* After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. This order and judgment is not binding

precedent, except under the doctrines of law of the case, res judicata, and

collateral estoppel. It may be cited, however, for its persuasive value consistent

with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED

United States Court of Appeals

Tenth Circuit

May 12, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PAMELA NULL, 

Plaintiff-Appellant,

v.

COMMUNITY HOSPITAL

ASSOCIATION; LIFE INSURANCE

COMPANY OF NORTH AMERICA,

Defendants-Appellees.

No. 09-6125

(D.C. No. 5:08-CV-00297-F)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before KELLY, BALDOCK, and HOLMES, Circuit Judges.

Plaintiff-Appellant Pamela Null appeals the district court’s adjudication of

her claim for long-term disability (LTD) benefits and waiver of life insurance

premiums under the Employee Retirement Income Security Act of 1974 (ERISA),

29 U.S.C. §§ 1001-1461. On appeal, Ms. Null contends that defendants’

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termination of both her long-term disability (LTD) benefits and the waiver of life

insurance premiums was not supported by substantial evidence and that the

decision was unreasonable, arbitrary, and capricious. Specifically with respect to

the LTD benefits, Ms. Null argues that defendants should have obtained

vocational information about jobs available to her before terminating her benefits,

and that they improperly relied on hearsay evidence of her medical condition to

justify their decision to terminate. We have jurisdiction under 28 U.S.C. § 1291. 

Because we conclude that, under the circumstances of this case, consideration of

vocational expert evidence is necessary, we reverse.

Background

Defendants are (i) Community Hospital Association, d/b/a Boulder

Community Hospital, Ms. Null’s former employer and the plan administrator of

an employee-welfare-benefits plan (Plan), as defined by ERISA, and (ii) Life

Insurance Company of North America (LINA) which issued life insurance and

long-term disability policies to defendant Community Hospital Association to

provide benefits to Boulder Community Hospital’s eligible employees under its

Plan. LINA made the decision to pay benefits to Ms. Null and to eventually

terminate those benefits.

For approximately twenty years, Ms. Null was employed as a registered

nurse by Community Hospital Association at the Boulder Community Hospital. 

In July 2002, Ms. Null applied for disability benefits, claiming severe, diffuse

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1 29 U.S.C. § 1132(a)(1)(B) provides that

A civil action may be brought —

(1) by a participant or beneficiary —

. . . . 

(B) to recover benefits due to him under the terms of his

plan, to enforce his rights under the terms of the plan, or

to clarify his rights to future benefits under the terms of 

the plan.

-3-

pain in various parts of her body. In August, she was diagnosed with persistent

myalgia, Aplt. App. Vol. 6 at 601382, and was later diagnosed with chronic pain

syndrome, id. Vol. 5 at 501213, and rheumatoid arthritis, id. Vol. 4 at 400959. 

In September 2000, LINA approved Ms. Null’s LTD application and a few

months later granted her waiver of life insurance premiums (WOP) for the

duration of her disability. Almost six years later, LINA terminated the LTD and

WOP benefits, based partly on information that one of Ms. Null’s treating

physicians, Dr. Robert Hynd, had released her to work.

Discussion

Standard of Review

After two unsuccessful appeals of the benefits determination, Ms. Null

brought this action under 29 U.S.C. § 1132(a)(1)(B) asserting that the termination

was arbitrary and capricious.1

 The district court began its analysis by determining

the standard of review. “When, as here, the district court’s determination of the

standard of review did not require it to resolve any disputed historical facts, we

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2 The district court made the unchallenged assumption, without deciding, that

LINA was a fiduciary with respect to the plan. We will also proceed under that

assumption.

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do not defer to its determination but decide de novo what the standard of review

should be.” Hancock v. Metro. Life Ins. Co., 590 F.3d 1141, 1146 (10th Cir.

2009). We review “a denial of benefits challenged under § 1132(a)(1)(B) . . .

under a de novo standard unless the benefit plan gives the administrator or

fiduciary discretionary authority to determine eligibility for benefits or to

construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S.

101, 115 (1989). 

