author: TORRUELLA, Circuit Judge.

text:
    UNITED STATES, Plaintiff, Appellant, v. Scott G. BAKER, Robyn Baker, Defendants, Appellees, Onewest Bank, F.S.B., Defendant.
    No. 16-1415
    United States Court of Appeals, First Circuit.
    March 24, 2017

      Norah E. Bringer, Attorney, Tax Division, Department of Justice with whom Caroline D. Ciraolo, Principal Deputy Assistant Attorney General, Thomas J. Clark, Attorney, Tax Division, and Carmen M. Ortiz, United States Attorney, were on brief, for appellant.
    D. Sean McMahon, with whom Eric J. Rietveld and McMahon & Associates, PC, Boston, MA, were on brief, for appellee Robyn Baker.
    Before TORRUELLA, THOMPSON, and KAYATTA, Circuit Judges.
   TORRUELLA, Circuit Judge.

Scott G. Baker used a tax shelter to reduce his taxable income for the years 1997-2002. In 2008, he divorced his wife Robyn Baker in order to fraudulently transfer assets and avoid some of his tax liability. Following an agreed judgment for over five million dollars against Scott in 2015, the dispute narrowed to whether and to what extent the government’s tax liens attached to certain assets. After the district court set aside the Bakers’ separation agreement as a fraudulent transfer, it proceeded to re-divide and reallocate these assets applying Massachusetts law. The government’s tax liens attached directly to any assets allocated to Scott. The government also argued that its tax liens attached indirectly to certain assets allocated to Robyn.

This appeal concerns the district court’s allocation of two assets in particular (1) funds that were directly traceable to Scott’s tax shelter (the “Escrowed Funds”); and (2) a property the Bakers owned in Hingham, Massachusetts (the “Hingham property”). The district court divided both assets more or less evenly, reasoning that it was applying “an equitable 50/50 division of the couple’s assets consistent with the common-law community property system adopted by Massachusetts and recognized as valid by the IRS.” In order to effectuate this division as to the Hingham property, the court ordered it to be sold and half the proceeds to be paid to the government and half to Robyn.

The government challenges the 50/50 division of the Escrowed Funds on the ground that Massachusetts is not a community property state. In fact, Massachusetts law requires a judge to consider, either explicitly or by clear implication, fourteen factors in order to arrive at an equitable division of the parties’ assets. See Bowring v. Reid, 399 Mass. 265, 503 N.E.2d 966, 967-68 (1987). Because it is not clear to us that the district court considered these fourteen factors, we vacate and remand the division of the Escrowed Funds.

The government does not challenge the 50/50 division of the Hingham property. Instead, it argues that it is entitled to Robyn’s half of the proceeds from the sale on a lien-tracing theory. The district court rejected this theory on the ground that the government had not submitted evidence sufficient to trace the liens with the required level of specificity. We affirm this aspect of the district court’s ruling.

I. Background

A. Factual History

In December 2002, Scott G. Baker and his business partner sold eight Planet Fitness gyms to Bally Fitness for approximately $15 million, including Bally Fitness stock that he later sold for $3.4 million. He used a Son-of-BOSS tax shelter to reduce his taxable income on gains from the Planet Fitness sale, claiming a negative $2.5 million in income in his 2002 return, which he filed separately from his wife. Scott then amended his tax returns for 1997-2001 to carry back the loss, leading the IRS to refund “virtually all” of the taxes the Bakers had paid in the years 1999-2001.

In June of 2003, and as part of the Son-of-BOSS tax shelter, Scott established and became the settlor of the “Scott Baker Family Trust” (the “Family Trust”) in the Cayman Islands. He chose Royal Bank of Canada Trust Company to be the initial trustee, and granted himself a one-third beneficial interest, with the remaining interests divided among Robyn and their two children. Scott had the power to add or exclude beneficiaries and to appoint successors to the trustee(s). The trustee(s) had discretion to disburse the funds in the Family Trust to any of the beneficiaries, to end the trust at any time, and to invest its capital and income.

Scott deposited the proceeds from the sale of the Bally Fitness stock into the Family Trust, and instructed the Trustee to invest the corpus of the Family Trust into a hedge fund called International Management Associates (“IMA”). Late in 2005, the Bakers learned that IMA was in fact a Ponzi scheme and that all of the money had disappeared. IMA filed for bankruptcy in 2006.

In August of 2005, the Bakers purchased a home in Hingham, Massachusetts, which they owned as tenants by the entirety, for just over $1.6 million. In the same month, the IRS opened an examination of Scott Baker’s 2002 tax return. Scott agreed to participate in the IRS’s Global Settlement Initiative, agreeing to pay $1.2 million in outstanding taxes. However, he was removed from the program in 2007 after the IRS determined he was unable to pay the agreed amount through his disclosures on Form 433-A, which “collect[s] information on a debtor’s current assets when he or she claims an inability to pay the taxes owing.” Scott contends that his inability to pay was due to the losses he suffered in the IMA Ponzi scheme.

In February 2007, the Bakers remortgaged their Hingham property with Scott as the sole mortgagor; on the same day, they established the S&R Realty Trust with Robyn as trustee and transferred the title of their Hingham Property into the trust. They also established the C&S Realty Trust on the same day, with Robyn as sole trustee and their two children as primary beneficiaries, and transferred into it a beach house located in Scituate, Massachusetts. Scott did not receive any consideration for transferring his interests in the properties to the trusts. In November 2007, Robyn sold the Scituate property and deposited the $433,000 in proceeds into a South Shore Bank account owned by C&S Trust. She used the majority of the money to pay down loans secured by the Hingham property, and the remainder on living expenses.

On January 10, 2008, the Bakers signed a separation agreement, and the following day the two filed for divorce. The agreement, which was incorporated into the final divorce judgment, gave most of the assets to Robyn, but most of the liabilities to Scott. Robyn received sole ownership of the Hingham Property, as well as of the New Hampshire properties worth $200,000 as of March of 2007. She also received a boat, a car, two motorcycles, and title to any money recovered from the IMA investment. Scott, on the other hand, assumed the $875,000 mortgage on the Hing-ham Property. According to his testimony, he “regularly made monthly payments” to Robyn of $6,200 to apply to the mortgage. He received real property relating to his construction business, and he agreed to assume all marital credit card debt and all liability relating to his construction business. He maintained sole ownership of his business ventures, including a Planet Fitness gym in Scarsdale, New York, with an asserted worth of $250,000 at the time of divorce. Scott claimed losses on this business in both his 2007 and 2008 federal income tax returns.

The agreement stipulated that Scott could continue to reside in the Hingham Property, and he did so after the divorce became final in May of 2008. After the divorce, Robyn continued to refer to Scott as her husband, though she testified that those references were mistakes or oversights. Scott testified that he had never told his children of the divorce, and he did not know if they were aware of the separation. The Bakers continued to vacation together, often with their family friends, Michael Theriault and his wife Lori Leo. Theriault testified that the Bakers took an estimated fifteen ski trips with them, as well as numerous camping trips. Theriault also estimated that over the course of four years, he and his wife had dinner with the Bakers approximately 250 times. For the duration of their friendship, Theriault and Leo were under the impression that the Bakers were married. Their friendship eventually went sour, after Robyn, who had been working for Leo, went to work for a competitor. Around the same time, it came to light that Theriault and Robyn had been having sexual relations. When Theriault went to talk to Scott shortly thereafter, Scott allegedly assaulted him, gouged out Theriault’s artificial eye and attempted to gouge out his good eye as well.

On May 14, 2009, the IRS determined that Scott had underpaid his taxes for the years 1997-2002 and assessed taxes and penalties for the 1997, 1998, and 2002 tax years. On May 20, 2010, it made additional assessments for the years 1999-2001. Per I.R.C. § 6321, federal tax liens “arose on the dates of assessment ... and attached to all of [Scott’s] property and interests in property.”

In November of 2012, the trustee of the IMA bankruptcy issued a check to the Family Trust for just over $202,000 and mailed the check to Scott, who testified that he was “flabbergasted” to have recovered any money. Robyn — who had by this time been made the sole trustee of the Family Trust — invested the money from the IMA bankruptcy payment into a design company owned by a friend, which then hired Scott to do construction on a home being built by the- company. She testified that she gave the money to the company in $9,000 increments because she “didn’t want the IRS to take [her] money.” The value of this investment subsequently increased to $528,962.28.

The Family trust received a second payment from the IMA bankruptcy for $84,000, which Robyn used to pay legal fees for both her and Scott. Finally, a third payment from the IMA bankruptcy for $70,116.49 was added to the Bakers’ share of the proceeds from the design business to comprise the escrowed funds now at issue, for a total of $599,078.77 (the “Es-crowed Funds”).

B. Procedural History

The United States commenced this suit in May 2013 when Scott failed to pay the tax liabilities assessed against him. The United States sought collection of the tax liabilities, as well as enforcement of federal tax liens against property that had been fraudulently transferred to Robyn and liens attached to a property interest held by Robyn. The United States claimed first that Scott had fraudulently transferred to Robyn his interest in the Hingham Property, and second that the federal tax liens had attached to the Hingham Property to the extent of the mortgage payments that Scott made after the tax liens arose.

