Scibelli v. Prudential Insurance Co. of America

United States Court of Appeals
For the First Circuit

No. 11-1372

ANTHONY J. SCIBELLI, Executor of the Estate of Walter Jajuga;
ESTATE OF WALTER JAJUGA; KRISTIN A. JAJUGA-MONTEITH; VINCENT M.
JAJUGA; ANTHONY C. JAJUGA,

Plaintiffs, Appellants,

v.

PRUDENTIAL INSURANCE COMPANY OF AMERICA,

Defendant, Appellee.

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

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Lynch, Chief Judge,
Stahl and Lipez, Circuit Judges.

Terrence A. Low, with whom Law Office of Terrence A. Low was
on brief, for appellants.
Patrick C. DiCarlo, with whom Alston & Bird LLP, Joseph F.
Ryan, and Lyne Woodworth & Evarts LLP were on brief, for appellee.

January 11, 2012
 LYNCH, Chief Judge. This is one of those rare ERISA

denial of benefits cases in which the plan administrator, The

Prudential Life Insurance Company of America, did not reserve to

itself discretion as to interpretation and administration of its

plan. The benefits at issue are the proceeds of a group life

insurance policy (Group Policy) in the sum of $300,000, claimed by

the estate of Walter Jajuga, who died on December 31, 2008.

Whether the estate gets those benefits turns on whether Jajuga was

"totally disabled" on May 6, 1997, when he stopped working for

Mercedes-Benz USA (MBUSA). If he was so disabled, then he was

entitled to continuing coverage under the policy even though he was

no longer working for MBUSA.

After a series of mishaps by Prudential in its

administration of the claim, and despite Prudential's having agreed

Jajuga was totally disabled for purposes of a separate individual

life insurance policy (Individual Policy) Jajuga held and

Prudential administered, Prudential denied Jajuga's claim under the

Group Policy initially and throughout his administrative appeals.

The plaintiffs -- the Estate of Walter Jajuga, Anthony

Scibelli as the executor of the estate, and the beneficiaries of

the Group Policy: Kristin Ann Jajuga-Monteith, Anthony Charles

Jajuga, and Vincent Michael Jajuga -- sued Prudential in federal

district court in January 2010, seeking benefits pursuant to 29

U.S.C. § 1132. The parties filed cross-motions for summary

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judgment, and the district court entered summary judgment for

Prudential. See Estate of Jajuga v. Prudential Ins. Co. of Am.,

No. 10-cv-30016, 2011 WL 798162 (D. Mass. Mar. 1, 2011).

Our review of Prudential's decision is de novo, as is our

review of the district court's decision. Gent v. CUNA Mut. Ins.

Soc'y, 611 F.3d 79, 82-83 (1st Cir. 2010). On de novo review, we

conclude the plaintiffs are entitled to the benefits.

I.

A. The medical evidence in the administrative record

Jajuga worked for MBUSA from 1982 until 1997, first

holding the position of National Business Management Manager, then

a regional management position, and his position for the last year

was classified as "special assignments." The last day he worked

was May 5, 1997, and he was then fifty-two years old. From May 6,

1997, until his death on December 31, 2008, Jajuga never returned

to work at MBUSA or anywhere else.

On May 13, 1997, a few days after leaving work, Jajuga

had an MRI scan of his cervical and lumbar spine. A consultation

report by Dr. Claude Borowsky written on April 17, 2002, describes

the results of the scan:

I have reports [on the MRI scan of May 13,
1997] which state the existence on the
cervical spine of multi-level cervical
spondylosis, moderate foraminal and lateral
recess encroachment at C6-7, greater on the
right than on the left and bulging discs at
C5-6 and C6-7 with a disc herniation at C3-4.
His MRI of the lumbar spine showed

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 degenerative disc changes throughout the
lumbar spine with especially advanced disc
space collapse at L3-4. Bulging discs were
noted at L3-4 and L5-S1. There was a disc
herniation at L4-5. There was mild-to-
moderate central canal narrowing at L3-4 and
L4-5, moderate lateral recess narrowing at L3-
4 and L4-5 and foraminal stenosis at L3-4
through L5-S1 bilaterally.

On May 24, 1997, Jajuga was admitted for psychiatric

hospitalization at the Valley Hospital in New Jersey for alcohol

detoxification and depression. A Valley Hospital social worker

wrote in Jajuga's progress report of May 26, 1997: "Has not been to

work in approx. 3 1/2 weeks due to back pain [and] is in [the]

process of obtaining disability papers so he can receive short-term

disability from employer. He is unsure about his future employment

at Mercedes."

