James McDonald v. Western-Southern Life Insurance Company

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0369P (6th Cir.)
File Name: 03a0369p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
JAMES MCDONALD,
Plaintiff-Appellee,
v.
WESTERN-SOUTHERN LIFE
INSURANCE COMPANY;
WESTERN-SOUTHERN LIFE
DISABILITY PLAN; SECURITY
PLAN COMMITTEE OF THE
WESTERN-SOUTHERN LIFE
DISABILITY PLAN,
Defendants-Appellants.
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No. 02-3053
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 98-00414—John D. Holschuh, District Judge.
Argued: September 9, 2003
Decided and Filed: October 20, 2003
2 McDonald v. Western-Southern
Life Ins. Co., et al.
No. 02-3053
*The Honorable Richard Mills, United States District Judge for the
Central District of Illinois, sitting by designation.
1W e will refer to Defendants-Appellants collectively as “Western-
Southern” for ease of reference.
Before: MOORE and GILMAN, Circuit Judges; MILLS,
District Judge.*
_________________
COUNSEL
ARGUED: Aaron P. Rosenfeld, VORYS, SATER,
SEYMOUR & PEASE, Columbus, Ohio, for Appellants.
Tony C. Merry, PALMER VOLKEMA THOMAS,
Columbus, Ohio, for Appellee. ON BRIEF: Aaron P.
Rosenfeld, David A. Campbell, VORYS, SATER,
SEYMOUR & PEASE, Columbus, Ohio, for Appellants.
Tony C. Merry, PALMER VOLKEMA THOMAS,
Columbus, Ohio, for Appellee.
_________________
OPINION
_________________
RICHARD MILLS, District Judge. James McDonald
worked for Western-Southern Life Insurance Company for
nearly twenty-one years before he began receiving long-term
disability (“LTD”) benefits from Western-Southern Life
Insurance Company’s Flexible Benefits Plan due to his severe
depression and his aggressive personality disorder.1
After paying LTD benefits for over seven years, Western-
Southern terminated McDonald’s LTD benefits after it
concluded that he was no longer disabled from performing
any and every occupation, business, or employment for

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No. 02-3053 McDonald v. Western-Southern
Life Ins. Co., et al.
3
wages, compensation, or profit as was required by the terms
of the plan in order to be considered disabled and in order to
receive LTD benefits.
After the Appeals Committee affirmed Western-Southern’s
decision to terminate McDonald’s LTD benefits, McDonald
filed suit in federal district court seeking the reinstatement of
his LTD benefits, which he claimed were denied in violation
of his rights under the Employee Retirement Income Security
Act (“ERISA”). 29 U.S.C. § 1001 et seq. ERISA. After
reviewing the administrative record, the district judge
concluded that Western-Southern’s decision to terminate
McDonald’s LTD benefits was arbitrary and capricious, and
therefore, he ordered the reinstatement of McDonald’s LTD
benefits.
For the following reasons, we AFFIRM the judgment of
the district court.
I. BACKGROUND
James McDonald began working for Western-Southern on
October 11, 1976. His last position with the company was as
a district sales manager in charge of the Columbus, Ohio,
office. As an employee of Western-Southern, McDonald was
a participant in the Western and Southern Life Insurance
Company Flexible Benefits Plan. The Plan provided LTD
benefits for covered employees who were determined to
suffer from a long-term disability or who were determined to
be long-term disabled. “Long-Term Disability or Long-Term
Disabled” is defined by the terms of the plan as:
Long-Term Disability or Long-Term Disabled shall mean
until the Covered Employee has completed 5
uninterrupted Years of Employment a disablement
resulting from sickness or accidental bodily injury of
such a nature that the disabled Covered Employee is
receiving disability benefits under the Social Security
4 McDonald v. Western-Southern
Life Ins. Co., et al.
No. 02-3053
2Througho ut his disab ility, McD onald has been under the care of Dr.
Hubert T. Goodman, a psychiatrist, and D r. Kent G. H amd orf, Ph.D., a
psychologist. In addition, McDonald has appeared for an independent
medical examination, pursuant to Western-Southern’s requests, on
July 10, 1989 , with Dr. Michael Murphy, a psychiatrist, who gave
McDonald a Minnesota Multiphasic Personality Inventory (“MMP I”), and
Act. Once a Covered Employee is receiving such
benefits his period of Long-Term Disability shall be
deemed to include the waiting period for such benefits.
After the covered Employee has completed 5
uninterrupted Years of Employment, Long-Term
Disabled shall mean the complete and continuous
incapacity of the Covered Employee to engage in any
and every occupation, business or employment for
wages, compensation or profit.
