1

The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the

Eastern District of Missouri, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 08-2523

___________

Mary Midgett, * 

* 

Plaintiff/Appellant, * 

* Appeal from the United States

v. * District Court for the 

* Eastern District of Arkansas.

Washington Group International * 

Long Term Disability Plan, * 

* 

Intervenor Defendant/ * 

Appellee, * 

*

Aetna Life Insurance Company; *

Broadspire Services, Inc; Washington * 

Group International, Inc.; Washington * 

Group International Short Term * 

Disability Plan, *

*

Defendants/Appellees. *

___________

Submitted: January 16, 2009

Filed: April 15, 2009

___________

Before MURPHY and SMITH, Circuit Judges, and LIMBAUGH, District Judge.1

___________
2

The Honorable William R. Wilson, Jr., United States District Judge for the

Eastern District of Arkansas.

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SMITH, Circuit Judge.

Mary Midgett appeals the district court's2

 grant of the motion for summary

judgment brought by Aetna Life Insurance Company, Broadspire Services, Inc.,

Washington Group International, Inc., and Washington Group International Short

Term Disability Plan (collectively "the defendants") on her claim for short-term

disability benefits. Midgett argues that the district court erred in granting summary

judgment to the defendants because she was denied a full and fair review of her shortterm disability claim and because the plan administrator's denial of her claim was

arbitrary and capricious. Midgett also appeals the district court's dismissal of her claim

for long-term disability benefits for failure to exhaust administrative remedies,

arguing that seeking long-term disability benefits would have been futile. We reject

Midgett's arguments and affirm the judgment of the district court. 

I. Background

Midgett worked as an assistant contract manager for Washington Group

International, Inc. ("Washington Group"). Midgett participated in the company's shortterm and long-term disability plans, which were governed by the Employee

Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001–1461.

Broadspire Services, Inc., was the administrator for Washington Group's short-term

disability plan when Midgett filed her short-term disability claim, but Aetna Life

Insurance Company later replaced Broadspire as the plan administrator when it

purchased Broadspire's disability unit. Pursuant to the Washington Group-Broadspire

service agreement, Broadspire was "responsible for rendering all claim determinations

regarding the terms" of the short-term disability plan and possessed the "discretionary

authority to render initial, first and second level appeal claim determinations,

including interpreting the terms of the Plan and otherwise making eligibility decisions

consistent therewith." 
-3-

The medical evidence in Midgett's case is extensive and conflicting. Dr. Ruben

Tejada wrote a letter to Midgett's employer in December 2005, observing that Midgett

had been under his care since 2002 and describing her condition as follows: "She

suffers from various physical maladies, including avascular necrosis and fibromyalgia.

During the past 5 years she has had two major surgeries and various minor surgeries

. . . . She is on numerous medications to control her medical problems, but even with

the medications will have episodes of fibromyalgia." Dr. Tejada stated that he had

"known [Midgett] to work against better judgment in fear of losing her job if absent"

and recommended that she "be accommodated in all ways to ensure she is not

subjected to additional stressors." 

On March 7, 2006, Dr. Michael Moore, a hand surgeon, opined that "Midgett's

clinical history, physical examination, and x-ray studies are consistent with

degenerative arthritis of the right long finger MP joint." Dr. Moore noted that

"Midgett was fitted for a hand-based splint to wear as needed" and that "she will

buddy tape the index, long, and ring fingers when she uses her right hand." That same

day, Dr. Reginald Rutherford, a neurologist, administered a motor nerve conduction

study, a sensory nerve conduction study, and a needle examination. The results of

these tests were normal, and Dr. Rutherford stated that "[t]here is no evidence via

electrodiagnostic parameters to suggest cervical radiculopathy, brachial plexopathy,

ulnar neuropathy or median neuropathy right upper extremity." On March 8, 2006,

and March 13, 2006, Midgett visited Dr. John Harris, who concluded that Midgett

suffered from fatigue and fibromyalgia.