On January 29, 2015, the district court entered an agreed judgment against Scott in the amount of $5,026,915.43 for federal income taxes due for the years 1997-2002. Thus, the dispute was narrowed to the issue of the extent to which the tax liens attached to various assets.

On August 17, 2015, following a bench trial, the district court found that the February 2007 transfers of property into trusts were fraudulent and that the Bakers had divorced with the purpose of fraudulently transferring assets. It identified several “badges of fraud” under the Massachusetts Uniform Fraudulent Transfer Act that applied to the property transfers in the Bakers’ 2008 settlement agreement, including that: (1) they continued to live together after their divorce; (2) Scott remained at the Hingham Property and made the majority of the mortgage payments; (3) they concealed the divorce and held themselves out as married; (4) Robyn received substantially all of Scott’s assets in the divorce agreement; (5) they hid assets after the divorce; (6) there was not adequate consideration for Scott’s transfer; (7) Scott was insolvent when the transfer occurred; and (8) the transfer was made after a substantial debt was incurred. The district court also found additional indicia that the divorce had been obtained so as to fraudulently transfer assets: (1) only Robyn had been represented by counsel; (2) they continued to live together in the house that had been transferred by the divorce; (3) Scott paid the mortgage and other bills related to the house; and (4) Robyn received most of the assets while Scott received most of the debts in the divorce.

The district court accordingly entered a partial judgment on October 23, 2015, holding in favor of the United States on a theory of fraudulent transfer, adding that while the government’s lien-tracing claim was “not rejected,” it was also “not embraced.” The district court found that the government’s tax liens attached to Scott’s one-half interest in the Hingham Property, and ordered that the property be sold to satisfy Scott’s tax liabilities. It also ruled that Scott had one-half interests in the New Hampshire properties and other personal property, which he had fraudulently conveyed to Robyn, and that the government could take necessary action to recover those assets. Finally, it found that the liens attached to Scott’s interest in the Escrowed Funds and ordered the funds be turned over to the United States, giving Robyn time to submit a claim for whatever portion of the funds she believed she was due. The district court did not resolve which portion of the Escrowed Funds Robyn was entitled to. Rather, the district court indicated that it would “separately adjudicate the matter unless the parties are able to come to an agreement on an appropriate division of the escrowed funds.”

After the parties failed to reach such an agreement, the district court divided the Escrowed Funds evenly between Scott and Robyn. The district court noted that it had applied “an equitable 50/50 division of the couple’s assets consistent with the common-law community property system adopted by Massachusetts and recognized as valid by the IRS” for the division of the couple’s real property. Because the district court saw “no reason to depart from the 50/50 equitable formula,” it used the same formula to divide the Escrowed Funds. It also deemed Scott to be entitled to half of the $84,000 second payment from the IMA bankruptcy and Robyn to have taken that entire payment for herself. Thus, it compensated Scott for his $42,000 share of that payment out of the Escrowed Funds. By the court’s final calculations, Robyn was found entitled to $256,539.38, with the remaining $342,539.39 going through Scott to the United States. The United States now appeals.

II. Standard of Review

This Court generally “review[s] a district court’s ultimate decision to grant or withhold an equitable remedy for abuse of discretion.” Texaco P.R., Inc. v. Dep’t of Consumer Affairs, 60 F.3d 867, 875 (1st Cir. 1995). However, where a court applies “an improper standard to the facts, it may be corrected as a matter of law.” United States v. Singer Mfg. Co., 374 U.S. 174, 194 n.9, 83 S.Ct. 1773, 10 L.Ed.2d 823 (1963). “[A] district court by definition abuses its discretion when it makes an error of law.” Alison H. v. Byard, 163 F.3d 2, 4 (1st Cir. 1998).

Determinations regarding the sufficiency of evidence during a bench trial are legal determinations, and hence are reviewed de novo. See In re Pharm. Indus. Average Wholesale Price Litig., 582 F.3d 156, 162-63 (1st Cir. 2009) (citing United States v. 15 Bosworth St., 236 F.3d 50, 53 (1st Cir. 2001)).

III. Discussion

A. The Escrowed Funds

Although the divorce of the Bakers was entered into in order to fraudulently transfer assets, the divorce itself is not therefore invalid. Consequently, it fell to the district court to divide the marital assets following the divorce. In Massachusetts, such a division is governed by Mass. Gen. Laws ch. 208, § 34 (“§ 34”). The district court stated that it “applied an equitable 50/50 division of the couple’s assets consistent with the common-law community property system adopted by Massachusetts and recognized as valid by the IRS.”

Contrary to the statement of the district court, Massachusetts is not a community property state, and its laws do not prescribe a “50/50” division of marital assets upon divorce. Rather, Massachusetts law requires “an equitable, rather than an equal division of property.” Williams v. Massa, 431 Mass. 619, 728 N.E.2d 932, 939 (2000). In order to arrive at this equitable division, a court must consider

the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties, the opportunity of each for future acquisition of capital assets and income, and the amount and duration of alimony, if any, ... [as well as] the present and future needs of the dependent children of the marriage.

Mass. Gen. Laws ch. 208, § 34. In addition, a court may, but need not, consider “the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit.” Id. Thus, § 34 “contains fourteen mandatory factors which the judge must consider, and four discretionary factors which the judge may consider.” Bowring v. Reid, 399 Mass. 265, 503 N.E.2d 966, 968 (1987).

In dividing assets under § 34, a court must also “ma[k]e findings consistent with [its] obligations under G.L. c. 208, § 34, indicating that [it] has fairly considered all factors relevant under § 34 and has not considered any irrelevant matter,” in which case its determination “may not be reversed unless plainly wrong and excessive.” Redding v. Redding, 398 Mass. 102, 495 N.E.2d 297, 300 (1986) (citations omitted). The court’s reasons for coming to its conclusions under § 34 “must be apparent in [its] findings and rulings.” Id. at 301. “The rationale for the decision must appear in the judgment either explicitly or by clear implication,” and “the mere listing of findings, even if detailed, is not enough.” Bowring, 503 N.E.2d at 968.

In the present case, while the district court did make extensive factual findings, it is not clear to us that the district court considered all the fourteen factors required under § 34. To the contrary, the district. court used a “50/50 equitable formula” to divide the Escrowed Funds without explanation as to how any of the facts in the case factored into this decision. This implies that it did not consider the factors of § 34, but rather simply divided the property evenly between the Bakers.

The government also argues that the district court, in dividing the Escrowed Funds, was wrong to consider Massachusetts’s “strong public policy of protecting the interests of nondebtor spouses.” Bakwin v. Mardirosian, 467 Mass. 631, 6 N.E.3d 1078, 1085 (2014). Because the district court appeared to have simply applied a “50/50” formula, however, it is not clear to us that this public policy factored into the district court’s analysis in any way. To the extent that the district court did rely on this public policy, such reliance was misplaced. “The judge may consider only factors which are enumerated in § 34, in making alimony and property division determinations.” Bowring, 503 N.E.2d at 968 (emphasis added).

B. The Hingham Property

The government also urges us to find that the district court erred in rejecting its lien-tracing theory. We decline to do so.

The government argues that its tax hens attached to any property Scott possessed on or after May 14, 2009, the date of the first tax assessment. The government infers from the Bakers’ testimony that one of the Bakers made the mortgage payment on the Hingham property every month up to the time of trial, and that each payment was $6,200. The government notes that the district court found that Scott ultimately “made the majority of the mortgage payments.” Thus, reasons the government, Scott must have paid at least half of the total mortgage payments made on the Hingham property between June 2009 and December 2014 (just before the start of trial) using money on which the government had a tax lien. By that logic, the government concludes that it had a lien on the property no smaller than $6,200 times sixty-seven months divided by two, or $207,700. Dividing that lien between the two halves of the property, the government claims that it has a lien of $103,850 on Robyn’s half, which exceeds her share of the sale proceeds. Thus, on this argument, the government would be entitled to all the proceeds from the sale of the Hing-ham property.

The government’s argument suffers from a fatal flaw. The district court found that “for the lien tracing theory to be viable the government has the burden of showing with particularity the sums transferred by [Scott] Baker to which the tax liens attach.” However, the district court never made a finding as to the amount or the number of the mortgage payments. The government relies entirely on the testimony of the Bakers — which the government itself concedes was contradictory— for the proposition that the amount of the payment was $6,200, and then assumes that every payment during the relevant time period was made in full. The district court found “neither of the Bakers to be credible witnesses, at least insofar as their financial interests are concerned. Leo credibly testified that [Robyn] has problems with honesty. [Robyn] admitted that she struggles with the truth.”

We agree with the district court that “the equivocal testimony of the Bakers by itself [is not] sufficient to satisfy the government’s burden in a lien tracing context.” The government has not here met its burden of distinctly tracing its lien, because the evidence it has presented is insufficient — the government has proven neither the amount of any mortgage payment, nor has it proven that all mortgage payments were in fact made. We do not mean to hold that every time the government wishes to trace a lien it must be able to prove the amounts involved to the penny — but it should present the court with more than the testimony of witnesses who struggle with the truth.

