Full Opinion (html_with_citations)

                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 21-1772
                         ___________________________

                                 Michael Avenoso

                                       Plaintiff - Appellee

                                         v.

                    Reliance Standard Life Insurance Company

                                    Defendant - Appellant
                                  ____________

                     Appeal from United States District Court
                          for the District of Minnesota
                                 ____________

                           Submitted: October 20, 2021
                            Filed: November 30, 2021
                                  ____________

Before GRUENDER, ERICKSON, and STRAS, Circuit Judges.
                         ____________

GRUENDER, Circuit Judge.

      The Reliance Standard Life Insurance Company denied Michael Avenoso’s
claim for long-term disability benefits after concluding that he retained sedentary-
work capacity. Avenoso sued, arguing that the denial violated the Employee
Retirement Income Security Act of 1974 (“ERISA”) § 502(a)(1)(B),
29 U.S.C. § 1132
(a)(1)(B). The district court 1 granted Avenoso’s motion for summary
judgment, and Reliance appeals. We conclude that although the district court erred
by resolving factual disputes on summary judgment, the error was harmless.
Accordingly, we affirm.

                                          I.

      Until July of 2016, Avenoso worked as a maintenance supervisor. Through
his employer, he had long-term disability insurance under a policy issued by
Reliance and governed by ERISA. The policy provided two years of benefits if the
claimant showed that he was unable to perform the material duties of his current
occupation. The policy provided continued benefits after two years if the claimant
showed that he was unable to perform the material duties of any occupation.

       In July of 2016, Avenoso left his job as a maintenance supervisor due to
lower-back pain. Two months later, he underwent back surgery. In early 2017,
Avenoso claimed and Reliance approved two years of benefits because Avenoso was
disabled from his occupation as a maintenance supervisor. At the end of the two
years, however, Reliance informed Avenoso that it would discontinue benefits
payments because Avenoso had not shown that he was unable to perform the
material duties of any occupation. According to Reliance, Avenoso retained
“sedentary work function,” defined as “the ability to exert up to 10 pounds of force
occasionally and/or a negligible amount of force frequently to lift, carry, push, pull,
or otherwise move objects” during a work day that “involves sitting most of the time,
but may involve walking or standing for brief periods of time.” See
20 C.F.R. § 404.1567
(a).

      Avenoso appealed within Reliance’s claims department. He explained that he
had been unable to submit proof of his condition in the form of an electromyogram


      1
        The Honorable Wilhelmina M. Wright, United States District Judge for the
District of Minnesota.

                                         -2-
(“EMG”) or an MRI because an EMG would be too painful; he could not sit, stand,
or lie still for the time required to perform an MRI; and in any case, he could not
drive to a testing site more than fifteen minutes away “without the pain becoming
intolerable.” Ultimately, Avenoso did submit to an MRI, and the results appeared
relatively mild. But Avenoso also sent Reliance a note from his physician, Dr. Cyrus
Vosough, recommending that Avenoso “avoid lifting, bending and prolonged
sitting” due to his lower-back condition. In addition, Avenoso sent Reliance letters
describing his pain and photographs showing handrails in his living space to assist
with mobility. He noted as well that he was receiving disability-insurance payments
from the Social Security Administration. Social-security disability benefits are
reserved for those whom the Social Security Administration deems unable “to
engage in any substantial gainful activity.”
42 U.S.C. § 423
(a)(1)(E), (d)(1)(A).

      Avenoso also drove thirty-five minutes each way to receive a “functional-
capacity evaluation” (“FCE”). The physical therapist who performed the FCE noted
that “Avenoso demonstrated . . . movement and muscle recruitment patterns that
were inconsistent when aware and unaware of observation.” Accordingly, the
physical therapist noted that “[t]he capabilities outlined [in her report] would be
considered to be Michael Avenoso’s minimal functional ability level.” Nonetheless,
the physical therapist concluded:

      The results of this evaluation indicate that Michael Avenoso did not
      demonstrate an ability to tolerate an 8 hour work day . . . . His ability
      level would be 2-3 hours at this time. . . . He did not demonstrate an
      ability to safely perform any lifting, carrying or pulling functional tasks
      due to impaired standing balance.

