An ERISA case decided in a US District Court in Ohio discussed transferrable skills and the “any occupation” provision of an insurance plan maintained by UNUM Life Insurance Company of America. In this case, the plan administrator determined that the plaintiff had skills from her prior job as a respiratory therapist that were transferrable to that of some unrelated fields of work despite her lack of any education, experience or training in those employment areas. 

The plaintiff, Stacy Cass, was a respiratory therapist who suffered devastating injuries in a car crash that rendered her unable to continue working in her field. After receiving 60 months of benefits, UNUM determined that she was capable of sedentary work as an insurance claims examiner or volunteer services coordinator based upon the transferability of her skills to these areas.

Cass’ own doctor had declared her unable to perform these jobs based on her limited educational background and the fact her medical services job skills could not be used in these new areas. He also stated in response to UNUM’s rehabilitation coordinator who had denied her claim, that “transferable skills” are usually meant to be within the same field, or the medical field in this case, and that Cass would need at least two to three additional years of education to qualify for these new jobs.

The district court had to employ the arbitrary and capricious standard of review since the plan administrator had the right to determine benefits. The court noted the obvious conflict of interest in having the insurer use its own administrator and noted this in its review.

The arbitrary and capricious standard does not “rubber stamp” determinations but reviews them based on whether it is the product of a “deliberate principled reasoning process and if it is supported by substantial evidence.” 

In reviewing the plan administrator’s decision and the opinions of its vocational coordinator, the court had to determine whether the “any occupation” clause was met. Any occupation still had to include the material duties of any gainful occupation for which the person is reasonably fitted by training, education of experience. Under this analysis, Cass should have been declared disabled.

UNUM’s rehabilitation coordinator failed to detail the material duties of the occupations he had listed that he felt Cass met by her education, training and experience. The insurer also managed to impose a different standard for which the plaintiff had to meet to prove her disability, one that was much more difficult to meet. Apparently, the coordinator felt that any skills she used as a respiratory therapist could be transferred to that of a claims examiner or volunteer services coordinator despite her lack of education, training and experience. For these reasons, the determination was arbitrary and capricious.

Unfortunately, Cass’ doctor failed to clearly establish that she was disabled under the “any occupation” clause and remanded the case to the plan administrator to determine if Cass was disabled under this clause but by using the review standard enumerated by the court in that her experience, training and education were sufficient for her to perform  the material duties of a claims examiner or volunteer services coordinator.

In this instance, a skilled ERISA lawyer was able to demonstrate that the insurer failed to abide by its own standards in denying a woman who clearly lacked the skills needed to perform jobs her insurer said she was able to do. 

United States District Court,S.D. Ohio,Western Division.

Stacy CASS, Plaintiff,



No. 1:05-CV-567.

July 9, 2008.

Elias Namanworth, Cincinnati, OH, for Plaintiff.

Brett K. Bacon, Frantz Ward LLP, Cleveland, OH, for Defendant.




*1 This matter is before the Court on cross-motions for judgment on the
administrative record filed by Plaintiff Stacy Cass (Doc. No. 28) and UNUM Life
Insurance Company of America (Doc. No. 30). For the reasons that follow,
Plaintiff's motion for judgment on the administrative record is well-taken and is
GRANTED; Defendant's motion is not well-taken and is DENIED.


I. Procedural Summary

Plaintiff Stacy Cass presents a claim against Defendant UNUM Life Insurance
Company of America ("UNUM") pursuant to the Employee Retirement Income Security
Act ("ERISA"), 29 U.S.C. s 1132(a)(1)(B), to review the plan administrator's
decision denying her claim for long-term disability benefits. Plaintiff contends
that the plan administrator's determination that she is not disabled under the
"any occupation" provision of the plan was arbitrary and capricious because the
fact that she has transferrable skills from her previous occupation as a
respiratory therapist does not mean that she can perform the material duties of
the occupations identified by UNUM's vocational expert.

