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Trust Life Ins. Co., 910 F.2d 534, 538 (9th Cir. 1990)(an inadequate investigation provides an unreasonable basis for a decision and is arbitrary and capricious; Halpin v. W.W. Grainger, Inc., 962 F.2d 685, 691 (7th Cir. 1992)(must ask for missing information).

Delta received a report from Dr. Maser dated July 6, 1995 stating that he intended

on having a psychological evaluation performed on Ms. Wolf by Dr. Frank37. This

examination was conducted on August 17, 1995, prior to Delta’s final decision to deny

benefits. Delta never followed up with Dr. Maser to determined whether or not the

psychological evaluation was performed. Dr. Frank’s report was never considered by

Delta when it made its decision. One of the tests performed on Ms. Wolf was a Human

Activity Profile which determined that Ms. Wolf has an activity age of seventy plus

years. Delta made its decision without having this valuable and easily obtainable

information before it38.

“Defendants, as Trustees of the Pension Plan, had a duty to take an initiative themselves to cause reasonably available evidence-that is, evidence substantially bearing upon the plaintiff’s claim and available through reasonable efforts-to be developed and considered in the decisionmaking process. Their determination that they should proceed to deny plaintiff’s application without having caused the reasonable available evidence to be gathered and placed before them for consideration was an error of law by reason of which their denial of his application was ‘erroneous on a question of law’.”

Toland v. McCarthy, 499 F.Supp. 1183, 1190 (D. Mass. 1980).

In addition, Delta did not ask for or ensure that it had all the treatment notes and

medical records in its possession before it made the decision to deny benefits39.

“The requirement that courts defer to the decisions of trustees cannot mean that we must affirm decisions by trustees who are so biased, obstinate, or lazy that they will not hear the claimant.”

37 38 See, Exhibit G. Nor did Delta use its authority to have Ms. Wolf submit to a medical examination by a physician appointed on its behalf. See, footnote 36, 39 .


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