Nance v. Sun Life Assurance Co. of Canada

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 2 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

BRYAN K. NANCE,

Plaintiff-Appellant,

v. No. 01-6234

SUN LIFE ASSURANCE COMPANY
OF CANADA,

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. CIV-00-724-T)

Submitted on the briefs:

Glen Mullins, Oklahoma City, Oklahoma, for Plaintiff-Appellant.

Arlen E. Fielden of Crowe & Dunlevy, Oklahoma City, Oklahoma, and
Mark E. Schmidtke of Hoeppner Wagner & Evans LLP, Valparaiso, Indiana,
for Defendant-Appellee.

Before SEYMOUR , McKAY , and HARTZ , Circuit Judges.

HARTZ , Circuit Judge.
 Plaintiff Bryan K. Nance appeals the district court’s entry of summary

judgment in favor of Sun Life Assurance Company of Canada (Sun Life) on his

claim for long-term disability benefits under the Employee Retirement Income

Security Act of 1974 (ERISA), 29 U.S.C. § 1001, et seq . The district court ruled

that Sun Life’s decision to deny benefits based on Plaintiff’s back condition and

depression was not arbitrary or capricious. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm. 1

I. Background

Louis Dreyfus Natural Gas (Dreyfus) hired Plaintiff to work as an

accountant in 1993. In July 1997 Plaintiff was injured in a car accident. Because

of his injuries, Plaintiff left work on September 17. He never returned.

As an employee of Dreyfus, Plaintiff was a participant in the company’s

employee disability benefit plan (the Plan), which was funded and administered

by Sun Life. He received short-term benefits under the Plan from September of

1997 through March 4, 1998. According to Sun Life, Dreyfus terminated

Plaintiff’s employment on March 4. Plaintiff contends that his termination date

was March 13, but our decision does not require choosing between the two dates.

1
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G).

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 In January 1998 Plaintiff made a claim for long-term disability benefits

based on a diagnosis of, and surgery for, “left thoracic outlet syndrome” (LTOS),

a compression of the nerves and blood vessels between the collarbone and first

rib, causing, among other things, pain in the arms. See The Sloane-Dorland

Annotated Medical-Legal Dictionary 511 (1992). After initially denying those

benefits, Sun Life reconsidered and ultimately approved them on April 27, 1999.

During the interim between initial denial and approval of benefits, however, one

of Plaintiff’s doctors wrote a letter releasing him “to return to his regular

activities without restrictions.” Based on this letter Sun Life limited Plaintiff’s

benefits to the period ending one day prior to the date of the doctor’s release, or

July 21, 1998.

On June 4, 1998, while Sun Life was considering Plaintiff’s claim based on

LTOS, it received a letter from his surgeon noting that he had become

“exceedingly depressed.” Then, two weeks after Plaintiff was granted limited

long-term benefits, his attorney notified Sun Life of a possible claim for benefits

based on a back condition allegedly caused by the same car accident that caused

his LTOS. After reviewing additional evidence, Sun Life denied the back claim

on June 8, 1999, because (1) it was based on a congenital condition unrelated to

his LTOS and (2) the medical records reflected that he did not suffer back pain

until after his termination from employment. Two months later Sun Life denied

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Plaintiff’s depression claim, finding again that the evidence did not support the

existence of a disabling condition prior to his termination. In February and March

2000 Plaintiff forwarded additional material concerning his back pain and

depression, but Sun Life refused to reopen his claim because all levels of appeal

had been exhausted.

On April 12, 2000, Plaintiff filed suit against Sun Life, alleging it violated

29 U.S.C. § 1132 in denying his claim for benefits. The district court granted Sun

Life’s motion for summary judgment, concluding that Sun Life’s decisions

to deny Plaintiff long-term disability benefits were not arbitrary or capricious.

Plaintiff has appealed, arguing that (1) the district court erred by using the wrong

standard of review; (2) the district court erred by limiting its review to the

evidence Sun Life had acquired as of August 9, 1999 (the date of the last denial);

and (3) Sun Life’s denial of benefits was based on an unreasonable interpretation

of the Plan and was not supported by substantial evidence.

