dissenting:
I agree with the Court that Post’s claim under ERISA § 502(a)(2) is barred by-principles of res judicata and that in determining whether an administrator’s denial of benefits is arbitrary or capricious — as contrasted with deciding the appropriate standard of review' — a district court is limited to consideration of the evidence that was before the administrator. I therefore join Section IV of the Court’s opinion. I disagree, however, with the Court’s analysis of Post’s claim under ERISA § 502(a)(1)(B), and with the Court’s decision to reverse and remand the summary judgment on that claim. I would affirm the judgment of the District Court.
I. Merits Evidence
The benefits decision we are asked to review was communicated to Post in a letter dated October 2, 2003. That letter explains at length the administrator’s reasons for declining to continue disability benefits. It describes and principally relies upon an investigation conducted by Dr. Christopher G. Lynch, M.D. Dr. Lynch was engaged by Hartford in order to secure independent evaluation of Post’s claim to “total disability” benefits.11 In the course of his investigation, Dr. Lynch physically examined Post and reviewed all of the medical records accumulated over the preceding ten years.
The administrator’s letter accurately reflects Dr. Lynch’s report and, like that report, is reasoned, thorough and makes a persuasive case for the conclusion that Post, while suffering from chronic pain syndrome, is not totally disabled. It concludes with the following quotations from Dr. Lynch’s report:
Dr. Lynch found that “multiple physical exams have shown nothing more than tender muscles at times and occasional trigger points.” According to Dr. Lynch: “An equal number of examinations have found no tender muscles or trigger points. Thus, there can be no consistent physical disability over this period of time.”
With respect to the need to assign physical restrictions and limitations, Dr. Lynch provided these remarks: “Given the multiple normal examinations, including my own of today,12 I feel she *171could perform sedentary to light work as usually defined — light work, lifting up to 20 pounds maximum with frequent lifting or carrying of objects weighing up to 10 pounds. She should have the ability to change posture at fairly frequent intervals.”
Citing the restrictions and limitations identified by Dr. Lynch, Ms. Post would not be prevented by disability from doing any occupation or work for which she is qualified by training, education or experience.
JA 289-90 (footnote added).
While Post stresses that several treating physicians had expressed the opinion that she was unable to work and that the Social Security Administration found her disabled in 1998, she does not point to any segment of her medical records that contradicts Dr. Lynch’s characterizations of those records in these quotations. Nor can Post dispute the fact that Dr. Lynch is the only physician having no continuing relationship with Hartford or Post who physically examined her and studied all of her medical records.
II. Standard of Review Evidence
A. Structural Factors
Under the teachings of Pinto, it is clear that Hartford has a material conflict of interest. It selves as both payor and decision maker and there are no other factors that ameliorate the incentive thus created to deny benefits. This calls for a “heightening” of the “arbitrary or capricious” standard of review which is applicable in all cases where an ERISA plan vests discretion in the administrator.
[A] heightened standard of review would appear to be appropriate when a plan funder like an insurance company “incurs a direct expense,” the consequences to it are direct and contemporary, and, while it has incentives to maintain good business relationships, it lacks the incentive to “avoid the loss of morale and higher wage demands that result [for an employer] from a denial of benefits.”
For all the foregoing reasons, we believe that a higher standard of review is required when reviewing benefits denials of insurance companies paying ERISA benefits out of their own funds.
Pinto, 214 F.3d at 389, 390; see also Kosiba v. Merck & Co., 384 F.3d 58, 65-66 (3d Cir.2004).
B. Procedural Factors
It is equally clear from Pinto that the “heightened” review arising from this structural conflict of interest would be “ratcheted upward” if there were anomalies in the procedure by which the administrator’s decision was reached that give the Court reason to doubt its fiduciary neutrality. Pinto, 214 F.3d at 394; Kosiba, 384 F.3d at 66. I believe a fair reading of the record in this case fails to suggest anything other than neutrality, however. To the contrary, the record affirmatively suggests that Hartford’s search for the answer to the “total disability” issue was conducted in a fair, impartial and cooperative manner. Each of the anomalies that trouble the Court appear troubling only if one engages in speculation having no record support.
