Greenwald v. Liberty Life Assurance Co. (932 F. Supp. 2d 1018, 2013)

MEMORANDUM AND ORDER

JOHN M. GERRARD, District Judge.

Plaintiff Todd Greenwald brings this case under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq. Greenwald asserts three claims for relief. His first claim is for benefits under the Wells Fargo Short-Term Disability Plan (the “STD Plan” or “the Plan”). Greenwald argues that Wells Fargo and Liberty Life Assurance Company of Boston erroneously denied his claim for STD benefits. Previously, the parties agreed to remand Greenwald’s second claim, for benefits under the Wells Fargo Long-Term Disability Plan (the “LTD Plan”), for administrative review. Filing 35. On remand, Liberty Life approved Greenwald’s claim for benefits under the LTD Plan, and the parties have since stipulated to dismiss this claim, with prejudice. See filings 60, 81, and 82. Greenwald’s third claim seeks statutory penalties under 29 U.S.C. § 1132(c) for Wells Fargo’s failure to produce certain plan documents.

The parties have agreed to resolve Greenwald’s pending claims as if cross-motions for summary judgment had been filed. See filing 40. Greenwald has also moved to strike (filing 54) portions of an affidavit submitted by defendants (filing 51-1). The Court has considered the pleadings, briefs, administrative record, and the parties’ additional evidence (filings 47 and 51). For the reasons discussed below, the Court finds that defendants’ decision to’ deny Greenwald’s claim for short-term disability benefits was not supported by substantial evidence, and summary judgment will be entered in favor of Greenwald on his first claim. That claim will be remanded for further administrative proceedings consistent with this opinion. The Court finds, however, that Liberty Life is not a proper defendant to that claim, and Greenwald’s first claim will be dismissed as to Liberty Life. The Court further finds that Greenwald is entitled to summary judgment on his claim for statutory penalties. Greenwald has also requested an award of attorney fees under § 1132(g)(1). He may be entitled to such an award, and the Court requests the parties to submit additional briefing on the issue. Finally, Greenwald’s motion to strike will- be denied as moot.

FACTUAL BACKGROUND

The STD Plan was a self-insured plan covered by ERISA; Wells Fargo was the Plan’s sponsor and administrator. Filing 48 at ¶ 3; filing 39-3 at 47, 145, 225. Liberty Life was the claims administrator for the STD Plan. Filing 48 at ¶ 2. Greenwald was a long-time employee of Wells Fargo and participated in the STD Plan. Filing 48 at ¶¶ 1, 7. He was employed as an “ITS Relationship Manager 2.” Filing 39 at 65; filing 39-1 at 148. He was responsible for, among other things, developing and maintaining customer relations for large and complex institutional trust accounts and ensuring that accounts met regulatory and internal banking requirements. Filing 48 at ¶ 5.

Greenwaid’s position required him to work 8 hours a day and 40 hours a week. Filing 39 at 85. Wells Fargo provided a description of the physical and mental demands of Greenwaid’s job. Filing 39 at 85. He was required to: “frequently” sit for 3 to 6 hours per day, “occasionally” walk 30 minutes to 3 hours per day, occasionally stand 30 minutes to 3 hours per day, and occasionally drive a car to meet with clients. Filing 39 at 85-86. When Greenwald drove to meet clients, the trips ranged from 110 to 800 miles round-trip. Filing 39-4 at 44. Greenwaid’s day-to-day duties mostly involved working on a computer, talking on the phone, and attending meetings. Filing 39 at 65.

Before moving to a more détailed discussion of the facts underlying this case, the Court will briefly summarize how the parties arrived before the Court. Greenwald has reported experiencing chronic lower back pain for at least the last 12 years. His back problems were the result of several factors, including scoliosis, muscle weakness in his right leg resulting from surgery to remove a tumor, and degenerative disc disease. Since 2005 he has been prescribed strong pain control medications, undergone multiple spinal surgeries, and participated in various forms of physical therapy.

Shortly before Greenwald filed the claim for STD benefits that underlies this case, he applied for and received STD benefits for an unrelated problem with his neck. On January 5, 2011, Greenwald underwent a planned surgery on his neck: a microdiscectomy and fusion at the C5-6 level. Filing 48 at ¶ 8. Greenwald applied for and received STD benefits from January 12 to January 17. Filing 48 at ¶ 8. Following surgery, he was released by his physician to return to work 4 hours per day from January 18 through January 31. Filing 48 at ¶ 9. Partial STD benefits were also approved for that period of time. Filing 48 at ¶ 9.

On February 1, 2011, Greenwald returned to work full time. Filing 48 at ¶ 10. Soon after returning to work, Greenwald found he could not perform his job duties. He claims that he experienced fatigue and severe pain as a result of problems with his back and right hip, as well as pain and numbness in his right leg. Filing 48 at ¶ 10. He also claims that the pain medications he was taking made it difficult to concentrate. Greenwald left work on February 23, after working a 5-hour day. Filing 48 at ¶ 10. On February 25, Greenwald reapplied for STD benefits. Filing 48 at ¶ 11. On March 28, his claim was denied on its first review by Liberty Life. Filing 39-1 at 109-112. Greenwald appealed, and the denial was affirmed by Liberty Life on May 2, and affirmed again on the final level of review by Wells Fargo on September 8. Filing 39 at 70-74; filing 39-4 at 17-19.

Before discussing Greenwald’s medical history, the Court will review the terms of the STD Plan. The Court will then provide a brief chronological summary of the medical records generated up to Greenwald’s February 25, 2011, application for STD benefits. It is worth noting, however, that when Greenwald first submitted his claim, he did not include the majority of these records. After the first denial, the medical records and defendants’ eligibility determinations follow a more predictable chronological path.

I. The STD Plan

The STD “Plan Document” and “Summary Plan Description” were contained in one “Benefits Book.” Filing 39-3 at 1, 9-48, 143-55, 209-226. Chapter 9 of the Benefits Book was entitled “Short-Term Disability Plan” and explained that it, together with “ ‘Chapter 1: An introduction to your benefits’ and ‘Appendix B: Legal notifications’ ... constitute^] the Summary Plan Description” for the STD Plan. Filing 39-3 at 12, 145. Chapter -1 explained that the Benefits Book contained summary plan descriptions for various benefit plans, but that these summaries could not “replace or change any provision of the-actual plan documents.” Filing 39-3 at 11 (emphasis supplied). And in the case of a conflict between the summary descriptions and “the official plan document,” the official plan document controlled. Filing 39-3 at 11. The Benefits Book also explained how employees could obtain copies of official plan documents. Filing 39-3 at 11. In actual fact, however, there was no separate “official” plan document for the STD Plan. Filing 47 at 4-5; filing 51-1 at ¶ 14.

