MEMORANDUM

CATHERINE BLAKE, District Judge

Lauren Marie Skipp ("Ms. Skipp") has sued Hartford Life Insurance Company ("Hartford") for the wrongful denial of disability benefits under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1100 et seq. Ms. Skipp has moved for summary judgment or, in the alternative, remand; Hartford has moved for summary judgment. For the reasons articulated below, Ms. Skipp's motion is denied except as to a period which was erroneously calculated as part of the eighteen-month cap on mental health disability benefits, and Hartford's motion is granted except for the same period.

BACKGROUND

Ms. Skipp became employed by First Data Corporation ("First Data") as a programmer in April 2002; she was later promoted to sales specialist, a position in which her duties included selling credit card terminals and setting up new merchants' accounts. In July 2003, Ms. Skipp submitted a short-term disability ("STD") claim. Under the terms of the disability policy,

Disability or Disabled means that You satisfy the Occupation Qualifier or the Earnings Qualifier as defined below.

Occupation Qualifier

"Disability" means that during the Elimination Period and the following 24 months, Injury or Sickness causes physical or mental impairment to such a degree of severity that You are:

1. continuously unable to perform the Material and Substantial Duties of Your Regular Occupation; and

2. not working for wages in any occupation for which You are or become qualified by education, training or experience.

(Def's Mot. Summ. J. Ex. 1 at H01226.)

The July 2003 claim form listed Ms. Skipp's diagnosis as depression and anxiety and listed her expected return to work date as "unknown." (Def's Mot. Summ. J. Ex. 4.) That claim was approved by CNA Group Life Insurance Company, on August 4, and benefits were approved from July 24 through August 20, 2003. (Def's Mot. Summ. J. Ex. 5.) Ms. Skipp presumably returned to work from August 20 through October 8, 2003, when she ceased working.

On October 20, 2003, Ms. Skipp submitted another disability claim form to First Data ("second claim"). The form lists her expected return to work date as October 27; her treating physician notes that she had been hospitalized, but does not provide any additional data. (Def's Mot. Summ. J. Ex. 6.) On November 4, Hartford approved the claim as a short-term disability claim. (Def's Mot. Summ. J. Ex. 7.) On December 11, 2003, Hartford informed Ms. Skipp that she would reach the maximum benefits payable under a short-term disability claim on January 7, 2004. Benefit consideration beyond that point "will be processed according to the provisions of the Long Term Disability Plan." (Def's Mot. Summ. J. Ex. 8.)

The parties differ sharply as to the basis for the disability claim submitted on October 20. Ms. Skipp argues that the claim was submitted because of a physical disability stemming from pseudotumor cerebri. In support of this argument, she notes that she had had optic nerve decompression surgery on October 9th, the day after her last day of work, and a "National Assignment Sheet" from Hartford which lists the diagnosis as "intracranial HTN w/papilledema" and notes her decompression surgery. (Pl's Mot. Summ. J. Ex. 6.) Indeed, the second claim form is signed by Shalom Kelman, who performed the surgery. (Def's Mot. Summ. J. Ex. 6.) Hartford nevertheless alleges that the second claim, like the first, was submitted on the basis of Ms. Skipp's depression and anxiety. (Def's Mot. Summ. J. at 6.)

On February 9, 2004, Hartford wrote Ms. Skipp that she had been approved for benefits for the period ending February 6, 2004, and that her "entitlement to benefits beyond that date will be determined by our evaluation of [her] ongoing treatment and medical evidence from [her] providers." (Pl's Mot. Remand Ex. 11.) The letter lists the date of loss as October 9 but is silent as to the cause of disability.

Ms. Skipp returned to work on March 1 and worked part-time through April 9, 2004. According to First Data, Ms. Skipp resigned on April 9. On May 12, 2004, Hartford informed Ms. Skipp that her long-term disability claim had been approved "for your loss resulting from pseudo tumor cerebri with status post left optic nerve fenestration. You were also indicated to have had a history of depression and anxiety." (Pl's Mot. Remand Ex. 12.) The letter went on to advise Ms. Skipp, however, that "your treatment providers agree that you are capable of working full-time from a physical standpoint. . . . To date, we have not received medical evidence to support that any physical condition impairs your ability to function to the extent that you are unable to perform your regular occupation after 3/22/2004." (Pl's Mot. Remand Ex. 12) Regarding any additional disability claim, Hartford stated that:

The medical evidence received indicates that, effective 01/07/2004, your mental disorder impairs you to such a degree that you are continuously unable to perform the material and substantial duties of your regular occupation. Therefore, your claim will be managed on the basis of your mental disorder, and your benefit payment will continue as long as you remain Disabled in accordance with the terms of the LTD policy and in accordance with the limitations as specified by the LTD policy.