Jajuga was discharged from his psychiatric care at the

Valley Hospital on June 11, 1997. Dr. David Semar, the discharging

physician, recorded a psychiatric diagnosis.1 Dr. Semar also wrote

up the following discharge plan: "The patient will continue with

1
Dr. Semar's diagnosis was on the five axes, or dimensions,
relating to the different aspects of psychiatric disorder or
disability:
Axis I [clinical disorders] - Depression,
not otherwise specified, alcohol dependence.
Axis II [personality disorders] -
Personality disorder, not otherwise specified.
Axis III [acute medical conditions and
physical disorders] - Chronic pain syndrome.
Axis IV [psychological and environmental
factors] - Stressors, severe, chronic pain.
Axis V [global assessment of functioning
scale] - GAF 20/50.

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outpatient treatment with Dr. Francis [a psychiatrist] and attend

rehabilitation at Silver Hill. The patient will continue with AA.

He will continue with medical follow-up with Dr. Scham and return

to work as soon as possible. Diet will be regular. Activities

will be normal." Jajuga did not return to work; he continued to

see medical specialists and sought long-term disability benefits in

1997 and then the waiver of premiums at issue in 1998.

A neurologist, Dr. Patricia Klein, completed two

"attending physician statements" as part of Jajuga's applications

for disability benefits.2 On October 23, 1997, Dr. Klein completed

an attending physician statement form in support of Jajuga's

application for long-term disability benefits from MBUSA. On the

form, Dr. Klein provided diagnoses, by code, of cauda equina

syndrome, cervical disc disease with myelopathy, and spinal

stenosis of the lumbar region. In the field for "subjective

symptoms," she wrote "weakness" and "bladder and bowel

incontinence." And in the field labeled "objective findings," she

wrote "MRI 5/13/97." As to Jajuga's physical impairment, Dr. Klein

checked the box for "Class 5 - Severe limitation of functional

capacity; incapable of minimum (sedentary) activity (75-100%)." In

2
There is contradictory information in the administrative
record as to how long Dr. Klein had been treating Jajuga. One of
the attending physician statements gives the date of Jajuga's first
visit with Dr. Klein as August 4, 1997, while a form completed by
Jajuga in April 1998 states that he had been treated by Dr. Klein
since 1989.

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response to the question, "Is patient now TOTALLY disabled?" Dr.

Klein checked "yes" boxes for "patient's occupation" and for "any

other work." Dr. Klein also stated on the form that Jajuga was

incapable of performing all duties, that he would never recover,

and that he was not a candidate for rehabilitation. As recounted

later, MBUSA found this evidence of disability adequate, allowed

Jajuga's claim, and paid long-term disability benefits from at

least October 1, 1997, until his death. Further, Prudential found

that Jajuga met the conditions for waiver of premiums under his

Individual Policy.

Later, on March 30, 1998, Dr. Klein completed a separate

"attending physician's statement" form, this one in support of

Jajuga's claim for the waiver of premiums under the Group Policy at

issue here. On the form, Dr. Klein stated that Jajuga had stopped

working due to "numbness in both legs [and] severe pain [in his]

low back [and] legs" and "[a]cute [l]umbar [d]erangement." She

wrote that the usual duration of the condition was "[i]ndefinite."

In response to the question, "What work duties can employee

perform?" she wrote "None;" and as to the question, "What duties

can employee not perform?" she wrote "All." The report also stated

that no changes would allow Jajuga to work at his own job or any

other job and that he could not work while receiving treatment

because he could not sit.

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 For reasons attributable to Prudential and in violation

of ERISA regulations, the report of the MRI of May 13, 1997, the

records related to Jajuga's hospitalization for detoxification and

depression, and the attending physician statements of Dr. Klein

comprise the only evidence in the administrative record of Jajuga's

medical condition roughly in the same period as when he stopped

working in May of 1997. The administrative record contains a more

detailed picture of Jajuga's health from 2002 until his death on

December 31, 2008.

B. Disability definitions in the relevant policies and
statute

Jajuga was enrolled in his employer's group life

insurance policy. The Group Policy was insured and administered by

Prudential and regulated by ERISA. Employee Retirement Income

Security Act of 1974, 29 U.S.C. § 1001 et seq. Jajuga was also a

participant in a long-term disability (LTD) benefits plan that was

self-insured and administered by MBUSA, and he had purchased an

individual life insurance policy from Prudential. He apparently

paid his Individual Policy premiums until he sought and obtained a

waiver of premiums.

After he stopped working on May 6, 1997, Jajuga

eventually applied to Prudential for a waiver of premiums on both

his Individual Policy and his Group Policy.3 Under the Individual

3
The Group Policy contract does not mention a "waiver of
premiums" as such. Instead, the Group Policy provides for an

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Policy, premiums are waived for two years if the insured "cannot,

due to sickness or injury, do any of the duties of his or her

regular occupation." Thereafter, premiums are waived if "he or she

cannot, due to sickness or injury, do any gainful work for which he

or she is reasonably fitted by education, training, or experience."

