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NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

KEVIN MCCANN, M.D.,

Plaintiff,

v.

UNUM PROVIDENT, et. al. 

Defendants.

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: Civil Action No. 11-3241 (MLC)

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: MEMORANDUM OPINION

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:

BONGIOVANNI, Magistrate Judge

This matter comes before the Court upon Plaintiff Kevin McCann’s (“Plaintiff”) motion 

to strike certain documents from the administrative record submitted by Defendant Unum 

Provident (“Defendant”) [Docket Entry No. 61]. Defendant opposes Plaintiff’s motion and 

cross-moves to supplement the administrative record with said documents [Docket Entry No. 

65]. The Court has fully reviewed all of the papers submitted in support of and in opposition to 

both motions and has considered same without oral argument pursuant to L.Civ.R. 78.1(b). For 

the reasons set forth more fully below, Plaintiff’s motion to strike is GRANTED and Defendant’s 

cross-motion to supplement is DENIED.

I. Background and Procedural History

The Court and the parties are familiar with the facts underlying this matter and, as such, 

the Court shall not restate the facts at length herein. This is a disability insurance case in which 

the Defendants terminated the Plaintiff’s disability benefits. Plaintiff originally brought this 

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action against both Unum Provident and Hartford Life and Accident Insurance Company

(“Hartford”). (See Compl. at ¶2-3). Hartford was subsequently terminated from this matter after 

the District Court entered summary judgment in Hartford’s favor. [Docket Entry No. 53]. 

Therefore, the only remaining Defendant in Plaintiff’s case is Unum Provident. Plaintiff’s 

complaint alleges that he is still disabled and unable to perform his duties as an interventional 

radiologist. (Compl. at ¶9). The complaint alleges that Plaintiff suffered from hypertension

diagnosed in 2005, and sleep apnea, diagnosed in 2006 which aggravated his hypertension. 

Plaintiff was later diagnosed in April 2007 with an aneurysm in his ascending aorta (Id. at ¶17). 

Plaintiff consulted Dr. Joseph Coselli, a cardiothoracic surgeon, who advised him that to 

continue working as an interventional radiologist would be harmful to his health because of the 

“stressful nature of his occupation”. (Id. at ¶18). Dr. Coselli further classified Plaintiff as fully 

disabled on March 10, 2008. (Id. at ¶19).

On March 10, 2008 Defendant began providing full disability benefits. (Id. at ¶31). On 

January 10, 2009, Defendant notified the Plaintiff that his disability status had been confirmed.

(Id.) However, on December 23, 2009, Defendant terminated Plaintiff’s benefits; a decision 

which the Plaintiff appealed. (Id. at ¶¶34-35). During the appeal, Defendant enlisted several 

doctors to review the file, including one Dr. Paul W. Sweeney, M.D. F.A.C.C. On September 7, 

2010, Dr. Sweeney wrote to Dr. Coselli requesting clarification of his prior opinion regarding 

Plaintiff’s disability. Plaintiff’s appeal was denied by Defendant on September 20, 2010 at

4:21pm without Dr. Coselli’s response, which was received approximately 45 minutes later that 

same day. Defendant reviewed Dr. Coselli’s clarification letter and subsequently sent another 

letter to Plaintiff on September 29, 2010 supplementing its decision.

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II. Arguments

Plaintiff has moved to strike the documents Bate-stamped as PLA-CL-IDI-002486 to 

002527 from the administrative record. There are, inter alia, two specific documents on which

Plaintiff focuses. The first is Dr. Coselli’s September 20, 2013 letter responding to Dr. 

Sweeney’s September 7, 2010 letter, clarifying his opinion on Plaintiff’s disability status. The 

second is Defendant’s September 29, 2010 letter to Plaintiff’s attorney supplementing its 

decision to deny Plaintiff’s appeal. 

