FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

CARA A. BURKE,                         
                Plaintiff-Appellant,        No. 06-15341
                 v.
                                             D.C. No.
                                           CV 04-4483 MHP
PITNEY BOWES INC. LONG-TERM
DISABILITY PLAN,                              OPINION
              Defendant-Appellee.
                                       
        Appeal from the United States District Court
          for the Northern District of California
         Marilyn H. Patel, District Judge, Presiding

                 Argued and Submitted
       December 7, 2007—San Francisco, California
         Submission Withdrawn January 24, 2008
               Resubmitted July 17, 2008

                 Filed September 19, 2008

    Before: Betty B. Fletcher, A. Wallace Tashima, and
          Johnnie B. Rawlinson, Circuit Judges.

                 Opinion by Judge Tashima




                            13299
13302                 BURKE v. PITNEY BOWES
                            COUNSEL

Constantin V. Roboostoff, Roboostoff & Kalkin, San Fran-
cisco, California, for the plaintiff-appellant.

Nicole A. Diller, Morgan Lewis & Bockius, San Francisco,
California, for the defendant-appellee.


                             OPINION

TASHIMA, Circuit Judge:

   Cara Burke appeals the district court’s order granting sum-
mary judgment to Pitney Bowes Inc. Long-Term Disability
Plan on Burke’s claims arising from the Plan Employee Bene-
fits Committee’s termination of her long-term disability bene-
fits. We have jurisdiction pursuant to 28 U.S.C. § 1291, and
we vacate and remand for further proceedings consistent with
this opinion and the Supreme Court’s recent decision in Met-
ropolitan Life Insurance Co. v. Glenn, ___ U.S. ___, 

(2008).

                                  I.

                         BACKGROUND

A.    Facts

   Burke was hired by Pitney Bowes Management Services
(“Pitney”) as a sales employee in December 1995 and quali-
fied for coverage under Pitney’s Long-Term Disability Plan
(the “Plan”). The Plan is subject to the requirements of the
Employee Retirement Income Security Act of 1974
(“ERISA”). 29 U.S.C. § 1001 et seq. The Plan’s Employee
Benefits Committee (the “Committee”) is responsible for the
Plan’s general administration,1 while Pitney’s Disability and
  1
   The record does not disclose the Committee’s makeup, but the parties
argue the case on the assumption that it is a “management” committee
controlled by the employer and we accept that assumption.
                        BURKE v. PITNEY BOWES                        13303
Benefits Department is delegated the day-to-day responsibili-
ties. The Committee is the final decision-maker regarding
benefits eligibility.

   Benefits paid out by the Plan come from the Plan’s Trust,
which is funded in part by Pitney and in part by employee
contributions. The Committee has the authority to determine
the amounts of the employer and employee contributions to
the Trust, but it is unclear from the record what portion of the
Trust is funded by the employees, as opposed to by Pitney.
The Trust fund is a Voluntary Employees’ Beneficiary Asso-
ciation (“VEBA”) Trust;2 therefore, the money paid into the
Trust cannot revert back to Pitney.

   In June 1998, Burke was injured in a work-related car acci-
dent, which caused her back and neck injuries, and caused her
to miss five days of work. One month later, Burke was injured
again in a car accident, this time not work-related. The second
accident aggravated the injuries from the earlier accident, and
Burke was subsequently diagnosed with multilevel lumbar
degenerative disc disease, spinal stenosis, and lumbar radidulo-
pathy.3 Burke went on disability leave on October 26, 1998,
and has not since returned to work.

   Burke asserts that she requested a claim form to apply for
long term disability (“LTD”) benefits under the Plan in March
1999.4 The Plan, however, contests that Burke requested a
claim form at that time, and responds that she did not actually
request a LTD claim form until September 10, 2000. On Sep-
  2
     See 26 U.S.C. § 501(c)(9); Treas. Reg. § 1.501(c)(9)-1.
  3
     Burke received workers compensation benefits following those acci-
dents.
   4
     A September 10, 2000, letter indicates that Burke requested a claim
form in 1999. This letter, however, was excluded from evidence by the
district court, along with other documents, because the district court found
that those documents were not part of the administrative record. See Part
III.B, infra.
13304                   BURKE v. PITNEY BOWES
tember 22, 2000, the Plan responded to Burke’s request by
asserting that Burke was not eligible for benefits under sec-
tion 5.8(j) of the Plan because her disability was excluded as
a work-related injury.5 On May 8, 2001, the Plan provided
Burke’s counsel with the requested LTD claim form, stating:

      [The Plan] conditions the payment of long term dis-
      ability (“LTD”) benefits on the employee having
      first completed 22-weeks of short term disability
      (“STD”). As further mentioned, we have no record
      of Ms. Burke’s filing a claim with Pitney Bowes for
      STD benefits. . . . Notwithstanding that Ms. Burke
      failed to file an STD claim with Pitney Bowes and
      that the deadline for filing such claim has long since
      expired, we will allow Ms. Burke to file a claim for
      LTD benefits.