Appendix B provided that, as plan administrator, Wells Fargo had “full discretionary authority to administer and interpret each plan and may delegate its duties and discretionary authority to certain designated personnel and third parties, including but not limited to the Director of Human Resources and the Director of Compensation and Benefits.” Filing 39-3 at 225.

The STD Plan would have replaced 100% of Greenwald’s “covered pay” for up to 26 weeks. Filing 39-3 at 151-52; filing 39-4 at 65. It was designed to provide employees with salary replacement if they had a “medically certified health condition,” which was defined as a disabling injury or illness that

[i]s documented by clinical evidence as provided and certified by an approved care provider. Clinical evidence may include medical records, medical test results, physical therapy notes, mental health records, and prescription records,

[and]

Prevents [the claimant] from performing the essential functions of [his] own job as regularly scheduled for longer than the STD waiting period.

Filing 39-3 at 145, 148. A condition was classified as “recurrent” if it “starts again within 30 calendar days after [the claimant has] been released to return to work” and was due to the “same cause or complication resulting from the initial medically certified health condition.” Filing 39-3 at 150. Defendants treated Greenwald’s current claim as a recurrent condition. Filing 57 at 10 n. 2. This did not affect his eligibility for benefits, but would have limited the total amount of benefits he could have received. Filing 39-3 at 150.

The STD Plan stated that it was Greenwald’s “responsibility to ensure that Liberty receives requested medical proof, which may include medical records, test results, and hospitalization recordsFiling 39-3 at 149. The Plan gave Liberty Life the right to request independent medical examinations,' as well as functional, psychological, rehabilitative, and vocational evaluations. Filing 39-3 at 150. Finally, the Plan stated that benefits could end before the maximum payout if, among other reasons, Greenwald failed to provide requested medical records or failed to provide “objective medical proof in a timely manner.” Filing 39-3 at 152.

II. Greenwald’s Past Medical History

Greenwald’s medical history reveals a long struggle with pain caused by complicated back and postural problems. At age 16, he was diagnosed with scoliosis, and in 2011, still had significant curvature in his spine. Filing 39-1 at 42, 81, 88; filing 39-4 at 38. In 1994, Greenwald had a tumor removed from his right upper leg. Filing 39 at 135, 150. This required excision of the anterior compartment of his right thigh, including the femoral nerve, which resulted in a loss of some femoral nerve function, paralysis of the hip flexors, and paresthesia in his right lower extremities. Filing 39 at 132, 135, 150. Greenwald also had significant weakness on his right side in his iliopsoas, quadriceps, and hip flexors, and weak right knee extension. Filing 39 at 132.

Greenwald has dealt with chronic lower back pain for at least the last 12 years. In August 2000, he met with Dr. Brandon Webb (his family physician) to discuss lower back pain. Filing 39-1 at 81. He stated that about twice a year his back would “go out” on him and cause sudden, intense pain. Filing 39-1 at 81. The pain was located in the right lower lumbar area and extended into the gluteal area and coccyx, with some pain radiating into the right lower extremity. Filing 39-1 at 81. It was worse when bending or getting up and down from a chair. Filing 39-1 at 81.

Beginning in January 2005, Greenwald met with several doctors to discuss worsening back pain. On January 11, 2005, he met with Dr. Randon Johnson of the Nebraska Medical Center’s Orthopedic Oncology Clinic. Filing 39 at 137. Greenwald described pain in the same areas as in 2000. Filing 39 at 137. It was present when sitting or standing, and he reported difficulty sitting or standing for long. Johnson noted that Greenwald- appeared uncomfortable when sitting for too long. Filing 39 at 137. An examination of his back showed point tenderness on the right side at the L2-L3 level, and one trigger point, produced electrical signals that radiated down the buttock and leg. X-rays taken that day showed mild to moderate degenerative changes of his right hip and severe degenerative changes at the L2-L3 level, with significant intervertebral narrowing. Johnson diagnosed him with degenerative disc disease.

On January 19, 2005, Greenwald met with Dr. Benjamin Gelber, a neurosurgeon. Filing 39 at 135. He again reported that sitting and standing worsened the pain, and that while lying down helped, he had to change position frequently. Filing 39 at 135. Gelber examined Greenwald and noted “considerable paraspinal muscle spasm bilaterally” and tenderness at the right sacroiliac (SI) joint. Gelber reviewed an MRI and found some changes in the upper lumbar spine, and a bulging disc at the L2 level, but no signs of nerve root compression or significant spinal stenosis. Filing 39 at 135; filing 39-1 at 5-7. Gelber concluded that the back pain was related to changes in postjure related to weakness in Greenwald’& quadriceps and iliopsoas muscles and “other degenerative changes in the spine” which caused a loss of sagittal balance and placed increásed stress on the SI joint and spine. Filing 39 at 135. Gelber did not think surgery was warranted and referred Greenwald to physical therapy and recommended a right SI joint injection (an “SI block”). Filing 39 at 133. Greenwald received the SI block, but it provided no relief. Filing 39 at 134.

On January 31, 2005, Greenwald met with Dr. David Diamant, a physical medicine and rehabilitation pain specialist. Filing 39 at 134. Diamant reviewed the MRI and noted degenerative disc disease, with a loss of hydration in the L4-5 and L5-S1 discs, a loss of height at L5-S1 and L2-3, and a broad-based bulge at L2-3. Diamant administered a second SI block that day.

On February 14, 2005, Greenwald met with Dr. Geoffrey McCullen, a neurosurgeon. Filing 39 at 132. The SI injections and physical therapy had failed to offer significant relief. Filing 39 at 132. McCullen observed that Greenwald was slow in moving from a seated position to standing, and had diffuse tenderness in the lumbosacral area.

Greenwald returned to McCullen on March 1, 2005, after undergoing a lumber discogram. Filing 39 at 131-32; filing 39-1 at 25-26. Like Gelber, McCullen concluded that Greenwald’s symptoms were likely the result of scoliosis and asymmetrical muscle function resulting from the surgery on his right hip. Filing 39 at 131. McCiillen concluded, “[ujnfortunately, there is no easy solution here.” Filing 39 at 131. Greenwald reported that his pain was severe enough that he could not work, and had been off work for 7 weeks. He also stated that the pain medications he was taking made it difficult to concentrate, and that the pain itself was distracting. He could .not sit or stand for long. McCullen noted that “[c]learly he would like to return to work,” but given.his reports of pain, did not believe he could return to work at that time. McCullen referred him to Dr. Mark Dekutoski, a spinal surgeon with the Mayo Clinic.

