Timothy Mullins v. CONSOL ENERGY, INC. LONG TERM DISABILITY PLAN On Appeal from the United States…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 22-2930
_______________
TIMOTHY MULLINS,
Appellant
v.
CONSOL ENERGY, INC. LONG
TERM DISABILITY PLAN
_______________
On Appeal from the United States District Court
For the Western District of Pennsylvania
(D.C. No. 2-20-cv-1883)
District Judge: Honorable J. Nicholas Ranjan
______________
Argued
September 13, 2023
Before: JORDAN, BIBAS, and PORTER, Circuit Judges
(Filed: March 22, 2024)
_______________
Tybe A. Brett

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Feinstein Doyle Payne & Kravec
429 Fourth Avenue
Law & Finance Bldg – Ste. 1300
Pittsburgh, PA 15219
Benjamin W. Glass, III [ARGUED]
#250
3998 Fair Ridge Drive
Fairfax, VA 22033
Counsel for Appellant
William P. Lewis [ARGUED]
Erin J. McLaughlin
Buchanan Ingersoll & Rooney
1001 Liberty Avenue, Suite 1000
Pittsburgh, PA 15222
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Timothy Mullins, a second-generation coal miner,
suffered an ankle stress fracture in 2015 while working as a
Section Supervisor at a coal mine owned by CONSOL Energy,
Inc. (“Consol”). He initially received benefits from Consol
under its ERISA-governed Long-Term Disability Plan (the
“Plan”), administered by Lincoln Financial Group
(“Lincoln”),1 but then went through a series of denials,
1 Lincoln acquired Liberty Life Assurance Company of

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reconsiderations, and reinstatements. The present appeal arises
from a final adverse disability benefits determination in 2020.
Relying on a series of peer-reviewed medical evaluations and
a third-party vocational assessment, Lincoln found that
Mullins failed to demonstrate “total disability,” as required
under the Plan, because, while physically limited, he did not
prove that he could not conduct any suitable sedentary
occupation.
Because Lincoln relied on a 2019 vocational report that
incorrectly listed Mullins’s job as “Mine Superintendent,”
rather than Section Supervisor, and analyzed his background
and skill set, it also wrongly terminated his long-term disability
benefits. Lincoln’s termination of his benefits was not based
on substantial evidence in the record and was therefore an
abuse of its discretion. Consequently, the District Court erred
in upholding the decision.
We will vacate the judgment and remand for
reinstatement of Mullins’s long-term disability benefits.
I. BACKGROUND
A. Facts
Timothy Mullins was a Section Supervisor2 at Consol’s
Buchanan Mine, in Raven, Virginia, from 2010 through June
Boston around May 2018 and assumed its responsibilities as
Claims Administrator under the Plan.
2 The parties use “Foreman” and “Supervisor”
interchangeably. However, because the Vocational Report at
issue uses the job title “Section Supervisor,” we will adopt that

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2015. He has a 10th grade education and a GED. As Section
Supervisor, he was a “working supervisor” who “extracted coal
manually and by machine with his crew” of 10 to 15 people,
“set up ventilation systems,” and “built roof supports.” (J.A.
at 333.) The job required him to be “on his feet all day,” and
to acquire state certifications for “First Class Mine Foreman,
General Coal Miner, [and] Methane Gas Detection.” (J.A. at
333.)
In early June 2015, Mullins sustained an ankle injury
and sought disability benefits from Consol.3 Consol’s Plan –
administered by Lincoln as Claims Administrator – provides
two phases of long-term disability benefits to eligible
employees: the first covering up to 12 months of the insured
being unable to perform his own occupation (the “own
occupation” period (Opening Br. at 14; J.A. at 369)), and the
subsequent long-term disability phase when the insured cannot
perform any other suitable employment (the “other
occupation” period). The Plan defines “Total Disability,” as
an employee being either “unable to perform the material and
substantial duties of [his] regular occupation or any reasonable
alternative offered by the Company” during the “own
occupation” period or “completely unable to engage in any
Suitable Employment” during the “other occupation” period.
term for consistency.
3 The parties do not list the exact date when the injury
occurred, but Mullins was absent from work beginning
June 12, 2015. The record shows that the date of disability for
Mullins was June 12, 2015, according to Consol’s records, but
June 11, 2015, according to the Social Security Administration.