Burke submitted her LTD claim in June 2001. Burke’s LTD
claim was denied by the Plan, which determined that Burke’s
injuries were excluded from coverage as a work-related
injury. Burke filed a lawsuit in the Northern District of Cali-
fornia under ERISA on May 20, 2002, and on September 26,
2002, Burke and the Plan reached a settlement in which the
Plan agreed to pay Burke LTD benefits. The settlement agree-
ment provided that Burke would receive:

      monthly long-term disability benefits pursuant to the
      terms, process and procedures of the Plan, as long as
      she continues to meet the Plan’s definition of “Total
      Disability” and otherwise remains eligible under the
      Plan. This provision is in no way meant to alter or
      modify the terms, process or procedures set forth in
      the Plan for receiving benefits under the Plan.
  5
   Section 5.8(j) provides that “no Monthly Disability Income shall be
payable to a Participant if it is determined that such Participant’s Total
Disability: . . . (j) was due to occupational or work-related injury or ill-
ness.”
                   BURKE v. PITNEY BOWES                 13305
    Burke’s eligibility for future benefits will be solely
    governed by the terms, process and procedures of the
    Plan and ERISA. Accordingly, this Agreement does
    not guarantee Burke any future long-term disability
    benefits except as determined by the Plan adminis-
    trator under the terms, process, and procedure of the
    Plan and ERISA.

   In September 2003, the Plan’s physician-consultant, Dr.
Broder, requested that Dr. Barry perform an independent
medical examination (“IME”) of Burke to determine whether
she met the Plan’s definition of “Totally Disabled.” Section
2.33(a) defines a Participant as being “Totally Disabled” or
having a “Total Disability” as:

    Participant is unable (a)(i) to perform the material
    duties of his or her own occupation for a maximum
    period of twelve (12) months after the Qualifying
    Period, and (ii) that thereafter the Participant is
    unable, because of injury or illness, to engage in any
    gainful occupation or profession for which he is, or
    could become, reasonably suited by education, expe-
    rience or training; provided, however, that the
    amount of earnings that the Participant would
    receive from engaging in such occupation or profes-
    sion would be less than sixty percent of the Partici-
    pant’s annual or annualized earnings immediately
    prior to the event giving rise to the Total Disability.

   Dr. Barry examined Burke on October 9, 2003. His report
stated:

    My impression is that Ms. Burke has an objectively
    normal physical and neurologic examination, but she
    demonstrates a very high level of self-perceived
    impairment. At this point, it appears that her
    described pattern of subjective symptoms are unsup-
    ported by any abnormal objective physical or neuro-
13306                   BURKE v. PITNEY BOWES
      logic findings. . . . Given Ms. Burke’s objectively
      normal evaluation, I feel she can return to light work
      at the current time, with no lifting, pushing or pull-
      ing over 30 pounds, and no repeated bending.

   On November 3, 2003, the Plan notified Burke that it was
terminating her benefits because it determined that she was
not “totally disabled for any occupation as defined in Section
2.33(a) of the Plan.”6

   On January 6, 2004, Burke appealed the Plan’s decision
and requested that the Plan produce “all documents or other
writings which were submitted, considered, or generated in
the course of making the decision to terminate Ms. Burke’s
benefits, without regard to whether such document, record, or
other information was relied upon in making the benefit deter-
mination.”

   On February 6, 2004, the Plan produced some of the docu-
ments requested in Burke’s January 6, 2004 letter, but added
that:

      All “correspondence, memoranda, notes or other
      materials” in Ms. Burke’s disability claim’s file
      relating to the decision to terminate benefits on
      November 1, 2003 [have been enclosed with this
      correspondence. However,] I have not included doc-
      uments “submitted, considered or generated” in con-
      nection with the October 2001 decision to deny
      disability benefits (resulting in the Settlement Agree-
      ment, dated September 26, 2002). Ms. Burke or your
  6
   In making this determination, the Plan relied primarily on a review of
medical information from Dr. Barry, although the notification indicated
that the Plan also considered a report from Dr. Gypson. Dr. Gypson, who
was one of Burke’s treating physicians, reported that Burke can read and
write but is restricted because she cannot sit or walk for more than fifteen
minutes or lift more than fifteen pounds.
                   BURKE v. PITNEY BOWES                13307
    office submitted the majority of such documents, and
    I assume you retained copies. Nonetheless, copies
    will be sent upon request.