Similarly, the Group Policy defines "total disability"

for the purpose of that policy's premium waiver clause as follows:

Total Disability: You are "Totally Disabled"
when:

(1) You are not working at any job for wage or
profit; and

(2) Due to Sickness, Injury or both, you are
not able to perform for wage or profit, the
material and substantial duties of any job for
which you are reasonably fitted by your
education, training or experience.

Prudential does not argue any ground for Jajuga's not recovering

Group Life coverage and benefits other than its assertion that he

was not eligible for a premium waiver because he was not "totally

disabled."

Jajuga also applied for and received disability benefits

under Social Security Disability Insurance (SSDI) and under the

MBUSA LTD plan. The statute governing SSDI benefits provides for

"extended death benefit during total disability": continuing
coverage while an individual is totally disabled if such person
became totally disabled while a "covered person." However,
throughout the administrative appeals process and this litigation,
both parties have referred to this "extended death benefit during
total disability" provision as a waiver of premiums, so we will as
well.

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"a disability insurance benefit" to an individual who satisfies

various criteria and "is under a disability." 42 U.S.C.

§ 423(a)(1). The statute defines "disability" as the "inability to

engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can be

expected to result in death or which has lasted or can be expected

to last for a continuous period of not less than 12 months." Id.

§ 423(d)(1)(A). The statute goes on to state that

[a]n individual shall be determined to be
under a disability only if his physical or
mental impairment or impairments are of such
severity that he is not only unable to do his
previous work but cannot, considering his age,
education, and work experience, engage in any
other kind of substantial gainful work which
exists in the national economy, regardless of
whether such work exists in the immediate area
in which he lives, or whether a specific job
vacancy exists for him, or whether he would be
hired if he applied for work.

Id. § 423(d)(2)(A).

The MBUSA LTD plan treats the receipt of SSDI benefits as

evidence of total disability entitling a covered person to LTD

benefits.

Jajuga received benefits from Social Security under SSDI

and from MBUSA under the LTD plan. In addition, Prudential granted

Jajuga a waiver of premiums under his Individual Policy, but

Prudential denied his claim for a waiver of premiums under the

Group Policy.

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C. Prudential's administration of the Group Policy claim

On September 10, 1998, MBUSA forwarded Prudential a claim

for a waiver of premiums under the Group Policy on behalf of

Jajuga.4 Among the forms sent was Dr. Klein's March 30, 1998,

attending physician's statement. Over a year later, on November

29, 1999, Prudential sent a letter stating that it had reviewed

Jajuga's claim, but it sent the letter only to MBUSA and not to

Jajuga as well, as required by the applicable regulations. The

letter to MBUSA purports to state the conditions for qualifying as

"totally disabled" under the Group Policy, but the definition of

"totally disabled" set forth in the letter is worded differently

from that in the Group Policy at issue in this case.5 The letter

then states: "Based on the medical information in our file, your

education and your work experience you do not meet the definition

of Total Disability as defined by the Group policy, we are denying

4
Jajuga submitted his claim for a waiver of premiums under
the Group Policy on Prudential's "Group Life Insurance Claim For
Total Disability Benefits" form. That form required Jajuga to fill
out one side and to return the form, along with an "Attending
Physician's Statement of Disability," to the Group Policyholder, in
this case MBUSA. An MBUSA employee filled out the other side and
submitted the form and the attending physician statement to
Prudential.
Even though MBUSA submitted the claim on Jajuga's behalf,
the form makes clear that Jajuga was the claimant.
5
The letter's definition states that total disability is the
inability "to engage in any and every gainful occupation," whereas
the Group Policy at issue here states that total disability is the
inability "to perform for wage or profit, the material and
substantial duties of any job."

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your claim." There is no evidence that MBUSA informed Jajuga of

the letter or sent him a copy. And there is no evidence that

Prudential ever notified Jajuga directly that his claim had been

denied.

It appears that Jajuga did not learn about the denial of

his claim for waiver of premiums under the Group Policy until seven

years after he had submitted it. On September 16, 2005, MBUSA sent

a letter to Jajuga's attorney in response to the attorney's inquiry

into Jajuga's life insurance coverage. MBUSA's letter stated that

it had received a letter from Prudential dated November 29, 1999,

denying the claim. A February 21, 2006, letter from MBUSA to

Jajuga's attorney states that Prudential had recently informed

MBUSA that it was unable to provide "a copy of any document which

shows that Mr. Jajuga was informed by them of his premium waiver

denial or of his rights to appeal" and that Prudential had "agreed

to allow Mr. Jajuga to appeal their decision on his premium waiver

claim." By this time, it was over eight and a half years after

Jajuga had stopped working. MBUSA also stated that "Prudential has

requested that they be provided with . . . [a] list of physicians

. . . who have treated Mr. Jajuga since the inception of his

illness" and that "Prudential has agreed to contact these

physician[s] directly instead of having Mr. Jajuga request this

information from them."

