Nancy Harrison v. Wells Fargo Bank, N.A.

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-2379

NANCY A. HARRISON,

Plaintiff - Appellant,

v.

WELLS FARGO BANK, N.A.; WELLS FARGO AND COMPANY DISABILITY
PLAN,

Defendants - Appellees.

-------------------------------------

SECRETARY OF LABOR,

Amicus Supporting Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Senior
District Judge. (3:13-cv-00279-JRS)

Argued: October 28, 2014 Decided: December 5, 2014

Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Reversed and remanded by published opinion. Judge Wilkinson
wrote the opinion, in which Judge King and Senior Judge Hamilton
joined.

ARGUED: Richard F. Hawkins, III, THE HAWKINS LAW FIRM, PC,
Richmond, Virginia, for Appellant. Dana Lewis Rust,
MCGUIREWOODS LLP, Richmond, Virginia, for Appellees. Gail A.
Perry, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for
Amicus Supporting Appellant. ON BRIEF: Summer L. Speight,
MCGUIREWOODS LLP, Richmond, Virginia, for Appellees. M.
Patricia Smith, Solicitor of Labor, G. William Scott, Acting
Associate Solicitor for Plan Benefits Security, Elizabeth
Hopkins, Counsel for Appellate and Special Litigation, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for Amicus
Supporting Appellant.
_______________

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WILKINSON, Circuit Judge:

Nancy Harrison brought suit against her employer Wells

Fargo, arguing that the company improperly terminated her short-

term disability benefits while she was undergoing a series of

treatments for thyroid disease. The district court upheld Wells

Fargo’s decision, finding the plan administrator did not abuse

its discretion in denying Harrison’s claim. However, because

Wells Fargo failed to consider readily available material

evidence of which it was put on notice, the review process

failed to conform to the directives of ERISA and the Plan’s own

terms. We thus reverse and remand to the district court with

directions to return the case to Wells Fargo for a full and fair

review of Harrison’s claims.

I.

A.

Wells Fargo hired Nancy Harrison as an Online Customer

Service Representative in 2008. In this role, she was

responsible for assisting customers with a wide range of

inquiries related to online financial products and services. Her

work was primarily sedentary in nature but required her to keep

up in a “fast paced environment” and “adequately maintain

service levels” for customers. J.A. 203. She was also required

to work ten hours a day for four consecutive days while sitting

for 97% of that time.

3
 In May 2011, Harrison’s doctor discovered she had an

enlarged thyroid and a large mass extending into her chest that

was causing her to suffer chest pain and tracheal compression.

Harrison underwent a bronchoscopy on June 9, 2011, and a

thyroidectomy on August 17, 2011. She was unable to work and

received short-term disability benefits under a plan offered by

her employer. As part of her claim, she provided documentation

and contact information for her primary care doctor, Dr. Mark

Petrizzi, her Ear, Nose & Throat doctor, Dr. Daniel Van

Himbergen, and her thoracic surgeon, Dr. Darius Hollings.

Although she needed a second surgical procedure to remove the

remaining mass in her chest, her benefits were terminated on

September 10, 2011, just three weeks after her thyroidectomy.

Wells Fargo adjudged this to be the normal period of recovery

from this sort of operation.

While Harrison was facing her surgeries, her husband died

unexpectedly, triggering a recurrence of depression and post-

traumatic stress disorder (PTSD) related to the death of her

mother and her children in a house fire in 2004. Her primary

care physician, Dr. Petrizzi, doubled her dosage of anti-

depressants and referred her to a psychologist, Dr. R. Glenn,

for additional treatment. After her thyroidectomy, Harrison also

reported pain in her right shoulder for which Dr. Petrizzi

prescribed home-based physical therapy.

4
 Although the doctor was able to remove Harrison’s thyroid

during the August 17, 2011, procedure, it was a difficult

surgery and he was unable to remove the entire mass in her

chest. One week after the operation, Harrison notified Wells

Fargo that she was scheduled for another more serious procedure,

a median sternotomy, on October 31, 2011, where Dr. Hollings

would cut open her chest to remove the remaining tissue.

However, on September 10, 2011, Wells Fargo found that she had

fully recovered from the thyroidectomy, deemed her fit to return

to work, and discontinued her short-term disability benefits.