Because the plan language failed to confer discretion upon LINA, as an

assumed plan fiduciary,2

 to determine whether a plan participant is disabled and

eligible for LTD benefits, LINA’s decision to terminate Ms. Null’s LTD benefits

is reviewed de novo. Id. Under that standard, the court’s role is to determine

whether LINA made a correct decision based upon the administrative record

before it when the decision was made. See Sperandeo v. Lorillard Tobacco Co.,

460 F.3d 866, 872 (7th Cir. 2006). 

In contrast to LINA’s lack of discretion when considering LTD benefits,

the life-insurance component of the plan afforded LINA discretion to decide

questions of eligibility for coverage or benefits under the plan and to make any

related findings of fact. Because LINA had this discretion, we review the

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3 Dr. Manolakas requested that Dr. Hynd reduce his opinion to writing, but

Dr. Hynd did not respond to that request.

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decision to terminate the WOP benefit under the arbitrary and capricious

standard, meaning that we are limited to determining whether the decision was

reasonable and made in good faith. Kellogg v. Metro. Life Ins. Co. of Am.,

549 F.3d 818, 825-26 (10th Cir. 2008). “We review a plan administrator’s

decision to deny benefits to a claimant, as opposed to reviewing the district

court’s ruling.” Holcomb v. Unum Life Ins. Co. of Am., 578 F.3d 1187, 1192

(10th Cir. 2009).

Hearsay

One of the reasons LINA cited as a basis upon which to terminate

Ms. Null’s benefits was a reported telephone conversation between its medical

director, Dr. Manolakas, and Ms. Null’s rheumatologist, Dr. Hynd, in which the

latter purportedly stated that Ms. Null was physically able to return to work.3

Ms. Null argues that LINA’s reliance on this alleged conversation is

impermissible as it is based upon multiple hearsay. 

The district court rejected this argument, citing cases holding that a plan

administrator is not a court of law and thus is not bound by the rules of evidence,

see, e.g., Speciale v. Blue Cross & Blue Shield Ass’n, 538 F.3d 615, 622 n.4

(7th Cir. 2008); Karr v. Nat’l Asbestos Workers Pension Fund, 150 F.3d 812, 814

(7th Cir. 1998), an issue not yet addressed in this circuit. The court also noted,

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however, that LINA’s disability decision was not based solely on Dr. Manolakas’s

conversation with Dr. Hynd and that, therefore, the fact that Dr. Hynd’s statement

may have been hearsay would not completely undermine LINA’s decision if,

based on other evidence, it ultimately proved correct. We agree that LINA’s

disability decision cannot be overturned simply because part of the evidence

relied upon to reach it may have been based on hearsay. Because the written

record included an opinion from Dr. Hynd that Ms. Null could return to work as

long as she continued taking her medication and observed standing and lifting

restrictions, Aplt. App. Vol. 3 at 300618, Ms. Null cannot prevail on her hearsay

argument. 

Proof of Ms. Null’s ability to do other work

Because LINA had paid LTD benefits to Ms. Null for more than

twenty-four months, the Plan provided that she would be considered disabled

“if [her] Injury or Sickness makes [her] unable to perform all the material duties

of any occupation for which [she] may reasonably become qualified based on

education, training or experience [the “any occupation” standard], or solely due to

Injury or Sickness, [she is] unable to earn more than 80% of [her] Indexed

Covered Earnings.” Aplt. App. Vol. 7 at 701503. The term “Sickness” is defined

as “a physical or mental illness.” Id. at 701504. 

Ms. Null argues that termination of her LTD benefits was incorrect because

there is no evidence in the administrative record of any occupations available to

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her, given her education, training, or experience, nor is there any proof that she

was able to obtain employment with a salary equal to 80% of her Indexed

Covered Earnings, or $3,620.61 per month. Id. Vol. 3 at 300674.

In holding that LINA rightfully terminated Ms. Null’s LTD benefits, the

district court found that

[t]he medical records in the administrative record dating from

October 2005 through May of 2006 do not show that plaintiff, by

reason of her rhematoid [sic] arthritis, arthralgia and/or myalgia, was

unable to perform all of the material duties of any occupation for

which plaintiff was or might have reasonably become qualified based

upon her education, training or experience or that solely due to her

arthritis, arthralgia and/or myalgia she was unable to earn more than

80% of her Indexed Covered Earnings.

Aplt. App. Vol. 7 at 701560. Ms. Null argues that medical records alone could

not establish her ability to perform different occupations and that the testimony of

a vocational expert was required to establish that fact. She asserts that it was

LINA’s obligation to secure such evidence. 