II. Standard of Review

Summary judgment is appropriate if “there is no genuine issue as to any

material fact and . . . the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c). “We review the grant of summary judgment de novo ,

applying the same standard as [should have been applied by] the district court” in

reviewing the decision by Sun Life to deny benefits. Amro v. Boeing Co. , 232

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F.3d 790, 796 (10th Cir. 2000). What that standard should be is disputed by the

parties on appeal, as it was in district court. Plaintiff urges that we review Sun

Life’s denial of benefits de novo , whereas Sun Life argues that we must uphold its

decision unless we find it to be arbitrary or capricious.

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

Supreme Court wrote that a denial of benefits challenged under § 1132 “is to be

reviewed under a de novo standard unless the benefit plan gives the administrator

or fiduciary discretionary authority to determine eligibility for benefits or to

construe the terms of the plan.” If the plan grants discretionary authority to the

administrator or fiduciary, the exercise of that authority will be set aside only if it

is arbitrary or capricious. See Chambers v. Family Health Plan Corp. , 100 F.3d

818, 825 (10th Cir. 1996).

In applying Firestone , it is essential to focus precisely on what decision is at

issue, because a plan may grant the administrator discretion to make some

decisions but not others. Plaintiff challenges two decisions by Sun Life in denying

him benefits. First, he contends that Sun Life misconstrued the Plan when it

decided that he was covered for a disability only if the disability began before his

employment with Dreyfus was terminated. Second, he contends that Sun Life

erred in its factual decision that he was not disabled at the time of termination.

Depending on the specific language of the Plan, the standard for our review of Sun

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Life’s interpretation of the Plan and the standard for our review of Sun Life’s fact

finding may or may not be the same.

Unfortunately, the arguments in the parties’ briefs concerning the standard

of review do not distinguish between the two challenged aspects of Sun Life’s

denial of benefits. In any event, we need address only the standard of review for

Sun Life’s fact finding. The standard of review does not affect our decision

regarding Sun Life’s interpretation of the Plan with respect to coverage of

disabilities. Assuming, without deciding, that we should apply de novo review, we

confirm Sun Life’s interpretation later in this opinion. Because Sun Life’s

interpretation survives the more stringent de novo review, the interpretation could

not be arbitrary or capricious.

We now consider whether the Plan confers discretion on Sun Life in finding

the facts relating to disability. Some Plan provisions do not use language

suggesting discretion. The Plan states that “[i]f Sun Life receives Notice and Proof

of Claim that an Employee is Totally or Partially Disabled, a Net Monthly Benefit

will be payable, subject to the Limitations and Exclusions.” To receive that

benefit, “Proof of Total or Partial Disability must be given to Sun Life upon request

and at the Employee’s expense.” On the other hand, the section concerning claim

provisions provides that for all claims (1) “Proof must be satisfactory to Sun Life”

before benefits will be paid, and (2) benefits will be paid for any period for which

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Sun Life is liable “[w]hen Sun Life receives satisfactory Proof of Claim.” In

addition, long-term benefits cease under the Plan no later than

[1] the date the Employee fails to provide adequate employment
earnings information or proof of continuing Total or Partial Disability
as requested; [or] . . . [2] for the first 24 months of Total Disability or
for Partial Disability, the date Sun Life determines the Employee is
able to perform on a full-time basis all of the material and substantial
duties of his own occupation . . . [or] after the first 24 months of Total
Disability, the date Sun Life determines the Employee is able to
perform on a full-time basis all of the material and substantial duties
of any occupation for which he is or becomes reasonably
qualified . . . .

Relying primarily on the Seventh Circuit’s opinion in Herzberger v. Standard

Insurance Co. , 205 F.3d 327 (7th Cir. 2000), Plaintiff argues that the language of

the Plan does not grant the plan administrator discretionary authority to determine

facts relating to Plaintiff’s claim. In our view, however, common meaning, Tenth

Circuit precedent, and the weight of authority elsewhere (including Herzberger )

support the district court’s decision.

Because the issue before us is whether Sun Life properly refused to grant

disability benefits based on Plaintiff’s depression or back condition, the pertinent

language is the requirement that “[p]roof [of long term disability] must be

satisfactory to Sun Life.” To begin our analysis, we distinguish this language—in

particular, the words “satisfactory to Sun Life”—from language in other plans that

requires only submission of satisfactory proof, without reference to who must be

satisfied. Most circuits that have considered the issue have concluded that the mere

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requirement to submit satisfactory or adequate proof of eligibility does not confer

discretion upon an administrator. See Herzberger , 205 F.3d at 331; Kearney v.