The parties do not dispute that Harrison was properly

granted benefits during the period from her bronchoscopy (June

9, 2011) through her arguable recovery from the thyroidectomy

(September 10, 2011) nor do they dispute that she would have

been eligible for benefits following the October 31st sternotomy

had she gone back to work in the interim. The only dispute is

whether Harrison was properly denied benefits from September 10,

2011, to October 31, 2011. *

*
Employees must return to work once Wells Fargo determines
they are no longer disabled in order to be eligible for future
benefits under the terms of the Plan. Because she did not return
to work after Wells Fargo found her sufficiently recovered on
September 10, 2011, Harrison was denied benefits for the October
31st surgery and subsequent recovery period. If benefits were
improperly denied for the disputed period between the surgical
procedures, the entire period from June 9, 2011, through her
recovery from the sternotomy may be considered a single period
(Continued)
5
 B.

The Short-Term Disability (STD) Plan (“the Plan”), provided

by Wells Fargo to its employees, entitles employees to salary

replacement benefits where a “medically certified health

condition” renders an employee “unable to perform some or all of

[his or her] job duties for more than seven consecutive days.”

Id. at 477. The Plan defines a medically certified health

condition as a disabling injury or illness that is “documented

by clinical evidence as provided and certified by an approved

care provider . . . includ[ing] medical records, medical test

results, physical therapy notes, mental health records, and

prescription records.” Id. at 480. Such condition must also

“prevent [the employee] from performing the essential functions

of [his or her] own job as regularly scheduled.” Id.

The Plan is self-funded by Wells Fargo and Liberty Life

Assurance Company of Boston serves as the claims administrator.

After an employee submits a claim for disability benefits,

Liberty must notify the claimant of the decision either to

approve or deny benefits. At the time of a denial, Liberty must

include the reasons why the claim was denied and, if applicable,

any additional information that is needed. The Plan provides for

of disability and she may be eligible to recover benefits from
October 31, 2011, through mid-December 2011 as well.

6
a two-level appeals process. Employees who believe their claims

were improperly denied may file a first-level appeal with

Liberty. If Liberty denies this appeal, claimants may file a

second-level appeal directly with Wells Fargo. If Wells Fargo

denies the second-level appeal, that decision is considered

final and claimants may file suit under Section 502(a) of ERISA.

See J.A. 485-87; see also, 29 U.S.C. § 1132.

Following Liberty’s initial denial of benefits, Harrison,

acting pro se, sought a first-level appeal with Liberty, the

claims administrator. In her appeal, she noted that she

continued to have chest pain from her recent thyroid surgery and

had suffered emotional trauma from the death of her husband. Her

primary care physician, Dr. Petrizzi, provided additional

documentation to that effect. Harrison also noted that she had

an appointment to see Dr. Glenn, a psychologist, with regard to

her mental health condition and provided contact information for

Drs. Petrizzi, Hollings (her thoracic surgeon), and Glenn (her

psychologist). A nurse case manager reviewed her file, and on

November 28, 2011, Liberty upheld the denial of her claim.

Harrison, again acting pro se, filed a second-level appeal

with Wells Fargo under the terms of the Plan. She provided

documentation from Drs. Petrizzi and Hollings as well as a

detailed letter from her sister who was her primary caretaker

outlining her continuing pain, disability, and severe panic

7
attacks. Wells Fargo, as part of the second-level appeal, sought

two independent peer reviews -- one of Harrison’s physical

disability claims by Dr. Dan Gerstenblitt and another of her

psychological disability claim by Dr. A.E. Daniel.

Dr. Daniel contacted Dr. Petrizzi regarding Harrison’s

mental health, but did not contact Dr. Glenn despite being

referred to him by Dr. Petrizzi. In his review, Dr. Daniel

concluded that while there was evidence in the record to suggest

that the loss of her husband could have triggered PTSD caused by

the death of her mother and children, “[i]n the absence of

psychiatric/psychological records or telephone conference with

her psychologist, an opinion as to whether her psychiatric

status limited her functional capacity cannot be provided.” Id.

at 394. On May 4, 2012, Wells Fargo rendered a final decision,

upholding the denial decision.

