United States Court of Appeals For the First Circuit

No. 20-1713

KAREN JETTE,

Plaintiff, Appellant,

v.

UNITED OF OMAHA LIFE INSURANCE COMPANY,

Defendant, Appellee,

PRETI, FLAHERTY, BELIVEAU & PACHIOS LLP LONG TERM DISABILITY PLAN,

Defendant.

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

[Hon. Jennifer C. Boal, U.S. Magistrate Judge]

Before

Howard, Chief Judge, Thompson, Circuit Judge, and Arias-Marxuach, District Judge.*

Jonathan M. Feigenbaum, for appellant. Brooks R. Magratten, with whom Pierce Atwood LLP was on brief, for appellee.

* Of the District of Puerto Rico, sitting by designation. November 10, 2021

-2- THOMPSON, Circuit Judge. Plaintiff-appellant Karen

Jette ("Jette") participated in a long-term disability plan

("the Plan") sponsored by her employer, Preti, Flaherty, Beliveau

& Pachios LLP. Defendant-appellee United of Omaha Life Insurance

Company ("United") funds the Plan and serves as the claim

administrator. The Plan is subject to the Employee Retirement

Income Security Act ("ERISA"),

et seq. After

United terminated Jette's disability benefits, Jette filed for an

internal appeal review. While the internal appeal was pending,

United hired a doctor to examine Jette. The doctor then sent

United a report of his findings. Despite Jette's request, United

did not give Jette a copy of the doctor's report or allow her to

respond to the report. United then upheld the termination of

benefits, relying in part on the doctor's report. Jette sought

relief in federal district court under ERISA's civil enforcement

provision,

(a)(1). She alleged that, by failing

to provide her with a copy of the doctor's report and an

opportunity to respond to it prior to the final determination on

appeal, United failed to provide her with the "full and fair

review" required by ERISA and its implementing regulation.

Additionally, she argued that United's decision to terminate her

benefits was not supported by substantial evidence in the

administrative record and thus should be overturned. After the

-3- parties filed cross-motions for summary judgment, the district

court granted summary judgment for United, finding that United

committed no procedural violation and that substantial evidence in

the record supported United's termination of Jette's disability

benefits. This appeal ensued. Because we find that United did

not provide Jette a full and fair review of her claim, as required

under the ERISA regulation, and that Jette was prejudiced by

United's procedural violation, we vacate the entry of summary

judgment and remand the case to the district court with

instructions that it be remanded to United for a full and fair

review of Jette's claim.

I. Background

Jette worked as a legal assistant at Preti, Flaherty,

Beliveau & Pachios LLP. Her duties, which included filing, typing,

and handling case files, required her to sit "frequently to

constantly with occasional or intermittent standing/walking."

Jette had a history of back problems. In June 2012, an

MRI scan revealed congenital lumbar spinal stenosis and disc

degenerative changes at L4-L5 and L5-S1, which caused her a great

amount of leg and back pain. On November 30, 2012, after failing

to respond to conservative treatment, Jette underwent spinal

surgery. She spent several months recovering from the surgery and

returned to work in February 2013. Between March and June 2013,

-4- Dr. Wojciech Bulczynski, Jette's orthopedic surgeon, diagnosed her

with mild radicular degenerative disease and lumbar degenerative

disc disease. Jette left work again in early July 2013, when she

re-injured her back. She received short-term disability benefits

from July 19 through October 3, 2013, due to lower back pain.

Jette then applied for long-term disability ("LTD") benefits under

the Plan, asserting that she was unable to sit or stand for more

than twenty minutes, or walk without extreme difficulty.

Dr. Bulczynski stated in Jette's application for LTD benefits that

she was limited due to lumbar degenerative disc disease to no

prolonged sitting, standing, lifting, bending, or squatting.

The Plan provides LTD benefits to participants who are

"prevented from performing at least one of the [m]aterial [d]uties

of [their] [r]egular [o]ccupation" by an injury or sickness. Under

the terms of the Plan, the ability to work on a full-time basis is

considered one of the material duties of a participant's

occupation.

Although United initially denied Jette LTD benefits, it

eventually approved such benefits in May 2014, after Jette appealed

the initial denial.1 In its review of Jette's claim on appeal,

United considered a report that Dr. Hyman Glick, an orthopedic

1United approved the benefits with a retroactive effective date of October 3, 2013.

-5- surgeon, prepared at United's request after reviewing Jette's

medical records. In his report dated April 21, 2014, Dr. Glick

recounted Jette's medical history, including her multiple visits

to her treating physicians, diagnoses, several MRI scans and x-

rays, physical therapy, cortisone injections, multiple

prescription medicines (including opioids), her 2012 surgery, and

a second spinal surgery that she underwent on November 8, 2013.

Dr. Glick concluded that there were no "inconsistencies in

diagnosis, treatment, and claimed restrictions and limitations,"

and that there was no "evidence of symptom magnification,

exaggeration or secondary gain." He noted, however, that he had

reviewed Jette's medical records up to December 17, 2013 and, at

only six weeks out from the November 8 surgery, Jette was not at

a "medical end result."

In early 2014,2 although Jette's condition had improved

somewhat after the second spinal surgery, she reported numbness in

her legs and complained of pain "across the lumbosacral junction"

despite taking opioids and a tranquilizing muscle-relaxing drug.

She was advised to continue physical therapy and exercise.