Perhaps unusually for a disability benefits case, the medical facts in this case
are straightforward. Plaintiff was employed by Christ Hospital in Cincinnati as a
respiratory therapist. She was also a participant in a long term disabilities
benefit plan sponsored by Christ Hospital. UNUM is the plan administrator.

In 1996, Plaintiff was injured in a head-on automobile crash. Specifically,
Plaintiff injured her hip and right ankle. In 1998, Plaintiff underwent a right
ankle fusion by her orthopaedist. As a result of the surgery, Plaintiff was no
longer able to climb or stoop and she could only walk or stand for short periods.
UNUM agreed with Plaintiff that, as a result of her injuries and limitations, she
was completely disabled from performing her occupation as a respiratory therapist.
Consequently, Plaintiff received 60 months of plan benefits under the "own
occupation" provisions of the plan.FN1

FN1. This provision pays benefits if the participant "cannot perform each of
the material duties of his regular occupation[.]" AR 127.

However, according to the plan, after payment of benefits for 60 months, a
participant is "disabled" only if "the insured cannot perform each of the material
duties of any gainful occupation for which he is reasonably fitted by training,
education or experience."Id. (hereinafter referred to as "the any occupation
clause"). In 2001, UNUM submitted Plaintiff's file to its own rehabilitation
coordinator, Daniel Bruce Hoffman, to perform a transferrable skills analysis to
determine whether Plaintiff is disabled under the "any occupation" clause.

In his report, dated August 14, 2001, Hoffman reviewed Plaintiff's medical status,
education, and work history. Specifically, Hoffman noted that Plaintiff is able to
perform full-time sedentary work, but that she cannot stand or walk for more than
10 minutes per hour, nor can she climb or crawl. Hoffman further noted that
Plaintiff is a high school graduate, has an associate degree in respiratory
therapy, and, as of the date of the report, had competed one year toward a
bachelor's degree in education. Finally, Hoffman noted that Plaintiff had worked
as a respiratory therapist since 1987. AR 165. Based on the summary of Plaintiff's
work experience and education, Hoffman concluded that Plaintiff has the following
transferrable skills:

*2 1. performing a variety of duties;

2. attaining precise set limits, tolerances, and standards;

3. working under specific instructions;

4. comparing, compiling, computing, and copying data;

5. dealing with people;

6. speaking, signaling, helping, giving & taking instructions, and serving

7. making judgments and decisions;

8. directing, controlling, or planning activities. Id. With these transferrable
skills, and taking into consideration

Plaintiff's physical limitations, Hoffman concluded that "[h]er work history and
educational levels would support re-employment" with the following occupations:

1. hospital admitting clerk;

2. surveillance system monitor;

3. blood bank clerk;

4. insurance claim examiner/adjuster;

5. emergency services dispatcher;

6. volunteer services coordinator. AR 166.

In a letter dated August 24, 2001, UNUM notified Plaintiff that it was going to
stop paying benefits under the "any occupation" clause as of January 16, 2002. AR
160-61. In doing so, UNUM stated that it agreed with the medical restrictions
identified by Plaintiff's physician. Id. at 160.UNUM went on to state, however:

Vocationally, your file was reviewed by our Vocational Consultant. Based on your
training, education and experience, it was determined you are able to engage in
the following activities:

1. Insurance Claim Examiner/Adjuster-$15.69 per hour

2. Volunteer Services Coordinator-$16.77 per hour

The alternative occupations are within your physical capacity and would utilize
the skills you have gained from your past work experience.

Since you no longer meet the above definition of disability, based on the
current documentation in our file, we must deny further liability on your claim
beyond January 16, 2002.

AR 161.