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(J.A. at 33.) The Plan further defines “Suitable Employment”
as “employment in a position for which [the employee was]
trained in vocational training, or for which [the employee is]
qualified by experience or education. This may be inside or
outside of the Company.” (J.A. at 33.) The Plan grants Consol
and Lincoln “sole discretion to determine what is Suitable
Employment for any individual and what is a reasonable
compensation for that position.” (J.A. at 33.)
Mullins was granted short-term disability benefits in
June 2015 for the first six months of his “own occupation”
period because his ankle injury prevented him from being able
to perform his job as Section Supervisor. In December 2015,
based on the same disability, he was approved for long-term
disability benefits for the remaining 12 months of his “own
occupation” period. Although the long-term disability
determination was based on his original ankle injury, the
record shows over time a deterioration in Mullins’s overall
health and additional medical events that slowed his
rehabilitation.4
In November 2016, Lincoln denied Mullins continued
benefits, finding that his medical records did not show that he
could not perform any other “suitable employment,” because
4 For example, in September 2016, Mullins was
diagnosed with “major depressive disorder” (J.A. at 301); in
February 2017, he underwent a total ankle replacement
surgery; in August 2017, he was involved in a car accident,
causing a right shoulder injury, which required surgery; and in
October 2017, he suffered a heart attack, which also delayed
his shoulder surgery.

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he could work full-time with some physical limitations.
Lincoln determined, after a vocational review, that Mullins
could perform the jobs of “Transportation-Maintenance
Supervisor[,] Dispatcher (non-emergency)[, and] Supervisor-
Production Control.” (J.A. at 104.) He appealed the denial and
provided additional records of a forthcoming ankle surgery and
a diagnosis of “[m]ajor [d]epressive [d]isorder.” (J.A. at 106-
31.) In February 2017, Lincoln reversed its denial and granted
him benefits because the “information [it] received on appeal
supports a level of impairment to preclude work capacity.”
(J.A. at 502.)
The following November, Lincoln terminated Mullins’s
benefits based on peer reviewed medical reports of his
disability. He again appealed and provided Lincoln updated
psychiatric evaluations. In March 2019, Lincoln granted him
benefits for 12 months based on his mental health condition.5
Mullins previously also applied for and was denied
Social Security disability benefits, but in 2018 those benefits
were granted retroactively to 2015 by an Administrative Law
Judge (“ALJ”) who determined that he was legally disabled
under the Social Security Act based on an updated treatment
history.6
5 According to the Plan, disability based on mental
illness is limited to a maximum term of 12 months. See infra
note 11.
6 The ALJ found that Mullins suffered from
“degenerative disc disease, degenerative joint disease of the
knee and ankle, osteoarthritis, affective/depressive disorder,

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In December 2019, Lincoln terminated his benefits for
a third time, with his benefits ending at the expiration of the
mental health benefits maximum term in March 2020, because
peer review reports demonstrated that he had no physical
disability that justified continued long-term benefits.
Lincoln’s determination that Mullins lacked a “total disability”
under the “other occupation” period, however, relied on an
erroneous vocational report that listed Mullins’s job as “Mine
Superintendent” instead of “Section Supervisor.” (J.A. at 328.)
Accordingly, based on the qualifications and experience
associated with that incorrect job title, the report recommended
three sedentary positions: “Production Planner; Supervisor,
Terminal Operations; [and] Manager, Branch.”7 (J.A. at 329.)
drug and alcohol abuse, and anxiety disorder.” (J.A. at 139.)
7 Mullins’s denial letter listed his “Skills & Abilities” as
follows:
Planning and directing work of others; knowing
technical details of specialty area; working with
different kinds of people in a variety of
situations; making decision that may affect work
activities, costs, or safety of others; using charts,
maps, blueprints, or plans; and using numbers to
plan budgets. Obtaining and seeing to the
appropriate use of equipment, facilities, and
materials to do certain work; assessing
performance individuals; communicating with