Greenwald met with Dekutoski beginning in April 2005. Filing 39 at 123. He reported that he could not walk more than 1 block at a time, or stand for more than 3 to 4 minutes at a time. Filing 39 at 123. He reported that his symptoms were worse when riding in a car and that he had difficulty falling asleep. Dekutoski agreed that Greenwald’s L2-3 disc was severely-degenerated and decided to treat it with a fusion. Filing 39 at 114-18. Dekutoski noted that it was “quite understandable” that Greenwald was reporting disabling pain, because his loss of leg muscle required “lumbar flexion for his hip thrust and leg thrust portions of his gait. This basically requires a significant dynamic mobility through this painful degenerative segment.” Filing 39 at 119. On May Í8, Dekutoski performed a L2-3 lumbar inter-body fusion. Filing 39 at 116-17.

Dekutoski’s notes reveal that, at some point around May. 2005, Greenwald was on temporary disability and “working to become on permanent disability for his back pain.” Filing 39 at 128. But the surgery succeeded in improving his right lower back pain. Filing 39 at 105. And following the surgery, Dekutoski advised Greenwald how to recover and return to work. Dekutoski noted that Greenwald was “severely deconditioned” and advised him to work diligently on aerobic conditioning, physical therapy, and strengthening. Filing 39 at 112. Greenwald later reported that he was pleased with the results of the surgery and physical therapy and was able to return to work. Filing 39 at 105.

On July 17, 2006, Greenwald again met with McCullen, this time reporting pain in his left leg. Filing 39 at 105. Although the surgery had helped with the right lower back pain, he reported that he had continued to experience pain in his left lower back which radiated into his left leg. Filing 39 at 105. McCullen noted that these symptoms could be caused by a problem at the L5 level. Greenwald had previously received an epidural steroid injection that did not offer lasting relief. McCullen concluded, “[ujnfortunately, there is no clear-cut option. The patient [has] multiple areas of. degenerative condition, any of which could be contributing” to the ongoing pain. McCullen urged him to focus on exercising and to keep his weight down. A week later, Greenwald received another epidural steroid injection at the left L5 level. Filing 39 at 104.

After more conservative treatment failed, Greenwald underwent a second spinal fusion on January 3, 2007, this time at the L5-S1 level. Filing 39-1 at 20; filing 39 at 100. At the follow-up appointment with McCullen on February 5, Greenwald reported that he felt he was making progress, but was in too much pain to return to work. Filing 39 at 100. McCullen forecast that he could return to work half-time in 4 weeks and full time after. another 3 weeks, and recommended more physical therapy.

Greenwald next saw McCullen on July 28, 2008. Filing 39-1 at 44. He had suffered an. acute onset of increasing back pain while bending over earlier in the month. Filing 39-1 at 20. The pain was located in his right back and groin and down the right leg, and he reported pain when moving and sitting down, and numbness in his right foot. Filing 39-1 at 20. McCullen reviewed an MRI and found that Greenwald’s right disc-was herniated at the L4-5 level, and that this was causing compression of the right L5 nerve root. Filing 39-1 at 44. Again, epidural steroid injections had provided only limited relief. Filing 39-1 at 44, 46. On August 5, Greenwald underwent a microdiscectomy at the right L4-5 level. Filing 39-1 at 20-23, 44, 83. On August 15, Greenwald met with McCullen’s physician assistant, Mike Koebernick. Greenwald reported that the pre-surgery pain was gone, and the numbness in his right foot was improving. Filing 39-1 at 40.

Greenwald next saw McCullen on June 24, 2009, again reporting back pain. Filing 39-1 at 39. An x-ray taken that day showed that his scoliosis had not progressed, and the L2-3 and L5-S1 fusions appeared stable. An examination revealed tight posterior muscles, especially on the left. McCullen concluded that the pain was possibly related to disc degeneration, and referred Greenwald to Dr. Phillip Essay, a pain management specialist.

On June 26, 2009, McCullen reviewed an updated lumbar MRI and xray of Greenwald’s scoliosis taken the day before. Filing 39-1 at 38, 88. He found no recurrent disc herniation at the L4-5 level, and no significant' stenosis. Filing 39-1 at 38. He found that there were “elements of degenerative disc change at multiple levels that appear to be mild-moderate.” McCullen’s only recommendation was to see a pain specialist and a psychologist.

In the fall of 2009, Greenwald injured his shoulder when reaching behind himself. Filing 39-1 at 62. He saw Webb in March 2010, who referred him to an orthopedist, Dr. Douglas Koch. Filing 39-1 at 34-36. Koch treated Greenwald with a cortisone injection in April 2010 and another in September 2010. Filing 39-1 at 33-36. Greenwald was still reporting pain in October, and on October 5, 2010, he met with Koebernick. Filing 39-1 at 32-33. He reported increasing pain in his neck, right shoulder, and right arm that had worsened since August. Filing 39-1 at 32. The pain extended into his upper arm and fingers. The cortisone injections had not provided significant relief, nor had prescription pain control medications. Koebernick noted that Greenwald’s symptoms were consistent with C6 radiculopathy.

Greenwald met with McCullen on November 9, 2010. Filing 39-1 at 30. McCullen noted cervical spondylolysis and neural foraminal narrowing at the right C5-6 level. McCullen and Greenwald decided on surgical treatment: an anterior cervical microdiscectomy at the C5-6 level. Filing 39-1- at 17-19. The surgery was performed on January 5, 2011. Filing 48 at ¶ 8.

Greenwald saw Koebernick on February 2, 2011, for a follow-up. Filing 39-1 at 29. Koebernick noted that overall, the surgery had gone well. It had resolved the pain and numbness in Greenwald’s right arm, although he still had some neck and intrascapular pain. Koebernick also noted that Greenwald was reporting “a lot of generalized aches and pains he has had this [sic] for years, as well as joint aches.” They discussed the possibility of a rheumatological problem.