On March 13, 2006, Midgett filed a claim for short-term disability benefits,

reporting her last day of work as March 3, 2006, and her first day of disability as

March 6, 2006. Midgett's claims examiner informed Midgett that her medical

information would be forwarded for a peer review.
-4-

 Dr. Michael Courtney, a chiropractor, examined Midgett on March 20, 2006,

and opined that Midgett was disabled. Dr. Yvonne Sherrer, a rheumatologist,

completed a peer review of Midgett's medical record on March 27, 2006. Dr. Sherrer

reviewed medical information received from Dr. Harris, including office notes from

Midgett's March 8 and March 13 appointments and a March 13 lab report. Dr. Sherrer

noted that although Midgett had "a history of fibromyalgia," the March 8 and March

13 progress notes did "not document significant abnormalities on musculoskeletal

exam or objective functional limitation." Dr. Sherrer also spoke with Dr. Harris, who

stated that he had been treating Midgett for approximately three weeks and did not

feel comfortable making a disability determination. Dr. Sherrer concluded that the

record did not support a functional impairment that would prevent Midgett from

performing her sedentary duties as an assistant contract manager. 

Following a new patient consultation on April 4, 2006, Dr. Tamer Alsebai, a

rheumatologist, stated that he was unsure whether Midgett would be able to return to

work because of "her multiple conditions and . . . medications." MRIs of Midgett's

lumbar and cervical spine performed that day revealed "evidence of grade I

degenerative anterior spondylolisthesis" and "[m]ultilevel spondyloarthropathic

changes."

Dr. Sherrer reviewed Midgett's chiropractic records and an additional job

description as part of a second peer review completed on April 10, 2006. Dr. Sherrer

concluded that this additional information did not alter her previous determination,

noting that although the chiropractic report indicated that Midgett suffered from

"degenerative changes," it failed to "document functional abnormalities that would be

expected to prevent [Midgett] from doing sedentary or light work." A bone

densitometry study conducted on April 10 revealed "[o]steoporosis involving the right

hip." 
-5-

On April 12, 2006, Midgett's claims examiner informed Midgett that Broadspire

had denied her short-term disability claim but that she was entitled to appeal that

decision. Midgett appealed Broadspire's decision on May 9, 2006, submitting

additional medical records for review.

Following the denial of her short-term disability claim, Midgett was examined

by a number of other doctors. On April 17, 2006, she was examined by Dr. David

Silas, a neurologist, whose impression was that Midgett suffered from lumbar disc

disease, cervical degenerative disc disease, essential tremor, and fibromyalgia. In May

2006, Dr. Harold Chakales diagnosed Midgett with cervical degenerative disc disease,

grade I spondylolisthesis, fibromyalgia, and osteoporosis. He opined that Midgett had

suffered from total disability since March 3, 2006, and might not be able to return to

work. A nerve conduction study conducted on May 24, 2006, revealed normal nerve

conduction velocity in Midgett's left leg and "[p]robable mild chronic bilateral S1

radiculopathies, right worse than left." 

Four additional peer reviews were completed in July 2006. First, Dr. Wendy

Weinstein, an internal medicine specialist, acknowledged Midgett's fibromyalgia

diagnosis but found no functional impairment that precluded Midgett from performing

her sedentary job duties. Second, Dr. Vaughn Cohan, a neurologist, concluded that

there was no evidence that Midgett could not perform her sedentary job duties despite

her fibromyalgia, musculoskeletal pain, and degenerative arthritis. Dr. Cohan also

noted that "[i]t is stated in the literature that patients with fibromyalgia syndrome do

much better by remaining active than by allowing themselves to avoid normal

activities of daily living and work-related activities." Third, Dr. Lawrence Burstein,

a psychologist, found that Midgett's medical record did not support the presence of

psychological impairments that would prevent her from performing the core functions

of her job. Fourth, Dr. Jacques Caldwell, a rheumatologist, concluded that Midgett's

medical record did not reflect the existence of a rheumatologic condition that would
3

The Washington Group-Broadspire service agreement required Broadspire to

provide claimants two levels of appeal following an initial denial of a claim for

benefits.

-6-

prevent her from performing her job duties and that there was no evidence that her

medications affected her ability to work.

In a letter dated August 6, 2006, Dr. Chakales stated that Midgett was

"permanently totally disabled and unable to work," explaining that she was unable to

work 40 hours per week, required periods of rest, and must avoid prolonged sitting,

stooping, and bending. On August 14, 2006, Midgett visited Dr. Bruce Safman, who

observed that (1) Midgett's "examination did not demonstrate any significant

pathology in the upper or lower extremities or trunk," (2) "her pain is under fairly

good control," and (3) "[i]t was difficult to discern whether anxiety is playing a role

in her symptoms." Following an exam on August 17, 2006, Dr. Tracy Phillips reported

that Midgett (1) could sit for two hours and stand or walk for two hours in an eighthour workday and (2) could lift up to ten pounds occasionally and never lift more than

ten pounds. Broadspire denied Midgett's first-level appeal on August 21, 2006, and

Aetna received Midgett's second-level appeal on October 24, 2006.3

 Midgett was

awarded Social Security disability benefits on September 27, 2006.

