Javery v. Lucent Technologies, Inc. Long Term Disability Plan for Management or LBA Employees

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0023p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
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NILRATAN JAVERY,
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Plaintiff-Appellant,
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No. 12-3834
v.
,
>
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DISABILITY PLAN FOR MANAGEMENT OR LBA -
LUCENT TECHNOLOGIES, INC. LONG TERM
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EMPLOYEES,
Defendant-Appellee. N
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:09-cv-00008—Gregory L. Frost, District Judge.
Argued: December 3, 2013
Decided and Filed: February 3, 2014
Before: COLE and CLAY, Circuit Judges; BERTELSMAN, District Judge.*

_________________

COUNSEL
ARGUED: Tony C. Merry, LAW OFFICES OF TONY C. MERRY, LLC,
Worthington, Ohio, for Appellant. James M. Stone, JACKSON LEWIS LLP, Cleveland,
Ohio, for Appellee. ON BRIEF: Tony C. Merry, LAW OFFICES OF TONY C.
MERRY, LLC, Worthington, Ohio, for Appellant. James M. Stone, Daniel L.
Messeloff, Michelle T. Hackim, JACKSON LEWIS LLP, Cleveland, Ohio, for Appellee.
_________________

OPINION
_________________

CLAY, Circuit Judge. Plaintiff Nilratan Javery appeals the judgment of the
district court in favor of Defendant, Lucent Technologies, Inc. Long Term Disability

*
The Honorable William O. Bertelsman, United States District Judge for the Eastern District of
Kentucky, sitting by designation.

1
No. 12-3834 Javery v. Lucent Tech., Inc. Long Term Disability Plan Page 2

Plan for Management or LBA Employees (“the Plan”), denying Plaintiff’s claim for
disability benefits under the Employee Retirement Income Security Act (“ERISA”),
29 U.S.C. § 1001 et seq.

Plaintiff contends that the Plan wrongfully denied his application for long term
disability benefits. In support of his claim, Plaintiff submitted opinions and evaluations
from several medical doctors and psychiatrists, the majority of whom assert that Plaintiff
was unable to perform his job as a result of his physical and mental illnesses. Plaintiff
also offered other evidence including his successful application for Social Security
disability benefits to show that he was “disabled” as that term is defined in the Plan.
Defendant argues that Plaintiff has not established by a preponderance of the evidence
that he was “disabled” at the relevant time. Additionally, Defendant contends that
Plaintiff should be judicially estopped from pursuing his ERISA claim because Plaintiff
failed to disclose the claim in his Chapter 13 personal bankruptcy action.

On appeal, Plaintiff requests this Court, on de novo reveiw, to reverse the order
of the district court denying Plaintiff long term disability benefits. For the reasons set
forth below, we REVERSE the order of the district court, and REMAND to the district
court with instructions that the district court enter judgment in favor of Plaintiff on the
administrative record.

BACKGROUND

Plaintiff began working for Lucent Technologies, Inc. (“Lucent”) as a software
engineer in 1998. As an employee of Lucent, Plaintiff was a participant in Lucent’s
ERISA qualified welfare benefit plan: the Lucent Technologies Inc. Long Term
Disability Plan for Management or LBA Employees (“the Plan”). The Plan offers long
term disability benefits to participants who meet its defined requirements for eligibility.
Lucent delegated the Plan’s administration to a third party, Connecticut General Life
Insurance Company (“CIGNA” or “the plan administrator”).

Plaintiff’s job as a software engineer required him to sit continuously for eight
to ten hours each day. Plaintiff reported that the work was “fast-paced and it involved
No. 12-3834 Javery v. Lucent Tech., Inc. Long Term Disability Plan Page 3

supporting [Lucent] employees and several consultants round the clock . . . . in excess
of 70–75 hours per week over 5–6 months straight.” (Admin. R. 556) It was also a
technically and intellectually demanding job which required knowledge of “[s]oftware
based tools: Progress and Oracle database, Unix Operating system, Unix based 4GL
languages such as awk, shell, scripting, perl.” (Admin. R. 521)

In early November 2002, Plaintiff first reported experiencing back pain. His
family doctor, Dr. Dorado, prescribed medicine and additional testing, and
recommended that Plaintiff take some time off work. Plaintiff took two weeks off in
November 2002, and then returned to work at Lucent. In January 2003, after Lucent
transferred Plaintiff from Ohio to Illinois, Plaintiff sought treatment from another
physician, Dr. Jay Seymour. Plaintiff’s lower back pain worsened. In May 2005, Dr.
Seymour advised Plaintiff to stop working. Plaintiff stopped working on May 19, 2005.

Lucent approved and paid short term disability benefits from May 19, 2005 until
those benefits expired on November 25, 2005. Lucent then notified the plan
administrator that it believed Plaintiff might be eligible for long term disability benefits
under the Plan. The plan administrator contacted Plaintiff and invited him to apply for
long term disability benefits.

Under the terms of the Plan, a participant is entitled to receive a monthly
disability benefit from the Plan if he or she is “disabled,” which the Plan defines as
follows:

The term “Disability” or “Disabled” shall mean, for the one year period
commencing immediately after the 26 weeks of Short Term Disability
Benefits have been paid, that the Eligible Employee is prevented by
reason of such disability, other than accidental injury arising out of and
in the course of employment of the Company, from engaging in his or her
occupation or employment at the Company, for which the eligible
employee is qualified, based on training, education or experience.
Thereafter, an Eligible Employee shall continue to be considered as
disabled under the Plan if, in the sole opinion of the Claims
Administrator, the Eligible Employee is determined to be incapable of
performing the requirements of any job for any employer (including non-
No. 12-3834 Javery v. Lucent Tech., Inc. Long Term Disability Plan Page 4

[Lucent] employment), (as a management or LBA employee), for which
the individual is qualified or may reasonably become qualified by
training, education or experience, other than a job that pays less than
60% of the Eligible Employee’s Eligible Pay that would have been in
effect on the day preceding the day that the Eligible Employee’s Short
Term Disability Benefits ceased.