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 On March 17, 2006, Jajuga's attorney sent Prudential a

list of Jajuga's past and current health care providers and five

executed copies of "Authorization to Release Information" forms

allowing Prudential to request Jajuga's medical records directly

from his providers. Despite this undertaking by Prudential to get

medical records directly, no additional information was added to

the file about Jajuga's medical examinations and medical records

from the period immediately after he left work.

On June 14, 2006, Prudential re-opened the claim, and on

September 5, 2006, Prudential upheld its decision to deny the

claim. The denial letter states that "the medical documentation in

[the] file does not disclose findings of an impairment or

combination of impairments so severe that they would result in the

loss of all work capacity for a sedentary position." The denial

letter does not mention Dr. Klein's attending physician statements

of October 1997 and March 1998, nor does it mention the records of

Jajuga's hospitalization in May and June of 1997.

Jajuga appealed this determination through his attorney

on February 28, 2007. The attorney's letter stated that Jajuga had

received both SSDI benefits and a waiver of premiums under

Prudential's Individual Policy. The letter requested that

Prudential provide Jajuga with copies of the evidence upon which

Prudential based its determination that he was entitled to a waiver

of premiums under the Individual Policy; copies of the evidence

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upon which Prudential based its determination that he was not

entitled to the waiver under the Group Policy; and the names,

addresses, and professional qualifications of the persons who took

part in determining that Jajuga was not entitled to the waiver

under the Group Policy.

Prudential responded on April 17, 2007, stating that the

disability definition in the Group Policy differed from that in the

Individual Policy and the SSDI statute. Prudential also requested

medical records for Jajuga's treatment from May 6, 1997 through

March 1998. Prudential did not respond to Jajuga's requests for

documents related to the granting of his waiver claim under the

Individual Policy or for documents related to the denial of his

waiver claim under the Group Policy. Jajuga's attorney responded

to the request for medical records by reminding Prudential that

Jajuga had already sent it a list of his past physicians and

release authorization forms.

In reply, Prudential restated its request for medical

records, and on October 12, 2007, Jajuga's attorney sent Prudential

some medical records relating to Jajuga's treatment from 1998

forward and requested an additional thirty days to send along other

medical records the attorney had requested. She also informed

Prudential that she was not able to secure copies of all of

Jajuga's medical records dating back to 1997 because some of his

providers did not retain records for more than seven years. The

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attorney stated that, by the time Jajuga was made aware in 2006 of

the fact that Prudential had denied his claim and would allow him

to appeal that decision, many of the relevant records had already

been destroyed by the providers. One month later, she sent

Prudential the records from Valley Hospital related to Jajuga's

hospitalization in May and June of 1997 for detoxification and

depression and stated she understood that Prudential was provided

with all relevant medical records as part of Jajuga's claim for

waivers of premiums under his Individual and Group Policies and

that Prudential should still have those records, or at least claim

reviewers' synopses of them, on file. No such records were ever

provided to Jajuga save for the basic documents we described

earlier.

On October 28, 2008, Prudential informed Jajuga that it

had again affirmed its decision to deny his claim. This second

denial letter does discuss the records of Jajuga's hospitalization

in May 1997, but it again does not mention Dr. Klein's attending

physician statements of October 1997 and March 1998.

This second assessment of the claim relied in part on a

review of Jajuga's file performed in August 2008 by two outside

physicians: a psychiatrist and a physical medicine and

rehabilitation specialist. The psychiatrist, Dr. Lichtshein,

concluded that Jajuga's history of alcohol abuse "in and of itself

is not a disabling diagnosis" and that he did not "have depression

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sufficient to warrant impairment." The physical medicine and

rehabilitation specialist, Dr. Thampi, concluded that while "Mr.

Jajuga does have evidence supportive of functional impairment from

a physical medicine and rehabilitation perspective, as of the date

05/06/97 and forward," he nevertheless "does have the ability to

sit through an eight-hour day, as long as he is given the

opportunity to change positions approximately every one hour with

a break for five minutes for standing as needed." Based on these

reviews of the medical records available in 2008, Prudential

concluded that as of May 6, 1997, Jajuga would have been able to

perform the following jobs, based on his education and his history

in retail and sales and in automotive service: telephone solicitor,

automobile locator, customer-complaint clerk, and order taker.