Pursuant to the terms of the plan, a covered employee has a
continuing obligation to furnish proof of his long-term
disability, to be examined in order to verify his long-term
disability, and to provide any release required by the plan.
In the fall of 1988, McDonald began to experience severe
depression. On October 26, 1988, Western-Southern awarded
McDonald short-term disability benefits due to his
depression. On August 23, 1989, the Social Security
Administration determined that McDonald was totally and
permanently disabled. On January 12, 1990, Western-
Southern notified McDonald that it had approved his
application for LTD benefits, to be effective January 26,
1990, based upon his severe depression and his aggressive
personality disorder.
On October 30, 1996, pursuant to a periodic evaluation of
his continued eligibility for LTD benefits, Western-Southern
asked McDonald to provide information to it relating to his
disability and to sign an authorization for the release of his
medical records.2 Upon receipt of this material, Western-

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No. 02-3053 McDonald v. Western-Southern
Life Ins. Co., et al.
5
on July 25, 1994 , with Dr. Jerold Altm an, a psychiatrist.
3Specifically, Western-Southern noted that McD onald had been
playing bridge for points, golfing, boating, and going on cruises.
4Western-Southern hired International Claims Specialist, a third party
administrator, to select an independent medical examiner for McDonald.
International Claims Specialist selected Dr. Clary without any input from
W estern-Southern.
Southern’s medical consultants believed that some of
McDonald’s activities, which were noted in his medical
records, were inconsistent with a diagnosis of major
depression.3 Accordingly, Western-Southern asked
McDonald to submit to an independent medical examination
in order to determine whether he remained eligible to receive
LTD benefits.
On May 2, 1997, Dr. Richard M. Clary, a psychiatrist,
examined McDonald.4 Dr. Clary’s examination consisted of
a standard psychiatric evaluation, the MMPI-2 psychological
test, and a clinical interview of McDonald. Thereafter, Dr.
Clary submitted a report to Western-Southern which
contained his evaluation of McDonald’s condition and the
results of McDonald’s MMPI-2.
Specifically, Dr. Clary’s report indicated that the results of
McDonald’s MMPI-2: (1) were consistent with symptoms of
depression and showed an over-sensitivity to criticism;
(2) displayed an underlying hostility as well as evidence of
anger and resentment; and (3) indicated paranoid tendencies
but did not show any paranoid delusions or psychotic
thinking. Dr. Clary diagnosed McDonald as having
dysthymic disorder, a dependent personality, possible
paranoid personality, macular degeneration of the left eye,
decreased vision in his right eye, and high frequency hearing
6 McDonald v. Western-Southern
Life Ins. Co., et al.
No. 02-3053
5Specifically, W estern-S outhern wro te:
To be considered totally disabled, you must be unable to perform any
gainful employment. This requirement is set forth in the enclosed
cop y of Sec tion 2.2 7 of the official plan document.
In reviewing your file, particular attention was p aid to the most
recent medical reports covering your condition. This included,
a copy of Dr. Goodman’s medical records and the results of the
medical examination completed at our request by Dr. Clary on
May 2, 199 7. Based upon Dr. Goodm an’s medical records and
the findings of Dr. Clary, it appears that you are not disabled
from performing any occupation. It is our decision that you d id
loss. Based upon his examination and interview of
McDonald, Dr. Clary rendered the following conclusion:
Mr. McDonald would be able to relate satisfactorily with
supervisors and co-workers. He would be able to
understand and follow instructions in a competitive
setting. He would be able to maintain attention and
attendance for a reasonable period of time and would
perform routine repetitive tasks without undue
supervision. He would be able to exercise acceptable
judgment concerning work functions and would have
some difficulty understanding the stress and pressure
associated with day to day work activities. He might be
able to return to work in a very low stress environment
on a limited trial basis.
On May 19, 1997, Western-Southern sent McDonald a
letter informing him that his LTD benefits would be
terminated effective June 30, 1997. In this letter, Western-
Southern advised McDonald that, based upon Dr. Goodman’s
medical records and Dr. Clary’s conclusions, it was
terminating his LTD benefits because it now appeared that he
could engage in an occupation for wages, and thus, he no
longer met the definition of “Long-Term Disability or Long-
Term Disabled” as defined by the terms of the plan.5

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No. 02-3053 McDonald v. Western-Southern
Life Ins. Co., et al.
7
not qualify at this time for long-term disability benefits because
it appears you could engage in an occupation for wages.
(emphasis in original).
6McD onald disputes Western-Southern’s assertion that it made him
an offer of employment after it terminated his LTD benefits; rather,
McDonald claims that W estern-S outhern simp ly made a gratuitous offer
to interview him knowing that there were no positions available to which
he could have returned given his limitations.
