Gross v. Sun Life Assurance Co. of Canada

United States Court of Appeals
For the First Circuit

Nos. 16-1958, 16-2002

DIAHANN L. GROSS,

Plaintiff, Appellee/Cross-Appellant,

v.

SUN LIFE ASSURANCE COMPANY OF CANADA,

Defendant, Appellant/Cross-Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Thompson, Lipez, and Kayatta,
Circuit Judges.

Joshua Bachrach, with whom Wilson, Elser, Moskowitz, Edelman
& Dicker LLP was on brief, for appellant/cross-appellee.
Jonathan M. Feigenbaum, with whom Michael D. Grabhorn, Andrew
M. Grabhorn, and Grabhorn Law Office, PLLC were on brief, for
appellee/cross-appellant.

January 18, 2018
 LIPEZ, Circuit Judge. More than four years ago, we

remanded this case with the instruction that appellant Sun Life

Assurance Co. reconsider its rejection of Diahann Gross's claim

for disability benefits based on chronic and severe pain. See

Gross v. Sun Life Assurance Co. of Can. (Gross I), 734 F.3d 1, 4

(1st Cir. 2013). Although we found at that time that Gross's

medical evidence supported a finding of total disability, we

concluded that, "[a]s the record now stands, we are unable to

resolve the debate between the parties on the significance of . . .

surveillance evidence" obtained by Sun Life. Id. at 27. After

additional administrative proceedings, the company again denied

her claim and Gross again challenged the denial in federal court.

On cross-motions for summary judgment, the district court ruled in

Gross's favor, finding that Sun Life should have awarded Gross

benefits because the surveillance record as developed does not

undermine this court's prior assessment of the medical evidence.

In this appellate sequel, Sun Life challenges the

district court's view of the expanded administrative record. It

argues that Gross failed to adduce medical evidence in the renewed

proceedings to offset the contradictory surveillance -- and thus

did not meet her burden to prove that she is totally disabled.

Sun Life also claims the district court abused its discretion in

failing to impose sanctions on one of Gross's attorneys. In a

- 2 -
cross-appeal, Gross assigns error to the district court's

calculations of prejudgment interest and attorney's fees.

After careful review of the record and the law, we affirm

the district court's rulings on the disability claim and sanctions.

However, we vacate the prejudgment interest award and remand for

consideration of the appropriate rate of interest. We affirm the

district court's attorney's fee calculation in all but two

respects, concluding that two components of the award must be

increased.

I. Background

A. The First Appeal

Until she was placed on disability leave in August 2006,

at age 34, Gross worked as an optician and office manager at

Pinnacle Eye Care LLC in Lexington, Kentucky. In our prior

decision, we described in great detail the facts then in the

administrative record concerning Gross's condition and medical

evaluations. See id. at 17-21. Here, we begin with a summary

description of the original record and briefly review that prior

decision to remand. We then describe the new evidence obtained in

the second round of administrative proceedings. We elaborate below

on both sets of facts where pertinent to our analysis.

1. The Original Medical Evidence

Multiple medical professionals who examined Gross

between 2005 and 2007 reported that she was experiencing a variety

- 3 -
of debilitating symptoms, including "chronic pain, inability to

sit or stand for extended periods of time, severely diminished

functional capacity in her right arm, and inability to bend, kneel,

or crouch." Gross v. Sun Life Assurance Co. of Can. (Gross Remand

Op.), No. 09-11678-RWZ, slip op. at 2 (D. Mass. June 24, 2016).

Gross's treating physician, Dr. Rita Egan, a rheumatologist,

opined that Gross was incapable of performing even sedentary

activity, and she concluded that Gross suffered from reflex

sympathetic dystrophy ("RSD"), fibromyalgia, widespread pain, and

chronic fatigue. Gross I, 734 F.3d at 17. In two reports completed

in late 2006, Egan noted, with some variation between the

statements, that Gross could not sit in one place for more than an

hour to ninety minutes, drive for more than ninety minutes, use

her right hand, or lift more than ten pounds. Id. at 17 & n.19.1

Other practitioners echoed Egan's diagnoses, noting,

inter alia, abnormalities in the appearance of, and the way Gross

positioned, her right hand. See id. at 18, 21, 22.2 A physical

1More than a year later, in November 2007, Egan submitted a
functional capacity report in support of Gross's appeal of Sun
Life's original denial of benefits setting out greater
restrictions: she could not sit or stand for more than an hour
each day, and she could not push or lift any weight. Gross I, 734
F.3d at 21.
2For example, Dr. Fred Coates reported in March 2007 that
Gross appeared to be in "severe pain while seated" and that her
right arm hung "limply at her side." Gross I, 734 F.3d at 18. He
also described her right hand as "red, slightly swollen, cool to

- 4 -
therapist who performed a functional capacity evaluation ("FCE")

in early 2007 reported "a number of 'key limitations' in Gross's

physical abilities, including lack of functional use of her right

arm, poor standing balance, inability to perform sustained

overhead activity, need for assistance or a handrail to negotiate

stairs, and inability to crouch, kneel, squat or crawl." Id. at

18-19. The physical therapist, Chris Kaczmarek, suspected that

she suffered from RSD or an equivalent condition known as complex

regional pain syndrome ("CRPS"), or fibromyalgia. Id. at 18. The

FCE concluded that Gross "does not present at a functional level

that could maintain sustained work activity." Id. at 19.

Significantly, Kaczmarek stated that Gross was

cooperative and "willing to work to maximum abilities" when

performing tasks for the FCE. Id. at 23. Additional evidence of

Gross's good-faith in describing her symptoms and limitations came

from her co-workers and employers, who submitted letters

"describing her persistence in continuing to work despite obvious

pain and compromised physical capacity." Id. Her boss observed

that "[s]he wasn't going to give in until she absolutely had to,"

id. at 23 n.29, and Pinnacle's owner, Paul Wedge, stated that "[w]e

stopped her from working when we received her doctor orders that

she was not fit to work," id. at 23 (alteration in original).

the touch and sweating." Id. Gross states in her brief that she
is "right hand dominant."

- 5 -
 The medical evidence, however, did not uniformly support

Gross's disability claim. All of her diagnostic tests were

negative, and several doctors speculated that psychological

factors might be contributing to the severity of her symptoms.

Id. at 24. Despite recommendations from multiple physicians that

she obtain counseling or behavioral treatment, she never did so.

Id. Most puzzling was the evidence resulting from an

investigator's surveillance of Gross on nine days between November

2006 and February 2007. On most of those days, the surveillance

revealed little activity by Gross, including multiple days when

she either did not leave the house or was out briefly in

unremarkable circumstances. Our prior decision highlighted three

exceptions:

[O]n November 9, 2006, shortly after dropping
off a teenager believed to be her stepdaughter
at school, Gross was observed driving for
about an hour and a half to her mother's home,
with a brief stop at a rest area along the
way. Second, during the evening of January
11, 2007, Gross drove a short distance with
her stepdaughter to a Kmart, where she was
observed bending down toward lower-level
shelves, extending her arms above her head to
retrieve items, and kneeling to examine other
items.[3] Third, on February 21, after
receiving a phone call that her mother had
been admitted to the hospital with chest pain,
Gross drove to a gas station, pumped gas using
her right hand, and then drove for two hours
to the hospital, with a brief stop halfway

3Gross disputed that she bent down as described, stating that
she "simply knelt down, with the bulk of her weight balance[d] on
her knee which was braced on the ground."

- 6 -
 through the trip. About two hours later, she
left the hospital and drove home.

Id. at 19.

In support of its original denial of benefits, Sun Life

also had procured opinions from two medical consultants who

conducted paper reviews of Gross's medical records. In the first

records review, Dr. James Sarni noted that "the documentation does

not strongly support a diagnosis of [RSD or CRPS]." Id. at 19

n.24. He suggested an evaluation by a neurologist, which Dr.

Rukmaiah Bhupalam subsequently performed on February 22, 2007, the

day after Gross had made the trip to the hospital. Although

Bhupalam initially concluded that Gross was "totally disabled even

for sedentary work on a part time basis," he changed his assessment

after viewing the surveillance videotapes. Id. at 20. He observed

that "she can function quite well and probably will be able to

return to her previous occupation," although he also noted that "a

re-evaluation might be beneficial." Id.

After Bhupalam's examination, the second non-examining

consultant, Dr. William Hall, reviewed Gross's medical records and

concluded that "the surveillance videos undermined [her]

subjective reports of pain and functional limitations." Id. A

third consultant performed a paper review after Gross appealed the

initial benefits denial. That physician, Dr. Alan Neuren, noted

the inconsistencies between Gross's condition as reported by

- 7 -
healthcare providers and her appearance under surveillance, and he

stated that "'[t]he only reasonable conclusion' to be drawn 'is

that she has deliberately embellished her symptoms to her providers

for secondary gain.'" Id. at 21.

2. The Remand Rationale and Directive

Given the well documented history of pain and other

symptoms recorded by the medical professionals who examined her,

and the buttressing observations of her co-workers, we had "no

difficulty" concluding that Gross had submitted adequate medical

evidence to prove her entitlement to disability benefits. Id. at

22.4 We pointed out that, even though many of Gross's complaints

were not readily susceptible to objective confirmation, the record

did contain some objective evidence, "as well as the recognition

by Sun Life's own medical consultant, Dr. Hall, that Gross's

'musculoskeletal symptoms, as presented by her, are credible to

treating and consulting physicians.'" Id.