Dr. Barry McDonald, a psychologist, examined Midgett on six occasions

between February and April of 2007. In his psychological assessment, Dr. McDonald

concluded that "it is unlikely that Mrs. Midgett could perform her former duties

adequately." 

In a deposition taken on May 9, 2007, Dr. Chakales explained that Midgett

suffered from "symptomatic first degree spondylolisthesis, L5-S1, with chronic nerve

root compression, primarily on the left side," as well as "symptomatic cervical

spondylosis." Dr. Chakales stated that he did not believe that Midgett "could
-7-

withstand the rigors" of full-time employment, and he reiterated that, in his opinion,

Midgett was "permanently and totally disabled."

Dr. Lawrence Blumberg, an orthopedic surgeon, Dr. Elana Mendelssohn, a

neuropsychologist, and Dr. Jakob Ulfarrson, a rheumatologist, completed peer reviews

in June 2007. Each peer reviewer concluded that the medical evidence did not indicate

that Midgett was suffering from a condition that would prevent her from performing

her job duties. Following the completion of these peer reviews, Aetna denied

Midgett's second-level appeal.

Midgett brought an action against the defendants in federal district court

pursuant to 29 U.S.C. § 1132, seeking a declaratory judgment that she was entitled to

short-term and long-term disability benefits. Washington Group's long-term disability

plan moved to intervene, and, along with Aetna and Broadspire, moved to dismiss

Midgett's long-term disability claim. The district court granted both motions.

Midgett and the defendants filed cross-motions for summary judgment. The

district court denied Midgett's summary judgment motion and granted the defendants'

summary judgment motion, holding that "the plan administrator's denial of [Midgett's

short-term disability] claim was not arbitrary or capricious" in light of the following

considerations: "(1) Dr. Harris, [Midgett's] primary care physician, was uncomfortable

classifying [Midgett] as disabled; (2) numerous treating physicians' notes were silent

as to disability; (3) none of the peer review physicians found [Midgett] disabled; and

(4) plan administrators need not accord greater weight to treating physicians than peer

review physicians." Midgett v. Aetna Life Ins. Co., No. 5:07-CV-00233-WRW, 2008

WL 2669264, at *9 (E.D. Ark. July 1, 2008).
-8-

II. Discussion

On appeal, Midgett argues that the district court erred in granting the

defendants' motion for summary judgment as to her short-term disability claim and in

dismissing her long-term disability claim. 

A. Summary Judgment on Midgett's Short-Term Disability Claim

"We review the district court's grant of summary judgment de novo, applying

the same standards as the district court." Craig v. Pillsbury Non-Qualified Pension

Plan, 458 F.3d 748, 752 (8th Cir. 2006). But "[w]hen an ERISA plan grants the

administrator discretion to construe the plan and to determine benefits eligibility, as

in this case, both courts must apply a deferential abuse-of-discretion standard in

reviewing the plan administrator's decision." Jessup v. Alcoa, Inc., 481 F.3d 1004,

1006 (8th Cir. 2007). 

1. Full and Fair Review

Midgett first argues that the district court erred in granting the defendants'

motion for summary judgment as to her short-term disability claim because she did

not receive the full and fair review of that claim required by 29 U.S.C. § 1133(2).

Under ERISA, employee benefit plans must "afford a reasonable opportunity to any

participant whose claim for benefits has been denied for a full and fair review by the

appropriate named fiduciary of the decision denying the claim." 29 U.S.C. § 1133(2).

"In accordance with the authority of . . . 29 U.S.C. [§] 1133," 29 C.F.R. § 2560.503-1

"sets forth minimum requirements for employee benefit plan procedures pertaining to

claims for benefits." 29 C.F.R. § 2560.503-1(a). 

Following Broadspire's denial of Midgett's first-level appeal, Dr. Blumberg, Dr.

