concurring and dissenting.
I concur in the majority opinion except that I dissent as to the remedy. See Maj. Op. at 882-84.
There is no legal basis to order the payment of benefits as a penalty for violation of the procedural requirements of ERISA. First, there is no statutory basis in ERISA for the payment of benefits not otherwise required by the plan as a penalty for violating procedural requirements. We held, for instance, in McCartha v. National City Corp., 419 F.3d 437, 447 (6th Cir.2005), that a plan administrator’s procedural violation did not require a substantive remedy because the administrator affirmed the initial benefits denial on appeal. Thus, even though the administrator violated 29 U.S.C. § 1133, the plaintiff was not entitled to a substantive remedy under ERISA because the administrator properly determined that the plaintiff was not entitled to disability benefits. See also Marks v. Newcourt Credit Group, Inc., 342 F.3d 444, 461 (6th Cir.2003); Syed v. Hercules Inc., 214 F.3d 155, 162 (3d Cir.2000) (Alito, J.).
Reinstatement is not necessary in order to make the plaintiff whole for a procedural violation. The flaw in holding otherwise is that a plaintiff is more than made whole — and indeed receives a windfall — if after proper procedures it is determined that the plaintiff was not entitled to the benefits that the administrator terminated with flawed procedures. In this regard I respectfully disagree with the Seventh Circuit’s analysis in Schneider v. Sentry Long Term Disability, 422 F.3d 621, 629-30 (7th Cir.2005). The plan determines what the plaintiff is entitled to in the way of benefits, and nothing in the plan has been shown to provide benefits until the administrator complies with all procedural requirements. Instead, the plan provides that benefits will continue until “the date the Employee is no longer Totally or Partially Disabled.” JA 44. The plan does not provide that benefits will continue until the administrator complies with ERISA’s procedural provisions. This is consistent with ERISA’s procedural provisions, which contemplate that a plan participant receives notice and an opportunity for review only after the administrator has denied benefits. See 29 U.S.C. § 1133 (requiring notice and opportunity for review to any participant whose claim for benefits “has been denied”). Wenner was entitled to benefits until the plan administrator determined that he was no longer disabled, not until the administrator followed ERISA’s procedural requirements for notifying Wenner of its decision and providing him a full and fair review of that decision. The *885plan administrator’s substantive disability determination is not the same as the administrator’s failure to provide Wenner an opportunity for review of that determination, and an error in the latter does not negate the effect of the former.
Furthermore, if our job is “to place Wenner in the position he would have occupied but for the defendant’s wrongdoing,” Maj. Op. at 883, then ordering reinstatement of benefits goes too far. At the time that Sun Life failed to comply with ERISA’s procedural requirements, it had already concluded that Wenner was no longer disabled and, accordingly, denied him continued benefits. Wenner was in the position of a claimant who had been denied benefits but afforded no opportunity for review of that denial. To order reinstatement of benefits places Wenner in a better position than he was in prior to Sun Life’s violation of § 1133.
Sanford v. Harvard Industries, Inc., 262 F.3d 590 (6th Cir.2001), does -not truly support the remedy ordered in this case. In Sanford we upheld a district court order reversing an ERISA administrator’s termination of certain retirement .benefits. Id. at 592. The district court held that, because of procedural violations by the administrator, the case should be remanded to the administrator for a decision on whether the beneficiary was indeed eligible. Id. at 594. The district court also held that the benefits should be reinstated “pending a decision on the issue of Sanford’s retirement eligibility by the [Administrator].” Id. at 599. We upheld the order in all respects. We did not hold, however, that Sanford was simply entitled to the retirement benefits because of a procedural violation. If so, there would have been no need for a remand. In contrast, in this case a remand is not ordered on the theory that the procedural violation simply entitles Wenner to the benefits. Sanford does not compel that result.
Indeed, Sanford is inconsistent with the Seventh Circuit’s analysis in Schneider. In Schneider the Seventh Circuit in affirming retroactive reinstatement of benefits rejected the possibility of a remand to the administrator, 422 F.3d at 629-30, while in Sanford we affirmed a district court order requiring a remand, 262 F.3d at 599.
A procedural violation of the type we find in this case warrants remand to the administrator to make a proper determination. Elliott v. Metro. Life Ins. Co., 473 F.3d 613, 622 (6th Cir.2006); Sanford, 262 F.3d at 599; Marks, 342 F.3d at 461; Moore v. LaFayette Life Ins. Co., 458 F.3d 416, 436 (6th Cir.2006). In the alternative, a remand to the district court to supplement the record may be warranted. VanderKlok v. Provident Life & Accident Ins. Co., 956 F.2d 610, 616-17 (6th Cir.1992); Univ. Hosps. of Cleveland v. S. Lorain Merchs. Ass’n Health & Welfare Benefit Plan & Trust, 441 F.3d 430, 434 (6th Cir.2006). Moreover, the fact that this case involves a termination of benefits rather than an initial denial may warrant equitable interim relief like that affirmed in Sanford, 262 F.3d at 599. But none of this warrants dispensing altogether with the need for a remand on the theory that Wenner is substantively entitled to benefits because of a procedural error. Wen-ner was denied an opportunity to havé Sun Life review the initial denial of benefits, and he would receive just that with a remand to Sun Life. If, after such a review, Sun Life determined that Wenner was still disabled according to the terms of the plan (or, if Sun Life determined that Wenner was not disabled, but a reviewing court concluded that the determination was arbitrary or capricious), Wenner would be entitled to benefits. There is no need to manufacture a substantive remedy for a procedural violation when the procedural violation can be appropriately *886remedied by requiring the denied procedures.
I note finally as a policy matter that today’s holding will unduly increase the stakes when procedural violations are alleged in the termination of ERISA-covered benefits. On the one hand, terminated beneficiaries with little chance of successful substantive appeals will be encouraged to raise procedural challenges. On the other hand, reviewing courts may be reluctant to insist on full compliance with procedural requirements when the identification of procedural flaws results in automatic substantive reinstatement.