On November 24, 2001, in response to the initial decision terminating her
benefits, Plaintiff submitted to UNUM the report of her vocational expert, Dr.
David Roebker, which set forth his opinion why Plaintiff is not qualified to
perform the alternative occupations identified by UNUM's vocational expert. AR
164. Dr. Roebker agreed that Plaintiff would be able to perform sedentary work.
Nevertheless, he explained in some detail why the occupations identified by UNUM
were not suitable for Plaintiff:

In my interview of her on 11/07/01, she reported that she has worked as a
respiratory therapist since 1979. Her educational history is limited to her
associate degree in respiratory therapy and does not contain additional course
work in administrative/business/social type courses. Thus her work history and
educational background is very limited and restricted to functioning only in the
medical service area as a respiratory therapist.


According to the Dictionary of Occupational Titles, respiratory therapist (DOT #
076.361-014) is within the medical service area. The respiratory therapist
administers respiratory therapy and life support to patients with abnormalities
of [sic] cardiopulmonary system under supervision of a physician. The
respiratory therapist administers treatment such as setting up operation devices
for inhalation, ventilators, humidity, gas concentrations, and so forth. They
monitor patient's [sic] response to therapy via reading blood chemistry changes
and other methods. They assist in instructing the patient so as to perform
breathing exercises and help with drainage.

*3 They maintain the patient's chart with pertinent information regarding
respiratory therapy information. They may inspect the equipment to assure
safety. The strength capacity requirement is rated as medium. The GOE:10.02.02,
GED:R4N3L3, SVP:6, DLU:88. Thus respiratory therapist basically takes one to two
years to learn how to function in this occupational area with this being the
specific level of vocational preparation, but also is within the area of medical
service as noted. The Data, People, Things involves compiling, speaking,
signaling, and precise work.

In reading records I see that two occupations have been suggested as being
reasonable and in keeping with her training, education, and experience. The
positions are insurance claim examiner/adjuster and volunteer services

The insurance claim examiner/adjuster DOT code is-241.267-018. This occupation
is within the business/ insurance area. It requires analyzing insurance claims
to determine the extent of insurance carriers liabilities and settles claims
with claimants in accordance with policy provisions. It compares data on claim
application, death certificate, or physician's statement with policy file and
other company records to ascertain completeness and validity of claims.
Corresponds with agents and claimants or interviews them in person to correct
errors or omissions on claim forms and to investigate questionable entries. The
COE:11.12.01, strength requirement is sedentary. GED:R4M3L4 and SVP:7, DLU:77.
This occupation in my opinion is not appropriate or suitable for Ms. Cass. It is
first of all within a very different occupational area being a business
service/insurance as opposed to medical service. She has no educational
instruction in this regard nor any work experience. It has SVP=7, which
indicates the individual should have at least two to four years training,
education, or experience in his vocational area which she does not have. It also
has a somewhat higher level of language development necessary compared to
respiratory therapist. The DPT includes analyzing, speaking/signaling, and

The other occupation as [sic] coordinator, volunteer services, DOT #
187.167-022. This is within an area designated as social service and not medical
service. In this area, the individual coordinates student and community
volunteer services program organizations engaged in public, social and welfare
activities. It involves interviewing, screening, and referring applicants to
appropriate units. It orients and trains volunteers prior to assignment in
specific units. It involves speaking to community groups explaining organization
activities in the role of volunteer programs also publishing agency newsletters
and maintaining personnel records. The GOE:11.07.01 with strength capacity being
sedentary, GED:R5M3L5, SVP:7, DLU:77. This also in my opinion is inappropriate
given Ms. Cass's background and qualifications. It is within a different area.
It has a higher level of general educational development necessary with regard
to reasoning development and language development. It also involves coordinating
and more functioning with regard to social skills than she has experience with
in the past. The specific vocational preparation is 7 and this suggest [sic] the
individual would have two to four years of specific educational preparation in
order to function within that occupation with this being something she clearly
does not have.

*4 Thus, in conclusion in view of both vocational indicators of appropriateness
for alternative occupations as well as using common sense and good judgment
these occupations presented would not be appropriate for her.