7McDonald offered Mr. Eichenbaum’s affidavit because Dr. Clary’s
findings were based, in part, on the fact that McDonald regularly played
bridge for points, and Dr. Clary opined that this activity was inconsistent
with McDonald’s disability claim.
Thereafter, Western-Southern offered McDonald a position,
but he refused it.6
On June 4, 1997, McDonald, through counsel, filed an
administrative appeal of Western-Southern’s decision to
terminate his LTD benefits. As part of his appeal, McDonald
presented new evidence which included affidavits from Dr.
Goodman, Dr. Hamdorf, and Mr. Eichenbaum, McDonald’s
bridge coach. Therein, both Dr. Goodman and Dr. Hamdorf
opined that McDonald is totally disabled from engaging in
any work for profit. In his affidavit, Mr. Eichenbaum testified
that McDonald is a poor bridge player and that, based upon
his observations of McDonald’s bridge playing skills, he
believes that McDonald is totally disabled from working.7
Upon receipt and review of the evidence which McDonald
submitted as part of his administrative appeal, Western-
Southern telephonically contacted Dr. Clary in order to
discuss the issues raised by McDonald’s new evidence and in
order to have Dr. Clary clarify his previous findings and
conclusions. Participating in this telephone call with Dr.
Clary were Don Wuebbling (who was Western-Southern’s
8 McDonald v. Western-Southern
Life Ins. Co., et al.
No. 02-3053
8The audio tape of this telephone conversation was later transcribed,
was disclosed to McDonald during discovery, and was provided to the
district court as part of the parties’ cross-motions for summ ary judgment.
chief legal counsel and a member of the Appeals Committee),
Dean Vonderheide (who was Western-Southern’s director of
benefits), and Megan Ratchford (who was Western-
Southern’s nurse coordinator). This telephone conversation
was audio taped.8 At the end of this telephone conversation,
Wuebbling asked Dr. Clary to submit a second letter
discussing the issues raised during their telephone
conversation.
On December 17, 1997, Dr. Clary submitted an addendum
to his initial report. In this addendum, Dr. Clary found that,
contrary to Dr. Goodman’s and Dr. Hamdorf’s opinions and
despite McDonald’s poor bridge playing skills, McDonald
was capable of returning to work. Specifically, Dr. Clary
found:
In my opinion, Mr. McDonald is not suffering from any
psychiatric or psychological impairment that is severe
enough to prevent him from returning to work but he, in
fact, does not want to return to work.
On January 2, 1998, Western-Southern informed McDonald
that his administrative appeal was denied.
On April 17, 1998, McDonald filed a Complaint (which he
later amended) in federal district court against Western-
Southern, alleging that it had wrongfully terminated his LTD
benefits in violation of his rights under ERISA. Specifically,
McDonald alleged three causes of action against Western-
Southern: (1) a claim to recover benefits under ERISA, 29
U.S.C. § 1132(a)(1)(B); (2) a claim for breach of fiduciary
duty under ERISA, 29 U.S.C. § 1109 and § 1132(a)(3); and
(3) a claim for intentional denial of benefits under ERISA, 29

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No. 02-3053 McDonald v. Western-Southern
Life Ins. Co., et al.
9
U.S.C. § 1140 and 1132(a)(3). At the conclusion of the
discovery period established by the district court, McDonald
and Western-Southern filed cross-motions for summary
judgment.
On December 14, 2001, the district court entered an order
granting in part and denying in part both parties’ motions for
summary judgment. Specifically, the district court held that
Western-Southern’s decision to terminate McDonald’s LTD
benefits was arbitrary and capricious because Western-
Southern could not offer a reasoned explanation, based upon
the evidence in the administrative record, for finding that
McDonald was able to engage in gainful employment and,
thereby, rendering him ineligible for LTD benefits under the
plan. In reaching this conclusion, the district court noted the
unanimity of the opinions of Dr. Goodman and Dr. Hamdorf
regarding McDonald’s disability, found that Dr. Clary’s
initial report was an insufficient basis upon which to
terminate McDonald’s LTD benefits because Dr. Clary
merely stated that McDonald might be able to return to work
in a very low stress environment on a limited trial basis, and
held that Dr. Clary’s supplemental report should be given
“very little weight” because it was radically different from his
initial report and because it was rendered only after an
ex parte telephone conference with Western-Southern’s
representatives. Accordingly, the district court entered
judgment in McDonald’s favor and against Western-Southern
on his claim to recover benefits and ordered the reinstatement
of McDonald’s LTD benefits.