(Admin. R. 005)

We note at the outset that only the first definition is relevant to our resolution of
the present case: Plaintiff is entitled to disability benefits if he was “prevented by reason
of . . . disability . . . from engaging in [his] occupation or employment at [Lucent].” As
discussed below, when Plaintiff submitted his application for long term disability
benefits on or about November 25, 2005, the plan administrator evaluated Plaintiff’s
eligibility for benefits “for the one year period commencing immediately after the
26 weeks of Short Term Disability Benefits have been paid,” and denied Plaintiff’s
application. Though this case has a complicated procedural history, the dispute at the
heart of the matter is whether or not the plan administrator’s denial of Plaintiff’s
application at that time was proper. In other words, notwithstanding the fact that it is
now 2014, the relevant time period is still November 25, 2005 through November 25,
2006, and the relevant inquiry is whether Plaintiff was unable to work as a software
engineer at that time.1

Plaintiff submitted his application for long term disability benefits on or around
November 25, 2005. In his application, he described his disability as follows:

[A]t work I have suffered severe aggravation to my degenerative
diseased disc at L4-L5 and L5-S1. This degeneration is progressing and

1
Because the plan administrator denied Plaintiff disability benefits in the first instance, the plan
administrator never made a determination regarding Plaintiff’s “continued” disability. Accordingly,
Plaintiff’s eligibility for disability benefits after November 25, 2006 is not an issue before this Court. In
light of our decision in this case, we expect that the plan administrator will be asked to make such a
determination in the near future.
In addition, although Plaintiff has submitted evidence of his medical condition beyond November
25, 2006, we only consider such evidence to the extent that it speaks to Plaintiff’s condition during the
relevant time period. The primary benefit of such evidence in evaluating Plaintiff’s condition during the
relevant period is that the post-2006 evidence speaks to the credibility and accurateness of the earlier
evaluations and opinions. In considering the post-2006 evidence, we are mindful that Plaintiff may only
prevail by establishing that he was unable to work as a software engineer between November 25, 2005 and
November 25, 2006.
No. 12-3834 Javery v. Lucent Tech., Inc. Long Term Disability Plan Page 5

causing increased pain. So much so that I am unable to sit and perform
basic physical and mental activities due to extreme back pain. . . .
Medications and intense back pain prevents me physically and mentally
to continue performing timely and quality work.

(Admin. R. 519) Plaintiff stated that he could “not even imagine delivering any
commercial grade work as [he is] always in pain and quite disoriented.” (Admin. R. 520)
Along with his application, Plaintiff submitted a great deal of medical evidence from
various medical professionals, including:

• Attending Physician Statement by Dr. Jay Seymour, dated November 22, 2005.
Dr. Seymour assigned Plaintiff a Class 5 physical impairment rating (“[s]evere
limitation of functional capacity; incapable of minimal (sedentary) activity”), and
indicated that Plaintiff was “unable to sit, on multiple meds for this.” (Admin.
R. 509) Dr. Seymour also assigned Plaintiff a Class 5 mental impairment rating
(“significant loss of psychological, physiological, personal and social
adjustments (severe limitations)”). Dr. Seymour concluded that Plaintiff was
“totally disabled” from his regular work at Lucent, with or without restrictions,
and that it “will take a lot of time and treatment” for Plaintiff to improve. He
predicted that it would take at least 6 months for Plaintiff to recover. Dr.
Seymour also indicated that Plaintiff would not be a suitable candidate for trial
employment at Lucent or any other job because he was “not
physically/emotionally/cognitively ready for work.”
• Physical Ability Assessment by Dr. Seymour, dated December 30, 2005. Dr.
Seymour wrote: “[Plaintiff] denies ability to do these [physical activities]
throughout the day. I am concerned with the amount of pain meds he is taking
and his cognitive/emotional ability to work.” (Admin. R. 489)
• Notes from Dr. Seymour, dated November 7, 2005. Following a medical
examination, Dr. Seymour expressed concerns about Plaintiff returning to work
because of all the medications he was on, but opined that a return to work would
be the “best thing” for Plaintiff. (Admin. R. 312) Dr. Seymour also noted that,
although Plaintiff sat for nearly an hour during the examination, he showed no
signs of pain or distress throughout the examination.
• Healthcare Provider’s Report by Dr. Seymour, dated June 15, 2005. Dr. Seymour
indicated that Plaintiff “cannot sit for 5 minutes in chair without severe pain.
Pain w/ walking/standing at all times.” (Admin. R. 350–51)
• Attending Physician Statement by Dr. Brian Holtzmeier, dated November 28,
2005. Dr. Holtzmeier assigned Plaintiff a Class 5 physical impairment rating
(“[s]evere limitation of functional capacity; incapable of minimal (sedentary)
activity”), and indicated that Plaintiff must avoid prolonged sitting. Dr.
Holtzmeier also assigned Plaintiff a Class 5 mental impairment rating
No. 12-3834 Javery v. Lucent Tech., Inc. Long Term Disability Plan Page 6

