Filed: Jan. 31, 2020
Latest Update: Mar. 03, 2020
Summary: Case: 19-11798 Date Filed: 01/31/2020 Page: 1 of 15 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 19-11798 Non-Argument Calendar _ D.C. Docket No. 6:16-cv-02061-CEM-DCI KIA KAVIANI, D.M.D., Plaintiff-Appellee, versus RELIANCE STANDARD LIFE INSURANCE COMPANY, Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Florida _ (January 31, 2020) Before MARTIN, JORDAN, and NEWSOM, Circuit Judges. PER CURIAM: Case: 19-117
Summary: Case: 19-11798 Date Filed: 01/31/2020 Page: 1 of 15 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 19-11798 Non-Argument Calendar _ D.C. Docket No. 6:16-cv-02061-CEM-DCI KIA KAVIANI, D.M.D., Plaintiff-Appellee, versus RELIANCE STANDARD LIFE INSURANCE COMPANY, Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Florida _ (January 31, 2020) Before MARTIN, JORDAN, and NEWSOM, Circuit Judges. PER CURIAM: Case: 19-1179..
More
Case: 19-11798 Date Filed: 01/31/2020 Page: 1 of 15
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11798
Non-Argument Calendar
________________________
D.C. Docket No. 6:16-cv-02061-CEM-DCI
KIA KAVIANI, D.M.D.,
Plaintiff-Appellee,
versus
RELIANCE STANDARD LIFE INSURANCE COMPANY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 31, 2020)
Before MARTIN, JORDAN, and NEWSOM, Circuit Judges.
PER CURIAM:
Case: 19-11798 Date Filed: 01/31/2020 Page: 2 of 15
Dr. Kia Kaviani sued Reliance Life Insurance Company (“Reliance”), the
administrator of his disability insurance plan, alleging it acted unreasonably by
denying his request for benefits. The district court agreed with Kaviani. So do we.
I.
A.
On April 20, 2012, Dr. Kia Kaviani, a dentist employed by Greenberg
Dental, was involved in an automobile accident when the car he was driving was
hit from behind. Two days after the accident, Kaviani went to the emergency room
for neck and back pain and was diagnosed with cervicalgia. An MRI taken in May
2012 revealed disc bulging, herniation, and mild stenosis in certain of Kaviani’s
vertebrae. Over the next three years, Kaviani was seen by Dr. Richard Smith, an
orthopedic surgeon, for neck pain radiating to his shoulder, arms, hands, and
fingers, weakness, numbness, tingling, and restless sleep. He was also treated by
Dr. Mark Sharfman, a neurologist, for headaches with neck and back pain.
Reliance acknowledges that Kaviani’s treatment immediately after the accident and
throughout the rest of 2012 was “significant.”
Despite continued pain, headaches, and other side effects stemming from the
accident, Kaviani continued to practice dentistry. In June 2015, he had another
MRI. Kaviani also told Dr. Smith that his pain was making it difficult for him to
perform his job as a dentist without dropping his tools. Dr. Smith administered a
2
Case: 19-11798 Date Filed: 01/31/2020 Page: 3 of 15
muscle strength test and reported seventeen readings that were 5/5 (i.e., normal)
and three that were 4/5. Kaviani’s neurological examination was also normal.
Nevertheless, Dr. Smith recommended that Kaviani change occupations. On July
10, 2015, Kaviani submitted his resignation to Greenberg Dental, effective August
10, 2015; he worked through August 7.
Kaviani submitted his claim for long-term disability (“LTD”) benefits to
Reliance on August 14, 2015. To qualify for benefits under the Reliance policy,
Kaviani had to be totally disabled—defined in the policy to mean unable to
perform the material duties of his regular occupation—for 180 consecutive days
(the “Elimination Period”).
In support of his claim, Kaviani submitted a Physician’s Statement by Dr.
Smith that Kaviani could not “continue [his] current occupation” due to neck pain,
tingling, and numbness. Dr. Smith’s statement also cited Kaviani’s June 2015
MRI, which showed cervical herniated nucleus pulposus/disc bulges, and which
Smith indicated meant Kaviani would likely need a cervical discectomy soon.
Kaviani also submitted a questionnaire about his daily activities in which he wrote:
[T]he pain that I suffer as the result of the spinal injury in my neck is
severe and does not allow me to perform my job as a dentist properly.