4 We summed up our assessment of the record as follows:

[T]he sustained and progressive nature of
Gross's complaints, their facial credibility
to the medical practitioners who personally
examined her, and the objective symptoms
consistent with RSD -- given the absence of
any method for reaching a conclusive diagnosis
-- support a finding of total disability.

Gross I, 734 F.3d at 24-25.

- 8 -
 We were concerned, however, about the "significant

incompatibilities between Gross's reports and her observed

functional capacity" while under surveillance, particularly during

the three episodes described above. Id. at 26. Yet, even faced

with those contradictions, Dr. Bhupalam had suggested that a re-

evaluation of Gross could be helpful that's-- "an observation we

underst[ood] to suggest that the video surveillance, while

damaging to Gross, did not necessarily undermine her claim." Id.

We also noted that the record did not reveal whether Bhupalam or

Neuren had been told that Gross's two-hour drive to a hospital in

February 2007 was precipitated by news that her mother had suffered

a medical emergency. Id. at 26-27. That seeming omission of

context led us to question "whether Sun Life ha[d] made a bona

fide effort to determine Gross's capabilities." Id. at 27. At

the same time, we noted the absence of a statement from Gross's

own doctor "refuting Sun Life's assertion in its original denial

letter that the surveillance 'show[ed] a capacity for activity

that far exceeds' the limitations she claims." Id. (alteration in

original).5

5 As noted above, see supra note 1, Egan did submit a
functional capacity evaluation in support of Gross's appeal of the
initial denial of her claim, in which the doctor reiterated her
diagnosis of CRPS in Gross's right arm, fibromyalgia, severe
migraines, chronic fatigue, and depression. See Gross I, 734 F.3d
at 21. Egan also reported that Gross's right arm "was colder and
discolored, 'as is seen in complex regional pain syndrome,' and
that Gross 'can hardly raise her arm.'" Id. The doctor also

- 9 -
 We thus concluded that, on the record then before us, we

could not answer the "open question" necessary to resolve the

parties' debate over Gross's entitlement to benefits: "the effect

that the surveillance evidence, when viewed in context, may have

on other evidence indicating disability." Id. at 27. Accordingly,

we remanded the case "so that the parties can further address both

the significance of the video evidence in assessing Gross's

limitations and the veracity of her self-reported and observed

symptoms, particularly concerning the condition of her right arm."

Id. at 27-28.

B. The Evidence Produced on Remand

In the renewed administrative proceedings following

remand, Gross and Sun Life each submitted additional opinions from

two medical professionals, none of which were based on new

examinations of Gross. Sun Life relied primarily on reviews of

Gross's medical file by two neurologists, Drs. David Ross and Rajat

Gupta. Ross provided a nine-page report summarizing Gross's

medical history and concluding that "[t]he medical evidence does

not support a functional impairment as of August 1, 2006" --

Gross's claimed disability date. Ross stated that "[t]here is no

medical explanation for the discrepancy between the reported

stated that Gross's prescription medications limited her work
capacity, leaving her "tired or with trouble thinking, or both."
Id.

- 10 -
limitations and those seen during surveillance," and he opined

that Gross's "observed activities are more consistent with her

true functional status."

Gupta similarly prepared a report reviewing Gross's

medical history, beginning in March 2004, and responded in the

negative to a question asking whether he detected "any physical

condition(s) supported by the clinical evidence that are

functionally impairing." Gupta questioned the diagnoses of CRPS

or RSD, noting that the symptoms on which those assessments were

based -- including the swelling, discoloration, and temperature of

Gross's right arm and hand -- "are known to be occasionally self-

induced by particularly savvy individuals." Gupta highlighted

Gross's long-sleeved clothing seen in the videos, "which typically

would be avoided by sufferers of CRPS due to the extreme amount of

hypersensitivity typically present," and he noted the "consensus

among most of her providers that there is a psychological component

to [her] presentation."

In an addendum to his report, Gupta stated that Gross's

mother's medical emergency "would not explain the apparent ease

and fluidity of movement that the claimant nonchalantly and

effortlessly display[ed]" with the use of her right arm and hand

as she prepared to drive to the hospital in February 2007 --

although he acknowledged that "[p]ressing circumstances may

conceivably allow an individual to perform physical feats of

- 11 -
strength and/or endurance that would otherwise be considered

'unachievable.'" On that issue, Sun Life also obtained a follow-

up opinion from Dr. Neuren, who stated that "[i]t is not credible

that going to visit her mother due to illness would result in

resolution of her condition even on a temporary basis. . . . CRPS

is not a part time condition."

Gross's additional medical evidence consisted of two

letters, one from a pain management specialist, Dr. James Murphy,

and one from the physical therapist who had performed her

functional capacity evaluation in 2007, Chris Kaczmarek. Having

reviewed Gross's medical records and the surveillance evidence,

Murphy concluded that nothing in the three noted surveillance

reports and videotapes "would contradict or invalidate the

restrictions and limitations placed upon Ms. Gross by her

physicians." Murphy stated that the physical effects of CRPS and

fibromyalgia "can vary from day to day -- even minute to minute,"

and that the severity of symptoms "are dependent upon numerous

factors, such as medication regimen,[6] response to interventions

6As noted in our earlier opinion, the FCE prepared in January
2007 "lists numerous medications that Gross reported using on a
daily basis: Wellbutrin, Duragesic patches, Klonipin, Tizanadine,
Lortab, Ambien CR, Valtrex, Estrostep FE, Senokot, Tylenol Rapid
Release, Excedrin Tension Headache, and Phaxyme." Gross I, 734
F.3d at 19.

- 12 -
. . . , physical stress, systemic illness, and underlying

precipitating condition(s)."

Kaczmarek submitted a two-page letter reporting that he

had reviewed Gross's records, the three identified surveillance

reports and videos, and the FCE he had performed in 2007. He

summarily concluded that Gross's activities in the videos were

consistent with his prior findings that she could neither sit "at

a frequency sufficient to engage in sedentary employment" nor

"'exert up to 10 pounds of force' on an 'occasional' basis

sufficient to engage in sedentary employment."7

7 The new information in his letter was as follows:

Based on my professional education,
training and experience, below are my
responses to the questions posed:

1. Based on my review of the
surveillance videos, Ms. Gross' activities are
consistent with my prior examination findings
that she is unable to "sit" at a frequency
sufficient to engage in sedentary employment.

[box labeled "Agree" is checked]

2. Based on my review of the
surveillance videos, Ms. Gross' activities are
consistent with my prior examination findings
that she is unable to "exert up to 10 pounds
of force" on an "occasional" basis sufficient
to engage in sedentary employment.

[box labeled "Agree" is checked]

- 13 -
C. The District Court's Post-Remand Decision

After briefly surveying the evidence described above,

the district court observed that its task was to decide whether

the surveillance evidence "casts doubt . . . sufficient to

dislodge" the panel's conclusion that the medical evidence

supported Gross's claim of total disability. Gross Remand Op. at

5. To undermine the disability assessment, the court stated,

"would require the videos to show Gross performing activities that

'directly contradict' the self-reported limitations upon which her

treating physicians have offered their diagnoses." Id. (quoting

Gross I, 734 F.3d at 25). The court found no such contradiction,

nor "sufficient evidence that Gross otherwise exaggerated her

symptoms to hoodwink her treating physicians." Id.

Among other factors, the court noted that only one

professional who had both personally examined Gross and reviewed

the surveillance records -- Bhupalam -- had disagreed with the

diagnoses of disabling conditions. But the court discounted

Bhupalam's view because he initially had agreed that Gross was

unable to work, and his later contrary opinion -- after viewing

the surveillance tapes -- was "tempered" by his recommendation

that a follow-up evaluation be performed. Echoing our own

sentiment, the court observed that "[t]his recommendation makes

sense only if the surveillance records did not unequivocally

contradict Bhupalam's initial opinion that Gross was totally

- 14 -
disabled." Gross Remand Op. at 6; see also Gross I, 734 F.3d at

26. The district court therefore ordered Sun Life to pay Gross

benefits based on a disability date of January 30, 2007.

In a subsequent ruling, the district court determined

that the applicable interest rate for Gross's recovery of benefits

is the rate set by 28 U.S.C. § 1961.8 Previously, the court had

awarded Gross approximately $96,000 in attorney's fees for work

performed in connection with the proceedings leading up to, and

including, the first appeal to this court. The fees determination

followed this court's holding that Gross had achieved a sufficient

degree of success on the merits in Gross I to qualify her for fees

under ERISA. Gross v. Sun Life Assurance Co. of Can. (Gross II),

763 F.3d 73, 81 (1st Cir. 2014). Significantly, our decision in

Gross I changed the standard of review for claims denials under

policies requiring proof of disability "satisfactory" to the

benefits decision-maker. See Gross II, 763 F.3d at 75-76; Gross

I, 734 F.3d at 16. That ruling, which replaced the deferential

arbitrary-and-capricious standard with de novo review,

8Section 1961 calculates interest "at a rate equal to the
weekly average 1-year constant maturity Treasury yield, as
published by the Board of Governors of the Federal Reserve System,
for the calendar week preceding[] the date of judgment." 28 U.S.C.
§ 1961(a) (footnote omitted). Put simply, § 1961(a) adopts "the
rate of interest the government pays on money it borrows by means
of Treasury bills." Jones v. UNUM Life Ins. Co. of Am., 223 F.3d
130, 139 (2d Cir. 2000).