(“significant loss of psychological, physiological, personal and social
adjustments (severe limitations)”). Dr. Holtzmeier concluded that Plaintiff was
“totally disabled” from his regular work at Lucent, with or without restrictions,
and that Plaintiff would not be a suitable candidate for trial employment at
Lucent or any other job because of “severe pain in back.” (Admin. R. 511)
• Physical Ability Assessment by Dr. Brian Holtzmeier, dated January 17, 2006.
Dr. Holtzmeier indicated that Plaintiff could not tolerate sitting, standing, or
walking, even with positional changes and meal breaks, for more than 2.5 hours.
• Notes from Dr. Holtzmeier from several visits in October 2005 and November
2005. On October 4, 2005, Dr. Holtzmeier referred Plaintiff to a neurosurgeon
and to pain management. On October 26, 2005 and November 14, 2005, Dr.
Holtzmeier noted that Plaintiff’s pain was not getting any better.
• Magnetic Resonance Imaging (“MRI”) of Plaintiff’s thoracic and lumbar spine
taken on August 8, 2005. The test found “moderate to severe degenerative
change seen of the visualized lower cervical spine,” “degenerative change seen
at the L4-L5 and L5-S1,” with “diffuse disc bulge” at L4-L5, and “degenerative
change . . . with a posterior annular fissure / tear” at L5-S1. However, the
physician noted that there was “[n]o significant pathology in the thoracic
region.”
• Healthcare Provider’s Report by Dr. Enrique Saguil, dated May 25, 2005. Dr.
Saguil found that Plaintiff had a “limited range of motion [and] severe muscular
spasms,” and would require functional limitations or restrictions for at least three
months. (Admin. R. 344) Dr. Saguil prescribed physical therapy, which Plaintiff
attended.
• Progress Summary from Athletic and Therapeutic Institute Physical Therapy
Center, dated May 26, 2005, indicating Plaintiff’s “fair” commitment to physical
therapy and minimal progress in the program. The physician indicated that
Plaintiff’s prognosis was “same” (as opposed to “better” or “worse”), that
Plaintiff had attended nine therapy sessions, and that there was “minimal change
in [Plaintiff’s] subjective reports.” (Admin. R. 383)
• Physical Therapy Evaluation from WCS occupational rehabilitation, dated June
7, 2005, indicating that Plaintiff reported to have participated in physical therapy
for four weeks, with no relief in reported symptoms, and that Plaintiff reported
to be “in horrific constant pain that begins with his lower back and progresses
upwards . . . . (8/10 on subject pain index where 0= no pain and 10=worst pain).”
(Admin. R. 352–58)
• List of Plaintiff’s prescribed medications at the time of his application for long
term disability benefits: Lidoderm; Tizanidine; Etodolac; Carisoprodol; Ambien;
Provigil; Metoformin ER; Mirapex; Requip; Vytoin; Altace.
No. 12-3834 Javery v. Lucent Tech., Inc. Long Term Disability Plan Page 7

• Report from Independent Medical Examination (“IME”) by neurologist Gary
Skaletsky on July 26, 2005. Dr. Skaletsky indicated that “[t]here is no
neurologic involvement” with Plaintiff’s back pain, but expressed “concern[] that
there is a strong psychogenic input to the symptoms.” (Admin. R. 274–77)

On February 9, 2006, a nurse care manager employed by the plan administrator
reviewed the medical evidence that Plaintiff submitted in support of his application.
Based on his review of the file, and in spite of documentation from two of Plaintiff’s
treating doctors saying that Plaintiff was unable to work and statements from others as
to Plaintiff’s severe limitations, the nurse care manager concluded that Plaintiff “should
be able to perform his sedentary occupation.” Appellee Br. at 6. The plan administrator
denied Plaintiff’s claim on February 17, 2006, stating in part:

The medical evidence in your claim file was reviewed by one of our
Nurse Case Managers on staff. While we respect the opinion of all
medical providers, and we are not denying that you may experience back
pain, a review of the physical medicine evidence available in the file was
not consistent with your inability to work throughout your entire Benefit
Waiting Period.

(Admin. R. 219) In addition, the denial letter specifically referenced Dr. Seymour’s
observation that going back to work would be “the best thing” for Plaintiff.

Plaintiff appealed, through counsel, on April 20, 2006. He supplied additional
medical records, as well as letters from Dr. Seymour and Dr. Holtzmeier. In a letter
dated April 21, 2006, Dr. Holtzmeier wrote:

[Plaintiff] remains unable to work as a result of his back injury and
persistent back pain. He suffers from significant back pain which leads
to significant fatigue and difficulty with concentration. . . . The back pain
leads to difficulty concentrating which interferes with his ability to work.
I expect that this disability will last longer than one year, and he should
qualify for long-term disability. . . . He is unable to concentrate at work
beyond periods of time of approximately half an hour. He has to take
frequent rests due to back pain.

On June 1, 2006, Dr. Seymour wrote to the plan administrator to clarify his
statement that going back to work would be the best thing for Plaintiff. Dr. Seymour
explained:
No. 12-3834 Javery v. Lucent Tech., Inc. Long Term Disability Plan Page 8

When the denial letter was sent out it stated that I thought the best thing
for [Plaintiff] was to go back to work. I believe that is true with anyone.
Being off work causes a lot of psychological trauma––finding a way to
work with pain is ultimately the answer for him.

Dr. Seymour explained that “the issue of [Plaintiff’s] ability to work [is] very
complicated[,]” but what Plaintiff needed most was “a trial of work in an environment
with reasonable hours and accommodations, while undergoing a pain management
program.” (Admin. R. 186) Because Lucent rejected Plaintiff’s proposal of
accommodations, Dr. Seymour urged the plan administrator to “please reconsider the
decision to deny disability.”

In spite of the new evidence, the plan administrator denied Plaintiff’s appeal in
a letter dated June 7, 2006. The letter reported that one of the plan administrator’s in-
house medical directors “reviewed the medical information [in Plaintiff’s file] and
advised the medical record review fails to reveal documented clinical findings to support
limitations imposed.” (Admin. R. 181) With respect to Dr. Seymour and Dr.
Holtzmeier’s reports of Plaintiff’s mental impairments, the plan administrator wrote:

While these limitations were noted, we have not been provided with
mental status examination findings, neuropsychological testing or
treatment records supporting a cognitive impairment resulting in
restrictions.

Plaintiff appealed for a second time on July 31, 2006. He submitted additional
evidence including:

• Psychiatric report by Dr. David Weaver from August 9, 2006. Dr. Weaver
diagnosed Plaintiff with “[p]ain disorder w/ psych features & general medical
condition; Bipolar disorder; PTSD in partial remission; and OCD.” (Admin R.
171) With respect to work-related abilities, Dr. Weaver wrote:
[Plaintiff’s] ability to relate to family, friends, neighbors,
and co-workers seems markedly impaired due to
isolation, mood disorder, rumination and anxiety. His
ability to maintain attention, persistence, and pace seem
moderately impaired by his obsessive hoarding,
helplessness and naps. His ability to understand,
remember and follow instructions seems not impaired,
No. 12-3834 Javery v. Lucent Tech., Inc. Long Term Disability Plan Page 9

but no assessment was available. Thus, his ability to
withstand the stress and pressure of day-to-day work
seems markedly impaired. He responds to ‘average’ daily
stress with hoarding, depression, anxiety, and untreated
apnea may worsen his chronic pain.