Jajuga died on December 31, 2008, and the executor of his

estate appealed again. Prudential denied this third appeal on

August 24, 2009. The administrative record contains a supplemental

review of Jajuga's file by Dr. Thampi, the physical medicine and

rehabilitation specialist, dated August 3, 2009. This second

review was based in part on medical records apparently not

considered in the first review, including Dr. Klein's October 1997

and March 1998 attending physician statements. Dr. Thampi

concluded that the new information did "not alter the prior

assessment."

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D. Litigation

On January 20, 2010, the plaintiffs filed the present

action in the district court pursuant to 29 U.S.C. § 1132(a), (e),

and (f). Their complaint sought to recover life insurance benefits

and enforce rights under the Group Policy. See Estate of Jajuga,

2011 WL 798162, at *1.

The case was referred to a magistrate judge for pretrial

case management. The magistrate judge granted in part plaintiffs'

motion to supplement the record and denied plaintiffs' motion

seeking discovery. Estate of Jajuga v. Prudential Ins. Co. of Am.,

742 F. Supp. 2d 176, 179 (D. Mass. 2010). In addition, the

magistrate judge held that the district court would review de novo

Prudential's decision to deny the claim. Id. at 182.

On cross-motions for summary judgment, the district court

granted summary judgment for Prudential on March 1, 2011. Estate

of Jajuga, 2011 WL 798162, at *4. Plaintiffs' timely appeal

followed.

II.

A. The standard of review

Our case law is clear that we review de novo the district

court's decision to grant Prudential's cross-motion for summary

judgment. Prudential argues that clear error review is required,

but Prudential is simply wrong. Its argument rests on a misreading

of Tsoulas v. Liberty Life Assurance Co. of Boston, 454 F.3d 69

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(1st Cir. 2006). Tsoulas, unlike this case, was a case submitted

on a stipulated record. Id. at 75 ("Our standard of review is

governed by the fact that the parties submitted this case to the

district court based on a stipulated record."); see García-Ayala v.

Lederle Parenterals, Inc., 212 F.3d 638, 643-44 (1st Cir. 2000).

This is not a case submitted and the mere fact that the case was

decided on summary judgment does not change the normal de novo

standard of appellate review.

"We review a district court's grant of summary judgment

de novo," including in ERISA benefit denial cases. Gent, 611 F.3d

at 82; see also D & H Therapy Assocs., LLC v. Bos. Mut. Life Ins.

Co., 640 F.3d 27, 34 (1st Cir. 2011) (reviewing de novo district

court's grant of summary judgment in ERISA benefits denial case);

Richards v. Hewlett-Packard Corp., 592 F.3d 232, 239 (1st Cir.

2010) (same), cert. denied, 131 S. Ct. 798 (2010); Wallace v.

Johnson & Johnson, 585 F.3d 11, 14 (1st Cir. 2009) (same); Stamp v.

Metro. Life Ins. Co., 531 F.3d 84, 87 (1st Cir. 2008) (same);

Orndorf v. Paul Revere Life Ins. Co., 404 F.3d 510, 516 (1st Cir.

2005) (same). Additionally, "in the ERISA benefit-denial context,

where the record before us is the same record that was before the

plan administrator . . . 'summary judgment is simply a vehicle for

deciding the [benefits] issue' and 'the non-moving party is not

entitled to the usual inferences in its favor.'" Gent, 611 F.3d at

82-83 (alteration in original) (quoting Orndorf, 404 F.3d at 517).

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 There is a separate question regarding what, if any,

deference we give to the plan administrator's decision to deny

benefits. The magistrate judge held that Prudential's denial of

the claim would be reviewed de novo, and Prudential did not appeal

from that decision, so any argument to the contrary is waived. In

any event, we agree with the magistrate judge's ruling.6 At all

relevant times, Jajuga's Group Policy nowhere contained language

granting Prudential as the plan administrator discretionary

authority to determine eligibility for benefits or to construe the

terms of the plan, so we review the administrative record de novo.

See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).

Under de novo review, our task on appeal "is to independently weigh

6
Under Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101
(1989), a court reviews a plan administrator's denial of benefits
de novo unless the benefits plan gives the administrator
discretionary authority to determine eligibility for benefits or to
construe the terms of the plan, id. at 115, in which case the
denial is subject to a deferential "arbitrary and capricious" or
"abuse of discretion" standard of review, Maher v. Mass. Gen. Hosp.
Long Term Disability Plan, No. 10-1321, 2011 WL 6061347, at *2 (1st
Cir. Dec. 7, 2011).
The magistrate judge concluded that de novo review applied
here because "neither the plan nor any summary thereof contained
discretionary language at the time Decedent enrolled in it on July
15, 1991, or when he stopped working on May 6, 1997, or when he
requested that his life insurance premiums be waived on September
10, 1998," or when Prudential evidently made its original decision
to deny the claim in November of 1999. Estate of Jajuga v.
Prudential Ins. Co. of Am., 742 F. Supp. 2d 176, 180 (D. Mass.
2010). The magistrate judge acknowledged that certain plan
documents were amended to give Prudential discretion in 2000,
before the administrative appeals process began. Id. at 181. But
the magistrate judge concluded that this post-decision amendment
would not shift the standard of review from de novo to abuse of
discretion. Id. at 181-82.