It is true, as the Court notes, that Hartford requested a copy of Post’s social security award so that it could offset her social security benefits against her disability benefits. This mistake was understanda*172ble, however, and promptly corrected when the error was called to Hartford’s attention. The ERISA plan of Post’s former employer, which Hartford administers, appears to be a standard form, but with an attached state-specific section titled “Statutory Provisions,” which, the Plan states, “are included to bring your booklet-certificate into conformity with ... state law.” JA 78. If one reads Post’s benefits Plan without paying careful attention to the statutory provisions, the Plan would appear to allow Hartford to use Post’s Social Security benefits to offset her disability benefits. In the portion of the Plan titled “Calculation of Monthly Benefit,” part of step 2 of the calculation is to “subtract all Other Income Benefits, including those for which you could collect but did not apply.” JA 99. In the definitions section of the Plan, “Other Income Benefits” is defined by a list, of which item (4) of the first paragraph is “[t]he amount of disability or retirement benefits under the United States Social Security Act to which you may be entitled because of disability retirement.” JA 86. The “statutory provisions” of the Plan- — -reflecting New Jersey law — state, however, that “[i]tems (3) and (4) of the first paragraph of the definition of Other Income Benefits are deleted.” JA 78. After Hartford requested the award letter, Post’s counsel responded with a letter calling Hartford’s attention to the error:
As promised, here is the Notice of Award, and the language in the policy deleting Social Security Benefits from the definition of “Other Income Benefits,” as well as the deleted language itself. As you can see, pursuant to New Jersey law, the situs of this contract, Hartford has no right to take a credit or deduction for or from its obligation due to Social Security’s payments.
JA 216. An internal communication at Hartford reflects that Hartford then researched the issue, agreed with Post’s counsel’s assessment, and determined to “change case management” accordingly “so that [it could] correctly administer claims under this Policy.” JA 231.
It is also true, as the Court notes, that Hartford at one point stated that benefits were being terminated in part because Post had declined to undergo a functional capacity evaluation (“FCE”). While Post had not at that point declined to take an FCE, Hartford’s error clearly cannot be attributed to a lack of neutrality on its part. On June 18, 2001, Hartford was advised in writing by Empire Medical Management (“EMM”), an independent medical firm that had attempted to arrange an FCE through Post’s counsel, that she had refused such an examination. In short, Hartford was not a party to the miscommunication that led to this misunderstanding and ultimately revised its position. Moreover, when one of Post’s physicians later expressed concern about whether an FCE would aggravate her symptoms, Hartford accommodated those concerns by agreeing to settle for the less strenuous independent medical evaluation (“IME”) that was conducted by Dr. Lynch.
The Court cites as its second anomaly Hartford’s failure to afford Post an opportunity to comment on Dr. Lynch’s report before sending its October 3, 2003, letter. While the Court correctly notes that no explanation for this appears in the record, that is not surprising in light of the fact that Post did not maintain before the District Court or before us that this was a matter of concern for her. Post was given a full opportunity to develop a record before the administrator, and neither the section of the Plan addressing her appeal rights nor ERISA § 503(2) (addressing internal appeal rights) provides a right to comment on the report of an independent *173medical consultant under the circumstances of this case.