• Psychiatric report by Dr. Beal Lowe on August 31, 2006. Dr. Lowe administered
the Beck Depression Inventory, and wrote that Plaintiff’s “score of 31 indicates
Severe depression.” (Admin. R. 166) Dr. Lowe concurred with Dr. Weaver’s
diagnoses and opined that Plaintiff’s condition rendered Plaintiff disabled from
working. He found Plaintiff to be “so overwhelmed by work, family and money
situations, and by his various psychological conditions, that he has no capacity
to manage the pain which is the predominant feature of both his verbal and his
behavioral clinical presentation.” (Admin. R. 167) Dr. Lowe found “no
suggestion that [Plaintiff] is malingering or exaggerating his symptoms.”
• Medical records from Licking Memorial Hospital and Shepherd Hill Behavioral
Health Services, where Plaintiff was admitted on September 12, 2006. Plaintiff
was hospitalized at Shepherd Hill for twelve days after an emergency psychiatric
evaluation. The submitted record includes, among other documents:
• Family and Medical Leave Certification form from psychiatrist Phillip
Borders, dated September 27, 2006, concluding that Plaintiff “has severe
Bipolar [disorder], depression and paranoid delusions” and “is so
impaired that he requires significant assistance from wife.” (Admin. R.
88, 90)
• Axis I diagnosis from Dr. Borders, dated September 28, 2006: “Bipolar
disorder, depressed, severe with psychosis.” (Admin. R. 146)

After acknowledging that it had received and reviewed the psychiatric
information from Dr. Weaver, Dr. Lowe, and Shepherd Hill, the plan administrator
denied Plaintiff’s second and final appeal on January 4, 2007.

Plaintiff filed for Chapter 13 personal bankruptcy on October 14, 2007. On
January 7, 2009, Plaintiff filed a Complaint in the United States District Court for the
Southern District of Ohio alleging that Defendant wrongfully denied him long term
disability benefits in violation of ERISA, 29 U.S.C. § 1132(a)(1)(B). Defendant
answered, and both parties moved for judgment on the administrative record. On March
10, 2011, the district court issued an opinion and order denying both parties’ motions
and remanding Plaintiff’s claim to the plan administrator for further review of the mental
No. 12-3834 Javery v. Lucent Tech., Inc. Long Term Disability Plan Page 10

component of Plaintiff’s claim. In its opinion, the district court found that the proper
standard of review of the plan administrator’s decision was de novo.

After the district court remanded the case to the plan administrator in March
2011, Plaintiff submitted additional evidence to the plan administrator, including:

• Medical records from Dr. Gautam Samadder, dated October 2001 through
October 2009. Dr. Samadder has treated Plaintiff since 2001 for obstructive
sleep apnea, narcolepsy, and severe restless leg syndrome. On October 11, 2005,
Plaintiff consulted with Dr. Samadder for sleep maintenance insomnia, daytime
sleepiness, and sleepiness while driving.
• Medical records and discharge instructions from Ohio State University’s Harding
Hospital, dated October 4, 2006. Four days after Plaintiff was released from his
twelve-day hospitalization at Shepherd Hill behavioral health facility, Plaintiff
was hospitalized for another six days at Harding Hospital. Plaintiff was admitted
to Harding on September 28, 2006 and discharged on October 4, 2006.
• Medical records from Dr. Rao Lingam, dated January 3, 2008 through February
2011. Dr. Lingam diagnosed Plaintiff as suffering from, inter alia, myofascial
pain syndrome. Since 2008, Dr. Lingam has treated Plaintiff with trigger point
injections and medication.
• Plaintiff’s Social Security disability file, which contained, inter alia:
• Plaintiff’s application to the Social Security Administration (“SSA”),
dated December 31, 2005, in which Plaintiff explained that his pain
caused him to “mentally freeze,” rendering him unable to concentrate.
He wrote, “I [cannot] move on from what I am doing. I can’t focus on
anything but the pain. I have lost hours when this happens and don’t
know what I have done or where I have been.” (Supp. Admin. R. 407)
• Letter dated November 5, 2008 from Plaintiff’s spouse to the
Administrative Law Judge (“ALJ”) deciding Plaintiff’s social security
claim. Plaintiff’s spouse expressed concern about Plaintiff’s erratic
behavior and delusional thoughts.
• A copy of an e-Bay listing that Plaintiff had posted on October 19, 2008
promising that, for a payment of $1,100,000, he would assure that the
“Republic [sic] Party (GOP)” would “win or nearly win” the 2008
election. (Supp. Admin. R. 603–07)
• Disability Report, completed by Plaintiff’s spouse stating that Plaintiff
is “unable to remember things [and] confused in thought processes. He
can’t complete tasks and is [delusional] about facts.” (Supp. Admin. R.
438)
No. 12-3834 Javery v. Lucent Tech., Inc. Long Term Disability Plan Page 11

• Dr. Lowe’s medical report from January 2007. Dr. Lowe indicated that
Plaintiff is “withdrawn, isolated, [and] preoccupied w[ith] pain and
mistreatment” and “[t]oo anxious, depressed [and] pain-focused to
perform any job function.” Dr. Lowe opined: “I believe [Plaintiff] is
totally disabled by psychological conditions diagnosed by me including
Pain Disorder (307.89), Bi Polar Disorder (296.89) OCD (3003.3) and
PTSD (309.81).” (Supp. Admin. R. 887–88)
• Dr. Steven Meyer’s file review for the SSA, dated August 17, 2006. Dr.
Meyer concluded that Plaintiff had two diagnosable mental health
conditions––depression and “Adjustment Disorder with mixed anxiety
and somatic concerns” (Supp. Admin. R. 847)––that moderately limited
some of Plaintiff’s ability to function.
• MRI from Cleveland Clinic in 2007 revealing “small to moderate right
sided disc protrusion/herniation with displacement of the traversing right
S1 nerve root and minor disc bulging and shallow left foranimal / far
lateral protrusion/herniation. Mild to moderate proximal left foranimal
stenosis.”
• CT Scan from May 7, 2008 revealing “[h]igh-grade annular tear in
biforaminal position at L4-5 level with suggestion of leakage of contrast
on the right possibly contrast on the left. There is also a broad- based disc
displacement at this level resulting in abutment of bilateral exiting L4
nerves.” (Supp. Admin. R. 320–21). The CT Scan also demonstrated
“[m]oderate degeneration of the disc at L5-S1 level with a broad-based
disc displacement contributing to light effacement of bilateral exiting L5
nerves and abutment of bilateral descending S1 nerves.”
• EMG performed by Dr. James J. Powers on April 11, 2008, which
demonstrated “[e]vidence of L5-S1 radiculopathy (mild, acute o[r]
chronic bilaterally,” and “[e]vidence of left lower cervical radiculopathy
(mild, acute o[r] chronic).” (Supp. Admin. R. 322–24)
• SSA’s determination that Plaintiff was totally disabled from working at
any job. In a decision dated November 28, 2008, the ALJ concluded that
Plaintiff was disabled solely due to physical impairments, which included
“insulin dependent diabetes mellitus with end organ damage, mild
anemia, prostate cancer without metastasis, sleep apnea, restless legs
syndrome, and nonradicular degenerative disc disease at L4-5-S1.”
(Supp. Admin. R. 625) The ALJ added that while Plaintiff “may have
one or more mental impairments,” it was not necessary to address them.
In addition, the ALJ found Plaintiff’s testimony about limitations in his
ability to walk, stand, and sit to be “generally credible.”
No. 12-3834 Javery v. Lucent Tech., Inc. Long Term Disability Plan Page 12

