NORAH McCANN KING, Magistrate Judge.
This is an action under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1132 ("ERISA"), in which plaintiff seeks recovery of short-term disability benefits under an employer-sponsored plan. This matter is now before the Court, with the consent of the parties pursuant to 28 U.S.C. 636(c), for consideration of the parties' second cross-motions for judgment on the administrative record. Plaintiff's Motion, ECF No. 45; Defendant's Motion, ECF No. 46. For the reasons that follow, Plaintiff's Motion is
This Court previously detailed the procedural and factual background of this case, including the medical evidence of record. See Opinion and Order, ECF No. 23. Plaintiff Stacie Groth began working for CenturyLink on June 16, 2008 and was a participant in the CenturyLink Disability Plan (the "Plan"), which is sponsored by CenturyLink, Inc. Administrative Record, ECF No. 17, PAGEID 110 ("A.R. I PAGEID ___"); Answer, ECF No. 12, ¶ 1. The Plan Administrator, who had authority to, inter alia, determine eligibility for benefits, construe the terms of the plan and decide appeals, delegated its authority to a Third Party Administrator, The Reed Group (`TPA' or `Reed'), which is also sometimes referred to as CenturyLink Disability Services (`CDS'). Stipulation Regarding Standard of Review, ECF No. 19, ¶ 1. "Reed determines eligibility for benefits, interprets the plan and decides appeals but is not responsible for paying benefits." Id. at ¶ 2. A participant is eligible for shortterm disability benefits under the Plan if she is disabled and if she fulfills certain requirements and obligations, including providing to the TPA documentation supporting total disability (or partial disability):
Administrative Record after Remand, ECF No. 40, PAGEID 585 ("A.R. II PAGEID ___"). "Objective Medical Documentation" under the Plan means "written documentation of observable, measurable and reproducible findings from examination and supporting laboratory or diagnostic tests, assessment or diagnostic formulation, such as, but not limited to, x-ray reports, elevated blood pressure readings, lab test results, functionality assessments, psychological testing, etc." A.R. II PAGEID 576.
On November 5, 2012, plaintiff applied for short-term disability benefits under the Plan in connection with a planned absence from October 31, 2012, through "the end of the year." A.R. I PAGEID 110, 119. Plaintiff indicated that she was disabled due to mental health issues, fibromyalgia, and stress. A.R. I PAGEID 118. Plaintiff identified Jacob Wolf, M.D., as her treating physician and noted that she had been referred to a pain specialist and therapist/counseling. A.R. PAGEID 119.
The TPA denied plaintiff's application for short-term disability on November 28, 2012, because, despite requests to plaintiff and Dr. Wolf for information, it had "not been supplied with any medical information to substantiate you are Disabled." A.R. I PAGEID 119, 121, 124-25, 272-73, 291, 302, 318-19.
On November 29, 2012, the TPA received a completed health care provider statement from Dr. Wolf dated November 19, 2012, which stated that plaintiff was "currently totally disabled" because of anxiety/depression and a herniated lumbar disk. A.R. I PAGEID 126, 293. Dr. Wolf anticipated that plaintiff would return to work full time on January 3. Id. Plaintiff submitted a written notice of appeal on November 30, 2012. A.R. PAGEID 127, 289.
On December 26, 2012, plaintiff was informed that no records had been received from her psychiatrist or pain management specialist and that her case could be tolled for 45 days in order to permit her to submit additional medical evidence. A.R. PAGEID 130. On January 7, 2013, plaintiff informed the TPA that she had not treated with a psychiatrist and that, although she had an appointment to see a pain management specialist on January 22, 2013, she did not want to toll her case. A.R. PAGEID 131.
The TPA affirmed the denial of short-term disability benefits on January 18, 2013. A.R. PAGEID 177-82. Plaintiff filed this action on December 13, 2013.
On December 31, 2014, the Court concluded that the denial of plaintiff's claims for benefits was arbitrary and capricious:
Opinion and Order, ECF No. 23, pp. 14-17. The Court therefore remanded the matter to the TPA "to conduct a full and fair review and to issue a decision that reflects a deliberate and principled reasoning process." Id. at 17.