As for McDonald’s two other claims, the district court
found against McDonald and in Western-Southern’s favor.
Specifically, the district court held that McDonald’s breach of
fiduciary duty claim was barred because it was redundant to
his claim for denial of benefits, and the district court found
that McDonald’s claim for intentional denial of benefits failed
because McDonald presented no evidence that Dr. Clary was
biased or predisposed to concluding that he was able to work
10 McDonald v. Western-Southern
Life Ins. Co., et al.
No. 02-3053
9On February 20, 2002, the district court denied McDonald’s motion
for attorney’s fees and nontaxable costs but granted his motion to amend
the judgment to include an award for prejudgm ent interest. Mc Do nald
does not challenge this order by the district court on appeal, nor has he
appealed the district court’s ruling against him with regard to his claim for
breach o f fiduciary duty or his claim for intentional denial of benefits.
and, therefore, not disabled. On January 4, 2002, Western-
Southern filed a timely notice of appeal from the district
court’s order.9
II. DISCUSSION
The sole issue which the Court must decide in this appeal
is whether or not the district court erred in holding that
Western-Southern’s decision to terminate McDonald’s LTD
benefits was arbitrary and capricious. We find that the district
court did not err in so holding.
A. ARGUMENTS
1. Western-Southern
Western-Southern claims that there are two issues which
this Court must address in order to resolve this appeal. The
first issue is whether Western-Southern substantially
complied with ERISA’s procedural requirements, and if not,
whether the substantive remedy imposed by the district court
was proper. Western-Southern argues that the district court’s
order should be reversed because the district court
erroneously concluded that it had failed to comply with
ERISA’s procedural requirements in terminating McDonald’s
LTD benefits, and thus, the district court improperly granted
a substantive remedy to McDonald as a result of this alleged
procedural defect. Specifically, Western-Southern asserts that
the district court erred in holding that the telephone call
between members of its Appeals Committee and Dr. Clary
was improper and constituted a “procedural defect” because

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No. 02-3053 McDonald v. Western-Southern
Life Ins. Co., et al.
11
neither McDonald nor his counsel were included in the
telephone call. Based upon this finding of an alleged
procedural defect, Western-Southern contends that the district
court improperly disregarded a highly relevant portion of the
administrative record, i.e., Dr. Clary’s supplemental report.
Western-Southern argues that it provided McDonald with
a full and fair review of the record on his administrative
appeal and that the procedures which occurred in this case
substantially complied with the requirements of 29 U.S.C.
§ 1133. Western-Southern asserts that, contrary to the district
court’s characterization, there was nothing improper about its
employees contacting Dr. Clary for a clarification of his
initial report. Western-Southern contends that ERISA’s
claims procedures are not adversarial or “trial-like” as
described by the district court; on the contrary, ERISA’s
claims procedures are designed to be an inexpensive,
expeditious, and non-adversarial method of claims settlement.
Thus, Western-Southern asserts that the district court erred in
failing to fully consider Dr. Clary’s supplemental report
because this Court has adopted a rule of substantial
compliance under § 1133. See Kent v. United of Omaha Life
Ins. Co., 96 F.3d 803, 808 (6th Cir. 1996)(holding “that when
claim communications as a whole are sufficient to fulfill the
purposes of Section 1133 the claim decision will be upheld
even if a particular communication does not meet those
requirements.”).
Furthermore, Western-Southern argues that its ERISA
fiduciary obligations and the terms of the plan itself required
it to investigate McDonald’s claims on appeal. Contrary to
the district court’s conclusions, Western-Southern contends
that Dr. Clary’s initial report is not in conflict with his
supplemental report. In both reports, Dr. Clary concludes that
McDonald is not disabled, as that term is defined by the plan,
and his supplemental report merely explains whatever
ambiguity exists in his initial report. Thus, Western-Southern
12 McDonald v. Western-Southern
Life Ins. Co., et al.
No. 02-3053
claims that the district court had no basis to disregard Dr.
Clary’s supplemental report.
Finally, Western-Southern argues that, even assuming
arguendo that a procedural defect exists, the remedy of
wholly discounting Dr. Clary’s supplemental report is
contrary to Sixth Circuit precedent. See Id. at 807 (holding
that “[g]enerally, the courts have recognized in ERISA cases
that procedural violations entail substantive remedies only
when some useful purpose would be served.”).