(Pl's Mot. Remand Ex. 12.) The letter notes that the LTD policy "does not cover any loss caused by, contributed to, or resulting from . . . Disability beyond 18 months after the elimination period if it is due to a mental disorder of any type." (Pl's Mot. Remand 12.)

Hartford paid Ms. Skipp's benefits through July 6, 2005 — 18 months after the commencement of the long-term disability claim payments on January 7, 2004. Ms. Skipp appears to have been in contact with Hartford during this time; Hartford's files refer to letters received in May 2005 and a conversation in July 2004, and in August 2004, a nurse in Dr. Sarim Mir's office provided Hartford with an explanation of the pseudotumor cerebri condition. (Pl's Mot. Remand Ex. 13.) In June 2005, Hartford reminded Ms. Skipp that her benefits were scheduled to terminate the following month, and enclosed a questionnaire to be filled out if she wished to extend her benefits. (Pl's Mot. Remand Ex. 15.) On July 7, in a telephone conversation with Hartford, Ms. Skipp stated that she was unable to return to work because of pseudotumor cerebri. (Pl's Mot. Summ. J. Ex. 9.)

On September 14, 2005, Hartford wrote Ms. Skipp to inform her that her claim for benefits on the basis of her physical disability had been denied. In that letter, Hartford indicated that it had reviewed the following pieces of medical evidence in determining Ms. Skipp's case:

Ms. Skipp appealed the denial of benefits on September 27, 2005, and her attorney, Bruce Bender ("Mr. Bender") restated that request on October 18. (Def's Mot. Summ. J. Ex. 12.) Mr. Bender's letter notes that he will be forwarding additional medical information from Ms. Skipp's physicians in support of the appeal. Thus began a period of frequent communication between Hartford and Ms. Skipp. In early November, Mr. Bender demanded to know why no action had been taken on Ms. Skipp's appeal; Hartford replied that because Mr. Bender had indicated that additional medical records were being sent, the appeal had not been perfected and Hartford had not yet begun its review of the file. (Def's Mot. Summ. J. Ex. 13, Pl's Mot. Remand Ex. 22.) On December 20, Hartford responded to a letter from Mr. Bender indicating that all of the documents in support of the Skipp appeal had been turned over and the appeal for long term disability had been perfected; Hartford stated that: "The file including all documents relevant to the claim will be reviewed accordingly." (Pl's Mot. Remand. Ex. 25.)

Mr. Bender provided additional information to Hartford on January 20, 2006, however, and Hartford began to use the January date to calculate the 45-day period for responding to the appeal; Hartford also notified Mr. Bender that it would need an additional 45 days to review the claim. (Pl's Mot. Remand Ex. 26.) On March 23, 2006, the appeal was denied. In the letter denying the appeal, Hartford notes that its review included an assessment by a Dr. Randal King, one of Hartford's medical consultants who is board-certified in neurology. According to the letter, in addition to the information provided prior to the September determination, Dr. King examined additional records from Dr. Mir. (Def's Mot. Summ. J. Ex. 18.) Ms. Skipp was not provided with Dr. King's report — dated March 21, 2006 — before the appeal was denied.

Unfortunately, it appears that Ms. Skipp's condition has declined since her appeal was denied, and she has submitted copious medical records chronicling that decline. She has undergone neuropsychological testing to determine her level of cognitive function, and it appears that she has experienced some memory problems as a result of the pseudotumor cerebri. Her medical records indicate that Ms. Skipp is a candidate for shunt surgery.

Ms. Skipp now moves for summary judgment. She claims that her benefits wrongfully expired on July 6, 2005, five months earlier than they should have, because Hartford had calculated the period between January 7, 2004 and May 12, 2004, as based on her physical disability, not her depression. She argues that the claim submitted on October 20, 2003 was clearly for her pseudotumor cerebri condition, and that Hartford's letter of May 12th indicates as such. Ms. Skipp also argues that she was wrongfully denied benefits on the basis of her physical condition as of July 6, 2005, and that Hartford should be ordered to continue her benefits.