IV. Conclusion

For the foregoing reasons, the district court’s February 19, 2016 Memorandum and Order, as well as paragraph 6 of the February 19, 2016 Amended Judgment, are vacated, and the case is remanded for further proceedings consistent with this opinion.

Vacated and Remanded.

      . As will become clear in this opinion, Robyn appears to be implicated in at least some of Scott’s fraudulent activity. However, she was never put on trial, and it appears that the government is not pursuing any claims for fraud against her. As such, nothing in this opinion is meant to suggest that Robyn has been found guilty of fraud.

      . Son-of-BOSS (Bond Options Sales Strategy) tax shelters involve creating capital losses on paper to offset real capital gains. See, e.g., Fid. Int'l Currency Advisor A Fund, LLC v. United States, 661 F.3d 667, 668 (1st Cir. 2011) ("the plan ... put into effect required [the U.S. taxpayer] to form a partnership with a foreign national; that partnership would engage in transactions that would generate largely offsetting gains and losses without net risk; the gain component would be principally allocated to the foreign national; the loss component would be principally allocated to [the U.S. taxpayer] and used on his individual return to offset gains on his exercise of the [ ] stock options, virtually eliminating tax on those gains.”).

      . The United States notes that the district court appears to have made a mathematical error:. the government’s share should have been $341,539.39, and Robyn’s share $257,539.38.

      . ' It is undisputed that Massachusetts law applies to the division of the various assets in this case.

      . To the extent that the government urges us to apply the § 34 factors ourselves, we decline. The district court is in a better position to apply what are typically findings of fact.

      . Indeed, Robyn Baker testified that “[c]ur-rently the mortgage is [$]6200 interest-only payments.” This leaves open the possibility that the mortgage payments were not $6,200 at all times.

      . We have considered the parties' other arguments and found them to be without merit.


source: Caselaw Access Project

author: SELYA, Circuit Judge.

license: Public Domain

text:
    STEPHANIE C., Individually and as Guardian of M.G., Plaintiff, Appellant, v. BLUE CROSS BLUE SHIELD OF MASSACHUSETTS HMO BLUE, INC., Defendant, Appellee.
    No. 16-1997
    United States Court of Appeals, First Circuit.
    March 24, 2017

      Brian S. King, with whom Brian S. King, PC, Salt Lake City, UT, and Jonathan M. Feigenbaum, Boston, MA, were on brief, for appellant.
    Joseph D. Halpern, with whom Law Office of Joseph Halpern and Donald J. Sav-ery, Boston, MA, were on brief, for appel-lee.
    Before BARRON, Circuit Judge, SOUTER, Associate Justice, and SELYA, Circuit Judge.

       Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation.

   SELYA, Circuit Judge.

In this case, brought pursuant to the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1132(a)(1)(B), plaintiff-appellant Stephanie C. (Stephanie) continues to seek reimbursement for certain expenses connected with the treatment of her teenage son, M.G. The plan administrator, defendant-appellee Blue Cross Blue Shield of Massachusetts HMO Blue, Inc. (BCBS), denied the portions of her claim that are now in dispute. The district court, reviewing the denial de novo, upheld BCBS’s action. Stephanie appeals. After careful consideration, we affirm.

I. BACKGROUND

This dispute is no stranger to our court: it comes before us for a second time. See Stephanie C. v. Blue Cross Blue Shield of Mass. HMO Blue, Inc. (Stephanie I), 813 F.3d 420 (1st Cir. 2016). Because there is no need to repastinate ground already well-plowed, we begin by reproducing our earlier summary of how the case arose.

Stephanie’s son, M.G., is a derivative beneficiary of an ERISA-regulated group health insurance plan (the Plan) furnished by his father’s employer, Har-monix Music Systems, Inc. (Harmonix). The Plan is denominated as a “Preferred Blue PPO Preferred Provider Plan,” the terms of which are set out in a subscriber certificate (the Certificate). In pertinent part, the Certificate makes clear that coverage under the Plan remains subject to a determination of medical necessity made by BCBS. It specifies that the Plan covers treatment for psychiatric illnesses, including biologically based conditions (e.g., autism) and, for children until age nineteen, for non-biologically based conditions (e.g., behavioral problems). Such benefits do not accrue for residential, custodial, or medically unnecessary services, such as those performed in “educational, vocational, or recreational settings.” The Certificate also stipulates that only the least intensive type of setting required for treatment of a condition will receive approval. Any non-emergency inpatient course of treatment needs approval before the patient is admitted to the facility.
M.G. experienced a number of mental health issues beginning in early childhood ....
M.G.’s condition intensified in severity in the summer of 2010 (the summer between his freshman and sophomore years in high school). At that time, he became physically aggressive toward his parents and attended weekly mental health therapy sessions. Although enrolled in an intensive outpatient educational facility, he continued to exhibit aggressive behavior that led to multiple arrests. His problems escalated because he steadfastly refused to take medications despite a court order requiring him to do so.
Concerned about the apparent inadequacy of his care, Stephanie enrolled M.G. (at her own expense and without prior approval) in Vantage Point by As-piro (Aspiro), a wilderness therapy program based in Utah, which specializes in neurodevelopmental disorders. M.G. remained at Aspiro from October of 2010 to January of 2011. His psychological evaluators there diagnosed him as having Asperger’s Syndrome, anxiety disorder, and attention deficit and hyperactivity disorder. Noticing some improvement, they recommended that he continue therapy in a longer-term setting.
On the advice of a consultant and without prior approval, Stephanie proceeded to enroll M.G. in Gateway Academy (Gateway), a private school treatment center in Utah that BCBS insists is “out of network” (that is, not in a contractual relationship with BCBS). While at Gateway, M.G.’s aggressive and emotionally erratic behavior continued; among other things, he engaged in inappropriate sexual contact and committed a variety of petty criminal offenses.
In April of 2011, Harmonix submitted claims to BCBS for three sets of psychiatric evaluations and consultation services (performed during the period from January 27, 2011 to February 23, 2011) in connection with M.G.’s admission to Gateway. In late June, BCBS informed Harmonix that Gateway was a non-covered provider but that it would cover the three sets of evaluations “as a one-time exception.” Gateway itself submitted claims in September of 2011 and March of 2012 seeking reimbursement for principally residential services rendered to M.G. dating back to January of 2011.
In an informal process, BCBS denied these room and board claims because the services were not medically necessary and the submitted documentation did not support the need for an inpatient admission. In an explanatory letter dated May 25, 2012, BCBS advised M.G.’s father that its denial of benefits was based largely upon an evaluation conducted by Dr. Elyce Kearns, a psychiatrist-reviewer, who relied upon “In-terQual,” a nationally recognized set of criteria used to assess the level of care for mental health patients. Given Dr. Kearns’ evaluation, BCBS concluded that M.G.’s “clinical condition does not meet the medical necessity criteria required for an acute residential psychiatric stay.”
About a year later, Stephanie requested and received a sheaf of pertinent records from BCBS. She then contested the denial of coverage through BCBS’s internal review process. In support of her appeal, Stephanie furnished documentation from M.G.’s psychotherapists, evaluators, and educators in addition to police reports and juvenile court records. Collectively, these materials described M.G.’s difficulties involving physical and verbal aggression, emotional volatility, lack of impulse control, and thinking errors. This pattern of conduct, Stephanie maintained, posed a danger to M.G. and to others.
A second psychiatrist-reviewer, Dr. Kerim Munir, scrutinized the administrative record and recommended that BCBS uphold the denial of benefits. He cited the absence of any medical necessity for the placement and reiterated the conclusions of the first psychiatrist-reviewer. On June 19, 2013, BCBS denied the internal appeal in a letter to Stephanie.

Id. at 423-25 (footnote omitted).

Having exhausted her administrative remedies, Stephanie sued BCBS in an effort to recover the denied benefits. See 29 U.S.C. § 1132(a)(1)(B). The parties cross-moved for summary judgment, and the district court entered judgment in favor of BCBS. See Stephanie C. v. Blue Cross Blue Shield of Mass. HMO Blue, Inc., No. 13-13250, 2015 WL 1443012, at *12 (D. Mass. Mar. 29, 2015). Stephanie appealed.

We did not reach the merits of Stephanie’s appeal but, rather, focused on a threshold issue, holding that the district court erred in reviewing BCBS’s denial of benefits for abuse of discretion. See Stephanie I, 813 F.3d at 428-29. We explained that the court should have reviewed the denial de novo because the Certificate did not unambiguously confer discretionary decisionmaking authority on the plan administrator (BCBS). See id. (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989) (holding that a denial of ERISA benefits “is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan”)). Consequently, we vacated the district court’s decision in relevant part and remanded for reappraisal of the denial of benefits under the appropriate standard of review. See id. at 429.

On remand, the district court — this time exercising de novo review — again entered judgment in favor of BCBS. See Stephanie C. v. Blue Cross Blue Shield of Mass. HMO Blue, Inc. (Stephanie II), No. 13-13250, 2016 WL 3636978, at *4 (D. Mass. June 30, 2016). This timely appeal followed.