   On March 4, 2004, the Plan wrote to Burke’s counsel, first
stating:

    [T]here are no “additional materials or information
    necessary” for Ms. Burke to perfect her claim. We
    have all materials necessary for the Employee Bene-
    fits Committee to review Ms. Burke’s appeal of the
    termination of [LTD] benefits. That said, the Com-
    mittee would consider any additional information not
    previously provided in support of Ms. Burke’s posi-
    tion that she is “Totally Disabled” as defined in the
    [Plan].

The Plan also wrote, again, that the Plan did not provide
Burke with the documents related to the 2001 decision to
deny Burke benefits because the Plan assumed Burke had
retained copies, but noted that the Plan would send Burke
copies if she so requested. The Plan added that it was enclos-
ing the documents provided by Dr. Broder to Dr. Barry in
connection with the latter’s October 2003 IME, and that “the
majority of those documents are already part of Ms. Burke’s
file (submitted by Ms. Burke prior to the September 26, 2002
Settlement Agreement).”

   On May 5, 2004, Burke’s counsel provided the Plan’s
counsel with copies of medical reports prepared by Dr.
Zwerin and a Functional Capacity Evaluation (“FCE”) pre-
pared by Lok Chan, an occupational therapist. Dr. Zwerin
determined that Burke was incapable of returning to work
because of an “[i]nability to engage in employment at any
level due to being bed bound for up to a week at a time, 3-4
days a week regularly secondary to sciatica and back pain”
and an “[i]nability to engage in work at a desk without stand-
13308              BURKE v. PITNEY BOWES
ing or walking or lying down every 10-15 minutes for 30-45
minutes.” Dr. Zwerin also stated:

    Dr. Barry’s preposterous conclusions aside, Ms.
    Burke has objective findings on MRI and discogra-
    phy which are entirely compatible with her clinical
    presentation. Her imaging studies demonstrate find-
    ings which also conform to her complaints. Ms.
    Burke’s pain drawing today shows none of the histri-
    onics which Dr. Barry apparently used as the basis
    for his conclusions. . . . Aside from Dr. Barry, no
    physician has suggested that she is lying, hysterical
    or engaging in symptom magnification. Given that
    he saw her on but one occasion and at least 4 other
    physicians have seen her on multiple occasions with
    observations reinforced by an entire team of PhD,
    PT/OT and other professionals without anyone ever
    concluding that her presentation was other than legit-
    imate, the conclusions of Dr. Barry are clearly
    devoid of legitimacy.

  Similarly, Chan stated:

    Ms. Burke is unable to tolerate prolonged static sit-
    ting or standing positions. She requires frequent
    changes and shifting of positions to remain comfort-
    able. Based on the results of this FCE, Ms. Burke
    currently is unable to return to any type of gainful
    employment. She does not meet any of the physical
    demand characteristics of work as defined by the
    Department of Labor.

After reviewing Chan’s FCE, Dr. Zwerin reported “I had
believed Ms. Burke was incapable of returning to the work-
force. This evaluation is certainly in accord with my findings
on clinical examination. Thus I would conclude that the FCE
findings are in concert with my own opinions on this matter.”
                    BURKE v. PITNEY BOWES                13309
   The Plan’s counsel acknowledged receipt of those reports
on May 20, 2004, and requested an independent FCE to cor-
roborate the evidence. An independent FCE by PhysioMet-
rics, Inc. was conducted on June 28, 2004 in Burke’s home,
and concluded that Burke:

    demonstrated a SUB-CONSISTENT effort. The
    effort was less than consistent; however, the individ-
    ual’s true functional capacity is likely to be close to
    the actual abilities demonstrated during the FCE. . . .
    Ms. Burke lifted to the SEDENTARY level for waist
    to overhead lifting. Ms. Burke did not, however, par-
    ticipate in the floor to waist lifting. As such, we are
    unable to document her overall work level classifica-
    tion as defined by the U.S. Department of Labor in
    the Dictionary of Occupational Titles. This does not
    suggest, however, that Ms. Burke does not have a
    work level classification. Rather, we are simply
    unable to establish one at this time based on the
    results of the FCE. Further, according to the pub-
    lished research, most SEDENTARY level jobs sim-
    ply require a tolerance for sitting and hand use, both
    of which Ms. Burke demonstrated. . . . There was no
    job analysis available for Ms. Burke. If a job analy-
    sis is available, the results of this FCE can be used
    to determine safe return to work levels and to set
    rehabilitation goals. At a minimum, Ms. Burke can
    at least work at the levels identified within this
    report.