Normally, with an initial disability claim, the plaintiff has the burden of

establishing that she is unable to perform in any occupation. Torix v. Ball Corp.,

862 F.2d 1428, 1431 (10th Cir. 1988) (holding that a claimant is required “to

establish a physical inability to follow any occupation from which he can earn a

reasonably substantial income rising to the dignity of an income or livelihood,

although the income may not be as much as was earned prior to the disability”). 

There is authority, however, that the burden shifts when the plan administrator is

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4 We note that LINA’s life insurance policy requires the insured to prove

continuing disability in order to avoid termination of the WOP benefit. See Aplt.

App. Vol. 2 at 200247 The disability plan is more equivocal regarding the burden

to prove eligibility for continuation of disability benefits, noting only that “[w]e

will require continued proof of your Disability for benefits to continue.” 

Id. Vol. 7 at 701494.

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attempting to terminate benefits. See Gunderson v. W.R. Grace & Co. Long Term

Disability Income Plan, 874 F.2d 496, 499 & n.4 (8th Cir. 1989) (holding that

“before terminating benefits, the Plan should have obtained a vocational expert’s

opinion to determine if [claimant] is presently capable, in light of his physical

impairment, to perform ‘any occupation’” and observing that claimant met his

burden when he proved his disability initially); see also Quinn v. Blue Cross &

Blue Shield Ass’n, 161 F.3d 472, 476 (7th Cir. 1998) (requiring plan administrator

in termination case “to determine whether [claimant] was capable of performing

another job with a salary level similar to her current job”).4

 In either instance, at

least in this circuit, “the plan administrator has a fiduciary duty to the insured to

conduct an investigation and to seek out the information necessary for a fair and

accurate assessment of the claim.” Rasenack ex rel. Tribolet v. AIG Life Ins. Co.,

585 F.3d 1311, 1324 (10th Cir. 2009). Specifically with regard to this case, the

plan administrator is responsible for gathering enough evidence to demonstrate

that Ms. Null is able to perform other occupations. See Caldwell v. Life Ins. Co.

of N. Am., 287 F.3d 1276, 1290 (10th Cir. 2002). 

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In Caldwell, involving the same insurer defendant as the case at bar, this

court construed a definition of disability substantially identical to the one here. 

It considered, as a matter of first impression, whether a plan administrator must

consider vocational evidence when assessing a claim for disability benefits under

an “any occupation” standard.

The court noted, in general, that 

[d]etermining whether a claimant’s disability is so serious as to

prevent him from performing, under LINA’s standard, “any

occupation for which he is or may reasonably become qualified based

on his education, training, or experience,” requires a complicated

evaluation of a claimant’s abilities, skills, and education as well as

an assessment of the labor market in the claimant’s geographic

region. Vocational evidence -- most typically from a vocational

expert -- regarding how the employee’s impairment [a]ffects his

ability to perform jobs other than that held prior to the onset of

disability is often helpful in making this evaluation. 

Id. at 1289 (citation omitted).

Caldwell rejected the plaintiff’s contention that a plan administrator must

always consider vocational evidence when assessing a claim for disability

benefits under an “any occupation” standard, holding instead that 

whether a claims administrator must consider vocational or

occupational evidence in reaching its determination to deny a

claimant “any occupation” benefits depends on the circumstances of

the particular case and the terms of the benefits plan. If a claims

administrator can garner substantial evidence to demonstrate that a

claimant is, in fact, able to perform other occupations (within the

definition set out by the insurer) in the open labor market, then

consideration of vocational expert evidence is unnecessary.

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Id. at 1290. Thus the determination of whether vocational or occupational

assessment is required is decided on a case-by-case basis. Id. at 1289.

LINA argues that, because there was substantial medical evidence that

Ms. Null’s physical condition had improved, it was justified in terminating her

benefits on that basis alone, without reference to any vocational employment data. 

We disagree and hold that, given the circumstances of this case, Caldwell requires

“the consideration of vocational expert evidence,” id. at 1290.

The “circumstances” of this case include two categories of evidence: 

medical evidence favoring both parties, and vocational evidence, largely

favorable to Ms. Null. We will briefly summarize the medical evidence, which

the district court discussed in detail. Ms. Null was approved for LTD benefits

beginning in August 2000. By 2003, new medication was helping significantly,

and Ms. Null was anticipating returning to work. Aplt. App. Vol. 4 at 400935. 

In 2005, a Functional Capacity Evaluation determined that Ms. Null could

perform medium work for eight hours per day with a twenty-pound lifting

restriction. Id. Vol. 3 at 300678. 