II. STANDARD OF APPELLATE REVIEW

This appeal, like Stephanie’s earlier appeal, presents a standard of review quandary — but one that operates on a different level. The first time around, we were asked to determine what standard of review the district court should employ in its review of the record of proceedings before the plan administrator. See Stephanie I, 813 F.3d at 428-29. On remand, the district court performed that task and, as we had instructed, exercised de novo review. See Stephanie II, 2016 WL 3636978, at *4. The question now becomes what standard we should apply in reviewing the district court’s decision.

Stephanie posits that we should undertake de novo review at the appellate level. Her argument leans heavily on the fact that the parties presented this case to the district court on cross-motions for summary judgment. This argument has a certain superficial appeal: after all, appellate review of a district court’s grant or denial of summary judgment is normally de novo, see, e.g., Murray v. Kindred Nursing Ctrs. W. LLC, 789 F.3d 20, 25 (1st Cir. 2015); Houlton Citizens’ Coal. v. Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999), and that standard is not altered by the incidence of cross-motions for summary judgment, see, e.g., Blackie v. Maine, 75 F.3d 716, 721 (1st Cir. 1996).

The rationale behind this practice is straightforward. In the ordinary case, a motion for summary judgment asks the district court to decide questions of law: does the summary judgment record, viewed in the light most hospitable to the nonmovant, reveal the absence of any genuine issue of material fact and confirm that the movant is entitled to judgment as a matter of law? See Fed. R. Civ. P. 56(a); Murray, 789 F.3d at 25. If the answers to these questions are in the affirmative, the case ends; if the answers are in the negative, the case is set for trial.

But one size does not fit all. As we previously have noted, a motion for summary judgment has a different office in administrative law cases. There, a summary judgment motion “is simply a vehicle to tee up a case for judicial review” based on the administrative record. Bos. Redev. Auth. v. Nat’l Park Serv., 838 F.3d 42, 47 (1st Cir. 2016). “That the parties brought the issues forward on cross-motions for summary judgment is not significant; substance must prevail over form....” S. Shore Hosp., Inc. v. Thompson, 308 F.3d 91, 97-98 (1st Cir. 2002). The controlling feature is that the parties have presented the case to the court for an up-or-down decision on the administrative record, see id. and judicial decisionmaking proceeds on that basis.

“ERISA benefit-denial cases typically are adjudicated on the record compiled before the plan administrator.” Denmark v. Liberty Life Assur. Co., 566 F.3d 1, 10 (1st Cir. 2009). Such cases bear a strong family resemblance to administrative law cases. Thus — as in the administrative law context — a motion for summary judgment is simply a mechanism for positioning an ERISA benefit-denial case for a district court’s decision on the record of proceedings before the plan administrator. See Bard v. Bos. Shipping Ass’n, 471 F.3d 229, 235 (1st Cir. 2006) (explaining that “[i]n the ERISA context, summary judgment is merely a vehicle for deciding the case”).

Stephanie tries to avoid the force of this analogy by relying on our decision in Sánchez-Rodríguez v. AT & T Mobility Puerto Rico, Inc. for the proposition that the intent of the parties at the time they moved for summary judgment ought to govern the standard of appellate review. See 673 F.3d 1, 11 (1st Cir. 2012). Sánchez-Rodríguez, though, is a horse of an appreciably different hue. That case did not involve anything resembling an administrative record; it was, instead, a garden-variety employment discrimination suit in which the parties had filed cross-motions for summary judgment. See id. at 4. The district court assumed the case to be a “case stated,” that is, a case in which “the parties waive trial and present the case to the court on the undisputed facts in the pretrial record.” Id. at 10-11 (quoting TLT Constr. Corp. v. RI, Inc., 484 F.3d 130, 135 n.6 (1st Cir. 2007)). We found the “case stated” characterization inappropos (even though the parties had agreed on some facts); held that the district court should not have decided the summary judgment motions on a case stated basis; and affirmed on other grounds. See id. at 11, 16. Placed in its proper perspective, Sánchez-Rodríguez is not instructive here.

Our rejection of Stephanie’s two principal arguments does not answer the question of what standard of review an appellate court must apply in an ERISA benefit-denial case that is presented for decision exclusively on the record of proceedings before the plan administrator. BCBS suggests an answer to this question. It posits that we should review the district court’s decision, to the extent that it rests upon factual findings and inferences therefrom, only for clear error.

Logically, the nature of the district court’s review ought to figure importantly in determining the appropriate standard of appellate review. Where the ERISA plan grants the plan administrator discretionary authority, the district court must uphold that decision unless it is arbitrary, capricious, or an abuse of discretion. See D & H Therapy Assocs., LLC v. Bos. Mut. Life Ins. Co., 640 F.3d 27, 34 (1st Cir. 2011). In that event, it makes sense that appellate review should be de novo. See Colby v. Union Sec. Ins. Co. & Mgmt. Co. for Merrimack Anesthesia Assocs. Long Term Disab. Plan, 705 F.3d 58, 61 n.2 (1st Cir. 2013) (reviewing de novo district court’s determination that plan administrator had abused its discretion and explaining that “[wjhere applicable, the abuse of discretion standard binds all reviewing courts, whether district or appellate, in the evaluation of a plan administrator’s determinations”).

On the other hand, where the district court reviews the record of proceedings before the plan administrator de novo, the court may weigh the facts, resolve conflicts in the evidence, and draw reasonable inferences. See Orndorf v. Paul Revere Life Ins. Co., 404 F.3d 510, 518 (1st Cir. 2005). In such cases, the argument for a more deferential standard of review has at least a patina of plausibility. Cf. Dantran, Inc. v. U.S. Dep’t of Labor, 171 F.3d 58, 71 (1st Cir. 1999) (explaining that “courts regularly review factfinding done pursuant to a preponderance of the evidence standard for clear error”).

To complicate matters, our case law, specific to the ERISA context, appears murky. In Tsoulas v. Liberty Life Assurance Co., the claimant alleged that her long-term disability benefits had been wrongfully terminated. See 454 F.3d 69, 72 (1st Cir. 2006). The district court, exercising de novo review, entered judgment for the fiduciary. See id. Noting that “the parties submitted this case to the district court based on a stipulated record” of the proceedings before the plan administrator, we held that the court’s factual determinations were reviewable for clear error. Id. at 75-76; accord DiGregorio v. Hartford Comp’ve Emp. Ben. Serv. Co., 423 F.3d 6, 13 (1st Cir. 2005) (reviewing factual conclusion drawn by district court from record of proceedings for clear error).

In Orndorf, though, we exercised plenary review over a district court’s de novo review of a plan administrator’s benefit-denial decision and questioned whether factfinding has any place in the typical ERISA case. See 404 F.3d at 516-18. We suggested that “[w]here review is properly confined to the administrative record before the ERISA plan administrator, ... there are no disputed issues of fact for the court to resolve.” Id. at 518.

While we regard this dive into the case law as informative, we need not resolve the tension in our decisions. Standards of review sdmetimes have decretory significance — but sometimes they do not. In the last analysis, this case falls into the latter camp: we have examined the record with care, and we are satisfied that, regardless of whether we review the district court’s decision de novo or (more deferentially) for clear error, the outcome would be the same. Accordingly, we leave the standard of appellate review question open; assume, favorably to Stephanie, that our review is de novo; and proceed on that assumption.

III. THE MERITS

The district court concluded that BCBS was justified in denying coverage for M.G.’s expenses at Gateway for two independently sufficient reasons. First, the court held that the Plan does not provide coverage for services rendered in an educational setting. See Stephanie II, 2016 WL 3636978, at *2. Second, the court held that, in all events, the services in question were not medically necessary within the purview of the Plan. See id. at *3. An overarching principle applies to both aspects of the district court’s decision: an ERISA beneficiary who claims the wrongful denial of benefits bears the burden of demonstrating, by a preponderance of the evidence, that she was in fact entitled to coverage. See Gent v. CUNA Mut. Ins. Soc’y, 611 F.3d 79, 83 (1st Cir. 2010).

This case is fact-intensive, and it would serve no useful purpose for us to mine the record extravagantly. For present purposes, we think it sufficient to explain briefly why we conclude — as did the district court — that Stephanie, although well-represented by able counsel, failed to carry her burden on either of the two identified grounds.

Our starting point is the Certificate itself, which makes pellucid that no benefits are provided for “services that are performed in educational ... settings.” It goes on to describe such settings:

[tjhese programs may have educational accreditation. The staff may include some licensed mental health providers who may provide some therapy. No benefits are provided for any services furnished along with one of these non-covered programs. For example, no benefits are provided for therapy and/or psychotherapy furnished along with one of these non-covered programs.