She does not appear to be qualified, at this point in time to assume an
occupation within the hourly earnings range she was making as a respiratory

AR 77-79.

UNUM submitted Dr. Roebker's report to Hoffman for review, but he was not
persuaded to change his opinion that the occupations he identified were suitable
for Plaintiff. On November 27, 2001, in response to Dr. Roebker's opinion, Hoffman

It is Dr. Roebker's opinion Ms. Cass does not have transferrable skills to
secure re-employment as an Insurance Claims Examiner/Adjuster and/or Volunteer
Services Coordinator. Based on my review, the issues appear to be: 1) Ms. Cass'
own occupation is in a different occupational area than the occupations
identified, therefore excluding her possibility of reemployment within these
occupations; 2) Ms. Cass' work experience has provided an inappropriate
background & qualifications for re-employment within these occupations; and 3)
Ms. Cass does not have the educational instruction or specific vocational
preparation level to secure employment within the identified occupations.

Reviewer's Response:

Skills that are necessary to master occupational tasks successfully in one
occupational industry are not exclusive to that occupational industry. Many
skills do appropriately cross over to other occupational industries. There are
many skills learned in one occupation that are viable skills in another


occupation. In the case of Ms. Cass, her work as a Respiratory Therapist would
have provided Ms. Cass with the skills that are common work related skills of an
Insurance Claim Examiner/Adjuster and/or Volunteer Services Coordinator such as:
performing a variety of duties; attaining precise set limits, tolerances, and
standards; working under specific instructions; comparing, compiling, computing,
and copying data; dealing directly with people either by speaking, signaling,
helping, giving & taking instructions, and serving people, as well as directing,
controlling, or planning the activities of others. It is the purpose of a TSA to
identify these common skills to develop appropriate job goals. It is widely
accepted by the vocational rehabilitation profession that when assisting a
disabled individual back to commensurate employment close attention is paid to
these skills that can cross over to other types of employment options, many of
these alternative options would appear in unrelated occupational industries.

I would further support my position by indicating that the occupation of
Insurance Claims Examiner/Adjuster do [sic] appear in directly related business
occupational industries similar to Ms. Cass' own medical service industry such
as insurance companies dealing with Short and Long Term Disability, Workers'
Compensation, and Auto no-fault. These employers would have the need for
individuals with medical service backgrounds to make appropriate claims
decisions. I am also of the opinion that the occupation of Volunteer Services
Coordinator is found in many industries other that [sic] the social services
industry, such as in hospitals, schools, libraries, churches, medical
foundations and research organizations. Ms. Cass worked in an atmosphere where
it is reasonable she had an awareness of and utilized the help of hospital
volunteer programs.

*5 Ms. Cass' work history and life experiences has [sic] provided her with a
familiarity to be successful in the occupational duties of an Insurance Claims
Examiner/Adjuster and/or Volunteer Services Coordinator. In the case of an
Insurance Claims Examiner/Adjuster a high school education is sufficient to
qualify for most positions, higher education is preferred; however, many people
qualify for these positions on the strength of related prior work experiences.
No specific college major is recommended as the best preparation for this
occupation and post-secondary studies in almost any field is adequate.
Entry-level positions may be hired without college coursework [sic] if they have
a specialized work experience. For example, an individual with knowledge of
respiratory disease could qualify as a disability claims adjuster in an
insurance company dealing with medical claims of a general medical nature to
include respiratory dysfunction. The true skills for this position is [sic] for
an individual to be observant and enjoy working with details, communicate
effectively with others, be analytical, and have general math skills. Many
insurance companies provide on-the-job training and or home study courses for
entry level examiner and adjuster positions. As the occupation of Volunteer
Services Coordinator does exist in many different employment arenas, it would
not be unreasonable for an individual such as Ms. Cass having knowledge of
hospital volunteer workers; whose own occupation involved working and dealing
with people; and who has planning & coordination skills would be a successful
candidate for employment in this type of position. In many cases indirect work
experiences and familiarity of an occupation may be substituted for actual work