February 23, 2011, was Greenwald’s last day of work. Filing 48 at ¶ 10. On February 25, he met with Webb to discuss problems with chronic pain. Filing.39 — 1 at 118. Greenwald reported that the • pain had become Worse over the last year, and had progressed to the point that he did not think he could work. He' stated that if he took enough medication to control the pain, he would not be able to focus or function; but without medication, the pain was too intense to focus. His sleep had also become worse, especially over the last month, because he could not find a comfortable position, due to pain in his neck, back, and right lower extremity. And at work, the pain and fatigue were such that he had to lie on the floor and avoid sitting or standing for periods of time. Filing 39-1 at 118. He was also experiencing paresthesia in his right lower extremity and had recently fallen down a few times as a result. Webb diagnosed him with chronic pain, scoliosis, history of right hip sarcoma, and degenerative disc disease (cervical and lumbar). ,

III. The Current Claim for STD Benefits

On February 25, 2011, Greenwald called Liberty Life to apply for STD benefits. Filing 39 at 62-63; filing 48 at ¶ 11. He summarized his medical history and ongoing back and leg pain and stated that these had progressed to the point where he was unable to work. Filing-39 at 62-63. He did not know what.his treatment plan was, as. Webb had simply told him to rest. Filing 39 at 62. And although he had visited a pain management clinic in the past, he was not doing so at that time. Filing 39 at 62-63.

Liberty Life sent a request for medical records to Webb, specifically for updated medical information from February 20, 2011, onward, including diagnostic test results. Filing 39 at 63; filing 39-1 at 128-31. Webb responded by sending a one-page summary of Greenwald’s February 25 office visit. Filing 39-1 at 118. This was the only evidence that was submitted in support of Greenwald’s claim.

Liberty Life referred Greenwald’s claim to Karen Hughes, a “Nurse Case Manager,” to review the medical records and Greenwald’s reported symptoms. Filing 39 at 62. Hughes found that Greenwald’s “restrictions and limitations” were not clear. Filing 39 at 62. She noted that no physical examination had been performed at the February 25, 2011, visit, and that Liberty Life had no records of any treatment plan, referrals to other providers, diagnostic studies, or prescriptions. Filing 39 at 62; see also filing 39-1 at 118. Hughes attempted to contact Webb by telephone but was unable to reach him. Filing 39 at 61-62. So, she mailed a letter to Webb requesting additional information, with a deadline of March 25. Filing 39 at 61; filing 39-1 at 113-15.

When'Webb did not respond, Liberty Life determined that Greenwald’s claim should be denied. Filing 39 at 60. Liberty Life found that Greenwald had failed to provide exam findings or diagnostic studies to corroborate his self-reported symptoms and that it was therefore unable to determine his restrictions and limitations. Filing 39 at 60; filing 39-1 at 110. Liberty Life notified Greenwald of its decision by letter dated March 28, 2011, and by phone the same day. Filing 39-1 at 109-12; filing 39 at 60. The denial letter informed Greenwald that if he wished to appeal, he should include “all documentation, such as office visit notes and diagnostic test results to include abnormal physical examination. findings that would prevent you from performing your job duties [and] any additional information which you feel will support your claim for continued benefits.” Filing 39-1 at 111.

On March 28, 2011, shortly after Greenwald was notified of the denial, Webb’s office faxed a response to Liberty Life’s request for information. Filing 39 at 59-60; filing 39-1 at 105-08. Liberty Life’s form had asked Webb to provide: (1) his specific diagnoses with results of diagnostic studies to support Greenwald’s reports of intense pain; (2) objective exam findings and testing to support Greenwald’s claims of cognitive deficits; (3) Webb’s objective physical exam findings, because no such exam was performed on February 25; (4) the specific restrictions and limitations that Webb was placing on Greenwald’s activities, with special instructions to address Greenwald’s ability to sit, stand, walk, lift, and bend; and (5) any treatment plan to improve Greenwald’s functional capabilities and any referrals to a comprehensive, pain management program. Filing 39-1 at 114-15. Despite the amount of information requested, the form stated that Webb should respond “directly on this letter.” Filing 39-1 at 114.

As Liberty Life had requested, Webb responded simply by filling out the form. He prefaced his response by stating that he was not a disability determination physician, but Greenwald’s long-time family doctor. Filing 39-1 at 107. He diagnosed Greenwald with scoliosis, degenerative disc disease (cervical and lumbar), and right hip sarcoma. Filing 39-1 at 107. In response to the request for diagnostic studies to support these conditions, he stated that he would be sending a copy of Greenwald’s medical records.

Webb asked what type of “objective exam” Liberty Life would like to see with regard to Greenwald’s claimed cognitive deficits. Filing 39-1 at 107. He wrote that his exam for a mental condition involved his “intuition and trust” in Greenwald, who he had seen for the past 12 years. In response to the request for “objective physical exam findings” Webb stated, “I can send you a recent exam from 12/10 or can have him come back for a focused exam of the areas you request. Again, I am not qualified to do official disability determinations or impairment ratings.”

Webb stated that Greenwald’s restrictions and limitations were such that he could not sit or stand for more than 30 minutes at a time, walking was limited by leg pain, and that he should avoid lifting more than 20 pounds due to his hip and lower back problems. . Filing 39-1 at 108. Webb’s plan to improve Greenwald’s functional capacities was “rest [and] pain management.” Filing 39-1 at 108. Greenwald had not been referred to a comprehensive pain management program, but Webb had discussed the option with him.

On March 29, 2011, Greenwald called Liberty Life and spoke with Kristina Houser, the “return-to-work specialist” handling his case. Filing 39 at 59; filing 52 at ¶ 4. He stated that he wished to appeal and expressed frustration with his condition. Filing 39 at 59. According to Houser’s notes of the call, Greenwald “kept asking what he needs to do” but she only advised that she could not recommend treatment and explained the appeals process. Greenwald stated that he had been trying to work with his conditions and pain for 15 years and there was nothing more his physicians could do for him. She also noted that he had “no treatment ... set up, no plan to get better or back to work. [Greenwald] said he simply cannot perform his job duties any longer

On April 1, 2011, Webb’s office called Houser to ask if and when he would receive answers to his questions about what kind of objective exámination 'Liberty Life was looking for regarding Greenwald’s cognitive deficits and whether it wanted the results of a December 2010 physical exam or a newer “focused” physical examination. Filing 39 at 59. Houser responded only that she was “not able to recommend treatment.” _ Filing 39 at 59. Thereafter Wébb faxed Liberty Life the entirety of the medical records discussed above. Filing 39-1 at 1-103; filing 39 at 97-150.

IV. Liberty Life’s Second Denial

Liberty Life referred Greenwald’s file to Nurse Case Manager Hughes for further review. Filing 39 at 58. Hughes noted that Greenwald had been released to return to work in January 2011 and that the records did not show a worsening of symptoms or change in medications since at least March 2010. Filing 39 at 58. Hughes was unable to determine if Greenwald’s conditions supported “long[-]term restrictions and limitations.” Liberty Life referred the claim to Dr. Eric Kerstman for an independent peer review. Filing 39 at 57, 76-77. Kerstman was certified in physical medicine and rehabilitation with a specialty in pain medicine. Filing 39 at 80. Liberty Life asked Kerstman to determine whether Greenwald’s conditions translated to restrictions and limitations on his ability to work, whether those restrictions were supported by medical evidence, and to specifically address how they affected his “sustained sedentary capacity.” Filing 39 at 83.