Following remand, plaintiff supplemented the administrative record with nearly 1000 pages of medical records from eleven different providers in addition to Dr. Wolf and Ms. Harris. See generally A.R. II. Warren Taff, M.D., M.P.H., a board certified psychiatrist, and Richard Kaplan, M.D., a board certified physical medicine and rehabilitation specialist, reviewed the record for the TPA. A.R. II PAGEID 1595-1618. In a letter dated April 21, 2015, the TPA advised that plaintiff's claim for benefits was again denied. A.R. II PAGEID 1619-24.
In a written opinion dated May 5, 2015, an administrative law judge with the Social Security Administration found that plaintiff's severe impairments, which consist of lumbar degenerative disc disease/scoliosis/spondylosis, fibromyalgia, anxiety, and depression, A.R. II PAGEID 1685, rendered her disabled within the meaning of the Social Security Act since January 31, 2013. A.R. PAGEID II 1690.
On May 19, 2015, plaintiff forwarded the Social Security Administration decision to the TPA and requested reconsideration of the decision denying plaintiff's claim for benefits under the Plan. A.R. II PAGEID 1678. Plaintiff also advised that she would forward a complete copy of her Social Security disability file as soon as she received it. Id. On June 8, 2015, the TPA advised that it would not reopen its administrative record or reconsider its decision. A.R. II PAGEID 1706.
This Court has previously set out in detail the medical evidence presented prior to the order of remand. Opinion and Order, ECF No. 23, pp. 4-8. Dr. Wolf, plaintiff's treating physician, completed a health care provider's statement of disability on November 19, 2012. A.R. I PAGEID 293. According to Dr. Wolf, plaintiff was "currently totally disabled" due to a herniated disk with radiculopathy and anxiety/depression. Id. Dr. Wolf noted that plaintiff's medications included Wellbutrin, Cymbalta, Trazodone, and Klonopin and that she "plans on seeing a psychiatrist, seeing currently a counselor, will go to pain management." Id. Dr. Wolf concluded that plaintiff was unable to work even with restrictions but that she anticipated a return to full time work on January 3. Id.
In a letter dated December 20, 2012, Ms. Harris, plaintiff's counselor, indicated that plaintiff is "currently suffering from both major depression and anxiety in response to a serious family situation and some chronic health/pain issues." A.R. I PAGEID 270. Ms. Harris also commented that plaintiff has "reported symptoms consistent with the diagnosis of Panic Disorder." Id. Ms. Harris described plaintiff's symptoms and limitations as follows:
Id.
Harold K. Gever, M.D., reviewed the record and, on January 11, 2013, completed a "physician file review." A.R. I PAGEID 241-44. According to Dr. Gever, there "is no objective medical information . . . which documents any evidence of functional limitations supporting [plaintiff's] inability to work from 10/31/2012 through [the date of the review.]" A.R. I PAGEID 242. Dr. Gever opined that plaintiff would be able to work without restrictions, but that her symptoms of anxiety/depression may affect her ability to perform the essential functions of her job. A.R. PAGEID 242-43. As for Ms. Harris's opinion that medications may adversely affect plaintiff, Dr. Gever found that "Dr. Wolf's office notes provide no such statements with reference to medications he is prescribing for any of [plaintiff's] medical complaints/diagnoses." A.R. I PAGEID 243. Although plaintiff "may meet the criteria for a short term disability on the basis of a behavioral health issue (anxiety/depression and/or panic disorder), there is no objective medical documentation supporting such disability due to a medical condition as outlined in Dr. Jacob Wolf's office notes." Id.
Marcus Goldman, M.D., reviewed the record and, on January 17, 2013, completed a "peer file review." A.R. I PAGEID 197-200. Dr. Goldman saw no evidence documenting functional limitations or an inability to work from October 31, 2012, through the date of his review:
A.R. I PAGEID 198.
Dr. Goldman also rejected Ms. Harris's "suggested impairment in focus and concentration," finding a lack of "measured data to support impairing cognitive dysfunction." A.R. I PAGEID 198-99. Similarly, Dr. Goldman rejected Ms. Harris's opinion that medications may adversely affect plaintiff, reasoning that "there are no findings on examination that would support lethargy or somnolence, altered sensorium, measured cognitive dysfunction, slowing or confusion." A.R. I PAGEID 199. According to Dr. Goldman, plaintiff was able to work without restriction. Id.