In the alternative, Ms. Skipp requests that this court remand to the claims administrator for an additional review of her medical claims. In support of her request for remand, Ms. Skipp claims that she was unfairly denied the ability to submit rebuttal evidence to Dr. King's review of her appeal. She also claims that Hartford wrongfully relied only upon Dr. King's report and did not give due consideration to the statements of her treating physicians. Lastly, she claims that the file should be remanded to the claims administrator because her health has deteriorated significantly since her appeal was denied.

ANALYSIS

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment

shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

The Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion:

By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.

"A party opposing a properly supported motion for summary judgment 'may not rest upon the mere allegations or denials of [his] pleadings,' but rather must 'set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed.R.Civ.P. 56(e)). The court must "view the evidence in the light most favorable to . . . the nonmovant, and draw all reasonable inferences in her favor without weighing the evidence or assessing the witness' credibility," Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002), but the court also must abide by the "affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial." Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).

In reviewing a claim under 29 U.S.C. § 1132(a)(1)(B) asserting wrongful denial of benefits, the court must engage in a two-part inquiry. First, the court must decide whether the ERISA plan at issue vested discretion in the plan administrator with respect to the contested benefits. Blackshear v. Reliance Standard Life Ins. Co., 509 F.3d 634, 638 (4th Cir. 2007); see also Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). This determination is made de novo. Blackshear, 509 F.3d at 638; Feder v. Paul Revere Life Ins. Co., 228 F.3d 518, 522 (4th Cir. 2000). Second, if the administrator's decision was discretionary, the court must determine whether the denial of benefits abused that discretion. Evans v. Eaton Corp. Long Term Disability Plan, ___ F.3d ___, (4th Cir. 2008); Smith v. Cont'l Cas. Co., 369 F.3d 412, 417 (4th Cir. 2004); Johannssen v. Dist. No. 1-Pacific Coast Dist., MEBA Pension Plan, 292 F.3d 159, 168 (4th Cir. 2002).

For the abuse of discretion standard to apply, an ERISA plan must confer "discretionary authority to determine eligibility for benefits or to construe the terms of the plan" on the administrator. Evans, ___ F.3d at ___ (quoting Firestone, 489 U.S. at 115). The plan's intention to confer discretionary authority must be clear, and any ambiguity in an ERSA plan must be construed against the drafter and in accordance with the reasonable expectations of the insured. Gallagher v. Reliance Standard Life Ins. Co., 305 F.3d 264, 268, 269 (4th Cir. 2002). "No specific phrases or terms are required in a plan to preclude a de novo standard of review," however. Id. at 268.

There is some dispute in this case as to the appropriate language to be examined. Hartford claims that the policy states that "[w]hen making the benefit determination under the policy, we have discretionary authority to determine your eligibility for benefits and to interpret the terms and provisions of the policy." (Def's Mot. Summ. J. at 13.) Ms. Skipp counters that the document containing this language is not the policy, but a Certificate of Insurance. Hartford also cites the Summary Plan Description, which states "the administrator and other plan fiduciaries have discretionary authority to interpret the terms of the Plan and to determine eligibility for and entitlement to benefits." (Def's Mot. Summ. J. Ex. 1.) Ms. Skipp claims that she never received this document; rather, she received a third document, entitled Health and Life Plans Summary Plan Description. In that document, attached as Exhibit 33 to plaintiff's cross-motion for summary judgment, the claims administrator may "make the final determination of any and all benefit claims and related appeals," and "has the exclusive authority to interpret the provision of the plan and to make final determinations regarding claims for benefit[s] under the plans described in this summary plan description (SPD)."