According to Dr. Bulczynski, she remained disabled from work.

2 Jette's ailments during this time frame were not encompassed in United's review of Jette's claim on appeal.

-6- In June 2014, Jette saw Dr. Marcus Yountz, a neurologist,

and reported intermittent leg weakness and pain, which Dr. Yountz

attributed to a likely chronic nerve injury and degenerative disc

disease in the lumbar region. Between July and December 2014,

Jette reported increasing back pain, numbness, and leg weakness to

Dr. Bulczynski. An MRI scan revealed degenerative changes at the

L3-L4 motion segment of her lumbar spine. Jette continued with

her prescription medicines and got an epidural steroid injection

and a sacro-iliac joint injection in December 2014. On January 8,

2015, she saw Dr. Bulczynski again and renewed her complaint of

back pain radiating to the hips and legs. On February 4, 2015,

Dr. Bulczynski completed a Physical Capacities Checklist for Jette

(a form provided by United) in which he noted her limited ability

to sit, stand, and walk, and concluded that she was unable to

work.3

On May 26, 2015, Jette saw Dr. Yountz again. He found

3 In its statement of the case, United suggests that this checklist cannot be attributed to Dr. Bulczynski because a physician's assistant signed it on his behalf. United provides no support for this assertion. See Pitochelli v. Comm'r of Soc. Sec., No. 6:20-CV-135-DCI,

, at *4 (M.D. Fla. Mar. 4, 2021) ("The Court does not accept this argument without any authority that stands for the proposition that an opinion does not belong to a physician if an assistant permissibly endorses it with the physician's name."). In any case, whether the form would be admissible or not does not affect our conclusion that the district court erred.

-7- no significant signs of myelopathy4 and concluded that it was

"possible that [Jette] simply ha[d] [a] chronic injury from her

prior lumbar spondylosis."5 Dr. Yountz noted that Jette "[was]

stable but still ha[d] significant pain."

At United's request, on May 1, 2015, a nurse consultant

reviewed Jette's file (presumably in the course of ordinary

periodic reviews). She agreed with Dr. Bulczynski's February 4

findings regarding Jette's restrictions and limitations but

disagreed with his conclusion that she was unable to work.

United then hired a private investigation company to

conduct a background investigation and surveillance on Jette. As

part of its services, the company investigated Jette's online

activity and prepared a report dated May 29, 2015. According to

the report, Jette's Facebook profile indicated that she rides a

motorcycle, works at a law firm in Boston, owns a shop named

Andromeda's Alley, and is the Executive Director of Support Our

4 Myelopathy is "an injury to the spinal cord due to severe compression." Johns Hopkins Medicine, https://www.hopkinsmedicine.org/health/conditions-and- diseases/myelopathy (last visited Nov. 7, 2021). 5 Lumbar spondylosis refers to "change[s] of the bones (vertebrae) and discs of the spine. These changes are often called degenerative disc disease and osteoarthritis." University of Michigan Health, https://www.uofmhealth.org/health- library/abr8401 (last visited Nov. 7, 2021).

-8- Soldiers, Inc., a non-profit organization.6 Her store's website

indicated that the brick and mortar store closed in November 2014

due to Jette's declining health but that she continues to operate

an online store. It also said that Jette is licensed to perform

ministerial services.

The private investigation company conducted in-person

surveillance on July 11, 2015, and reported that Jette was observed

working at a motorcycle fundraiser at a local Veterans of Foreign

Wars Post from around 7:00 a.m. to 4:00 p.m. According to the

report, Jette registered motorcyclists for the event, alternating

between walking, standing, and sitting in a lawn chair throughout

the day. Jette usually used a cane and walked with a limp. The

investigator did not document Jette sitting for an extended period.

As per the Plan, United required Jette to apply for

Social Security Disability benefits. In June 2015, Jette was

awarded Social Security Disability benefits retroactively to

January 2014. She then notified United of the Social Security

determination.

Dr. Nancy Heimonen, a consulting physician for United,

conducted a medical review of Jette's file and penned a report on

November 12, 2015, in which she concluded that Jette was able to

6 The internet postings were not timestamped.

-9- work. In her report, Dr. Heimonen outlined information gathered

from the online and in-person surveillance. According to

Dr. Heimonen, the surveillance report indicated that Jette could

alternate sitting, standing, and walking over a nine-hour period,

contradicting the limitations outlined by Dr. Bulczynski in

February. Further, Dr. Heimonen noted that the intensity of

Jette's medical care had diminished, as at the time there had been

only two medical appointments documented in 2015. Dr. Heimonen

reached the following conclusion:

Based on the currently available medical and file information there is no evidence to support that the insured would be unable to sustain full time primarily seated work capacity with the above documented [restrictions and limitations] (no lifting > 10# occasionally and up to 10# frequently; no bending, twisting, kneeling, crawling, climbing, squatting, or stooping) as long as she was able to use naturally occurring changes in occupational duties to make postural and position changes for comfort purposes and she works in an ergonomically appropriate environment.