Third, the majority finds evidence of bad faith in the fact that Hartford’s initial decision to terminate Post’s benefits “relied heavily on Dr. Malievskaia’s report,” because (1) Dr. Malievskaia’s report was not based on a physical examination, and (2) “the overwhelming weight of evidence in Post’s record argued in her favor.” Dr. Malievskaia was an Associate Medical Director of Medical Advisory Group (“MAG”), a medical consulting firm that Hartford engaged in the summer of 2001 following EMM’s June 18, 2001, letter advising of Post’s refusal to submit to an FCE, to “review [Post’s] medical records and speak to [Post’s] primary care physician in order to identify [her] functional capabilities and address the claimant’s ability to perform [a] sedentary to light occupation.” JA 339. Dr. Malievskaia did interview two treating physicians and submitted her report on September 20, 2001. That report was not relied upon in the October 3, 2003, decision letter that we are reviewing. It was, however, relied upon in Hartford’s original decision letter of January 4, 2002, the same letter that relied in part on what Hartford then understood to be Post’s refusal to be examined. This context, in my view, precludes drawing an inference against Hartford from its reliance on Dr. Malievskaia’s report. Given that Hartford believed that Post had refused to be examined, and that that fact alone was a sufficient reason to terminate her benefits, it makes little sense to penalize Hartford for taking additional steps to ascertain Post’s medical condition. Moreover, as that report and Hartford’s January 4th letter evidence, the overwhelming weight of evidence in Post’s record did not argue in her favor.13
*174Fourth, the Court holds that a Hartford employee’s use of the term “unsuccessful” in an internal e-mail to describe Hartford’s surveillance of Post counsels heightened review. The only evidence in the record on this point is one line of an internal email stating “Surveillance was unsuccessful as the claimant was not observed leaving her home.” JA 227. In the Court’s view, the use of the word “unsuccessful” suggests that Hartford’s “motive was to find evidence to deny Post’s claim.” I do not agree.
As the Court recognizes, surveillance by an insurance company is not per se suspicious. See, e.g., Delta Family-Care Disability & Survivorship Plan v. Marshall, 258 F.3d 834, 841 (8th Cir.2001) (“[T]here is nothing procedurally improper about the use of surveillance.”); Tsoulas v. Liberty Life Assurance Co. of Boston, 454 F.3d 69, 76-77 (1st Cir.2006) (district court properly held that surveillance was for the purpose of objective documentation of disability rather than to deny benefits). Hartford’s employee’s description of the surveillance as “unsuccessful” may support an inference of bias only if one supposes that Post’s leaving her home could only produce evidence that would undermine her claim. If Post left her home to jog or play sports, that would certainly undermine her claim to disability benefits. On the other hand, if she used a wheelchair to move from her door to a waiting wheelchair transport vehicle, or hobbled gingerly on crutches, that would support her claim to disability benefits. The only reasonable inference' — if any inference may be drawn with confidence — is that the use of the word “unsuccessful” meant that Hartford’s surveilleur was unable to observe Post at all due to the fact that she did not leave her home, and thus could neither confirm nor deny her disability.
Unlike the Court, I am unwilling to characterize Hartford’s request for tax returns as an “aggressive tactic.” The Plan entitles Hartford to reduce Post’s benefits by the amount of income she received from working. Contrary to the majority’s suggestion, there is nothing “ambiguous” about the Plan in that respect. In Hartford’s May 12 and June 19, 2000, letters to Post and her attorneys requesting tax returns, Hartford quoted the language of the policy pertaining to the calculation of Post’s benefits, specifically emphasizing the text that directed Hartford to subtract “all other income from any employer or for any work.” JA 214, 219. At the time Hartford requested Post’s returns, Post was collecting “total disability” benefits under the theory that she was prevented from doing any work by a disabling condition. In that light, it hardly seems unreasonable or suggestive of bad faith for Hartford to request tax returns, as Post’s report to the government of her employment status during her period of alleged total disability would be probative evidence of whether Post was in fact “prevented by Disability *175from doing any occupation or work for which [she is] or could become qualified.”
