In 1996, coronary artery disease forced Nancy Pannebecker to quit her lucrative job as a laboratory and department manager for Hughes Electronics Corporation. Pannebecker began receiving benefits under Hughes’s long-term disability plan (“Plan”), which was governed by the Employee Retirement Income Security Act of 1974 (“ERISA”). After paying benefits for over three years, Liberty Life Assurance Company of Boston (“Liberty”), the Plan’s administrator, denied cоntinued benefits on the basis that Pannebecker could perform some sedentary work and was therefore not “disabled” under the terms of the Plan.
Pannebecker challenged Liberty’s decision in federal court. The district court held that Liberty failed to construe the Plan’s terms correctly, and remanded for compliance with the Plan and identification of specific sedentary occupations for which Pannebecker was suited. On remand, Liberty agаin concluded that Pannebecker was not disabled. The district court upheld the decision and declined to award reinstatement of benefits following the initial denial and during the remand period.
We agree with the district court’s determination that Pannebecker is not “disabled” under the Plan because its terms do not require Liberty to consider either salary remuneration or station in life in making a benefits determination. We reverse, however, the court’s decision to deny the reinstatement of benefits, and remand with instructions for the court to reinstate Pan-nebecker’s benefits for the period from Liberty’s initial denial in 2000 to its benefits determination in 2005. We also remand for the district court to determine whether Pannebecker is entitled to attorney’s fees with respect to the benefits reinstatement.
BaCkground
Pannebecker worked in a variety of technical, managerial, and marketing roles *1216 related to the design and development of large-scale computer processing systems. Most recently, she worked as a laboratory and department manager at Hughes, where her annual income was just over $100,000. In 1996, after two cardiac bypass surgeries, she stopped working altogether and sought disability benefits under Hughes’s long-term plan.
The Hughes Plan contains two different definitions of “disability,” depending on the relevant time frame for which a claim is asserted. Under the “own occuрation” benefit, an employee who is “unable to perform all of the material and substantial duties of his occupation on an Active Employment basis because of an Injury or Sickness” is eligible for an initial 18-month benefit. Liberty advised Pannebecker that she qualified for continued disability benefits under this definition, but that the company would periodically request updated information from her. Near the end of the 18-month period, Liberty pulled Pan-nebecker’s file for audit and determined that she still qualified for “own occupation” benefits.
After the “own occupation” period ends, the Plan defines a “disabled” person as one who is:
unable to perform, with reasonable continuity, all of the material and substantial duties of his own or any other occupation for which he is or becomes reasonably fitted by training, education, experience, age, and physical and mental capacity.
Invoking this clause, in 2000, Liberty denied Pannebecker continued benefits because she was no longer disabled. Liberty provided a variety of reasons for its decision, including Pannebecker’s responses to the Activities Questionnaire, statements by her doctors, the results of video surveillance, and the report of Dr. Conrad, a cardiologist, who determined that there was “no objective evidence that the patient would be unable to perform work involving sedеntary activity.” Pannebecker sought review of the denial of benefits, and Liberty commissioned a follow-up review by Dr. Conrad, who concluded that although Pan-nebecker’s ability to work might be affected by angina and other symptoms of heart disease, there was “no objective evidence ... of a functional impairment due to heart disease that would render her unable to perform sedentary work.” Liberty denied Pannebecker’s request for review.
Pаnnebecker then filed a complaint in the district court under 29 U.S.C. § 1132(a)(1). The court reviewed Liberty’s decision de novo because an inherent conflict of interest existed, as Liberty was the Plan’s administrator and insurer. The court found that despite “ample evidence in support of Defendant’s conclusion that Plaintiff was able to perform some unnamed ‘sedentary’ job, more is needed to evaluate Defendant’s decision.” Because Liberty had not оffered any specific sedentary position for which Pannebecker was reasonably fitted by the Plan’s stated criteria, i.e., training, education, experience, age, and physical and mental capacity, Liberty “failed to make a reasonable inquiry into the type of skills Plaintiff possesses and whether those skills may be used at another job,” and “failed to properly apply the Plan provisions.” The court remanded for Liberty to determinе the types of sedentary positions, if any, for which Panne-becker was reasonably fitted based on the Plan’s criteria. In a separate order, the court denied attorney’s fees.
On remand, Liberty retained a vocational consultant, Jacqueline Kurth, who con- *1217 eluded that, given Pannebecker’s background, work history, and current physical capabilities, she could perform a variety of sedentary occupations, such as customer service representative, information clerk, receptionist, data entry keyer, and general office clerk. After Liberty filed Kurth’s report with the district court, Pannebecker retained Lisa Clapp, a vocational consultant, to perform an employability assessment. In Clapp’s view, Pannebecker was totally disabled. She criticized Kurth’s report because Kurth failed to conduct labor market research and did not call local еmployers to gauge their interest in someone like Pannebecker. Kurth followed up with a second report in which she reaffirmed that Pannebecker was reasonably fitted for several sedentary occupations. Liberty then notified Pannebecker that it declined to alter its benefits determination.