The second issue that Western-Southern claims must be
resolved in this appeal is whether the district court erred in
holding that its decision to terminate McDonald’s LTD
benefits was arbitrary and capricious. Given the plan’s
definition of long-term disability or long-term disabled as the
incapacity to engage in any and every occupation for wages,
given Dr. Clary’s opinion that McDonald is not suffering
from a condition which prevents his return to work, and given
Dr. Goodman’s medical reports which indicate that
McDonald is playing bridge for points, golfing, boating, and
going on vacations, Western-Southern contends that it would
defy logic to affirm the district court’s decision because it is
possible to offer a reasoned explanation, based upon the
administrative record, for the termination of McDonald’s
LTD benefits. Accordingly, Western-Southern asks the Court
to reverse the district court’s order and to remand this case
with directions to the district court to enter judgment in its
favor.
2. McDonald
McDonald concedes that the district court correctly found
“arbitrary and capricious” to be the appropriate standard of
review because the terms of the plan give the plan
administrator the discretionary authority to determine
eligibility for benefits and to construe the terms of the plan.
However, McDonald argues that the district court’s order

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No. 02-3053 McDonald v. Western-Southern
Life Ins. Co., et al.
13
should be affirmed because the district court also correctly
found that Western-Southern’s decision to terminate his LTD
benefits was arbitrary and capricious given the administrative
record. McDonald claims that the evidence overwhelmingly
establishes that he is totally disabled (as defined by the terms
of the plan) and that Western-Southern had no reasonable
basis for determining otherwise.
McDonald asserts that the medical evidence indicates that
he has had a mental illness since 1989, that his condition has
not improved over time, that his condition is not likely to
improve, and that his treating physicians believe him to be
disabled. In fact, McDonald notes that even Dr. Clary
believed that more treatment with his psychologist would be
unlikely to result in any improvement or change in his
condition.
Moreover, McDonald asserts that, other than Dr. Clary’s
supplemental report, there is no evidence in the administrative
record to indicate that there has been a change in his
condition, nor has any new medical evidence been presented
since Western-Southern initially determined him to be
disabled which would support a conclusion that he is now no
longer disabled. The Social Security Administration has
concluded that he is disabled, his treating physicians and the
independent medical examiners (save Dr. Clary) have found
him to be disabled, and his MMPI and MMPI-2 tests support
a finding of disability.
Finally, McDonald argues that the district court correctly
discounted Dr. Clary’s supplemental report. Contrary to
Western-Southern’s characterization of the facts, McDonald
claims that the district court did not refuse to consider Dr.
Clary’s supplemental report due to any “procedural
irregularity” in the manner in which it was obtained, nor did
it impose any “substantive remedy” as a result of this
irregularity. Rather, the district court simply found that the
report should be given “ very little weight” because the
14 McDonald v. Western-Southern
Life Ins. Co., et al.
No. 02-3053
supplement contradicted Dr. Clary’s initial opinion and
because the only event which triggered the change in Dr.
Clary’s opinion was a telephone call from members of
Western-Southern’s appeals committee. Under these
circumstances, McDonald argues that the district court
correctly found Western-Southern’s decision to terminate his
LTD benefits to be arbitrary and capricious, and thus, this
Court should affirm the district court’s decision.
B. ANALYSIS
We have explained:
As a general principle of ERISA law, federal courts
review a plan administrator’s denial of benefits de novo,
“unless the benefit plan gives the plan administrator
discretionary authority to determine eligibility for
benefits or to construe the terms of the plan.” Wilkins v.
Baptist Healthcare Sys., Inc., 150 F.3d 609, 613 (6th Cir.
1998)(citing Firestone Tire & Rubber Co. v. Bruch, 489
U.S. 101, 115, 109 S. Ct. 948, 103 L. Ed.2d 80 (1989)).
When a plan administrator has discretionary authority to
determine benefits, we will review a decision to deny
benefits under “the highly deferential arbitrary and
capricious standard of review.” Yeager v. Reliance
Standard Life Ins. Co., 88 F.3d 376, 380 (6th Cir. 1996).
Sanford v. Harvard Indus., Inc., 262 F.3d 590, 595 (6th Cir.
2001). “[T]he arbitrary and capricious standard is the least
demanding form of judicial review of administrative action.
When applying the arbitrary and capricious standard, the
Court must decide whether the plan administrator’s decision
was rational in light of the plan’s provisions. Stated
differently, when it is possible to offer a reasoned
explanation, based on the evidence, for a particular outcome,
that outcome is not arbitrary or capricious.” Williams v.
International Paper Co., 227 F.3d 706, 712 (6th Cir.
2000)(internal citations and quotations omitted).

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No. 02-3053 McDonald v. Western-Southern
Life Ins. Co., et al.
15
10In Black & Decke r Disability Plan v. Nord, ___ U.S. ___, 123 S.