      As part of its evaluation of Avenoso’s appeal, Reliance contracted with
Medical Consultants Network to arrange an independent medical evaluation.
Medical Consultants Network hired Dr. Jeffrey S. Liva to perform the evaluation.
Dr. Liva concluded that Avenoso retained sedentary-work capacity and was “able to
work 8 hours a day, 40 hours a week.” Furthermore, during the examination, Dr.
Liva observed that Avenoso exhibited “uncontrolled shaking” which “completely


                                         -3-
stopped” after about fifteen minutes. Noting that “there is no physiological . . .
explanation for this,” Dr. Liva concluded that Avenoso was engaging in “symptom
magnification.”

      Reliance also arranged for a vocational-rehabilitation specialist to perform a
residual-employability analysis based on Avenoso’s medical records, educational
background, work history, and other information. The specialist identified five
“viable sedentary occupational alternatives” consistent with “Avenoso’s physical
capacities.”

       On August 8, 2019, Reliance upheld its denial of long-term disability
benefits. Avenoso sued, claiming that the denial violated ERISA. Both parties
moved for summary judgment. The district court granted Avenoso’s motion and
denied Reliance’s motion. Reliance appeals.

                                         II.

       “We review de novo a district court’s grant of summary judgment.” Riedl v.
Gen. Am. Life Ins.,
248 F.3d 753, 756
 (8th Cir. 2001). Summary judgment is proper
only if “there is no genuine issue as to any material fact” and “the moving party is
entitled to judgment as a matter of law.”
Id.
 This means that a district court should
“not weigh the evidence, make credibility determinations, or attempt to discern the
truth of any factual issue.” Great Plains Real Est. Dev., L.L.C. v. Union Cent. Life
Ins.,
536 F.3d 939, 943-44
 (8th Cir. 2008). Although the district court must
determine whether there is a “genuine issue as to any material fact,” Riedl,
248 F.3d at 756
, this is a legal determination, Hoyt v. Lane Constr. Corp.,
927 F.3d 287
, 299
n.5 (5th Cir. 2019).

     Here, the district court recited the familiar rules governing summary-
judgment proceedings. See Avenoso v. Reliance Standard Life Ins., No. 19-cv-2488,
2021 WL 1140205
, at *1 (D. Minn. Mar. 25, 2021) (acknowledging that summary
judgment is reserved for cases where the movant is entitled to “judgment as a matter


                                         -4-
of law” because there is “no genuine dispute as to any material fact”). But it did not
follow them. Instead, it weighed the evidence,
id. at *2-6
, made a determination as
to the credibility of Avenoso’s accounts of his condition,
id. at *5
, and made findings
on disputed factual questions,
id. at *2-6
. In short, the district court adjudicated the
parties’ summary-judgment motions as if it were ruling in a bench trial.

       Avenoso defends this procedure by arguing that, in ERISA-benefits cases,
summary judgment is merely a vehicle for submitting the case to the district court
for decision on the administrative record. That is the law in the First Circuit, which
has created an exception from ordinary summary-judgment procedures for
challenges to the denial of ERISA benefits. See, e.g., Doe v. Harvard Pilgrim Health
Care, Inc.,
974 F.3d 69, 72
 (1st Cir. 2020) (holding that “a summary judgment
motion in a lawsuit contesting the denial of benefits under ERISA is simply a vehicle
for teeing up the case for decision on the administrative record” and thus “the district
court . . . may weigh the facts” and “resolve conflicts in evidence”). But that is not
the law in this circuit. See Riedl,
248 F.3d at 754, 756
 (holding in an ERISA-benefits
case that “summary judgment is inappropriate when the record permits reasonable
minds to draw conflicting inferences about a material fact”); accord O’Hara v. Nat’l
Union Fire Ins. Co. of Pittsburgh,
642 F.3d 110, 116
 (2d Cir. 2011); Patton v.
MFS/Sun Life Fin. Distribs., Inc.,
480 F.3d 478
, 484 n.3 (7th Cir. 2007); Shaw v.
Conn. Gen. Life Ins.,
353 F.3d 1276, 1282, 1286
 (11th Cir. 2003); Kearney v.
Standard Ins.,
175 F.3d 1084, 1096
 (9th Cir. 1999) (en banc); Wilkins v. Baptist
Healthcare Sys., Inc.,
150 F.3d 609, 619
 (6th Cir. 1998).