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the facts and opinions in the administrative record to determine

whether the claimant has met his burden of showing that he is

disabled within the meaning of the policy. We grant no deference

to the administrators' opinions or conclusions." Richards, 592

F.3d at 239. Nor do we give any deference to the district court's

view of the record, as our review on summary judgment is de novo.

B. Jajuga's ability to work in May of 1997

In our view, the plaintiffs have carried their burden of

showing that when Jajuga stopped working on May 6, 1997, he was

"totally disabled" under the terms of the Group Policy. That is,

plaintiffs have sufficiently demonstrated that Jajuga was "not able

to perform for wage or profit, the material and substantial duties

of any job for which [he was] reasonably fitted by [his] education,

training or experience." The gaps in the record will not be read

to benefit Prudential, which is primarily responsible for those

gaps.

The two attending physician statements of Dr. Klein, a

board certified neurologist, attest to Jajuga's total disability at

the time he stopped working. The form completed on October 13,

1997, in support of Jajuga's application for LTD benefits states

that Jajuga was incapable of sedentary activity and was totally

disabled for his own occupation and for any other work. Dr.

Klein's assessment was based on objective evidence: the MRI

performed on May 13, 1997, about a week after Jajuga stopped

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working. Neither the MRI films nor a first-hand account of the MRI

results is in the administrative record, although Dr. Borowsky's

second-hand description of the scan results is.

Dr. Klein's attending physician statement of March 30,

1998, in support of Jajuga's application for a waiver of premiums

under the Group Policy similarly supports a finding of total

disability. Dr. Klein stated on the form that Jajuga was unable to

perform the duties of his job or any other job and that he could

not work while under treatment because he could not sit. Dr.

Klein's two attending physician statements are the only direct

assessments of Jajuga's physical health during this period.

Notably, none of Prudential's three denial letters produced during

the administrative appeals process discusses Dr. Klein's attending

physician statements.

On appeal, Prudential puts great weight on the only other

piece of contemporaneous evidence in the administrative record: the

record of Jajuga's hospitalization for detoxification and

depression from May 24 to June 11, 1997. Prudential argues that

Jajuga's hospitalization for detoxification on May 24, 1997, shows

that he stopped working not because of disabling back pain but "to

undergo treatment for alcoholism."

This is a brand new defense conjured up in litigation.

At no point in the administrative appeals process did Prudential

assert that Jajuga stopped working because of alcoholism rather

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than back pain. Of the three denial letters Prudential issued

during the appeals process, only the second, dated October 28,

2008, even mentions his admission to the Valley Hospital for

detoxification, and that denial letter states that Jajuga stopped

working "due to back pain and depression." Moreover, no evidence

in the record -- including the Valley Hospital records and the

reviews of the administrative record by the outside physicians

retained by Prudential -- supports the assertion Prudential now

makes that Jajuga stopped working due to alcoholism rather than

back pain.

Prudential also relies on the report written by Dr. Semar

upon Jajuga's discharge from the Valley Hospital on June 11, 1997.

Prudential argues that Dr. Semar's discharge plan constituted a

medical evaluation of Jajuga's ability to return to work sufficient

to overcome Dr. Klein's evaluations. We disagree. The discharge

plan states: "[Jajuga] will continue with medical follow-up with

Dr. Scham and return to work as soon as possible. Diet will be

regular. Activities will be normal." Dr. Semar was a

psychiatrist, and the discharge summary is concerned with Jajuga's

psychiatric health, not his physical health. It is not even clear

that this is a statement of Dr. Semar's opinion as opposed to a

comment that the patient wished to return to work as soon as

possible. Even if Jajuga was psychiatrically able to "return to

work as soon as possible," the report stated no opinion on whether

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he was then physically able to perform the duties of his or any

other job.

For the conclusion that Jajuga was totally disabled under

the terms of the Group Policy, we also rely on the related decision

by Prudential itself to grant Jajuga's claim for a waiver of

premiums under his Individual Policy for being "totally disabled."

It is undisputed that Prudential waived Jajuga's premiums under the

Individual Policy and they continued to be waived until his death.7

Prudential has no adequate explanation for this difference in

treatment. We reject its argument that the eligibility standards

in the Group Policy and the Individual Policy substantially differ.

The definition of "total disability" in the Group Policy

is substantively indistinguishable from the definition of "totally

disabled" in the Individual Policy. The Group Policy defines

"total disability" as the inability "to perform for wage or profit,

the material and substantial duties of any job." The Individual

Policy's definition of "totally disabled" is the inability to "do

any gainful work."