Standard Ins. Co. , 175 F.3d 1084, 1089-90 (9th Cir. 1999) (benefits provided

“upon receipt of satisfactory written proof”); Bounds v. Bell Atl. Enters. Flexible

Long-Term Disability Plan , 32 F.3d 337, 339 (8th Cir. 1994) (claims will be paid

“after [the administrator] receives adequate proof of loss”). To say that proof must

be “satisfactory” may be to say only that it must meet some objective

standard—what a reasonable person would find to be satisfactory. See Herzberger ,

205 F.3d at 330-31 ; Kearney , 175 F.3d at 1089. Construing any ambiguity in plan

language in favor of the beneficiary, courts are likely to interpret the term

“satisfactory” as conveying such an objective standard, without granting any

deference to the factual determinations of the plan administrator. See Kearney , 175

F.3d at 1089-90. Indeed, only one circuit (by an 8-6 margin in an en banc decision)

has held that language requiring submission of “satisfactory” proof of loss, without

specifying who determines the sufficiency of that proof, is by itself adequate to

trigger the arbitrary-and-capricious standard of review. See Perez v. Aetna Life Ins.

Co. , 150 F.3d 550, 556-57 (6th Cir. 1998).

Going one step further in denying that a plan confers discretion, some courts

have held that plan language requiring that a claimant “submit[] satisfactory proof

of Total Disability to [the administrator]” does not confer discretion on the

-8-
administrator because the language should be construed as stating only to whom the

proof must be submitted, not who must be satisfied. See Walke v. Group Long

Term Disability Ins. , 256 F.3d 835, 839-40 (8th Cir. 2001) (language requiring

insured to “submit[] satisfactory proof of Total Disability to us”); Kinstler v. First

Reliance Standard Life Ins. Co. , 181 F.3d 243, 251-52 (2d Cir. 1999) (same). But

see Wilcox v. Reliance Standard Life Ins. Co. , 175 F.3d 1018 (4th Cir. 1999)

(unpublished) (reaching contrary result with respect to same plan language).

On the other hand, when, as in this case, a plan states that the grant or denial

of a particular benefit is to be determined by proof satisfactory to the administrator,

courts have said that deferential review is proper. See Donato v. Metro. Life Ins.

Co. , 19 F.3d 375, 379 (7th Cir. 1994) (“proof must be satisfactory to us”);

Herzberger , 205 F.3d at 331 (describing the language in Donato as “indicat[ing]

with the requisite if minimum clarity that a discretionary determination is

envisaged”); Ferrari v. Teachers Ins. & Annuity Ass’n , 278 F.3d 801, 806 (8th Cir.

2002) (describing plan as stating that “proof must be satisfactory to [the

administrator]”; Perez , 150 F.3d at 558 (Boggs, J., dissenting) (disagreeing with

majority’s opinion that plan language granted discretion, but stating that Donato

plan language “clearly gives discretion[] . . . to the administrator”).

-9-
 Although language in Kinstler , 181 F.3d at 252, suggests that the Second

Circuit might disagree, 2
we hold that the “satisfactory to Sun Life” language

suffices to convey discretion to Sun Life in finding the facts relating to disability.

In our view, this language adequately conveys to the Plan participants and

beneficiaries that the evidence of disability must be persuasive to Sun Life.

Furthermore, to hold otherwise would be at odds with our circuit’s case law. We

have been comparatively liberal in construing language to trigger the more

deferential standard of review under ERISA. In McGraw v. Prudential Insurance

Co. of America , 137 F.3d 1253, 1259 (10th Cir. 1998), we held that the arbitrary-

and-capricious standard governs review of decisions of medical necessity in a plan

stating “[t]o be considered ‘needed,’ a service or supply must be determined by [the

administrator ] to meet all of these tests . . . .” (emphasis in original); cf. Chambers,

100 F.3d at 825 (finding sufficient discretionary language in plan excluding

coverage of certain medical procedures considered experimental “in the judgment

of [the administrator]”). Yet Herzberger , which supports a finding of discretion

under the Plan language in our case, would not find discretion arising from

language that merely “requires a determination of eligibility or entitlement by the

2
Language in Kearney , 175 F.3d at 1089-90, suggests that the Ninth Circuit also
might disagree, but a very recent, unpublished Ninth Circuit decision adopts the
same view as our opinion. See Helm v. Sun Life Assurance Co. of Canada, 34
Fed. Appx. 328 (9th Cir. 2002).