As part of the additional evidence submitted following remand, plaintiff offered evidence related to a diagnosis of fibromyalgia. Marc. A. Antonchak, M.D., examined plaintiff on December 3, 2010 upon referral by Dr. Wolf. A.R. II PAGEID 663-65. Plaintiff reported that "for the last couple of months she has actually had worsened arthralgias and myalgias mostly of her back, neck, arms, elbows and sometimes thighs." A.R. II PAGEID 664. Dr. Antonchak noted that plaintiff had 16 of 18 tender points and found that "a lot of her symptoms are compatible with her diagnosis of fibromyalgia." A.R. II PAGEID 664-65.
Plaintiff saw Dr. Antonchak again on June 13, 2011, and reported musculoskeletal pain, particularly bilateral hip pain and persistent, generalized body aches. A.R. II PAGEID 667. Dr. Antonchak prescribed Neurontin for pain and recommended that plaintiff speak with a counselor or psychiatrist. Id.
On May 7, 2012, Yeshwant P. Reddy, M.D., evaluated plaintiff and diagnosed, inter alia, fibromyalgia syndrome. A.R. II PAGEID 1052. During a follow-up visit on September 3, 2013, plaintiff reported increasing back and leg pain. Plaintiff underwent epidural steroid injections in October 2013. A.R. II PAGEID 1035. On October 27, 2014, Dr. Reddy opined that "a good portion of her pain is indeed related to fibromyalgia in addition to her spinal conditions." Id. Medications included hydrocodone, Cymbalta, and ibuprofen. A.R. II PAGEID 1045.
Plaintiff also submitted the reports of Daniel L. Davis, Ph.D., a psychologist, and of Mark Fettman, M.D., a psychiatrist, both of whom examined plaintiff at the request of "Exam Coordinators Network."
There were no indications of under reporting of symptoms. A.R. II PAGEID 713. Dr. Davis also indicated that plaintiff "is at risk for suicidal ideation although she did not endorse any of the MMPI 2 RF Suicidal/Death scale items[,]" "is likely to feel overwhelmed[,]" "very unlikely to be self-reliant[,]" "likely to be stress-reactive and worry prone and to engage in obsessive rumination" as well as "likely to have problems with anger, irritability, and low tolerance for frustration[.]" A.R. II PAGEID 714.
In a report dated August 8, 2011, following his examination of plaintiff, Dr. Fettman stated:
A.R. II PAGEID 719.
June 24, 2014, treatment notes by Ms. Harris, plaintiff's counselor, reflect increased depression and anxiety as well as continued complaints of pain. A.R. II PAGEID 1032. Plaintiff's condition had improved by July 2014, but Ms. Harris noted symptoms of anxiety and depression. A.R. II PAGEID 1033. In September 2014, Ms. Harris continued to note symptoms of depression and anxiety. Id.
The Plan defines disability as follows:
CenturyLink Disability Plan, § 1.15(a), A.R. I PAGEID 47. The Plan defines "Objective Medical Documentation" as "written documentation of observable, measurable and reproducible findings from examination and supporting laboratory or diagnostic tests, assessment or diagnostic formulation, such as, but not limited to, x-ray reports, elevated blood pressure readings, lab test results, functionality assessments, psychological testing, etc." Id. at § 1.31, A.R. I PAGEID 52.
By letter dated April 21, 2015, the TPA Appeals Board issued a decision upholding the denial of plaintiff's claim for short-term disability benefits. A.R. II PAGEID 1619-24. After summarizing the case history and reviewing the Plan's definition of "disability" and eligibility requirements for benefits, A.R. II PAGEID 1619-20, the letter details the medical evidence considered by and the opinions of its two independent physician reviewers, Drs. Kaplan and Taff, upon whose opinions the TPA relied. A.R. II PAGEID 1621.
A.R. II PAGEID 1623. The letter went on to note that, although plaintiff had applied for Social Security disability benefits, "[a]s of the date of this letter[,] Reed Group has not been informed of the Social Security Administration's determination." Id. The letter concludes by indicating, "The decision in this matter is a final adverse benefit determination" and informing plaintiff of her right to file suit under ERISA. Id.
