 (4th Cir. 1984), which 

held that plan fiduciaries had "no duty" to seek out "a doctor whose testimony 

might contradict the medical reports from reliable physicians that had been 

submitted." None of those decisions stood as an impediment to the "narrow 

principle" that that court announced: "that fiduciaries cannot shut their eyes to 

21
 
 


 

readily available information when the evidence in the record suggests that the 

information might confirm the beneficiary's theory of entitlement and when they 

have little or no evidence in the record to refute that theory." Gaither, 394 F.3d at 

807.2

 Furthermore, as the Tenth Circuit correctly recognized, id., this kind of 

limited duty is supported by decisions of other courts of appeals. See, e.g., 

Booton, 110 F.3d at 1463-64 (finding denial of benefits arbitrary and capricious 

where "lacking necessary – and easily obtainable – evidence, Aetna made its 

decision blindfolded") (citing Kunin v. Benefit Trust Life Ins. Co., 910 F.2d 534, 

538 (9th Cir. 1990) (burden is on plan to obtain adequate information to make 

decision) ; Quinn v. Blue Cross & Blue Shield Ass'n, 161 F.3d 472, 476 (7th Cir. 

1998) (decision arbitrary and capricious where administrator in denying disability 

claim failed to make "reasonable inquiry" about the claimant's skills and ability to 

work), abrogated in part on other grounds by Hardt v. Reliance Standard Life Ins. 

Co., 560 U.S. 242, 251-52 (2010).3 

Gaither supports the same conclusion in this case. As in Gaither, the plan 

terms charging claimants with the burden to provide evidence supporting their 

2 The other two Fourth Circuit decisions cited by the district court – Elliott and 

Berry – are distinguishable on the same basis. 

3

 The court also cited the Eighth Circuit's decision in Woo v. Deluxe Corp., 144 

F.3d 1157, 1161 (8th Cir. 1998). We believe, however, that this case stands for the 

somewhat different proposition that, in doing a medical review of a claim 

involving an "uncommon disease," an administrator should employ a doctor with 

the relevant medical expertise rather than a general practitioner. 

22
 
 

 


 

claims is countered by plan language that "in both theory and practice" allowed 

Liberty to contact the claimant's physicians to obtain medical information, 

provided that a release from the claimant was obtained, as happened in this case.4 

While the claims regulation does not expressly require a claims administrator to 

seek to obtain necessary medical evidence, such a requirement is certainly 

consistent with the general principles animating the regulation, which contemplates 

a collaborative process, and with section 503, which broadly requires "full and fair 

review" of any benefit denial. 29 U.S.C. § 1103. Even more importantly, placing 

an obligation on the fiduciaries deciding the claims to obtain such known and 

easily-available evidence where, as here, the record is lacking, is most consistent 

with ERISA's fiduciary duty provisions, which provide that fiduciaries must act 

with the utmost care and in the undivided interests of the plan participants and 

beneficiaries, 29 U.S.C. § 1104(a)(1)(A), (B). See also 29 C.F.R. § 2560.503-

1(h)(1) (decision on appeal of adverse benefit determination must be decided by a 

4

 The Plan stresses that the claimant must complete and sign a medical release 

form and further states that "to expedite processing of your claim, Liberty may 

need to contact your physician to obtain medical information concerning your 

disability." Thus, far from suggesting that only claimants have an obligation to 

supply supporting medical information, the Plan seems to place the initial onus on 

Liberty to request needed medical information either from the doctors directly or 

from the claimant who then has the "responsibility to see that Liberty receives 

requested medical proof." JA 480. 

23
 
 


 

named fiduciary); Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105, 111 (2008) 

(benefit determination is a fiduciary act). 

The conduct of both Liberty and Wells Fargo during the claim process, 

however, was anything but collaborative. As early as October 2011, Liberty and 

by extension Wells Fargo were aware that Dr. Glenn was treating Harrison for her 

psychological disorders. Despite this knowledge, when Wells Fargo requested a 

general psychiatry peer review from Dr. Daniel in March of 2012, it provided the 

contact information for Dr. Petrizzi, but omitted contact information for Dr. Glenn. 

JA 42. Nor did Dr. Daniel himself seek to contact Dr. Glenn after he learned from 

Dr. Petrizzi that Dr. Glenn was the doctor who could provide the relevant 

information about Harrison's psychiatric status. Moreover, both Liberty and Wells 

Fargo knew that the materials they had, absent input from Dr. Glenn, were 

inadequate for them to make a proper determination whether Harrison's medical 

impairments precluded her from performing the essential parts of her job. In fact, 

Dr. Daniel's report expressly pointed out the deficiency in the record, stating that 

he could not make a proper assessment of Harrison's mental functionality without 

the benefit of input from Dr. Glenn. JA 391-393 (noting that that he "could not 

provide an opinion as to whether Harrison's psychiatric status limited her 

functional capacity without records or consultation with" her treating psychiatrist). 

Given these circumstances, the district court erred in concluding that Wells Fargo 

24
 
 

 

 

 


 

had no duty to seek this information.5 This case presents the Fourth Circuit with 

the opportunity to join the Tenth Circuit in recognizing the duty of Wells Fargo as 

the fiduciary decisionmaker to seek to obtain and consider this readily-available 

evidence necessary to deciding a claim for benefits, and to hold that its failure to 

do so constituted an abuse of discretion. 