Harrison brought suit under 29 U.S.C. § 1132 of the

Employee Retirement Income Security Act (ERISA) in the Eastern

District of Virginia arguing that Wells Fargo abused its

discretion in denying her short-term disability benefits. Wells

Fargo moved for summary judgment. The district court found there

was insufficient evidence of disability under the Plan to

conclude that Wells Fargo had abused its discretion in denying

Harrison’s claim. This appeal followed.

8
 Harrison contends on appeal that Wells Fargo substantively

abused its discretion in rejecting her claim between her

surgical procedures, at a time when she continued to have pain

and other complications from the mass in her chest. See

Appellant’s Br. at 31. In addition, she argues that Wells

Fargo’s denial was procedurally flawed because the plan

administrator neither considered records from Dr. Glenn nor

specifically explained to her that such records were necessary

to perfect her claim. Because we find that Wells Fargo did not

meet the “full and fair review” requirements imposed by ERISA in

29 U.S.C. § 1133, we reverse and remand to the district court

with instructions to return the case to Wells Fargo.

II.

We review the district court’s grant of summary judgment to

Wells Fargo de novo. See Williams v. Metro Life Ins. Co., 609

F.3d 622, 629 (4th Cir. 2010). We apply the same standards

employed by the district court when considering the plan

administrator’s decision. Id. Because the Plan language gives

the plan administrator “full discretionary authority,” J.A. 504,

we consider whether Wells Fargo abused its discretion in denying

Harrison’s claim, see Evans v. Eaton Corp. Long Term Disability

Plan, 514 F.3d 315, 321 (4th Cir. 2008).

This circuit has identified “eight nonexclusive factors for

courts to consider in evaluating whether a plan administrator

9
abused its discretion.” Helton v. A.T. & T. Inc., 709 F.3d 343,

353 (4th Cir. 2013). Those factors, enunciated in Booth v. Wal-

Mart Stores, Inc. Assocs. Health and Welfare Plan are:

(1) the language of the plan; (2) the purposes and
goals of the plan; (3) the adequacy of the materials
considered to make the decision and the degree to
which they support it; (4) whether the fiduciary’s
interpretation was consistent with other provisions in
the plan and with earlier interpretations of the plan;
(5) whether the decisionmaking process was reasoned
and principled; (6) whether the decision was
consistent with the procedural and substantive
requirements of ERISA; (7) any external standard
relevant to the exercise of discretion; and (8) the
fiduciary’s motives and any conflict of interest it
may have.

201 F.3d 335, 342-43 (4th Cir. 2000). In considering these

factors, we hold that Wells Fargo failed to meet its statutory

and Plan obligations to Harrison as a beneficiary. By failing to

contact Dr. Glenn when it was on notice that Harrison was

seeking treatment for mental health conditions and when it had

his contact information, as well as properly signed release

forms from Harrison, the plan administrator chose to remain

willfully blind to readily available information that may well

have confirmed Harrison’s theory of disability.

III.

The Employee Retirement Income Security Act of 1974 (ERISA)

governs the short-term benefits plan offered by Wells Fargo. In

29 U.S.C. § 1104 Congress charged plan administrators to act as

fiduciaries for purposes of “providing benefits to participants

10
and their beneficiaries” and for “defraying reasonable expenses

of administering the plan.” 29 U.S.C. § 1104(a)(1)(A). Plan

administrators like Wells Fargo thus have a fiduciary duty to

beneficiaries like Harrison. Id. As part of this duty, ERISA

requires a balance between “the obligation to guard the assets

of the trust from improper claims, as well as the obligation to

pay legitimate claims.” LeFebre v. Westinghouse Elec. Corp., 747

F.2d 197, 207 (4th Cir. 1984) overruled by implication on other

grounds by Black & Decker Disability Plan v. Nord, 538 U.S. 822

(2003); see also Evans, 514 F.3d at 326 (“For more than thirty

years, then, courts have balanced the need to ensure that

individual claimants get the benefits to which they are entitled

with the need to protect employees . . . from a contraction in

the total pool of benefits available.”).

A.

However, Congress did not leave the process of balancing

these interests solely to the judgment of plan administrators.