In conducting his review, Kerstman spoke briefly' with Webb. Webb repeated that he was not a disability expert and stated he had not outlined any specific restrictions or limitations and had no opinion regarding Greenwald’s work capacity or whether he was disabled. Filing 39 at 77. Kerstman called and spoke with Koebernick, who also stated that McCullen had placed no specific limitations or restrictions on Greenwald. Kerstman also reported that Koebernick had stated Greenwald’s “maximum work capacity is Sedentary Physical Demand Level.”

Kerstman reviewed Greenwald’s medical records and concluded that they supported diagnoses of chronic neck and lower back pain and scoliosis. Filing 39 at 79. Kerstman concluded that

[t]hese impairments translate to restrictions and limitations of lifting and carrying a maximum of 10 pounds occasionally, sitting for 30 minutes at a time, total sitting for 6 hours per day, standing for 15 minutes at a time, total standing for 1 hour per day, walking for 15 minutes at a time, total walking for 1 hour per day, occasional bending and squatting, occasional reaching overhead and below waist/desk level. No restrictions in reaching at waist/desk level. The claimant should have the ability to perform sustained sedentary capacity work.

The above restrictions are permanent. The above impairments, restrictions, and limitations are secondary to the claimant’s spine conditions and are supported by the, claimant’s symptoms and diagnostic testing.

Filing 39 at 78-79. Kerstman noted that Greenwald was taking OxyContin and Percocet. Filing 39 at 77. He also found that, although Greenwald claimed his pain medications interfered with his ability to focus and function, this was not supported by any objective evidence in the record. Filing 39 at 79.

After receiving Kerstman’s review, Liberty Life decided to uphold its denial of Greenwald’s claim. Filing 39 at 75. Liberty Life informed Greenwald of the decision in a letter dated May 2, 2011. Filing 39 at 70. The letter reviewed the terms of the Plan and the prior proceedings, and quoted extensively from Kerstman’s report. Filing 39 at 70-74. The letter noted that the physical demands of Greenwald’s job were sedentary in nature and concluded:

The current medical evidence contained in your file does not provide sufficient or current physical exam findings to correlate with a severe and impairing condition that would preclude you from performing sedentary activities, as your job requirements would fall within the parameters of the medically supported restrictions and limitations as outlined above.

Thus, in the absence of clinical evidence to support your inability to perform the sedentary activities consistent with those required to perform your job as an ITS Relationship Manager 2, you do not meet the definition of disability as of February 25, 2011.

Filing 39 at 71, 73.

V. Greenwald’s Final Administrative Appeal

On June 29, 2011, Wells Fargo received a letter from Greenwald, appealing the second-level denial of his benefits. Filing 3SM at 41-46. Greenwald had enclosed notes from recent visits to MeCullen and Koebernick; a personal narrative of his medical conditions, pain, and ongoing treatment; and a letter from Koebernick.

Greenwald met with Koebernick on April 29, 2011, shortly before his previously scheduled 3-month follow-up with MeCullen. Filing 39-4 at 38-39; filing 39-1 at 29. At the appointment, Greenwald reported increasing pain on the left and right upper thoracic and lumbar spine. Filing 39-4 at 39. Koebernick noted:

The patient has always worked through his pain in the past. He has been, seeing Dr. Essay for this issue as well as us and essentially has been piece-meal [sic] his back because from a true surgical fusion perspective, he would require a large undertaking more than likely from T2 to the sacrum fusion. In the past when I have talked to him [he] has always [said] that when he is at work, he was always able to lie down at times and get relief and then he could continue to work. Secondary to increasing pain on the right side primarily over the last several months, he is unable to work. He is taking more pain medication.

Filing 39-4 at 39. Greenwald also reported increased pain in his anterior thigh (the note does not specify which leg). While Koebernick’s physical examination was negative for some indicators of back pain, he did detect “a lot of spasm” above the L2-3 level and extending up into the thoracic spine, as well as some tenderness on both sides of the lumbosacral region, and “elements of a straight leg raise on the right.” Filing 39-4 at 39.

Greenwald met with MeCullen on May 3, 2011. Filing 39-4 at 38. MeCullen reviewed recently updated x-ray and MRI scans of Greenwald’s back. Filing 39-4 at 38, 44. He noted Greenwald’s scoliosis, which had not improved. The MRI revealed degenerative changes at L3-4 and L4-5, but no recurrent herniation at those points. Filing 39-4 at 38. MeCullen noted that Greenwald was in “moderate pain” and that he rose to his feet slowly. Filing 39^ at 38. MeCullen wrote: “[t]his is a very difficult situation in a person with chronic pain. He is not able to do his job at present because of the level of pain and the use of pain medications that are required to try to help manage the pain.” His recommendation was for Greenwald to take the next 6 months off of work to focus on pain management with Essay and to continue pool therapy.

In his June 24, 2011, letter to Wells Fargo, Greenwald also provided a personal narrative of his medical history, how his conditions were limiting his ability to work, and his course of treatment. Filing 39-4 at 41-46. In addition to the medical history discussed above, Greenwald noted that in 2009 he saw Essay for radiofrequency neurotomy treatment. Filing 39-4 at 42. This provided partial relief for about 6 months. Filing 39 — 4 at 42. The record contains no actual notes from Essay or his office.

Greenwald stated that during the past year, his pain had increased and it had become more and more difficult to work. Filing 39-4 at 42. As he stated:

This is due to a combination of pain in my lower and upper back, right leg, in addition to the psychological effects of my pain medications. Without adequate pain medication, I am unable to concentrate on my work responsibilities due to the intense pain. Unfortunately, I am faced with a Catch-22 because when I am using the pain medications, my cognitive thinking is greatly impaired.

Filing 39-4 at 42. Greenwald explained that sitting for any period of time was very painful. Filing 39-4 at 43 — 44. Driving to meet clients had become increasingly painful, and he had to pull over multiple times to recline his seat or stretch. Filing 39-4 at 44. He also felt that the pain medications he had been taking (ÓxyContin and Percocet) made driving a safety risk. Filing 39-4 at 44.

Greenwald explained that, at work, he could only sit for a brief time, and would then have to lie down on the floor or stand and stretch. Filing 39-4 at 44. Walking was also very difficult, and he could only walk briefly before having to sit or lie down. The pain also made it difficult to sleep, which caused him to be very sleepy most of the time. Filing 39-4 at 44.