Mendelssohn, and Dr. Ulfarrson completed peer reviews in which they concluded that

the medical evidence did not support the conclusion that Midgett was suffering from

a condition that would prevent her from performing her job duties. Aetna relied on

these peer reviews in denying Midgett's second-level appeal.
-9-

Midgett alleges that Aetna failed to provide her with access to the peer reviews

of Dr. Blumberg, Dr. Mendelssohn, and Dr. Ulfarrson until after Aetna rendered its

decision. According to Midgett, she was entitled to review and rebut these peer

reviews before Aetna denied her second-level appeal. In support of her argument,

Midgett relies principally on our decision in Abram v. Cargill, Inc., 395 F.3d 882 (8th

Cir. 2005). In Abram, the plan administrator denied the claimant's long-term disability

claim. Id. at 885. On administrative appeal, the claimant submitted a functional

capacity evaluation (FCE) supporting her disability claim. Id. The plan administrator

sent the FCE to an independent medical examiner, who concluded that the FCE did

not establish that the claimant was disabled. Id. On the basis of the independent

medical examiner's report, the plan administrator denied the claimant's appeal "almost

a month after its decision was due." Id. The claimant appealed the decision to the

district court, which granted summary judgment to the plan administrator. Id.

We explained in Abram that "[f]ull and fair review includes the right to review

all documents, records, and other information relevant to the claimant's claim for

benefits, and the right to an appeal that takes into account all comments, documents,

records, and other information submitted by the claimant relating to the claim." Id. at

886. The plan administrator solicited the independent medical examiner's report "after

the deadline for an appeals decision had passed" and sent the report to the claimant

"only after the Plan issued its final denial decision." Id. We stated that "[t]his type of

'gamesmanship' is inconsistent with full and fair review." Id. (quoting Wilczynski v.

Lumbermens Mut. Cas. Co., 93 F.3d 397, 403 (7th Cir. 1996)). We concluded that

"[t]he process used by the Plan was not consistent with a full and fair review" because

the claimant "was not provided access to the . . . report . . . that served as the basis for

the Plan's denial of benefits until after the Plan's decision." Id. Noting that "[a]

claimant is caught off guard when new information used by the appeals committee

emerges only with the final denial," we held that the claimant "should have been

permitted to review and respond to the report." Id.
-10-

Midgett contends that just as the claimant in Abram was denied the opportunity

to review and dispute the independent medical examiner's report, she was denied the

opportunity to review and rebut the peer reviews of Dr. Blumberg, Dr. Mendelssohn,

and Dr. Ulfarrson. But this case presents "one of those exceptional circumstances

where a change in the law renders a prior decision non-binding." Buchholz v. Aldaya,

210 F.3d 862, 866 (8th Cir. 2000). In 2000, the Department of Labor amended the

"minimum procedural requirements for benefit claims under employee benefit plans."

65 Fed. Reg. 70,246, 70,246 (Nov. 21, 2000). The amended requirements "apply to

claims filed under a group health plan on or after the first day of the first plan year

beginning on or after July 1, 2002, but in no event later than January 1, 2003," and "to

claims filed under [other] plan[s] on or after January 1, 2002." 66 Fed. Reg. 35,886,

35,888 (July 9, 2001) (codified at 29 C.F.R. § 2560.503-1(o)). Because the claimant

in Abram filed for benefits in 2000, 395 F.3d at 884, the amended Department of

Labor requirements were inapplicable to her claim.

The regulatory scheme applicable to the claim in Abram required employee

benefit plans to establish and maintain an appeal procedure under which a claimant

was entitled to "[r]eview pertinent documents," 29 C.F.R. § 2560.503-1(g)(1)(ii)

(2000), but it did not specify what constituted a "pertinent" document. In light of the

"substantial public confusion concerning the meaning of the term 'pertinent,'" the

Department of Labor substituted "relevant" for "pertinent" and "provide[d] a specific

definition of that term" in its 2000 amendments. 65 Fed. Reg. 70,246, 70,252. The

regulatory scheme governing the claim in Abram also failed to specify when a

claimant was entitled to "review pertinent documents." 29 C.F.R. § 2560.503-

1(g)(1)(ii) (2000). But the amended regulations set forth specific stages in the claims

process at which a claimant is entitled to review the materials "relevant" to his or her

claim. 