Finally, the Court suggests that a disagreement between Hartford’s October 3, 2003, decision and the August 11, 1998, decision of the Social Security Administration “is relevant though not dispositive” of whether the former was arbitrary and capricious. Op. at 167. Suffice it to say, the administrative law judge in 1998 did not have the benefit of the record before Hartford in 2003, and no review of Post’s continued eligibility for social security benefits has been undertaken since 1998. See Pari-Fasano v. ITT Hartford Life & Acc. Ins. Co., 230 F.3d 415, 420 (1st Cir.2000). In Pinto and other cases in which courts have applied heightened scrutiny to an administrator’s denial of benefits in the face of a social security award, they have done so not because of the mere fact of conflict with the SSA’s determination, but because there is something suspicious about the manner in which the SSA decision is disregarded or disagreed with. In Pinto, for example, we were concerned with the fact that the administrator showed inexplicably greater deference to the SSA’s determination that the claimant was not disabled than to the SSA’s subsequent reversal of its initial determination. Pinto, 214 F.3d at 393-94. Similarly, in Harden v. Am. Express Fin. Corp., 384 F.3d 498, 500 (8th Cir.2004),' the court applied greater scrutiny where the insurance company led the claimant to believe that it was considering his SSA records when it in fact was not. In other instances, where a plan requires the beneficiary to apply for Social Security benefits and takes an offset if the Social Security claim succeeds — which Hartford does not do here because of New Jersey state law— courts have applied heightened scrutiny to ensure that the administrator does not make self-servingly selective use of the SSA’s determinations by giving weight only to those determinations that go against the claimant. See Calvert v. Firstar Fin., Inc., 409 F.3d 286, 294-95 (6th Cir.2005) (finding that where the plan at issue had such a requirement, an administrator’s disagreement with the SSA’s determination “counseled] a certain scepti-cism” that the court should consider as a factor in determining whether the administrator’s decision was arbitrary and capricious); Wilkerson v. Reliance Std. Life Ins. Co., No. 99-4799, 2001 WL 484126 at *1 (E.D.Pa. Mar.6, 2001) (“[D]efendant is in the seemingly anomalous position of requiring plaintiff to refund some of the disability benefits received from the defendant because offset by Social Security disability benefits, and then failing to give any consideration to the continuation of Social Security benefits as evidence of continued total disability.”)
I disagree with the Court’s suggestion that any of these “anomalies,” either alone or in combination, should alter our standard of review in this case.
C. Resulting Standard of Review
I thus view this as a case in which the decision maker had a material, inherent conflict of interest, but in which there is no significant evidence regarding its processing of the claim to benefits which suggests anything other than an impartial exercise of fiduciary discretion. It is clear from Pinto that such a situation calls for a “heightened” application of the arbitrary and capricious standard of review.
In Pinto, we adopted a “sliding scale” approach that “allows each case to be examined on its facts.” It teaches that district courts “should consider the nature and degree of apparent conflicts with a view to shaping their arbitrary and capricious review of benefit determinations of discretionary decisionmakers.” Pinto, 214 *176F.3d at 393. As Pinto expressly acknowledged, however, “the routine legal meaning of an arbitrary and capricious decision is ... a decision ‘without reason, unsupported by substantial evidence or erroneous as a matter of law,’ ” and “[o]nce the conflict becomes a ‘factor’ ... it is not clear how the process required by the typical arbitrary and capricious review changes.” Id. at 392. The standard of review we ultimately adopted in Pinto was of necessity an imprecise one: the review is to be “more penetrating the greater the suspicion of partiality, less penetrating the smaller the suspicion is.” Id. at 392-93 (quoting from Wildbur v. ARCO Chem. Co., 974 F.2d 631 (5th Cir.1992)). District courts, we instructed, must “approximately calibrate] the intensity of [their] review to the intensity of the conflict.” Id. at 393.
It must be kept in mind, however, that the arbitrary and capricious standard, even when heightened, remains a deferential one. See Stratton v. E.I. DuPont De Nemours & Co., 363 F.3d 250, 256 (3d Cir.2004); Gritzer v. CBS, Inc., 275 F.3d 291, 295 & n. 3 (3d Cir.2002). The sliding scale, throughout its entire range, measures the deference to be afforded the decision of an administrator upon whom the plan has conferred discretion regarding benefits. Even where the conflict and/or procedural irregularities are most serious, this means only that the Court will “require that the record contain substantial evidence bordering on a preponderance to uphold [the administrator’s] decision.” Woo v. Deluxe Corp., 144 F.3d 1157, 1162 (8th Cir.1998). Stated conversely, if the evidence in the administrative record renders it more likely than not that the administrator’s decision is correct, it necessarily follows that the decision must stand wherever on the arbitrary and capricious sliding scale the case may fall. In short, if the decision withstands de novo review, it matters not how little deference is accorded. See Williams v. BellSouth Telecommunications, Inc., 373 F.3d 1132, 1139 (11th Cir.2004) (“Because no grounds exist to disturb Kemper’s determination under the de novo review standard, we need not review it under the more deferential (‘mere’ or ‘heightened’ arbitrary and capricious) standard.”).