The posture I have [to] be in to do dentistry makes my condition worse.
I am unable to do proper treatment on patients.
As part of its review of Kaviani’s claim, Reliance facilitated two analyses of
Kaviani: an occupational analysis by John Zurick, a rehabilitation specialist; and a
3
Case: 19-11798 Date Filed: 01/31/2020 Page: 4 of 15
medical examination by Dr. Dan Gerstenblitt. Dr. Gerstenblitt reported that
Kaviani’s pain was self-reported and subjective and that Kaviani’s June 2015 MRI
was “unimpressive and essentially a normal study.” Dr. Gerstenblitt also noted,
however, that Kaviani had trouble grasping and a reduced range of neck motion,
and that there could be patient safety issues if he continued in his job.
Nevertheless, Dr. Gerstenblitt said Kaviani had no “objective neurological deficits
and his MRI is benign,” so “there is no basis for him to be out of work.” On
March 10, 2016, Reliance denied Kaviani’s claim for LTD benefits. Reliance’s
denial was based on Dr. Gerstenblitt’s report and its own independent review of
the record.
Kaviani appealed Reliance’s denial on August 25, 2016. Kaviani submitted
additional records in support of his appeal, which documented: continued neck and
arm pain, with and without pain medication; cervical spasms and upper extremity
numbness and tingling; and grip strength that showed his inability to safely
perform his essential job functions. He also included statements from physicians
and colleagues attesting to his physical infirmities.
In reviewing Kaviani’s appeal, Reliance had Dr. James Butler conduct a
medical assessment of Kaviani’s file. Dr. Butler said that Kaviani would need
cognitive behavioral therapy in order to be “a safe dentist” and that it was difficult
to say Kaviani could do “his full work.” Dr. Butler also attested that Kaviani was
4
Case: 19-11798 Date Filed: 01/31/2020 Page: 5 of 15
capable of “at least sedentary work” and later added that “[w]ith a dearth of
objective impairments, there is nothing to show that he cannot do sedentary or light
work on a full time basis.” Dr. Butler noted Kaviani’s complaints of pain, but
because he would have pain in his neck “[w]hether he sits at home or whether he
works” Kaviani’s contention that he is unable to work based on the neck pain “is
not supported.” According to Dr. Butler, Kaviani’s functional capacity evaluation
(“FCE”) report, which Kaviani submitted in support of his appeal, was “deemed
invalid” but Butler gave no information about who made that decision or why the
report was deemed invalid. Reliance denied Kaviani’s appeal on November 8,
2016.
B.
Kaviani filed this action in federal court on November 25, 2016. Kaviani
claimed he satisfied all conditions to be eligible to receive his LTD benefits and
that Reliance’s refusal to pay the benefits was unlawful. He requested the unpaid
LTD benefits, plus interest, as well as statutory attorney’s fees. Reliance answered
the complaint and, following discovery, the parties both moved for summary
judgment.
By written order on March 27, 2019, the district court granted Kaviani’s
motion for summary judgment and denied Reliance’s motion. The court held it
was unreasonable to have denied Kaviani’s claim on the basis that he failed to
5
Case: 19-11798 Date Filed: 01/31/2020 Page: 6 of 15
present objective evidence of his disability. The court rejected Reliance’s efforts
to discredit Kaviani. It expressly rejected Reliance’s argument that Kaviani should
not be taken seriously because he “has not presented a neatly-packaged explanation
as to why he could no longer work in August 2015 when he had presumably been
in pain since the motor vehicle collision in 2012.” Rather, the court found that
Kaviani “suffers from persistent pain that is exacerbated by stress and certain
physical exertions—including exertions that are required when working as a
dentist.” The court found it arbitrary and capricious for Reliance to have “cherry-
picked favorable evidence,” including Dr. Butler’s “flawed” study, “while ignoring
the abundance of unfavorable medical evidence.” The court also rejected Dr.
Gerstenblitt’s and Dr. Butler’s conclusions that “pain cannot be the basis of
[Kaviani’s] disability because he will be in pain whether he is working or not” as
contrary to the evidence. The court awarded Kaviani $313,644 in past-due benefits
and interest, and $100,000 in attorney’s fees and costs. Reliance timely appealed.
II.