       To be sure, in cases where the ERISA plan confers discretionary authority on
the administrator, we have likened bench trials on the administrative record to
summary judgment. E.g., Riddell v. Unum Life Ins. Co. of Am.,
457 F.3d 861, 864
(8th Cir. 2006). But this is because the court of appeals treats a bench trial in such
a case like summary judgment by reviewing the district court’s judgment de novo,
see
id.,
 not because the district court may treat summary judgment in such a case
like a bench trial by resolving factual disputes, see Werdehausen v. Benicorp Ins.,
487 F.3d 660, 664-65
 (8th Cir. 2007) (reiterating in a case where the administrator


                                          -5-
had discretionary authority that “a genuine issue of disputed fact” precludes
summary judgment).

        Furthermore, our treatment of bench trials like summary judgment is limited
to cases where the administrator had discretionary authority. Normally, if the
administrator had discretionary authority, then the district court must uphold its
decision if it is one that “a reasonable person could have reached” on the
administrative record. Cash v. Wal-Mart Grp. Health Plan,
107 F.3d 637, 641
 (8th
Cir. 1997) (emphasis omitted). Thus, a bench trial where the administrator had
discretionary authority normally involves the same kind of purely legal inquiry that
summary judgment does—an inquiry that asks whether, on the applicable record, a
reasonable factfinder could reach a certain outcome. Compare
id.
 with Great Plains
Real Est.,
536 F.3d at 943-44
 (explaining that the question on summary judgment is
whether “the evidence is sufficient to allow a reasonable jury verdict for the
nonmoving party”). It makes sense, then, for the court of appeals to treat a bench-
trial judgment where the administrator had discretionary authority like a grant of
summary judgment by reviewing it de novo. See Riddell,
457 F.3d at 864
; cf.
Bacchus Indus. v. Arvin Indus.,
939 F.2d 887, 891
 (10th Cir. 1991) (explaining that
appellate review of summary judgment is de novo “[b]ecause summary judgment
involves purely legal determinations”).

       Not so in a case like this, where the parties agree that the administrator lacked
discretionary authority. The district court reviews the decision of an administrator
who lacked discretionary authority de novo, acting as factfinder on the
administrative record. See Johnson v. United of Omaha Life Ins.,
775 F.3d 983
, 986-
87 (8th Cir. 2014). As a result, a bench trial where the administrator lacked
discretionary authority is not, like summary judgment, a purely legal exercise.
Accordingly, we do not treat it as such but instead “review the district court’s
findings of fact under our customary clearly erroneous standard.”
Id. at 987
(brackets omitted).




                                          -6-
       For multiple reasons, then, the considerations that warrant our treating a bench
trial where the administrator had discretionary authority like summary judgment do
not justify what the district court did here, which was to treat summary judgment
where the administrator lacked discretionary authority like a bench trial.

       Finally, we address Avenoso’s objection that insisting on ordinary summary-
judgment procedures in this context is a mere formality that “would result in constant
judicial inefficiency” and make “district court proceedings nothing more than a
practice round.” It is true that “there is no right to trial by jury” in a suit “to recover
present or future benefits under ERISA,” Howe v. Varity Corp.,
36 F.3d 746
, 750
n.2 (8th Cir. 1994), and normally the district court must limit its review to the
administrative record, see Brown v. Seitz Foods, Inc., Disability Benefit Plan,
140 F.3d 1198, 1200
 (8th Cir. 1998). In most cases, then, both the identity of the
factfinder and the evidence in the record will remain constant whether the procedural
posture is summary judgment or a bench trial. If all cases were like that, then there
would be little point to ordinary summary-judgment procedures.