    On July 6, 2004, the Plan notified Ms. Burke of its request
that Dr. Barry review the FCE report and perform an orthope-
dic spinal evaluation of Burke on August 23, 2004, noting that
it intended to present Burke’s appeal to the Committee in Sep-
tember, provided that it received Dr. Barry’s report by that
time. Burke’s counsel responded by stating that Burke would
not submit to another examination by Dr. Barry, calling the
requested examination unreasonable and unnecessary because
13310                      BURKE v. PITNEY BOWES
Dr. Barry had already expressed his opinion of Burke’s condi-
tion.

   On July 20, 2004, the Plan informed Burke’s counsel that
“refusing to attend the evaluation provides procedural
grounds for benefits termination (pursuant to Section 5.7(d) of
the [Plan]).”7 Burke’s counsel again stated that the requested
evaluation was unreasonable.

   Although Dr. Barry did not personally examine Burke a
second time, he reviewed the FCE conducted by PhysioMet-
rics, the report from Dr. Zwerin, and a report from Dr. Wolfe
from May 17, 2004, and concluded:

       I stand by my report of October 9, 2003, in which I
       felt Ms. Burke had a described pattern of subjective
       symptoms, which were, on the whole, unsupported
       by abnormal objective physical or neurologic find-
       ings. . . . Certainly, there has been no testing to sug-
       gest that Ms. Burke has objective residuals from
       what apparently were low-impact-energy rear-end
       motor vehicle accidents in June and July 1998, six
       years ago.
  7
   Section 5.7 states:
      [T]he Monthly Disability Income payable to a Participant may be
      suspended or discontinued if the Participant: . . . (d) refuses to
      attend an independent medical examination which is scheduled
      within a reasonable distance from the Participant’s primary resi-
      dence or for which the Company has made reasonable arrange-
      ments for the Participant to attend; (e) is no longer Totally
      Disabled.
In addition, Section 5.8 states:
      [N]o Monthly Disability Income shall be payable to a Participant
      if it is determined that such Participant’s Total Disability: . . . (h)
      cannot be verified to the satisfaction of the Disability Department
      because the Employee fails to undergo or complete one or more
      independent medical exams with a licensed physician or clinical
      psychologist prescribed by the Committee.
                        BURKE v. PITNEY BOWES                        13311
  On September 27, 2004, the Committee met to consider
Burke’s appeal, and determined that:

      Ms. Burke’s refusal to attend a second IME with Dr.
      Barry was a violation of the LTD plan [Section
      5.7(d)] giving rise to a procedural ground for denial
      of benefits. The members found the IME request to
      be reasonable given the new medical reports and
      FCE submitted by Ms. Burke in support of her
      appeal, the dated nature of the prior IME, and the
      fact that the Disability Department had arranged
      transportation for Ms. Burke to and from the IME,
      which was a reasonable distance from Ms. Burke’s
      home. The Committee further agreed that Ms.
      Burke’s initial and current claim were not submitted
      within the LTD Plan’s time limitations [under Sec-
      tion 5.4(a)8], which provided another basis for the
      denial of the appeal. In addition to finding proce-
      dural grounds for the denial of LTD benefits, the
      Committee felt denial was appropriate based on Ms.
      Burke’s physical condition. The members were not
      persuaded by the evidence submitted by Ms. Burke
      regarding her inability to work. The Committee
 8
  Section 5.4 states:
     [T]he payment of benefits under the Plan is subject to the follow-
     ing: (a) An Employee must support his or her initial claim for
     benefits by submitting, in a form and manner determined by the
     Disability Department, written proof substantiating the occur-
     rence, character and extent of the disability before the expiration
     of the one year period commencing on the date of Total Disabil-
     ity. Thereafter, as requested by the Disability Department from
     time to time, the Employee may be required to submit conclusive
     medical evidence of the continuance of his or her Total Disabil-
     ity. As a condition to the payment of benefits under the Plan, the
     Disability Department shall have the right to direct such
     employee to submit from time to time to an independent medical
     examination by a licensed or board certified physician or clinical
     psychologist designated by the Disability Department and/or fol-
     low a prescribed treatment program.
13312                 BURKE v. PITNEY BOWES
      found Dr. Barry’s IME . . . to be more credible than
      the opinion of Dr. Zwerin. The members were
      moved by the fact that Ms. Burke’s physician, Dr.
      Gypson, reported that she could perform activities of
      daily living with some limitations. . . . Based on the
      various medical reports and other materials in the
      file, including the reports of Drs. Barry and Gypson,
      the Committee found Ms. Burke capable of perform-
      ing ‘light work,’ as defined by the US Department of
      Labor. Finally, the Committee felt Ms. Burke did not
      provide evidence sufficient to establish that her inju-
      ries were not subject to the LTD Plan’s exclusion of
      disabilities caused by a work-related injury. Upon
      return to the workforce, the members found Ms.
      Burke capable of earning at least $30,326.40 per
      year (60% of pre-disability earnings) in a sedentary,
      light-duty job given her education (college degree in
      Political Science) and work experience.