B. Wells Fargo violated the claims regulation, and thereby failed to provide 

Harrison with a full and fair review 

Wells Fargo's abuse of discretion in failing to obtain medical information 

from Dr. Glenn was compounded by its failure to inform Harrison in its written 

denials that she needed to submit critical evidence from Dr. Glenn. For this 

reason, the denials in this case did not comply with the Secretary's claims 

regulation, which requires that adverse benefit determinations inform the claimant 

of the specific reasons for the denial, in a manner calculated to be understood by 

the claimant, including by specifying what additional evidence is necessary to 

perfect the claim. 29 C.F.R. § 2560.503-1(b)(1), (g)(1)(iii).6 The denials in this 

5

 The district court was also incorrect in viewing this as an impermissible estoppel 

argument. While Wells Fargo's failure to contact Dr. Glenn after being given his 

contact information is particularly troubling, this is evidence that Wells Fargo 

abused its discretion in failing to obtain critical information, not an argument that 

the reviewing doctor or Wells Fargo was estopped in some way. 

6

 The regulation provides, in pertinent part: 

(b) Obligation to establish and maintain reasonable claims procedures. 

Every employee benefit plan shall establish and maintain reasonable 

25
 
 


 

case did not satisfy this requirement because they never specifically informed 

Harrison that she needed to provide medical records from Dr. Glenn, her treating 

psychiatrist. JA 284-286; 340-342; and 391-392. For the same reason, the denials 

also violated the Plan itself, which similarly requires that if the claim is denied 

because Liberty did not receive sufficient information, the claims decision must 

describe the additional information needed and explain why such information is 

needed. See Booth, 201 F.3d at 342 (requiring consideration of whether the 

decision was consistent with the procedural and substantive requirements of 

ERISA). 

This failure to inform Harrison that she needed to submit supporting medical 

evidence from Dr. Glenn was particularly glaring given Wells Fargo's reliance on 

the lack of objective medical evidence documenting the extent of Harrison's 

procedures governing the filing of benefit claims, notification of benefit 

determinations, and appeal of adverse benefit determinations . . . . The 

claims procedures for a plan will be deemed reasonable only if – 

(1) The claims procedures comply with the requirements of [the following] 

paragraphs . . . of this section . . . . 

(g) Manner and content of notification of benefit determination. (1) . . . the 

plan administrator shall provide a claimant with written or electronic 

notification of any adverse benefit determination. . . . The notification shall 

set forth, in a manner calculated to be understood by the claimant -- . . . 

(iii) A description of any additional material or information necessary 

for the claimant to perfect the claim and an explanation of why such 

material or information is necessary 

29 C.F.R. § 2560.503-1 (b)(1), (g)(1)(iii) (emphasis added). 

26
 

 

psychological difficulties and its failure to obtain the information itself, despite its 

ability to do so. Moreover, given this lack of detail in Wells Fargo's written 

communication with her, as well as the fact that she signed a medical release form 

early on, which Liberty and Wells Fargo used to obtain records and opinions from 

some of her other doctors, Harrison could have justifiably believed that Liberty and 

Wells Fargo had obtained and considered Dr. Glenn's medical information in 

making their determinations. See Harden v. Am. Ex., 384 F.3d 498 (8th Cir. 2004) 

(where plan claimant signed required authorization and release of medical records, 

it is more than reasonable for claimant to believe that plan administrator had 

obtained the available records and that they were part of the documentation that 

had been specifically reviewed, although not specifically listed). It bears noting 

that Harrison – who was pro se and undergoing and recovering from multiple 

surgeries while trying to come to grips with the unexpected death of her husband – 

did not request a copy of the administrative record until after she retained counsel 

in December, 2012. 

The Fourth Circuit requires claims "administrators' decisions to adhere both 

to the text of ERISA and the plan to which they have contracted; to rest on sound 

evidence and sound reasoning; and to result from a fair and searching process." 

Evans v. Eaton Corp., 514 F.3d 315, 322-23 (4th Cir. 2008). The decision in this 

27
 
 

 

 

 

 

 


 

case does not. The deficiencies described above render the denials in this case 

unreasonable under an abuse of discretion standard. 

CONCLUSION 

For the above reasons, the Secretary requests that this Court reverse the 

district court's decision and remand for that court either to reinstate Harrison's 

short-term disability benefits based on her ability to perform her job during the 

relevant period, or, at a minimum, send the case back to Wells Fargo for "full and 

fair review." 

Dated: March 31, 2014 Respectfully submitted, 

M. PATRICIA SMITH 

 Solicitor of Labor

 G. WILLIAM SCOTT

 Acting Associate Solicitor 

 ELIZABETH HOPKINS

 Counsel for Appellate Litigation 

 _s/ Gail A. Perry_______ 

 GAIL A. PERRY

 Senior Trial Attorney 

U.S. Department of Labor 

 Office of the Solicitor 

 Plan Benefits Security Div. 

P.O. Box 1914 

 Washington, D.C. 20013 

202.693.5595 

 202.693.5610 (Fax) 

perry.gail@dol.gov 

28
 
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT 

No. 13-2379 _______ Caption: __________________________________________________ Nancy A. Harrison v. Wells Fargo, N.A., et al.,

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(s) Gail A. Perry

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Dated: March 31, 2014

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