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In 2020, Mullins again appealed his termination of
benefits and provided Lincoln additional medical records for
review. This time, though, Lincoln maintained its denial after
conducting an additional peer review of the new medical
records. The reviewing doctor found that, while the pain
Mullins was experiencing “is consistent with the severity and
scope of [his] medical conditions[,]” “[t]he medical evidence
supports [that] the claimant has the ability to sustain full time
capacity [work] within the identified [physical] restrictions and
limitations[.]” (J.A. at 319.) Ultimately, Lincoln
“acknowledge[d] Mr. Mullins[’s] claim of total impairment[]”
and that the “medical evidence does support impairment with
associated restrictions and limitations,” but it concluded that
“it does not support a total inability to function in an
occupational setting.” (J.A. at 250 (emphasis added).) Lincoln
also asserted that, due to Mullins’s Social Security disability
award, the Plan had overpaid him $70,576.39, and it sought
repayment.
B. Procedural History
In December 2020, Mullins filed a two-count ERISA
complaint against the Plan under 29 U.S.C. § 1132(a)(1)(B)
and (e), alleging wrongful denial of long-term disability
benefits (Count One) and improper offset of benefits due to
Social Security disability benefits (Count Two). He alleged
that Lincoln improperly terminated his long-term disability
others in a professional and tactful manner; and
basic computer skills.
(J.A. at 230.)

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benefits under the Plan “without [evidence of] any
improvement in [his] medical condition” (J.A. at 570 ¶ 28),
and, as relief, he sought past-due long-term disability benefits
and reinstatement of monthly benefits under the Plan. The
District Court granted summary judgment for the Plan and
denied summary judgment for Mullins, holding that Lincoln’s
benefits denial was backed by substantial medical and
vocational evidence and was not arbitrary and capricious.
Mullins has timely appealed.
II. DISCUSSION8
A. ERISA Standard of Review
ERISA is silent on the standard of review applied to
benefits denials. Noga v. Fulton Fin. Corp. Emp. Benefit Plan,
19 F.4th 264, 272 (3d Cir. 2021). Accordingly, courts have
“develop[ed] a federal common law” for reviewing ERISA-
regulated plans. Firestone Tire & Rubber Co. v. Bruch, 489
U.S. 101, 110 (1989) (internal quotation marks omitted).
Supreme Court precedent instructs that a denial of benefits is
reviewed de novo, “unless the benefit plan gives the
8 The District Court had jurisdiction under 28 U.S.C.
§ 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291.
We review the District Court’s grant of summary judgment de
novo. Viera v. Life Ins. Co. of N. Am., 642 F.3d 407, 413 (3d
Cir. 2011). “Summary judgment is proper if there is no
genuine issue of material fact and if, viewing the facts in the
light most favorable to the non-moving party, the moving party
is entitled to judgment as a matter of law.” Smathers v. Multi-
Tool, Inc./Multi-Plastics, Inc. Emp. Health & Welfare Plan,
298 F.3d 191, 194 (3d Cir. 2002).

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administrator or fiduciary discretionary authority to determine
eligibility for benefits or to construe the terms of the plan[,]”
in which case courts review those determinations for abuse of
discretion. Id. at 115.
The parties here have stipulated that the Plan
Administrator and Claims Administrator – Consol and
Lincoln, respectively – have discretionary authority over the
Plan. We therefore review the administrator’s decision for
abuse of discretion. See id. “In the ERISA context, the
arbitrary and capricious and abuse of discretion standards of
review are essentially identical.” Miller v. Am. Airlines, Inc.,
632 F.3d 837, 845 n.2 (3d Cir. 2011). When applying that
standard, we do “not … substitute [our] own judgment for that
of the defendants in determining eligibility for plan benefits[,]”
Doroshow v. Hartford Life & Accident Ins. Co., 574 F.3d 230,
234 (3d Cir. 2009) (citation omitted), and a plan
administrator’s decision “will not be disturbed if reasonable[,]”
Firestone, 489 U.S. at 111. Instead, a decision is arbitrary and
capricious only “if it is without reason, unsupported by
substantial evidence or erroneous as a matter of law.” Fleisher
v. Standard Ins. Co., 679 F.3d 116, 121 (3d Cir. 2012) (citation
omitted). “Substantial evidence” is “such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion.” Id. (citation omitted).
B. Lincoln’s Final Decision to Terminate
Benefits Was Arbitrary and Capricious
To properly determine that Mullins did not suffer a total
disability which precluded him from working at any suitable
occupation under the Plan, Lincoln must have relied on
adequate evidence that Mullins has the physical capacity, as

