Case: 12-11978       Date Filed: 01/14/2013      Page: 1 of 8

                                                                  [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT

                              ________________________

                                    No. 12-11978
                              ________________________

                          D.C. Docket No. 4:10-cv-03230-VEH



SHERYL HARVEY,

                                                                        Plaintiff - Appellant,

                                            versus



STANDARD INSURANCE COMPANY,

                                                                      Defendant - Appellee.

                              ________________________

                      Appeal from the United States District Court
                         for the Northern District of Alabama
                             ________________________

                                     (January 14, 2013)

Before BARKETT and JORDAN, Circuit Judges, and SCHLESINGER, * District
Judge.

       *
         Honorable Harvey E. Schlesinger, United States District Judge for the Middle District
of Florida, sitting by designation.
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PER CURIAM:

      Sheryl Harvey appeals from an adverse summary judgment upholding as

reasonable Standard Insurance Company’s (“Standard”) denial of Harvey’s claim

for long-term disability (“LTD”) benefits under her employer’s group policy as

governed by the Employee Retirement Income Security Act of 1974 (“ERISA”),

29 U.S.C. § 1001 et seq.

      Harvey applied for disability benefits on April 13, 2009, stating that pain

was preventing her from doing her job as a bookkeeper, and submitted her

physician’s statement indicating a diagnosis of lumbar disc degeneration and

scoliosis, with symptoms of back and leg pain and a recommendation that she

return in six weeks for follow-up. Harvey’s physician did not provide information

concerning Harvey’s level of functional impairment or what amount of work

activity she could handle. Standard approved Harvey’s claim for short-term

disability benefits for a period of thirty days and requested that she provide

additional information.

      Before approving Harvey to transition from short-term to LTD benefits,

Standard had Harvey’s medical records reviewed by an Independent Physician

Consultant Board-Certified in Physiatry and by a Vocational Consultant. Based on

the recommendation of these two consultants, who both indicated that Harvey

could perform sedentary work activities, and its own review of the medical

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records, Standard determined that Harvey was not eligible for LTD benefits.

Harvey appealed and was interviewed by Standard’s benefits review specialist,

who requested additional medical records from Harvey’s treating physician and

from a pain management clinic. Standard had another Independent Physician

Consultant, specializing in Physiatry, review all of Harvey’s medical records,

including the latest ones from her physician and pain management clinic. He also

concluded that Harvey could perform sedentary level work activities. Standard’s

administrative review unit upheld the denial of Harvey’s LTD benefits and notified

her of its decision on March 15, 2010.

      Thereafter, Harvey, now through an attorney, requested the opportunity for

another administrative review of Standard’s denial of her claim and notified

Standard that Harvey had a pending claim for Social Security disability benefits.

Standard notified Harvey’s attorney that it had already completed Harvey’s one

administrative review as required by the LTD benefits policy but that it would

agree to perform a voluntary “extra-contractual” review, which would not be

subject to any regulatory timeframe. Harvey submitted additional information to

Standard, including Harvey’s affidavit, medical records, a vocational report and a

copy of the Social Security Administration’s award of disability benefits to

Harvey. Standard sought further review from a third Independent Physician




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Consultant and a second Vocational Consultant. However, before Standard issued

its decision on the voluntary “extra-contractual” review, Harvey filed this lawsuit.

      We review de novo the district court’s decision affirming the ERISA plan

administrator’s decision regarding benefit eligibility, applying the same standards

as the district court. Blankenship v. Metro. Life Ins. Co., 

, 1354

(11th Cir. 2011). Although ERISA does not provide a standard by which to

evaluate a plan administrator’s benefits determination, we have established a six-

step process 1 based on guidance from the Supreme Court in Firestone Tire &

Rubber Co. v. Bruch, 

(1989) and Metro. Life Ins. Co. v. Glenn, 554


      1
          The six-steps require a reviewing court to:
                (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.
                (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.
      

.
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(2008). See also Doyle v. Liberty Life Assurance Co. of Boston, 

(11th Cir. 2008).

