[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 18-14835

________________________

D.C. Docket No. 1:17-cv-00247-MW-GRJ

KEYTON BENSON,

Plaintiff-Appellant,

versus

HARTFORD LIFE & ACCIDENT

INSURANCE COMPANY,

Defendant-Appellee.

 

________________________

Appeal from the United States District Court

for the Northern District of Florida

________________________

(November 22, 2019)

Before JILL PRYOR, GRANT and ANDERSON, Circuit Judges.

PER CURIAM:

Case: 18-14835 Date Filed: 11/22/2019 Page: 1 of 12 
2

In this appeal, Keyton Benson challenges the district court’s grant of 

summary judgment in favor of Hartford Life and Accident Insurance Company, 

which affirmed Hartford’s decision to deny Benson long-term disability benefits. 

Because we conclude that Hartford’s decision was not “wrong,” we affirm.

We have had the benefit of oral argument and have carefully reviewed the 

briefs of the parties and the administrative record. Because we write only for the 

benefit of the parties, who are familiar with the facts and proceedings at issue, we 

include in our discussion only those facts necessary to understand our decision.

Benson’s claim for long-term disability benefits is governed by a policy 

issued by Hartford to Benson’s employer, Tower Hill Insurance Group, which in 

turn is governed by the Employee Retirement Income Security Act of 1974, 29 

U.S.C. §§ 1001–1461. Hartford’s policy provides that it will pay a monthly benefit 

to the individual policyholder if they:

1) become Disabled while insured under The Policy;

2) are Disabled throughout the Elimination Period;

3) remain Disabled beyond the Elimination Period; and

4) submit Proof of Loss to Us.

(emphasis added). The Policy defines “disability” or “disabled” as follows:

Disability or Disabled means You are prevented from performing one 

or more of the Essential Duties of:

1) Your Occupation during the Elimination Period;

2) Your Occupation, for the 2 years following the Elimination Period, 

and as a result Your Current Monthly Earnings are less than 80% of 

Your Indexed Pre-disability Earnings; and

3) after that, Any Occupation.

Case: 18-14835 Date Filed: 11/22/2019 Page: 2 of 12 
3

Accordingly, subject to the terms of the policy, Benson is only entitled to a longterm disability benefit if he can prove that he was disabled throughout the entire 

Elimination Period. In other words, Benson cannot prevail merely by proving that 

he was disabled at some point during the Elimination Period. Rather, he must 

prove that he was disabled throughout the entire Elimination Period, a requirement

that he does not dispute. The parties agree that, for the purposes of this case, the 

Elimination Period extended from May 15, 2016, to August 27, 2016.

We review de novo a district court’s ruling reviewing a plan administrator’s 

ERISA benefits decision. As did the district court, in our review of Hartford’s 

decision, we apply the standard set out by our decision in Blankenship v. 

Metropolitan Life Ins. Co.:

(1) Apply the de novo standard to determine whether the claim 

administrator’s benefits-denial decision is “wrong” (i.e., the court 

disagrees with the administrator’s decision); if it is not, then end the 

inquiry and affirm the decision.

(2) If the administrator’s decision in fact is “de novo wrong,” then 

determine whether he was vested with discretion in reviewing claims; 

if not, end judicial inquiry and reverse the decision.

(3) If the administrator’s decision is “de novo wrong” and he was 

vested with discretion in reviewing claims, then determine whether 

“reasonable” grounds supported it (hence, review his decision under 

the more deferential arbitrary and capricious standard).

Case: 18-14835 Date Filed: 11/22/2019 Page: 3 of 12 
4

(4) If no reasonable grounds exist, then end the inquiry and reverse 

the administrator’s decision; if reasonable grounds do exist, then 

determine if he operated under a conflict of interest.

(5) If there is no conflict, then end the inquiry and affirm the decision.

(6) If there is a conflict, the conflict should merely be a factor for the 

court to take into account when determining whether an 

administrator’s decision was arbitrary and capricious.