Regardless of which document is examined, however, the abuse of discretion standard applies. The language in the Certificate of Insurance openly grants such discretion, stating that "[w]hen making a benefit determination under the policy, We have discretionary authority to determine Your eligibility for benefits and to interpret the terms and provisions of the policy." (Def's Mot. Summ. J. Ex. 1 at H01223.) Language contained in a certificate of insurance may grant discretionary authority to a claims administrator. See Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 359-60 (2002) (noting that the terms of an HMO's "Certificate of Group Coverage" gave Rush "the 'broadest possible discretion' to determine whether a medical service claimed by a beneficiary is covered under the certificate.") Ms. Skipp concedes that the language in the second document, the Summary Plan Description prepared by Hartford, is discretionary, (Pl's Mot. Summ. J. at 24), but claims that she never received it, "nor did she rely upon it." (Pl's Mot. Summ. J. at 24.) It is unclear whether Ms. Skipp's awareness of or reliance upon the document should be relevant here. It is not the situation that Ms. Skipp would be looking to the document to see whether a certain condition was covered, or whether she was the type of employee eligible for benefits. Cf. Blackshear, 509 F.3d at 640-42 (holding that it was an abuse of discretion for an insurer to deny benefits, when the insured had received a Summary Plan Description stating that her class of employees was covered but the policy document contained an amendment imposing a waiting period on that class).

Even assuming, without deciding, that the document with the narrowest grant of discretion — which plaintiff admits she did receive — should be determinative, the abuse of discretion standard is still appropriate. The Health and Life Plans Summary Plan Description gives the "final determination of any and all benefit claims and related appeals" to the Claims Administrators, and notes that the Administrator for each plan "has the exclusive authority to interpret the provisions of the plan and to make final determinations regarding claims for benefit under the plans described in this summary plan description." (Pl's Mot. Summ. J. Ex. 33.) This language is sufficient. See Yates v. UMWA 1974 Pension Plan, 471 F.3d 514, 517 (4th Cir. 2006) (applying abuse of discretion standard where plan gave administrator "the power of 'full and final determination as to all issues concerning eligibility for benefits.'"); see also Stup v. UNUM Life Insurance Co., 390 F.3d 301, 307 (4th Cir. 2004); Bernstein v. CapitalCare, Inc., 70 F.3d 783, 788 (4th Cir. 1995) (noting that abuse of discretion standard applied when the terms stated that the administrator "may adopt reasonable policies, procedures, rules and interpretations to promote the orderly and efficient administration of this agreement" and that benefits would be paid "only if [the administrator] determines" that certain terms were met).

The court also must determine whether, in denying benefits, Hartford acted under a conflict of interest; that is, whether "the decision to deny benefits impacted its own financial interests because it 'both administers the plan and pays for benefits received by its members.'" Stup, 390 F.3d at 307 (quoting Bernstein, 70 F.3d at 788 (internal quotation omitted)). Here, Hartford concedes that it is acting as both claims administrator and claims payor. (Def's Mot. Summ. J. at 16.) Where, as here, a conflict of interest exists, that conflict "must be weighed in determining whether there is an abuse of discretion," Stup, 390 F.3d at 307 (quoting Booth, 201 F.3d at 342). In those circumstances, the court "will not act as deferentially as would otherwise be appropriate," and the court's "deference will be lessened to the degree necessary to neutralize any untoward influence resulting from the conflict." Stup, 390 F.3d at 307 (quoting Doe v. Group Hospitalization Med. Servs., 3 F.3d 80, 87 (4th Cir. 1993)). Given the sliding-scale standard of review, the "more incentive for the administrator or fiduciary to benefit itself by a certain interpretation of benefit eligibility or other plan terms, the more objectively reasonable the administrator or fiduciary's decision must be and the more substantial the evidence must be to support it." Stup, 390 F.3d at 307 (quoting Ellis v. Metro. Life Ins. Co., 126 F.3d 228, 233 (4th Cir. 1997)); see also Blackshear, 509 F.3d at 638-39.

In determining whether an abuse of discretion has occurred, the Fourth Circuit has stated that it "will not disturb an ERISA administrator's discretionary decision if it is reasonable, and will reverse or remand if it is not." Evans, ___ F.3d at ___. The abuse of discretion standard "is less deferential to administrators than an arbitrary and capricious standard would be; to be unreasonable is not so extreme as to be irrational." Id. "[A]n administrator's decision is reasonable 'if it is the result of a deliberate, principled reasoning process and if it is supported by substantial evidence.'" Id. (quoting Bernstein, 70 F.3d at 788). Lastly, "the decision must reflect careful attention to 'the language of the plan,' as well as the requirements of ERISA itself." Id. The court will, "on the whole, require ERISA administrators' decisions to adhere both to the text of ERISA and the plan to which they have contracted; to rest on good evidence and sound reasoning; and to result from a fair and searching process." Id.