The district court concluded, accordingly, that Gateway was an “educational setting,” Stephanie II, 2016 WL 3636978, at *2, and Stephanie does not offer an alternative reading of the Certificate that would square its exclusion of services rendered in educational settings with the coverage she seeks. She also does not contest that Gateway provided some educational services; that regular course work is a part of the program; that Gateway refers to its enrollees as “students”; and that the en-rollees attend scholastic classes and receive traditional letter grades and grade-point averages. Nor does she dispute that Gateway refers to its facility as a “campus” or that when an enrollee completes the Gateway program, he is said to have “graduated.” Given these uncontested facts, it is nose-on-the-face plain that Gateway is an “educational setting.” Stephanie resists this conclusion, arguing that the educational setting exclusion should not apply because education was not the “substantive purpose” for M.G.’s enrollment. The terms of the Certificate, though, do not admit of any such distinction. Rather, those terms state, with conspicuous clarity, that “[n]o benefits are provided for any services furnished along with one of these non-covered [educational] programs.”

Stephanie has a fallback position. She contends that BCBS did not properly notify her that Gateway’s educational setting constituted a reason for its denial of benefits. The underlying premise on which this contention rests is sound: a plan administrator, in terminating or denying benefits, may not rely on a theory for its termination or denial that it did not communicate to the insured prior to litigation. See Bard, 471 F.3d at 244; Glista v. Unum Life Ins. Co., 378 F.3d 113, 128-32 (1st Cir. 2004). Here, however, the conclusion that Stephanie draws from this premise is problematic. She concedes that, well before the commencement of any litigation, BCBS notified M.G.’s father (the holder of the Certificate and, thus, the subscriber) of the educational setting issue in a telephone call.

The Certificate provides that, if a claim is denied, BCBS “will send you and/or the health care provider” notice of the reason for the denial. The pronoun “you” is defined as “any member who has the right to the coverage provided by this health plan. A member may be the subscriber or his or her enrolled eligible spouse (or former spouse, if applicable) or any other enrolled eligible dependent.” To cinch matters, M.G.’s father was designated as an addressee for correspondence regarding M.G.’s claims.

Stephanie does not dispute that M.G.’s father was a proper recipient for such notices. She nonetheless rejoins that the educational setting message needed to be communicated in writing. See 29 U.S.C. § 1133(1) (requiring plan administrators to “provide adequate notice in writing to any participant or beneficiary whose claim for benefits under the plan has been denied, setting forth the specific reasons for such denial, written in a manner calculated to be understood by the participant”); see also 29 C.F.R. § 2560.503-l(g)(l) (“[T]he plan administrator shall provide a claimant with written or electronic notification of any adverse benefit determination.”). On that basis, she asserts that we should disregard the telephone call to M.G.’s father.

But there is a rub: Stephanie did not argue to the district court that the notice she received of the educational setting ground for denial was defective because it was not in writing. She focused, instead, on whether BCBS had notified her at all of the educational setting issue during the internal appeals process. She cannot now switch horses mid-stream in search of a swifter steed. See Teamsters, Chauffeurs, Warehousemen & Helpers Union v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992) (“If any principle is settled in this circuit, it is that, absent the most extraordinary circumstances, legal theories not raised squarely in the lower court cannot be broached for the first time on appeal.”). As a result, we hold, as did the court below, that the educational setting bar to coverage, adumbrated in the Certificate, justified BCBS’s denial of Stephanie’s claim.

Even though this holding is dispositive of Stephanie’s claim, we address succinctly, for the sake of completeness, the district court’s second ground for denying the claim: that M.G.’s stay at Gateway was not shown to be medically necessary. The court based this holding on a finding that M.G.’s treatment did not satisfy the Inter-Qual criteria for adolescent psychiatry, as implemented by BCBS’s internal policies. See Stephanie II, 2016 WL 3636978, at *3.

The Certificate dictates that BCBS “decides which health care services ... are medically necessary and appropriate for coverage.” Of course, on de novo review, we must be satisfied the plan administrator’s decision is correct. See Richards v. Hewlett-Packard Corp., 592 F.3d 232, 239 (1st Cir. 2010). Indeed, even under deferential review, the determination must be reasonable. See Colby, 705 F.3d at 62.

To facilitate this decisionmaking, BCBS reviewers reasonably consult the InterQual criteria, which are nationally recognized, third-party guidelines. The criteria provide a sensible structure for analyzing a patient’s particular symptoms, diagnoses, risks, and circumstances to determine what level of care is medically necessary.

As relevant here, the InterQual criteria invite a three-part analysis. First, the reviewer must analyze the patient’s clinical indications, that is, his current psychiatric diagnosis and symptoms. If the clinical indications suggest a need for further treatment, the reviewer must then consider the individual’s social risks. That consideration entails an examination of the remaining two parts of the algorithm: risks and level of care, respectively.

The district court did not make specific findings regarding M.G.’s clinical indications, and the logical inference is that the court deemed Stephanie’s proof on this point sufficient. Although BCBS claims that M.G.’s symptoms did not satisfy the listed criteria because he was not a chronic or persistent danger to himself or others within the week prior to his admission at Gateway as required by the InterQual criteria, the record belies this claim.

Under the InterQual criteria, an individual is a chronic or persistent danger to himself or others if he exhibits any one of several enumerated behaviors. One such enumerated behavior is unmanageable “[a]ngry outbursts/[a]ggression.” Another is “[s]exually inappropriate/aggressive/abusive” conduct, which (according to the notes accompanying the InterQual criteria) may include “noncontact acts” such as “sexual comments.”

We need not tarry. On this issue, it suffices to say that records from M.G.’s final week in the wilderness program describe M.G.’s continued struggle with his emotions. He would quickly become agitated with members of his cohort and curse at them, using “excessive inappropriate language including insults and perverted statements.” M.G.’s years-long pattern of outbursts and the prognosis formulated by his therapist at the wilderness program offer every indication that M.G.’s aggressive and inappropriate sexual comments will continue. Given this tableau, we believe that Stephanie carried her burden of showing that M.G. displayed clinical indications adequate to satisfy the InterQual criteria.

Stephanie’s proof does not fare as well on the remaining parts of the tripartite analysis. Under the InterQual criteria, Stephanie was required to show that M.G. had a record of unsuccessful treatment within the year prior to his admission to Gateway and that he was unable to be managed at a lower level of care (that is, a level of care less intensive than the Gateway program). The district court concluded that Stephanie had not satisfied either of these requirements. See Stephanie II, 2016 WL 3636978, at *3. On de novo review, we reach the same conclusion.

To begin, the record leaves no doubt that M.G. did not have a record of unsuccessful treatment within a year prior to his admission at Gateway. Prior courses of treatments, such as the wilderness program, undeniably improved M.G.’s symptoms. See id.

A few examples hammer home the point. M.G.’s discharge report from the wilderness program confirmed that, after finishing the program, he had a greater ability to express his emotions, problem solve, and deal with frustration and disappointment. So, too, the discharge summary disclosed that M.G. had “reduced his inappropriate talk and impulsive behaviors.” These are badges of improvement, signifying that the wilderness program achieved at least a modicum of success.

Arguing to the contrary, Stephanie relies on the recommendation of a therapist at the wilderness program for ongoing residential treatment of M.G. The notes accompanying the InterQual criteria, though, define unsuccessful treatment as a “lack of improvement of a patient’s symptoms and behaviors in previous treatment” or “inability to complete an adequate trial of treatment provided by a licensed program or clinician.” Under this standard, the fact that M.G. required further treatment did not mean that the previous treatment was unsuccessful; what matters is that M.G. did not exhibit the requisite “lack of improvement” needed to render his prior treatment unsuccessful. Stephanie does not explain how we can reconcile M.G.’s apparent improvement with the InterQual criteria’s definition of unsuccessful treatment.

Stephanie offers a second reason why M.G. should be regarded as having a history of unsuccessful treatment within the year prior to commencing the Gateway program. She notes that M.G. began an outpatient regime in August of 2010 and that he was arrested the following month for hitting her. While this incident does seem to present an example of failed treatment in the relevant time frame, M.G.’s subsequent progress in the wilderness program strongly suggests that he was able to be managed at a lower level of care, the second requirement under the InterQual definition of “[tjreatment.” Given M.G.’s improving symptomatology immediately prior to his Gateway admission, we are not persuaded that Stephanie has carried her burden of demonstrating that M.G. had the required record of unsuccessful treatment.

Similarly, we agree with the district court, see id., that Stephanie’s proof fell short in yet another respect: M.G. had neither been discharged nor transferred from psychiatric hospitalization within twenty-four hours prior to his admission to Gateway. The twenty-four-hour discharge or transfer requirement is listed under the “Psychiatric Subacute Care” treatment setting. Stephanie argues that it was not necessary for M.G. to satisfy this requirement. In her view, the district court should have applied the less onerous standards specified for a “Psychiatric Residential Treatment Center” setting. We do not agree.

Stephanie’s argument hits a snag because the Certificate states that BCBS “decides which health care services ... are medically necessary and appropriate for coverage.” To perform this analysis, BCBS looks to the InterQual criteria. Those criteria, in turn, state that “[i]n making a level of care determination, ... contractual agreements may be considered based on organizational policy.” The descriptions for the “Psychiatric Subacute Care” and “Psychiatric Residential Treatment Center” settings also state that they are “subject to organizational policy.”