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well as the relevant education, training, or experience, for
alternative employment. Lincoln decided that Mullins could
perform suitable sedentary employment because, based on
reviews of his medical records, it said he could work with some
physical limitations, and, based on a vocational review, he had
the qualifications for three alternative jobs. We address each
of those conclusions in turn.
1. Lincoln’s medical conclusion was
reasonable and supported by substantial
medical evidence.
Mullins asserts that there was a procedural irregularity
in Lincoln’s determination that the “medical evidence …
support[ed] impairment with associated restrictions and
limitations,” but did “not support a total inability to function in
an occupational setting.” (J.A. at 250.) There was, he says, no
change in his medical condition, and Lincoln relied on its own
paper reviews instead of Mullins’s treating physicians’
opinions. Hence, he argues, the decision was arbitrary and
capricious. We disagree.
Initially, Mullins met his burden to make a “prima facie
showing of disability through physicians’ reports[.]” Lasser v.
Reliance Standard Life Ins. Co., 344 F.3d 381, 391 (3d Cir.
2003). He did so based on his medical history of multiple
injuries, chronic pain, and degenerative joint disease, along
with the determination by the Social Security Administration
granting him disability benefits retroactive to June 2015. The
burden then switched to Lincoln “to support the basis of its
objection” – “call[ing] into question the scientific basis of
those reports[.]” Id. Lincoln carried its burden by relying on
two peer reviews by board-certified physicians in the relevant

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fields of Physical Medicine and Rehabilitation and Pain
Medicine. The opinion of Dr. Neil Patel supported the
termination of benefits, and Dr. Kevin Kohan and Dr. Patel
supported that decision on appeal. The physicians reviewed at
least thirty-five different medical records and test results,
described each examined record, and provided an analysis.
They gave credence to Mullins’s physicians’ opinions and
found that Mullins had demonstrated physical impairments,
some of which restricted his abilities. Nonetheless, both
concluded that he was capable of limited, sedentary work.
Dr. Patel found Mullins to be “functionally impaired”
(J.A. at 286), but determined that he could still perform full-
time work with some limits on lifting, sitting, standing, and
typing.9 Dr. Kohan’s conclusions were like Dr. Patel’s, stating
9 The full limitations were as follows:
• Lifting, carrying, pushing, and pulling up
to 10 pounds frequently, and up to 20
pounds occasionally;
• Reaching in all planes, with overhead
reaching occasionally;
• Typing/fingering/using hands for fine
manipulations for up to 15 minutes at a
time, with ability to take a five-minute
break before resuming these activities;
• Sitting for up to 30 minutes at a time, with
the ability to change positions for comfort
for up to 6 hours in a day;
• Standing for up to 15 minutes at a time,
for a total of 2.5 hours in a day;
• Walking for up to 30 minutes at a time,

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that, although Mullins’s “pain is consistent with the severity
and scope of [his] medical conditions and intensity of
treatment[,] … [t]he medical evidence supports [that] [he] has
the ability to sustain full time [employment] capacity … within
the identified restrictions and limitations[.]” (J.A. at 319.)
Mullins says Lincoln’s review process was not
sufficient. He contends that Lincoln was required to provide
further evidence because the reviewers it retained made
findings contrary to his treating physician and did so without
having conducted a physical examination. But, unlike his
assertions, there is no requirement that an additional
evidentiary showing be made if an administrator’s rejection of
a disability claim arises from reports differing from the
claimant’s own doctors. Indeed, the Supreme Court has
expressly held that ERISA does not “impose a heightened
burden of explanation on administrators when they reject a
treating physician’s opinion[,]” “nor may courts impose on
plan administrators a discrete burden of explanation when they
credit reliable evidence that conflicts with a treating
physician’s evaluation.” Black & Decker Disability Plan v.
Nord, 538 U.S. 822, 831, 834 (2003).
In support of his argument that additional proof was
necessary before termination of his benefits, Mullins alleges
that Lincoln’s reviewers issued “conclusory peer reviews”
unsupported by substantial evidence because the record fails to
for a total of 4 hours in a day; and,
• No kneeling, bending, stooping,
climbing, crawling, and squatting.
(J.A. at 286.)