In response to plaintiff's May 19, 2015, request for reconsideration of the denial of benefits in light of the May 5, 2015, favorable decision of the Social Security Administration, A.R. II PAGEID 1678, the TPA declined to reopen its administrative record or reconsider. The TPA offered three reasons for this decision. A.R. II PAGEID 1706. First, the TPA explained that the decision of the Social Security Administration related to a different period of time (i.e., January 31, 2013 to the present) than did plaintiff's request for short-term disability benefits (i.e., "between October 31, 2012 and February 04, 2013"). Id. Second, plaintiff's request that the TPA consider the Social Security decision was untimely: the TPA issued its decision on April 21, 2015 and its administrative record was closed by the time of plaintiff's May 19, 2015 request for reconsideration. Id. Finally, the Social Security Administration's standards of disability are different than those of the Plan. Id.
A challenge to an ERISA plan's denial of benefits is reviewed de novo unless, as is the case here, the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan. Shields v. Reader's Digest Ass'n, Inc., 331 F.3d 536, 541 (6th Cir. 2003) (quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)). "If a plan grants such discretionary authority, the plan administrator's decision to deny benefits is reviewed under the deferential `arbitrary and capricious' standard of review.'" Id. (quoting Perez v. Aetna Life Ins. Co., 150 F.3d 550, 555 (6th Cir. 1998)). "This standard `is the least demanding form of judicial review of administrative action. . . . When it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary and capricious.'" Evans v. UnumProvident Corp., 434 F.3d 866, 876 (6th Cir. 2006) (internal quotations omitted) (quoting Killian v. Healthsource Provident Adm'rs, Inc., 152 F.3d 514, 520 (6th Cir. 1998)). "The arbitrary-andcapricious standard, however, does not require [the Court] merely to rubber stamp the administrator's decision." Jones v. Metro. Life Ins. Co., 385 F.3d 654, 661 (6th Cir. 2004) (citing McDonald v. W.-S. Life Ins. Co., 347 F.3d 161, 172 (6th Cir. 2003)). Instead, "a decision will be upheld `if it is the result of a deliberate principled reasoning process, and if it is supported by substantial evidence.'" Evans, 434 F.3d at 876 (internal quotations omitted) (quoting Killian, 152 F.3d at 520). This requires the reviewing court to weigh "the quality and quantity of the medical evidence and the opinions on both sides of the issues." McDonald, 347 F.3d at 172.
The parties previously stipulated that the "denial of Plaintiff's claim for benefits should be reviewed under the arbitrary and capricious standard of review." Stipulation Regarding Standard of Review, ¶ 3. Following remand, the parties again agree that this is the appropriate standard of review. See, e.g., Plaintiff's Motion, PAGEID 1768; Defendant's Motion, PAGEID 1785.
"ERISA was enacted to promote the interests of employees and their beneficiaries in employee benefit plans, and to protect contractually defined benefits." Bruch, 489 U.S. at 113 (internal quotation marks and citations omitted). "The Act furthers these aims in part by regulating the manner in which plans process benefits claims." Black & Decker Disability Plan, 538 U.S. at 830. Every plan must
29 U.S.C.A. § 1133. See also Black & Decker Disability Plan, 538 U.S. at 830.
In the case presently before the Court, the initial written notice of denial of benefits "did not indicate that the medical evidence proffered by plaintiff was actually reviewed, nor did it indicate whether or why the assessments of Dr. Wolf or Ms. Harris were rejected." Opinion and Order, ECF No. 23, p. 14. Without some explanation, the Court was unable to determine whether the initial denial of benefits was the result of a "deliberate principled reasoning process" or that the Plan provided plaintiff with "specific reasons" for the denial of benefits. Id. at 16-17. The Court therefore remanded this action to the TPA "to conduct a full and fair review and to issue a decision that reflects a deliberate and principled reasoning process." Id. at p. 17.
Defendant takes the position that the TPA performed a full and fair review and that the deficiencies previously identified by this Court have been remedied. Defendant's Motion, PAGEID 1786-97. See also Defendant's Response in Opposition to Plaintiff's Second Motion, ECF No. 48 ("Defendant's Opposition"), PAGEID 1834-40. Plaintiff contends, however, that the TPA's decision to deny benefits following remand was arbitrary and capricious for a number of reasons. Plaintiff's Motion, PAGEID 1768-78. See also Plaintiff's Memorandum in Opposition to Defendant's Second Motion, ECF No. 47 ("Plaintiff's Opposition"), PAGEID 1822-24.