In August 2011, the plan administrator hired two doctors–––psychiatrist Marcus
J. Goldman and neurologist Choon S. Rim––to conduct independent medical reviews
(“IMRs”) of the medical information in Plaintiff’s claim file.2 Although the Plan
reserved the right to require Plaintiff to appear for a medical examination by a
designated physician, it did not avail itself of the opportunity.

Dr. Goldman reviewed the psychological evaluations of Dr. Borders and Dr.
Lowe, but discredited their professional opinions after finding the diagnoses
“unsupported by regular and reliable progress notes since 2006.” Appellee Br. at 10. Dr.
Goldman “noted the lack of any ongoing treatment or re-evaluation for psychiatric
functionality conducted by Dr. Lowe after the 2006 report.” Id. From his file review,
Dr. Goldman concluded that, with the exception of the dates that Plaintiff was in an in-
patient unit in 2006, the medical evidence did not “clearly, explicitly, consistently, or in
any . . . compelling or objective fashion” support the presence of a mental disorder of
such severity as to preclude Plaintiff from functioning or working. Id. at 9–10.3

Dr. Rim reviewed Plaintiff’s diagnostic test results, psychiatric evaluations,
medical evaluations from Plaintiff’s treating physicians, and the Independent Medical
Examination (“IME”) conducted by Dr. Gary Skaletsky. Based upon his review, Dr.
Rim determined that, from a neurological standpoint, the disability determinations made
by Plaintiff’s treating physicians, Dr. Seymour and Dr. Holtzmeier, were not supported
by the record. Dr. Rim concluded that Plaintiff could perform his sedentary job with
modest restrictions, such as frequently changing positions and refraining from lifting
over ten pounds.

On September 6, 2011, the plan administrator denied Plaintiff’s claim for benefits
once again. On January 11, 2012, Plaintiff successfully moved to reactivate the case in

2
Such an evaluation is commonly referred to as a file review.
3
We note that it was improper for Dr. Goldman to draw adverse inferences from any lack of post-
2006 evidence. As previously explained, the relevant inquiry is whether Plaintiff was unable to work as
a software engineer between November 25, 2005 and November 25, 2006. Accordingly, evidence that
Plaintiff continued receiving treatment for his mental illness beyond November 25, 2006 would not have
been relevant to the claim Dr. Goldman was asked to evaluate. At best, if submitted, such evidence would
serve only to bolster the reliability of the earlier diagnoses.
No. 12-3834 Javery v. Lucent Tech., Inc. Long Term Disability Plan Page 13

federal court. In district court for the second time, both parties once again filed cross-
motions for judgment on the administrative record. On June 20, 2012, the district court
issued its opinion and order, which it filed under seal,4 granting Defendant’s motion for
judgment on the administrative record and denying Plaintiff’s motion for judgment on
the administrative record. Plaintiff timely appealed.

DISCUSSION

I. Judicial Estoppel

We consider first whether Plaintiff should be judicially estopped from pursuing
his claim for long term disability benefits. Defendant contends that Plaintiff should be
judicially estopped from pursuing the present claim because Plaintiff failed to bring the
claim to the attention of the bankruptcy court in the Chapter 13 bankruptcy action
Plaintiff filed on October 14, 2007. Defendant previously raised this argument twice
before the district court: first in a motion for summary judgment, and second in its
briefing for judgment on the administrative record. The district court rejected
Defendant’s argument both times, and declined to apply judicial estoppel “based on the
specific facts present in this action.”

We review de novo a district court’s decision regarding the application of judicial
estoppel. See White v. Wyndham Vacation Ownership, Inc., 617 F.3d 472, 476 (6th Cir.
2010); Eubanks v. CBSK Financial Group, Inc., 385 F.3d 894, 897 (6th Cir. 2004). In
several recent cases, this Court has “questioned the continuing viability of the de novo
standard for judicial estoppel, noting the Supreme Court’s characterization of the
doctrine as an equitable remedy ‘invoked by the court at its discretion’ and recognizing
that the ‘majority of federal courts’ review for abuse of discretion.” Kimberlin v. Dollar

4
Although certain documents in the court below, including the district court’s opinion, were filed
under seal, there is no order sealing documents in this case on appeal. The parties’ briefs, which are
available on the public docket, discuss the information contained in those sealed documents at length.
Sixth Circuit Rule 25(h)(5) provides that “[d]ocuments sealed in the lower court or agency must continue
to be filed under seal in this court.” Therefore, the documents sealed below have not been filed on the
public docket in this case. However, we believe that the discussion of the information contained in those
sealed documents by the litigants in their briefs obviates the purposes for the sealing. Because the
information is available to the public in the parties’ briefs, we do not believe that this Opinion should be
sealed, or that redaction is necessary.
No. 12-3834 Javery v. Lucent Tech., Inc. Long Term Disability Plan Page 14

General Corp., 520 F. App’x 313 n.1 (6th Cir. 2013) (quoting New Hampshire v. Maine,
532 U.S. 742, 750 (2001)); see also Lewis v. Weyerhaeuser Co., 141 F. App’x 420, 424
(6th Cir. 2005) (“In light of New Hampshire and the extensive contrary authority, we
question the continued use of the de novo standard in the context of judicial estoppel.”);
but see Lorillard Tobacco Co. v. Chester, Willcox, & Saxbe, 546 F.3d 752, 757 (6th Cir.
2008) (“The Supreme Court did not instruct that an abuse of discretion standard is
appropriate, and this Court has continued to adhere to the de novo standard after New
Hampshire. Without a more definitive statement from the Supreme Court, this Court is
bound by its own precedent and will therefore apply the de novo standard to the district
court’s order.”)

