NOT PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

____________ 

No. 18-1162 

____________ 

THOMAS P. KELLY, JR., 

 Appellant 

v. 

THE PENN MUTUAL LIFE INSURANCE COMPANY; 

RELIANCE STANDARD LIFE INSURANCE COMPANY 

____________ 

On Appeal from the United States District Court 

for the District of New Jersey 

 (D.C. No. 2:09-cv-02478) 

District Judge: Honorable Katharine S. Hayden 

____________ 

Submitted Under Third Circuit L.A.R. 34.1(a) 

February 12, 2019 

Before: HARDIMAN, SCIRICA, and COWEN, Circuit Judges. 

(Filed: February 28, 2019) 

____________ 

OPINION*

____________ 

____________ 

 *

 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 

does not constitute binding precedent. 
2 

HARDIMAN, Circuit Judge. 

 This appeal arises under the Employee Retirement Income Security Act of 1974 

(ERISA), 88 Stat. 829, as amended, 29 U.S.C. § 1001 et seq. The District Court held that 

Thomas P. Kelly, Jr. was entitled to 24 months’ worth of disability benefits because he 

could not perform his own occupation. The Court later found that Kelly could perform 

some occupation, so it denied his request for more benefits. Kelly now appeals three 

orders entered by the District Court. We will affirm. 

I

1

 We begin by summarizing the facts and prolix procedural history of this case, 

which began in November 2005 when Kelly injured his spine in a car accident. About six 

months after his accident, Kelly applied for disability benefits under an ERISA plan (the 

Plan) sponsored by his employer, Penn Mutual Life Insurance Company, and funded and 

administered by Reliance Standard Life Insurance Company. See Kelly v. Reliance 

Standard Life Ins. Co., 2011 WL 6756932, at *2 (D.N.J. Dec. 22, 2011). 

 Reliance used the Plan’s definition of disability to evaluate Kelly’s application. 

Under the Plan, to receive benefits for the first 24 months of disability, a participant must 

show he cannot perform his “regular occupation.” App. 258. The standard then becomes 

harder to satisfy, as the participant must show he cannot perform “any occupation . . . that 

[his] education, training[,] or experience will reasonably allow.” Id.

 1 The District Court had jurisdiction under 29 U.S.C. § 1132(e). We have 

jurisdiction under 28 U.S.C. § 1291. Our review of the District Court’s summary 

judgment is plenary, and we apply the same standard as the District Court. E.g., Blunt v. 

Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014). 
3 

 Reliance denied Kelly’s initial claim after determining that he was capable of 

performing his “regular occupation.” Kelly appealed, and in the first of three remands to 

Reliance, the District Court held that Kelly could offer more information supporting his 

claim because Reliance’s administrative record was deficient. See Kelly Br. 15; Kelly v. 

Reliance Standard Life Ins. Co., 2015 WL 3448033, at *1 (D.N.J. May 28, 2015). Kelly 

then provided supporting information, but he also claimed for the first time that he was 

disabled under the more stringent “any occupation” standard, which applies only to those 

seeking more than 24 months’ benefits. 

Reliance denied Kelly’s claim a second time, and on December 22, 2011, the 

District Court again found Reliance erred. See Kelly, 2011 WL 6756932, at *3, *5–12. 

This time, the Court held that Reliance had been arbitrary and capricious in reviewing 

medical evidence and analyzing Kelly’s regular occupation. Id. at *5–11. So the Court 

awarded Kelly 24 months’ benefits, but because Reliance had never evaluated whether 

Kelly was entitled to more benefits under the “any occupation” standard, it remanded that 

claim for further review. On this second remand, Kelly sought over 60 months’ benefits. 

Reliance conceded it owed Kelly 24 months’ benefits under the “regular occupation” 

standard but insisted it still needed to investigate whether Kelly satisfied the “any 

occupation” standard. 

Kelly appealed to the District Court, arguing that the Court had already (in its 

December 22, 2011 order) found Reliance owed him benefits under the “any occupation” 

standard. In a May 29, 2015 order, the Court disagreed. See Kelly, 2015 WL 3448033, at 

*2–4. It said it had found no such thing and that, in any case, it would have been 
4 

powerless to do so. Id. at *2–3. The Court thus remanded Kelly’s claim to Reliance for a 

third and final time. 

 On this final remand, Reliance denied Kelly’s claim for more than 24 months’ 

benefits under the “any occupation” standard. And on cross-motions for summary 

judgment, the District Court granted summary judgment to Reliance and Penn Mutual on 

December 31, 2017.2

 App. 53–54. It held Reliance’s decision was not arbitrary and 

capricious because the record before Reliance supported the finding that Kelly could 

perform at least full-time sedentary work. App. 50. 

II 

 In this appeal, Kelly challenges: (1) the District Court’s December 22, 2011 order 

awarding 24 months’ benefits and remanding to Reliance; (2) its May 29, 2015 order 

declining to award benefits under the “any occupation” standard; and (3) its December 

31, 2017 order upholding Reliance’s denial of “any occupation” benefits. He makes 

essentially two arguments. First, he claims the District Court should have awarded him 

55 months’ benefits instead of remanding. Second, he asserts that on remand, Reliance 

should have granted him benefits under the “any occupation” standard through the end of 

his coverage. We address each argument in turn. 