Greenwald wrote that he had seen Essay again on May 9, 2011. Filing 39 — 4 at 44. According to Greenwald, Essay changed his pain medications from Oxy-Contin and Percocet to Opana ER and Lyrica. Fifing 39-4 at 44. Essay also prescribed aquatic therapy, which Greenwald was doing twice a week since mid-May. Fifing 39-4 at 45. He reported that the therapy was helping with his flexibility and energy, but had not helped with the pain. Fifing 39-4 at 45. Greenwald saw Essay again on June 9. Essay directed him to continue the pool therapy and increased the dosage of Opana ER. Greenwald reported that as of June 24, the medications had not proven effective. Fifing 39-4 at 44. He was scheduled to see Essay again in July and MeCullen in August. Fifing 39-4 at 45.

Although Greenwald did not include any records from Essay’s office, he did include Essay’s address and phone number, and invited Wells Fargo to contact Essay if it had any questions. Fifing 39-4 at 46. Greenwald did the same for Webb, McCullen, and his then-current physical therapist. Finally, Greenwald’s appeal packet included a letter from Koebernick dated June 21, 2011.' Fifing 39-4 at 36-37. Koebernick summarized Greenwald’s medical history and concluded that “we feel that [Greenwald] would be an excellent candidate to receive disability.” Filing 39-4 at 37.

Wells Fargo submitted Greenwald’s claim, including the newly submitted information, to Dr. J.K. Lilly, a medical consultant employed by Wells Fargo Insurance Services and a member of Wells Fargo’s Medical Advisory Board. Filing 45 at 1; filing 39^4 at 5. Lilly’s report began by stating that the question presented was whether Greenwald’s conditions supported “long-term restrictions and limitations.” Filing 45 at 1. He noted that Greenwald’s position required, among other things, sitting for 3 to 6 hours a day and “occasional” standing and walking, and that Greenwald occasionally had to drive to meet clients. Filing 45 at 1. Lilly then summarized Greenwald’s medical history, the administrative correspondence, and Greenwald’s symptoms. Filing 45 at 2-5. He carefully discussed Greenwald’s personal letter. However, Lilly’s otherwise comprehensive summary of the medical records does not reveal whether he read or considered the most recent notes from McCullen and Koebernick.

Lilly noted Greenwald’s diagnoses and symptoms, including his reports of persistent neck and lumbar pain. Filing 45 at 6. He stated that these allegations of pain were supported by “the fact that there is diffuse cervical facet arthrosis and diffuse lumbar facet arthrosis. The lumbar arthrosis is possibly attributed to the counter-curve phenomena associated with scoliosis.” And, he noted, the record contained frequent mention, from MRI, CT, and x-ray scans, of disc desiccation, osteophyte formation, and degenerative spine changes. Finally, he stated that practically- every examiner noted Greenwald was reporting significant pain, and from 2010- onward, mentions of pain were “present in every note available for review.” (Emphasis in original.)

However, he went on to find

[u]nfortunately, what is not [sic] missing is significant objective measurements, such as might be found in a functional capacity evaluation or an occupational medicine evaluation when performed for return-to-work or fit-for-duty examination. The patient’s subjective complaints of pain and fatigue appear to be validated by [Webb, McCullen, and Koebernick]. Nonetheless, these are subjective, and the objective findings are scant, other than reports of atrophy and muscle weakness.

With regard to functional limitations, it is apparent that Primary Care Physician, Dr. Webb, is not and will not provide functional limitations since he is quite candidly “not a disability determination or impairment determination physician.” These were not offered by Dr. McCullen either, and the question is begged, should a formal evaluation be performed so as to determine any functional limitations based on a formal evaluation of cervical, thoracic, lumbar, and right lower extremity impairments as compared to the work requirements of the job description previously referenced. Second, an impairment rating by a skilled and experienced independent medical evaluator with proven skill interpreting the AMA Guides for Estimation of Permanent Impairment is certainly desirable in this case.

Filing 45 at 6 (italics in original, underlining supplied).

Lilly recommended, that such an evaluation could be used to decide whether to retire from the workforce, and in support of an application for Social Security disability benefits. Filing 45 at 6-7. Finally, the evaluation could be “presented to the Long-Term Disability Determination Board for consideration regarding whether or not the combined impairments reach the threshold for long-term disability eligibility.” Filing 45 at 7 (emphasis supplied).

Lilly then concluded:

At this time with the extensive records available for review, I find myself grudgingly compelled to agree that there is very little objective data contained in a rather exhaustive and well documented health care management history for complex spine, joint, and cancer disease management. Because of the limitations of the plan and the type of opinion this examiner is asked to provide, I can say that the determination for benefits is not supported by objective evidence in the medical documentation as per wording in the plan.

The claimant has made a good argument regarding his capabilities to perform his work and the subsequent liabilities that might occur if he were required to work in a compromised fashion. Therefore, he should be allowed to obtain a functional capacity evaluation with comparison to his job demands and an impairment rating by a skilled and experienced evaluator, such as an occupational and environmental medicine specialist or an independent medical evaluator with skill and experience in musculoskeletal disease management. Once these tests are available, the claimant may approach the Long-Term Disability Board for consideration.

Filing 45 at 7 (emphasis supplied).

By a letter dated September 8, 2011, the Wells Fargo Short-Term Disability Appeal Committee notified Greenwald that it had decided to uphold the denial of his claim. Filing 31M: at 17. The letter quoted extensively from Lilly’s report (although it omitted Lilly’s recommendation that Greenwald obtain a functional capacity evaluation and use it to apply for long-term disability and Social Security benefits). Filing 39-4 at 17-19. The letter also omitted Lilly’s “grudging” agreement. It concluded that Greenwald’s claim was not supported by “objective evidence,” such as might be found in a functional capacity evaluation. Filing 39^1 at 19. Like Lilly’s report, the letter did not make clear if the Committee had reviewed Greenwald’s most recent visits with McCullen and Koebernick.

After the final denial of benefits, Greenwald asked Wells Fargo to provide copies of documents pertaining to his claim and the documents governing the STD and LTD Plans. The Court will discuss these facts in conjunction with Greenwald’s third claim, for penalties under § 1132(c).

STANDARD OF REVIEW

I. Summary Judgment Standard

Summary judgment is proper if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56. The movant bears the initial responsibility of informing the Court of the basis for the motion, and must identify those portions of the record which the movant believes demonstrate the absence of a genuine issue of material fact. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir.2011) (en banc). If the movant does so, the nonmovant must respond by submitting evidentiary materials that set out specific facts showing that there is a genuine issue for trial. Id.