The next day, Dr. Heimonen shared this conclusion with

Dr. Bulczynski in a letter. Dr. Heimonen also shared the

additional information United had gathered: Jette's participation

in the July 11th event and her online statements indicating that

she rides motorcycles, is licensed to perform ministerial

services, and runs a non-profit. Dr. Heimonen's letter asked

Dr. Bulczynski if he agreed with the following assessment:

Although [Jette]'s complaints are not in dispute, based on the currently available medical and activity

-10- information, it is my impression that she does not have a physically based medical condition that would preclude her ability to perform full time primarily seated work with occasional standing and walking with restrictions and limitations of no lifting >10# occasionally and up to 10# frequently; no bending, twisting, kneeling, crawling, climbing, squatting or stooping and as long as she was able to use naturally occurring changes in occupational duties to make postural and position changes for comfort purposes in an ergonomically appropriate environment.

Do you agree? Yes _____ No _____.

Dr. Bulczynski was asked to complete some follow-up questions if

he disagreed with the statement. Dr. Bulczynski marked "Yes" on

December 23, 2015, indicating he agreed with Dr. Heimonen's

statement without providing any additional information.

United terminated Jette's LTD benefits effective January

15, 2016. In its letter notifying the termination of benefits,

United provided an extensive list of documents on which it relied

in reaching this conclusion, including "[o]bservation of

activities" on July 11, 2015, medical review performed by

Dr. Heimonen, letter to Dr. Bulczynski dated November 13, 2015,

and Dr. Bulczynski's response dated December 23, 2015. The letter

stated that "[b]ased on her paucity of ongoing medical care, and

the activities documented by direct observation and internet

postings, it is unclear what precludes [Jette] from performing her

primarily seated occupational duties."7

7 United's letter clarified that, although United

-11- Jette appealed the termination of benefits on July 15,

2016. With her appeal, Jette submitted additional information,

including updated medical records, affidavits from herself, a

friend, her mother, and stepfather,8 and a Patient's Personal

Activities Assessment.9 She pointed to the approval of her Social

acknowledged that Jette had been awarded Social Security Disability benefits, "[t]he information relied upon [by United] to reach [its] determination was not available to the Social Security Administration at the time their decision was made." 8 In her affidavit, Jette stated that she "cannot perform [her] occupation at all, as [she is] unable to sit in one position, stand, stoop, bend, or walk for more than 20 minutes at a time and spend[s] much of [her] day laying down with [her] knees raised as this is the only position where [she] find[s] relief." She explained that she cannot do most household activities on her own and often relies on the assistance of her grandson, and that she uses a cane, walker, wheelchair, or service dog "to walk and/or stand." Further, Jette stated that she has not ridden a motorcycle in more than five years. Finally, she clarified that her non- profit work generally involves 1-2 hours of work per month and that it took her a week of complete rest to recover from the annual fundraiser of July 11, 2015.

The other affidavits were consistent with Jette's description of her condition, bolstering her statements that she is unable to sit upright for more than a few minutes and that she needs help around the house. The affidavits also stated that Jette struggled to recover from the fundraiser. Each person also contrasted Jette's current condition to her active lifestyle and high energy level prior to the onset of her back pain and surgeries.

9 The Patient's Personal Activities Assessment contained much of the same information that she explained in the affidavit: that she could not remain in the same position for more than twenty minutes and had severe pain which inhibited her daily activities. Jette's long-time primary care physician, Dr. Henry D'Angelo, indicated the assessment accurately reflected her limitations.

-12- Security Disability application as further support for her claim

for LTD benefits. Lastly, Jette requested that United promptly

disclose any new medical opinions generated during the appeal

process and provide her thirty days to respond prior to upholding

any adverse benefit determination so that she could have a "full

and fair review" of her claim.

United responded to Jette's appeal letter on July 21,

2016. In its response, United stated that it was "not required to

provide [Jette] with a copy of a medical or vocational consultant's

report prior to making an appeal decision on the claim." In

United's view, "ERISA regulations require[d] [it] to provide

re[lev]ant claim information prior to an appeal, and after [its]

decision on appeal is rendered, but not during the appeal process."

Accordingly, United "w[ould] not . . . provide a copy of a

consultant's report for [Jette's] review prior to [its] appeal

decision."

As part of the appeal, United required Jette to complete

an in-person independent medical examination with Dr. Donald

Thomson, a board-certified neurologist, which she did on September

21, 2016. He then produced a report for United on October 6, 2016,

based on his evaluation of Jette and his review of her medical

records. In his report, Dr. Thomson stated that Jette's history,

examination, medical records, and MRI scans "are consistent with

-13- the diagnoses of lumbosacral spondylosis." He noted that Jette

complained of constant low back pain, which sometimes radiated

into her leg, and that the pain was worsened by prolonged periods

of sitting. Dr. Thomson further noted that Jette would stand and

walk for pain relief after five to ten minutes of sitting during

the examination, and that she "ha[d] difficulty taking off and

putting on her socks," but concluded that "[s]eated activities

with occasional standing and walking is permitted." He opined

that Jette "[was] able to drive an automobile, but should be

limited to short distances because prolonged sitting aggravates

her back pain."

When asked if he agreed with the restrictions and

limitations provided by the attending physicians, Dr. Thomson

noted that he agreed with the restrictions advised by Dr.

Bulczynski on December 23, 2015.10 Dr. Thomson found no signs of

"symptom magnification, lack of full effort, inconsistent

findings, or malingering." He concluded that Jette's "documented

activities outside of work" were "consistent with her reported

impairments" and that, overall, her reported symptoms, "claimed

restrictions and limitations" were consistent with his own

10 The restrictions advised by Dr. Bulczynski on December 23, 2015 are, in reality, the restrictions advised by Dr. Heimonen; Dr. Bulczynski merely checked that he agreed with Dr. Heimonen's restrictions.