The record is uncontradicted that BCBS had in place an organizational policy of exclusively using the psychiatric subacute care level of care criteria for adolescent acute residential treatment. Reading the InterQual criteria as a whole, this policy of using the psychiatric subacute care level of care criteria was reasonable and trumps any references to other care settings.

In an effort to undermine this conclusion, Stephanie suggests that the term “organizational policy,” as used in the Inter-Qual criteria, refers to the organizational policies of service providers, not to any organizational policy of BCBS. This suggestion contains more cry than wool. Although the term “organizational policy” is undefined, one use of it is in the directions for InterQual’s adolescent psychiatry criteria. These instructions explain that the level of care determination itself may be informed by “organizational policy.” The most logical reading of the instructions is that the term refers to the policies of the party or organization charged with making the level of care determination (here, BCBS). Logically, then, the term “organizational policy” has the same meaning three pages later when the InterQual criteria are describing various treatment settings. Cf. Gustafson v. Alloyd Co., 513 U.S. 561, 568, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995) (explaining that “our duty to construe statutes, not isolated provisions,” dictates that a “term should be construed, if possible, to give it a consistent meaning throughout” a statute); Smart v. Gillette Co. Long-Term Disab. Plan, 70 F.3d 173, 179 (1st Cir. 1995) (“Accepted canons of construction forbid the balkanization of contracts for interpretive purposes.”). We conclude, therefore, that the term “organizational policy,” as used in the InterQual criteria, refers in this context to BCBS’s organizational policy.

We add, moreover, that the record reflects no basis for finding BCBS’s organizational policy unreasonable. The Certificate itself supports BCBS on this point. It provides coverage for inpatient, outpatient, and intermediate mental health care services for adolescents. Intermediate services — services somewhere between traditional inpatient and outpatient care— include “acute residential treatment,” “partial hospital programs,” and “intensive outpatient programs.”

BCBS posits that the InterQual criteria’s “Psychiatric Subacute Care” level of care corresponds with the “acute residential treatment” referenced in the Certificate. Given the residential nature of Gateway and that it is not a “partial hospital program” or an “outpatient” program, we agree that BCBS’s decision to follow its internal policy was reasonable. And because the policy controls in this instance, BCBS acted appropriately in analyzing Gateway as a psychiatric subacute care treatment setting. Consequently, Stephanie had the burden of showing that M.G. had either been discharged or transferred from psychiatric hospitalization within twenty-four hours prior to his Gateway admission. She offered no evidence to satisfy this burden. Hence, we conclude — as did the district court, see Stephanie II, 2016 WL 3636978, at *3—that Stephanie failed to prove that Gateway’s services were medically necessary for M.G.’s care.

To sum up, an ERISA plan is a form of contract. See Firestone, 489 U.S. at 112-13, 109 S.Ct. 948. Thus, contract-law principles inform the construction of an ERISA plan, and the plain language of the plan provisions should normally be given effect. See Filiatrault v. Comverse Tech., Inc., 275 F.3d 131, 135 (1st Cir. 2001). Seen in this light, the dispositive issue here is not whether M.G.’s course of treatment at Gateway was beneficial to him but, rather, whether that course of treatment was covered under the Plan. Applying the plain language of the Plan, we hold that the clear weight of the evidence dictates a finding that the disputed charges were not medically necessary (as defined by the Plan) and, thus, were not covered.

IV. CONCLUSION

We need go no further. For the reasons elucidated above, the judgment of the district court is

Affirmed.

      . We limit our discussion to those ERISA benefit-denial cases that are decided solely on the record of proceedings before the plan administrator and without additional evidence being taken in the district court. We recognize, though, that the record in an ERISA benefit-denial case may be expanded for "good reason.” Denmark, 566 F.3d at 10; see Orndorf v. Paul Revere Life Ins. Co., 404 F.3d 510, 520 (1st Cir. 2005) (noting that outside evidence may be relevant when a beneficiary challenges the procedure used to deny benefits or claims a plan administrator acted unfairly because of personal bias); Leahy v. Raytheon Co., 315 F.3d 11, 18 n.6 (1st Cir. 2002) (leaving open "possibility that, in special circumstances, a district court might take evidence in an ERISA case”). This is not such a case: here, neither party sought to expand the record.

      . De novo review differs significantly from clear error review. Compare Leahy v. Raytheon Co., 315 F.3d 11, 16 (1st Cir. 2002) (stating that, under de novo review, "the court of appeals must decide [the relevant issues] for itself”), and United States v. Howard (In re Extradition of Howard), 996 F.2d 1320, 1327 (1st Cir. 1993) (explaining that de novo review affords no deference to the lower court), with Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990) (describing clear error standard and stating that "we ought not to upset findings of fact or conclusions drawn therefrom unless, on the whole of the record, we form a strong, unyielding belief that a mistake has been made”).

      . That district courts typically decide certain types of administrative cases “without live testimony, on the basis of the administrative record, does not detract from the wisdom of clear-error review.” Roland M. v. Concord Sch. Comm., 910 F.2d 983, 990 (1st Cir. 1990). In the last analysis, "findings of fact do not forfeit ‘clearly erroneous’ deference merely because they stem from a paper record.” RCI Ne. Servs. Div. v. Bos. Edison Co., 822 F.2d 199, 202 (1st Cir. 1987); see, e.g., Limone v. United States, 579 F.3d 79, 94 (1st Cir. 2009) ("The application of clear-error review to findings drawn from a paper record has long been the practice in this circuit.”); Brandt v. Repco Printers & Litho., Inc. (In re Healthco Int'l, Inc.), 132 F.3d 104, 108 (1st Cir. 1997) ("[A] bankruptcy court’s factual findings are entitled to the deference inherent in clear-error review even when they do not implicate live testimony, but, rather, evolve entirely from a paper record that is equally available to the reviewing court.”); see also Hess v. Hartford Life & Acc. Ins. Co., 274 F.3d 456, 461 (7th Cir. 2001) (analogizing submission of case on administrative record to a bench trial and reviewing for clear error).

      . In all instances, emphasis in the Certificate’s language is its own.

      . BCBS submits that, in all events, it provided notice of the educational setting bar in writing through M.G.’s "Claims Listing,” which catalogues Explanation of Benefits letters (EOBs) sent to Stephanie. One such EOB (for an out-of-state psychiatric consultation) listed the educational setting explanation. Because we hold that the telephone call with M.G.'s father constituted sufficient notice in the circumstances of this case, we take no view as to whether the EOB, standing alone, would have constituted sufficient notice.

      . The parties tussle over the meaning of "acute” versus “subacute.” BCBS asserts that the words are used interchangeably in the health insurance industry. Stephanie insists that “subacute,” by definition, means less than "acute.” But assuming, favorably to Stephanie, that "subacute” indicates a less intensive level of care in this instance, the BCBS’s organizational policy of using the "Psychiatric Subacute Care” criteria would result in it employing a less stringent standard than required by the Plan, which covers "acute residential treatment.”


author: LYNCH, Circuit Judge.

text:
    Jane DOE, Plaintiff, Appellant, v. STANDARD INSURANCE COMPANY, Defendant, Appellee.
    No. 16-2085
    United States Court of Appeals, First Circuit.
    March 24, 2017

      Geraldine G. Sanchez, with whom Roach Hewitt Ruprecht Sanchez & Bischoff PC, Portland, ME, was on brief, for appellant.
    Brooks R. Magratten, with whom Scott K. Pomeroy and Pierce Atwood LLP, Providence, RI, were on brief, for appellee.
    Before LYNCH, Circuit Judge, SOUTER, Associate Justice, and BALDOCK, Circuit Judge.

       Hon. David H. Souter, Associate-Justice (Ret.) of the Supreme Court of the United States, sitting by designation.

       Hon. Bobby R. Baldock, Circuit Judge of the United States Court of Appeals for the Tenth Circuit, sitting by designation.

   LYNCH, Circuit Judge.

In this ERISA benefits suit for long term disability (“LTD”) payments, the sum owed to the plaintiff, “Jane Doe,” turns on the year of disability onset, as the prior year’s earnings determine the monthly benefit amount. The parties disagree on whether Doe’s disability began in 2011 or in 2012: the insurer has paid Doe the benefits owed using a January 2012 onset date, but not the benefits owed if the onset date is in November 2011. The difference, we are told, amounts to over $100,000 in payments.

The wrinkle in the case is that the disability insurance involved is “Own Occupation” insurance, for which an additional premium is charged. Doe’s Own Occupation was “environmental lawyer.” Yet when the insurer assessed whether and when Doe became disabled, it chose not to use the material duties of an environmental lawyer, but rather those of a lawyer. In doing so, it eviscerated the Own Occupation coverage, and its evaluation as to Doe’s disability onset date was based on the wrong standards. Its denial of benefits from an onset date no later than November 2011 was arbitrary and capricious. The district court entered judgment on the record for the insurer. We reverse.

I.

A. Background

Doe worked at a Maine law firm for more than 25 years, and for many years she was an equity partner. In August 2011, Doe became a non-equity partner and remained employed in that capacity for about six months thereafter. Over the course of 2011, Doe billed far fewer hours than she had in previous years.