In October 2005, Ms. Null’s primary care physician, Dr. Shaw, indicated

that her rheumatoid arthritis was stable, her pain control was adequate, and that

she could work, albeit for only three hours per day initially and ten to twelve

hours per week ultimately. Id. at 300666-67; 300646. In February 2006,

Dr. Shaw, noting Ms. Null’s joint inflammation, pain, and movement restrictions,

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5 Synovitis is the “[i]nflammation of a synovial membrane, especially that of

a joint[.]” Stedman’s Medical Dictionary 1773 (27th ed. 2000).

-11-

stated that she could work four hours per day with no repetitive bending,

kneeling, or lifting. Id. Vol. 3 at 300633. 

In March 2006, Dr. Hynd, Ms. Null’s rheumatologist, reported that, while

Ms. Null had problems with her lower back, her arthritis was in remission as long

as she remained on Humira and that nothing prevented her return to work, with

standing and lifting restrictions. Id. at 300618. 

After her benefits were denied, Ms. Null saw Dr. Raul Romea, a

rheumatologist with the Orthopedic Institute in Oklahoma City. Upon his initial

examination in December 2006, Dr. Romea noted Ms. Null’s history of

rheumatoid arthritis which he “[was] not convinced [was] active at the moment,”

and found no significant synovitis.5

 Id. Vol. 2 at 200416. Two months later, in

February 2007, however, Dr. Romea stated in writing that “Pam Null has

Rheumatoid arthritis that is in active stage. I recommend Ms. Null work

part-time sedentary for 4-6 hours a day.” Id. Vol. 3 at 300505. In April 2007,

Dr. Romea noted some synovitis in Ms. Null’s left ankle. Id. at 200360. By

December of that year, an orthopedic surgeon specializing in foot and ankle

surgery examined Ms. Null in connection with her “rheumatoid feet” and

recommended surgical treatment. Id. Vol. 2 at 200306.

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Ms. Null has also been under the care of Dr. Jacob Schwartz, a pain

management specialist, since early 2003. Her records show long-term use of

prescription narcotic pain medication beginning in 2003 with a ten-month course

of oxycontin. Id. at 200439. Dr. Schwartz then switched her to methadone which

she continued to take on a daily basis through the date LINA terminated her

benefits. Id. at 200436-439.

LINA cites cases in which courts have affirmed the denial or termination of

benefits without the benefit of vocational evidence. See, e.g., Morales-Alejandro

v. Med. Card Sys., Inc., 486 F.3d 693 (1st Cir. 2007); Duhon v. Texaco, Inc.,

15 F.3d 1302 (5th Cir. 1994); Block v. Pitney Bowes Inc., 952 F.2d 1450 (D.C.

Cir. 1992). We do not doubt that there are circumstances in which such evidence

is not necessary. Indeed, as we recognized in Caldwell, the matter is one for

case-by-case determination. Where there is persuasive medical evidence that no

disability exists, vocational evidence is considered unnecessary. In this case,

however, the medical evidence is contradictory and far less clear than LINA

suggests.

In addition to the medical evidence, the circumstances of this case include

extensive evidence, much of it generated by LINA itself, that Ms. Null is unable

to work at any occupation and is therefore disabled. After her benefits were

terminated, Ms. Null secured the opinion of a rehabilitation consultant who

reviewed her medical record, administered various occupational tests, and

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concluded that she “does not possess any significant transferrable job skills to

sedentary type of work.” Aplt. App. Vol. 2 at 200373. The consultant agreed

with the Social Security Administration “that Ms. Null is economically

unemployable and unable to return to the workforce in any occupation for which

she is qualified as a result of her age, education, work history, test scores,

medical information and limitations from her impairments.” Id. at 200374.

In addition, LINA’s own internal vocational specialists agree that Ms. Null

is unable to perform any occupation. In 2005, Margie Munoz, a vocational

rehabilitation counselor employed by LINA, concluded that, despite a functional

capacity evaluation that assessed her as able to perform full-time medium work

with a twenty-pound lifting restriction, she could find no suitable positions that

would meet Ms. Null’s skills, education, work history, and wage-replacement

requirements. Id. Vol. 3 at 300673. Later that year, the same evaluator again

concluded that, based on her lack of computer skills and education, there were no

jobs that would meet Ms. Null’s wage requirements. Id. Vol. 1 at 100140. Also

during 2005, Ms. Null’s primary care physician stated that she could not work. 