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administrator,” 205 F.3d at 332, thereby suggesting a view, which we share, that

this case is an easier one for finding discretion than McGraw was. McGraw also

supports our result because the Plan language describing when benefits must

cease—“the date Sun Life determines the Employee is able to perform . . .”

—would, under the holding in that case, grant Sun Life discretion to halt benefits if

it had ever authorized benefits for Plaintiff’s depression and back claims. 3

Because the Plan gives discretion to Sun Life in finding the facts relating to

disability, we must uphold Sun Life’s decisions as a fact finder unless they were

arbitrary or capricious. This standard is a difficult one for a claimant to overcome.

As we have explained,

When reviewing under the arbitrary and capricious standard, the
Administrator’s decision need not be the only logical one nor even the
best one. It need only be sufficiently supported by facts within [his]
knowledge to counter a claim that it was arbitrary or capricious. The
decision will be upheld unless it is not grounded on any reasonable
basis. The reviewing court need only assure that the administrator’s
decision falls somewhere on a continuum of reasonableness -- even if
on the low end.

3
We should caution, however, that plan drafters who wish to convey discretion to
plan administrators are ill-advised to rely on language that is borderline in
accomplishing that task. Given the mobility of workers, the court that interprets
the plan may not be the court with jurisdiction over the home office. Also, as
more and more courts emphasize the need for clear language to convey discretion,
courts that have found borderline language acceptable in the past may assume that
plan drafters who have not clarified the language were not intent on conveying
discretion. See Herzberger , 205 F.3d at 331 (commending to employers “safe
harbor” language drafted by the court).

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Kimber v. Thiokol Corp. , 196 F.3d 1092, 1098 (10th Cir. 1999) (citations and

quotation marks omitted). Even so, the district court concluded, and we agree, that

Sun Life operated the Plan under a conflict of interest because it was both the

insurer and administrator of the fund. Accordingly, we must consider and weigh

the conflict as “a factor in applying this flexible standard.” Chambers, 100 F.3d at

827.

III. Scope of Record to be Reviewed

Plaintiff argues that certain evidence submitted to Sun Life several months

after August 9, 1999 (the date of its last denial of benefits), should be considered

on review of Sun Life’s decision. We disagree. “In determining whether the plan

administrator’s decision was arbitrary and capricious, the district court generally

may consider only the arguments and evidence before the administrator at the time

it made that decision.” Sandoval v. Aetna Life & Cas. Ins. Co. , 967 F.2d 377, 380

(10th Cir. 1992); see Chambers , 100 F.3d at 823. Hence, we will not consider the

material submitted by Plaintiff to Sun Life after its decision on August 9, 1999,

unless Sun Life acted in an arbitrary or capricious manner by refusing to reopen

Plaintiff’s claim to consider additional factual submissions.

We find no such error by Sun Life. The Plan states that for long-term

disability benefits,

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 proof of claim must be given to Sun Life no later than 90 days after
the end of the Elimination Period [the number of days the employee
must be disabled before being eligible to start receiving long-term
disability benefits].

If it is not possible to give proof within [this] time limit[], it must be
given as soon as reasonably possible. Proof of claim may not be given
later than one year after the time proof is otherwise required unless the
individual is legally incompetent.

To give Plaintiff the benefit of the latest possible due date for his proof of claim,

we assume that his claimed disability caused by a bad back or depression began on

the date of his termination of employment in March 1998. (We will hold in the

next section of this opinion that Sun Life was correct in deciding that Plaintiff was

not covered if the claimed disabilities commenced after his termination from

employment.) Because the Elimination Period under the Plan was 180 days,

Plaintiff’s proof of claim was due, if “possible,” within 270 days of his termination

from employment—in December 1998, long before his submissions in February and

March 2000.