At this time, Ms. Cass' educational instruction level includes an associate's
degree in Respiratory Therapy and a minimum of one year completed toward a BA in
education. Ms. Cass is presently studying to become a schoolteacher [sic]. In my
opinion, Ms. Cass' educational attainment indicates she has proven college level
reasoning, math, and language skills. This would therefore indicate she has the
General Educational Development basics to support re-entry into the employment
market with the positions identified in this report, as college level GED skills
is [sic] what is identified as necessary to be successful in completing
activities surrounding the reasoning, math, and language tasks of the
occupations discussed in this report. Given the knowledge that Ms. Cass has
complete [sic] additional college training, it is my opinion she would qualify
for positions indicating possible SVP levels of 7. It must be noted, SVP levels
are only a guideline for determining the amount of time needed to learn the
techniques, acquire the information, and develop the facility for average
performance in a specific job-worker situation. The specific vocational
preparation comes from many including but not necessarily limited to; vocational
education; civilian, military, and institutional work experience;
apprenticeships; and from in-plant or on-the-job training.

*6 Reviewer's Conclusion

The information in Dr. Roebker's report does not change my prior opinion as to
Ms. Cass's appropriateness for re-employment in the alternative occupations
identified in the 08/14/01 TSA completed by me.

AR 73-74. In light of this review, UNUM affirmed its conclusion that Plaintiff is
not disabled under the terms of the plan because she has "the ability to perform"
the occupations identified in Hoffman's original report. AR 71-72. On June 10,
2002, UNUM sent a letter advising Plaintiff's attorney that it had completed its
review of Plaintiff's claim for long-term disability benefits and concluded that
Plaintiff is not disabled because the "alternative occupations [identified by
Hoffman] are with Ms. Cass' physical capacity and would utilize the skills she has
gained from her past work experience and education[.]" AR 37.

Plaintiff filed an administrative appeal from UNUM's determination that she is not
disabled within the meaning of the plan. In support of her appeal, Plaintiff
submitted a supplemental report from Dr. Roebker in which he disputed Hoffman's
transferrable skills analysis. According to Dr. Roebker, although he agreed that
some skills are transferrable from one field to another, when performing a
transferrable skills analysis one typically stays within the same field or one
that is closely related. AR 16. The alternative jobs identified by UNUM, Dr.
Roebker noted, are in different work fields from respiratory therapist. Using the
Classification of Jobs 2000 and O*Net, Dr. Roebker concluded that jobs that are
within the same field and/or are occupations related to respiratory therapist
include physical therapist, optometrist, dental hygienist, physician's assistant,
surgical technologist and orthodontist. AR 17. Dr. Roebker opined that it would
take Plaintiff at least two to three years of additional education to perform the
jobs identified by UNUM. Id.

On August 30, 2002, however, UNUM denied Plaintiff's appeal based on Hoffman's
assessment that she has the transferrable skills to perform the Insurance Claim
Adjuster/Examiner position and the Volunteer Services Coordinator position. AR
7-8. This was UNUM's final determination and concluded the plan's administrative

On August 29, 2005, Plaintiff filed a complaint for review of the plan
administrator's decision pursuant to ERISA, 29 U.S.C. s 1132(a)(1)(B).FN2 Doc. No.
1. On January 4, 2006, on joint motion of the parties, the Court administratively
closed the case for a period while Plaintiff's claim underwent a second review by
UNUM pursuant to a regulatory settlement agreement between UNUM and the Department
of Labor. Doc. No. 10. The case was reopened on June 20, 2007 after UNUM again
denied Plaintiff's claim. Doc. Nos. 12 & 13. The parties then filed cross-motions
for judgment on the administrative record (Doc. Nos. 28 & 30).