As the Court recognizes, while Hartford’s structural conflict calls for “heightened” review, in the absence of evidence of procedural bias it does not place this case at the upper end of the scale. Under our case law, as the Court explains, “[structural conflicts of interest warrant more searching review, but in the absence of evidence that bias infected the particular decision at issue, we defer to an administrator’s reasonable and carefully considered conclusions.” Op. at 164. I agree with this reading of our jurisprudence, and because I believe no court reviewing the record before Hartford and affording its decision this kind of deference, or indeed deference of any significant degree, could appropriately overturn that decision, I would affirm the summary judgment in its favor.
III. Disposition
Post’s case presented difficult issues for an administrator to resolve. She originally suffered a “whiplash injury,” which Dr. Fiore described as a “cervical [neck] sprain/strain.” JA 196-98. She had no bruises, lacerations, or broken bones, and magnetic resonance imagery revealed no tears, nerve damage, or slipped or herniated discs. Post nevertheless complained, over the next decade, of total body pain sufficiently severe to prevent her from any employment. Throughout that period, she was treated by physicians who prescribed medications and other therapy which were expected by them to alleviate this pain, but to no avail. Her condition did not im*177prove. Post’s treating physicians did not reach a consensus with regard to the cause of her pain. Several suggested psychiatric or psychological therapies be undertaken, but Post declined to pursue that course. Two physicians suggested Post suffered from fibromyalgia, but their records did not reflect anything approaching the clinical evidence necessary to support that diagnosis. While several treating physicians expressed the opinion that Post was unable to perform any work, those opinions were based solely upon the patient’s report of her symptoms. No clinical or other personal observations of Post were reported in support of those opinions.
Given this medical history, Hartford reasonably sought information to confirm or negate Post’s claims to continued benefits. It did so by requesting additional information from Post and her treating physicians and by seeking the counsel of an independent consultant, Dr. Lynch. As I have earlier noted, his report indicates that his investigation was thorough and impartial. Dr. Lynch addressed the conclusions of Post’s prior treating physicians, contrasted those conclusions with the medical records and with his own findings after a physical examination, and ultimately concluded that although she was disabled by some kind of pain disorder, she was not sufficiently disabled as to meet the plan definition of total disability. Dr. Lynch’s report is not unassailable, but it is reasoned, consistent with the rest of Post’s medical records, persuasively establishes that there is no objective evidence to support Post’s claim of total disability, and clearly provides a rational basis for concluding that she is able to perform sedentary work.
In short, the administrative record before Hartford on October 3, 2003 provides clear and convincing support for the conclusion that Post had not established entitlement to continuing benefits. That conclusion of the administrator was reasonable and carefully considered, and I believe any reviewing court would be required by our case law to defer to it. Accordingly, I would affirm the District Court’s summary judgment in favor of Hartford.14
. Under the Plan, to be considered "totally disabled” after December 6, 1997, Post would have to be "prevented by Disability from doing any occupation or work for which [she is] or could become qualified by: (1) training; (2) education; or (3) experience.” JA 77. When Post was originally granted benefits, the applicable definition of "totally disabled” was that she was "prevented by Disability from doing all the material and substantial duties of [her] own occupation.” Under the terms of the Plan, the definition changed once Post had been disabled for 24 months plus 180 days. JA 76-77, 83.
. Dr. Lynch’s report described his observations during his examination of Post as follows:
On examination today, she is alert, cooperative and in no distress. Affect is a bit flat. She appeared to be in no distress although she stated she had total body pain. Examination of the upper extremities reveals no deformities. There is no focal motor, reflex or sensory loss. She has normal pain free range of motion in all upper extremity joints including the shoulders. There was no tenderness over the forearm or upper arm musculature.