Rather, ERISA imposes on trustees a number of procedural

requirements relevant to the denial of claims. For example,

section 1133 requires plan administrators, where any claim for

benefits under the plan is denied, to set forth “the specific

reasons for such denial.” 29 U.S.C. § 1133(1). In addition,

ERISA requires that plans provide claimants with a “reasonable

opportunity . . . for a full and fair review by the appropriate

11
named fiduciary of the decision denying the claim.” 29 U.S.C.

§ 1133(2).

While the primary responsibility for providing medical

proof of disability undoubtedly rests with the claimant, a plan

administrator cannot be willfully blind to medical information

that may confirm the beneficiary’s theory of disability where

there is no evidence in the record to refute that theory. See

Gaither v. Aetna Life Ins. Co., 394 F.3d 792, 807 (10th Cir.

2004). ERISA does not envision that the claims process will

mirror an adversarial proceeding where “the [claimant] bear[s]

almost all of the responsibility for compiling the record, and

the [fiduciary] bears little or no responsibility to seek

clarification when the evidence suggests the possibility of a

legitimate claim.” Id. Rather, the law anticipates, where

necessary, some back and forth between administrator and

beneficiary.

An administrator is also “required to use a deliberate,

principled reasoning process and to support its decision with

substantial evidence.” McKoy v. Int’l Paper Co., 488 F.3d 221,

223 (4th Cir. 2007). A complete record is necessary to make a

reasoned decision, which must “rest on good evidence and sound

reasoning; and . . . result from a fair and searching process.”

Evans, 514 F.3d at 322-23. A searching process does not permit a

plan administrator to shut his eyes to the most evident and

12
accessible sources of information that might support a

successful claim. As the Tenth Circuit explained, “[a]n 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, 394 F.3d at 808.

It is not asking too much that, in the course of a “full

and fair review,” see 29 U.S.C. § 1133, administrators notify a

claimant of specific information that they were aware was

missing and that was material to the success of the claim. A

similar and limited rule has been recognized by a number of our

sister circuits. See Harden v. Am. Express Fin. Corp., 384 F.3d

498, 500 (8th Cir. 2004) (“In the limited circumstances of this

case, we conclude that [the plan administrator’s] failure to

obtain Social Security records amounted to a serious procedural

irregularity that raises significant doubts about [the]

decision.”); Quinn v. Blue Cross and Blue Shield Assoc., 161

F.3d 472, 476 (7th Cir. 1998) (“We agree that [trustee] was

under no obligation to undergo a full-blown vocational

evaluation of [claimant’s] job, but she was under a duty to make

a reasonable inquiry into the types of skills [claimant]

possesses and whether those skills may be used at another job.”)

abrogated on other grounds by Hardt v. Reliance Standard Life

Ins. Co., 560 U.S. 242 (2010); Booton v. Lockheed Med. Benefits

Plan, 110 F.3d 1461, 1463 (9th Cir. 1997) (“In simple English,

13
what this regulation calls for is a meaningful dialogue between

ERISA plan administrators and their beneficiaries.”).

We do, of course, recognize that plan administrators

possess limited resources, and that there are practical

constraints on their ability to investigate the volume of

presented claims. The rule is one of reason. Nothing in our

decision requires plan administrators to scour the countryside

in search of evidence to bolster a petitioner’s case. The

Gaither decision was similarly cautious. See 394 F.3d at 804

(“[N]othing in ERISA requires plan administrators to go fishing

for evidence favorable to a claim when it has not been brought

to their attention that such evidence exists.”); see also Vega

v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 298 (5th Cir.

1999) (en banc) (declining to place “the burden solely on the

administrator to generate evidence relevant to deciding the

claim”), overruled on other grounds by Metro. Life Ins. Co. v.

Glenn, 554 U.S. 105 (2008).