Under the Employee Retirement Income Security Act of 1974 (“ERISA”),
29 U.S.C. § 1001 et seq., a participant in a covered retirement plan may sue the
plan administrator for recovery of benefits. Hamilton v. Allen-Bradley Co.,
244
F.3d 819, 824 (11th Cir. 2001). “We ‘review de novo a district court’s ruling
affirming or reversing a plan administrator’s ERISA benefits decision, applying the
6
Case: 19-11798 Date Filed: 01/31/2020 Page: 7 of 15
same legal standards that governed the district court’s decision.’” Alexandra H. v.
Oxford Health Ins. Inc. Freedom Access Plan,
833 F.3d 1299, 1306 (11th Cir.
2016) (quoting Blankenship v. Metro. Life Ins. Co.,
644 F.3d 1350, 1354 (11th Cir.
2011) (per curiam)). “We also review de novo a district court’s grant of summary
judgment.”
Id. Summary judgment is appropriate if the moving party “shows that
there is no genuine dispute as to any material fact and [he] is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a).
III.
We have set forth a six-part test for reviewing a plan administrator’s benefits
decision:
(1) Apply the de novo standard to determine whether the claim
administrator’s benefits-denial decision is “wrong” (i.e., the court
disagrees with the administrator’s decision); if it is not, then end the
inquiry and affirm the decision.
(2) If the administrator’s decision in fact is “de novo wrong,” then
determine whether he was vested with discretion in reviewing claims;
if not, end judicial inquiry and reverse the decision.
(3) If the administrator’s decision is “de novo wrong” and he was vested
with discretion in reviewing claims, then determine whether
“reasonable” grounds supported it (hence, review his decision under the
more deferential arbitrary and capricious standard).
(4) If no reasonable grounds exist, then end the inquiry and reverse the
administrator’s decision; if reasonable grounds do exist, then determine
if he operated under a conflict of interest.
(5) If there is no conflict, then end the inquiry and affirm the decision.
7
Case: 19-11798 Date Filed: 01/31/2020 Page: 8 of 15
(6) If there is a conflict, the conflict should merely be a factor for the
court to take into account when determining whether an administrator’s
decision was arbitrary and capricious.
Blankenship, 644 F.3d at 1355. Because Reliance was vested with discretion to
interpret the Plan and the insurance policy, both parties agree that we should begin
our analysis at step three: that is, whether Reliance’s decision to deny Kaviani’s
claim was arbitrary and capricious.
“Normally, a decision to deny benefits is arbitrary and capricious if no
reasonable basis exists for the decision.” Levinson v. Reliance Standard Life Ins.
Co.,
245 F.3d 1321, 1325–26 (11th Cir. 2001) (alteration adopted and quotation
marks omitted); see Yochum v. Barnett Banks, Inc. Severance Pay Plan,
234 F.3d
541, 544 (11th Cir. 2000) (per curiam) (“[T]he ‘arbitrary and capricious’ standard
. . . is analogous to an abuse of discretion standard.”). The question is not whether
the court or anybody else would reach a different conclusion from the plan
administrator, but rather whether the record reasonably supports the
administrator’s decision. See Turner v. Delta Family-Care Disability &
Survivorship Plan,
291 F.3d 1270, 1273 (11th Cir. 2002). Whether the
administrator had a reasonable basis for its denial of benefits is “based upon the
facts as known to the administrator at the time the decision was made.” Jett v.
Blue Cross & Blue Shield of Ala., Inc.,
890 F.2d 1137, 1139 (11th Cir. 1989). The
8
Case: 19-11798 Date Filed: 01/31/2020 Page: 9 of 15
claimant bears the burden of proving he is disabled. Glazer v. Reliance Standard
Life Ins. Co.,
524 F.3d 1241, 1247 (11th Cir. 2008).
A.
Reliance first claims the district court made improper credibility
determinations. However, we read the district court’s order as faulting Reliance
for its refusal to accept Kaviani’s complaints of pain when the evidence supported
his claims of pain. In particular, Reliance took issue with the fact that Kaviani did
not file for LTD benefits until three years after the accident; did not receive
treatment from Dr. Smith in the year-and-a-half preceding his June 2015 visit with
Smith; and continued to work for thirty days after giving notice of his resignation.
In rejecting Reliance’s arguments that these facts were dispositive of Kaviani’s
complaint, the district court did not decide that Kaviani was, in fact, credible.