In addition, the Summary Plan Description (SPD) in the Dreyfus Employee

Handbook states, “[A]ny appeal must be made within 60 days after you receive

notice that your claim has been denied or, if the circumstances are such that you

cannot meet the 60-day deadline, as soon as reasonably possible thereafter.” On

June 8, 1999, Sun Life denied Plaintiff’s claim for his back condition. On

August 9, 1999, it denied his claim for depression. (The claim was actually a

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December 1998 appeal of the October 1998 denial of his depression claim.) Thus,

the 60-day period expired by October 9, 1999. As noted by the district court, the

evidence Plaintiff sought to submit consists of (1) correspondence in November and

December of 1999 from Plaintiff’s counsel to Sun Life requesting copies of

documents from the administrative file, and (2) affidavits written by Plaintiff and

his wife, dated January 31 and March 3, 2000, respectively. Plaintiff offers no

reason for his delay, and nothing in the record on appeal suggests that Sun Life

foreclosed Plaintiff from an opportunity for an appropriate review of the denial of

his claim. See 29 U.S.C. § 1133 (setting forth procedural requirements for denial

of benefits under employee benefit plans); see also Sandoval , 967 F.2d at 381-82

(addressing claim of violation of § 1133). In light of the time limits for submission

of a proof of claim and for appealing a denial, Sun Life did not act in an arbitrary

or capricious manner by refusing to consider the additional material submitted by

Plaintiff.

IV. Administrator’s Decision to Deny Benefits

Finally, Plaintiff argues that Sun Life’s denial of his long-term benefits was

based on an unreasonable interpretation of the Plan and was not founded on

substantial evidence. We first address the claim regarding interpretation of the

Plan. We need not decide whether Sun Life had discretion in interpreting the Plan

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provisions at issue, because we can affirm Sun Life’s interpretation even under de

novo review.

A. Interpretation of Plan Provisions

Plaintiff asserts that “[b]oth the Louis Dreyfus Employee Handbook and the

LTD policy provide that [his] LTD coverage continued while he was disabled,” and

that he “is entitled to LTD benefits for all of the disabilities that began during the

period he was disabled under the terms of the LTD plan, i.e. , from September 17,

1997 to the present.” We begin with the policy and then discuss the handbook

provisions, which are the pertinent parts of the SPD.

The Plan definitions include the following:

Injury means bodily impairment resulting directly from an accident and
independently of all other causes. Any Injury must occur and any
disability must begin while the Employee is insured under this Policy.

Sickness means illness, disease or pregnancy. Any disability, because
of Sickness, must begin while the Employee is insured under this
Policy.

Thus, it is not enough that the disability be caused by an occurrence while the

employee is insured; the disability itself must begin while the employee is insured.

To determine when an employee is “insured under this Policy,” one turns to Plan

Section V, entitled “Termination Provisions,” which states: “An Employee will

cease to be insured on the earliest of the following dates: . . . 6. the date

employment terminates . . . .” (We need not decide whether any of the other dates

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would be earlier.) Taken as a whole, the quoted language clearly expresses the

requirement that disability begin before the employee is terminated.

Plaintiff attempts to overcome the clear import of the Plan by pointing to

additional language, but the language he relies on is irrelevant to his circumstances.

First, he claims that he can benefit from an exception that appears in the provision

terminating coverage upon termination of employment. The provision, the

pertinent part of which was previously quoted, states:

An Employee will cease to be insured on the earliest of
the following dates:

...

6. The date employment terminates. Cessation of Actively
at Work will be deemed termination of employment, except:

a. insurance will be continued for an Employee
absent due to a disability during:

i. the Elimination Period; and

ii. any period the premium is waived under this
Policy.”

Plaintiff apparently contends that exception (a)(ii) applies to him because Section

IV, entitled “Benefit Provisions,” contains the sentence “LTD premium payments

for a Totally or Partially Disabled Employee are waived during any period LTD

benefits are payable under this Policy.”

-16-
 Plaintiff’s argument fails, however, because the exception applies only to an

“Employee.” It states that “insurance will be continued for an Employee absent due

to a disability . . . .” (emphasis added). The Plan defines “Employee” as “a person

who is employed by the Employer, working at least the number of hours shown in

Section I, Schedule of Benefits [30 hours per week], and paid regular earnings.”