Here, it appears that Hartford engaged in a principled and deliberate reasoning process in concluding that Ms. Skipp was not disabled under the terms of the policy. In its benefits cancellation letter, dated September 14, 2005, Hartford details the medical records it examined in determining Ms. Skipp's claim; those records stretch as far back as 2003 and included the examination notes of five specialists. (Def's Mot. Summ. J. Ex. 9.) Those notes, combined with the additional supplemental information provided by Mr. Bender, and reviewed by Dr. King during the appeal process, reveal no abuse of discretion by the claims administrator, even applying a lesser degree of deference in light of the conflict of interest.

It is true that Dr. Edmonds completed a functional assessment tool in August 2005, which stated that Ms. Skipp was not "currently capable of performing full time work which is primarily seated with the option to stand when needed, frequent use of hands for computer, calculator and telephone usage;" when asked which of those duties she was unable to perform, he noted "all," and stated that any determination of the duration of the disability "should be given by neurologist." (Pl's Mot. Summ. J. Ex. 13.) Dr. Edmonds apparently had seen Ms. Skipp in early August and noted a corrected vision of 20/30 in the right eye and 20/40 in her left eye. (Def's Mot. Summ. J. Ex. 31 at H00083.) According to Hartford's file notes, however, on August 18 Dr. Edmonds stated during a telephone conversation that based on Ms. Skipp's corrected visual acuity, she was able to perform computer work. (Def's Mot. Summ. J. Ex. 28.)

Dr. Mir filled out a similar document on August 28, in which he also stated that Ms. Skipp was not capable of performing sedentary work. He noted that Ms. Skipp "has frequent headaches, blurred vision. She is unable to work in a position which requires frequent use of computer, calculator or telephone." (Pl's Mot. Summ. J. Ex. 12.) Ms. Skipp argues that these two documents should be persuasive evidence in favor of her being unable to perform the duties of her occupation. As late as August 4, 2005, however, Dr. Mir examined Ms. Skipp and noted that she had "only occasional headaches and occasional blurred vision. She does not complain of nausea or vomiting." A physical examination revealed no abnormalities. (Def's Mot. Summ. J. Ex. 23.) In December 2005, though he had not seen Ms. Skipp since August, Dr. Mir stated that he believed Ms. Skipp was permanently disabled and "not able to obtain any gainful employment." (Def's Mot. Summ. J. Ex. 25.)

It must be noted that the Supreme Court has rejected the "treating physician rule" in this context, concluding that courts "have no warrant to require administrators automatically to accord special weight to the opinions of a claimant's physician; nor may courts impose on plan administrators a discrete burden of explanation when they credit reliable evidence that conflicts with a treating physician's evaluation." Black Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003).

Moreover, even Ms. Skipp's treating physicians suggest that her noncompliance with medical advice may be at issue in her health. Hartford raises this question in the September denial letter when it notes Dr. Ali's statement that "in reading the office notes of Dr. Kelman, it does not fit with what the patient is telling me. . . . Given the psychiatric history of the patient and being inconsistent in regards to reflecting her medical status, I prefer [to obtain records from Johns Hopkins to determine the next course of treatment]." (Def's Mot. Summ. J. Ex. 9 at H00155.) A functional assessment of the claim contained in Ms. Skipp's file describes her as "chronically noncompliant." (Def's Mot. Summ. J. Ex. 22 at H00086.) Dr. Mir notes that Ms. Skipp had missed a follow-up appointment and decided to stop taking certain medications without informing his office. (Def's Mot. Summ. J. Ex. 22.) Dr. Mir also acknowledged that Ms. Skipp had told him she would not be returning to see him as a patient, nor would she be seeing Dr. Miller again; Dr. Ali noted a similar reaction of Ms. Skipp's regarding Dr. Anwar's treatment and Dr. Kelman's.