644 F.3d 1350, 1355 (11th Cir. 2011) (quotation omitted).

Accordingly, because it is ultimately dispositive of our resolution of this 

case, the primary issue before us is whether Hartford’s decision denying long-term 

disability benefits to Benson was “wrong.” Put another way, because it is 

undisputed that, to be entitled under the policy to such benefits, Benson had to 

prove that he was disabled throughout the entire Elimination Period, the issue is 

whether Hartford was “wrong” in finding that Benson failed to prove that he was.

Based primarily on the opinions of two doctors who conducted a file review 

of the medical evidence,1 Hartford determined that the clinical evidence indicated 

that Benson was not “disabled,” as defined by its policy, from May 15, 2016, to 

July 19, 2016, the date of his knee replacement surgery. It also determined that 

Benson would have sufficiently recovered from the knee surgery at least by August 

1 Hartford sought the opinion of Dr. Benjamin Kretzmann, a board-certified 

rheumatologist, as well as Dr. Laurie Molina, a board certified internist. Both the doctors 

reviewed the medical evidence, including the contemporaneous treatment notes of the treating 

physicians. 

Case: 18-14835 Date Filed: 11/22/2019 Page: 4 of 12 
5

26, 2016, and was not disabled then or thereafter. In sum, Hartford found that 

Benson was not disabled throughout the entire Elimination Period, as required 

under the policy.

Our careful review of the evidence before Hartford at the time it rendered 

that decision convinces us that Hartford’s decision was not “wrong,” because 

Benson failed to prove that he was disabled throughout the Elimination Period. 

We base this conclusion on (1) the substance of Benson’s claims for both shortterm and long-term disability benefits, (2) the contemporaneous treatment notes 

from Benson’s physicians, and (3) the ability of Benson to perform the essential 

duties of his job. Each is addressed in turn.

First, Benson’s claims for short- and long-term disability benefits paint a 

conflicting picture of his alleged disability. The argument Benson presented to the 

district court—and that he makes to us now—is that he was disabled by the pain 

and fatigue that he experienced as a result of his polymyalgia rheumatica 

(“PMR”).2

 We find it significant, however, that PMR was never identified as a 

disabling condition in his initial applications for short- and long-term disability 

benefits. Benson’s claim for short-term disability benefits (which Hartford granted 

in full from May 15, 2016, through August 27, 2016) was predicated solely on the 

knee injury that occurred on May 15, 2016, and necessitated a knee replacement 

2 PMR is a rheumatic disease that causes muscle pain and stiffness.

Case: 18-14835 Date Filed: 11/22/2019 Page: 5 of 12 
6

surgery on July 19, 2016. Benson’s claim for long-term disability benefits, which 

he submitted on August 2, 2016, was initially predicated on a similar rationale. Dr. 

Celal Erbay, Benson’s primary-care physician, submitted an attending physician’s 

statement in support of Benson’s claim for long-term benefits. In that statement, 

Dr. Erbay identified Benson’s “Primary condition” as “Knee Replacement” and his 

subjective symptoms as “knee pain; ‘clicking’ sounds; [and] swelling.”

In that attending physician statement, Dr. Erbay made no mention of any 

current disabling symptoms related, directly or indirectly, to Benson’s PMR 

diagnosis. It was only after an August 24, 2016, inquiry from Hartford that Dr. 

Erbay “clarified” that Benson’s disability was due primarily to stiffness, pain, and 

fatigue from his PMR—not from his knee.3

Second, we conclude that the contemporaneous treatment notes kept by 

Benson’s physicians indicate that he was not disabled for substantial parts of the 

Elimination Period. None of the treatment notes made by Dr. Erbay, between May 

3 The contemporaneous notes of Benson’s treating physicians also indicate that Benson 

was not disabled on account of his knee for considerable periods of time during the Elimination 

Period. From May 15, 2016, the day of the knee injury, to July 19, 2016, the day of the knee 

replacement, there is no indication in the treatment notes of either Dr. Erbay or Dr. Andrew 

Rocca, the orthopedic surgeon who performed Benson’s knee replacement, that Benson was 

disabled on account of the knee. We can assume that there may have been some time 

immediately after the surgery that Benson may have been disabled. But Dr. Rocca’s August 25, 

2016, attending physician statement, submitted in support of Benson’s claim for long-term 

disability benefits, certified that Benson’s knee had sufficiently recovered such that it is clear, at 

least as early as August 25, 2016, Benson was no longer disabled on account of his knee.