The exception benefits an employee who would otherwise be deemed terminated for

failure to be “Actively at Work,” which, as defined by the Plan, generally means

working a full workday. Plaintiff does not, and could not, argue that he was an

employee after his termination in March 1998.

Next, Plaintiff claims that language in the Plan provides for continued long-

term disability coverage for successive periods of disability. In particular, he

argues that his psychiatric disability should be covered because the medical

evidence shows he suffered from depression while still receiving benefits based on

his LTOS disability. He relies on the following provision of Plan Section IV,

“Benefit Provisions,” under the heading “Successive Periods”:

Successive periods of Total or Partial Disability after a Net Monthly
Benefit was payable will be considered a single period if the
Employee, in the time between the successive periods, was Actively at
Work for less than: (1) six months, if due to the same or related
causes; (2) one day, if due to an entirely unrelated cause. The
Employee will not have to complete a new Elimination Period. . . .

Plaintiff focuses on the first quoted sentence, ignoring the second. But

reading the two sentences together, it is clear that they relate only to how the

-17-
Elimination Period is calculated. Ordinarily, when an employee becomes totally

disabled, the employee cannot start receiving long-term disability payments under

the Plan until the disability has lasted 180 continuous days (the Elimination

Period). Under the above-quoted language, however, the employee need not wait

that period to begin receiving benefits for a second disability if (1) the new

disability has a cause related to the cause of the original disability and begins

within six months of the end of the original disability, or (2) the new disability

begins within a day of the end of the original disability. This language says

nothing about what disabilities are covered by the Plan; it assumes the second

disability is covered and just sets forth an exception to the usual Elimination Period

requirement. In particular, the language applies only if the person suffering the

second disability is still an employee. Our reading of the provision is confirmed by

the SPD, which states:

RECURRING DISABILITIES

If LTD benefits stop because you are no longer disabled and, within
six consecutive months after you return to your regular job, the same
or a related disability condition recurs, LTD benefits will resume right
away. If the condition recurs after you have been back on the job on a
full-time basis for six consecutive months or longer, a new 180-day
waiting period will apply before LTD benefits start again.

We now turn to Plaintiff’s contention that the SPD in the Employee

Handbook confers coverage for disabilities that arise during a prior disability.

Although he cites to two pages in the handbook, he does not refer to any specific

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language other than the sentence, “All benefits under the Program will end for you

and your eligible dependents if and when you become a part-time employee or your

employment terminates, unless you are eligible for LTD benefits.” Plaintiff’s error

is to confuse continuation of benefits with continuation of coverage. The quoted

sentence merely informs readers that disability payments—the benefit—can

continue even after one leaves employment. It does not say that disability

insurance—the coverage—continues after one leaves employment. In other words,

once one leaves employment, one is no longer covered for a new disability that

arises. Indeed, a chart on the same page as the quoted sentence states that for long-

term disability, upon termination of employment “Coverage stops.”

Furthermore, the handbook declares: “If there is any discrepancy between

this SPD and the actual plan documents, the discrepancy is unintentional, and your

rights will be determined in accordance with the plan documents.” We have held

that “[w]here the SPD incorrectly describes benefits in the plan, to secure relief,

[the claimant] must show some significant reliance upon, or possible prejudice

flowing from, the faulty plan description.” Chiles v. Ceridian Corp. , 95 F.3d 1505,

1519 (10th Cir. 1996) (internal quotation marks and citation omitted). Plaintiff has

not suggested any detrimental reliance or prejudice.

Thus, we agree with Sun Life that Plaintiff is not entitled to coverage under

the Plan unless his disability began while he was still employed by Dreyfus.

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 B. Sun Life’s Fact Finding

Having construed the Plan provisions, we now address whether Sun Life was

arbitrary or capricious in determining that Plaintiff had not satisfied the

requirements for coverage of his claimed disabilities arising from a bad back and

depression. The issue with respect to each claim is whether Plaintiff was disabled

by the condition by the time of his termination from employment in March 1998.