Defendant Standard Insurance Company (“Standard”) is the claim administrator and insurer of the employee welfare benefit plan (“the Plan”) offered by Doe’s law firm to its employees. The Plan was insured by an LTD policy (“the Policy”), which was also issued by Standard and which covered Doe. The Policy provides that a claimant is “Disabled” if she is “unable to perform with reasonable continuity the Material Duties of [her] Own Occupation.” The Policy also promises lawyers with at least five years’ experience that “[their] Own Occupation [is] the one legal subject matter area or type of legal practice in which [they] specialize, provided [they] have earned at least 85% of [their] gross professional service fee income in that area or type of practice” during the 24 months before disability onset. There is no dispute that Doe met these criteria for specialty coverage. The Policy defines “Material Duties” as “the essential tasks, functions and operations, and the skills, abilities, knowledge, training and experience, generally required by employers from those engaged in a particular occupation that cannot be reasonably modified or omitted.”

Under the Policy, those who become disabled due to a “Mental Disorder” may receive LTD benefits for, at most, 24 months. The monthly benefit amount depends on the claimant’s “Predisability Earnings.” The Predisability Earnings depend in turn on the claimant’s income during the “prior tax year” — that is, the calendar year before the year of disability onset. Doe’s income in 2011 was only one-third of what it had been in 2010, and so whether she became disabled in 2011 or in 2012 significantly affects the calculation of her monthly benefit payments.

For context, we recite briefly some of the medical evidence relevant to Doe’s LTD claim. On November 30, 2011, during her regular appointment with her gynecologist, Dr. Kathleen Petersen, Doe confessed that she had become “bone crushingly exhausted” in the preceding year and had lost “any interest in life,” among other symptoms. Dr. Petersen suspected that Doe was afflicted with a mental health problem. She recommended that Doe seek counseling — advice that Doe resisted — and also doubled Doe’s prescribed daily dose of citalopram, an antidepressant, which Doe had been taking for roughly four years.

On December 9, 2011, Doe met for the first time with Dr. Frederick White, a clinical psychologist. Dr. White’s notes from that visit state that Doe exhibited numerous symptoms consistent with Major Depressive Disorder — including suicidal ideation and diminished attention, concentration, and memory — and he diagnosed her with that disorder. In two follow-up appointments that same month, Dr. White observed that Doe “was having continuing mental disorder with suicidal ideation.”

Dr. Petersen saw Doe on January 5, 2012, after having discussed Doe’s condition with Dr. White earlier that day. In her notes, Dr. Petersen observed that Doe did not appear to be an imminent suicide risk, but that Doe was “severely depressed.” When Dr. Petersen asked Doe about hospitalization for Doe’s depression, Doe responded that “she [could not], that it would be a severe detriment to her [law] practice.” At appointments later in January 2012, Dr. White and Dr. Petersen continued to observe that Doe was “dealing with ... significant depression.”

On February 8, 2012, Doe met with her primary care physician, Dr. Donna Con-kling, for the first time since April 2011. Dr. Conkling postponed Doe’s scheduled physical exam because Doe was “close to tears” and “appealed] anxious, depressed, and exhausted.” Doe continued to report problems with severe depression and thoughts of self-harm or suicide. Doe also relayed that “[h]er husband was not completely supportive of her stopping work.” Doe’s last day of logging hours of work at the firm was January 27, 2012.

B. Doe’s Claim

Doe filed an LTD claim with Standard “on or about March 22, 2012.” She reported that “she had suffered depression for approximately five years but became ’unable to work’ ... in October 2011.” As symptoms stemming from her “mental health [and] related [psychological] disorders,” she listed, inter alia, “unable to process or think clearly while at work,” “chronic fatigue,” “migraine headaches,” and “inability to function.”

In February 2012, Dr. Petersen, Dr. Conkling, and Dr. White had independently completed Attending Physician’s Statements in connection with Doe’s LTD claim. Each physician diagnosed Doe with severe depression. Each also stated that he or she recommended Doe stop working.

On April 18, 2012, Doe’s former law firm sent Standard a job description for Doe’s specific occupation, environmental lawyer. Standard had requested the description from the law firm two days earlier, along with Doe’s payroll history and timesheets. The firm also sent Doe’s biography, which outlined Doe’s career accomplishments and specific areas of expertise. Standard never told Doe or her representatives that the provided description was incomplete or inadequate.

Standard asked Jan Cottrell, one of its “vocational case managers],” to evaluate Doe’s claim of disability. On April 12, 2012, Cottrell identified Doe’s Own Occupation under the Policy as “lawyer,” not “environmental lawyer.” Having chosen “lawyer,” Cottrell concluded that the material duties of a lawyer were “most reasonably represented by the Dictionary of Occupational Titles (DOT) occupation of Lawyer.” The DOT is a compendium of job descriptions and requirements, formerly published by the U.S. Department of Labor, which aims to define jobs as they are performed in the national economy and is commonly used by insurers. See McDonough v. Aetna Life Ins. Co., 783 F.3d 374, 380-81 (1st Cir. 2015); see also, e.g., Armani v. Nw. Mut. Life Ins. Co., 840 F.3d 1159, 1162 (9th Cir. 2016). There is no separate DOT job description for an environmental lawyer, and Standard did not look elsewhere for a definition.

Doe’s claim specialist at Standard next asked Cottrell to respond to the job description received from Doe’s law firm. On April 23, 2012, Cottrell responded that Doe did not meet the Policy’s definition of “trial attorney” but that Doe’s “own occupation would be the one legal subject matter area of environmental law.” In spite of that conclusion, Cottrell reiterated that the DOT “lawyer” description “most reasonably represented” Doe’s “own occupation.”

On June 29, 2012, Standard denied Doe’s claim. The claim specialist explained that Standard, having used the generic “lawyer” job description, had found Doe to be disabled from January 18, 2012 onward but not disabled beyond the Policy’s “90 day Benefit Waiting Period.” On January 25, 2013, Doe took her first formal appeal and submitted additional information from Dr. White and Dr. Petersen.

On March 27, 2013, Standard told Doe that it would approve her claim and that it would use January 28, 2012 as the disability onset date. On May 14, 2013, Doe took her second appeal and submitted additional statements from Dr. White, who wrote in support of a 2011 onset date.

Christopher Powers, another senior benefits review specialist at Standard, sought another “vocational review” from Karol Paquette, a vocational case manager at Standard. In a memo to Powers, dated July 23, 2013, Paquette stated that “the information in [Doe’s] file document[ed] a significant change in the character of [Doe’s] work activity around November 2011, such as area of specialization or subject matter, or in the type of work activity performed.” “In my professional opinion,” Paquette further explained, “[Doe] was not working in her own legal specialty or area of expertise on a reasonably continuous basis from 8/1/11 [to] 11/30/11.” However, Paquette continued, “[al]though [Doe] was not performing her own specialty area of expertise on a reasonably continuous basis prior to ceasing work, it would be my professional opinion[] that she was performing the work of a lawyer on a reasonably continuous basis” (emphasis added). This analysis highlighted the difference between using Doe’s specialty area of expertise as the measure and, by contrast, using the general standard for lawyers.

On July 24, 2013, Powers, to his credit, asked Paquette via email whether “the demands, aptitudes and temperaments of [Doe’s] legal subject matter area [were] distinct from those of other areas of expertise to the extent that they would differ from those described in the DOT description for Lawyer.” Paquette responded on July 30, 2013, observing that “[t]here are some specialty practices defined in the DOT for lawyers[,] [but] Environmental law is not one of them.” Given that, she concluded that “the demands, aptitudes and temperaments of [Doe’s] legal subject matter area are the same as that of [the] DOT occupation of Lawyer” (emphasis added). The record does not support this conclusion; it appears to be simply a repetition of her prior decision to use a general “lawyer” standard, perhaps because there was no separate DOT listing for “environmental lawyer.”

On August 21, 2013, on Standard’s behalf, Powers issued a decision (“the Final Decision”), which upheld Standard’s March 27, 2013 decision to award benefits to Doe based on a 2012 onset date. The Final Decision observed that Doe had performed “non-billable activities” from November 2011 to January 2012, “on an essentially full time basis,” including “work on various boards and committees and pro bono work.” “Therefore,” the Final Decision went on, “while we acknowledge that your client did cease work in her particular area of legal expertise, she continued to work as an attorney on a reasonably continuous basis until January 28, [2012], in a position which would have had substantially similar demands and requirements. On that basis, we evaluated whether the medical information in the file supported impairment from working as an attorney within the scope of her license to practice law at any time prior to January 28, 2012.” The Final Decision further explained that “while we recognize that your client found her work to be stressful and sought to transition to a different type of practice, this does not correspond to an inability to perform the Material Duties of her Own Occupation on a reasonably continuous basis for any employer.”

After hiring counsel, Doe requested a reconsideration of the Final Decision — specifically, the disability onset date — on August 29, 2014. She submitted sworn statements from herself, Dr. Petersen, and Dr. White. In a letter dated September 16, 2014, Standard refused to reconsider the Final Decision or to consider Doe’s new information,. explaining that Standard had already afforded Doe “the one administrative review to which Doe was entitled.”