The law in this circuit has likewise been clear that there

is no open-ended duty for plan administrators to “look all

over. . . for a doctor whose testimony might contradict the

medical reports from reliable physicians that ha[ve] been

submitted.” LeFebre, 747 F.2d at 208. In Berry v. Ciba-Geigy

Corp., 761 F.2d 1003, 1008 (4th Cir. 1985), we also noted that

plan trustees are not “under any duty to secure evidence

14
supporting a claim for disability benefits when those trustees

had in their possession reliable evidence that a claimant was

not, in fact, disabled.” And in Elliott v. Sara Lee Corp., 190

F.3d 601, 608 (4th Cir. 1999), we held that a claimant who did

not submit supplemental evidence to disprove the existing record

showing that she was not disabled, “[could not then] prevail on

an argument that [her employer] had insufficient evidence to

make a reasoned decision.”

In these cases, however, there was sufficient evidence in

the existing record to refute claimant’s theory of disability.

In LeFebre, there was evidence that the plaintiff, who claimed

total disability due to blindness, was nonetheless driving on

his own and able to perform most of his job duties. 747 F.2d at

205. In Berry, the plan administrator “possessed letters from

claimant, claimant’s lawyer, and claimant’s doctor stating that

[he] was ready to resume his employment.” 761 F.2d at 1008.

Similarly, in Elliott, claimant’s treating physicians submitted

statements that “her degree of impairment was 35 to 55 percent

and that she was capable of clerical or administrative activity”

and thus did not meet the plan’s definition of totally disabled.

190 F.3d at 604. We agree that a plan administrator is not

“under any duty to secure evidence [to the contrary]” under such

circumstances. Berry, 761 F.2d at 1008.

15
 Harrison’s claim, however, is distinguishable from the

above cases. Here, as Dr. Daniel, the independent peer reviewer

commissioned by Wells Fargo to assess Harrison’s claim, stated,

the record was incomplete and his “opinion as to whether

[Harrison’s] psychiatric status limited her functional capacity

[could not] be provided.” J.A. 394. Wells Fargo was repeatedly

put on notice that Harrison was seeking psychiatric treatment.

In fact, it even commissioned an independent reviewer to assess

whether her mental condition prevented her from returning to

work. That very reviewer made clear to the plan administrator

that the record was not sufficient to render a decision. At the

time it commissioned the review, Wells Fargo had been notified

that Harrison was seeking mental health treatment from Dr.

Glenn. Wells Fargo had Dr. Glenn’s contact information, but it

only provided Dr. Daniel with Dr. Petrizzi’s information. Dr.

Daniel contacted Dr. Petrizzi, Harrison’s primary care physician

who referred him to Dr. Glenn for additional documentation.

However, Dr. Daniel did not take the additional step of

contacting Dr. Glenn directly.

Unlike our earlier cases, the record did not refute

Harrison’s claim of disability. To the contrary, Harrison’s

medical records for her thyroid condition alone present a close

case. She was undergoing multiple surgical procedures for a

large mass in her chest that was causing her pain and tracheal

16
compression. One week after her first surgery she notified Wells

Fargo that she needed a second and significantly more serious

operation to completely remove the mass from her chest. The fact

of and need for these medical procedures Wells Fargo does not

dispute. In the midst of it all, Harrison suffered the

unexpected loss of her husband who had been a source of support

after the earlier deaths of her mother and children. Her sister

provided a statement that claimant was unable to care for

herself. In addition, her primary care doctor noted her chest

pain was made worse by anxiety and stress. In between her

surgeries, and before the mass had been fully removed from her

chest, it was hardly unlikely that Harrison would be unable to

return to work. On such a close record, Wells Fargo’s process

was simply not the collaborative undertaking that ERISA

envisions. A denial on such a basis cannot satisfy ERISA’s full

and fair review requirements.

B.

Here, the Plan documents are consistent with ERISA

provisions –- including the requirement that notification of a

denial must “state the reasons why [the] claim was denied and

reference the specific STD Plan provision(s) on which the denial

[was] based.” J.A. 486. The Plan requires claimants to submit

proof of disability, which may include “medical records, test

results, or hospitalization records.” Id. at 479. However, it

17
also authorizes Liberty, once a release has been signed, to

“contact [a claimant’s] physician to obtain medical information

concerning [the] disability.” Id. The Plan likewise requires

that Liberty notify claimants where sufficient medical

information is lacking and “describe the additional information

needed and explain why such information is needed.” Id. at 486.