Rather, the district court held that these reasons for rejection were insufficient to
overcome the uncontroverted evidence showing that that Kaviani’s condition
became progressively worse and that he was likely practicing dentistry in an unsafe
manner. And the district court also cited to precedent from our Court and others
holding that disability is not disproved by the fact that a claimant continues to
work. This type of analysis satisfies an arbitrary and capricious standard of
review. See Oliver v. Coca Cola Co.,
497 F.3d 1181, 1197 (11th Cir.) (“By
denying Oliver’s claim on the ground that he had not provided ‘objective’ evidence
9
Case: 19-11798 Date Filed: 01/31/2020 Page: 10 of 15
of his pain, despite Oliver’s submission of uncontroverted medical evidence of the
only sort available to prove his disability . . . Coca-Cola engaged in capricious
decision making.”), vacated in part on other grounds,
506 F.3d 1316 (11th Cir.
2007).
Reliance also cites these “time-related issues” as evidence that Kaviani has
not proved his disability. Reliance’s brief is full of citations to inapposite out-of-
circuit authority. 1 Yet nowhere does it grapple with our Circuit precedent
establishing that an employee’s “attempt to work does not forever bar [his]
collection of sickness disability benefits.” Marecek v. BellSouth Telecomms., Inc.,
49 F.3d 702, 706 (11th Cir. 1995). Nor does Reliance show that the objective
medical evidence supports its view of the facts. The district court was correct to
reject Reliance’s speculation in favor of evidence showing that Kaviani was
experiencing debilitating disability in the period leading up to his resignation from
Greenberg Dental. See Brown v. Blue Cross & Blue Shield of Ala., Inc.,
898 F.2d
1556, 1566 n.11 (11th Cir. 1990) (“Good faith requires an honest effort to ascertain
1
Reliance also attempts to distinguish Hawkins v. First Union Corp. Long-Term
Disability Plan,
326 F.3d 914 (7th Cir. 2003), and Nieves v. Prudential Insurance Co. of
America,
233 F. Supp. 3d 755 (D. Ariz. 2017), both of which the district court cited in rejecting
Reliance’s arguments on this point. While those cases are, in certain respects, factually
distinguishable from Kaviani’s, neither court relied on the distinguishable facts when holding
that “disability is not disproved by the mere fact that the claimant found a way to continue
working.”
Nieves, 233 F. Supp. 3d at 761; see
Hawkins, 326 F.3d at 918 (holding that there is
no “logical incompatibility between working full time and being disabled from working full
time”). The objective medical evidence here proves Kaviani was disabled.
10
Case: 19-11798 Date Filed: 01/31/2020 Page: 11 of 15
the facts upon which its exercise must rest and an honest determination from such
ascertained facts.” (quotation marks omitted)), overruled on other grounds by
Metro. Life Ins. Co. v. Glenn,
554 U.S. 105,
128 S. Ct. 2343 (2008).
B.
Next, Reliance defends its decision to give short shrift to the FCE report and
a neurophysiologic pain profile report by Dr. David Ross, an independent medical
examiner (“IME”), both of which Kaviani submitted in support of his internal
appeal. Reliance argues that the timing and content of these reports means they
should carry less weight. We reject this argument.
The FCE report showed that Kaviani has below-functioning reaching and
handling in his upper extremities, as demonstrated by his grip strength, shoulder
strength, and endurance to repetitive hand use. Based on the FCE report as well as
his own independent examination, Dr. Ross’s IME report concluded that Kaviani
has chronic pain syndrome that rendered him unable to perform his work
obligations safely, even with further treatment. Reliance says the FCE report is
unreliable because it was produced after the Elimination Period ended and that the
IME report is problematic because Dr. Ross did not review Kaviani’s treatment
records or address an EMG test that seemed to disagree with his findings.
Reliance is correct that the FCE report is not relevant insofar it does not
provide evidence of Kaviani’s disability during the Elimination Period. Nothing in
11
Case: 19-11798 Date Filed: 01/31/2020 Page: 12 of 15
the FCE report itself discusses Kaviani’s condition during the relevant time period.
The FCE report could have been relevant on its own had Kaviani pointed us to any
aspects of the report consistent with findings of disability during the Elimination
Period, but he has not done so.2
That said, the FCE report was examined by Dr. Ross after Ross performed
his IME report. Dr. Ross noted that the findings in the FCE Report “confirm[ed]
and extend[ed]” Ross’s own independent findings. What were those findings?