Prudential argues, and the district court agreed, that

the Group Policy definition's "any job" is broader than the other

definition's "any gainful work." We disagree and look to the

entire definitions. If one is unable to "do any gainful work"

7
Jajuga's premiums under the Individual Policy were waived
by Prudential since at least 2000, but the administrative record is
not clear as to exactly when Prudential granted the waiver.

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(Individual Policy), one is also unable to "perform for wage or

profit, the material and substantial duties of any job" (Group

Policy). "Gainful" means "profitable" or "providing an income."

Webster's Third New International Dictionary 928 (1993). It is not

a reasonable reading of the policies that a person could be so

disabled as to be unable to do "gainful" work but could still

perform a job "for wage or profit." Indeed, ironically,

Prudential's November 29, 1999, initial denial letter equated the

two standards, referring to total disability under the Group Policy

as an inability to engage in a "gainful occupation."

The determination of disability under the Individual

Policy by Prudential itself is relevant evidence supporting the

plaintiffs' claim that Jajuga was "totally disabled" on May 6,

1997, under the terms of the Group Policy.

That the Social Security Administration found Jajuga

eligible for SSDI benefits is not conclusive but tends to support

our conclusion. See Bard v. Bos. Shipping Ass'n, 471 F.3d 229, 242

n.17 (1st Cir. 2006) (Although "a plan is not required to accept a

Social Security adjudication of disability as binding on it where

the definitions of disability are different[,] . . . that does not

mean that the Social Security determination provides no relevant

evidence."); cf. Pari-Fasano v. ITT Hartford Life & Accident Ins.

Co., 230 F.3d 415, 420 (1st Cir. 2000). The administrative record

shows that Jajuga was entitled to SSDI benefits beginning in

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November 1997. Because entitlement to benefits only begins after

the lapse of a five-month "waiting period," during which the

claimant must be disabled under the terms of the statute, the

Social Security Administration evidently determined that Jajuga's

disability began in May 1997.8 See 42 U.S.C. § 423(a)(1), (c)(2).

The SSDI statute defines disability as the inability to "engage in

any . . . kind of substantial gainful work." Id. § 423(d)(2). The

Group Policy itself refers to an inability to perform "the material

and substantial duties of any job."

We turn to Prudential's argument that the paucity of

relevant evidence from the period around Jajuga's last day of work

is reason to hold that the plaintiffs have not carried their burden

in this case. That paucity is attributable to Prudential's failure

to give Jajuga timely notice of its decision to deny his claim for

a waiver of premiums under the Group Policy, as required by the

8
Prudential was aware from the first that Jajuga had been
awarded SSDI benefits. On the "employee's statement" portion of
the Group Policy premium waiver claim form, Jajuga answered "yes"
to the question "Have you been approved for Social Security
Disability Benefits . . . ?" He also stated that he had only
applied for SSDI benefits once. In addition, during the
administrative appeals process, Jajuga's attorney informed
Prudential of the award of SSDI benefits, the waiver of premiums
under his Individual Policy, and the similarity of the relevant
disability definitions to that of the Group Policy.
However, Prudential did not mention the award of SSDI
benefits or the waiver of premiums under Jajuga's Individual Policy
in any of the three denial letters it issued during the
administrative appeals process. Prudential only addressed the
other definitions in a letter to Jajuga's attorney, in which
Prudential concluded that the definitions were "not the same."

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ERISA regulations. We reject the argument because Prudential

should not benefit from its own misdeeds.

Under the ERISA regulations in effect at the time Jajuga

made his claim, employee benefit plans had to "establish and

maintain reasonable claims procedures." 29 C.F.R. § 2560.503-1(b)

(1998).9 A claims procedure would be reasonable only if, among

other things, notice of a decision to wholly or partially deny a

claim was furnished to the claimant "within a reasonable period of

time after receipt of the claim by the plan." Id. § 2560.503-

1(e)(1); see also id. § 2560.503-1(b)(1)(I). These regulations

state that a period of time beyond ninety days is per se

unreasonable. Id. § 2560.503-1(e)(3). Here, MBUSA sent Jajuga's

waiver of premiums claim to Prudential on September 10, 1998.

However, Prudential evidently did not send any notification that it

had denied the claim until November 29, 1999, over a year later,

thus in violation of regulations.

Further, that notification was sent to MBUSA, not to

Jajuga, the claimant, as was required by the regulations. See

id. § 2560.503-1(f) ("A plan administrator . . . shall provide to

every claimant who is denied a claim for benefits written notice

9
These notice regulations were promulgated under the
authority of 29 U.S.C. § 1133, which states: "In accordance with
regulations of the Secretary, every employee benefit plan shall--
(1) provide adequate notice in writing to any participant or
beneficiary whose claim for benefits under the plan has been
denied, setting forth the specific reasons for such denial, written
in a manner calculated to be understood by the participant . . . ."