FN2. The complaint also asserts against UNUM federal claims for breach of
fiduciary duty pursuant to 29 U.S.C. s 1104(a)(1) and breach of ERISA
regulations, and a state law claim for breach of the duty to process
Plaintiff's insurance claim in good faith. These claims apparently are no
longer in issue since neither party discusses them in their brief.

III. Standard of Review of Plan Administrator's Decision

Plaintiff filed suit pursuant to ERISA, 29 U.S.C. s 1132(a)(1)(B), to review the
plan administrator's decision denying her claim for long-term disability benefits.
The parties agree that the Plan document gives the plan administrator complete
discretion to make determinations concerning eligibility for plan benefits. Doc.
No. 28, at 9-10; Doc. No. 30, at 2. Accordingly, the arbitrary and capricious
standard review applies to this Court's review of the plan administrator's
decision denying Plaintiff's claim. Yeager v. Reliance Std. Life Ins. Co., 88 F.3d
376, 380 (6th Cir.1996).

*7 Recently, the Sixth Circuit described at length the parameters of the arbitrary
and capricious standard of review:

This standard is the least demanding form of judicial review of administrative
action. When it is possible to offer a reasoned explanation, based on the
evidence, for a particular outcome, that outcome is not arbitrary and
capricious. Consequently, a decision will be upheld if it is the result of a
deliberate principled reasoning process, and if it is supported by substantial
evidence. The ultimate issue in an ERISA denial of benefits case is not whether
discrete acts by the plan administrator are arbitrary and capricious but whether
its ultimate decision denying benefits was arbitrary and capricious.

While the arbitrary and capricious standard is deferential, it is not, however,
without some teeth. Merely because our review must be deferential does not mean
our review must also be inconsequential. While a benefits plan may vest
discretion in the plan administrator, the federal courts do not sit in review of
the administrator's decisions only for the purpose of rubber stamping those
decisions. The obligation under ERISA to review the administrative record in
order to determine whether the plan administrator acted arbitrarily and
capriciously inherently includes some review of the quality and quantity of the
medical evidence and the opinions on both sides of the issues.

We have recognized that a conflict of interest exists when the insurer both
decides whether the employee is eligible for benefits and pays those benefits.
In this case, because defendant maintains such a dual role, the potential for
self-interested decision-making is evident. However, this conflict of interest
does not displace the arbitrary and capricious standard of review; rather, it is
a factor that we consider when determining whether the administrator's decision
to deny benefits was arbitrary and capricious. The reviewing court looks to see
if there is evidence that the conflict in any way influenced the plan
administrator's decision.

Finally, absent a procedural challenge to the plan administrator's decision,
this Court's review is limited to the administrative record of the benefit

Evans v. UnumProvident Corp., 434 F.3d 866, 875 (6th Cir.2006) (internal
citations, quotation marks, and brackets omitted).


IV. Analysis

Plaintiff argues that the plan administrator's decision denying her claim for long
term disability benefits was arbitrary and capricious because Hoffman's
transferrable skills analysis did not address whether she is presently capable of
performing other jobs for which she is reasonably fitted by training, education or
experience. Plaintiff contends that Hoffman's report is not substantial evidence
because the transferrable skills he identified are nothing more than general work
traits which are applicable for any occupation or job. UNUM, on the other hand,
rather conclusorily argues that the plan administrator's decision was not
arbitrary and capricious because, based on the transferrable skills analysis, the
jobs identified by Hoffman accommodated Plaintiff's physical restrictions. The
Court agrees with Plaintiff that the plan administrator's decision was arbitrary
and capricious because it was based on a report that employed an incorrect
standard of review to assess whether she is disabled.