- 15 -
"strengthen[ed] the entitlement to benefits for employees covered

by such policies." Gross II, 763 F.3d at 85.9

Both parties have appealed from the district court's

judgment. In its briefs to us, Sun Life contends that the record

does not support the court's conclusion that Gross met her burden

to show that she is totally disabled. The insurer also claims

that the district court erred in failing to sanction one of Gross's

attorneys for threatening to sue Bhupalam if he did not withdraw

his revised opinion adverse to Gross. In her cross-appeal, Gross

argues that the district court abused its discretion in choosing

a prejudgment interest rate that does not fully compensate her for

the wrongful denial of benefits. She also asserts that the court

abused its discretion in setting the amount of attorney's fees for

the pre-remand proceedings, which concluded with our decision in

Gross II.

II. Total Disability Finding

A. Standard of Review

Our decision in Gross I established that Sun Life's

denial of benefits was subject to de novo review by the district

court. See 734 F.3d at 16. We recently observed, however, that

the proper standard of appellate review is debatable in a case

9 Gross's motion for attorney's fees for work performed in
connection with the post-remand review of her disability claim was
stayed pending resolution of this appeal, now denominated Gross
III.

- 16 -
such as this -- i.e., "in an ERISA benefit-denial case that is

presented for decision exclusively on the record of proceedings

before the plan administrator." Stephanie C. v. Blue Cross Blue

Shield of Mass. HMO Blue, Inc., 852 F.3d 105, 111-12 (1st Cir.

2017). Noting that the district court's de novo review of the

administrative record may involve "weigh[ing] the facts,

resolv[ing] conflicts in the evidence, and draw[ing] reasonable

inferences," we acknowledged a plausible argument for applying the

deferential clear-error standard on appeal to the extent the

district court's decision "rests upon factual findings and

inferences therefrom." Id.

We need not reach that issue here, however. Not only do

both parties assume that our review is de novo, but application of

that standard -- more favorable to Sun Life -- nonetheless leads

us to uphold the district court's judgment. We therefore review

the administrative record de novo without affording deference to

the district court's assessment of the record.

B. Discussion

1. Evaluating the Post-Remand Evidence

Sun Life insists that the record as supplemented on

remand reinforces its original determination that Gross did not

prove that she is totally disabled. In sum, it contends that Gross

"failed to produce any evidence related to the[] 'open questions'"

that prompted our remand, namely, "the significance of the video

- 17 -
evidence in assessing Gross's limitations and the veracity of her

self-reported and observed symptoms." Gross I, 734 F.3d at 27-

28. Accordingly, Sun Life asserts, its own "overwhelming evidence"

that the surveillance undermines Gross's disability claim is

unrefuted and, hence, Gross failed to sustain her burden of proof.

We see the record differently. Sun Life both overstates

the persuasive value of its own post-remand submissions and

sidesteps the fact that we previously found Gross's medical

evidence sufficient to prove her entitlement to benefits. See id.

at 24-25 ("In sum, the sustained and progressive nature of Gross's

complaints, their facial credibility to the medical practitioners

who personally examined her, and the objective symptoms consistent

with RSD . . . support a finding of disability."). In seeking

further development of the record, our objective was to learn

whether, in light of the surveillance, there was reason to

discredit the medical evidence we found adequate to prove total

disability. See id. at 27 (describing "the open question" for

remand as "the effect that the surveillance evidence, when viewed

in context, [has] on other evidence indicating disability"). That

is, we found that Gross had met her burden to show her total

disability, but we sought additional information to help us

determine if the surveillance evidence put forth by Sun Life was

sufficiently probative to undermine Gross's medical evidence.

Regrettably, neither party took full advantage of the opportunity

- 18 -
to reinforce its position. As we shall explain, Sun Life must

bear the burden of that deficiency because -- as the district court

held -- the insurer failed to show that the surveillance "casts

doubt . . . sufficient to dislodge" our judgment that the medical

record supports Gross's disability claim. Gross Remand Op. at 5.10

For its part, Sun Life did not have Gross reevaluated

and, instead, secured opinions based on reviews of her existing

records and the surveillance. These reports primarily reiterated

what we already knew: Gross engaged in some activities that were

inconsistent with the most severe symptoms and limitations she

described to her doctors during years of treatment for pain, as

well as with the severity and persistence of pain typically

associated with a diagnosis of CRPS or RSD. The central theme of

the new evidence, as Ross put it, is that "[t]he medical evidence

does not support a functional impairment," and, accordingly,

"[t]he claimant's observed activities are more consistent with her

true functional status."

Yet, "[t]he medical evidence" already was before us

during Gross's first appeal, and we found adequate record support

10
In response to the concurrence, the other panel members
assert that we have followed the ordinary practice of "review[ing]
and weigh[ing] the administrative record as a whole." That full-
record review was simply divided between two decisions, with the
current appeal (Gross III) addressing the issue left unresolved in
Gross I: whether the medical evidence in Gross's favor was
undermined by the surveillance evidence. These two decisions did
not alter Gross's burden of proof.

- 19 -
for her self-reported limitations to conclude, subject to further

insight into the surveillance evidence, that Gross had shown an

entitlement to benefits. Moreover, as noted above, Egan's reports

in the fall of 2006 set the outside range of Gross's abilities as

sitting in one place for two hours, driving for ninety minutes,

standing or walking for an hour, and lifting ten pounds. Gross I,

734 F.3d at 17 & n.19. Even the "particularly troubling"

activities surrounding the hospital visit in early 2007 were not

far removed from those limits, id. at 26, and we observed in our

prior decision that, "[i]n context, the extra driving, the hurried

movements, the pumping of gas may have been at the far edge of

what she could manage with the aid of medication in the face of a

family crisis," id. at 27.

Indeed, Gross told Bhupalam that she can "function

better" after changing her pain medication patch, id. at 20,11 and

a month before the hospital trip she reported using numerous other

medications on a daily basis, see id. at 19. Given the inference

we drew from Bhupalam's addendum that the surveillance activities

were not decisively at odds with a finding of total disability,

Sun Life needed to show that, to the contrary, the capabilities

11She also reported to another doctor, in March 2007, that
"she could lift her arm slightly after changing her pain medication
patch." Gross I, 734 F.3d at 27 n.32.

- 20 -
Gross demonstrated in the videos were incompatible with the medical

record of disability.

Ross and Gupta's assessments, however, failed to

evaluate the three highlighted surveillance reports in the context

of the entire surveillance investigation and the consistent

perceptions of examining practitioners that her complaints of pain

were genuine. In particular, Sun Life's experts did not explain

the contrast between the more ambitious surveillance activities

that we highlighted and Gross's numerous days of relative

inactivity, a noticeable gap in light of her reports that she could

obtain temporary relief from pain medications.

As described above, the surveillance took place over

nine days, and the investigator saw little activity by Gross on

most of those days. Id. The surveillance began with three days

in November 2006. On November 7, Gross left home at 7:17 AM for

the first of two brief excursions, and she was seen limping when

she returned home at 9:27 AM. On November 8, she was out of the

house for roughly 30 minutes (3:20 PM to 3:51 PM) when she drove

to a shopping center and back. On November 9, the surveillance

showed more activity, albeit only for the morning: Gross took her

stepdaughter to school, briefly went inside the high school,

returned home for a few minutes, and then drove to her mother's

home -- a trip that took a bit more than an hour and a half,

including a rest stop after an hour. She arrived at 11:05 AM, and

- 21 -
the investigator saw no further activity before he left the area

at 2:15 PM. During the next surveillance period, in January 2007,

Gross did not leave the house at all during two of the three days

(January 10 and 12). Even on January 11, the day she was observed

at Kmart, she was out only from 6:16 PM to 7:14 PM. During the

final surveillance period, in February 2007, described more fully

infra, Gross was either inactive or physically compromised on two

of the days (February 22 and 23), and on February 21 she made the

hospital visit to her mother.

Ross and Gupta thus appeared to treat the most extreme

surveilled activities as decisive over Gross's long history of

credible pain, without confronting her inactivity during most of

the surveillance. Moreover, Sun Life's counsel acknowledged at

oral argument that there is no record evidence that Ross was told

that Gross's travel on February 21 occurred after she learned that

her mother had been taken to the hospital on an emergency basis.12

We recognize that Gupta's addendum refers not only to

the identified episodes, but also to Gross's use of her right hand

on the three successive days of surveillance in November 2006,

including for the purpose of closing a car door and reaching into

12 Sun Life's failure to provide that background would be
contrary to our decision in Gross I, where we observed that
"knowledge of the reason for Gross's unusual travel that day [is]
essential for any reliable appraisal of her medical condition."
734 F.3d at 27.

- 22 -
her purse, and he notes that she "is seen ambulating fluidly, with

no limp, in all three days." He similarly reports that, during

the three days of surveillance in January 2007, Gross is seen

walking "in a normal manner, using her right hand to brush her

hair off of her face . . . [and] adjust[ing] the shoulder strap of

her purse with the same hand." We consider brief actions by Gross,

on days when she was largely inactive or also manifested

limitations, of minimal significance. Some fluctuation in

physical ability related to such factors as fatigue and the timing

of medications is predictable, see id. at 26, and assessments of

Gross's activities that fail to account for such variations are

necessarily incomplete if not misleading.13 Indeed, the

investigator also saw Gross limping on one of the November days

that Gupta referenced.