Section 2560.503-1(h) of the amended regulations is entitled "Appeal of

adverse benefit determinations." 29 C.F.R. § 2560.503-1(h). Section 2560.503-1(h)(1)
-11-

requires employee benefit plans to "establish and maintain a procedure by which a

claimant shall have a reasonable opportunity to appeal an adverse benefit

determination." Under § 2560.503-1(h)(2)(iii), a plan only provides a claimant with

a full and fair review of a claim and adverse benefit determination if "the claims

procedures . . . [p]rovide that [the] claimant shall be provided, upon request and free

of charge, reasonable access to, and copies of, all documents, records, and other

information relevant to the claimant's claim for benefits." The "adverse benefit

determination" referred to throughout § 2560.503-1(h) is the plan administrator's

initial denial of a claim for benefits. See Price v. Xerox Corp., 445 F.3d 1054, 1056

(8th Cir. 2006) (stating that the regulation's language "indicates that only the initial

denial of benefits is an 'adverse benefit determination'"). Accordingly, following an

initial denial of a claim for benefits, § 2560.503-1(h)(2)(iii) entitles a claimant to

review the materials relevant to his or her claim. Midgett concedes that she received

copies of her administrative record following Broadspire's initial denial of her shortterm disability claim.

Section 2560.503-1(I) of the amended regulations sets forth the time limits

within which a claimant must be notified of a "benefit determination on review." 29

C.F.R. § 2560.503-1(i)(1)–(4) (emphasis added). Section 2560.503-1(i)(5) provides

as follows: "In the case of an adverse benefit determination on review, the plan

administrator shall provide such access to, and copies of, documents, records, and

other information described in paragraphs (j)(3), (j)(4), and (j)(5) of this section as is

appropriate." (Emphasis added.) Section 2560.503-1(j)(3), in turn, refers to "all

documents, records, and other information relevant to the claimant's claim for

benefits." "The inclusion of the language 'on review' [in § 2560.503-1(i)(5)]

differentiates the initial 'adverse benefit determination' from later internal appeals of

it." Price, 445 F.3d at 1057. Accordingly, following a denial of a first-level or secondlevel appeal, § 2560.503-1(i)(5) entitles a claimant to review the materials relevant to

his or her claim on appeal. 
-12-

Midgett does not contend that she was denied the opportunity to review

materials in connection with Broadspire's denial of her first-level appeal; indeed,

because the peer reviews of Dr. Blumberg, Dr. Mendelssohn, and Dr. Ulfarrson were

completed subsequent to the denial of her first-level appeal, they were only "relevant"

to Aetna's determination of her second-level appeal. See 29 C.F.R. § 2560.503-

1(m)(8) (defining material as "relevant" if, inter alia, it "[w]as relied upon in making

the benefit determination" or "[w]as submitted, considered, or generated in the course

of making the benefit determination"). Nor does Midgett contend that she was denied

access to the peer reviews following Aetna's denial of her second-level appeal.

Instead, she argues that she was entitled to review and rebut the peer reviews before

Aetna denied her second-level appeal. But the amended regulations state that Midgett

was entitled to access those peer reviews only after Aetna made its "adverse benefit

determination on review." 29 C.F.R. § 2560.503-1(i)(5). 

Section 2560.503-1(h)(3)(iii), another amendment to the Department of Labor

regulations that was inapplicable to the claim in Abram, also runs counter to Midgett's

argument that she was entitled to review and rebut the peer reviews of Dr. Blumberg,

Dr. Mendelssohn, and Dr. Ulfarrson prior to Aetna's determination of her second-level

appeal. Section 2560.503-1(h)(3)(iii) clarifies the nature of review to which a claimant

is entitled. This section states that the claims procedures of a group health plan only

provide a claimant with a full and fair review of a claim and adverse benefit

determination if the procedures "[p]rovide that, in deciding an appeal of any adverse

benefit determination that is based in whole or in part on a medical judgment, . . . the

appropriate named fiduciary shall consult with a health care professional."

Conspicuously absent from § 2560.503-1(h)(3)(iii) is any requirement that the

claimant be given the opportunity to review and rebut the health care professional's

conclusion.

Furthermore, we agree with the observation of the Tenth Circuit that requiring

a plan administrator to grant a claimant the opportunity to review and rebut medical
-13-

opinions generated on administrative appeal "would set up an unnecessary cycle of

submission, review, re-submission, and re-review." Metzger v. UNUM Life Ins. Co.

of Am., 476 F.3d 1161, 1166 (10th Cir. 2007). Such a cycle "would undoubtedly

prolong the appeal process, which, under the regulations, should normally be

completed within 45 days." Id. (citing 29 C.F.R. § 2560.503-1(i)(3)(i)). As noted by

the Tenth Circuit, because the amendments to § 2560.503-1 did not apply to the claim

in Abram, we "did not consider the potential for circularity of review" in that case. Id.

at 1167 n.3.