Examination of the head, neck and back reveals no deformities. Range of motion in the cervical spine was 15-20 degrees of left and right lateral rotation with normal flex-ion and extension. Range of motion in the low back was 60+ degrees of flexion with 5-10 degrees of extension. Palpation over the cervical and thoracic regions reveals no definite tenderness and no trigger points were palpated. Palpation over the lumbo-sacral spine reveals no tenderness. She was somewhat tender over the greater tro-*171chanters bilaterally. Motor, reflex and sensory exams were normal in the lower extremities. She has normal pain free range of motion in all lower extremity joints. Gait is normal.
JA 292-93.
. While the evidence in Post’s record indicated that she suffered from chronic pain, to be eligible for benefits at that point, Post had to be “prevented by Disability from doing any occupation or work for which [she is] or could become qualified by: (1) training; (2) education; or (3) experience.” JA 77 (emphasis added). In 1994, ten months after her initial injury, Dr. Michael Fiore noted that Post had no lacerations, bruises, swelling or broken bones, diagnosed her with a "cervical sprain/strain,” and concluded that she was "not disabled” and "may participate in full activity as tolerated.” JA 196-98. In 1996, Dr. Joel Harris examined Post and concluded that although she had severe pain in her head and neck area, she was capable of doing sedentary work. JA 265. The Court notes that sedentary work was the "least intensive option available,” but nothing prevented Dr. Harris from indicating, as Dr. Britton did on the same form, JA 256, that Post was incapable of doing sedentary work. New Jersey's medical examiner found that Post "could perform medium exertional work with limited reaching.” JA 46.
Although several of Post's doctors tested her for “trigger points” and diagnosed her with fibromyalgia, their ultimate diagnoses were based on self-reported symptoms, and none of the doctors ever found the requisite eleven of eighteen trigger points needed to support such a diagnosis. There are several references in Post's medical records to "trigger points,” all of which indicate that she had fewer than eleven. JA 262 (Dr. Mulford in March 1995, finding "some trigger points in the sternocleidomastoid and scalenes"); JA 259 (Dr. Mulford in November 1995, finding "several trigger points in the upper cervical spine at the occiput and over the cervical facets”); JA 258 (Dr. Mulford in 1996, finding “no palpable muscle spasm or trigger points at this time”); JA 318-19 (Dr. Kaufman in May 2000, finding "trigger points on the right side ... [and] Another trigger point in the infraspinatous region on the left side,” but none in several other places); JA 317 (Dr. Kaufman in October 2000 finding two trigger points); JA 293-95.0 The "trigger point” test is recognized in the case law and the medical literature as a prerequisite to a diagnosis of fibromyalgia. See Sarchet v. Chater, 78 F.3d 305, 306-07 (7th Cir.1996) (discussing the trigger point test); Chronister v. Baptist Health, 442 F.3d 648, 656 (8th Cir.2006) (same, citing Sarchet); Stup v. UNUM Life Ins. Co. of Am., 390 F.3d 301, 303 (4th Cir.2004) (same); Hawkins v. First Union Corpo*174ration Long-Term Disability, 326 F.3d 914, 919 (7th Cir.2003) (same); Stedman’s Concise Medical Dictionary for the Health Profession 361 (4th ed.2001) (defining fibromyalgia as "a condition of chronic diffuse widespread aching and stiffness affecting muscles and soft tissues; diagnosis requires 11 of 18 specific tender points.... "). Admittedly, Post's file contained the opinions of several treating physicians to the effect that she was completely disabled, but it is not a fair assessment of the record to say that the evidence in her favor was sufficiently overwhelming as to raise a legitimate inference of bad faith when Hartford’s administrator disagreed with those conclusions. This is not, therefore, a situation like Kosiba, where the claimant's "physician's reports uniformly supported her contentions” of disability, and there was no comparable evidence supporting the insurer’s contrary view at the time it ordered an examination. 384 F.3d at 67.
. I would not remand for further proceedings. Our review of the District Court’s summary judgment is plenary and, as the Court recognizes, the merits decision must be made on the basis of the administrative record. Given that record, the District Court would have no basis on remand for doing anything other than accepting Hartford’s decision. While it is not material to my decision to affirm, rather than remand, I note that Post, of course, has no right to a jury review of the administrator's decision. Turner v. CF & I Steel Corp., 770 F.2d 43 (3d Cir.1985).