13Neuren did state that CRPS is not a "part time condition,"
and in his post-remand report, Gupta opined that the diagnosis of
CRPS was likely wrong because "[n]o amount of pain control of CRPS
would be so successful as to allow the absolutely normal
functioning seen in the[] videos, in my experience." However,
Neuren's general statement does not shed light on what temporary
improvements in functioning could be expected from Gross's
combination of medications. Gupta's statement was muted by his
acknowledgment that "[p]ressing circumstances" might allow someone
to undertake activities "that would otherwise be considered
'unachievable.'" Moreover, even if the diagnosis of CRPS were
incorrect -- as Gupta posited -- Gross's other pain-related
diagnoses would remain, including fibromyalgia and severe
migraines. Neither doctor indicated that pain associated with
those conditions could not be temporarily alleviated with
medication.

- 23 -
 Sun Life emphasizes that it offered ample evidence that

the inconsistency between Gross's complaints and the surveillance

indicates that she was either embellishing or self-inducing her

symptoms, or both. Neuren's original report noted both of those

possibilities, id. at 25, and, as described above, Gupta's post-

remand report stated that many of the skin abnormalities associated

with CRPS or RSD that appear in Gross's medical record can be self-

induced. But all of the medical practitioners who actually

examined Gross found her credible, and Neuren and Gupta's

generalized speculation does not explain how Gross could have

deceived so many observers over a substantial period of time14 --

not only doctors, but her co-workers as well.

Even most of Bhupalam's addendum, in which he retreats

from his original finding of disability, consists of nothing more

than what he sees on the videotape. He observes, for example,

that Gross "does not appear to be in any pain or discomfort in the

video recorded on February 21." Bhupalam does not attempt to

explain, however, how to reconcile what can be seen on the

videotapes with his in-person evaluation. In all likelihood, the

14Although it plays no role in our assessment of Sun Life's
benefits decision, we note that the Social Security Administration
determined in August 2008 that Gross "became disabled under our
rules on March 1, 2007," and awarded her benefits.

- 24 -
puzzling dissonance is why he noted that a reevaluation could be

helpful.15

We are frankly puzzled that Sun Life did not act on

Bhupalam's suggestion of a reexamination,16 given our highlighting

of both the believability of Gross's symptoms to medical

practitioners and her co-workers' description of her deteriorating

physical condition while she attempted to remain on the job. In

defending its reliance solely on non-examining physicians, Sun

Life emphasizes that ERISA plan decisionmakers "are not obliged to

accord special deference to the opinions of treating physicians."

Black & Decker Disability Plan v. Nord, 538 U.S. 822, 825 (2003).

But that is not the pertinent principle here. In Black & Decker,

the difference of opinion at issue was between the claimant's

treating physician and an independent medical examiner who also

had personally examined the claimant. Id. at 827. Where the

determination of disability depends on an assessment of largely

15 In his addendum, Bhupalam does note that, despite his
conclusion of total disability based on his examination of Gross,
"there were questions about validity of her sensory examination
and motor examination, especially with weakness and inability to
use her right upper extremity and inability to transfer from the
bed to the chair and bed to examination table, etc., and requiring
full assistance." Those "questions about validity," however, did
not prevent his conclusion of disability.

16 For reasons discussed in Section III infra, Sun Life
probably could not have obtained a reevaluation from Bhupalam. A
physical examination could have been performed, however, by
another medical professional who was given knowledge of the
surveillance.

- 25 -
subjective, self-reported symptoms, those who have had in-person

exposure -- whether treating physician or not -- have access to

information unavailable to non-examining doctors.

To be clear, we are not saying as a general matter that

the views of examining doctors are entitled to more weight than

the opinion of a doctor who performs only a records review.

Indeed, we have held to the contrary. See Orndorf v. Paul Revere

Life Ins. Co., 404 F.3d 510, 526 (1st Cir. 2005) ("Denials of

benefits may be based on review of medical records submitted by

the claimant."); see also Richards v. Hewlett-Packard Corp., 592

F.3d 232, 240 (1st Cir. 2010). However, where the claimant's

credibility is a central factor in the disability

determination -- and particularly where, as here, the claimant's

in-person presentation of symptoms was credited by the independent

medical examiner, Bhupalam -- the impressions of examining doctors

sensibly may be given more weight than those who looked only at

paper records. See, e.g., Kalish v. Liberty Mut./Liberty Life

Assurance Co. of Bos., 419 F.3d 501, 510 (6th Cir. 2005) (giving

little weight to credibility determination by doctor who did not

physically examine claimant "and in contradiction of the . . .

investigator's conclusion that plaintiff was 'very credible'");

cf. United States v. Raddatz, 447 U.S. 667, 679 (1980) (noting

that "courts must always be sensitive to the problems of making

credibility determinations on the cold record"). We thus find

- 26 -
minimal new insight in Sun Life's post-remand submissions, which

fail to provide a "contextualized assessment of the most

significant departures from her professed limitations." Gross I,

734 F.3d at 27 (emphasis added).

Yet, Gross's offerings, too, are less compelling than we

would have anticipated. Neither of her two post-remand reports

was based on a new medical examination, and both were summary in

form. As described above, Murphy, the pain specialist, provided

a one-page letter containing a number of general statements --

e.g., that surveillance in general, and the surveillance of Gross

in particular, is "not a reliable indicator of actual physical

capacity" for someone with CRPS and fibromyalgia, and that the

impact of her conditions "can vary from day to day" and "even

minute to minute" -- but he does not specifically address the gap

between Gross's reported symptoms and her seeming ability at times

to "function quite well" (Bhupalam's words).17 Kaczmarek's new

submission similarly reports that Gross's activities as seen in

the surveillance videos are consistent with his prior findings

that she cannot engage in sedentary employment, but he provides no

explanation for that conclusion.

17
Sun Life correctly points out that the district court
factually erred in describing Murphy as a treating physician. That
mistake, however, has no import for our independent review of the
evidence.

- 27 -
 Although Gross's supplemental material responds to the

questions raised in our prior decision, its persuasive force would

have been enhanced if either practitioner had provided some

elaboration of his opinion that the surveillance is consistent

with a finding that Gross is totally disabled. In addition,

although we noted in Gross I that Gross had not "submit[ted] a

statement from her own doctor refuting Sun Life's assertion

. . . that the surveillance 'show[ed] a capacity for activity that

far exceeds' the limitations she claims," 734 F.3d at 27 (second

alteration in original), Gross did not supply such a response on

remand. Sun Life asks us to infer that this omission is because

Egan's comments would be adverse to Gross. We decline to make

that inference in part because it is highly speculative. More

importantly, there is no necessary inconsistency between the

limitations Egan identified in her evaluations of Gross at the end

of 2006 and the surveilled activities. As we have observed, Egan

contemplated the kind of limited activity seen in the videos --

including driving and sitting for extended periods, and lifting

ten pounds -- and Gross's occasional use of her right arm is not

incompatible with Egan's view that it was ordinarily useless. We

nonetheless admonish Gross, along with Sun Life, for submissions

on remand that are less than ideal.

- 28 -
 2. Our Conclusion

We have thus gained little additional knowledge from the

remand about the significance of the surveilled activities that

previously gave us pause. In assessing the competing undeveloped

views that have been presented, however, we find more plausible

Murphy's opinion that those activities do not contradict Gross's

medical history because her most extreme symptoms are not always

present. A commonsense view of Gross's maladies -- one not

dislodged by any persuasive contrary medical evidence -- supports

Murphy's statement that "numerous factors" can affect the severity

of her symptoms.

Indeed, the investigator's reports and videos displayed

significant variations in Gross's capacity at times when Gross

would have had no reason to fabricate symptoms.18 Importantly, the

noteworthy departures comprised a small portion of her surveilled

activities, and the surveillance on the day following her most

ambitious activity -- traveling to her suddenly hospitalized

mother -- showed her physically depleted. Id. at 20. When exiting

her residence for her appointment with Bhupalam, Gross walked with

a limp and received assistance from her husband; when leaving the

medical center after roughly two- and one-half hours, she was in

18On the day of her hospital travel, for example, Gross was
seen with a severe limp as she walked from her front door to her
car, before proceeding to the gas station.

- 29 -
a wheelchair, and the investigator observed that Gross appeared

unable to stand on her own. When she got out of the chair, she

limped to the car and appeared to fall in or sit down quickly onto

the passenger seat. That was the day Bhupalam concluded that she

was "totally disabled even for sedentary work even on a part time

basis." Id. The next day, the investigator observed no activity

at all. Id. at 27.

Hence, we think it fair to conclude that Sun Life gave

undue importance to the few occasions when Gross appeared not to

be disabled by her symptoms, leading to a distorted view of her

capacities. When the surveillance is instead viewed in context,

it belies Gross's ability to engage in fulltime employment.