The Plan states:

Total Disability or Totally Disabled means during the Elimination
Period and the next 24 months of Total Disability, the Employee,
because of Injury or Sickness, is unable to perform all of the material
and substantial duties of his own occupation. After benefits have been
paid for 24 months, the Employee will continue to be Totally Disabled
if he is unable to perform all of the material and substantial duties of
any occupation for which he is or becomes reasonably qualified by
education, training or experience.

With respect to the bad-back claim, it is enough to note that (1) when

Plaintiff saw an orthopedic surgeon in October 1998, he told the doctor that

although he had injured his back in the automobile accident in July 1997, his back

“actually began to hurt, however, in July 1998”; and (2) both the surgeon who

operated on Plaintiff’s back and Sun Life’s consulting physician attributed

Plaintiff’s back pain to a congenital condition unrelated to the accident. Even if

the back pain eventually became disabling, Sun Life could rationally find that it

was not disabling before Plaintiff’s employment was terminated in March 1998.

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 Turning to the depression claim, Sun Life first learned of a possible claim

based on depression when it received a letter written by Plaintiff’s surgeon,

Dr. Michael Reif, dated May 15, 1998. The letter included the following three

sentences:

“Because of [Plaintiff’s] chronic pain syndrome, he has become
exceedingly depressed and actually, [sic] has even expressed some
suicidal thoughts on occasion. He is on antidepressant medication at
this time. Because of his depression and ongoing pain which now may
be due to entrapment of neurovascular structures at the elbow level, he
is unable to work.”

Sun Life wrote Dr. Reif on August 17 to request further information regarding

Plaintiff’s depression, including the onset date of Plaintiff’s complaints, the

medication he was taking, and the name of any treating psychiatric specialist.

Dr. Harrison Smith, a clinical psychologist, responded by letter a week later. He

had been working with Plaintiff since his accident and was currently seeing him

biweekly. He wrote:

[Plaintiff] has struggled to overcome the symptoms, both physical and
emotional, brought on by the accident. He has lost his job, which has
contributed an additional emotional stressor. He has struggled with
depression and was suicidal as recently as April of this year. He began
a regime of psychotropic medication at that time, and his functioning
has improved somewhat.

On September 3, 1998, Sun Life wrote Dr. Smith to request “a copy of

[Plaintiff’s] complete medical record, including but not limited to the following:

S complete intake evaluation including psychosocial and substance
abuse history;

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 S development, precipitants and perpetuating factors of current
disabling condition;
S current symptoms, including frequency, severity and impact on ability
to work;
S existence of prior psychiatric decompensation and/or treatment;
S existence of other circumstances (job, family, financial, legal, etc.) or
medical conditions that affect disability or treatment;
S relevant history, family or personal dynamics;
S all progress/treatment notes ;
S motivation level with respect to return to occupation;
S the nature of the current treatment program including dates,
medications prescribed, dosages and patient’s compliance and
response;
S plans for future course of treatment;
S DSM IV multiaxial diagnosis (form enclosed) and
S current mental status evaluation.”

Dr. Reif and Dr. Smith provided additional records and comments later that month.

On October 19 Sun Life denied Plaintiff’s disability claim. The ground for

denying disability due to a mental/nervous condition (which is not the ground Sun

Life ultimately relied upon) was that he “did not begin seeing a specialist for his

mental/nervous condition until February, 1998,” and the policy stated that no

benefit would be provided for “Disability due to Mental Illness, unless the

Employee is under the continuing care of a specialist in psychiatric care.” Plaintiff

appealed by letter dated December 15, 1998, and Sun Life referred the claim to

Dr. Ronald Pies, a psychiatrist, on April 23, 1999. Sun Life wrote Plaintiff’s

attorney on April 27, stating that it had “partially completed” its evaluation of the

appeal and would need “clarification of the onset of a psychiatric condition severe

enough to preclude him from his occupational duties.” The letter went on to say

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that Sun Life would request records from Dr. Lowery, Plaintiff’s treating

psychiatrist, and also would seek clarification of Dr. Smith’s illegible records. It

then added, “If you wish to assist in the process, or add any additional information

with regard to his psychiatric condition, please feel free to do so.” Sun Life later

obtained Dr. Lowery’s records, had Dr. Pies interview Dr. Smith, and obtained a

psychiatric assessment form from Dr. Lowery. After Dr. Pies conducted another

medical review, Sun Life denied benefits by letter dated August 9, 1999, on the

ground that his coverage terminated “prior to the incur date of his substantiated

psychiatric related incapacity.”