Finally, our interpretation of the full and fair review to which a claimant is

entitled under 29 U.S.C. § 1133(2), as clarified in 29 C.F.R. § 2560.503-1, is

supported by the Department of Labor's rationale for adopting the definition of

"relevant" in 29 C.F.R. § 2560.503-1(m)(8). The Department of Labor explained that

it "believes that this specification of the scope of the required disclosure of 'relevant'

documents will serve the interests of both claimants and plans by providing clarity as

to plans' disclosure obligations, while providing claimants with adequate access to the

information necessary to determine whether to pursue further appeal." 65 Fed. Reg.

70,246, 70,252 (emphasis added). According to the Department of Labor, "the purpose

of the production of these documents is to enable a claimant to evaluate whether to

appeal an adverse determination." Glazer v. Reliance Standard Life Ins. Co., 524 F.3d

1241, 1246 (11th Cir. 2008). And the determination that claimants are entitled to

"pre-decision access to relevant documents generated during the administrative

appeal—would nullify the Department's explanation. Access to documents during the

course of an administrative decision would not aid claimants in determining 'whether

to pursue further appeal,' because claimants would not yet know if they faced an

adverse decision." Metzger, 476 F.3d at 1167. 

The amendments to § 2560.503-1 enacted in 2000, which were inapplicable to

the claim in Abram, indicate that the full and fair review to which a claimant is

entitled under 29 U.S.C. § 1133(2) does not include reviewing and rebutting, prior to
-14-

a determination on appeal, the opinions of peer reviewers solicited on that same level

of appeal. Therefore, we conclude that Midgett was not denied a full and fair review

of her claim by Aetna's failure to provide her the opportunity to review and rebut the

peer reviews of Dr. Blumberg, Dr. Mendelssohn, and Dr. Ulfarrson prior to denying

her second-level appeal.

Midgett's remaining contentions in support of her argument that she was denied

a full and fair review of her claim are without merit. Midgett emphasizes that (1) the

peer reviews were performed by physicians who had never examined her; (2) the peer

reviewers were unidentified other than by name, title, and academic degree; (3) the

peer reviews appear on a form bearing Broadspire's corporate logo; and (4) the notice

she received of Aetna's denial of her second-level appeal did not specifically address

certain evidence supporting her claim. But Midgett cites no authority—and we are

aware of none—requiring peer reviews to be performed by examining physicians,

requiring a plan administrator to provide detailed credentials of peer reviewers, or

prohibiting peer reviews from appearing on a plan administrator's form. Additionally,

29 C.F.R. § 2560.503-1(j) sets forth the requisite content of a notification of a benefit

determination on review, and it does not require the plan administrator to discuss

specific evidence submitted by the claimant. Accordingly, we hold that Midgett was

not denied a full and fair review of her claim.

2. Arbitrary and Capricious

Midgett next argues that the district court erred in concluding that the plan

administrator's denial of her short-term disability claim was not arbitrary and

capricious. Under the abuse of discretion standard applicable in this case, we will

"reverse the plan administrator's decision 'only if it is arbitrary and capricious.'"

Groves v. Metro. Life Ins. Co., 438 F.3d 872, 874 (8th Cir. 2006) (quoting Hebert v.

SBC Pension Benefit Plan, 354 F.3d 796, 799 (8th Cir. 2004)). To determine whether

a plan administrator's decision was arbitrary and capricious, "we ask whether the

decision to deny . . . benefits was supported by substantial evidence, meaning more
-15-

than a scintilla but less than a preponderance." Schatz v. Mut. of Omaha Ins. Co., 220

F.3d 944, 949 (8th Cir. 2000). "Provided the decision 'is supported by a reasonable

explanation, it should not be disturbed, even though a different reasonable

interpretation could have been made.'" Id. (quoting Cash v. Wal-Mart Group Health

Plan, 107 F.3d 637, 641 (8th Cir. 1997)). "The requirement that the [plan

administrator's] decision be reasonable should be read to mean that a decision is

reasonable if a reasonable person could have reached a similar decision, given the

evidence before him, not that a reasonable person would have reached that decision."