Indeed, she appeared to suffer significant consequences on the two

days that followed the hospital visit (i.e., both the day she was

examined by Bhupalam and the following day, when she apparently

did not leave home). Such adverse physical impact is what one

would expect when an individual with serious medical issues

disregards her doctor's guidelines. That is to say, activity

restrictions do not necessarily define an individual's maximum

capacities on any particular occasion. Rather, prescribed limits

are just as likely intended to protect the individual from

aggravating her physical condition. From that perspective, when

the three days of February surveillance are taken together, they

reinforce, rather than undermine, Gross's claim.

- 30 -
 Moreover, the elusive source of Gross's reported

pain -- perhaps fibromyalgia, perhaps RSD or CRPS, perhaps all

three -- gives particular importance to the credibility judgments

of those who examined her. Neuren and Gupta emphatically rejected

the possibility that the pain associated with CRPS could be

sufficiently diminished to allow normal activity, but CRPS is not

Gross's only diagnosis. Gupta noted that, with respect to

fibromyalgia, determining individuals' "degree of impairment . . .

often rests on their credibility." He went on to state that

"[t]here has not been enough credibility established for this

claimant to allow for a determination of impairment to be based

purely on her subjective complaints and allegations." We disagree

with his assessment of the evidence; while Gross's credibility

does find support in the record, the insinuations of fabrication

do not.

To be sure, the record reflects some exaggeration by

Gross, or perhaps selective reporting of her worst-case

experiences. She evidently told Egan in the fall of 2006 that she

"could not . . . use her right hand," id. at 17, and Kaczmarek

also reported that she lacked "functional use of her right arm,"

id. at 18. In January 2007, Gross told Kaczmarek that "she

tolerates short bouts of activity for less than a few minutes" and

has "difficulty walking with frequent falls." Id. at 26. In

November 2007, Egan stated that Gross "can hardly raise her arm."

- 31 -
Id. at 21. As we have seen, Gross plainly can, at times, use her

right hand and arm, and -- whether because of medication or

otherwise -- she can episodically "function quite well." Overall,

however, the medical record depicts an individual afflicted with

chronic severe pain that routinely affects her ability to walk,

bend and sit; whose ability to use her right arm is compromised;

whose pain and fatigue restrict her day-to-day functioning; and

who credibly manifested these conditions during physical

examinations conducted by multiple medical professionals.19

We thus reiterate our conclusion that the medical record

"support[s] a finding of total disability." Id. at 25. Lacking

persuasive evidence that that record inaccurately portrays Gross's

ability to work, we affirm the district court's ruling that Gross

is "entitled to disability benefits from Sun Life." Gross Remand

Op. at 5.

19Sun Life argues that a finding of disability is improper
because several doctors opined that Gross's symptoms were
partially attributable to emotional factors, and she failed to
obtain counseling or behavioral treatment. As noted in our prior
opinion, counseling is a recommended approach for treating the
symptoms of CRPS, Gross I, 734 F.3d at 24, and Egan observed in
September 2006 that depression "certainly is contributing to her
pain," id. at 17 n.18. However, the possibility that psychological
treatment would be helpful does not lead to the conclusion that,
if Gross had pursued counseling, her symptoms would be diminished
to the extent that she could manage a regular workday. See id. at
24 n.31 (quoting a CRPS fact sheet prepared by the National
Institute of Neurological Disorders and Stroke stating that
"[p]eople with CRPS may develop depression, anxiety, or post-
traumatic stress disorder, all of which heighten the perception of
pain and make rehabilitation efforts more difficult").

- 32 -
 III. Sanctions

Sun Life argues that the district court abused its

discretion by failing to impose sanctions on one of Gross's

attorneys for interfering with Sun Life's post-remand

investigation of Gross's claim. We begin by describing the conduct

underlying Sun Life's contention.

A. Factual Background

In November 2014, while the renewed administrative

proceedings were ongoing, attorney Michael Grabhorn wrote to

Bhupalam and asked him to complete an addendum, provided with the

letter, that would in effect override Bhupalam's previous addendum

and confirm the doctor's original opinion that Gross's physical

limitations rendered her totally disabled.20 Grabhorn's letter

assumed that, at the time of Bhupalam's examination of Gross, the

doctor had not been provided with some of Gross's medical records

from her treating physicians or given the FCE conducted by

Kaczmarek.21 Grabhorn also stated that Bhupalam had not been "made

aware of the context of Ms. Gross' physical activities observed in

the surveillance videos," including the fact that her travel on

February 21, 2007 was in response to the news that her mother had

20
Grabhorn also questioned whether Bhupalam had personally
prepared the previous addendum, which Grabhorn described as "[t]he
unsigned addendum on your letterhead."
21
Sun Life states in its brief on appeal that Bhupalam did
have the FCE, and Gross does not challenge that assertion.

- 33 -
been taken to the emergency room with chest pains. Grabhorn

included with his letter Kaczmarek's post-remand report confirming

his earlier findings.

Bhupalam did not respond to the November letter, which

was re-sent to him via fax on December 1. In early February 2015,

Grabhorn sent him another letter. The attorney reiterated his

incorrect assertion that Bhupalam had not been provided with all

of Gross's medical records or the FCE, noted that these materials

had been sent with his previous letter, and stated that Bhupalam

had failed to comply with the request that he "amend [his] prior

medical opinion so as to accurately confirm [that] Mrs. Gross'

physical restrictions and limitations precluded her from engaging

in active full-time employment of any kind." In other words,

Grabhorn more directly asked Bhupalam in this letter to withdraw

the April 2007 addendum in which he had changed his opinion of

Gross's ability to work based on the video surveillance. Grabhorn

threatened legal action if Bhupalam failed to "correct[]" his

medical opinions, and he included a draft complaint alleging claims

of negligence, defamation, and fraud, and seeking punitive

damages.

Sun Life learned of these communications several weeks

later when it received a letter from Bhupalam's attorney explaining

that the doctor would not be responding to Sun Life's request for

follow-up comment on Gross's "functionality back in February

- 34 -
2007." After reporting that Grabhorn had threatened to sue

Bhupalam if he failed to retract his addendum, the attorney's

letter continued as follows:

As you can imagine, Dr. Bhupalam does not wish
to be further involved in any way in the
ongoing litigation between Ms. Gross and Sun
Life Financial. Therefore, he respectfully
declines to render any additional opinions
regarding Ms. Gross' condition and would stand
by his addendum report.

B. Discussion

Sun Life argues on appeal that the district court should

have addressed Grabhorn's "unacceptable" actions "in some manner,"

and it asserts that it was harmed because Grabhorn's threat of

legal action kept Bhupalam from responding to Sun Life's request

for clarification of his opinion. In particular, Sun Life states

that it was unable to include in its final decision letter the

fact that Bhupalam had reaffirmed his addendum opining that Gross

was capable of sedentary employment. In urging the need for

sanctions to deter Grabhorn's "bad behavior," Sun Life points to

an unrelated disability case in which Grabhorn was sanctioned for

similar conduct that another court labeled "inexcusable," namely,

making "thinly veiled threats designed to silence the adverse

opinion of an opposing party's witness." Graves v. Standard Ins.

Co., No. 3:14-cv-558-DJH, 2015 WL 5613198, at *2 (W.D. Ky. Sept.

24, 2015). Sun Life also cites two other instances in which

Grabhorn was sanctioned with an assessment of attorney's fees for

- 35 -
vexatious conduct during discovery. See Graves v. Standard Ins.

Co., No. 3:14-cv-558-CRS-DW, 2016 WL 6824403, at *1-3 (W.D. Ky.

Nov. 17, 2016); Pogue v. Nw. Mut. Life Ins. Co., No. 3:14-cv-

00598-CRS, 2016 WL 3748519, at *2-3 (W.D. Ky. July 8, 2016).

Grabhorn's threat of litigation against a potentially

adverse expert is troubling, particularly given that it was not an

aberration. Sun Life, however, provided no assistance to the

district court in evaluating the sanctions question. It merely

argued in its brief in support of its motion for judgment that

Grabhorn's "tampering with a witness . . . should . . . be

sanctioned in a manner deemed appropriate" by the court. Gross v.

Sun Life Assurance Co. of Can., No. 1:09-cv-11678-RWZ, Docket 107,

at 24 (filed Mar. 4, 2016). Sun Life neither addressed the source

for the court's authority to discipline Grabhorn nor provided

examples of measures that would be within that authority.22 Even

22 Sun Life presumably was relying on a federal court's
"inherent power 'to discipline attorneys who appear before it.'"
United States v. Romero-Lopez, 661 F.3d 106, 108 (1st Cir. 2011)
(quoting Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991)); see
also In re Charbono, 790 F.3d 80, 85-86 (1st Cir. 2015) (observing
that "courts may levy sanctions (including punitive sanctions),"
for "varied purposes," including disciplining attorneys). In some
circumstances, courts also may rely on federal rules or statute.
See Chambers, 501 U.S. at 42-43 (holding that the federal sanctions
provision, 28 U.S.C. § 1927, "and the various sanctioning
provisions in the Federal Rules of Civil Procedure" do not "reflect
a legislative intent to displace the inherent power" (footnote
omitted)).

- 36 -
on appeal, Sun Life does not suggest what sanctions might be

"appropriate."

The decision to impose sanctions is not to be made

lightly. "The Supreme Court has admonished courts to be cautious

in using their inherent power to sanction, explaining that

'[b]ecause of their very potency, inherent powers must be exercised

with restraint and discretion.'" United States v. Romero-Lopez,

661 F.3d 106, 108 (1st Cir. 2011) (quoting Chambers v. NASCO, Inc.,

501 U.S. 32, 44 (1991)). Although harm to an opposing party or

counsel is not a prerequisite, see generally United States v.