On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts. Id. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the evidence are jury functions, not those of a judge. Id. But the nonmovant must do more than simply show that there is some metaphysical doubt as to the material facts. Id. In order to show that disputed facts are material, the party opposing summary judgment must cite to the relevant substantive law in identifying facts that might affect the outcome of the suit. Quinn v. St. Louis County, 653 F.3d 745, 751 (8th Cir.2011). The mere existence of a scintilla of evidence in support of the nonmovant’s position will be insufficient; there must be evidence on which the jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782, 791-92 (8th Cir.2011). Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial. Torgerson, 643 F.3d at 1042.

II. ERISA

A. De Novo or Deferential Review

Where an ERISA-covered plan gives the plan’s administrator discretionary power to construe ambiguous terms or make eligibility determinations, the administrator’s decision is reviewed for an abuse of discretion. Hankins v. Standard Ins. Co., 677 F.3d 830, 834 (8th Cir.2012). Otherwise, the Court reviews the administrator’s decision de novo. Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). The parties dispute which standard of review should apply.

Greenwald argues that the STD Plan did not contain a grant of discretionary authority, and that even if Wells Fargo had discretionary authority, it was not properly delegated to the Short-Term Disability Appeal Committee that actually denied his claim. He also contends that a stray sentence in the final denial letter shows that Wells Fargo improperly delegated its decisions to the Wachovia Short-Term Disability Appeal Committee. As the Court explains below, all three arguments are without merit: the' STD Plan did grant Wells Fargo discretionary authority, that authority was properly delegated to the Committee, and there is no evidence that Wachovia was involved in deciding Greenwald’s claim. So, the Court reviews the decision under an abuse of discretion standard.

As noted above, Appendix B of the Benefits Book provided that as plan administrator, Wells Fargo had “full discretionary authority to administer and interpret each plan and may delegate its duties and discretionary authority to certain designated personnel and third parties, including but not limited to the Director of Human Resources and the Director of Compensation and Benefits.” Filing 39-3 at 225. Greenwald argues that because this grant of authority was contained only in the summary plan description, it was not controlling. He relies upon Jobe v. Medical Life Ins. Co., 598 F.3d 478 (8th Cir.2010), for the proposition that “a grant of discretion to the plan administrator, appearing only in a summary plan description, does not vest the administrator with discretion where the policy provides a mechanism for amendment and disclaims the power of the summary plan description to alter the plan.” Id. at 484; see also Ringwald v. Prudential Ins. Co. of America, 609 F.3d 946 (8th Cir.2010). But Jobe is inapposite, because in the present case, the summary description and Plan are one and the same. And “[wjhere no other source of benefits exists, the summary plan description is the formal plan document, regardless of its label.” Admin. Comm. of Wal-Mart Stores, Inc. Associates’ Health and Welfare Plan v. Gamboa, 479 F.3d 538, 544 (8th Cir.2007).

This is true even though the Benefits Book labeled itself the summary plan description, referred to separate “official” plan documents, and stated that the “official” plan documents were to control in the event of any conflict with the summary plan description. Id. at 543-45; see filing 39-3 at 11, 145. That is because Greem wald has not come forward with any evidence that there was a separate “official plan document.” Instead, the record shows that there were only the documents contained in the Benefits Book. Defendants have submitted an affidavit from Harriet Michael, the Wells Fargo employee who managed the second-level appeal process of Greenwald’s STD claim and was responsible for responding to requests for documents under the STD Plan. Filing 51-1 at ¶¶ 1-4. Michael stated that there were no formal plan documents for the STD Plan other than the Benefits Book, and that chapters 1 and 9 of the Benefits Book, along with appendix B, functioned as both the summary plan description and formal plan document. Filing 51-1 at ¶ 14. Greenwald has moved to strike these statements, arguing that on his claim for benefits, the Court is limited to considering the administrative record, and that Michael’s statements are improper legal conclusions.

Greenwald’s first evidentiary argument is correct as a general matter: under ERISA, the Court’s review is generally limited to the administrative record. Under an abuse of discretion standard, this restriction is mandatory. Brown v. Seitz Foods, Inc., Disability Ben. Plan, 140 F.3d 1198, 1200 (8th Cir.1998); see also Ferrari v. Teachers Ins. and Annuity Ass’n, 278 F.3d 801, 807 (8th Cir.2002). Under de novo review, considering outside evidence is discouraged, in order to “ensure expeditious judicial review of ERISA benefit decisions and to keep district courts from becoming substitute plan administrators.” Seitz Foods, 140 F.3d at 1200. However, limited discovery is allowed to determine the appropriate standard of review. Farley v. Arkansas Blue Cross and Blue Shield, 147 F.3d 774, 776 n. 4 (8th Cir.1998). Michael’s affidavit fits comfortably within this exception. And to the extent that Michael is stating whether or not another document existed, she has provided statements of fact, not legal conclusions.

The outcome would be the same if the Court refused to consider Michael’s statements. Greenwald has failed to produce any other “official” Plan document. He argues that chapter 9 of the Benefits Book, which described the STD Plan, should be considered the formal plan document, because the chapter is titled “Short-Term Disability Plan.” This argument is without merit. Chapter 9 repeated the statement from chapter 1, that it, along with chapter 1 and appendix B, made up the summary plan description. Filing 39-3 at 145. So, chapter 9 itself made clear that it was only part of the summary plan description, and that the appendix (and the grant of discretion it contained) was also part of the summary plan description. And since the summary plan description was the only source of benefits, it was the Plan. Gamboa, 479 F.3d at 542.

Greenwald next argues that, even if the grant of discretion in the appendix was effective, Wells Fargo did not properly delegate that authority to the Short-Term Disability Committee. Absent a proper delegation of authority, the Committee’s decision would not be entitled to deferential abuse-of-discretion review. See, Maher v. Massachusetts General Hosp. Long Term Disability Plan, 665 F.3d 289, 291 (1st Cir.2011); Sharkey v. Ultramar Energy Ltd., Lasmo plc, Lasmo (AUL Ltd.), 70 F.3d 226, 229 (2d Cir.1995); Madden v. ITT Long Term Disability Plan for Salaried Employees, 914 F.2d 1279, 1283-84 (9th Cir.1990). Greenwald seizes on the fact that while the grant of discretion contained in the appendix authorized Wells Fargo to delegate its authority to certain designated parties, it did not explicitly refer to the Appeal Committee. Greenwald argues that de novo review is appropriate because the Plan does not mention the Committee, and because there is nothing in the record expressly stating that such a delegation occurred.