-14- findings. Dr. Thomson did not opine specifically on whether Jette

could handle the duties of her job on a full-time basis.

On October 18, 2016, United upheld its termination of

Jette's LTD benefits. In its letter notifying Jette of its

decision, United focused on Dr. Thomson's conclusion that Jette

"would be able to perform seated activities with occasional

standing and walking" and that she was able to drive an automobile,

although only for short distances. United noted that, "[d]riving

is a physically and cognitively demanding activity that requires

essentially full function of the spine and for an automatic

transmission, three extremities. An individual must have

preserved response times and grip strength and must be able to

tolerate sitting."

United also focused on Dr. Bulczynski's December 23,

2015 response "agree[ing] that Ms. Jette . . . did not have a . . .

condition that would preclude her from performing full-time . . .

primarily seated" work. It also noted that Jette was the Executive

Director of a non-profit organization, operated an online store,

and was licensed to perform ministerial services. According to

United, the medical documentation, activities, and Dr. Thomson's

examination findings supported its determination that Jette could

perform her regular occupation. After upholding the termination

of her LTD benefits, United provided Jette with a copy of Dr.

-15- Thomson's report.

In August 2018, Jette filed this action in the United

States District Court for the District of Massachusetts seeking

reinstatement of her LTD benefits and recovery of attorney's fees

under ERISA. Both Jette and United cross-moved for summary

judgment. Jette argued that, by failing to provide her with a

copy of Dr. Thomson's report and an opportunity to respond to it

prior to the final determination on appeal, United incurred a

procedural violation and did not afford her a full and fair review

of her claim. She further argued that United's decision to

terminate her LTD benefits was not supported by substantial

evidence in the administrative record and thus should be

overturned. For its part, and consistent with its position during

the internal appeal process, United contended that it had afforded

Jette a full and fair review of her claim because, under the ERISA

regulation applicable to Jette's claim,11 it had no obligation to

11 The Department of Labor first issued a regulation governing claims procedures for employee benefit plans under its ERISA section 503 authority in May 1977. See Claims Procedure for Employee Benefit Plans,

(May 27, 1977) (codified at

.503–1). The Department of Labor issued a revised claims-procedure regulation in November 2000, which applied to claims filed on or after January 1, 2002. See Employee Retirement Income Security Act of 1974; Rules and Regulations for Administration and Enforcement; Claims Procedure,

(Nov. 21, 2000). Although the Department of Labor revised again the claims-procedure regulation in December 2016, see Claims Procedure for Plans Providing Disability Benefits,

(Dec. 19, 2016), the parties agree

-16- disclose Dr. Thomson's report prior to its final determination on

appeal. Additionally, United posited that its decision to uphold

the termination of Jette's LTD benefits was supported by

substantial evidence in the record. The district court agreed

with United, finding that United had committed no procedural

violation by failing to disclose Dr. Thomson's report prior to a

final determination on appeal. See Jette v. United of Omaha Life

Ins. Co.,

, 19-20 (D. Mass. 2020). It determined

that "an insurer does not have a duty under ERISA's 'full and fair'

review requirement to disclose IME [(independent medical

examination)] reports prior to making their decisions unless the

insurer relies on the unshared IME report to find a new reason to

deny coverage."12

. Here, in the court's view, United's

decision on appeal was consistent with its initial decision to

terminate LTD benefits: "that Jette's functional limitations did

that because Jette's claim was filed in 2013, it is governed by the 2002 Regulation. 12 The district court noted that "[i]n December 2016, the Department of Labor amended the relevant regulation[] to require claim administrators to provide any new or additional evidence considered prior to rendering a final determination," but concluded that said requirement "was not in effect at the time that United rendered its final decision on October 18, 2016 upholding the termination of LTD benefits." Jette, 467 F. Supp. 3d at 20 n.6.

-17- not preclude sedentary work." Id. at 20. The district court

concluded that, because "United did not use Dr. Thomson's report

to find new reasons to deny Jette's claim," she had no right to

review the report before United made a final determination on

appeal. Id. Additionally, the court found that substantial

evidence in the record supported United's termination of Jette's

LTD benefits. Id. at 15-19.

II. Discussion

Jette contends that United's internal appeal procedure

failed to provide her with the "full and fair review" required by

ERISA and its implementing regulation. Specifically, she argues

that United violated

.503–1(h) by failing to allow

her to review and rebut Dr. Thomson's report prior to its final

decision on administrative appeal.

We review a district court's interpretation of federal

regulations de novo, applying general rules of statutory

construction and starting with the plain language of the

regulation. See United States v. Strong,

(1st

Cir. 2013) ("We review statutory and regulatory interpretations de

novo."); Morales v. Sociedad Española de Auxilio Mutuo y

Beneficencia,

(1st Cir. 2008) ("Determining a

regulation's meaning requires application of the same principles

that imbue exercises in statutory construction.").

-18- Congress enacted ERISA "to promote the interests of

employees and their beneficiaries in employee benefit plans."

Merit Constr. All. v. City of Quincy,

, 127–28 (1st

Cir. 2014) (quoting Shaw v. Delta Air Lines, Inc.,

(1983)). To accomplish this goal, section 503 of ERISA establishes

minimum procedural requirements that govern how an ERISA plan

processes claims for health and disability benefits.

; see also Halo v. Yale Health Plan, Dir. of Benefits & Recs.