The Plan further and properly provides that it is the

“responsibility [of the claimant] to ensure that Liberty

receives requested medical proof.” Id. at 481. Here, the plan

administrator contends Harrison defaulted on that obligation

because she was told to submit all necessary medical information

and she failed to provide any records from Dr. Glenn.

And yet, Harrison did in fact submit proper documentation

authorizing Liberty to contact her treating physicians on June

23, 2011, and Liberty relied on that release to contact Drs.

Petrizzi, Van Himbergen, and Hollings throughout the claims

process. Absent notice to the contrary, it would have been

perfectly reasonable for Harrison to assume that the plan

administrator had done the same with Dr. Glenn, especially since

she provided Wells Fargo with his contact information in her

request for appeal. See id. at 134-35. Yet, notwithstanding the

release and contact information, neither Liberty nor Wells Fargo

got in touch with Dr. Glenn’s office for records or evidence

regarding her mental disability claim.

18
 Furthermore, if an initial claim is denied, the Plan

requires that where additional information is needed “the claims

decision [must] describe the additional information needed and

explain why such information is needed.” Id. at 486. Wells Fargo

failed to comply with this requirement of the Plan. Although

Wells Fargo was on notice that Harrison was receiving treatment

for potentially debilitating psychological trauma, it never made

clear to her that records from Dr. Glenn were missing and needed

-- noting only vaguely and deep into a long letter that she

should provide relevant medical information without ever once

mentioning Dr. Glenn by name. See id. at 56-57. The Plan itself

recognizes that, consistent with ERISA, the claims process must

be collaborative not adversarial, especially in light of the

fact that claimants must often proceed without the aid of legal

counsel. Wells Fargo should have made clear that records from

Dr. Glenn were absent from the record and necessary to perfect

Harrison’s claim. It was not appropriate under the circumstances

to require that the claimant wonder and guess.

Ultimately, as we have earlier mentioned, Harrison was

undergoing difficult diagnostic tests and repeated surgeries

when she suffered the sudden loss of her husband just several

years after the loss of her mother and children in a house fire.

There was a real possibility under the terms of the Plan that

she could have demonstrated a medically certified condition that

19
prevented her from returning to work in between her surgeries.

The record at hand provides evidence of claimant’s mental and

physical distress. Dr. Petrizzi, Harrison’s treating physician,

referenced her psychological condition in his records, and

increased her dosage of anti-depressant drugs during the

relevant timeframe, and her sister’s statement detailed

debilitating panic attacks. Wells Fargo was put on notice that

Harrison was seeking treatment for psychological ailments in

addition to thyroid disease and yet failed to undertake the same

minimal effort to obtain records from Dr. Glenn that it properly

took with regard to records from Drs. Petrizzi, Van Himbergen,

and Hollings. Instead, it denied Harrison benefits on an

incomplete record. A plan administrator cannot decline to

undertake the most nominal efforts to obtain readily available

information that was made known to the Plan, that was plainly

material to the claim, and that could well have provided the

proof crucial to Harrison’s success. At least, under the terms

of the Plan here, Wells Fargo should have instructed Harrison

plainly and specifically that additional records from Dr. Glenn

were needed to perfect her claim.

IV.

It bears repeating that the primary responsibility for

providing medical evidence to support a claimant’s theory rests

with the claimant. See Berry, 761 F.2d at 1008. Claimants are

20
more familiar with their medical history and their treating

physicians and are far better suited to provide the evidence

necessary to support a claim for disability. However, once a

plan administrator is on notice that readily-available evidence

exists that might confirm claimant’s theory of disability, it

cannot shut its eyes to such evidence where there is little in

the record to suggest the claim deficient.

Like our sister circuits, we now adopt this narrow

principle – narrow because it does not undercut claimant’s

responsibility to provide medical information nor impose a duty

on plan administrators to fish for medical information on the

mere possibility that it may be helpful in some remote way.

Here, however, Wells Fargo breached the fiduciary duty owed to

Nancy Harrison when it neither sought readily available records

from Dr. Glenn that might have confirmed her theory of

disability nor informed her in clear terms that those records

were necessary. Even absent those records, this was a close

case. The judgment must be reversed and remanded to the district

court with instructions to return this case to Wells Fargo for

proceedings consistent with this decision.

REVERSED AND REMANDED

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