Plaintiff first contends that the TPA unreasonably limited its review period and improperly excluded relevant evidence. Plaintiff's Motion, PAGEID 1769-70; Plaintiff's Opposition, PAGEID 1822-24. In the written notice denying plaintiff's claim for benefits following remand, the TPA advised that "we have completed our review of your client's appeal for the denial of her claim for short term disability (STD) benefits for the time period of October 31, 2012 through February 04, 2013." A.R. II PAGEID 1619. The TPA further advised that "[a]ll of the documentation received was reviewed in the appeals process but only the relevant medical was considered for the disability time period of October 31, 2012 through February 04, 2013." Id. Defendant responds that it was plaintiff herself who limited the original time frame of her claim. She applied for benefits on October 31, 2012, stating that she would be out of work "through the end of the year;" she never indicated that she was disabled after "early January." Defendant's Opposition, PAGEID 1834-36. Defendant also notes that plaintiff had the opportunity to toll her case in order to be seen by specialists and to submit additional evidence, but that she failed to do so. Id. at PAGEID 1835-36. According to defendant, "[m]ost of the medical records submitted were outside the relevant time frame or for unrelated issues." Defendant's Motion, PAGEID 1789. Plaintiff complains that the TPA appeared to distinguish between the evidence that was "reviewed" and the evidence that was "considered," and suggests that relevant post-disability evidence was not considered. Plaintiff's Motion, PAGEID 1769-70; Plaintiff's Opposition, PAGEID 1822-24.
Medical evidence developed after the applicable benefit period "is relevant, but only to the extent that it sheds light on a claimant's condition during" the benefit period at issue. Hayden v. Martin Marietta Materials, Inc. Flexible Benefits Program, 763 F.3d 598, 605 (6th Cir. 2014). "`The primary benefit of such evidence' is that it `speaks to the credibility and accurateness of the earlier evaluations and opinions.'" Id. (quoting Javery v. Lucent Techs., Inc. Long Term Disability Plan for Mgmt. or LBA Emps., 741 F.3d 686, 690 n.1 (6th Cir. 2014)).
In the case presently before the Court, plaintiff specifically contends that evidence that she was "in tears" because of pain and that certain post-disability medical evidence from October 2013 and throughout 2014 is relevant to Dr. Wolf's opinion and Ms. Harris's December 2012 assessment. Plaintiff's Motion, PAGEID 1769. Plaintiff specifically points to two earlier diagnoses of fibromyalgia and two in-person psychiatric evaluations as evidence "of unquestioned relevance," id. at PAGEID 1770, and argues that the TPA acted arbitrarily and capriciously in ignoring this evidence. Id. at PAGEID 1769-70. Plaintiff's arguments are not well-taken.
Even assuming the relevance of this evidence, the Court cannot say that the TPA disregarded this evidence. As noted supra, the TPA stated that "[a]ll of the documentation received was reviewed." A.R. II PAGEID 1619. Although plaintiff makes much of the TPA's word choice in stating that it "considered" "only the relevant medical [evidence] . . . for the disability time period of October 31, 2012 through February 04, 2013[,]" the Court is not persuaded that this language establishes that the TPA disregarded medical evidence dated before and after the benefits period.
Plaintiff next contends that the TPA's adoption of the opinions of its reviewers, Drs. Taff and Kaplan, was unreasonable. Plaintiff's Motion, PAGEID 1770-74; Plaintiff's Opposition, PAGEID 1829. The Court shall address each reviewer in turn.
Plaintiff first complains that reliance on the report of Dr. Taff, a board certified psychiatrist, is flawed because he performed only a review of the file, which is often an invalid basis upon which to base a mental health decision. Plaintiff's Motion, PAGEID 1771. Plaintiff's argument is well-taken.