B.    Procedural history

   Burke commenced this action on October 22, 2004. In it,
she challenges the Committee’s decision under ERISA
§ 502(a)(1)(B) and (3). Both parties filed motions for sum-
mary judgment. Burke sought to admit certain documents that
were part of her 2001 claim, to which the Plan objected on the
ground that they were not part of the administrative record.
The district court granted the Plan’s motion for summary
judgment and denied Burke’s motion, sustaining the Plan’s
evidentiary objection.9

   First, the district court held that the disputed evidence was
not part of the administrative record because there was “no
evidence in the record that the documents at issue were before
the Committee at the time of its decision,” and “plaintiff
  9
  Earlier, the district court had ruled that the Committee’s decision
would be reviewed under an abuse of discretion standard.
                    BURKE v. PITNEY BOWES                  13313
never submitted the documents at issue . . . for her current
claim.” As a result, it did not consider the evidence at issue.

   Second, the district court concluded that the Committee did
not act arbitrarily in relying on Dr. Barry’s evaluation in find-
ing that Burke was not “Totally Disabled.” The district court
also concluded that the Committee’s decision had “a reason-
able factual basis,” and “given the highly deferential standard
of review in this case,” it concluded “that the Committee’s
decision that plaintiff was not ‘totally incapacitated’ and
could enter the workforce has a reasonable factual basis and
was within its discretionary authority.” The district court fur-
ther concluded, however, that “the Committee’s determination
with respect to the level of earnings that plaintiff would be
able to procure is an abuse of discretion as it appears to be
based on mere conjecture rather than on a reasonable fact-
finding process,” because it considered no vocational evi-
dence.

   Finally, the district court granted the Plan’s motion for
summary judgment because of Burke’s refusal to attend the
scheduled, second IME, holding that the refusal provided “an
independent basis for the denial.” The district court declined
to consider the other procedural grounds for termination of
benefits found by the Committee.

  Burke filed a timely notice of appeal.

                               II.

                 STANDARD OF REVIEW

  The Supreme Court has held that a denial of 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.” Firestone Tire & Rubber Co. v. Bruch, 

, 115 (1989) (“Firestone Tire”). When a plan unambigu-
13314                   BURKE v. PITNEY BOWES
ously gives the plan administrator discretion to determine eli-
gibility or construe the plan’s terms, a deferential abuse of
discretion standard is applicable. See Abatie v. Alta Health &
Life Ins. Co., 

, 963 (9th Cir. 2006) (en banc).
The Plan here unambiguously grants the Committee the dis-
cretion to construe the Plan’s terms. As a result, an abuse of
discretion standard is appropriate.

   As noted, the Plan is administered by the Committee and
funded by the Trust, which, in turn, is funded by contributions
from Pitney and Pitney’s employees. The district court con-
sidered whether, based on this structure, the Plan operated
under a conflict of interest. Relying on Atwood v. Newmont
Gold Co., Inc., 

, 1322-23 (9th Cir. 1995), the
district court held that there was no conflict of interest
because Burke failed to produce evidence “that the fiduciary’s
self-interest caused a breach of the administrator’s fiduciary
obligations.” (Quoting 

.)10

   [1] Subsequent to the district court’s decision, however,
this circuit, sitting en banc, overruled Atwood and created a
new framework for applying the abuse of discretion standard,
which was, of course, not applied by the district court. See

(overruling Atwood, and holding
that a structural conflict of interest exists when an administra-
tor acts as both the funding source and administrator of the
plan that must be taken into account as a factor in determining
whether an abuse of discretion occurred).
  10
     Under Atwood, “a structural conflict of interest did not necessarily
alter the standard of review.” 

. The plan participant
was instead required to present “ ‘material, probative evidence, beyond the
mere fact of the apparent conflict, tending to show that the fiduciary’s
self-interest caused a breach of the administrator’s fiduciary obligations to
the beneficiary.’ ” Id. (quoting 

). Upon such a
showing, the burden “shifted to the administrator to prove that the conflict
of interest did not affect its decision to deny benefits.” 

the
administrator failed to carry this burden did the standard of review change
to de novo. 

PITNEY BOWES                   13315
   Even more recently, the Supreme Court set forth a frame-
work, similar to the one provided in Abatie, in considering
whether the dual role of administering and funding an ERISA
plan creates a conflict of interest, and if so, how that conflict
should be considered in evaluating whether a plan administra-
tor has abused its discretion. Metropolitan Life Ins. Co. v.
Glenn, ___ U.S. ___, 

, 2346 (2008)
(“MetLife”). The Court noted that “[i]n ‘determining the
appropriate standard of review,’ a court should be ‘guided by
principles of trust law’ ” and that “[i]f ‘a benefit plan gives
discretion to an administrator or fiduciary who is operating
under a conflict of interest, that conflict must be weighed as
a ‘factor in determining whether there is an abuse of discre-
tion.’ ” 

(emphases in the original) (citing Fire-
stone 

).