Although this issue remains unresolved in this Circuit, we need not resolve it in
the present case because the district court’s ruling was proper under either standard. See
Kimberlin, 520 F. App’x at 313 n.1 (declining to adopt an abuse of discretion standard
for review of judicial estoppel rulings because the district court would be affirmed under
the de novo standard); Weyerhaeuser, 141 F. App’x at 424 (same); Leonard v.
Southwestern Bell Corp. Disability Income Plan, 341 F.3d 696, 700 (8th Cir. 2003)
(same).

The doctrine of judicial estoppel seeks “to preserve the integrity of the courts,”
Browning, 283 F.3d at 776 (citation omitted), by “generally prevent[ing] a party from
prevailing in one phase of a case on an argument and then relying on a contradictory
argument to prevail in another phase.” New Hampshire, 532 U.S. at 749 (citation
omitted). Though there are no “inflexible prerequisites” for judicial estoppel, id. at 751,
this Court has

applied the doctrine to bar employment related claims not disclosed in
prior bankruptcy proceedings where (1) the debtor assumed a position
contrary to one she asserted under oath while in bankruptcy; (2) the
bankruptcy court adopted the contrary position either as a preliminary
matter or as part of a final disposition; and (3) the debtor’s omission did
not result from mistake or inadvertence.
No. 12-3834 Javery v. Lucent Tech., Inc. Long Term Disability Plan Page 15

Kimberlin, 520 F. App’x at 314. We have made clear that “judicial estoppel does not
apply where the prior inconsistent position occurred because of ‘mistake or
inadvertence.’” Weyerhaeuser, 141 F. App’x at 425 (emphasis added) (quoting
Browning, 283 F.3d at 776) (internal quotation mark omitted). Failure to disclose a
claim in a bankruptcy proceeding also may be excused where the debtor lacks a motive
to conceal the claim, Browning, 283 F.3d at 776, or where the debtor does not act in bad
faith, Eubanks, 385 F.3d at 895.

Plaintiff argues that any omission was wholly inadvertent, that he did not act in
bad faith, and that he lacked any motive to conceal the claim. To support his position,
Plaintiff submitted affidavits and other evidence indicating that he was not responsible
for, and was entirely unaware of, any omission. Specifically, the evidence shows that
Plaintiff and his spouse disclosed the claim to their bankruptcy attorney in writing and
discussed the claim with their bankruptcy attorney, which suggests that any error was
the fault of the attorney and not Plaintiff.

The district court considered the evidence and declined to apply the doctrine to
bar Plaintiff’s case, explaining that the uncontested evidence supported Plaintiff’s
position:

The Court has reviewed the affidavits of Plaintiff and his wife, as
well as proffered documentation, which indicate that any non-disclosure
was at best inadvertent and will be remedied. Uncontested evidence
indicates that Plaintiff’s wife prepared information for their bankruptcy
attorney that included the benefits claim at issue in this case. Additional
uncontested evidence indicates that Plaintiff and his spouse were not
aware of any mislabeling of the claim or its omission. . . .
Defendant has failed to produce any evidence that the foregoing
factual assertions are incorrect. In light of such uncontested
evidence–and even assuming arguendo that there has been a conflicting
prior representation upon which the bankruptcy court relied–this Court
can only conclude that there is no basis for applying the equitable
doctrine of judicial estoppel under these circumstances. There is simply
no basis to infer intentional concealment. . . .
The Sixth Circuit has urged courts to apply judicial estoppel with
caution to avoid impinging on the truth-seeking function of the court.
No. 12-3834 Javery v. Lucent Tech., Inc. Long Term Disability Plan Page 16

Application of the doctrine here would preclude getting to the merits
based on what the only evidence before this Court characterizes as at best
inadvertent error.

A fresh review of the facts and evidence in this case leads us to the same
conclusion: any omission was almost certainly due to carelessness or inadvertent error
as opposed to intentional, strategic concealment or impermissible gamesmanship. We
note also that under Ohio laws, proceeds from a disability insurance policy are
completely exempt from a debtor’s estate (i.e., set aside for the benefit of the debtor) to
the extent that they are necessary for the support of the debtor and his family. OHIO
REV. CODE § 3923.19(A). Accordingly, Plaintiff had no motive for intentionally
concealing the claim.

Since Defendant’s argument fails even under de novo review, it also fails under
the more demanding “abuse of discretion” standard. For these reasons, the district court
did not err in holding that Plaintiff was not judicially estopped from pursuing his long
term disability claim.

II. Remand on De Novo Review

We consider next whether the district court erred when it remanded Plaintiff’s
disability claim to the plan administrator “for a full and fair review of [Plaintiff]’s
disability claim.” (R. 39, Opinion at 12–13). We review the district court’s choice of
remedy in an ERISA action for abuse of discretion. Shelby County Health Care Corp.
v. Majestic Star Casino, 581 F.3d 355, 372 (6th Cir. 2009); see also Willcox v. Liberty
Life Assurance Co. of Boston, 552 F.3d 693, 703 (8th Cir. 2009) (finding that the district
court did not abuse its discretion in remanding the case to the plan administrator for
further administrative review).

Plaintiff sets forth a compelling argument that the district court, “while correctly
determining that de novo [review] was required, nonetheless applied the standards
applicable to deferential review.” Appellant Br. at 24. Plaintiff contends that the district
court’s “decision to remand the case to [the plan administrator] . . . reflected the district
court’s misunderstanding of the difference between deferential and de novo review.” Id.
No. 12-3834 Javery v. Lucent Tech., Inc. Long Term Disability Plan Page 17

Defendant, on the other hand, contends that the district court’s decision to remand the
case was proper because the record lacked factual findings that would be relevant to its
decision.