        But not all cases are like that because the rule that the district court must limit
its review to the administrative record admits of exceptions. For example, the district
court may admit evidence outside the administrative record for the purpose of
determining whether to conduct deferential or de novo review of the administrator’s
decision. Ingram v. Terminal R.R. Ass’n of St. Louis Pension Plan for Nonschedule
Emps.,
812 F.3d 628, 634
 (8th Cir. 2016). And if the appropriate standard of review
is de novo, then the district court may admit additional evidence for the purpose of
deciding the merits “if there is good cause to do so.” King v. Hartford Life &
Accident Ins.,
414 F.3d 994, 998
 (8th Cir. 2005) (en banc). There could even be a
dispute about what was included in the administrative record that the district court
would need to resolve based on evidence not in the administrative record. See, e.g.,
Koons v. Aventis Pharms., Inc.,
367 F.3d 768, 772, 779-80
 (8th Cir. 2004) (affirming
the district court’s decision to permit a witness to “testif[y] to what would have been
contained in [a] document” that was before the ERISA plan administrator but was
“lost . . . before [the] litigation began”).


                                           -7-
      In any of these scenarios, a bench trial could involve the presentation of new
evidence, including witness testimony. Summary judgment would then serve the
important function of sparing the court, the parties, and the witnesses the time and
expense of a bench trial in the event that the case can be resolved without one. See
Celotex Corp. v. Catrett,
477 U.S. 317, 327
 (1986) (explaining the purpose of
summary judgment).

       Thus, our insistence on ordinary summary-judgment procedures even in
ERISA-benefits cases—including ERISA-benefits cases where the administrator
lacked discretionary authority, see Riedl,
248 F.3d at 755
-56—is no mere formality.
Parties that wish the district court to exercise its factfinding function under Federal
Rules of Civil Procedure 39(b) and 52(a)(1) to decide the case on the administrative
record should ask the district court to do exactly that. See Sloan v. Hartford Life &
Accident Ins.,
475 F.3d 999, 1001, 1003
 (8th Cir. 2007) (affirming judgment “on the
briefs and a stipulated fact record” in an ERISA-benefits case); Patton,
480 F.3d at 484
 n.3 (“Those who wish to ensure that a judgment [in an ERISA-benefits case] is
treated with the deference due the result of a bench trial are advised to eschew Rule
56 and stick to Rule 52(a).”). If instead a party moves for summary judgment under
Federal Rule of Civil Procedure 56, then the district court must follow the procedures
outlined in that rule and grant summary judgment only if “there is no genuine issue
as to any material fact” and “the moving party is entitled to judgment as a matter of
law.” Riedl,
248 F.3d at 756
. Insofar as it failed to follow those procedures here,
the district court erred.

                                         III.

      Our analysis cannot end there, however. Under Federal Rule of Civil
Procedure 61, harmless errors are not grounds for reversal. In this case, each party
confirmed at oral argument that it has no additional evidence to submit in the event
that we remand for a bench trial. Thus, if we were to remand, then the district court
would do in a bench trial exactly what it did already: decide the case on the


                                         -8-
administrative record without giving either side the benefit of all reasonable
inferences but instead weighing the evidence and finding the facts. On appeal we
would “review the [district] court’s factfinding for clear error and its legal
conclusions de novo.” Koons,
367 F.3d at 774
. Therefore, if we would affirm the
district court’s decision under this standard of review, then the district court’s error
in issuing that decision on summary judgment rather than waiting for the parties to
request a bench trial on the administrative record would be harmless. See Patton,
480 F.3d at 484
 (“[I]f we think that a district court granted summary judgment
despite the existence of genuine issues of material fact, but know that no new
evidence will be presented at trial on remand, we can in most . . . situations know
with certainty that remand would be an unwarranted empty formality.” (internal
quotation marks omitted)); cf. Quinn v. St. Louis Cnty.,
653 F.3d 745, 750
 (8th Cir.
2011) (affirming the dismissal of a claim because it was clear that the claim “would
not have survived summary judgment” and thus “any error that occurred at the
motion to dismiss stage was harmless”).