Case: 18-14835 Date Filed: 11/22/2019 Page: 6 of 12 
7

15, 2016, and July 19, 2016, indicates any disability attributable to PMR or any 

other cause or causes. During Benson’s visits to Dr. Erbay during this time, his 

complaints were chiefly about his knee, and mentioned PMR symptoms only 

secondarily or tertiarily, if at all. For example, on May 26, 2016, Dr. Erbay’s notes 

indicate that Benson reported increased fatigue and early-morning stiffness 

(“EMS”) of only fifteen to twenty minutes.4

 There is no suggestion in Dr. Erbay’s 

notes that Benson was disabled as of May 26, 2016, by PMR or otherwise. Dr. 

Erbay’s notes from Benson’s June 3, 2016, appointment with him paint a similar 

picture.

This trend continued after Benson’s knee replacement surgery. On July 26, 

2016, at Benson’s first visit with Dr. Erbay after his successful surgery, Dr. Erbay

noted that Benson felt “great” about his PMR and was not experiencing headaches 

or fatigue. On August 5, 2016, Dr. Erbay indicated that Benson was on a reduced 

dose of Prednisone but was still not experiencing major PMR symptoms like 

fatigue.

Treatment records from other physicians are similarly illustrative. On June 

27, 2016, on a visit to Dr. Seldon Longley, Benson’s rheumatologist, the doctor’s 

treatment notes indicate that Benson’s PMR was “well controlled” by his 

Prednisone prescription. Dr. Rocca observed on August 2, 2016 (the day that 

4 EMS was one of the PMR symptoms on which Benson based his claim of disability.

Case: 18-14835 Date Filed: 11/22/2019 Page: 7 of 12 
8

Benson filed his claim for long-term disability benefits), that Benson was 

recovering well from his surgery. Like Dr. Erbay, he noted no symptoms of 

PMR.5

Only on August 31, 2016, several days after the Elimination Period and after 

Dr. Erbay’s August 24, 2016, “clarification” to Hartford, do Dr. Erbay’s treatment 

notes indicate any meaningful increase in Benson’s PMR symptoms. At that visit, 

he noted that Benson’s knee pain was tolerable but that he was experiencing 

increased stiffness (three to four hours of EMS) and fatigue.6

 Accordingly, Dr. 

Erbay increased Benson’s Prednisone dosage. Dr. Erbay saw Benson again on 

September 8, 2016, when Benson again reported his knee pain as tolerable; he said 

his EMS was not better, but nonetheless reported that it decreased to one hour.

We conclude that these notes support a finding that, at most, Benson was 

disabled for a short period of time while recovering from his knee replacement 

surgery on July 19, 2016. Accordingly, we further conclude that Benson was not 

disabled throughout the entire Elimination Period.

5 At this August 2, 2016, appointment, Dr. Rocca also reported that Benson was “doing 

well,” “walking quite a bit,” and “not requesting any pain medicine.” Although we need not so 

decide, it is likely that Benson’s knee was no longer disabling much earlier than August 25, 

2016, possibly as early as August 2, 2016. 

6 Thus, Dr. Erbay’s treatment notes provide support for significant PMR symptoms only 

after the Elimination Period ended, thus falling short of the proof Benson needs—i.e., disability 

throughout the entire Elimination Period.