Ct. 1965 (2003), the United States Supreme Court held “that plan
administrators are not obliged to accord special deference to the opinions
of treating physicians” and “that courts have no warrant to order
application of a treating physician rule to employee benefit claims made
under ERISA . . . .” Id. at 1966, 1969.
Generally, when a plan administrator chooses to rely upon
the medical opinion of one doctor over that of another in
determining whether a claimant is entitled to ERISA benefits,
the plan administrator’s decision cannot be said to have been
arbitrary and capricious because it would be possible to offer
a reasoned explanation, based upon the evidence, for the plan
administrator’s decision.10 See Abnathya v. Hoffmann-
LaRoche, Inc., 2 F.3d 40, 47 (3d Cir. 1993)(holding that a
plan administrator may rely upon a single medical opinion
finding that an employee is not disabled); see also Donato v.
Metropolitan Life Ins. Co., 19 F.3d 375, 380 (7th Cir.
1994)(upholding a plan administrator’s denial of benefits
where a psychiatrist found the employee to be “severely
depressed,” there being insufficient evidence to “support the
conclusion that [the plaintiff’s] depression, regardless of
treatment, would constitute a total disability” and upholding
plan administrator’s denial of claim where independent
medical consultant’s opinion was contrary to plaintiff’s
doctor’s opinion); see also Birdsell v. United Parcel Serv. of
Am., 94 F.3d 1130, 1133 (8th Cir. 1996)(holding that a plan
administrator’s decision to deny benefits was not arbitrary or
capricious simply because the plan administrator adopted one
of two competing views).
Under these circumstances, however, the district court did
not err in refusing to defer to Western-Southern’s reliance
upon Dr. Clary’s opinion in terminating McDonald’s LTD
benefits or in finding Western-Southern’s decision to be
arbitrary and capricious.
16 McDonald v. Western-Southern
Life Ins. Co., et al.
No. 02-3053
The medical evidence establishes that McDonald’s
diagnosis and condition have remain unchanged since he was
first diagnosed with severe depression and aggressive
personality disorder in the late 1980's and was awarded LTD
benefits by Western-Southern. As noted supra, the results of
his MMPI-2 in 1997 are substantially similar to the results of
his 1989 MMPI, and even Dr. Clary admitted that more
treatment with his psychologist would be unlikely to result in
any improvement or change in McDonald’s condition. Both
Dr. Goodman and Dr. Hamdorf have unequivocally and
repeatedly opined that, based upon the medical evidence and
their treatment of him, McDonald is totally incapable of
returning to work due to his mental condition. See Hoover v.
Provident Life and Accident Ins. Co., 290 F.3d 801, 809 (6th
Cir. 2002)(applying a de novo standard of review in finding
that “Provident relied on the IME performed by Dr. Roseman
and the review of Hoover’s medical records by Provident’s
in-house physicians . . . . As pointed out by the district court,
although Dr. Roseman’s assessment did not totally endorse
the assessment of Hoover’s treating physician, Dr. Vinson, he
did not refute it. The evidence presented in the administrative
record did not support the denial of benefits when only
Provident’s physicians, who had not examined Hoover,
disagreed with the treating physicians. Under these
circumstances, the district court’s decision to reverse
Provident’s denial of residual benefits to Hoover was correct
. . . .”).
In addition, two independent medical examiners questioned
McDonald’s ability to return to work. In 1989, Dr. Murphy
opined that McDonald may be able to return to work but only
under careful supervision of his therapist. In 1994, Dr.
Altman opined that McDonald could not return to his usual
occupation. Dr. Altman also noted that McDonald’s severe
personality disorder prevented him from progressing and that,

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No. 02-3053 McDonald v. Western-Southern
Life Ins. Co., et al.
17
11Apparently, W estern-Southern took no action with re gard to
McDonald’s LTD benefits after it received Dr. Murp hy’s and Dr.
Altman’s repo rts.
12During W estern-S outhern’s telephone conference with Dr. Clary,
Wuebbling said: “And we went through your evaluation of his condition
(unintelligible) make a decision about the status of disability benefits, and
it kind o f looks, going through the – the evaluation, is though he was
doing an awful lot of things that are consistent with som eone who could
function pretty well in a working environment. Ma ybe no t interact with
because he has long since made any progress which he is
going to make, therapy would only be supportive for him.11
What remains are the initial and supplemental reports of Dr.
Clary. As noted supra, in his initial report, Dr. Clary opined:
Mr. McDonald would be able to relate satisfactorily with
supervisors and co-workers. He would be able to
understand and follow instructions in a competitive
setting. He would be able to maintain attention and
attendance for a reasonable period of time and perform
routine repetitive tasks without undue supervision. He
would be able to exercise acceptable judgment
concerning work functions and would have some
difficulty withstanding stress and pressures associated
with day to day work. He might be able to return to
work in a very low stress environment on a limited trial
basis.