Id. at 100159.

In February 2006, LINA again commissioned an internal transferrable

skills assessment. This time, the assessor, Alan Ely, stated that the “[f]ile is not

a good potential RTW (return to work)” because the medical information and

limitations-and-restrictions documentation needed to be updated. Id. at 100124. 

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On May 1, 2006, presumably after having received the additional data, Mr. Ely

concluded that there were “no occupations that the claimant could reasonably be

expected to perform in the Oklahoma City labor market.” Id. at 100117. Some

31⁄2 months later, LINA terminated Ms. Null’s benefits.

None of this negative vocational information is discussed in LINA’s two

denials of Ms. Null’s appeals. While the district court referred to the evidence, it

did not analyze it with reference to the question of Ms. Null’s disability. As

mentioned, the court concluded that Ms. Null’s medical records did not show an

inability to perform any occupation or that, solely due to her impairments, she

could not earn more than 80% of her Indexed Covered Earnings. That conclusion,

however, was not based on evidence of available occupations, plaintiff’s

qualifications or work potential, or possible salaries in the relevant market. See

Caldwell, 287 F.3d at 1289. 

LINA could only avoid having to engage a vocational expert if it “could

garner substantial evidence to demonstrate that [Ms. Null] is, in fact, able to

perform other occupations . . . in the open labor market.” See id. LINA has not

garnered any information supporting such a conclusion; in fact, the weight of the

evidence is to the contrary. Ignoring evidence relevant to a decision or failing to

consider all the evidence in the record can lead to a conclusion that a benefits

determination is arbitrary and capricious, see id. at 1284-86—that is, even more

than just incorrect, which is the standard for de novo review. See Gaither v.

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Aetna Life Ins. Co., 388 F.3d 759, 773 (10th Cir. 2004) (holding that “fiduciaries

cannot shut their eyes to 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”). Given that the Plan’s operational definition of disability is completely

dependent on whether a claimant can work at any occupation given his or her

particular circumstances, LINA cannot base its decision that Ms. Null is not

disabled solely on the basis of improvement in her medical condition. 

LINA argues that, because disability has to be based on “injury or

sickness,” and because Ms. Null’s condition has improved, she cannot be disabled

(presumably because she is no longer “sick”). We acknowledge that there is

evidence that Ms. Null’s arthritis had improved for a time. There is also

evidence, however, that it became active again shortly after Dr. Hynd noted the

remission. In addition, Ms. Null continued to see her pain management specialist,

Dr. Schwartz, and there is no evidence that her pain had lessened; in fact, she

continued to take methadone for generalized pain. Further, if a plaintiff meets her

burden, as Ms. Null has done here with her rehabilitation consultant’s evidence

that no jobs are available to her, “recovery may not be denied on the basis of

overly restrictive interpretations of the plan’s language.” Torix, 862 F.2d at 1431. 

“An ERISA fiduciary presented with a claim that a little more evidence

may prove valid should seek to get to the truth of the matter.” Gaither, 388 F.3d

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at 774-75; see also Quinn, 161 F.3d at 476 (reversing and remanding a benefits

determination where, although the administrator was not obligated to “undergo a

full-blown vocational evaluation of [claimant’s] job[,]” she did need to “make a

reasonable inquiry in[to] the types of skills [claimant] possess[ed] and whether

those skills may be used at another job that can pay her the same salary range as

her [current] job”).

Conclusion

As we held in Caldwell, we decide on a case-by-case basis whether a

vocational or occupational assessment is required to resolve a challenge to a

benefits determination. We find this case to be one requiring such evidence. 

We therefore REVERSE the district court’s determination as to Ms. Null’s LTD

and WOP benefits claims and REMAND to the district court with instructions that

it REMAND the matter to the LINA claims administrator for further findings of

fact pursuant to the Plan’s standard for “any occupation” disability. LINA’s

motion to strike new argument in appellant’s reply brief is DENIED as moot. 

In view of our remand, we DENY Ms. Null’s request for attorney’s fees and

costs, presumably made under § 1132(b)(1), as unripe because several of the

factors used in determining the appropriateness of such an award cannot be

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ascertained until LINA redetermines Ms. Null’s right to benefits. See Graham v.

Hartford Life & Accident Ins. Co., 501 F.3d 1153, 1163 (10th Cir. 2007).

Entered for the Court

Jerome A. Holmes

Circuit Judge

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