Pannebecker moved for judgment under Federal Rule of Civil Procedure 52(c), and Liberty filed a motion for summary judgment. 1 The district court, reviewing Liberty’s decision dе novo, upheld the denial of benefits. According to the court, Pan-nebecker was not disabled under the terms of the Plan because she was able to perform the duties of other occupations that Kurth had identified as reasonably fitted to her by virtue of her training, education, experience, age, and physical and mental capacity. The court rejected Pannebecker’s claim for retroactive benefits.
Standard of Review
We review de nоvo the district court’s choice and application of the standard of review to decisions by ERISA fiduciaries, and we review for clear error its underlying findings of fact.
Abatie v. Alta Health & Life Ins. Co.,
Atwood
was overruled by an en banc panel of this court in
Abatie,
which applied an abuse of discretion standard to review decisions of a discretion-granting plan, even if the administrator has a conflict of interest.
Abatie thus bound the district court to review Liberty’s decision for abuse of discretion. In evaluating whether an abuse of discretion occurred, the court should make “something akin to a credibility determination about the insurance company’s or plan administrator’s rеason for denying coverage!,]” and adjust its level of skepticism in proportion to its evaluation of the conflict of interest. Id. at 969.
Despite the “ships passing in the night” timing of the
Abatie
decision, the district court’s evaluation of disability resulted in no error. The court reviewed Liberty’s decision de novo, which is a more rigorous standard than the “informed” abuse of discretion review that
Abatie
requires.
Id.
at 965-74. That the court affirmed Liberty’s denial without giving any deference to Liberty’s decision makes it unlikely that on remand, the court would find, under а standard friendlier to Liberty, that Liberty abused its discretion. We do not read
Abatie
or our cases interpreting it to require a different result.
See Saffon v. Wells Fargo & Co. Long Term Disability Plan,
Analysis
Pannebecker challenges Liberty’s benefits decision primarily on the ground that Liberty failed to consider salary remuneration in finding that she was qualified for certain entry-level positions. She also disputes the court’s denial of retroactive reinstatement of benefits and attorney’s fees.
I. Disability under the Plan
We begin our evaluation of Liberty’s benefits denial with the governing plan documents.
See Metro. Life Ins. Co. v. Parker,
The record supports Liberty’s conclusion that Pannebecker was able to perform the duties of other occupations for which she wаs reasonably fitted by the Plan’s stated criteria. One of Pannebecker’s doctors noted in 2000 that she was “doing well,” had been maintaining an active lifestyle, and was subjectively asymptomatic. Pannebecker stated in her Activities Questionnaire that she exercised a few times a week, could sit indefinitely and stand for 15 minutes at a time, went grocery shopping and did limited mall shopping. The video surveillance depicted Pannebecker shopping, driving, carrying рurchased items, walking limited distances, and eating out with friends. Dr. Conrad concluded that Pannebecker had “reasonably good functional capacity, with stable angina, and *1219 is able to perform normal activities, including exercise.” Kurth studied and discussed Pannebecker’s extensive medical history, noting that despite suffering from severe angina in 2001, she recently reported feeling “absolutely great,” and “like ‘a miracle.’ ” Kurth found that Pannebecker had transferable work skills that included the ability to coordinate others, analyze and compute data, and present information in a clear and articulate manner. Pannebecker felt that managing people, working under deadlines, and meeting customer expectations were “stressful” activities, so Kurth, balancing these considerations, suggested a range of sedentary jobs, from customer service representative, to information clerk, reсeptionist, data entry keyer, and general office clerk, as being within Panne-becker’s transferable work skills. This evidence supports Liberty’s determination that Pannebecker was reasonably fitted for some sedentary positions. 4
Although the Plan does not require Liberty to consider a claimant’s current salary or station in life in making a disability determination, Pannebecker asks us to import those qualifications into the Plan’s terms. We decline to do so.
As we observed in
McKenzie v. General Telephone Co. of California,
the “language of the ‘any occupation’ standard is not demanding.”
Despite the broad reach of the Plan’s “any other occupation” lаnguage, Panne-becker seizes on a reference in
Madden v. ITT Long Term Disability Plan for Salaried Employees,
In contrast, the plan we examined in
Madden
defined “disabled” as “unable to engage in
any
occupation for which [he is] qualified, based on [his] training, education, or experience.”
The Plan here required only that Panne-becker be able to perform the duties of any occupation for which she was reasonably fittеd by training, education, experience, age, and physical and mental capacity. Given the Plan’s plain terms, Liberty did not abuse its discretion in failing to consider Pannebecker’s most recent salary or station in life in its benefits determination.