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demonstrate any change in his condition that would justify
termination of benefits. (Reply Br. at 3-5.) We have said that
a reversal of position without additional medical information
may “counsel[] towards finding an abuse of discretion.”
Miller, 632 F.3d at 848. However, Lincoln’s peer reviewers
made evaluations based on medical evidence that did not
support Mullins’s claim of continued total disability. For
example, Dr. Kohan found that while Mullins’s spine and
shoulder impairments were previously limiting, the records
“do not show objective findings supporting continued
functional impairment.” (J.A. at 317 (emphasis added).)
Additionally, as noted by the District Court, Mullins’s five-
pound lifting restriction was either removed or reasonably
contradicted in the record by opinions from Mullins’s own
treating physicians.10 And to the extent that the peer reviews
10 The parties contest how much Mullins can lift in his
disability. That fact is relevant because the Department of
Labor defines “sedentary” work as being able to “[e]xert[] up
to 10 pounds of force occasionally … and/or a negligible
amount of force frequently.[]” U.S. Dep’t of Lab. Off. of
Admin. L. Judges L. Libr., Dictionary of Occupational Titles
app. C (4th ed., rev. 1991),
https://www.dol.gov/agencies/oalj/PUBLIC/DOT/REFEREN
CES/DOTAPPC (last visited Feb. 7, 2024). Mullins argues
that the medical records do not support his ability to lift more
than 5 pounds, and thus he cannot qualify for sedentary work.
He cites his post-operation orthopedic consultant,
Dr. McGarry, who repeated the verbatim instruction to
“[a]void heavy lifting (anything over 5 lbs.) until instructed
otherwise” in his provider notes from September 2019 through
March 2020. (J.A. at 214, 217, 220, 223.) But Mullins’s
orthopedic surgeon, Dr. Scott, twice affirmed that Mullins

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differed from his treating physician’s, it was not unreasonable
for Lincoln to weigh the peer reviews over his treating
physicians’. Cf. Black & Decker, 538 U.S. at 834 (allowing
administrators to give credence to reliable peer review
evidence contrary to treating physicians, even without
explaining why). And an independent medical exam is not
required. The “failure to order [and conduct] an [independent
medical examination]” is merely one “factor we can consider
in determining whether [the administrator’s] decision to
terminate benefits was arbitrary or capricious.” Reed v.
Citigroup Inc., 658 F. App’x 112, 115 (3d Cir. 2016) (per
curiam). In short, a “reasonable mind” could view the medical
record as supporting the conclusions of Drs. Patel and Kohan
that Mullins failed to demonstrate continued total disability,
even while functionally impaired. Fleisher, 679 F.3d at 121
(citation omitted).
Moreover, Lincoln’s most recent grant of benefits, one
year earlier in 2019, was based on mental illness, which the
Plan limits to 12 months of additional coverage. Mullins
disputes that and says it is an “insinuation” and a “new
[argument] in litigation.” (Reply Br. at 10.) But his November
2018 denial letter confirms Lincoln’s position; it denied
benefits because “[t]he medical records d[id] not reasonably
could lift 10 pounds “frequently” (and 25 pounds
“occasionally”) as soon as six months after his ankle surgery.
(J.A. at 468-71.) And, in addition to Lincoln’s peer reviewers,
an independent Board-Certified Orthopedic surgeon physician
in 2018 opined that Mullins could lift up to 10 pounds. Thus,
it is not unreasonable that Lincoln concluded that Mullins
could lift up to 10 pounds, based on evidence in the record, and
thus that he qualified for sedentary work.