  The Court further stated:

    [The answer is clear that there is a conflict of inter-
    est] where it is the employer that both funds the plan
    and evaluates the claims. In such a circumstance,
    “every dollar provided in benefits is a dollar spent by
    . . . the employer; and every dollar saved . . . is a dol-
    lar in [the employer’s] pocket.” The employer’s fidu-
    ciary interest may counsel in favor of granting a
    borderline claim while its immediate financial inter-
    est counsels to the contrary. Thus, the employer has
    an “interest . . . conflicting with that of the beneficia-
    ries,” the type of conflict that judges must take into
    account when they review the discretionary acts of
    a trustee of a common-law trust.

(quoting Bruch v. Firestone Tire & Rubber Co.,

, 144 (3rd Cir. 1987) (“Bruch”); Restatement
§ 187, Comment d). The ERISA LTD plan at issue in MetLife,
however, was an insurer administrated and funded plan. 

The Court stated that the structural conflict “is less
clear where . . . the plan administrator is not the employer
13316                BURKE v. PITNEY BOWES
itself but rather a professional insurance company,” but none-
theless concluded that a conflict does exist in those circum-
stances. 

   Having concluded that a conflict of interest existed where
an insurer both funded and administered an ERISA LTD plan,
the Court then discussed how that conflict should be consid-
ered in evaluating the insurer’s exercise of its discretion. The
Court noted that the abuse of discretion standard of review
still applied despite the structural conflict of interest. 

court, however, must:

    take account of the conflict when determining
    whether the trustee, substantively or procedurally,
    has abused his discretion. . . . [C]onflicts are but one
    factor among many that a reviewing judge must take
    into account. . . . [T]he word ‘factor’ implies,
    namely, that when judges review the lawfulness of
    benefit denials, they will often take account of sev-
    eral different considerations of which a conflict of
    interest is one. . . . In such instances, any one factor
    will act as a tiebreaker when the other factors are
    closely balanced, the degree of closeness necessary
    depending upon the tiebreaking factor’s inherent or
    case-specific importance. The conflict of interest at
    issue here, for example, should prove more impor-
    tant (perhaps of great importance) where circum-
    stances suggest a higher likelihood that it affected
    the benefits decision, including, but not limited to,
    cases where an insurance company administrator has
    a history of biased claims administration. It should
    prove less important (perhaps to the vanishing point)
    where the administrator has taken active steps to
    reduce potential bias and to promote accuracy, for
    example, by walling off claims administrators from
    those interested in firm finances, or by imposing
    management checks that penalize inaccurate deci-
                      BURKE v. PITNEY BOWES                   13317
       sionmaking irrespective of whom the inaccuracy
       benefits.

(internal citations omitted).

                                III.

                          DISCUSSION

A.     Consideration of the Plan in light of MetLife

   [2] Because the district court applied the now overruled
Atwood framework for evaluating structural conflicts of inter-
est, and did not consider the Plan in light of MetLife and Aba-
tie, we must remand this case for further proceedings. In
remanding, we note that the Plan at issue here is unlike the
plan at issue in MetLife for a number of reasons that may be
significant to the district court’s analysis.

   [3] First, and most significantly, the Plan’s structural con-
flict is mitigated by the fact that benefits paid by Pitney’s Plan
are paid out of the Plan’s Trust; they are not paid directly by
Pitney, so that there is no direct financial impact on Pitney
resulting from the distribution of benefits.11 There is some
pre-MetLife support for the proposition that there is no con-
flict of interest when plan benefits are paid out of a trust. See,
e.g., Post v. Hartford Ins. Co., 

, 164 n.6 (3d Cir.
2007) (stating that “when the employer both funds and admin-
isters the plan, but pays benefits out of a fully funded and seg-
regated ERISA trust fund rather than its operating budget, no
structural conflict of interest is created”); Gilley v. Monsanto
Co., Inc., 

, 856 (11th Cir. 2007) (stating that “no
conflict of interest exists where benefits are paid from a trust
that is funded through periodic contributions so that the pro-
vider incurs no immediate expense as a result of paying bene-
  11
    In addition, as a VEBA trust fund, money once paid into the Trust
cannot revert back to Pitney.
13318               BURKE v. PITNEY BOWES
fits”); Vitale v. Latrobe Area Hosp., 

, 282-83
(3rd Cir. 2005) (holding that a heightened version of abuse of
discretion standard was not applicable because plan benefits
were paid out of a separate trust fund); de Nobel v. Vitro
Corp. 