      Harvey first argues that we should review her claim de novo and not apply

the six-step deferential analysis because Standard’s failure to provide a decision on

her voluntary “extra-contractual” appeal should be deemed a denial of her claim

without having been provided a full and fair review that comports with ERISA

requirements. She argues that some courts have suggested that “deemed denied”

claims are subject to de novo review and do not require courts to give deference to

the plan administrator. We find no merit to this argument because she received not

only a timely decision on her initial claim (it was denied) but also a full

administrative appellate review of her claim in accordance with the terms of her

LTD benefits policy (which upheld the denial of her claim). At that point, Harvey

was free to file suit in federal court having exhausted her administrative remedies

under her LTD benefits policy, yet she requested Standard to conduct an additional

administrative review of her claim, which Standard was not contractually bound,

but voluntarily agreed, to do. Harvey was not denied a full and fair administrative

review of her claim as her LTD benefits policy only required one administrative

appeal for purposes of exhaustion and the regulations governing voluntary appeals

do not provide any time frame for decision-making. Thus, that Harvey chose not

to wait for a decision on her voluntary appeal but instead filed this suit does not

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mean that she was denied a full and fair administrative review and final decision

on her claim.

      Next, we find no merit in Harvey’s argument that the district court erred in

its conclusion that Standard’s structural conflict of interest did not render its denial

of her claim unreasonable and that Standard disregarded several pieces of evidence

that show that she is disabled and that the district court erred as well in failing to

consider that evidence. She points out that she submitted her favorable Social

Security Administration determination of disability, a vocational expert’s, Dr.

William Crunk’s, report confirming Harvey’s disability, the medical records of Dr.

Michael Kendricks, a pain management specialist, and her own affidavit, which all

support her claim of disability. However, the district court correctly determined

that Standard did not unreasonably disregard these documents as they were not

submitted to Standard until after it had rendered a final decision on her

administrative appeal on March 15, 2010. Instead, Harvey submitted these

documents as part of her subsequent voluntary review, on which she chose not to

wait for Standard’s decision, but instead filed this suit on her original claim, which

she had a right to do. See 

. (“Review of the plan

administrator’s denial of benefits is limited to consideration of the material

available to the administrator at the time it made its decision.”). Therefore only the




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record before Standard during its consideration of Harvey’s initial claim or

administrative review thereon is relevant.

      Harvey also argues that Standard’s decision was unreasonable because

Standard accepted the opinions of its alleged biased record reviewers over the

opinion of Harvey’s treating physician. Each of Standard’s record reviewers

acknowledged that Harvey had degenerative disc disease, but concluded that

Harvey could perform sedentary work level activities with a sit/stand work

accommodation. On the other hand, Harvey’s physician diagnosed her with

lumbar disc degeneration and scoliosis, but never provided information regarding

her level of functional impairment or the amount of work activity in which she

could engage, despite Standard’s request for such additional information. Harvey

simply fails to explain what specific opinion of her treating physician Standard

failed to credit in favor of its reviewers.

      Instead, Harvey argues that because Standard paid the independent

consultant physicians for their work in reviewing Harvey’s medical records, and

for reviewing medical records on other claims generally, that they were necessarily

biased in favor of Standard such that Standard’s denial of Harvey’s claim for LTD

benefits was unreasonable. The record does not support evidence of bias. The

record evidence shows that the independent consultants acknowledged that

Harvey’s medical records supported a finding of mild degenerative disc disease

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and they, along with a vocational consultant, concluded that Harvey could perform

sedentary level work activities. The report from Harvey’s treating physician failed

to address the question of Harvey’s functional impairment and ability to work,

thus, we cannot say that it was unreasonable for Standard to credit the reviews of

its independent consultants.

      Harvey finally argues that because Standard approved Harvey’s claim for

short-term disability benefits that its subsequent denial of her claim for LTD

benefits demonstrates a conflict of interest. Harvey fails to explain why these two

decisions are inconsistent or why they demonstrate that Standard’s conflict of

interest tainted its decision on her claim for LTD benefits. The two forms of

benefits are covered under two different policies with two different definitions of

disability. Moreover, the statement from Harvey’s treating physician indicated that

her disabling condition prevented her from working for six weeks but did not offer

any further opinion her inability to work after the six weeks.

      AFFIRMED.




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