"[R]eliance on a file review does not, standing alone, require the conclusion that [the plan administrator] acted improperly[.]" Calvert v. Firstar Fin., Inc., 409 F.3d 286, 295 (6th Cir. 2005). Indeed, there is "nothing inherently objectionable about a file review by a qualified physician in the context of a benefits determination." Id. at 296. However, when a plan administrator relies on file reviews, rather than on a physical examination, that decision is a factor that a court may consider when determining if the administrator acted in an arbitrary and capricious manner. Kalish v. Liberty Mut./Liberty Life Assur. Co. of Boston, 419 F.3d 501, 508 (6th Cir. 2005); Rose v. Hartford Fin. Servs. Grp., Inc., No. 07-5423, 268 F. App'x 444, at *450 (6th Cir. Mar. 11, 2008). More specifically, "file reviews are questionable as a basis for identifying whether an individual is disabled by mental illness." Javery v. Lucent Techs., Inc. Long Term Disability Plan for Mgmt. or LBA Employees, 741 F.3d 686, 702 (6th Cir. 2014). This is because, unlike other medical professionals, psychiatrists rely on subjective symptoms to treat the patient's mental health condition:
Smith v. Bayer Corp. Long Term Disability Plan, Nos. 06-6136, 06-6468, 275 F. App'x 495, at *508 (6th Cir. Apr. 24, 2008) (internal quotation marks and citations omitted). See also James v. Liberty Life Assur. Co. of Boston, No. 13-2625, 582 F. App'x 581, 589 (6th Cir. Sept. 4, 2014) ("Unlike most doctors . . . a psychiatrist must treat a patient's subjective symptoms by interviewing the patient and spending time with the patient so as to understand and treat the subjective symptoms described by the patient."). It follows that "reliance on a file review is inappropriate where a claims administrator disputes the credibility of a claimant's complaints." Javery, 741 F.3d at 702.
Courts in this district and other district courts within this circuit have concluded that a plan administrator acts arbitrarily and capriciously when it relies on only file reviews to deny a claim for disability benefits based on mental illness. See, e.g., Haning v. Hartford Life & Accident Ins. Co., No. 2:14-CV-308, 2015 WL 5729342, at *12 (S.D. Ohio Sept. 30, 2015), appeal dismissed (Dec. 1, 2015) ("Thus, without ever examining Haning, and in the face of directly conflicting evidence from her therapist, Dr. Givens concluded that she could return to work immediately. This approach adds to the evidence that Hartford's decision was arbitrary and capricious."); Rohr v. Designed Telecommunications, Inc., No. 2:08-CV-345, 2009 WL 891739, at *10 (S.D. Ohio Mar. 30, 2009) ("Plaintiff's treating therapist specifically concluded that her depression prevented her from engaging in the required duties of her position . . . [the defendant insurer's] rejection of these opinions, adds to the evidence before this Court that its termination of Plaintiff's disability benefits was arbitrary and capricious."); Allen v. AT & T Disability Income Program, No. 3:08-CV-884, 2009 WL 2366418, at *14 (M.D. Tenn. July 29, 2009) ("[The claims administrator's] dependence on the mental health evaluations provided by non-treating physicians was unreasonable, especially considering that it had the option to order an independent medical examination.").
Similarly, in the case presently before the Court, the TPA relied on a file review when it denied plaintiff's claim for benefits even though Ms. Harris, plaintiff's treating therapist, noted that plaintiff suffered from major depression and anxiety and plaintiff reported symptoms consistent with panic disorder. A.R. I PAGEID 270. Ms. Harris reported that these symptoms disrupted plaintiff's sleep and interfered with her ability to safely drive a car and to sustain concentration for any length of time. Id. Ms. Harris also suggested that plaintiff's medications may decrease her ability to function at her usual high level of competency. Id. Ms. Harris went on to note that plaintiff "is hopeful that once her medications are adjusted properly and if she is able to attend counseling session, that she would be able to begin working again in early January." Id. In the face of this contrary evidence and without examining plaintiff, Dr. Taff nevertheless concluded that plaintiff is able to work. A.R. II PAGEID 1621. This fact tends to suggest that the TPA's denial of plaintiff's application for disability benefits was arbitrary and capricious. See, e.g., Javery, 741 F.3d at 702; Haning, 2015 WL 5729342, at *12; Rohr, 2009 WL 891739, at *10; Allen, 2009 WL 2366418, at *14.
Plaintiff next contends that Dr. Taff's report reveals evidence of "cherry-picking." Plaintiff's Motion, PAGEID 1771-72. "[P]lan administrators may not engage in a `selective review of the administrative record' . . . by ignoring evidence of disability or giving undue weight to evidence favoring denial[.]" Godmar v. Hewlett-Packard Co., No. 15-1480, 2015 WL 8290186, at *5 (6th Cir. Dec. 9, 2015) (internal citations omitted). "Cherry-picking" undermines a deliberate or principled process: "When an administrator `focus[es] on slivers of information that could be read to support a denial of coverage and ignore[s] — without explanation — a wealth of evidence that directly contradict[s] its basis for denying coverage,' the administrator's `decision-making process is not deliberate or principled.'" Id. (quoting Metro. Life Ins. Co. v. Conger, 474 F.3d 258, 265 (6th Cir. 2007)(emphasis in original).