, 1191-92 (4th Cir. 1989) (holding that
there was no conflict of interest from an employer-funded
plan where plan funds were held in a trust because there is no
direct and immediate expense to the employer from the pay-
out of benefits).

   [4] In light of MetLife, however, we disagree with those
cases and hold that even when a plan’s benefits are paid out
of a trust, a structural conflict of interest exists that must be
considered as a factor in determining whether there was an
abuse of discretion. We reach this conclusion because, even
though benefits are not paid directly by Pitney, Pitney obvi-
ously still has a financial incentive to keep claims’ experience
under the Plan as low as possible — the less the Trust pays
out as benefits, the less Pitney will ultimately need to contrib-
ute to the Trust to maintain its solvency. Thus, although the
impact may be less direct, there is nonetheless a close rela-
tionship between benefits paid by the Trust and the money
Pitney must provide from its general assets to fund the Trust.

   In discussing plans administered and funded directly by
employers, the Supreme Court stated that “ ‘every dollar pro-
vided in benefits is a dollar spent by . . . the employer; and
every dollar saved . . . is a dollar in [the employer’s] pocket.’
The employer’s fiduciary interest may counsel in favor of
granting a borderline claim while its immediate financial
interest counsels to the contrary.” 

(quoting 

). Similarly, even when bene-
fits are paid out of a trust, instead of directly by an employer,
the employer has a financial incentive to deny claims because
every dollar not paid in benefits is a dollar that will not need
to be contributed to fund the Trust. Although this impact is
indirect, and therefore a less significant conflict compared to
plans with benefits paid directly by employers, a structural
                        BURKE v. PITNEY BOWES                        13319
conflict of interest does exist. Thus, the structural conflict of
interest must be considered as a factor in evaluating whether
the Plan abused its discretion in terminating Burke’s benefits.
See 

(recognizing that structural con-
flicts of interest come in a variety of forms that should be
weighed accordingly, and stating that “[a]n egregious conflict
may weigh more heavily (that is, may cause the court to find
an abuse of discretion more readily) than a minor, technical
conflict might. But in any given case, all the facts and circum-
stances must be considered”).

   [5] Second, the fact that Pitney’s employees make some
contribution to the Trust tends to lessen the structural conflict
of interest. Thus, to maintain the Trust’s solvency, Pitney is
only required to pay a portion of the benefits actually paid out
by the Trust, as the remaining funds come from employee
contributions. This fact mitigates the structural conflict of
interest. It does not, however, eliminate the conflict because
although there is not a dollar-for-dollar correlation, it still
remains true that the more that the Trust pays out in benefits,
the more Pitney must contribute to maintain the Trust’s sol-
vency.

   [6] Third, unlike the plan at issue in MetLife, Pitney’s Plan
is an employer administered and funded plan.12 The Supreme
Court indicated that it viewed employer funded and adminis-
tered plans as creating a greater structural conflict than an
insurer administered and funded plan.13 

      We must obviously leave for another day the effect of a plan that is
jointly-administered by the employer and employee representatives. See
footnote 

.
   13
      Although the Supreme Court noted that plans funded and administered
by employers more clearly create a conflict of interest, the Court stated
that despite this difference, “a legal rule that treats insurance company
administrators and employers alike in respect to the existence of a conflict
can nonetheless take account of the [differences between dual-role insur-
ers and employers] so far as it treats those, or similar, circumstances as
diminishing the significance or severity of the conflict in individual
cases.” 

(emphases in the original).
13320                   BURKE v. PITNEY BOWES
2348-50; but see, e.g., 

(stating that
“employer fiduciaries have ‘incentives to avoid the loss of
morale and higher wage demands that could result from the
denial of benefits;’ these incentives are absent, or at least
attenuated, when an insurer serves as an ERISA fiduciary”)
(quotation source omitted); Smathers v. Multi-Tool, Inc., 

, 197-98 (3rd Cir. 2002) (stating “we have explained
that the risk of a conflict of interest is decreased where the
administrator and funder of the plan is the employer, rather
than an insurance company, because the employer has ‘incen-
tives to avoid the loss of morale and higher wage demands
that could result from denials of benefits’ suggesting that
there is at least some counter to the incentive not to pay
claims,” though recognizing that this conflict-mitigating fac-
tor is lessened when the claimant is no longer an employee)
(quotation source omitted). Because the Plan is administered
by Pitney, rather than an insurer, this aspect of the Plan tends
to increase the Plan’s structural conflict of interest in compar-
ison to the plan at issue in 

-50.