Yale Univ.,

(2d Cir. 2016). It provides, in

relevant part, that "any [plan] participant whose claim for

benefits has been denied" must be afforded a "full and fair review"

of the decision denying the claim, "[i]n accordance with

regulations of the Secretary [of Labor]."

(2).

Consistent with Congress's delegation of authority in

section 503, the Department of Labor promulgated a claims-

procedure regulation for ERISA benefit plans.

. Subsection (h) of the regulation governs the

"[a]ppeal of adverse benefit determinations."

§ 2560.503–

1(h). It requires the establishment and maintenance of "a

procedure by which a claimant shall have a reasonable opportunity

to appeal an adverse benefit determination . . . and under which

there will be a full and fair review of the claim and the adverse

benefit determination." Id. § 2560.503–1(h)(1). The regulation

-19- further states that in order to satisfy this requirement of

providing a "full and fair review of a claim and adverse benefit

determination," the claimant must be provided, "upon request and

free of charge, reasonable access to, and copies of, all documents,

records, and other information relevant to the claimant's claim

for benefits." Id. § 2560.503-1(h)(2)(iii). "A document, record,

or other information shall be considered 'relevant' to a claimant's

claim" if it was "relied upon in making the benefit determination"

or was "submitted, considered, or generated in the course of making

the benefit determination." Id. § 2560.503–1(m)(8)(i)-(ii).

In addition, as part of the review process, a claimant

must also be provided an "opportunity to submit written comments,

documents, records, and other information relating to the claim

for benefits." Id. § 2560.503–1(h)(2)(ii). The review on appeal

must "take[] into account all comments, documents, records, and

other information submitted by the claimant relating to the claim,

without regard to whether such information was submitted or

considered in the initial benefit determination." Id. § 2560.503–

1(h)(2)(iv). These requirements apply to plans providing

disability benefits. Id. § 2560.503–1(h)(4).

The parties disagree over whether Jette was entitled to

review and rebut Dr. Thomson's report prior to United's final

decision on appeal. Jette contends that subsections (h)(2)(ii)

-20- and (iii) of the regulation provide these rights. United, in

contrast, posits that subsection (h)(2)(iii)'s disclosure

requirement applies only to those documents relevant to the initial

adverse benefit determination. Under United's interpretation, the

documents generated during the review process, such as

Dr. Thomson's report, have to be disclosed only after a final

determination on review is reached. According to United, because

Jette had no right to review Dr. Thomson's report during the

pendency of the appeal, it follows that she did not have a right

to rebut it either. The district court offered yet another reading

of subsection (h)(2)(iii). In the district court's view, under

subsection (h)(2)(iii), a claimant must be provided with a copy of

a document generated during the appeal process prior to a final

determination on review only if "the insurer relies on the unshared

[document] to find a new reason to deny coverage." Jette, 467 F.

Supp. 3d at 19. We turn to the language of the regulation.

See In re Fin. Oversight & Mgmt. Bd. for P.R.,

(1st Cir. 2019) ("[I]n resolving a dispute over the meaning of a

statute, we begin with the language of the statute itself. We

first determine whether the language at issue has a plain and

unambiguous meaning with regard to the particular dispute in the

case." (internal quotation marks and citations omitted)).

-21- The plain language of subsection (h)(2)(iii) provides

for a full and fair review of the "claim and adverse benefit

determination," in which the claimant is provided all documents

"relevant" to his or her "claim for benefit."

(h)(2)(iii). Relying on out-of-circuit cases, United

submits that the "relevant" documents that subsection (h)(2)(iii)

refers to are limited to those used to make the initial benefit

determination.

We reject United's invitation to narrowly construe the

language of subsection (h)(2)(iii). The plain language of

subsection (h)(2)(iii) does not limit the documents to be produced

to those relevant to the initial benefit determination, but rather

unambiguously requires that "all documents . . . relevant to the

claimant's claim for benefits" be provided to the claimant.

(h)(2)(iii) (emphasis added). The initial

benefit determination is merely one event that occurs within a

claim for benefits. Indeed, the regulation provides that the

plan's "benefit determination on review" must occur within an

allotted timeframe unless "special circumstances . . . require an

extension of time for processing the claim," which demonstrates

that the administrative appeal is part of the claim process.

§ 2560.503-1(i)(1)(i) (emphasis added). And United makes no

argument that the term "claim" refers to anything other than the

-22- request for benefits under the Plan. Furthermore, we note that

the Department of Labor used the terms "claim for benefits,"

"adverse benefit determination," and "initial benefit

determination" throughout the regulation to refer to different

things. See, e.g.,

(h)(1), (h)(2), and

(h)(4) (providing for a full and fair review not only of the

"adverse benefit determination" but also of the "claim,"

reflecting that the terms refer to different things);

§ 2560.503-1(h)(2)(iv) (stating that the review on appeal should

take into account "all comments, documents, records, and other

information submitted by the claimant relating to the claim"

regardless of "whether such information was submitted or

considered in the initial benefit determination" (emphasis

added)). This makes manifest that, despite knowing how to use the

terms "initial benefit determination" and "adverse benefit

determination" when it drafted the regulation, the Department of

Labor consciously chose to require that the documents to be

produced under subsection (h)(2)(iii) include all those relevant

to the "claim." We will thus respect that choice and construe the

regulation in light of its chosen "language . . . , the specific

context in which that language is used, and the broader context of

the statute as a whole." In re Fin. Oversight & Mgmt. Bd. for

P.R.,

(quoting Robinson v. Shell Oil Co., 519 U.S.