*8 As indicated, under the plan's "any occupation" clause, a beneficiary is
disabled after sixty months if he "cannot perform each of the material duties of
any gainful occupation for which he is reasonably fitted by training, education or
experience."In denying Plaintiff's claim for continued disability benefits
pursuant to this provision, UNUM relied exclusively on the transferrable skills
analysis performed by its own rehabilitation coordinator, Daniel Bruce Hoffman.
While Hoffman gleaned some transferrable skills from Plaintiff's past education
and work experience, albeit at a superficial level of applicability, nowhere in
his initial report does Hoffman discuss, or even list, the material duties of the
alternative occupations he identified. Hoffman's supplemental report also fails to
discuss the material duties of the jobs of Claims Adjuster/Examiner and Volunteer
Services Coordinator. Similarly, while UNUM's decisions recite the language of the
"any occupation" clause, UNUM clearly denied Plaintiff's claim based on its
determination that she has relevant transferrable skills. AR 7 ("Ms. Cass does
possess transferrable skills to alternate gainful occupations within her level of
restrictions [.]"); AR 37 ("Since these alternative occupations are within Ms.
Cass' physical capacity and would utilize the skills she has gained from her past
work experience and education, she no longer meets the definition of disability as
of June 24, 2002."); AR 161 ("The alternative occupations are within your physical
capacity and would utilize the skills you have gained from your past work
experience."). However, the plan's definition of disability pursuant to the "any
occupation" clause is not dependent on the claimant's transferrable skills.
Rather, the plan language of the clause states that whether a claimant is disabled
depends on whether his training, education, and work experience enables him to
perform each of the material duties of other gainful occupations. In denying the
claim for the stated reasons, UNUM imposed on Plaintiff a different and more
difficult burden to prove disability than was required by the plan. Consequently,
the plan administrator's decision was arbitrary and capricious because it was not
the product of a principled reasoning process, see supra, at 13, and because the
standard it did employ contravened the plain language of the plan. Pulvers v.
First UNUM Life Ins. Co., 210 F.3d 89, 93 (2nd Cir.2000)("[W]here the plan
administrator imposes a standard not required by the plan's provisions, or
interprets the plan in a manner inconsistent with the its plain words, its actions
may well be found to be arbitrary and capricious.")(internal brackets and ellipses

In contrast, Dr. Roebker's report was more thorough and lists some, but not all,
of the material duties of Respiratory Therapist, Claims Adjuster/Examiner, and
Volunteer Services Coordinator and states why, in his opinion, Plaintiff's prior
training, education, and experience does not translate into an ability to perform
the occupations identified by Hoffman. Plaintiff, however, bears the burden of
producing evidence which establishes that she is disabled under the terms of the
plan. Morales-Alejandro v. Medical Card Sys., Inc., 486 F.3d 697, 700 (1st
Cir.2007). Plaintiff does not quite carry her burden on this record because Dr.
Roebker's report fails to discuss each of the material duties of the alternative
occupations identified by Hoffman. Therefore, Plaintiff has failed to adduce
evidence that she is unable to perform each of the material duties of those

*9 In summary, the plan administrator's decision denying Plaintiff's claim was
arbitrary and capricious because UNUM imposed a standard of disability that was
not required by the plan's provisions. On the other hand, Plaintiff's evidence
fails to clearly establish that she is disabled under the "any occupation" clause
because of the gaps in Dr. Roebker's report already noted. Under these
circumstances, the Court concludes that the appropriate remedy is to remand this
matter to the plan administrator with instructions to review whether Plaintiff is
disabled pursuant to the "any occupation" clause according to the correct
standard. See Elliott v. Metropolitan Life Ins. Co., 473 F.3d 613, 622 (6th
Cir.2006) (although plan's administrator's decision was arbitrary and capricious,
court remanded case for full and fair inquiry because record did not establish
that plaintiff was clearly entitled to benefits).



Accordingly, for the reasons stated, Plaintiff's motion for judgment on the
administrative record is well-taken and is GRANTED; Defendant's motion for
judgment on the administrative record is not well-taken and i

Ben Glass
Connect with me
Ben Glass is a nationally recognized Virginia injury, medical malpractice, and long-term disability attorney