Plaintiff claims Defendant’s official decision was made as of 4:21pm on September 20, 

2010 and that any documents considered or issued thereafter should be stricken from the 

administrative record. (Plaintiff’s Brief in Support at 3; Docket Entry No. 61-1). Plaintiff relies 

on the Third Circuit case of Mitchell v. Eastman Kodak Co., 113 F.3d 433 (3d Cir. 1997), which 

held that the administrative record “consists of that evidence that was before the administrator 

when he made the decision being reviewed.” Mitchell, 113 F.3d at 440. Similarly, where the 

court is reviewing a claim determination de novo, Plaintiff asserts that , under Viera v. Life Ins 

Co. of North America, 871 F.Supp.2d 379 (E.D.Pa. 2012) the Court “should rely substantially on 

the administrative record, but only allow supplementation of evidence when there is a clear 

inadequacy in the record.” Viera, 871 F. Supp. 2d at 388. Plaintiff submits that no clear 

inadequacy exists and as such, the documents should not be considered to supplement the 

administrative record. 

Conversely, Defendant contends that “[i]t is the claims administrator, who determines 

when the administrative record is closed.” (Defendant’s Brief in Opposition at 21; Docket Entry 

No. 65-1). As such, Defendant submits that September 29, 2010 should close the administrative 

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record because Defendant “issued a letter dated September 29, 2010, supplementing its 

September 20, 2010, determination.” (Id. at 21-22). Defendant relies on case law out of the 

Fifth Circuit holding that the administrative record “consists of relevant information made 

available to the administrator prior to the complainant’s filing of a lawsuit and in a manner that 

gives the administrator a fair opportunity to consider it.” (Id. at 22, quoting Vega v. Nat’l Life 

InsServs., Inc., 188 F.3d 287 at 300 (5th Cir. 1999)). Defendant additionally relies on Sample v. 

Shalala, 999 F.2d 1138 (7th Cir. 1993) which permitted a letter to be part of the administrative 

record even though it was written subsequent to the Administrative Law Judge’s decision 

because “it was based on information that was part of the administrative record and that was 

available prior to the ALJ’s decision[.]” (Id. at 23, quoting Sample, 999 F.2d at 1144). Lastly, 

Defendant cites to Fahringer v. Paul Revere Ins. Co., 317 F.Supp.2d 504, 512 n.2 (D.N.J. 2003) 

which allowed depositions conducted subsequent to the final decision to be allowed into the 

“relevant record” because the depositions were limited to “contents and interpretation of the 

record.” (Id. at 23).

As to whether the document in question should be considered “new evidence”, Defendant 

further argues that Dr. Coselli’s September 20, 2010 letter “is not new evidence but is based 

upon medical information that was reviewed and considered by the claims administrator 

contemporaneous with when it rendered its final determination and in fact, formed part of the 

final determination as relayed to [Plaintiff’s] counsel in [Defendant’s] correspondence dated 

September 29, 2010.” (Id. at 23-24). Defendant maintains that Plaintiff was “put on notice that 

[Defendant] had sent correspondence to his treating physician, Dr. Coselli to obtain clarification 

[of his opinion]” and that such letter is merely a response to that request. (Id. at 24). Therefore, 

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Defendant moves this Court to include these documents as part of the administrative record. 

Alternatively, Defendant requests that the Court supplement the record with these 

documents when exercising Its de novo review. Defendant contends that it is well-settled that 

courts may “look beyond the evidence presented to the administrator at the time the administrator 

rendered its final determination” when evaluating a claim determination under a de novo standard 

of review. (Id. at 30, citing Jones v. United States Life Ins. Co., 12 F. Supp. 2d 383, 388 (D.N.J. 

1998) and Luby v. Teamsters Health, Welfare, & Pension Trust Funds, 944 F.2d 1176 (3d Cir. 

Pa. 1991)). Finally, Defendant states that under Viera, courts may look to supplement the record 

when it comports with the purposes of ERISA. (Id. at 27). Viera held that “[w]hen considering 

whether to permit evidence not before the plan administrator, the reviewing court should balance 

the...purposes of ERISA and exercise its discretion...when circumstances clearly establish that 

additional evidence is necessary to conduct an adequate de novo review of the benefit decision.” 