5
See Richardson v. Pension Plan of Bethlehem Steel Corp.,
Pannebеcker’s remaining challenges, including a variety of alleged procedural deficiencies, have no legal traction or were not raised before the district court.
II. Reinstatement of Benefits
The district court concluded in 2004 that Liberty “failed to properly apply the Plan provisions” and “failed to make a reasonable inquiry into the type of skills Plaintiff possesses and whether those skills
*1221
may be used at another job,” but denied the retroactive reinstatement of benefits. We review for abuse of discretion the district court’s denial of reinstatement of benefits.
See Grosz-Salomon v. Paul Revere Life Ins. Co.,
As the Seventh Circuit has recognized, the ERISA claimant whose initial application for benefits has been wrongfully denied is entitled to a different remedy than the claimant whose benefits have been terminated.
Hackett v. Xerox Corp. Long-Term Disability Income Plan,
Liberty distinguishes
Hackett
on the basis that the administrator in
Hackett
terminated benefits as a result of defective procedures, which is not the case before us. But, whether the administrator abused its discretion because the decision was substantively arbitrary or capricious, or because it failed to comply with required procedures, benefits may still be reinstated if the claimant would have continued receiving benefits absent the administrator’s arbitrary and capricious conduct. As we have noted, in the ERISA world, “no great wall divides procedural from substantive violations.”
Blau v. Del Monte Corp.,
Pannebecker was already receiving benefits, and, but for Liberty’s arbitrary and capricious conduct&emdash;i.e., its failure to apply the terms of the Plan properly&emdash;she would have continued receiving them. While Liberty was given a second opportunity to determine whether Pannebecker was “disabled” under the Plan, that second chance should not have left Pannebecker empty-handed during the time that it took Liberty to comply with the Plan’s requirements. The district court should have awarded Pannebecker benefits from the time of Liberty’s improper denial in 2000 until the *1222 company’s decision of May 3, 2005, to decline to alter its benefits determination.
III. Attorney’s Fees
In an ERISA action, a court in its discretion may allow reasonable attorney’s fees and costs to either party. 29 U.S.C. § 1132(g)(1). The district court denied Pannebecker’s request for attorney’s fees on the basis that she failed to establish a right to benefits. As a result of this appeal, however, Pannebecker is entitled to have her benefits reinstated for the short period following the court’s initial remand. Because she achieved some of the benefit that she sought in bringing suit, we remand for the court to determine, in its discretion, whether Pannebecker is entitled to reasonable attorney’s fees and costs.
We affirm the court’s Rule 52(c) judgment in favor of Liberty, on the basis that Pannebecker was not disabled under the Plan. We reverse the denial of reinstatement of benefits, and remand for consideration of attorney’s fees with respect to the benefits reinstatement.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
Each party to pay its own costs on appeal.
Notes
. Liberty acknowledged to the district court that it should have moved for judgment under Rule 52, and not summary judgment, because of the existence of a genuine issue of material fact. On this basis, the court denied Liberty’s motion.
. In 2004, the district court conducted a conflict-of-interest analysis and concluded that de novo review was apрropriate under Atwood. When it issued its Rule 52(c) judgment on August 16, 2006, it incorporated this earlier conclusion. Abatie had been filed the previous day, and was not yet widely circulated.
. The "material, probative evidence” that Pannebecker presented was that Liberty required "objective” evidence of her disability, even though the Plan’s definition of “disability” did not mention such a requirement.
. Pannebecker’s challenges to Kurth’s report do not alter this conclusion. Although not extensive, Kurth’s mention of Pannebecker’s age and brief discussion of her mental state and need to avoid stress indicate that these considerations were not ignored. Similarly, Clapp’s criticisms and methodology do not undermine Kurth’s report. The Plan’s definition of "disability” does not require Liberty to identify a specific employer for Pannebecker. Nor is there any compelling evidence that the labor market research performed by Clapp was рreferable to Kurth's transferable skills analysis.
. Pannebecker gestures to Liberty’s Policies Procedures and Exceptions for "any occ” evaluations ("PP & E”), which indicate that Liberty should consider "reasonable replacement of income based on TEE [training, education, and experience].” Liberty presented evidence that the PP & E are not hard and fast rules applied in every case. Pannebecker also cites Liberty's "rehabilitatiоn employment benefit,” which allows claimants in approved positions to continue receiving benefits until they earn 20% of their pre-disability earnings. We agree with the district court's conclusions that these references "cannot reasonably be read to modify the [Plan's] definitions of disabled, and furthermore, Plaintiff has made no showing that she has attempted to avail herself of such a benefit.”
. Our decision in
Patterson v. Hughes Aircraft Co.,