Case: 18-14835 Date Filed: 11/22/2019 Page: 8 of 12 
9

Third, after reviewing the above information, we compare it with the 

physical demands of Benson’s job. According to a physical demands analysis 

submitted by Benson’s employer, his job was largely sedentary. His daily tasks 

required him to sit for a maximum of two hours at a time, stand or walk for thirty 

minutes at a time, and did not require him to lift anything heavy. Each day, he was 

required to sit for seven hours, stand for thirty minutes, and walk for thirty 

minutes.

We compare these physical demands with the August 25, 2016, attending 

physician’s statement submitted by Dr. Rocca to Hartford. Dr. Rocca certified that 

Benson could sit and stand for eight hours at a time and walk for thirty minutes at a 

time for up to six to eight hours per day. These endorsements square neatly with 

the physical demands of Benson’s job. Therefore, at least as early as August 25, 

2016, it is clear that Benson’s knee did not prevent him from performing the 

essential duties of his job. And as noted above, the contemporaneous notes of 

Benson’s treating physicians indicate that Benson was not disabled—by his knee, 

complications from PMR, or otherwise—for significant periods of time during the 

Elimination Period.

Ultimately, we agree with Hartford—and Doctors Kretzmann and 

Molinda—in finding that Benson was not entitled to long-term disability benefits. 

Our best judgment, based on a review of all of the medical evidence, is that Benson 

Case: 18-14835 Date Filed: 11/22/2019 Page: 9 of 12 
10

was not disabled from May 15, 2016, until the surgery on July 19, 2016, and for 

some period of time after he sufficiently recovered from the knee surgery—at least 

after August 25, 2016, when Dr. Rocca indicated that, with respect to his knee, he 

was clearly capable of performing what his job required. We conclude that it is 

more reasonable to rely upon the clear indications in the contemporaneous 

treatment notes that Benson was not disabled—on account of his knee, PMR 

symptoms, or otherwise—in preference to Benson’s arguments about his increased 

pain and fatigue from PMR and in preference to the later characterizations of 

Benson’s symptoms by Dr. Erbay.

For the foregoing reasons, our de novo review persuades us that the decision 

of Hartford denying Benson’s claim for long-term disability benefits was not 

“wrong.” Under our Blankenship standard, that ends our inquiry.

We note that even if we did continue the Blankenship analysis, we would 

nonetheless also affirm the judgment of the district court and uphold Hartford’s 

decision. Even if we believed that Hartford’s decision was “wrong,” and even if 

we pursued steps 3–6 of the Blankenship analysis, 644 F.3d at 1355, we would still 

conclude that Hartford’s decision was not arbitrary and capricious. It is undisputed 

that the policy gives Hartford the necessary discretion. But it is also undisputed 

that Hartford makes the eligibility decision and pays the benefits awarded, so 

Hartford has a structural conflict of interest. It is obvious from our discussion 

Case: 18-14835 Date Filed: 11/22/2019 Page: 10 of 12 
11

above that Hartford’s decision was amply supported by reasonable grounds (steps 

3 and 4). Because there is a conflict of interest (step 4), that is a factor in the 

determination of whether Hartford’s decision was arbitrary or capricious (step 6). 

Even factoring in that conflict of interest, the reasonableness of Hartford’s decision 

is so clear that we readily conclude it was not arbitrary and capricious.

For the foregoing reasons,7 we affirm the judgment of the district court and 

uphold the decision of Hartford denying Benson’s claim for long-term disability 

benefits.

7 On appeal, Benson makes several additional arguments, all of which we conclude are 

without merit. Benson’s arguments about objective evidence being unnecessary in the context of 

a disability claim based on subjective symptoms—and his related arguments like the asserted 

need for an independent examination and/or an evaluation of Benson’s credibility—are wholly 

without merit. As stated in the text, the gist of the decision denying disability benefits in this 

case is that Benson’s claims of disabling pain and fatigue are simply inconsistent with the 

contemporaneous notes taken by his treating physicians at the time of the office visits.