It should be noted that the tone of Dr. King's report is not at all dismissive of Ms. Skipp's serious health issues. Indeed, contrary to Ms. Skipp's allegations, he confirms that he is "almost certain" of the diagnosis of pseudotumor cerebri, but that it appeared at the time that "her pressure is fairly well controlled." (Def's Mot. Summ. J. Ex. 19 at H00229.) Drs. Mir and King disagree as to the status of Ms. Skipp's pseudotumor as of August 2005; Dr. Mir states that such a reading is "borderline high," (Pl's Mot. Summ. J. Ex. 23), but Dr. King notes that the level did not seem abnormal for a woman of Ms. Skipp's weight (Def's Mot. Summ. J. Ex. 19 at H000231). It is undisputed that the 25cm reading was the lowest since Ms. Skipp had originally been diagnosed with pseudotumor; by comparison, her reading in September 2003 was 27cm. (Pl's Mot. Summ. J. Ex. 23.) Cf. Guthrie v. National Rural Electric, 509 F.3d 644, 651-52 (4th Cir. 2007) (holding that denial of benefits was unreasonable where the claims administrator had evidence that the plaintiff was getting worse). Ms. Skipp claims that evidence of her now-elevated fluid levels is significant to disprove Dr. King's diagnosis of no abnormality, but concedes that the additional testing was done in August and December 2006 — long after Dr. King's review and report were completed. (Pl's Mot. Summ. J. at 20.)

Dr. King observes that Ms. Skipp's noncompliance may cause a recurrence of the pseudotumor but that "almost certainly this would be due to her noncompliance." This is consistent with Ms. Skipp's medical reports; Dr. Mir describes her symptoms as worse when she had failed to continue with the medications. It is true that Dr. King claimed that "when seen by Dr. Edmonds," Ms. Skipp "did not have evidence of optic disc swelling;" in Hartford's notes of Dr. Edmonds' last office visit with Ms. Skipp, swelling is noted, but is listed as "possible borderline." (Def's Mot. Summ. J. Ex. 31 at H00083.)

Crucially, Dr. King observes that "headaches of the severity that would preclude someone from working are quite infrequent in pseudotumor cerebri," (Def's Mot. Summ. J. Ex. 31 at H00232) and notes that at least one of her treating physicians (Dr. Miller) believed that the less done for these the better. Ms. Skipp claims that Dr. King "gives no medical basis for this opinion other than again his reliance [on the 25cm fluid reading]." (Pl's Mot. Summ. J. at 21.) Dr. King's report does reference, however, a search of the literature regarding pseudotumor prognosis; he notes that according to the one published article he found, Ms. Skipp "would be in the group that has done fairly well," supporting a conclusion that her headaches were not disabling. (Def's Mot. Summ. J. Ex. 19 at H00230.)

There is conflicting evidence on this record regarding Ms. Skipp's ability to return to work: Dr. Mir categorically states that she should not return to work; Dr. Edmonds may have given contradictory written and oral reports; Dr. King clearly believes Ms. Skipp can work; several other earlier physicians did not note any obstacle to her returning to work. It is not, however, "an abuse of discretion for a plan fiduciary to deny disability pension benefits where conflicting medical reports were presented." Elliot v. Sara Lee Corp., 190 F.3d 601, 606 (4th Cir. 1999). As the Fourth Circuit recently noted, the abuse of discretion standard "bites mainly in close cases." Evans, ___ F.3d at ___ It appears that this may be one of those cases. Although a different decisionmaker may have reached a different — even better — result, it cannot be concluded that the decision in this case, given the reports with which Hartford was presented, constituted an abuse of discretion.

Ms. Skipp's request that this court remand her case to the claims administrator for additional review must similarly be denied. Ms. Skipp argues that she was unfairly denied the ability to submit rebuttal evidence to Dr. King's review of her appeal. In support of this claim, she cites Abram v. Cargill, 395 F.3d 882 (8th Cir. 2005), in which the Eighth Circuit held that the full and fair review of a claim under ERISA requires an administrator to make appeal-level reports of medical consultants available to claimants during the course of their appeals. Id. at 886. There appears to be a split among the circuits as to this issue. See Abram, 395 F.3d 882; but see Metzger v. UNUM Life Insurance Co., 476 F.3d 1161, 1166-68 (10th Cir. 2007).

Full and fair review includes the administrator's obligation to review "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." 29 C.F.R. § 2560.503-1(h)(2)(iv) (2000). Moreover, a claimant must be provided access to "all documents, records, and other information relevant to the claimant's claim for benefits. Whether a document, record, or other information is relevant to a claim for benefits shall be determined by reference to paragraph (m)(8) of this section." Id. § 2560.503-1(h)(2)(iii). A document is relevant if it was "relied upon in making the benefit determination" or "submitted, considered, or generated in the course of making the benefit determination." Id. § 2560.503-1(m)(8).