       Here, the policy entitles Avenoso to long-term disability benefits if he is
unable to perform the material duties of any occupation. And Reliance does not
dispute that Avenoso would meet this standard if he were incapable of even
sedentary work. Cf.
20 C.F.R. § 404.1567
 (ranking sedentary work least demanding
in its classification of job types). Therefore, whether the district court’s decision
survives de novo review of its legal determinations and clear-error review of its
factual findings turns on whether the district court clearly erred in finding that
Avenoso lacks sedentary-work capacity.

       In arguing that the district court did clearly err, Reliance emphasizes the
evidence tending to show that Avenoso retains sedentary-work capacity. For
example, Dr. Liva concluded that Avenoso had sedentary-work capacity and was
“able to work 8 hours a day, 40 hours a week.” The vocational-rehabilitation
specialist identified five “viable sedentary occupational alternatives” consistent with
“Avenoso’s physical capacities.” The results of the MRI were relatively mild. And
there is some evidence suggesting that Avenoso may have attempted to evade or


                                          -9-
skew the results of testing. He protested efforts to conduct an EMG or MRI,
including by claiming that he was unable to drive for fifteen minutes even though
the record indicates that he drove thirty-five minutes each way to and from the FCE.
Dr. Liva noted “symptom magnification” during his examination of Avenoso. And
the FCE report indicated that Avenoso exhibited “movement and muscle recruitment
patterns that were inconsistent when aware and unaware of observation.”

       Although we do not discount this evidence, it must be balanced against the
evidence tending to show that Avenoso lacks sedentary-work capacity.
Notwithstanding her concern about Avenoso’s “inconsistent [performance] when
aware and unaware of observation,” the physical therapist who performed the FCE
concluded that “Avenoso did not demonstrate an ability to tolerate an 8 hour work
day” and stated that “[h]is ability level would be 2-3 hours at this time.” She added
that Avenoso “did not demonstrate an ability to safely perform any lifting, carrying
or pulling functional tasks” and later reiterated that, even seated, he “could not safely
perform pulling.” Dr. Vosough “recommended that [Avenoso] avoid lifting, bending
and prolonged sitting.” Furthermore, Avenoso successfully applied for social-
security disability benefits. “Although the Social Security Administration’s
determination is not binding, it is admissible evidence to support an ERISA claim
for long-term disability benefits.” Riedl,
248 F.3d at 759
 n.4. Finally, Avenoso’s
own accounts of his debilitating pain, which the district court found credible, suggest
that he lacks even sedentary-work capacity. See Sloan v. Hartford Life & Accident
Ins.,
433 F. Supp. 2d 1037, 1039
 (D.N.D. 2006) (explaining that “subjective pain
complaints,” if deemed credible, “are highly probative of the ultimate question of
disability”), aff’d,
475 F.3d 999
.

       On this record, we cannot say that the district court’s finding that Avenoso
lacks sedentary-work capacity was clearly erroneous. As we noted in Sloan, “the
court of appeals may not reverse [on clear-error review] even though convinced that
had it been sitting as the trier of fact, it would have weighed the evidence differently.
Where there are two permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.”
475 F.3d at 1005
. Like the district court


                                          -10-
in this case, the district court in Sloan found that the plaintiff was totally disabled
based on a “finding of disability under the rigorous social security standard,”
“subjective complaints of disabling pain,” and some favorable “medical evidence.”
Id. at 1005-06
. We affirmed, noting that “[a]lthough [the defendant] can point to
evidence in the record which tends to show [that the plaintiff] was not disabled, that
is not enough for us to conclude the district court clearly erred.”
Id. at 1006
. Because
we reach the same conclusion here, we must disregard as harmless the district court’s
error in adjudicating the parties’ motions for summary judgment as if it were ruling
in a bench trial.

                                          IV.

      For the foregoing reasons, we affirm the judgment in favor of Avenoso.
                      ______________________________




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