The information acquired by Sun Life shows that Plaintiff’s depression claim

is a substantial one. Plaintiff saw Dr. Smith on February 16, 1998, at which time

his wife reported that he slept all the time and was depressed. Dr. Smith had

further contact with the Nances by telephone or office visit on March 4, April 2,

and April 10. Also on April 10, Dr. Jim Lowery, a psychiatrist, saw Plaintiff on a

referral from Dr. Smith “to evaluate symptoms of depression with suicidal

ideation.” Plaintiff reported to Dr. Lowery that his job had been terminated on

March 13 and he had been denied long-term disability. He said he had been

considering suicide for two to three weeks. Dr. Lowery advised him to continue

seeing Dr. Smith and to return in two months.

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 There is little doubt that Plaintiff was emotionally troubled when his

employment was terminated. The question is whether he had disabling depression

at that time. Given that termination from employment and the simultaneous

discontinuation of short-term disability benefits would be emotionally traumatic to

anyone, it would not be unreasonable to seek specific information regarding

Plaintiff’s mental health at the time of termination, rather than a few weeks later.

This is what Sun Life did.

Evidence of Plaintiff’s mental condition at the time of termination was

scanty. Dr. Lowery, who did not see Plaintiff until April 10, could not provide that

information. One doctor who saw Plaintiff during the pertinent period was

Dr. Reif, Plaintiff’s surgeon. He reported to Sun Life: “While it is not clear when I

began discussing some depression with [Plaintiff], he clearly has had depressive

symptoms and difficulty sleeping and I prescribed Elavil on February 2, 1998,

which, in my mind, was to help with pain relief, but with chronic pain, depression

is certainly a factor.” His office notes for February 2, February 16, and March 16,

1998, did not, however, mention depression. His notes for April 13 state:

He is currently having trouble sleeping again because he thinks of the
pain. He actually can work for 30 hours at a time without sleeping and
then crashes and sleeps for long periods of time, so I think his
schedule is really fouled up and he needs to work on some of that
behavioral modification in his own personal life.

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Dr. Reif’s notes from July 28, 1998, say that “[Plaintiff] is sleeping better, although

depressed,” and he takes an antidepressant prescribed by Dr. Lowery.

The best evidence would probably be Dr. Smith’s office notes, but they are

almost totally illegible, and he declined Sun Life’s request to transcribe them. He

did, however, send a letter on September 22, 1998, describing Plaintiff’s current

condition and stating that “[h]e is clearly disabled.” He also agreed to a telephone

interview sometime after April 27, 1999. In his interview with Sun Life consulting

psychiatrist Dr. Ronald Pies, he stated that his September letter “generally

characterized [Plaintiff’s] overall condition during the period” from February to

September 1998. But he was not more precise about the evidence of Plaintiff’s

symptoms prior to his termination from employment.

In short, there was minimal evidence of depression, much less disabling

depression, in the records of Dr. Reif and Dr. Smith at the pertinent time, and their

oral opinions regarding Plaintiff’s disability were both vague and many months

after the fact. In our view, Sun Life could reasonably determine that the evidence

submitted by Plaintiff (which was significantly supplemented by Sun Life’s own

efforts, such as the interview with Dr. Smith) was insufficient to establish that he

suffered from disabling depression at the time of his termination from employment.

Even taking into account Sun Life’s conflict of interest, we hold that Sun Life’s

denial of benefits was not arbitrary or capricious.

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 We briefly note one final argument by Plaintiff. He asserts that Sun Life

modified the Plan’s definition of total disability by requiring that proof must be by

“objective contemporaneous documentation.” That phrase, however, does not

appear in any rulings by Sun Life on Plaintiff’s claims. It appears only in Dr. Pies’

reports. Plaintiff presents no evidence that Sun Life imposes an absolute

requirement of “objective contemporaneous documentation” of disability, so we

have no occasion to decide whether such a requirement would violate the Plan.

The district court did not err in granting Sun Life summary judgment.

The judgment is AFFIRMED.

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