Kouri-Perez, 187 F.3d 1, 8-9 (1st Cir. 1999) (discussing "non-

contempt punitive sanctions," including for "harassment of

opposing counsel"), the absence of harm from an attorney's

misbehavior reasonably may play a role in the district court's

decision on whether to undertake the process for imposing

sanctions, see, e.g., Media Duplication Servs., Ltd. v. HDG

Software, Inc., 928 F.2d 1228, 1238 (1st Cir. 1991) ("In general,

a higher standard of due process protection is required where

. . . the sanction is a fine designed to go beyond compensation

and punish an attorney.").

Here, notwithstanding its contention to the contrary,

Sun Life has not demonstrated that it was disadvantaged by

Grabhorn's conduct. The follow-up information that Sun Life sought

from Bhupalam was nonetheless added to the record. Sun Life asked

- 37 -
Bhupalam to comment only on whether knowledge of the reason for

Gross's travel to the medical center "changes your opinion

regarding her functionality on that date." Although Sun Life

complains that Grabhorn's interference resulted in belated

notification that Bhupalam had reaffirmed his addendum, nothing

turns on that delay. Grabhorn's letters and Bhupalam's response

have been available to the district court and on appeal.23

Under these circumstances, and without condoning

Grabhorn's actions, we see no reason to second-guess the district

court's judgment not to award sanctions. Yet Grabhorn's conduct

on appeal makes this a closer issue than it might otherwise be.

In the appellate brief that Grabhorn signed, Gross represents that

the threatening letter was a reaction to multiple unsuccessful

attempts to obtain medical records from Bhupalam. The brief also

states that, "[a]s indicated in her letter, upon Dr. Bhupalam

providing a complete copy of his chart, Ms. Gross agreed to forgo

legal action." Neither of the letters described above, however,

referenced a request for records. To the contrary, the threat of

23Sun Life's timing complaint -- that it was "prevented . . .
from including in its decision letter information specifically
requested by this Court" -- is somewhat disingenuous given that
Sun Life waited until very late in the remand process to seek the
follow-up opinions from both Bhupalam and Neuren that we indicated
could be helpful. Sun Life denied Gross's claim in July 2014, and
Gross filed her response in November 2014. Sun Life sent its
letter to Bhupalam seeking follow-up comment on January 30, 2015.
Sun Life's final decision was issued two weeks later.

- 38 -
legal action was linked to the demand that Bhupalam "correct" his

medical opinions.24

In sum, while we uphold the district court's exercise of

discretion on the matter of sanctions, we consider Grabhorn's

threat of litigation to Bhupalam, and his misrepresentations in

defense of that conduct on appeal, worthy of reproach. Hence, in

our mandate, we will direct the Clerk of Court to send a copy of

this opinion to the Kentucky Office of Bar Counsel for whatever

action, if any, it deems appropriate. See, e.g., Punzalan v.

Holder, 575 F.3d 107, 112 (1st Cir. 2009) (directing the Clerk to

send copies of the opinion to California bar disciplinary

authorities); Aversa v. United States, 99 F.3d 1200, 1216 (1st

Cir. 1996) (referring the matter of attorney conduct to, inter

alia, the New Hampshire Supreme Court's Professional Conduct

Committee).

IV. Prejudgment Interest

In her cross-appeal, Gross argues that the district

court abused its discretion in awarding her prejudgment interest

at the federal statutory rate. See 28 U.S.C. § 1961(a). We

describe the applicable law before turning to Gross's contentions.

24
Moreover, although Grabhorn had in other correspondence
asked Bhupalam for the medical records, he previously had been
told that the doctor would not release them without Sun Life's
permission. Grabhorn did not contact Sun Life to secure that
permission.

- 39 -
A. Availability of Prejudgment Interest

ERISA does not explicitly provide for prejudgment

interest, and whether to grant such a remedy is thus within the

discretion of the district court. Cottrill v. Sparrow, Johnson &

Ursillo, Inc., 100 F.3d 220, 223 (1st Cir. 1996), abrogated on

other grounds by Hardt v. Reliance Standard Life Ins. Co., 560

U.S. 242 (2010). The court's discretion also extends to the rate

of interest to be applied, with the choice to be guided by

equitable factors. Id.; see also Enos v. Union Stone, Inc., 732

F.3d 45, 50 (1st Cir. 2013).

We previously have identified two primary considerations

when a court decides to award prejudgment interest. First, ERISA's

remedial objectives are served by making the plan participant

"whole for the period during which the fiduciary withholds money

legally due." Cottrill, 100 F.3d at 224; see also, e.g.,

Schumacher v. AK Steel Corp. Ret. Accumulation Pension Plan, 711

F.3d 675, 686 (6th Cir. 2013) ("An award that fails to make the

plaintiff whole due to an inadequate compensation for her lost use

of money frustrates the purpose of ERISA's remedial scheme.").

Second, courts should endeavor to prevent unjust enrichment.

Cottrill, 100 F.3d at 224. Awarding interest at a rate that does

not recapture the lost value of the money during the period it was

withheld "would create a perverse incentive" for a defendant to

delay payments while it earned interest on those funds. Pacific

- 40 -
Ins. Co. v. Eaton Vance Mgmt., 369 F.3d 584, 590 n.8 (1st Cir.

2004);25 see also Christianson v. Poly-America, Inc. Med. Benefit

Plan, 412 F.3d 935, 941 (8th Cir. 2005) ("A common thread

throughout the prejudgment interest cases is unjust enrichment --

the wrongdoer should not be allowed to use the withheld benefits

or retain interest earned on the funds during the time of the

dispute." (quoting Kerr v. Charles F. Vatterott & Co., 184 F.3d

938, 946 (8th Cir. 1999))); Rybarczyk v. TRW, Inc., 235 F.3d 975,

986 (6th Cir. 2000) ("To allow the Fund to retain the interest it

earned on funds wrongfully withheld would be to approve of unjust

enrichment." (alteration omitted) (quoting Sweet v. Consol.

Aluminum Corp., 913 F.2d 268, 270 (6th Cir. 1990))). At the same

time, however, the rate should not be so high that it "impose[s]

a punitive measure." Schumacher, 711 F.3d at 686.

In Cottrill, we endorsed the district court's use of the

rate prescribed by § 1961(a), noting that "this rate promotes

25
Although both Cottrill and Pacific Ins. Co. are ERISA cases,
neither involved the precise question we face here. The issue in
Cottrill was the proper accrual date for prejudgment interest.
See 100 F.3d at 224. In Pacific Insurance Co., the issue was
whether the employer's insurer, or the employer itself, should pay
the interest on belated contributions to an employee profit-
sharing plan. 369 F.3d at 585, 590 & 590 n.8. We noted there
that "[t]he interest at issue . . . is, essentially, the
prejudgment interest that a court might have awarded [the
employees] had they elected to litigate their claims for payment
of benefits due under the Plan." Id. at 590 n.8. Given the
related contexts, our observations in those cases are equally
applicable here.

- 41 -
uniformity in ERISA cases" and was "especially appropriate

. . . because the Plan's funds were initially invested in Treasury

bills." 100 F.3d at 225. We emphasized, however, that courts

have "broad discretion" to select the rate, id., "and they may

look to outside sources, including state law, for guidance," id.

at 224-25. In fact, courts have used various benchmarks to

accomplish the dual objectives of making an ERISA plaintiff whole

and avoiding unjust enrichment. See, e.g., Enos, 732 F.3d at 50

(upholding district court's choice of "an interest rate set out in

the parties' own agreement"); Rybarczyk, 235 F.3d at 981, 985-87

(upholding district court's award of the higher of the § 1961(a)

rate or "the rate of return actually earned on the principal amount

of the underpayment during the prejudgment period"); Frommert v.

Lawrence Becker Xerox Corp. Plan Adm'rs, 216 F. Supp. 3d 309, 316

(W.D.N.Y. 2016) (applying the federal prime rate because the state

and federal statutory rates "could result in a windfall for one

side or the other"); Gallagher v. Park West & Trust Co., 951 F.

Supp. 10, 14 (D. Mass. 1997) (applying 12% state law rate).

One complexity in selecting an appropriate rate is the

ever-changing relationship between statutory interest rates and

the actual cost of money. In Schumacher, for example, the Sixth

Circuit held that the district court abused its discretion by

awarding prejudgment interest at the federal statutory rate, which

at that time was 0.12%. See 711 F.3d at 685. The court cited,

- 42 -
inter alia, the then-current annual rate of inflation (2.75%), the

defendant's borrowing costs (7.75%), and the defendant's rate of

return on its investments (6.55%) in concluding that the § 1961(a)

rate was unfairly low, and it directed the district court on remand

to "fashion an award that considers and balances the interests

involved." Id. at 686-87; see also Frommert, 216 F. Supp. 3d at

315 (concluding that the 9% state rate was too high, and the

federal rate at that time, 0.66%, was too low). By contrast, when

we endorsed use of the § 1961(a) rate in Cottrill over Rhode

Island's 12% rate, the federal rate was 4.12%. See 100 F.3d at

224-25; https://www.treasury.gov/resource-center/data-chart-

center/interest-rates/Pages/TextView.aspx?data=yieldYear

&year=1991 ("Treasury website") (for Dec. 31, 1991 accrual date).