Admittedly, some of the analysis and case law in the district court opinion
suggest that the district court gave too much deference to the plan administrator. See
Salve Regina Coll. v. Russell, 499 U.S. 225 (1991) (“When de novo review is compelled,
no form of appellate deference is acceptable.”); see also Hoover v. Provident Life & Acc.
Ins. Co., 290 F.3d 801, 808–09 (6th Cir. 2002) (“When applying a de novo standard in
the ERISA context . . . . [t]he [plan] administrator’s decision is accorded no deference
or presumption of correctness.”). For example, the opinion states: “The administrative
record fails to indicate . . . that [the plan administrator] reached a decision denying [the
psychological] component of [Plaintiff]’s claim as the result of a deliberative, principled
reasoning process. . . . This is problematic for [Defendant] because this Court ‘cannot
uphold an ERISA plan administrator’s determination if it is not the product of ‘a
deliberate, principled reasoning process.” (R. 39, Opinion at 11–12) (quoting Elliott v.
Metropolitan Life Ins. Co., 473 F.3d 613 (6th Cir. 2006)) (quoting Glenn v. Metro Life
Ins. Co., 461 F.3d 660, 666 (6th Cir. 2006)) (internal quotation marks omitted)
(emphasis added). The district court’s analysis is problematic because it is irrelevant on
de novo review whether a plan administrator’s decision was principled or reasoned; the
plan administrator’s reasoning (or lack thereof) is only important when a court engages
in deferential review. Additionally, all of the cases upon which the district court
relied—Elliott, 473 F.3d 613; Glenn, 461 F.3d 660; Smith v. Continental Cas. Co.,
450 F.3d 253 (6th Cir. 2006); and Buffonge v. Prudential Ins. Co. of America, 426 F.3d
20 (1st Cir. 2005)—were cases decided on deferential review.

However, the district court’s standard of review and authority to remand are
legally and analytically distinct, and, even under de novo review, remand is the
appropriate remedial measure where further fact-finding is necessary to determine
claimant eligibility for benefits. See Williams v. Int’l Paper Co., 227 F.3d 706, 715 (6th
Cir. 2000) (recognizing that remand is proper where there are factual determinations that
No. 12-3834 Javery v. Lucent Tech., Inc. Long Term Disability Plan Page 18

need to be made to determine whether a participant is entitled to benefits). Thus, the
relevant inquiry is whether the district court remanded this case for the permissible
purpose of further fact-finding to supplement what it felt was an incomplete record, or,
alternatively, remanded this case for the impermissible purpose of affording the plan
administrator a chance to correct its reasoning for rejecting Plaintiff’s application.

A close examination of the administrative record and district court opinion
reveals that the district court intended to remand the case for further fact-finding to
supplement the incomplete record. In its opinion, the district court appears to adopt
Defendant’s argument “that the record is not sufficiently developed to make an informed
decision on the existence of any claimed psychological disability, and [Defendant] does
not know whether the Court has familiarity with the Plan or the medical expertise
necessary to make a disability determination in the first instance.” (R. 39, Opinion at 12)
(quoting R. 37, Def’s Resp. Opp. Mot. for Judg. on Admin. Rec., at 10–11) (internal
quotation marks omitted). Additionally, the court twice mentions a lack of “findings”
in the administrative record. Although we are troubled by the fact that the district court
articulated the remedy as “remand for a full and fair review,” which is typically
associated with deferential review, the court’s concern over the inadequate factual
findings and insufficient development of the administrative record suggests that the
district court intended to remand the claim for further development of the record, and not
merely out of deference to the plan administrator.

Therefore, we decline to hold that the district court abused its discretion in
remanding the claim to the plan administrator.

III. Plaintiff’s Entitlement to Long Term Disability Benefits

Finally, we consider whether the district court erred in denying Plaintiff’s claim
for disability benefits. We review the district court’s judgment on Plaintiff’s ERISA
claim de novo, applying the same standard of review to the plan administrator’s action
as required by the district court. Moore v. Lafayette Life Ins. Co., 458 F.3d 416, 427 (6th
Cir. 2006). As the district court correctly determined, and as Defendant conceded at oral
argument, the plan administrator’s decisions in this case are not entitled to deference.
No. 12-3834 Javery v. Lucent Tech., Inc. Long Term Disability Plan Page 19

See Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 616 (6th Cir. 1998) (“In cases
in which a plan administrator is given no discretionary authority by the plan, review of
the plan administrator’s decision by the district court—as well as the court of
appeals—is de novo, with respect to both the plan administrator’s interpretation of the
plan and the plan administrator’s factual findings.”). Therefore, we take a “fresh look”
at the administrative record, id., giving proper weight to each expert’s opinion in
accordance with supporting medical tests and underlying objective findings, and
“accord[ing] no deference or presumption of correctness” to the decisions of either the
district court or plan administrator, Hoover, 290 F.3d at 809.

To succeed in his claim for disability benefits under ERISA, Plaintiff must prove
by a preponderance of the evidence that he was “disabled,” as that term is defined in the
Plan. See Tracy v. Pharmacia & Upjohn Absence Payment Plan, 195 F. App’x 511, 516
n.4 (6th Cir. 2006) (plaintiff bears the burden of proof in an ERISA benefits case); Rose
v. Hartford Fin. Servs. Grp., Inc., 268 F. App’x 444, 452 (6th Cir. 2008). The Plan
defines the term “disabled” for the relevant period––November 25, 2005 to November
24, 2006––as follows: Plaintiff is “prevented by reason of . . . disability . . . from
engaging in [his] occupation or employment at the Company.” (Admin. R. 005) Thus,
the dispositive inquiry is whether Plaintiff was—on November 25, 2005—unable to
work for Lucent as a software engineer due to his physical condition, his mental
condition, or a combination of the two.5 After a careful and comprehensive review of
the full administrative record and supplemental administrative record, we find that
Plaintiff has established that he was unable to work as a software engineer at the relevant
time.