Jackson v. Metro. Life Ins. Co., 303 F.3d 884, 887 (8th Cir. 2002) (internal quotation

marks omitted).

The crux of Midgett's argument is that Broadspire and Aetna improperly

disregarded the conclusions of Dr. Chakales and Dr. McDonald, who had examined

her, and relied instead on the conclusions of the peer reviewers, who had not

examined her. The Supreme Court has recognized that treating physicians are not

automatically entitled to special weight in disability determinations under ERISA:

Plan administrators, of course, may not arbitrarily refuse to credit a

claimant's reliable evidence, including the opinions of a treating

physician. But, we hold, courts have no warrant to require administrators

automatically to accord special weight to the opinions of a claimant's

physician; nor may courts impose on plan administrators a discrete

burden of explanation when they credit reliable evidence that conflicts

with a treating physician's evaluation.

Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003).

In Weidner v. Fed. Express Corp., we applied Nord to hold that a plan

administrator did not abuse its discretion in denying a claimant total disability benefits

despite a treating physician's opinion that the claimant was "fully disabled." 492 F.3d

925, 930 (8th Cir. 2007). We emphasized that consultative specialists had concluded
-16-

that the medical evidence did not reflect total disability and that the claimant's annual

MRI scans indicated that her condition had "progressed very little during the relevant

period." Id. Likewise, in Dillard's Inc. v. Liberty Life Assurance Co. of Boston, we

rejected the contention that the plan administrator abused its discretion when it

"credited [a peer reviewer's] analysis over [a primary care physician's] conclusions

because [the peer reviewer] did not physically examine [the claimant]." 456 F.3d 894,

899 (8th Cir. 2006). We noted that "[w]e have held . . . that a plan administrator has

discretion to deny benefits based upon its acceptance of the opinions of reviewing

physicians over the conflicting opinions of the claimant's treating physicians unless

the record does not support the denial." Id. at 899–900 (citing Johnson v. Metro. Life

Ins. Co., 437 F.3d 809, 814 (8th Cir. 2006); Coker v. Metro. Life Ins. Co., 281 F.3d

793, 799 (8th Cir. 2002)).

The decision to deny Midgett's short-term disability claim "was supported by

substantial evidence." Schatz, 220 F.3d at 949. First, the eight peer reviewers

unanimously concluded that the evidence did not support Midgett's short-term

disability claim. Midgett attempts to discount the peer reviews, characterizing them

as "conclusory." She relies on Kalish v. Liberty Mutual/Liberty Life Assurance Co. of

Boston, in which the Sixth Circuit held that the plan administrator "acted arbitrarily

and capriciously in denying [the claimant] disability benefits on the basis of his

cardiac condition." 419 F.3d 501, 511 (6th Cir. 2005). The court specifically noted

that the plan administrator relied exclusively on the conclusion of a peer reviewer who

had not physically examined the claimant and rejected the conclusion of a physician

who had examined the claimant on numerous occasions. Id. at 509. The court

emphasized that the peer reviewer's report was "inadequate" because, inter alia, it

failed to mention certain contrary findings and failed to rebut the contrary conclusions

reached by the examining physician. Id. at 510. In contrast, the peer reviews in this

case, viewed together, accurately represent Midgett's medical record and adequately

address the evidence supporting her claim for disability. In particular, Dr. Blumberg

and Dr. Cohan acknowledged the findings of Dr. Chakales, and Dr. Mendelssohn
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acknowledged the findings of Dr. McDonald, but they all explained that these findings

did not demonstrate that Midgett was unable to perform her job duties. 

In addition to the peer reviews, the results of Dr. Rutherford's nerve conduction

studies and needle examination were normal, and Dr. Safman noted that Midgett's

examination did not reveal a significant pathology in her trunk or extremities and that

Midgett's pain was under control. "Where the record reflects conflicting medical

opinions, the plan administrator does not abuse its discretion in finding the employee

not to be disabled." Delta Family-Care Disability & Survivorship Plan v. Marshall,

258 F.3d 834, 843 (8th Cir. 2001). In light of the conflicting medical opinions in this

case, the denial of Midgett's short-term disability claim was not arbitrary and

capricious.

Because Midgett was not denied a full and fair review of her claim and the

denial of her claim was not arbitrary and capricious, we affirm the district court's grant

of summary judgment to the defendants. 