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support [that] the insured ha[d] impairments attributable to the
presence of mental illness[.]” (J.A. at 145.) So did the
reinstatement letter, which awarded benefits based “[u]pon
review of additional information provided” and laid out the
Plan’s policy regarding disability based on Mental Illness,11
containing the disclaimer that “[i]f your condition no longer
fits the criteria of ‘mental nervous limitation’ but remains
disabling … your claim will be evaluated for continued
benefits.” (J.A. at 225-26.) The letter stated further that if
Mullins felt that he “continue[d] to be disabled due to a non-
mental … diagnosis,” he should submit additional information
to that effect “prior to the maximum benefit date.” (J.A. at
226.) Thus, the March 2019 grant of benefits was based on
mental illness disability and limited to 12 months, ending in
March 2020, unless additional physical disability evidence was
provided. None was.
In the end, Mullins failed to carry his burden of
demonstrating that he was totally disabled. See Lasser, 344
F.3d at 391 (“[T]he burden of proving disability ultimately lies
with [the claimant.]”). He proffered no evidence from his
treating physicians, before termination of benefits or while on
appeal, that concerned his ability to perform sedentary work.
Mullins says that was because Lincoln never expressly asked
for such evidence and that Lincoln’s requests for a response
11 “If Mental Illness is the primary cause or a
contributing cause of your Total Disability … the Company
will pay monthly benefits under this Plan on a limited basis.
Once a maximum of 12 monthly Long Term Disability benefit
payments have been paid, no future benefits will be payable[.]”
(J.A. at 225.)

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from his doctors to the peer review findings did not give the
doctors “meaningful time to reply.” (Reply Br. at 7, 9.) But
Mullins fails to explain why he did not submit additional
documentation during his appeal – six months passed from the
initial denial in December 2019 until the final, reconsidered
denial in June 2020 – nor why his doctors never responded to
the requests at all.
In light of all that, we cannot say that Lincoln’s decision
that Mullins was physically capable of performing limited,
sedentary work was an abuse of discretion.
2. Lincoln’s reliance on an erroneous
vocational report was arbitrary and
capricious.
We now turn to the second prong of the test for total
disability: whether Mullins could satisfy the relevant
occupational education, training, or experience necessary for
alternative employment. In 2019, Lincoln found that
alternative suitable employment exists for Mullins and thus
denied him benefits. In doing so, it relied on a vocational
review, or Transferable Skills Analysis (“TSA”), that
determined positions suitable for Mullins based on his training,
experience, and education. That was the second TSA Lincoln
conducted in Mullins’s case. In December 2016, it used a TSA
that accurately listed Mullins’s job as a “Section Supervisor[.]”
(J.A. at 332.) The report identified three potential jobs Mullins
could perform given his physical limitations and his experience
and training as a Section Supervisor: Transportation-
Maintenance Supervisor, Dispatcher (non-emergency), and
Supervisor-Production Control.

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In 2019, however, Lincoln relied on an updated TSA to
terminate Mullins’s benefits. And yet, as Consol conceded,
that TSA used the wrong job title. Instead of using Mullins’s
correct title of Section Supervisor, Lincoln listed his position
as “Mine Superintendent[.]” (J.A. at 328.) That was
consequential. The error produced three different sedentary
position suggestions: Production Planner, Supervisor of
Terminal Operations, and Branch Manager. Thus, Lincoln’s
erroneous statement of Mullins’s job resulted in an erroneous
statement of alternative positions as well.
Mullins has never been a Mine Superintendent, for
Consol or for any other mining company. The Mine
Superintendent while Mullins was employed at Buchanan held
two college degrees (a Bachelor of Science in Mining
Engineering Technology and a Bachelor of Science in
Business Administration) and had held supervisory positions.
In contrast, Mullins had neither the variety of experience nor
educational background that the Mine Supervisor had.
The Department of Labor job description for a Mine
Superintendent, as referenced in the TSA, includes duties like
planning and coordinating activities of personnel engaged in
mining, reviewing survey reports and geological records,
calculating mine operation costs, and reading mining laws and
safety regulations and enforcing them. 181.117-014 Mine
Superintendent (mine & quarry), Dictionary of Occupational
Titles (4th ed., rev. 1991). In contrast, Mullins’s 2016 TSA
describes his skills and experience as Section Supervisor to
include “[u]se of hand tools[,]” “[o]peration of equipment[,]”
and “[o]btaining and seeing to the appropriate use of
equipment, facilities, and materials to do certain work[,]” all