In reaching this conclusion, we first looked to the nature of Plaintiff’s job. See
Elliott, 473 F.3d at 618 (a decision on a disability benefits claim requires “an application
of the relevant evidence to the occupational standard” because “medical data, without
reasoning, cannot produce a logical judgment about a claimant's work ability”). Both

5
See footnote 1, supra at 4.
No. 12-3834 Javery v. Lucent Tech., Inc. Long Term Disability Plan Page 20

parties agree that Plaintiff’s job as a software engineer was technically and intellectually
demanding and required sitting for prolonged periods of time.

We next looked at the medical evidence, and applied it to the occupational
standard. The medical evidence in the administrative record indicates that a combination
of extreme pain, and mental illness, and the effects of pain medication made it
exceedingly difficult for Plaintiff to concentrate, handle stress, stay awake during the
day, remember things, relate to co-workers, make decisions, or sit for any extended
period of time. Anecdotal evidence of Plaintiff’s erratic behavior bolsters the medical
evidence that Plaintiff was not competent to perform his job. Three different
physicians––Dr. Holtzmeier, Dr. Seymour, and Dr. Saguil––each of whom treated
Plaintiff during the relevant time frame, found him unable to return to work. Of the two
psychiatrists who evaluated Plaintiff in 2006, one determined that he was seriously
mentally ill and incapable of working, and the other found substantial impairment in
Plaintiff’s ability to sustain the stress and pressure of day-to-day work. Their diagnoses
were confirmed shortly thereafter by Dr. Borders, a psychiatrist at Shepherd Hill
behavioral health facility, when Plaintiff was hospitalized for twelve days for mental
illness in an acute in-patient unit in September 2006. This evidence supports Plaintiff’s
testimony that he could not “perform[] timely and quality work” or deliver “any
commercial grade work.” (Admin. R. 519–20)

Juxtaposed against this array of evidence is the opinion of Dr. Skaletsky from
July 2005, as well as the opinions of Dr. Goldman and Dr. Rim, neither of whom ever
examined Plaintiff and whose opinions are based on file reviews undertaken in August
2011.

While Dr. Skaletsky’s report is relevant and informative, his suggestion that
“there is no anatomic or physiologic basis for the chronic pain syndrome that is present”
does not preclude a finding that Plaintiff was disabled. (Admin. R. 278) On the
contrary, Dr. Skaletsky’s finding that there is no neurological basis for Plaintiff’s pain,
accompanied by his “concern[] that there is a strong psychogenic input to the
symptoms,” (Admin. R. 277) actually bolsters the mental component of Plaintiff’s claim.
No. 12-3834 Javery v. Lucent Tech., Inc. Long Term Disability Plan Page 21

Similarly, we are not pursuaded by the opinions of Dr. Goldman and Dr. Rim,
which were based solely on a review of Plaintiff’s file. Although there is “nothing
inherently objectionable about a file review by a qualified physician in the context of a
benefits determination,” Calvert v. Firstar Finance, Inc., 409 F.3d 286, 296 (6th Cir.
2005), the opinions of Dr. Goldman and Dr. Rim do not provide a very solid basis for
finding that Plaintiff was not entitled to disability benefits. First, file reviews are
questionable as a basis for identifying whether an individual is disabled by mental
illness. See Smith v. Bayer Corp. Long Term Disability Plan, 275 F. App’x 495, 505–09
(6th Cir. 2008) (noting that “[c]ourts discount the opinions of psychiatrists who have
never seen the patient for obvious reasons”). Second, reliance on a file review is
inappropriate where a claims administrator disputes the credibility of a claimant’s
complaints. See Evans v. UnumProvident Corp., 434 F.3d 866, 878 (6th Cir. 2006)
(“Where . . . conclusions from [a file] review include critical credibility determinations
regarding a claimant’s medical history and symptomology, reliance on such a review
may be inadequate.”).

In addition, we note that there were several problems with Dr. Goldman’s
analysis and report. As previously discussed, Dr. Goldman erroneously drew negative
inferences from the lack of evidence regarding Plaintiff’s mental health after 2006. See
footnote 3, supra at 12. In particular, we are troubled by the fact that Dr. Goldman
overlooked certain evidence in the file and drew adverse conclusions about the
“absence” of such evidence. For instance, Dr. Goldman found it significant that none
of Plaintiff’s “non-mental health providers” reported any findings that would support
significant psychopathy (Supp. Admin. R. 179), overlooking the Attending Physician
Statements completed by Dr. Holtzmeier and Dr. Seymour, both of whom are “non-
mental health providers,” documenting their observations that Plaintiff was not mentally
fit to work. Dr. Goldman also claimed that “at no time has there been any formal
psychological testing, including MMPI, PAI, or MCI to better establish the nature and
extent and veracity of the claimant’s complaints,” ignoring Dr. Lowe’s administration
of the Beck Depression Inventory, which indicated “Severe depression.” (Supp. Admin.
R. 180) We also found it troublesome that Dr. Goldman ignored the intellectual aspects
No. 12-3834 Javery v. Lucent Tech., Inc. Long Term Disability Plan Page 22

of Plaintiff’s job as a software engineer. See Elliott, 473 F.3d at 618; see also Rohr v.
Designed Telecommunications, Inc., 2009 WL 891739 at *11 (S. D. Ohio, 2009)
(“Jefferson Pilot ignored the most significant aspects of Plaintiff’s job, i.e., the
intellectual and/or mental functions.”). Although Dr. Rim’s report was less factually and
analytically problematic than Dr. Goldman’s report, Dr. Rim’s file report was very
limited in scope, and only answered the question of whether Plaintiff is disabled “strictly
from a neurological standpoint.” (Supp. Admin. R. 193)

Plaintiff submitted medical evidence from numerous doctors and therapists who
directly treated or examined him and concluded that he was unable to work due to a
combination of his physical and mental conditions. He visited over a dozen medical
experts. Those doctors who knew him best concluded, unequivocally, that he was
unable to work at the relevant time. Defendant offers little to contradict this evidence.
Accordingly, Plaintiff is entitled to disability benefits for the relevant period.

CONCLUSION

For the foregoing reasons, we REVERSE the order of the district court granting
Defendant’s motion for judgment on the administrative record and denying Plaintiff’s
motion for judgment on the administrative record, and REMAND to the district court
with instructions that the district court enter judgment in favor of Plaintiff on the
administrative record.