-23- 337, 341 (1997)). Those definitions are clear: "relevant"

documents require a nexus to a "benefit determination," not an

"adverse" or "initial" benefit determination. We know that a

benefit determination, when used in an unqualified and general

sense, encompasses the determination on appeal because the

regulation separately provides that "the plan administrator shall

notify a claimant . . . of the plan's benefit determination on

review within a reasonable period of time . . . after receipt of

the claimant's request for review by the plan."

(i)(1)(i) (emphasis added); see also

§ 2560.503-

1(i)(3)(i) (same for disability claims). In an administrative

appeal, a plan is not simply reviewing the initial, adverse benefit

determination, but engaging in its own "benefit determination

. . . [that] is required to be made," id. § 2560.503-1(i)(4), or

"benefit determination [that] shall be rendered," id. §§ 2560.503-

1(i)(1)(ii), (i)(3)(ii), which may or may not be "adverse," id.

§ 2560.503-1(j).

Nor does subsection (h)(2)(iii)'s language support the

district court's interpretation that documents generated during

the internal appeal process must be provided to the claimant prior

to a final determination on review only if "the insurer relies on

the[m] . . . to find a new reason to deny coverage."13 Jette, 467

13 The district court relied on Killen v. Reliance Standard

-24- F. Supp. 3d at 19. The regulation establishes no such condition.

To the contrary, under the regulation, a document is "relevant"

and thus must be disclosed to the claimant under subsection

(h)(2)(iii) not only if it "[w]as relied upon in making a benefit

determination," but also if it "[w]as submitted, considered, or

generated in the course of making the benefit determination,"

regardless of whether it "was relied upon in making the benefit

determination."

.503–1(m)(8)(i)-(ii).

"The purpose of [the 'full and fair review'] requirement

is to provide claimants with enough information to prepare

Life Ins. Co.,

(5th Cir. 2015) and DiGregorio v. Hartford Comprehensive Emp. Benefit Serv. Co.,

(1st Cir. 2005), to support its theory. However, these cases are either unpersuasive or inapposite. In Killen, in addressing the claimant's contention that she had not received a full and fair review of her claim because the plan administrator did not provide her with a copy of the independent examiner's report obtained during the internal appeal process, the Fifth Circuit did not analyze the ERISA regulation. See

. In fact, the opinion does not even cite the regulation.

The only real discussion of the regulation can be found in decisions by other Circuits that Killen cites. See

(collecting cases). Furthermore, there is no indication in the opinion that the claimant had requested a copy of such report during the internal appeal process. See

(h)(2)(iii) (stating that "all documents . . . relevant to the claimant's claim for benefits" must be provided to the claimant "upon request"). DiGregorio is inapposite. DiGregorio did not interpret the 2002 Regulation at issue here; rather, it interpreted the 1977 Regulation. See

n.4. Furthermore, our review in DiGregorio was limited to the issue of prejudice allegedly suffered by the claimant due to the plan administrator's failure to disclose the entire claim file during the internal review process.

.

-25- adequately for further administrative review or an appeal to the

federal courts." Juliano v. Health Maint. Org. of N.J., Inc.,

, 287 (2d Cir. 2000) (alteration in original) (quoting

DuMond v. Centex Corp.,

, 622 (8th Cir. 1999)).

United's proposed reading, however, would frustrate this purpose.

It would unreasonably prevent plan participants from responding to

evidence, not only at the administrative stage, but also on

judicial review, which is typically based on the administrative

record. See Orndorf v. Paul Revere Life Ins. Co.,

(1st Cir. 2005) (explaining that when the decision to which

judicial review is addressed is the final ERISA administrative

decision, judicial review is usually limited to the administrative

record before the administrator). Furthermore, we have long

recognized that claimants must be allowed to engage in a meaningful

dialogue regarding the denial of benefits. See Glista v. Unum

Life Ins. Co. of Am.,

(1st Cir. 2004) (noting

that the "administrators and beneficiaries [must] hav[e] a full

and meaningful dialogue regarding the denial of benefits").

Claimants, however, would be precluded from engaging in this

meaningful dialogue if the evidence is provided to them only after

the final decision is rendered, when it is too late for them to

respond.

According to the plain language of the regulation, upon

-26- Jette's request for documents after the initial adverse

determination, United had to disclose to Jette Dr. Thomson's

report, which was relevant to her claim for LTD benefits regardless

of whether it would be used to support a new reason to deny

coverage. See

(h)(2)(iii). United then had

to give her the opportunity to respond to the report by submitting

written comments, documents, records, or other information

relating to her claim that she deemed appropriate. See

§ 2560.503-1(h)(2)(ii). Finally, United's review on appeal had to

take into account these new submissions. See id. § 2560.503-

1(h)(2)(iv). By failing to do so, United deprived Jette of a full

and fair review of her claim.

Our reading of the regulation is consistent with the

Ninth Circuit's decision in Salomaa v. Honda Long Term Disability

Plan, where the court held that the plan had denied a full and

fair review to the claimant when it procured two consultant medical

opinions but failed to disclose them to the claimant before denying

his internal appeal.