In sum, when a district court has concluded that a

plaintiff should be awarded prejudgment interest, its task in

selecting the rate is to identify, in the particular case, a fair

percentage reflecting "both the rationale of full compensation and

ERISA's underlying goals." Cottrill, 100 F.3d at 225.

B. Discussion

Gross asked for a prejudgment interest amount that would

"reflect the actual interest earned by Sun Life on Ms. Gross'

withheld past due LTD benefits" or "interest calculated at her

borrowing rate (e.g. the prime interest rate adjusted for risk of

default)." Gross v. Sun Life Assurance Co. of Can., No. 1:09-cv-

- 43 -
11678-RWZ, Docket No. 109, at 15 (filed Mar. 4, 2016). She

asserted that interest should accrue from January 2007, the date

of her benefits eligibility. The district court, without

explanation, awarded prejudgment interest "from the date of the

filing of the complaint in this action, calculated according to

the method specified in 28 U.S.C. § 1961." Id. at Docket No. 123.

Gross argues that the court abused its discretion in

selecting the federal rate because it is too low to make her whole

"and by extension unjustly enrich[es] Sun Life at Mrs. Gross'

expense."26 She now asserts that the court should have employed

the greater of Massachusetts's interest rate for contractual

obligations (12%), see Mass. Gen. Laws ch. 231, § 6C, or Sun Life's

earnings percentage for the time period at issue. According to

Gross, Sun Life's public filings place the latter above 12% for at

least a portion of the covered period. By comparison, the

§ 1961(a) rate in early October 2009, when Gross's complaint was

filed in federal court, was just 0.37%. See Treasury website

(2009).27 At the time of the district court's judgment in July

2016, it was 0.51%. Id. (2016).

26
Gross does not challenge the court's choice of an accrual
date, which we understand to be October 6, 2009, the date her
complaint was removed to federal court.

27
The Treasury website address listed in Section IV.A can be
altered at the end to access data for other years; i.e., instead
of inserting "&year=1991," insertion of "&year=2009" would
retrieve the 2009 data. The 2016 percentage noted infra is

- 44 -
 Notwithstanding the district court's considerable

discretion in choosing the prejudgment interest rate, its decision

must permit some scrutiny. Here, however, we are unable to

evaluate the court's judgment call because it did not explain its

reasoning, and its rationale is not apparent from the record. Cf.

Enos, 732 F.3d at 50 (rejecting defendant's complaint about lack

of explanation for prejudgment interest award where "it is apparent

from the record that the amount was extrapolated from the rate

stipulated in the CBA and recommended by the [plaintiffs]"). This

is not a case, like Cottrill, where the § 1961(a) rate could be

expected to "approximate[] the likely return on the funds

withheld." 100 F.3d at 225 (describing similar holding in Algie

v. RCA Global Communications, Inc., 891 F. Supp. 875, 899 (S.D.N.Y.

1994)). Moreover, the federal statutory rate is markedly lower

than when we decided Cottrill.28 Also of importance is the lengthy

delay in the benefits payments to Gross -- approaching eleven years

since they should have commenced.

In these circumstances, mechanical adoption of the

§ 1961(a) rate would be an abuse of discretion. Because we cannot

similarly available by changing the concluding portion of the
website address to "&year=2016."

28 The rate dropped under 1% in late 2008 and remained below
that mark until late 2016. In 2017, the rate's low point was 0.79%
and, as of December 29, 2017, the rate was 1.76%. See Treasury
website & supra note 27.

- 45 -
discern whether the court had supportable reasons for choosing

that rate based on the equities and ERISA's goals, we must vacate

the award of prejudgment interest and remand to the district court

for reassessment or explanation of its interest-rate

determination.

V. Attorney's Fees

ERISA's attorney's fee provision allows a court in its

discretion to award reasonable attorney's fees in benefits

proceedings. See 29 U.S.C. § 1132(g)(1). Following our decision

in Gross I, Gross filed a motion in this court seeking fees and

costs incurred thus far in the case. Given the uncertainty about

Gross's entitlement to attorney's fees under ERISA case law, we

ordered the parties to submit supplemental briefs addressing that

issue. A split panel subsequently decided, in Gross II, that a

fee award was appropriate based on Gross's success in Gross I,

where we held, inter alia, that "our circuit should no longer apply

the highly deferential 'arbitrary and capricious' standard of

review to certain benefits decisions." Gross II, 763 F.3d at 75.

Significantly, the panel majority in Gross II concluded that Gross

had achieved the degree of success required for fees eligibility,

see Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 245

(2010), even though she had not yet been found entitled to

disability benefits. See Gross II, 763 F.3d at 79-80. We further

held that her fee request was ripe for adjudication because our

- 46 -
"remand for reconsideration of her entitlement to benefits, in

combination with a less deferential standard of review, means that

Gross already ha[d] achieved the success that makes her eligible

for fees." Id. at 81.

We did not ourselves perform "[t]he heavily fact-

dependent lodestar analysis" that ordinarily is used to calculate

fee awards, and instead instructed the district court to do so.

Id. at 86. The lodestar approach involves both an assessment of

the lawyer hours reasonably spent on behalf of the prevailing party

and a determination of the reasonable hourly rate for each

attorney. See Matalon v. Hynnes, 806 F.3d 627, 638 (1st Cir.

2015). "Multiplying the results of these two inquiries yields the

lodestar amount," which may then be adjusted "based on factors not

captured in the lodestar calculation." Id.

Utilizing the lodestar analysis, the district court

ordered Sun Life to pay Gross $96,243.50 to cover counsel fees

through her first appeal, including for work on the post-judgment

fee petition that led to our decision in Gross II. See Gross v.

Sun Life Assurance Co. of Can., 105 F. Supp. 3d 130, 140 (D. Mass.

2015). Gross now argues that the fee award -- a reduction of more

than $188,000 from the amount requested -- is unreasonably low,

and she specifically challenges multiple cuts that she claims are

unjustified. She contests, for example, the court's reduction in

the hourly rate of compensation for one of her attorneys, rejection

- 47 -
of fees for work spent on discovery motions, and the one-third

reduction in the time allowed for her prior appeal of the benefits

denial (i.e., Gross I), and the two-thirds cut in the time for

preparing her fees petition (the matter addressed in Gross II).

We review a district court's ruling on a fee request for

abuse of discretion. Cent. Pension Fund of the Int'l Union of

Operating Eng'rs & Participating Emp'rs v. Ray Haluch Gravel Co.,

745 F.3d 1, 4 (1st Cir. 2014). "This standard is highly

deferential, and 'we will set aside a fee award only if it clearly

appears that the trial court ignored a factor deserving significant

weight, relied upon an improper factor, or evaluated all the proper

factors (and no improper ones) but made a serious mistake in

weighing them.'" Id. (quoting Gay Officers Action League v. Puerto

Rico, 247 F.3d 288, 292-93 (1st Cir. 2001)).

The district court wrote a thorough opinion based on "a

detailed analysis of the submitted billing records." Gross, 105

F. Supp. 3d at 133; see also id. at 136 (noting the court's "line-

by-line review of the billing records"). The court explained its

reasoning for the reductions, and we have carefully reviewed those

judgment calls. For certain of Gross's complaints, it suffices to

say that, given "the latitude ceded to district courts in making

fee awards and the flexibility inherent in the lodestar approach,"

we find no basis for disturbing the court's decision. Matalon,

806 F.3d at 638.

- 48 -
 Although we also find no abuse of discretion in the

court's selected hourly rate for Grabhorn, we nonetheless think it

useful to review our precedent on the choice of an appropriate

rate. We also explain below why two adjustments in the fee award

are necessary.

A. Grabhorn's Hourly Rate

Both Grabhorn, a Kentucky-based ERISA lawyer, and

Jonathan Feigenbaum, a Boston-based ERISA lawyer, sought to

recover fees at a rate of $500 per hour. The district court found

that rate reasonable for Feigenbaum, noting that Boston "hourly

legal fees are among the highest in the country." Gross, 105 F.

Supp. 3d at 135. However, the court concluded that Grabhorn's

compensation should reflect his "normal hourly rate" in Kentucky,

and it therefore awarded him $375 per hour. On appeal, Gross

maintains that both attorneys should have been paid based on the

higher legal fees prevailing in the jurisdiction where the case

was heard, i.e., Boston.

Our court has endorsed the proposition that "reasonable

hourly rates should be set by reference to rates in the court's

vicinage rather than in the lawyer's region of origin." Gay

Officers Action League, 247 F.3d at 296 (citing Adcock-Ladd v.

Sec'y of Treas., 227 F.3d 343, 350 (6th Cir. 2000)); see also,

e.g., United States v. One Star Class Sloop Sailboat, 546 F.3d 26,

38 (1st Cir. 2008) ("Reasonable hourly rates will vary depending

- 49 -
on the nature of the work, the locality in which it is performed,

the qualifications of the lawyers, and other criteria." (emphasis

added)). We also have held, however, that a court may properly

conclude that the prevailing rate in the court's locale is not the

appropriate benchmark in particular circumstances. See One Star

Class Sloop Sailboat, 546 F.3d at 40 ("When a party recruits

counsel from outside the vicinage of the forum court, that court

may deem the relevant community to be the community in which the

lawyer maintains his or her principal office." (internal quotation

marks omitted)); id. (noting that a court may look to an attorney's

"actual billing practices to determine the relevant rate").