In the case presently before the Court, Dr. Taff summarized Dr. Fettman's psychiatric exam as follows:
A.R. II PAGEID 1597. Plaintiff contends that Dr. Taff engaged in "cherry-picking" because he omitted from this summary Dr. Fettman's opinion that plaintiff's mental illness rendered her disabled. Plaintiff's Motion, PAGEID 1772 (citing A.R. II PAGEID 719) ("[T]he patient has a Mood Disorder secondary to physical illness and I feel that she is disabled currently from doing her job."). Defendant disagrees, arguing that plaintiff "makes too much of" Dr. Fettman's report, which was issued more than one year prior to the relevant time period. Defendant's Opposition, PAGEID 1838. Yet Dr. Taff apparently regarded Dr. Fettman's report as relevant because he discussed it and yet, in doing so, Dr. Taff ignored evidence of plaintiff's disability and highlighted evidence favoring a denial of benefits, i.e., that plaintiff was alert and oriented, did not suffer from hallucinations or delusions, and denied suicidal ideation. The fact that Dr. Fettman's report was issued prior to the relevant time period does not explain Dr. Taff's disregard of Dr. Fettman's opinion of disability. This omission is another factor suggesting that the TPA's decision was not the result of a deliberate or principled decision-making process. Godmar, 2015 WL 8290186, at *5.
Plaintiff also argues that Dr. Taff improperly focused on "slivers of information" in Dr. Davis's report that could be read to support the TPA's denial of coverage. Plaintiff's Motion, PAGEID 1772. In addressing Dr. Davis's report, Dr. Taff, inter alia, noted:
A.R. II PAGEID 1596-97.
Plaintiff complains that Dr. Taff made no mention of "the ample evidence of depression, anxiety and anger" in Dr. Davis' report. Plaintiff's Motion, PAGEID 1772 (citing A.R. II PAGEID 1597). Defendant disagrees, again arguing that the report was issued more than one year prior to the relevant time period. Defendant's Opposition, PAGEID 1838. Again, this Court is unpersuaded by this argument because Dr. Taff considered and relied on Dr. Davis's report in reaching his conclusion.
Defendant also attempts to distinguish this case from Godmar because Dr. Davis expressed no opinion as to plaintiff's disability and reported unremarkable examination findings as well as evidence that plaintiff's responses may not be credible. Id. at PAGEID 1838-39. However, it is clear that Dr. Taff failed to address other evidence in Dr. Davis' report that could support a conclusion of disability, namely, evidence of plaintiff's depression, stress, and anger. A.R. II PAGEID 712-14, 1596-98.
Plaintiff also properly challenges Dr. Taff's dismissal of Ms. Harris's report as not "describ[ing] how any of [plaintiff's] selfreported symptoms of depression would directly and adversely impact her ability to do her normal work-related activities," A.R. II PAGEID 1598, in light of her observation that plaintiff's "symptoms are causing her to be unable to receive adequate sleep, safely drive a car or sustain focus/concentration for any length of time." A.R. I PAGEID 270.
In short, Dr. Taff's selective review of the record lends support to plaintiff's contention that the TPA's decision to deny benefits was not the result of a deliberate or principled decision-making process. See Godmar, 2015 WL 8290186, at *5.
Plaintiff also criticizes the TPA's reliance on Dr. Kaplan, a board certified physical medicine and rehabilitation specialist, because he is a professional file reviewer. Plaintiff's Motion, PAGEID 1772-73. As discussed supra, "reliance on a file review does not, standing alone, require the conclusion that [the plan administrator] acted improperly[.]" Calvert v. Firstar Fin., Inc., 409 F.3d 286, 295 (6th Cir. 2005). Accordingly, Dr. Kaplan's status as a file reviewer, by itself, is not evidence that the TPA acted arbitrarily or capriciously when it relied on his opinion.
Plaintiff also contends that Dr. Kaplan improperly questioned the credibility of plaintiff's complaints of pain when he noted that her presentation was "essentially subjective[.]" Plaintiff's Motion, PAGEID 1773. This Court agrees. Dr. Kaplan's report includes the following:
A.R. II PAGEID 1610-11.