Viera, 871 F. Supp. 2d at 387 (internal citations and quotation marks omitted). Defendant 

argues that the inclusion of the letters would not prejudice Plaintiff and that the Court should 

consider the responsive nature of the letters, as well as the relatively short timeframe in which 

they were received. (Id. at 28). As such, Defendant submits that, should the Court consider the 

documents to be outside the timeframe of the administrative record, the Court instead 

supplement the record when reviewing Plaintiff’s claim de novo. 

In his reply, Plaintiff reiterates his position that the issue here is discrete, and that it is the 

“letter dated September 20, 2010 that triggered Plaintiff’s right to judicial review, and that is the 

subject of this Court’s review.” (Plaintiff’s Brief in Reply at 2; Docket Entry No. 67). Plaintiff 

claims that Defendant’s September 20th determination was in no way “left subject to 

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reconsideration” and cites to the language of same. (Id.) Plaintiff notes that the September 20th

letter stated, in pertinent part, that “[Defendant] has completed the appeal review on your client 

[Plaintiff’s] Individual Disability claim” and “after a full, fair and impartial appellate review, the 

determination to deny further benefits is upheld” and furthermore that “if your client disagrees 

with this decision, you have a right to bring a civil suit[.]” (Id.) (internal citations omitted). 

Plaintiff distinguishes Defendant’s case law in Vega and Sample as persuasive rather than 

mandatory authority, as well as inapposite, arguing that neither case dealt with an administrator 

attempting to supplement the record, but instead involved circumstances where the claimant 

sought to admit evidence into the record. (Id. at 3). Plaintiff further argues that Vega has been 

rejected by other jurisdictions and that Sample did not involve a claim brought pursuant to 

ERISA. (Id. at 4). Lastly, Plaintiff distinguishes Defendant’s reliance on Fahringer as merely a 

footnote in that opinion which included none of the relevant context in which the depositions 

were permitted into the relevant record. (Id. at 5). As such, Plaintiff submits that the law in the 

Third Circuit is clear that the administrative record closes upon the final determination of the 

claim sought. 

In response to Defendant’s argument that the documents be considered by the Court in Its 

de novo review of the claim determination, Plaintiff argues that no “clear inadequacy” exists in 

this case as required under Viera. (Id. at 6). Plaintiff cites to Quesinberry v. Life Ins. Co. of 

North America, 987 F.2d 1017 (4th Cir. 1993), relied upon by Viera, for the reasoning that “if the 

evidence is cumulative of what was presented to the plan administrator, or is simply better 

evidence than the claimant mustered for the claim review, then its admission is not necessary[.]” 

(Id. at 6-7, citing Quesinberry, 987 F.2d at 1027 (internal quotations omitted)). Therefore, 

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Plaintiff contends that the Court not consider these materials in Its de novo review. 

III. Analysis

In the Third Circuit, the administrative record on a claim brought pursuant to ERISA 

“consists of that evidence that was before the administrator when he made the decision being 

reviewed.” Mitchell v. Eastman Kodak Co., 113 F.3d 433, 440 (3d Cir. 1997). See also 

Fahringer v. Paul Revere Ins. Co., 317 F. Supp. 2d 504, 512 (D.N.J. 2003) (finding that the 

administrative record includes all evidence submitted as of the final determination date); 

Abnathya v. Hoffmann-La Roche, Inc., 2 F.3d 40 (3rd Cir. 1993), abrogated on other grounds by 

Miller v. Am. Airlines, Inc., 632 F.3d 837 (3rd Cir. 2011) (disallowing medical records submitted 

after the final determination was made). However, the Court has the ability to supplement and 

consider evidence outside the administrative record when reviewing the claim de novo. Luby v. 

Teamsters Health, Welfare and Pension Trust Funds, 944 F.2d 1176, 1185 (3d Cir. 1991). 