, 680 (9th Cir. 2011) (so

holding).14

14 We acknowledge that some other Circuits have reached a different result, see Mayer v. Ringler Associates, Inc.,

(2d Cir. 2021); Midgett v. Wash. Group Int'l Long Term Disability Plan,

(8th Cir. 2009); Glazer v. Reliance Standard Life Ins. Co.,

(11th Cir. 2008); Metzger v. UNUM Life Ins. Co. of Am.,

(10th Cir. 2007), but we do not find their reasonings persuasive. Mayer relies on the other

-27- Jette argues that this reading is also consistent with

the Department of Labor's longstanding position that claimants

have a right to review and respond to new evidence or rationales

cases,

, but does not address the contrary decision by the Ninth Circuit in Salomaa, 642 F.3d at 680. Mayer also reasons that there would have been no need to amend the 2002 regulation if that version already required disclosure.

n.5. But, as we observe, the Department of Labor has expressly stated that the amendment was not substantive but rather was clarifying. Midgett relies on an overly narrow reading of

(h) as applying only to initial benefit determinations,

, which is inconsistent with the plain text of the regulation for the reasons we have explained. Glazer relies on the use of the past tense in § 2560.503- 1(m)(8)(i)-(ii) to restrict relevant documents to those that were "relied upon" in prior benefit determinations, 524 F.3d at 1245, but it overlooks the fact that claimants may request any document that "[w]as submitted, considered, or generated in the course of making the benefit determination," that is, while a benefit determination is ongoing.

(m)(8)(ii). Glazer also concludes that reading the regulation to require the production of documents that were generated during an appeal before a final decision is rendered would make superfluous the separate requirement for the production of such documents after the appeal is settled. 524 F.3d at 1245 (citing

- 1(i)(5)). This reasoning does not consider that claimants are only entitled to relevant documents "upon request,"

(h)(2)(iii), (i)(5), (j)(3), so a claimant who did not request such documents while an appeal was pending could request them after an adverse decision, giving those provisions separate purposes and force. Finally, Metzger relies principally on policy considerations, as opposed to textual justifications, for its reading of the regulation.

. In any case, it limited its holding to the facts of the case, where the expert reports that were generated during the administrative appeal and that were not shared with the claimant "contain[ed] no new factual information and den[ied] benefits on the same basis as the initial decision."

. That was not the case here. See generally Hughes v. Hartford Life & Accident Ins. Co.,

(D. Conn. 2019) (making substantially similar arguments).

-28- developed by the plan during the pendency of the internal appeal.

She posits that this has been the Secretary of Labor's

interpretation, as reflected both in the Preamble of the 2018

Regulation and in the amicus curiae brief that the Secretary of

Labor submitted in Midgett v. Wash. Group Int'l Long Term

Disability Plan,

(8th Cir. 2009), and that such

interpretation is entitled to Auer deference. See Auer v. Robbins,

(1997).

The Preamble of the 2018 Regulation states that,

The Department continues to believe that a full and fair review requires that claimants have a right to review and respond to new evidence or rationales developed by the plan during the pendency of the appeal and have the opportunity to fully and fairly present his or her case at the administrative appeal level, as opposed merely to having a right to review such information on request only after the claim has already been denied on appeal.

Claims Procedure for Plans Providing Disability Benefits,

, 92,324,

(Dec. 19, 2016) (emphasis

added). It also states that

(h)(4) is

amended to clarify that, contrary to what some circuit courts have

held under the 2002 Regulation,15 the plan must

provide claimants, free of charge, with new or additional evidence considered, relied upon, or

15The Preamble specifically cited the cases of Midgett,

, Glazer,

, and Metzger,

-- all of which United cited in support of its argument -- as examples of cases in which the 2002 Regulation had been incorrectly interpreted.

-29- generated by the plan, insurer, or other person making the benefit determination (or at the direction of the plan, insurer or such other person) during the pendency of the appeal in connection with the claim. . . . It was and continues to be the view of the Department that claimants are deprived of a full and fair review, as required by section 503 of ERISA, when they are prevented from responding, at the administrative stage level, to all evidence and rationales.

Claims Procedure for Plans Providing Disability Benefits, 81 Fed.

Reg. at 92,324-5 & n.17.

Jette further argues that the Brief of the Secretary of

Labor, Hilda L. Solis, as Amicus Curiae in Support of Plaintiff-

Appellant's Petition for Rehearing, Midgett,

(No. 08-

2523),

, also reflects the Department of Labor's

position. In that brief, the Secretary of Labor argued that ERISA

"claimants are deprived of a full and fair review when claimants

are prevented from responding at the administrative level to

evidence developed by the plan" during the course of an

administrative appeal, and invoked Auer deference to the

Department's position.

.