   [7] Based on the above considerations, although there are
aspects of the Plan that cut both ways, the Plan creates less
of a structural conflict of interest than the structural conflict
of interest that exists with the typical dual-role plan. That
said, a structural conflict of interest does exist and, as a result,
it must be “consider[ed] . . . as a factor in determining
whether [the Plan] has abused its discretion in denying
[Burke’s LTD claim].” 

. Because
the district court did not consider the Plan’s structural conflict
of interest as a factor in making its decision, we vacate the
district court’s ruling and remand for further proceedings con-
sistent with this opinion.14
  14
     We also do not decide on this appeal whether it was an abuse of dis-
cretion for the Committee, alternatively, to base its decision on the proce-
dural ground that Burke refused to attend the second IME. In reviewing
this, and any other procedural issue, anew under the MetLife/Abatie stan-
dard, the district court should address whether the Plan was prejudiced by
                       BURKE v. PITNEY BOWES                       13321
B.   Evidentiary ruling

   [8] We also vacate the district court’s ruling that it could
not consider the supplemental evidence submitted by Burke
because it was not part of the administrative record, in light
of our remand of the case on the merits. It is the general rule,
of course, that when applying an abuse of discretion standard
to an ERISA plan, the district court’s review is limited to the
administrative record. 

. But in exclud-
ing the disputed evidence, while observing that there was “no
evidence in the record that the documents at issue were before
the Committee at the time of its decision,” and that “plaintiff
never submitted the documents at issue,” the district court
failed to consider the peculiar circumstances of this case.

   When Burke asked the Plan to provide her with copies of
all of the relevant records, the Plan noted that it was not send-
ing her copies of any documents “submitted, considered or
generated” in connection with her earlier claim and settlement
because it “assume[d] you retained copies” of those docu-
ments. Later, the Plan stated to Burke in connection with
another request for documents that “the majority of those doc-
uments are already a part of Ms. Burke’s file (submitted by
Ms. Burke prior to the September 26, 2002 Settlement Agree-
ment).” (Emphasis added.) Given this correspondence about
Burke’s file, it is understandable that Burke assumed that her
earlier papers were a part of her current file, and Burke may
have been lulled into such a mistaken belief by the Plan’s rep-
resentations, an issue the district court should consider when
it reconsiders its evidentiary ruling.

the procedural default or, absent such prejudice, whether it would be an
abuse of discretion to deny benefits for such a harmless error.
   Likewise, given our remand, we have no occasion to review the district
court’s ruling as to Burke’s post-injury level-of-earnings capacity, which
is not directly challenged on this appeal.
13322                   BURKE v. PITNEY BOWES
   Further, even if this evidence is not part of the administra-
tive record, the district court may “consider evidence outside
the administrative record to decide the nature, extent, and
effect on the decision-making process of any conflict of inter-
est. . . .” 

. Here, for example, the Com-
mittee asserts that Burke is ineligible for benefits because she
did not file a timely claim, but the excluded evidence indi-
cates that Burke may have made a timely request for an LTD
benefits claim form and was told that she was not eligible.
The district court may consider this evidence to the extent it
is relevant in determining whether the structural conflict of
interest influenced the Committee’s decision to terminate
Burke’s benefits.15

   [9] Similarly, the district court may consider evidence out-
side the administrative record if it determines that procedural
irregularities prevented the full development of the adminis-
trative record. See 

(stating that “the court may take
additional evidence when the [procedural] irregularities have
prevented full development of the administrative record”).
Here, for example, there is some evidence of procedural irreg-
ularities, as the Committee considered a basis for terminating
her benefits on appeal that was not part of the Plan’s initial
decision to terminate her benefits — specifically, the timeli-
ness of her claim. As a result, Burke had no reason to submit
evidence into the administrative record regarding the timeli-
ness of her claim, as she was not made aware that the Com-
mittee was considering that as a basis for terminating her
benefits on appeal. Thus, to the extent there was a procedural
irregularity by the Plan in considering a basis for terminating
Burke’s benefits on appeal without any notice to Burke of that
basis, the district court can consider evidence outside the
administrative record that is absent from that record due to the
procedural irregularity. See 

to permit discovery into the nature, extent, and effect of the
Plan’s structural conflict of interest is also a matter within the district
court’s discretion.
                   BURKE v. PITNEY BOWES               13323
                            IV.

                      CONCLUSION

   For the foregoing reasons, we vacate the district court’s
grant of summary judgment and remand for reconsideration of
whether the Plan’s termination of Burke’s LTD benefits con-
stituted an abuse of discretion under the newly-established
MetLife/Abatie standard, as well as the associated procedural
issues.

  The parties shall bear their own costs on appeal.

  VACATED and REMANDED.