But as a corporation, Wells Fargo could only act through its agents and employees, and the Court finds that the Appeal Committee was acting as an agent of Wells Fargo when it denied Greenwald’s' benefits. The Committee’s decision was written on Wells Fargo letterhead and was signed “Donna McMillan for Wells Fargo Short-Term Disability Appeal Committee.” Filing 39-4 at 17-19 (emphasis supplied).- There is no indication that McMillan or the Committee were not acting as Wells Fargo’s agents' when they denied Greenwald’s claim. Zurndorfer v. Unum Life Ins. Co. of America, 543 F.Supp.2d 242, 256-57 (S.D.N.Y.2008). A plan “need not spell out in intricate detail who has the discretion, other than to specify that those charged with implementing it will have such discretion.” Butts v. Continental Cas. Co., 357 F.3d 835, 838 (8th Cir.2004).

Finally, the last denial letter from Wells Fargo stated, “The Wachovia Short Term Disability Appeal Committee reviewed your appeal request . . [and] upholds the denial decision rendered by Liberty....” Filing 39-4 at 17 (emphasis supplied). Greenwald argues that, if Wachovia was somehow involved in the decision to deny his claim, the decision was not entitled to deference. But the vastly more reasonable explanation is that this was simply a typographical error. Again, the denial letter was printed on Wells Fargo letterhead and signed by Donna McMillan as a Wells Fargo employee. Filing 39-4 at 17, 19.

In sum, the Court finds that the STD Plan conferred discretionary authority upon Wells Fargo, which was delegated to and exercised by the Wells Fargo Short-Term Disability Appeal Committee in denying Greenwald’s claim. Accordingly, the abuse of discretion standard applies.

B. Abuse of Discretion Standard

To determine whether a plan administrator’s decision was an abuse of discretion, the Court examines whether the decision was reasonable and supported by substantial evidence. Green v. Union Sec. Ins. Co., 646 F.3d 1042, 1050 (8th Cir.2011); Manning v. American Republic Ins. Co., 604 F.3d 1030, 1038 (8th Cir.2010). Substantial evidence is more than a scintilla but less than a preponderance. Green, 646 F.3d at 1050. A decision should be upheld if a reasonable person could have reached a similar decision, given the evidence before him; the Court need not find that a reasonable person would have reached that decision. Id. In other words, when a plan administrator offers a reasonable explanation for its decision, supported by substantial- evidence, the decision should not be disturbed. Ratliff v. Jefferson Pilot Fin. Ins. Co., 489 F.3d 343, 348 (8th Cir.2007).

When evaluating whether a decision was an abuse of discretion, the Court should consider the impact of any conflict of interest on the part of the administrator. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008); Manning, 604 F.3d at 1038. A “structural” conflict of interest exists when the same entity both determines eligibility for benefits and pays benefits out of its own pocket. Glenn, 554 U.S. at 108, 128 S.Ct. 2343. If such a conflict is present, the Court should consider it as a factor in determining whether the plan administrator abused its discretion. Manning, 604 F.3d at 1038. The significance of this factor depends on the particular circumstances of the case. Glenn, 554 U.S. at 117, 128 S.Ct. 2343. It will prove more important where circumstances suggest a higher likelihood that the conflict affected the benefits decision, such as where an administrator -.has a history of biased claims administration. Id. Conversely, when an insurer has taken steps to reduce the risk that the conflict will affect eligibility determinations, the conflict should be given much less weight. Id. Where there is a conflict, but the record contains no evidence regarding its impact, the Court should give the conflict ‘‘some weight.” Manning, 604 F.3d at 1039. And in a close case, a conflict may act as a tiebreaker. Glenn, 554 U.S. at 117, 128 S.Ct. 2343.

Defendants concede that Wells Fargo was responsible both for making eligibility determinations and providing benefits under the STD Plan, and that there existed a structural conflict as defined by Glenn. Filing 52 at 66. Neither party has offered evidence that the conflict was more or less likely to have affected Wells Fargo’s decision. So, the Court gives the conflict “some weight” in its analysis.

C. Less Deferential “Sliding Scale” Review

The Court’s review under the abuse of discretion standard will become less deferential if the claimant can present material, probative evidence that a serious “procedural irregularity” existed, which caused a “serious breach of the plan administrator’s fiduciary duty to the claimant.” Manning, 604 F.3d at 1038; Woo v. Deluxe Corp., 144 F.3d 1157, 1162 (8th Cir.1998), abrogated on other grounds by Glenn, 554 U.S. 105, 128 S.Ct. 2343. The second prong of Woo presents a “considerable hurdle” for plaintiffs. Torres v. UNUM Life Ins. Co. of America, 405 F.3d 670, 679 (8th Cir.2005). The irregularities must have been so egregious as to trigger a “total lack of faith in the integrity of the decision making process.” Chronister v. Baptist Health, 442 F.3d 648, 655 (8th Cir.2006). If that hurdle is cleared, the Court applies a “sliding scale” approach to its abuse of discretion review: the more serious the procedural irregularity, the less deference the Court will afford the administrator’s decision. Woo, 144 F.3d at 1162. Correspondingly, the Court will require more evidence in support of the administrator’s decision, and in particularly egregious cases, this may require “substantial evidence bordering on a preponderance.” Id.

Greenwald argues that numerous procedural irregularities marred defendants’ review of his claim. He does not separately analyze these alleged irregularities under the Woo standard. Instead, he argues that each alleged shortcoming was both a procedural irregularity (entitling him to a less deferential standard of review) and a factor to be considered under the abuse of discretion analysis. As explained below, the Court has reviewed the claimed errors and finds that none rise to the level of a procedural irregularity.

ANALYSIS

I. Greenwald Claim for Benefits Under the STD Plan

A. Procedural Irregularities

Greenwald first attempts to cast doubt on Lilly’s competence to conduct a review of his medical record, and claims that Wells Fargo erred in relying on Lilly’s report. This argument is without merit and quickly disposed of. Greenwald’s remaining arguments have more heft. Taken together, they may be summarized as follows. Greenwald asserts that. defendants erred by requiring objective evidence of the effects of his conditions, because the Plan did not require objective evidence and because his conditions were inherently subjective. Greenwald argues that this abuse of discretion was magnified when defendants rebuffed his attempts to determine what sort of objective evidence they were looking for. And while Wells Fargo eventually told Greenwald that it was looking for a functional capacity evaluation, it waited to do so until after it denied his final appeal, when it was too late for him to provide any evaluation. Finally, Greenwald faults defendants for crediting the reports of Kerstman and Lilly over his treating physicians.

1. Lilly’s “Professional Woes”

Greenwald argues that Wells Fargo erred in relying on Lilly’s report, because