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commensurate with operating as a working supervisor of a
team of coal miners. (J.A. at 103.)
Similarly, the Department of Labor lists duties for the
new roles suggested by the 2019 TSA – Production Planner,
Supervisor of Terminal Operations, and Branch Manager – to
include analyzing production and plant capacities; performing
mathematical calculations to determine manufacturing
processes; planning and scheduling workflow for departments
and conferring with department supervisors; preparing
purchase orders; studying revenue reports; inspecting terminal
facilities for conformance to safety standards; recommending
personnel actions; directing production, distribution, and
marketing; and recommending budgets to management.
012.167-050 Production Planner (profess. & kin.), Dictionary
of Occupational Titles; 184.167-242 Supervisor, Terminal
Operations (motor trans.), id.; 183.117-010 Manager, Branch
(any industry), id. Those duties are plainly different from
Mullins’s listed skills of “[m]aintaining records[,]”
“[k]now[ing] and apply[ing] basic computer skills[,]”
“[i]nstructing individuals and groups on how to improve
performance/adhere to regulations[,]” and “[u]nderstanding
written sentences … in work related documents.” (J.A. at 103-
04.)
Therefore, the District Court erred in concluding that
Mine Superintendent and Section Supervisor are similar
managerial positions because the 2016 and 2019 reports
describe Mullins’s “experience and skill in largely the same
way.” (J.A. at 9.) That is a bit like saying that because a TSA
lists the skills “teaching,” “lesson planning,” and “grading
students’ work,” there is no difference between an elementary
school teacher and a university professor. There is a

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difference, no matter how fine both teachers may be at their
jobs.
Consol attempts to defend its conceded error by stating
that “the 2016 [TSA] is referenced and incorporated into the
2019 [TSA].” (Answering Br. at 50.) While the 2019 TSA
does indicate that consideration was given to, among other
things, the 2016 TSA, it clearly did not incorporate the analysis
of the earlier review. The 2019 TSA can hardly be said to stand
on the 2016 review when the job title itself differed between
the two reports. Moreover, the 2019 denial letter sent by
Lincoln cites only to the 2019 TSA and its three inaccurately
derived positions. The 2019 letter does not refer to the 2016
TSA nor its suggested occupations. As a result, Consol’s
position runs contrary to law. Under ERISA, a fiduciary
cannot tell a beneficiary that he should have ignored express
statements in the 2019 letter and should instead have relied on
conflicting information from the 2016 communication,
supposedly included by incorporation. Cf. Grossmuller v. Int’l
Union, UAW, Loc. 813, 715 F.2d 853, 858 (3d Cir. 1983)
(requiring a written statement outlining reasons for benefits
denial). To allow such sleight of hand would vitiate the
statutory notice purpose behind such letters.
Both Consol and the District Court emphasized that,
regardless of the 2019 letter, “there is no dispute that the 2016
[TSA] identified suitable positions, which would have been
appropriate for … Mullins even in 2019.” (J.A. at 10.)
Assuming that were true, Lincoln still did not provide Mullins
a “full and fair review” of his denial as required under 29
U.S.C. § 1133. That section requires that “every employee
benefit plan shall … afford a reasonable opportunity to any
participant whose claim for benefits has been denied for a full

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and fair review[.]”12 29 U.S.C. § 1133. If Lincoln’s denial was
based on information incorporated from the 2016 TSA, it failed
to provide Mullins the protections afforded him by ERISA
because it did not “notify [him] promptly, in writing and in
language likely to be understood by laymen, that the claim has
been denied with the specific reasons therefor.” Grossmuller,
715 F.2d at 858 (emphasis added). Accepting Consol’s claim
would necessarily compromise Mullins’s ERISA rights. Id.
Furthermore, Consol doubled down on its error in 2020.
Lincoln could have updated Mullins’s job history in its 2019
TSA when Mullins appealed. Rather, on appeal, Lincoln’s
vocational case manager reviewed the final peer review doctor
report by Dr. Kohan and again stated Mullins’s job history as
“Mine Superintendent for 11 years,” before concluding that the
sedentary positions from the 2019 report “remain[ed] viable.”
(J.A. at 326.) This further undermines Consol’s argument that
it was really relying on the 2016 TSA, and it creates additional
§ 1133 issues because the 2020 denial is even further removed
from the 2016 TSA.13
12 Full and fair review includes providing 60 days to
appeal, providing opportunity to submit written comments on
appeal, and providing reasonable access – “upon request and
free of charge” – to copies of all documents and records. 29
C.F.R. § 2560.503-1 (h).
13 Mullins also claims that “Lincoln was required to
provide [him] with … information in advance of its [final]
appeal decision and to give him an opportunity to respond.”
(Reply Br. at 12.) However, on appeal, an administrator is only
required to provide “reasonable access to, and copies of, all
documents, records, and other information relevant to the