United, however, argues that because the Preamble to the

2018 Regulation was published in December 2016, two months after

United had rendered its final adverse benefit determination, "[it]

cannot be expected to follow agency guidance published months after

it completed its review." That may well have been the case were

the Preamble the only departmental view that was published on the

-30- matter. See Christopher v. SmithKline Beecham Corp.,

(2012) (finding Auer deference "unwarranted" where its

application would "require regulated parties to divine the

agency's interpretations in advance"). But the Department of

Labor's interpretation of

(h) was not made

known for the first time in December 2016. The Department of Labor

had interpreted the scope of subsection (h) of the 2002 Regulation

since at least June 2009, when the Secretary of Labor submitted

her amicus curiae brief in Midgett,

. And, despite

United's protest that such interpretation should not be afforded

Auer deference because it was included in an amicus curiae brief,

as opposed to something more "widely disseminated to the industry,"

the Supreme Court has afforded Auer deference to agencies'

interpretations advanced for the first time in amicus curiae briefs

filed in the very same cases being decided. See, e.g., Auer,

(deferring to the Secretary of Labor's

interpretation of his own regulation, presented in an amicus brief

submitted by the agency, despite the petitioner's objection that

the agency's interpretation came in a legal brief); see also Chase

Bank USA v. McCoy,

(2011) (deferring to the

Federal Reserve Board's interpretation of its own regulation under

circumstances similar to those in Auer); United States v. Hoyts

Cinemas Corp.,

(1st Cir. 2004) (affording "some

-31- weight" to the Justice Department's interpretation of its

regulation "even though the Department's gloss is offered only in

a brief rather than in some more formal manner").

Because the language in the 2002 Regulation is

unambiguous, however, we do not resort to Auer deference. See

Kisor v. Wilkie,

(2019) (explaining that "a

court should not afford Auer deference unless the regulation is

genuinely ambiguous"). We clarify, however, that if the 2002

Regulation had been genuinely ambiguous, we would have applied

Auer deference to the Department of Labor's interpretation and

would have reached the same result.16

Having concluded that United violated

(h) by failing to provide a full and fair review of

Jette's claim, we next consider whether Jette was prejudiced by

United's procedural violation. See Lavery v. Restoration Hardware

Long Term Disability Benefits Plan,

, 82 (1st Cir. 2019)

(noting that we typically require a claimant to show prejudice

attributable to a procedural irregularity); Stephanie C. v. Blue

16 We note that United made no arguments as to why Auer deference should not apply to the Department of Labor's interpretation of the 2002 Regulation in the amicus brief, other than because it was not widely disseminated to the industry. See Kisor,

(discussing when an agency's reading of its rule should not receive Auer deference despite the rule's genuine ambiguity).

-32- Cross Blue Shield of Mass.,

(1st Cir. 2016)

(same).

"Generally, where a district court has made a prejudice

determination, our case law has treated it as a 'factual conclusion

that we review only for clear error.'" Santana-Díaz v. Metro.

Life Ins. Co.,

(1st Cir. 2016) (quoting

DiGregorio v. Hartford Comprehensive Emp. Benefit Serv. Co.,

(1st Cir. 2005)). However, "where the lower

court has made no factual finding as to prejudice, and where one

could be made on the basis of the administrative record before us,

we have, without remanding, made our own prejudice determination."

Here, because the district court found no procedural

violation, it did not reach the question of whether Jette was

prejudiced because of the alleged procedural violation. A

prejudice determination, however, can be easily made at this stage

on the basis of the administrative record before us. See Bard v.

Boston Shipping Ass'n,

, 241 n.15 (1st Cir. 2006)

(holding, where the district court made no factual findings about

prejudice and incorrectly found no material noncompliance by the

plan's Board of Trustees, that there were "no relevant factual

determinations to defer to" and, in any event, "it was clear error

to hold that there was no 'material noncompliance by the Board'

[of Trustees]"). The administrative record reveals that, after

-33- examining Jette and reviewing her medical records, Dr. Thomson

rendered a report in which, among other things, he agreed with the

restrictions advised by Dr. Heimonen and concluded that Jette

"[was] able to drive an automobile," although only for short

distances. Jette claims that the evidence does not support

Dr. Thomson's findings and conclusions, which she says were

inherently inconsistent. Yet, she did not have the opportunity to

review and respond to Dr. Thomson's report before United rendered

its final determination on appeal. The record further reflects

that United relied, at least in part, on Dr. Thomson's report to

uphold its decision to terminate her LTD benefits. Its letter

notifying Jette of its decision to uphold the termination of her

LTD benefits focused on Dr. Thomson's conclusions that Jette "would

be able to perform seated activities with occasional standing and

walking" and that she was able to drive an automobile, and

emphasized how "physically and cognitively demanding" driving is.

In fact, the letter made clear that the decision to uphold the

termination of benefits took into account "the medical

documentation, activities, and [Dr. Thomson's] examination

findings" (emphasis added). Accordingly, we find that Jette was

prejudiced by United's procedural violation.

Jette also challenges the substantive termination of her

LTD benefits, contending that there is no substantial evidence in

-34- the administrative record to support that decision. Had Jette

been afforded the full and fair review to which she was entitled,

she would have been provided access to Dr. Thomson's report and,

as she represents to us, would have responded to his report.

Because Jette had no chance to review Dr. Thomson's report and

respond to it, the record is incomplete. Accordingly, we will not

review United's substantive decision at this time. Instead, we

will allow her claim to go back to the administrative stage, where

Jette will have the opportunity to "submit written comments,

documents, records, and other information relating to [her]

claim,"

(h)(2)(ii), before United makes a

new determination based on the thus supplemented record,

§ 2560.503-1(h)(2)(iv). See Buffonge v. Prudential Ins. Co. of

Am.,

(1st Cir. 2005) (noting that the "appropriate

response" when the "integrity" of a claim administrator's

"decision-making process" was compromised is to give the claimant

the "benefit of an untainted process").

III. Conclusion

In light of the above, we vacate the entry of summary

judgment and remand to the district court with instructions that

the case be remanded to United for a full and fair review of

Jette's claim. Costs are awarded to the appellant.

-35-