That, contrary to Dr. Gerstenblitt’s report, Kaviani was totally disabled. Dr. Ross
noted this finding was “correct[ly]” made by Dr. Smith in June 2015. Reliance
does not challenge the IME report on timeliness grounds, instead arguing that “Dr.
Ross’s ultimate opinion of total disability cannot be reconciled with his own
testing.” But the key finding Reliance points to—Dr. Ross’s note that Kaviani was
experiencing “mild myofascial pain”—is not inconsistent with Ross’s other pain
findings. Dr. Ross found that Kaviani’s pain would increase over the course of an
eight-hour workday and that this pain would prevent Kaviani from being able to
“safely perform his work obligations,” even with future treatment. And as the
2
Nonetheless, we agree with the district court that Reliance’s delay in adjudicating
Kaviani’s initial claim prevented him from obtaining an FCE report during the Elimination
Period. Kaviani filed his claim right after his resignation. It would have made no sense for him
to obtain additional medical evidence for an appeal he did not yet know would be necessary.
Given that Reliance caused Kaviani’s difficulty in obtaining a timely FCE report, we give less
weight to its arguments on this ground.
12
Case: 19-11798 Date Filed: 01/31/2020 Page: 13 of 15
district court pointed out, even Dr. Butler acknowledged Dr. Ross had “proven”
Kaviani was in pain.
Just as Reliance was not required to give absolute deference to the findings
in the FCE report and IME report, it could not discount them without a reasoned
basis. See
Oliver, 497 F.3d at 1198 (holding it was arbitrary and capricious for the
plan administrator to rely on favorable evidence while ignoring contrary objective
medical evidence in the record). Reliance acted arbitrarily and capriciously when
it ignored the unfavorable findings of disability in these reports.
C.
Similarly, Reliance disagrees with the district court’s conclusion that
Reliance “cherry-picked favorable evidence to rely upon while ignoring the
abundance of unfavorable medical evidence.” According to Reliance, the evidence
favorable to Kaviani was not reliable objective medical evidence at all, and even if
it were it was not unreasonable for Reliance to rely on the reports by Dr.
Gerstenblitt and Dr. Butler. The district court properly recognized that Reliance is
permitted to deny claims “on the basis of conflicting, reliable evidence.” See
Oliver, 497 F.3d at 1199. But it was arbitrary and capricious for Reliance to
willfully blind itself to the conflict in the evidence. See
id. at 1198; Levinson, 245
F.3d at 1327 (holding that there must be “a reasonable basis for [a plan
administrator’s] decisions, based on the evidence known to [it] at the time”). As
13
Case: 19-11798 Date Filed: 01/31/2020 Page: 14 of 15
discussed above, the IME report (and, to a lesser extent, the FCE report) was
reliable medical evidence that Reliance could not ignore. That is also the case with
the records from Dr. Sharfman and Dr. Smith, both of whom found that Kaviani
suffered from headaches, pain in his upper extremities, and other symptoms that
would make it difficult for him to practice dentistry safely.3 Reliance does not
articulate how those doctors’ statements were flawed. We agree with the district
court that this substantial objective evidence could not be canceled out by Dr.
Gerstenblitt’s unsupported conclusion that Kaviani was “self-limiting” or Dr.
Butler’s subjective belief that “pain is a perception” and that Kaviani was not
disabled because he would be in pain regardless of whether he was sitting at home
or working.
IV.
Although a plan administrator has substantial discretion in adjudicating
disability claims, it cannot ignore uncontradicted record evidence of disability. We
agree with the district court that Reliance did just that when it rejected Kaviani’s
claim for LTD benefits. Because Reliance’s denial of Kaviani’s claim was
arbitrary and capricious under any standard, we need not reach the question of
whether Reliance was improperly motivated by self-interested financial concerns.
3
Reliance also argues the district court misread a note from one of Kaviani’s visits to Dr.
Smith, which Reliance says shows Kaviani was not suffering from headaches as a general matter.
However, Kaviani has a documented history of treatment for headaches.
14
Case: 19-11798 Date Filed: 01/31/2020 Page: 15 of 15
AFFIRMED.
15