Benson also argues that Hartford’s final decision denying his claim on administrative 

appeal was based on a new and different rationale (as compared to its initial denial), thus 

depriving him of the opportunity of an appeal to challenge the new rationale. Benson argues that 

the initial denial was based on his failure to prove his disability on a particular date—August 28, 

2016—whereas the final decision on appeal was based on his failure to prove that he was 

disabled throughout the entire Elimination Period. Benson’s argument is meritless. The initial 

decision made amply clear that the Policy required him to prove that he was disabled throughout 

the entire Elimination Period. Indeed, the initial decision found that Benson was capable of 

performing full-time work for approximately the same periods of time that the final decision so 

found. We conclude that Benson had ample opportunity and notice to address the precise basis of 

the final decision. 

In his initial brief on appeal, Benson mentions—but does not develop—an argument that, 

after he requested reconsideration of Hartford’s denial of his appeal, Hartford’s claim process 

was not principled because it failed to consider Dr. Erbay’s July 21, 2017, letter and the July 24, 

2017, letter from Donald C. Matz, Benson’s supervisor at Tower Hill Insurance Group. Erbay’s 

letter purported to respond to the conclusions made by Drs. Kretzmann and Molina, whereas 

Matz’s letter attested to Benson’s honesty and integrity, as well as Matz’s personal perspective 

Case: 18-14835 Date Filed: 11/22/2019 Page: 11 of 12 
12

AFFIRMED.

of Benson’s alleged disability. Benson complains that Hartford failed to provide these letters to 

Drs. Kretzmann and Molina. Hartford responds that the letters were untimely, having been 

submitted after a final decision was rendered on Benson’s administrative appeal and therefore 

Hartford was not required to provide them to the reviewing doctors. We find the record to be 

consistent with Hartford’s position and thus find no error on its part.

As an initial matter, the remedy Benson seeks—a remand to Hartford for reconsideration 

in light of this evidence—is unavailable to him. He concedes in his reply brief that he failed to 

request a remand before the district court. As such, we conclude that this argument was not 

properly raised before the district court and is therefore waived because “we will not entertain [a] 

request for relief for the first time on appeal.” S.F. Residence Club, Inc. v. 7027 Old Madison 

Pike, LLC, 583 F.3d 750, 755 (11th Cir. 2009).

In any event, we conclude that neither letter would have changed the outcome here. Dr. 

Erbay’s opinions about this case were amply represented in earlier communications from him 

that were considered by Hartford and Drs. Kretzmann and Molina. His letter added little to the 

administrative record that was not already there. Matz’s letter is similarly unhelpful to Benson’s 

case. Benson’s attorney inadvertently omitted Matz’s letter in the communication to Hartford on 

July 24, 2017, which included Erbay’s letter. We note that Benson did not request 

reconsideration on the basis of Matz’s letter at any point and did not mention the letter at all in 

his September 22, 2017, letter to Hartford that sought reconsideration or in his initial complaint 

filed with the district court. We need not decide whether Hartford did in fact consider the 

letter—though its August 24, 2017, letter to Benson suggests that it did not—because the failure 

to consider the letter would not warrant a remand for further consideration in any event. Matz’s 

letter dealt with his evaluation of Benson’s job performance after the crucial Elimination Period, 

which is the only period of time at issue in this case. Accordingly, we determine that the failure 

to consider either letter does not provide grounds for a remand, a remedy that Benson waived 

anyway.

Finally, we can assume arguendo, but not decide, that the evidence that Benson 

uncovered in discovery in the district court—evidence of Hartford’s policies and guidelines, the 

deposition of Hyndman (Hartford’s appeals specialist), and the information about Dr. Ayyar—

would be admissible to show that Hartford’s claims process was biased or otherwise not full and 

fair. We have considered Benson’s arguments in this appeal and have considered the evidence to 

which he points. We conclude that Benson has failed to make even an arguable showing of bias 

or that the process was not full and fair. This is especially true in light of our own review of the 

evidence and our own conclusion that the contemporaneous treatment notes of Benson’s treating 

physicians do not support a conclusion that plaintiff was disabled throughout the entire 

Elimination Period.

Case: 18-14835 Date Filed: 11/22/2019 Page: 12 of 12