-25-
. . . ." (emphasis added)); id. § 2560.503-1(e)(1). There is no

evidence whatsoever that Jajuga received notice of the denial of

his Group Policy premium-waiver claim until September 2005.

Indeed, his attorney had to pursue MBUSA to find out the status of

the claim. This seven-year delay hindered Jajuga's (and after his

death, the executor of his estate's) ability to gather proof of his

disability in 1997, and matters were made worse by Prudential's

evident failure to follow through on obtaining his medical records.

After saying in early 2006 that it would obtain Jajuga's medical

records directly from his past providers, Prudential evidently did

not do so and has provided no evidence that it did. In April and

August 2007, Prudential requested medical records from Jajuga while

not responding to the statement of Jajuga's attorney that she

understood that Prudential already had all of Jajuga's medical

records and would request any it did not have from Jajuga's

physicians directly.

Jajuga's attorney sought those records in mid-2007 from

the providers, and in October 2007 she informed Prudential that she

was not able to obtain copies of all of Jajuga's medical records

dating back to 1997 because some of his providers did not retain

records for more than seven years, so that by the time Jajuga was

informed of the denial of his claim, those records had been

destroyed. Had Jajuga been informed within ninety days of the

denial of his September 1998 claim, the additional records of his

-26-
medical condition as of May 1997 would not have been routinely

destroyed. We reject Prudential's unseemly argument that Jajuga's

claim was insufficiently supported when Prudential's own failure to

maintain reasonable claims procedures as required by the ERISA

regulations made obtaining further supporting medical records

impossible.10

To be sure, irregularities and non-compliance do not

themselves automatically entitle the plaintiffs to the benefits

they seek, and our result does not depend on Prudential's failure

to comply with the law. See Glista v. Unum Life Ins. Co. of Am.,

378 F.3d 113, 130 n.13 (1st Cir. 2004); Terry v. Bayer Corp., 145

F.3d 28, 39 (1st Cir. 1998); 29 C.F.R. § 2560.503-1(e)(2) (1998)

("If notice of the denial of a claim is not furnished . . . within

a reasonable period of time, the claim shall be deemed denied and

the claimant shall be permitted to proceed to the review stage

. . . ."). In Recupero v. New England Telephone & Telegraph Co.,

118 F.3d 820 (1st Cir. 1997), we held that "allowing a claim for

relief because of inadequacy of formal notice without any showing

10
The plaintiffs posit that Prudential may have had relevant
medical records from 1997 in its file for Jajuga's claim for waiver
of benefits under his Individual Policy. During the administrative
appeals process, Jajuga's attorney requested copies of the evidence
upon which Prudential based its determination that Jajuga was
entitled to a waiver of premiums under his Individual Policy, but
Prudential never acknowledged this request. Indeed, there is no
evidence in the administrative record that Prudential ever looked
into Jajuga's Individual Policy claim file to determine whether it
contained any medical evidence pertinent to his Group Policy claim,
and it has never asserted during this litigation that it did so.

-27-
that a precisely correct form of notice would have made a

difference would result in benefit claims outcomes inconsistent

with ERISA aims of providing secure funding of employee benefit

plans." Id. at 840. Recupero dealt with notices of denial that

were insufficient as a matter of law because they failed to include

specific reasons why the claim was denied or to cite to any

specific plan provisions upon which the denial was based. Id. at

825. We there concluded that the plaintiff had not shown that

these procedural deficiencies had prejudiced her. Id. at 840.

Here, however, for the reasons stated, plaintiffs have been

prejudiced by Prudential's seven-year delay in giving Jajuga notice

that his claim had been denied.

Nor does our conclusion that plaintiffs are entitled to

benefits turn on invoking the equitable powers of federal courts in

ERISA cases under 29 U.S.C. § 1132(a)(3). See Glista, 378 F.3d at

131.

We hold that, based on the relevant evidence in the

administrative record, the Group Policy language, and the

unexplained inconsistency in Prudential's award of benefits under

the Individual Policy but denial of benefits under the Group

Policy, Jajuga was "totally disabled" under the terms of the Group

Policy when he stopped working on May 6, 1997. We do not need to

reach the question of whether Prudential has also been arbitrary in

its handling of Jajuga's claim.

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 III.

We reverse the grant of summary judgment in favor of

Prudential and hold that the plaintiffs are entitled to judgment.

We remand with instructions that an order be issued requiring

Prudential to award benefits to the beneficiaries of Jajuga's Group

Policy according to the terms of that policy, with any interest to

which they may be entitled. Plaintiffs are awarded costs.

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