We believe that Dr. Clary’s initial report was an insufficient
basis upon which to determine that McDonald could engage
in an occupation for wages. First, Dr. Clary’s opinion (which
was contained within his initial report) regarding whether
McDonald was disabled was ambiguous at best. The best
evidence of this ambiguity lies in the fact that Western-
Southern had to contact Dr. Clary in order to have him clarify
his report.12
18 McDonald v. Western-Southern
Life Ins. Co., et al.
No. 02-3053
peo ple a whole lot, but – but do a lot of things. And we were a little
uncertain in that towards the end of your letter (unintelligible) indicates
that – or he indicates some hesitancy about his being able to work, or at
least that’s the way we’re reading it and maybe that’s not the way you
intended it – to read. But towards the end (unintelligible) saying that he
might be able to return to work in a very low-stress environment on a
limited trial basis, which suggests that maybe he could n’t return to work
or couldn’t work and that (unintelligible) seems sort of (unintelligible)
what you were saying in the earlier part of the letter, and we were
wondering if we were reading it right, interpreting it right or what?”
Second, in his initial report, Dr. Clary merely opined that
McDonald might be able to return to work under certain
limited circumstances. The mere possibility that a participant
in an ERISA plan might be able to return to some type of
gainful employment, in light of overwhelming evidence to the
contrary, is an insufficient basis upon which to support a plan
administrator’s decision to deny that participant’s claim for
LTD benefits. See Mein v. Pool Co. Disabled Int’l Employee
Long Term Disability Benefit Plan, 989 F. Supp. 1337, 1350
(D. Colo. 1998)(holding that a plan administrator’s decision
to deny ERISA benefits was arbitrary and capricious where it
was based upon a physician’s opinion that the claimant may
be capable of some sedentary work); see also Norris v.
Citibank, N.A. Disability Plan, 308 F.3d 880, 883-84 (8th Cir.
2002)(quoting Fletcher- Merrit v. NorAm Energy Corp., 250
F.3d 1174, 1179 (8th Cir. 2001)(holding that “‘[s]ubstantial
evidence is more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion. Both the quantity and quality of
evidence may be considered.’”); but see Miller v.
Metropolitan Life Ins. Co., 925 F.2d 979, 985 (6th Cir.
1991)(holding that “Plaintiff makes much of the fact that in
the narrative portion of his report, Dr. Murthi stated that he
recommended a return to work on a trial basis. . . . Even
though Dr. Murthi recommended work only on a trial basis,
we do not believe Metropolitan’s action in terminating

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No. 02-3053 McDonald v. Western-Southern
Life Ins. Co., et al.
19
benefits was inconsistent with the scheme as set forth in the
Plan.”)(emphasis in original).
Likewise, we believe that Dr. Clary’s supplemental report
was an insufficient basis upon which to determine that
McDonald could engage in an occupation for wages. In his
supplemental report, Dr. Clary was much more forceful in his
conclusion that McDonald was able to engage in gainful
employment. In fact, Dr. Clary went so far as to accuse
McDonald of malingering in his ability to return to work:
In my medical opinion, Mr. McDonald is not suffering
from any psychiatric or psychological impairment that is
severe enough to prevent him from returning to work but
he, in fact, does not want to return to work.
Although the district court found that there was no evidence
of bias by Dr. Clary and although there was nothing untoward
about Western-Southern contacting Dr. Clary in order to have
him clarify his initial report, it is noteworthy that Dr. Clary
became more definite in his opinion only after he was
contacted by Western-Southern. In his supplemental report,
Dr. Clary did not change his diagnosis of McDonald, did not
modify the results of McDonald’s MMPI-2, or alter his belief
that therapy would be of little use to McDonald. Moreover,
he did not re-examine McDonald, nor did he receive any new
medical evidence or reports upon which to base his clarified
conclusion. In fact, the only new medical evidence submitted
after Dr. Clary’s initial report was reports from Dr. Goodman
and Dr. Hamdorf in which they reiterated their opinions that
McDonald was disabled and which attempted to rebut Dr.
Clary’s conclusions contained within Dr. Clary’s initial
report.
Therefore, we agree with the district court that Dr. Clary’s
supplemental report should be discounted. Dr. Clary’s
supplemental report was significantly different than his initial
report without any justification for the change, other than the
20 McDonald v. Western-Southern
Life Ins. Co., et al.