Under the regulations, during Ms. Skipp's appeal, Hartford was obligated to review the documentation provided by Ms. Skipp in support of her claim — including the documents and reports that were not presented during the initial claim process. That Hartford did take these reports into account is evident from the November 2005 — January 2006 dialogue between Hartford and Ms. Skipp's counsel, during which Hartford explained to Mr. Bender that it would not begin the appeals process until Mr. Bender had submitted all supporting documentation. (Pl's Mot. Remand Ex. 22, 25, 26.) Similarly, Hartford was required to produce Dr. King's report after the appeal process had concluded. Hartford was under no obligation, however, to provide Ms. Skipp with a copy of Dr. King's report before her appeal was denied.

The Tenth Circuit's approach to this issue, in Metzger, is helpful and instructive. 476 F.3d at 1165-68. That court examined the production requirement in 29 C.F.R. § 2560.503-1(h)(2)(iii) and concluded that a plan administrator need only release documents relied upon during the initial benefit determination prio to its final decision on appeal. Id. at 1166. Documents "generated during the appeal process itself need be made available only after the decision on appeal." Id. In so concluding, that court considered other provisions in the regulations, which required that an administrator, "in deciding an appeal of any adverse benefit determination that is based in whole or in part on a medical judgment, . . . consult with a health care professional who has appropriate training and experience in the field of medicine involved in the medical judgment." Id. (quoting 29 C.F.R. § 2560.503-1(h)(3)(iii)). Because that section mandated consultation with health care providers, the court held that

"[p]ermitting a claimant to receive and rebut medical opinion reports generated in the course of an administrative appeal — even when those reports contain no new factual information and deny benefits on the same basis as the initial decision — would set up an unnecessary cycle of submission, review, re-submission, and re-review."

The Tenth Circuit found it significant that amendments to the regulations adopted in 2000 support its interpretation. Specifying the scope of "the required disclosure of 'relevant' documents will serve the interests of both claimants and plans by providing clarity as to plans' disclosure obligations, while providing claimants with adequate access to the information necessary to determine whether to pursue further appeal." Id. at 1167 (quoting ERISA Claims Procedure, 65 Fed. Reg. 70,246, 70,252 (Nov. 21, 2000) (emphasis added). Providing access to relevant documents before the appeal decision was made would not assist claimants in determining whether to pursue further appeal, "because claimants would not yet know if they faced an adverse decision." Id. at 1167.

The Metzger court rejected the Abram holding, noting that the case before the Eighth Circuit had arisen before the 2000 amendments to the regulations, and ultimately held that, unless appeal-level reports analyze evidence unknown to the claimant or contain new factual information or novel diagnoses, those reports do not need to be disclosed prior to an appeal decision. Id. at 1167-68. This is not inconsistent with the reasoning undergirding the Abram decision; the Eighth Circuit rejected the possibility of "meaningful dialogue between the claimant and the Plan administrators" when a "claimant is caught off guard when new information used by the appeals committee emerges only with the final denial." Abram, 395 F.3d at 886. Here, the claimant has submitted significant documentation regarding her claim ( see Pl's Mot. Remand Ex. 23), and the medical consultant's report hews closely to the language of her physicians' notes — indeed, the only "new" information relied upon by Dr. King appears to be a conversation with Dr. Mir which was consistent with his office notes, and a review of the medical literature. (Def's Mot. Summ. J. Ex. 19.) There was nothing in Dr. King's report that would have caught Ms. Skipp off guard, save perhaps for his ultimate conclusion. As such, Ms. Skipp's request for remand to the claims administrator must be denied.

CONCLUSION

For the foregoing reasons, Ms. Skipp's motion for summary judgment, or in the alternative, for remand, is denied except as to the period which was erroneously calculated as part of the eighteen-month cap on mental health disability benefits. Hartford's motion for summary judgment is granted except as to the same period. Ms. Skipp's motion to remand is denied and Hartford's motion to strike is granted. A separate Order follows.

ORDER

1. Lauren Marie Skipp's Motion to Remand (docket entry no. 20) is DENIED;

2. Hartford's Motion for Summary Judgment (docket entry no. 23) is GRANTED, except as to the two-and-a-half month period identified in the Memorandum;

2. Lauren Marie Skipp's Motion for Summary Judgment (docket entry no. 25) is DENIED, except as to the same period;

3. Hartford's Motion to Strike (docket entry no. 29) is GRANTED;

4. The Clerk shall CLOSE this case.