A 

 Kelly first argues that once the District Court held that he could not perform his 

“regular occupation,” it followed that he could not perform “any occupation” through the 

 2

 Kelly did not oppose Penn Mutual’s motion for summary judgment, App. 53, and 

his arguments on appeal do not mention Penn Mutual. 
5 

date of its order (December 22, 2011). And if he was disabled through the order date, 

Reliance would owe him 55 months’ benefits. 

 This argument suffers from a logical flaw. Just because the District Court found 

Kelly could not perform his regular occupation does not mean it found Kelly could 

perform no occupation. Kelly’s regular job is merely one of many jobs that his 

“education, training[,] or experience [would] reasonably allow.” App. 258. Similarly, 

while Reliance was arbitrary and capricious in deciding Kelly could perform his regular 

job, it does not follow that Reliance also erred when it determined that Kelly failed to 

show he could not perform “any occupation.” See Conkright v. Frommert, 559 U.S. 506, 

517–19 (2010); Miller v. Am. Airlines, Inc., 632 F.3d 837, 856 (3d Cir. 2011) (“[W]here 

benefits are improperly denied at the outset, it is appropriate to remand to the 

administrator for full consideration of whether the claimant is disabled.”). Thus, the 

District Court properly remanded Kelly’s “any occupation” claim to Reliance.3

 

B 

 Kelly next argues that even if the latest remand were valid, Reliance should have 

awarded him benefits under the “any occupation” standard. This argument proceeds in 

two parts. First, Kelly requests a heightened standard of review because Reliance not 

only has a financial conflict of interest (as both funder and administrator of the Plan), but 

is also procedurally biased against him. Second, Kelly asserts that under this heightened 

 3

 Contrary to Kelly’s argument, McCann v. Unum Provident, 907 F.3d 130 (3d 

Cir. 2018), does not hold otherwise. McCann excused a claimant’s failure to exhaust 

administrative remedies. See id. at 151–52. Exhaustion is not at issue here. 
6 

standard, Reliance’s evaluation of the medical evidence was haphazard and incorrect. He 

claims Reliance cherry-picked evidence and erred in finding Kelly could work a job that 

his “education, training[,] or experience [would] reasonably allow.” App. 258. 

 Neither part of this argument is persuasive. We review benefit denials under the 

deferential “arbitrary and capricious” standard where, as here, a plan grants its 

administrator discretionary authority. Fleisher v. Standard Ins. Co., 679 F.3d 116, 121 & 

n.2 (3d Cir. 2012); App. 163 (Reliance Plan). Conflicts of interest, whether financial or 

procedural, are merely a factor within our deferential analysis. See Dowling v. Pension 

Plan for Salaried Emps. of Union Pac. Corp. & Affiliates, 871 F.3d 239, 250–52 (3d Cir. 

2017), cert. denied, 138 S. Ct. 1032 (2018). 

 We see no reason to reject Reliance’s assessment of Kelly’s medical condition. 

The record contains ample evidence that Kelly could perform an occupation allowed by 

his education, training, or experience. Four independent doctors conducting three 

separate reviews of Kelly’s file have concluded Kelly is not totally disabled. Most 

recently, as part of its appeals process on remand, Reliance referred Kelly’s file to a 

physician specializing in internal medicine. After reviewing 110 pages of exam reports 

and laboratory results, she determined Kelly has had “no physical limitations or 

restrictions” since May 2008. App. 936. Indeed, as Reliance notes, public records show 

Kelly earned admission to the New Jersey bar and co-founded a law firm during his time 
7 

of purported total disability. Thus, Reliance was not arbitrary and capricious in declining 

to find Kelly disabled under its “any occupation” standard.4

Kelly suggests that his receipt of Social Security Disability Insurance (SSDI) 

benefits proves otherwise. But while an SSDI benefits decision might be relevant to an 

ERISA plan administrator, a plan’s benefits policies may differ from those that govern 

Social Security disability benefits. See generally 42 U.S.C. §§ 416(i), 423(d); 20 C.F.R. 

§ 404.1505. Thus, Kelly concedes that SSDI decisions do not bind Reliance because 

Reliance has not incorporated SSDI policies into its Plan. Reply Br. 21; see Moats v. 

United Mine Workers of Am. Health & Ret. Funds, 981 F.2d 685, 689 (3d Cir. 1992). 

And even on its face, Kelly’s SSDI decision hardly helps his ERISA case, because the 

Social Security Administration found Kelly can perform some sedentary work. App. 

1022. 

* * *

For the reasons stated, we will affirm the orders of the District Court. 

 4

 To the extent there are gaps in the record, they result from Kelly sandbagging 

Reliance. Kelly evaded Reliance’s repeated requests for updated medical records, 

information from his successful SSDI hearing, and more. See, e.g., App. 902–04 

(Reliance’s June 5, 2015 letter to Kelly); App. 957–58 (Reliance’s July 22, 2015 followup); App. 960–63 (Kelly’s September 4, 2015 response).