No. 02-3053
telephone contact from Western-Southern. See EEOC v. UPS,
149 F. Supp. 2d 1115, 1139 (N.D. Cal. 2000)(finding that the
defendant’s principal expert witness was not credible because
the changes made to his draft expert report were all made at
the suggestion of defense counsel, and thus, “[i]n context, it
seems clear that [the expert] lost his independence and
objectivity. He simply became part of the UPS advocacy
team.”). Although Dr. Clary opined that McDonald could
return to work, he did not say what kind of work he could
perform. See Quinn v. Blue Cross and Blue Shield Ass’n, 161
F.3d 472, 476 (7th Cir. 1998)(“At her deposition, however,
Calhoon admitted that she did not know what Quinn’s job
duties entailed, what her exertional requirements were, any
training and experience she possessed, or any transferable
skills she may have obtained. Calhoon simply based her
opinion on her own notion of what a payroll accounts
assistant does. This, without more, is not enough. We agree
that Calhoon was under no obligation to undergo a full-blown
vocational evaluation of Quinn’s job, but she was under a
duty to make a reasonable inquiry into the types of skills
Quinn possesses and whether those skills may be used at
another job that can pay her the same salary range as her job
with HCSC.”); see also VanderKlok v. Provident Life and
Accident Ins. Co., 956 F.2d 610, 614-15 (6th Cir. 1992)
(quoting Torix v. Ball Corp., 862 F.2d 1428, 1431 (10th Cir.
1988)(“the phrase ‘prevented from engaging in every business
or occupation’ [in an ERISA plan] cannot be construed so
narrowly that an individual must be utterly helpless to be
considered disabled and that nominal employment, such as
selling peanuts or pencils which would only yield a pittance,
does not constitute a ‘business or occupation.’ Instead, a
claimant's entitlement to payments based on a claim of ‘total

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No. 02-3053 McDonald v. Western-Southern
Life Ins. Co., et al.
21
13Another reason why his supplemental report should be discounted
is because Dr. Clary concluded that McDo nald’s challenge to W estern-
Southern’s termination of his LTD benefits was indicative o f his ability
to return to work: “In my medical opinion, the vigorous pursuit of
disab ility claim would argue against disability for severe depression.”
This “medical” conclusion, of course, is absurd and would render
meaningless the statutory right to file suit in district court in o rder to
challenge denials of ERISA benefits and denials of disability insurance
benefits and supplemental security income under the Social Security Act.
disability’ must be based on the claimant’s ability to pursue
‘gainful employment in light of all the circumstances.’”).13
Finally, contrary to Western-Southern’s argument, the
highly deferential standard of review applicable in this case
does not automatically mandate adherence to Western-
Southern’s decision. “Review under [the arbitrary and
capricious] standard is extremely deferential and has been
described as the least demanding form of judicial review. It
is not, however, without some teeth.” Cozzie v. Metropolitan
Life Ins. Co., 140 F.3d 1104, 1107-08 (7th Cir. 1998)
(internal citation omitted). “‘Deferential review is not no
review,’ and ‘deference need not be abject.’” Hess v.
Hartford Life & Accident Ins. Co., 274 F.3d 456, 461 (7th
Cir. 2001)(quoting Gallo v. Amoco Corp., 102 F.3d 918, 922
(7th Cir. 1996)). In the instant case, the district court had an
obligation under ERISA to review the administrative record
in order to determine whether the plan administrator acted
arbitrarily and capriciously in making ERISA benefits
determinations. This obligation inherently includes some
review of the quality and quantity of the medical evidence
and the opinions on both sides of the issues. Otherwise,
courts would be rendered to nothing more than rubber stamps
for any plan administrator’s decision as long as the plan was
able to find a single piece of evidence–no matter how obscure
or untrustworthy–to support a denial of a claim for ERISA
benefits. See Hackett v. Xerox Corp. Long-Term Disability
Income Plan, 315 F.3d 771, 774-75 (7th Cir. 2003)(“Review
22 McDonald v. Western-Southern
Life Ins. Co., et al.
No. 02-3053
under the deferential arbitrary and capricious standard is not
a rubber stamp and deference need not be abject. Even under
the deferential review we will not uphold a termination when
there is an absence of reasoning in the record to support it.
The termination decision here is just such a
decision.”)(internal citation omitted); see also Swaback v.
American Info. Techs. Corp., 103 F.3d 535, 540 (7th Cir.
1996)(holding that “[a]lthough we review the committees’
actions in a deferential light, we shall not rubber stamp their
decisions.”).
III. CONCLUSION
Accordingly, for the reasons set forth above, we AFFIRM
the judgment of the district court.

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