B. Dismissal of Midgett's Long-Term Disability Claim

Midgett also argues that the district court erred in dismissing her long-term

disability claim for failure to exhaust administrative remedies. "In this circuit, benefit

claimants must exhaust [the benefits appeal] procedure before bringing claims for

wrongful denial to court." Galman v. Prudential Ins. Co. of Am., 254 F.3d 768, 770

(8th Cir. 2001). Indeed, "[w]here a claimant fails to pursue and exhaust administrative

remedies that are clearly required under a particular ERISA plan, his claim for relief

is barred." Layes v. Mead Corp., 132 F.3d 1246, 1252 (8th Cir. 1998). But "[a] party

may be excused from exhausting administrative remedies . . . if further administrative

procedures would be futile," and "[a]n administrative remedy will be deemed futile

if there is doubt about whether the agency could grant effective relief." Ace Prop. &

Cas. Ins. Co. v. Fed. Crop Ins. Corp., 440 F.3d 992, 1000 (8th Cir. 2006).

"[U]nsupported and speculative" claims of futility do not excuse a claimant's failure
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to exhaust his or her administrative remedies. Klaudt v. U.S. Dep't of Interior, 990

F.2d 409, 412 (8th Cir. 1993).

Washington Group provided long-term disability benefits through a group

disability insurance policy issued by Highmark Life Insurance Company. Highmark's

group insurance certificate states that a claimant may not commence a legal action

until 60 days after providing proof of a claim, but Midgett never applied for long-term

disability benefits. Midgett contends that it would have been futile for her to pursue

a long-term disability claim in light of the denial of her short-term disability claim.

Highmark's group insurance certificate states that long-term disability benefits

are only payable upon the expiration of the "Benefit Qualifying Period," which begins

on the day the beneficiary becomes disabled and "ends upon the last to occur of" the

following: 

1. The termination of your benefits under any salary continuation or

short term disability benefits plan sponsored by the Policyholder;

2. The exhaustion of your accumulated sick leave days provided by the

Employer; or

3. 26 weeks after the date you became Disabled.

Midgett interprets the group insurance certificate as providing that long-term

disability benefits are not payable unless all three of these events occur. According to

Midgett, it would have been futile for her to seek long-term disability benefits because

the termination of short-term disability benefits is one of the events necessary for the

benefit qualifying period to end and she never received short-term disability benefits.

Midgett's interpretation is contradicted by other language in the certificate.

Specifically, the certificate requires a beneficiary "to apply for any other benefits for
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loss of income that [he or she] may also be eligible for as a result of the same period

of disability" and states that the beneficiary may be required to "appeal a denial of [his

or her] claim for these other benefits." The certificate thereby implies that the denial

of a claim for other loss of income benefits does not preclude a beneficiary from

receiving long-term disability benefits. 

Furthermore, under Midgett's interpretation of the group insurance certificate,

a beneficiary with no "accumulated sick leave days provided by the Employer" would

also be ineligible to receive long-term disability benefits because that beneficiary

would fail to satisfy each of the three events listed in the certificate. Such an absurd

result seriously undermines Midgett's interpretation. See St. Louis-San Francisco Ry.

Co. v. Armco Steel Corp., 490 F.2d 367, 371 (8th Cir. 1974) ("The construction of an

insurance policy should be a natural and reasonable one, fairly construed to effectuate

its purpose, and viewed in the light of common sense so as not to bring about an

absurd result.").

We believe that the most natural and reasonable reading of Highmark's group

insurance certificate is that "[t]he termination of . . . short term disability benefits" is

one of the triggering events for the end of the benefit qualifying period only if such

benefits are actually received. Because Midgett's claim for short-term disability

benefits was denied, her benefit qualifying period would have ended upon the later of

(1) the exhaustion of her accumulated sick leave days, if any, or (2) 26 weeks after the

date she became disabled. 

Because it would not have been futile for Midgett to seek long-term disability

benefits, she was required to fully exhaust Highmark's claims procedure before

bringing her claim for long-term disability benefits in district court. We hold,

therefore, that the district court did not err in dismissing Midgett's long-term disability

claim for failure to exhaust administrative remedies.
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III. Conclusion

Because we hold that the district court did not err in granting the defendants'

motion for summary judgment as to Midgett's short-term disability claim and in

dismissing Midgett's long-term disability claim, we affirm the judgment of the district

court.

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