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In the end, identification of alternative suitable jobs by
Lincoln or Consol is required under the Plan before benefits
can be terminated. (J.A. at 58 (defining total disability, which
is required to receive long-term disability benefits after 18
months, as requiring complete inability to engage in any
suitable employment, and defining suitable employment as
alternative employment determined by the Plan or Claims
Administrator).) Thus, Consol could terminate benefits only if
Lincoln determined that there was no other suitable job that
Mullins could perform, after first correctly identifying “any
Suitable Employment.” (J.A. at 33.)
While determination of what jobs fall into this category
is in the “sole discretion” of the plan and claims administrators,
this discretion presumes that a set of suitable jobs has been
correctly identified; Lincoln “must exercise that discretion
based on substantial evidence and in accordance with the terms
of the plan.” (Reply Br. at 21.) As discussed, Lincoln did not
do that. It attributed an incorrect job title (and thus skills and
experience) to Mullins when it called him a “Mine
Superintendent.” In turn, this error produced a series of
suggestions of jobs suitable for a Mine Superintendent, not a
Section Supervisor, and that error piled on error led to the
ultimate termination of Mullins’s benefits. Thus, Lincoln
claimant's claim for benefits” “upon request[.]” 29 C.F.R.
§ 2560.503-1(h)(2)(iii) (emphasis added); see also 29 U.S.C.
§ 1133(2) (affording claimants “a reasonable opportunity …
for a full and fair review” after denial of a claim for benefits).
There is no evidence in the record that Mullins requested the
records, nor that Lincoln denied any requests.

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abused its discretion, and the termination of Mullins’s benefits
was arbitrary and capricious; there are no genuine issues of
material fact that could lead a reasonable jury to find otherwise.
We are accordingly required to vacate the District
Court’s decision and remand for entry of summary judgment
in favor of Mullins. The District Court, in turn, must order
Lincoln to retroactively reinstate Mullins’s benefits, effective
from the date of termination. Miller, 632 F.3d at 857 (“In the
termination context, … a finding that a decision was arbitrary
and capricious means that the administrator terminated the
claimant’s benefits unlawfully. Accordingly, benefits should
be reinstated to restore the status quo.”); see also Noga, 19
F.4th at 279 (affirming reinstatement of benefits after wrongful
termination). This, of course, is without prejudice to Consol’s
ongoing opportunity to again review Mullins’s benefit status
as permitted by the Plan.
C. The District Court Should Decide the Offset
Issue in the First Instance
Lastly, Mullins argues that Lincoln, on behalf of
Consol, improperly offset his benefits by including in the offset
the Social Security benefits received by his dependent children.
The amount of the offset was consequently and wrongly
increased. In its final termination of benefits, Lincoln
informed Mullins that the Plan overpaid him $70,576.39 and
requested repayment. Because the District Court did not
reinstate his benefits, it ruled that “it need not reach the Social
Security offset claim.” (J.A. at 10 n.5.)
Absent an extraordinary circumstance, the District
Court should decide an issue in the first instance. See

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O’Hanlon v. Uber Techs., Inc., 990 F.3d 757, 763 n.3 (3d Cir.
2021) (“[A]s a ‘court of review, not of first view,’ we will
analyze a legal issue without the district court’s having done so
first only in extraordinary circumstances.” (quoting Frank v.
Gaos, 139 S. Ct. 1041, 1046 (2019) (per curiam) (citation
omitted))). No such extraordinary circumstance exists here.
Because we will remand for the District Court to reinstate
Mullins’s benefits, we will also remand for the District Court
to determine the correct amount of the Social Security offset in
the first instance. Cf. Sciarotta v. Bowen, 837 F.2d 135, 141
(3d Cir. 1988) (remanding to the district court for a calculation
of benefits because the record was “not sufficiently
complete[,]” and the determination was “more appropriate for
the district court in the first instance”).
III. CONCLUSION
For the foregoing reasons, we will vacate the judgment
of the District Court and remand for entry of summary
judgment in favor of Mullins, with his benefits to be
retroactively reinstated, effective from the date of termination.
The District Court should also consider Mullins’s claim that
the Social Security offset was in error.

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