II.

As our review of the district court’s judgment is de novo, see McDonough, 783 F.3d at 379, we bypass recounting the district court proceedings. After cross-motions for judgment on the record, the district court entered judgment for Standard.

This appeal concerns only what disability onset year should be used to calculate Doe’s monthly benefit amount. There is no dispute that Doe is entitled to a full 24 months of LTD benefits with a disability onset in 2011, if Standard’s decision to use the 2012 onset date was arbitrary and capricious.

The parties agree that the Plan gives Standard discretionary authority to evaluate claims, so we review for abuse of discretion — that is, we determine “whether [Standard’s] decision is arbitrary and capricious or ... whether that decision is reasonable and supported by substantial evidence on the record as a whole.” Id.; see also Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 111, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008). We “determine lawfulness by taking account of several different, often case-specific, factors, reaching a result by weighing all together.” Glenn, 554 U.S. at 117, 128 S.Ct. 2343.

We agree with Doe that Standard’s reliance on the DOT description of a generic “lawyer,” rather than a job description that fully and accurately encompassed the material duties of Doe’s specialized area of legal practice, rendered Standard’s decision arbitrary and capricious. The Plan defines the key inquiry as whether Doe was disabled from performing the material duties of her Own Occupation, and so “a reasoned determination of the existence of disability vel non require[d], inter alia, a review of the material duties of [Doe’s] particular position.” McDonough, 783 F.3d at 380. Standard was obligated to “assess[ ] whether and to what extent ... [Doe’s] impairments compromised h[er] ability to carry out” the specialized duties of an environmental lawyer. Id. Standard charged an enhanced premium for the promise of enhanced specialty coverage, and it was unreasonable for Standard to undercut that coverage by failing to ascertain and consider the specific requirements of Doe’s specialty.

The vocational reports, and the conclusions Standard drew from those vocational reports in the Final Decision, demonstrate at most that Standard made a reasonable effort to analogize Doe’s specialty occupation to a job description in the DOT. Although a generic DOT “position description” may suffice if it involves duties equivalent to those of the claimant’s own occupation, id. at 381 (citing Tsoulas v. Liberty Life Assurance Co. of Bos., 454 F.3d 69, 78 (1st Cir. 2006)), that is not the case here. It was unreasonable for Standard to base its decisionmaking on a generic DOT description that did not account for the special expertise expected from environmental lawyers. See id.; Miller v. Am. Airlines, Inc., 632 F.3d 837, 855 (3d Cir. 2011) (“[B]ecause the Plan provides ’own occupation’ disability benefits, it is essential to consider whether a pilot is capable of working in that capacity, regardless of his ability to function in a different position.”). The fact that the DOT does not have a listing for “environmental lawyer” does not make Standard’s decision any less arbitrary.

No evidence in the record supports the assumption that “environmental lawyer” and “lawyer” are equivalent terms that may be used interchangeably. We think that they self-evidently are not and that Standard’s assumption of equivalence was arbitrary. Environmental law is a distinct specialty, and the expertise demanded from environmental lawyers distinguishes that specialty from a generic “lawyer” role. Standard received from Doe’s former law firm a job description outlining the duties and expectations associated with Doe’s specialized area of practice, as well as her resume, which confirmed her expertise as an environmental lawyer. That firm is by no means unique in treating environmental law as a distinct specialty. We take judicial notice that the firm representing Standard in this matter, for example, lists “Environmental” as a distinct practice group on its website. See Environmental, Pierce Atwood LLP, http://www.pierceatwood.com/ environmental-land-use. The American Bar Association, in similar fashion, includes “Environment, Energy, and Resources” among its “specialty groups that focus on a unique area of law.” See Sections, Am. Bar Ass’n, http://www.americanbar.org/groups/ sections.html. And the U.S. Department of Justice has a discrete Environment and Natural Resources Division. See About the Division, U.S. Dep’t of Justice, http://www. justice.gov/enrd/about-division.

The proper inquiry, therefore, is whether the record contains substantial evidence that Doe was able to “perform with reasonable continuity the Material Duties” of an environmental lawyer beyond 2011. Standard conceded in the Final Decision that Doe did not actually practice “in her own specialty area of expertise ... after November 2011.” And Standard’s own vocational case manager, Karol Pa-quette, opined tliat there had been a significant change in the character of Doe’s work activity around November 2011 and that “[Doe] was not working in her own legal specialty or area of expertise on a reasonably continuous basis from 8/1/11 [to] 11/30/11.” Its choice of January 28, 2012 as Doe’s disability onset date depended on Doe’s completion of a few generic lawyer tasks, such as attending committee meetings, in December 2011 and January 2012. As we have already explained, it was arbitrary and capricious to use a generic lawyer’s material duties as the analytical benchmark.

The next question is the appropriate remedy. We have “considerable latitude in the selection of a remedy in an ERISA case,” and our choice “depends on the circumstances of the particular case.” Colby, 705 F.3d at 68; see also Buffonge v. Prudential Ins. Co. of Am., 426 F.3d 20, 31-32 (1st Cir. 2005); Glista v. Unum Life Ins. Co. of Am., 378 F.3d 113, 130-32 (1st Cir. 2004) (“In [the ERISA] context, no single answer fits all cases.”). In light of Standard’s failure to apply the Own Occupation standard correctly, over the course of several administrative appeals, we think it most equitable in these circumstances to bring an end to this dispute and to award Doe retroactive benefits instead of remanding the matter to Standard. It is now 2017, and the dispute concerns events in 2011 and 2012. See Colby, 705 F.3d at 68 (“[A court] is not obliged to make an endless series of remands [in an ERISA case].”); Glista, 378 F.3d at 131 (discussing the “range of remedial powers” Congress gave to the federal courts for addressing ERISA violations through equitable relief (citing 29 U.S.C. § 1132(a)(3))); Cook v. Liberty Life Assurance Co. of Bos., 320 F.3d 11, 23-24 (1st Cir. 2003) (explaining that plan administrators often do not “get a second bite at the apple” after making an arbitrary and capricious determination (quoting Grosz-Salomon v. Paul Revere Life Ins. Co., 237 F.3d 1154, 1163 (9th Cir. 2001))).

Doe has requested attorney’s fees, as ERISA allows. See 29 U.S.C. § 1132(g)(1). That request is highly fact-sensitive, and we leave it for the district court to address in the first instance on remand. See Gross v. Sun Life Assurance Co. of Can., 763 F.3d 73, 85-86 (1st Cir. 2014).

III.

The judgment is reversed, and the district court is directed to order Standard to award Doe retroactive benefits based on a disability onset date of no later than 2011. Doe’s request for attorney’s fees is remanded to the district court.

The Clerk is directed to send a copy of this opinion to the Superintendent of the Maine Bureau of Insurance.

      . After Doe's appeal, Standard referred the claim to Dr. Esther Gwinnell, a psychiatrist "who has done a significant number of reviews for ... Standard.” Dr. Gwinnell’s report, dated March 6, 2013, acknowledged that Doe had received medical care for depression in late 2011 but concluded that Doe had not become disabled until February 6 or February 9, 2012. Standard’s senior benefits review specialist, having reviewed the report, determined that Doe’s disability had begun on January 28, 2012 — "the day after [Doe] stopped work.”

      . In each of her reports, Paquette claimed to have "relied upon a variety of resources,” including not only the DOT but also the Occupational Outlook Handbook and the Occupation Information Network. However, her reports contain no analysis or discussion of those alternative resources. Moreover, the reports do not suggest that she used those alternative resources to find and use a more specialized "environmental lawyer” job description, rather than another generic one.

      . In the context of the Employee Retirement Income Security Act of 1974 ("ERISA”), 29 U.S.C. §§ 1001-1461, "motions for summary judgment ... are nothing more than vehicles for teeing up [the] case[ ] for decision on the administrative record.” Stephanie C. v. Blue Cross Blue Shield of Mass. HMO Blue, Inc., 813 F.3d 420, 425 n.2 (1st Cir. 2016).

      . One relevant factor is Standard's inherent conflict of interest as the entity that “not only evaluates claims but also underwrites the plan.” Colby v. Union Sec. Ins. Co. & Mgmt. Co. for Merrimack Anesthesia Assocs. Long Term Disability Plan, 705 F.3d 58, 62 (1st Cir. 2013); see also Glenn, 554 U.S. at 112, 117-19, 128 S.Ct. 2343; McDonough, 783 F.3d at 379. We do not rely on that factor here.

      . To the extent ¡standard argues that Doe's volunteering to do non-billable and pro bono work in November 2011 — including bar association work and "work on various boards and committees” — shows that she was not yet disabled from her Own Occupation at that time, that too is arbitrary. The argument is a non sequitur. Further, "[a] disabled person should not be punished for heroic efforts to work by being held to have forfeited [her] entitlement to disability benefits should [she] stop working.” Hawkins v. First Union Corp. Long-Term Disability Plan, 326 F.3d 914, 918 (7th Cir. 2003).