Accordingly, our precedent allows a court to choose "counsel's

standard rate, or the prevailing market rate in the forum, or a

reasonable rate in between." Id. at 41.

Given this flexibility, we cannot say the district court

exceeded its authority in determining that Grabhorn's hours should

be compensated at a lower rate than Feigenbaum's. The court

expressly recognized that it could properly award Grabhorn the

Boston hourly rate. See Gross, 105 F. Supp. 3d at 136 (noting

that "Grabhorn's out-of-state status does not, in itself, weigh in

favor of reducing his fee request"). As a matter of discretion,

however, the court concluded that Grabhorn is more appropriately

compensated based on the prevailing rate where he maintains his

- 50 -
office and was hired by Gross. On the record before us, we find

no basis on which to disturb that judgment.

B. The Fee Petition

In calculating the attorneys' compensation for

litigating Gross's fee petition following our decision in Gross I,

the district court trimmed Gross's request by two-thirds, awarding

fees for only 22.4 of the 67.3 hours claimed. Gross, 105 F. Supp.

3d at 137. The court explained this decision with the conclusory

observation that "[a] fee petition in an ERISA case should be a

straightforward exercise, particularly for experienced ERISA

practitioners like plaintiff's counsel." Id. In the court's view,

the fee petition "could have reasonably been completed in a third

of the time billed by plaintiff's counsel." Id.

The court's characterization of ERISA fee petitions as

"straightforward" may be apt for the ordinary case. See Matalon,

806 F.3d at 639 ("[W]e have indicated that certain components of

fee awards (such as work performed in preparing and litigating fee

petitions) may be calculated at discounted rates due to the

comparative simplicity of the task."). It does not apply, however,

to the petition here. Indeed, as described above, we requested

supplemental briefs on the question whether Gross was entitled to

fees for the proceedings leading up to, and including, our decision

in Gross I -- as well as the proper timing for any such award --

because of the complexity of those issues. The panel divided in

- 51 -
the decision. See Gross II, 763 F.3d at 86 (dissenting opinion).

Then, once we remanded the case to the district court for the

factbound lodestar analysis, Gross needed to submit additional

materials to that court. In these circumstances, we conclude that

the court erred in treating Gross's fee petition as run-of-the-

mill and, hence, abused its discretion in finding that only 22.4

hours were reasonably expended on that aspect of the litigation.

Having reviewed the billing records ourselves, we are

satisfied that the 67.3 hours billed -- 37.6 by one attorney, 27.7

by another, plus two paralegal hours -- reflect a reasonable

expenditure of time in light of both the difficulty of the legal

questions and the multiple phases of the fee proceedings. Indeed,

the 67.3 total appears to be both an accurate accounting of the

time spent and an appropriate allocation of resources. On remand,

the district court should adjust its calculation of compensable

hours to include the full 67.3 hours for the work on the fees

petition.

C. Summary Judgment

Also problematic in the court's lodestar analysis is its

50% reduction in the attorney hours allowed for summary judgment

work. The court appeared to adjust the compensable time downward,

in part, because of hours "spent on plaintiff's alternative

arguments, many of which were not successful." Gross, 105 F. Supp.

3d at 138. Gross's summary judgment briefing, however, primarily

- 52 -
challenged Sun Life's benefits decision, a position on which she

ultimately prevailed. Although her memorandum in support of

judgment included some off-the-mark arguments about Sun Life's

experts, it consisted for the most part of ordinary advocacy for

her view of the record. Gross also needed to respond to Sun Life's

cross-motion for judgment. Hence, to the extent the court

discounted the time spent on summary judgment for lack of success,

we conclude that it erred.

However, the court also expressed the view that the total

hours devoted to the summary judgment motions -- 105.5 attorney

hours and 5.5 paralegal hours -- was unreasonable, and we find no

abuse of discretion in that judgment. Accordingly, we conclude

that a 25% downward adjustment in the hours sought would more

accurately reflect both the success Gross achieved on her claim

for benefits and the district court's permissible view that the

total of summary judgment hours was excessive.

We also wish to briefly comment on the district court's

33% downward adjustment for the hours spent on Gross's first

appeal. That reduction was among those made to account for "time

spent pursuing unsuccessful claims and to reflect the quality of

the plaintiff's victories." Id. at 137. Noting Gross's mixed

results in Gross I,29 the district court concluded that it was not

29 The district court accurately described Gross I as follows:

- 53 -
reasonable to award the full amount of fees sought -- 162.4 hours.

Id. at 138-39. This judgment is within the bounds of the court's

discretion. We concluded in Gross II that "the relative merits of

th[e] action do not line up solely on Gross's side of the

calculus." 763 F.3d at 85. Gross had not at that point established

a right to benefits, and we rejected one of her primary

contentions. See id. In other words, Gross achieved only partial

success in the first round of litigation. Against this backdrop,

we cannot say the district court made "a serious mistake" in

determining the allowable hours for the appeals work. Gay Officers

Action League, 247 F.3d at 293.30

VI. Summary

We uphold the district court's determinations on both of

the issues appealed by Sun Life, affirming the award of disability

benefits to Gross and leaving intact the court's judgment declining

The appeal raised three issues: whether the
ERISA safe harbor exception applied; if not,
what standard of review governed plaintiff's
ERISA claim; and, under that standard, whether
she was entitled to relief. Plaintiff lost on
the first issue, prevailed on the second, and
won a reversal and remand on the third.

Gross, 105 F. Supp. 3d at 139 (citation omitted).
30We note that, with her success on the merits in the post-
remand phase of the litigation, Gross will be eligible for
additional attorney's fees. Her motion requesting a fee award
for post-remand legal work, stayed pending appeal, will now be
reactivated and can be expanded to cover fees incurred for this
appeal.

- 54 -
to impose sanctions on attorney Michael Grabhorn. On Gross's

cross-appeal, we remand to the district court the question of the

appropriate rate of prejudgment interest. We affirm in part and

vacate in part the district court's attorney's fee calculation.

As explained above, we direct the court to recalculate the fee

award with an additional 44.9 hours for Gross's attorneys' work on

her fee petition and with a 25%, rather than 50%, downward

adjustment in the time for work on the summary judgment motions.

Affirmed in part, vacated in part, and remanded for

further proceedings consistent with this opinion. The Clerk of

Court is directed to send a copy of this opinion to the Kentucky

Office of Bar Counsel. Costs to appellee/cross-appellant.

-Concurring Opinion Follows-

- 55 -
 KAYATTA, Circuit Judge. (Concurring) The central

merits issue in this case is whether Ms. Gross was physically

disabled within the meaning of Sun Life's group disability policy.

The law is quite clear that Gross bore the burden of proof on that

issue. See Orndorf, 404 F.3d at 518-19 (characterizing the

conclusion that claimant bears the burden of proving disability as

a "guiding principle" in the appellate court's analysis). It is

also quite clear that in resolving such an issue courts generally

review and weigh the administrative record as a whole. See

Scibelli v. Prudential Ins. Co. of Am., 666 F.3d 32, 40 (1st Cir.

2012). Were we to so proceed on this appeal, I would find that

Gross failed to carry her burden of showing that the evidence as

a whole established her claimed disability. Only one doctor,

Bhupalam, saw Gross and viewed the video. A straight-shooter,

Bhupalam initially deemed Gross disabled. He then reversed his

opinion when shown the video evidence, finding it too incompatible

with Gross's subjectively supported symptoms and limitations. As

best the record shows, Gross either never showed the video to her

own doctors or, if she did, she was unable to get them to confirm

their opinions once they saw the video. Instead, her lawyer set

to trying to muzzle Bhupalam. On such a record, it requires no

undue speculation to figure out what is likely going on. At the

very least, I would find Gross's inability to parry Bhupalam's

post-video opinion with an opinion from any doctor who saw or

- 56 -
treated her to be a dispositive failure in her effort to carry her

burden.

My colleagues, though, read Gross I as having bifurcated

the usual ERISA merits inquiry. They conclude that some of the

evidence (i.e., the evidence excluding both the video and

conclusions to be drawn from the video) weighs in favor of finding

of disability, and then treat this appeal as a proceeding in which

Sun Life bears the burden of upsetting that conclusion. This

bifurcated parsing of the evidence provides a potent tool for

burden shifting. Here, for example, Gross I found the evidence as

a whole did not justify the entry of judgment for Gross, where the

only doctor who saw both Gross and the video recanted his opinion

after he saw the video. Common sense would suggest that the case

might therefore turn on what Gross's numerous treating physicians

had to say in response, i.e., did they stand by their opinions

once shown the video? Instead, when the treating physicians

remained mum, my colleagues (treating the Bhupalam opinion as old

news) now find that Sun Life needed to do more "to show that . . .

the capabilities Gross demonstrated in the videos were

incompatible with the medical record of disability." While I doubt

that this is a proper way to proceed, I acknowledge that one could

reasonably read Gross I as setting up such a burden-shifting

inquiry. And while I would normally eschew such a reading in the

absence of more express direction (and perhaps some support in the

- 57 -
case law), I defer here to my colleagues, both of whom were on the

Gross I panel and seem to regard such a reading as plainly manifest

(or at least intended). For this reason alone, I concur.

- 58 -