“When considering whether to permit evidence not before the plan administrator, the reviewing 

court should balance the...purposes of ERISA and exercise its discretion...when circumstances 

clearly establish that additional evidence is necessary to conduct an adequate de novo review of 

the benefit decision.” Viera, 871 F. Supp. 2d at 387, quoting Quesinberry, 987 F.2d at 1025

(internal quotations omitted). Further, courts “should rely substantially on the administrative 

record, but only allow supplementation of evidence when there is a clear inadequacy in the 

record.” Viera, at 388. 

The Court finds that the law in this Circuit is clear on this issue: documents not available 

to an administrator at the time the final determination is made are not part of the administrative 

record. Although Dr. Coselli’s letter was received only 45 minutes after the determination was 

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made, the fact remains that the determination was made without reference or reliance upon this 

later-received letter. Furthermore, even though Dr. Coselli’s letter was responding to 

Defendant’s request for him to clarify his opinion, Defendant still made its determination without 

yet receiving the letter. Indeed, had Dr. Coselli failed to ever respond to Defendant’s request for 

clarification, presumably all parties would agree that September 20, 2010 at 4:20pm was the 

close of the administrative record. Moreover, Defendant’s own letter belies its argument, having 

stated that the review was complete, that the appeal was denied, and that Plaintiff had the right to 

bring suit. (Plaintiff’s Brief in Reply, supra at 2). Simply because Defendant voluntarily sent 

another letter on September 29th reiterating its decision in light of Dr. Coselli’s clarification 

letter, such an action does not change the final determination date and hence, the close of the 

administrative record. “[A] reviewing court must focus on the evidence available to the plan 

administrators at the time of their decision and may not admit new evidence or consider post hoc 

rationales.” King v. Hartford Life and Accident Ins. Co., 414 F.3d 994, 999 (8th Cir. 2005). 

Additionally, the Court finds that the holdings in Vega and Sample are indeed inapposite

to the facts of this case. The Fifth Circuit case of Vega has been rejected by other jurisdictions 

and has indeed been questioned by the Fifth Circuit itself. See Plaintiff’s Brief in Reply at 4, 

citing Majeski v. Metropolitan Life Ins. Co., 590 F.3d 478 (7th Cir. 2009) and Keele v. JP 

Morgan Chase Long Term Disability Plan, 221 Fed. Appx. 316 (5th Cir. 2007). Likewise, 

Sample did not involve an insurance claim brought pursuant to ERISA. 

Defendant also relies on Fahringer for the proposition that the administrative record may 

be supplemented with evidence obtained subsequent to the final determination. However, the 

extent of supplementation under Fahringer is limited to a footnote in which the court explains

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that depositions conducted subsequent to the determination, but pursuant to the Magistrate 

Judge’s Order in the existing litigation, were to be allowed in as part of the relevant record. 

Fahringer, at 512 n.2. The Court finds that a similar exception is neither applicable nor 

warranted in the instant case. As such, the documents date stamped PLA-CL-IDI-002486 to 

00-2527 are stricken from the administrative record. 

The Court notes that the parties agree that the District Court’s review of this matter is to 

be conducted de novo. With respect to Defendant’s argument that the documents be considered 

by the Court in the scope of Its de novo review, the Court finds that this issue is one to be 

determined by the District Court. While this Court has stricken the aforementioned documents 

from the administrative record, same are still part of the record of this litigation and, as such, 

may be considered by the District Court if It so chooses. Therefore, at the time of trial, if the 

parties deem it necessary, the issue may be raised as to what weight, if any, should be accorded to 

those excluded documents. 

IV. Conclusion

For the reasons set forth above, Plaintiff’s motion to strike documents from the 

administrative record is GRANTED and Defendant’s cross-motion to supplement the record with 

same is DENIED. An appropriate Order follows.

Dated: October 11, 2013 

s/ Tonianne J. Bongiovanni

Tonianne J. Bongiovanni

United States Magistrate Judge

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