"[R]eliance on a file review is inappropriate where a claims administrator disputes the credibility of a claimant's complaints." Javery v. Lucent Techs., Inc. Long Term Disability Plan for Mgmt. or LBA Emps., 741 F.3d 686, 702 (6th Cir. 2014). See also Zuke v. Am. Airlines, Inc., No. 15-3465, 2016 WL 1258220, at *5 (6th Cir. Mar. 31, 2016) ("This Court has already recognized the arbitrary nature of a reviewing physician's determination about a claimant's pain."); Godmar, 2015 WL 8290186, at *9 ("File reviews are particularly troubling when the administrator's consulting physicians — who have never met the claimant — discount the claimant's limitations as subjective or exaggerated."). Absent an examination, a plan should not make a credibility determination about a plaintiff's reports of pain even under an objective-evidence standard. Shaw v. AT&T Umbrella Ben. Plan No. 1, 795 F.3d 538, 550 (6th Cir. 2015) ("Because chronic pain is not easily subject to objective verification, the Plan's decision to conduct only a file review supports a finding that the decision-making was arbitrary and capricious."); Godmar, 2015 WL 8290186, at *10 (citing Shaw, 795 F.3d at 550). "In the context of a claimant with self-reported symptoms, the plan administrator must follow a reasonable procedure in deciding the issue." Zenadocchio v. BAE Sys. Unfunded Welfare Ben. Plan, 936 F.Supp.2d 868, 890 (S.D. Ohio 2013).
In the case presently before the Court, Dr. Kaplan questioned plaintiff's complaints regarding the debilitating impact of her fibromyalgia; he noted reports of pain but found no impairing neurological or musculoskeletal findings. A.R. II PAGEID 1610. His credibility determination therefore appears to be based on the lack of physical findings "without taking reasonable measures to decide the issue, such as conducting an in-person examination." See Zenadocchio, 936 F. Supp. 2d at 891. This Court does not suggest that defendant was required to perform an in-person examination. See id. However, the TPA's "decision in regard to [plaintiff's] `self-reported symptoms' does not reflect deliberative, principled reasoning, but instead weighs towards the Court's conclusion that [the TPA's] decision to terminate was arbitrary and capricious." Id. See also Zuke, 2016 WL 1258220, at *5. See also Holler v. Hartford Life & Acc. Ins. Co., 737 F.Supp.2d 883, 891 (S.D. Ohio 2010), opinion clarified on denial of reconsideration (Nov. 22, 2010) (noting that, with fibromyalgia, "physical examinations will usually yield normal results — a full range of motion, no joint swelling, as well as normal muscle strength and neurological reactions").
Drs. Taff and Kaplan found no mental or physical condition that affected plaintiff's ability to perform the essential functions of her job. A.R. II PAGEID 1599, 1611. However, nowhere in their reports is there an analysis of the essential responsibilities of plaintiff's job as a Provisioning Specialist. This failure does not reflect deliberative, principled reasoning and adds to the evidence that defendant's decision to deny benefits was arbitrary and capricious. Javery v. Lucent Techs., Inc. Long Term Disability Plan for Mgmt. or LBA Emps., 741 F.3d 686, 702 (6th Cir. 2014) (collecting cases). See also Hunter v. Life Ins. Co. of N. Am., No. 10-1244, 437 F. App'x 372, at *377 n.3 (6th Cir. June 29, 2011) ("However, mere mention of Hunter's job description, without analysis, is insufficient to demonstrate that these physicians actually considered Hunter's ability to perform the physical demands of her prior occupation."); Elliott v. Metro. Life Ins. Co., 473 F.3d 613, 619 (6th Cir. 2006) ("[T]here is no indication that MetLife reasoned from Elliott's condition to her ability to perform her occupation. . . . Instead, the denial letter is a mere recitation of medical terminology employed by various physicians in their diagnoses of Elliott's condition, without any reasoning as to why those diagnoses would permit her to function in the workplace."); Zenadocchio, 936 F. Supp. 2d at 892 ("Hartford did not properly consider the entire scope of Zenadoccio's essential duties of her position in accordance with her limitations.").
Plaintiff next argues that the TPA's denial was arbitrary and capricious because it rejected, without reason, the opinions of plaintiff's physicians. Plaintiff's Motion, PAGEID 1774-75; Plaintiff's Opposition, PAGEID 1825-28. Plaintiff specifically contends that the TPA's discussion of the medical evidence "is, for the most part, a recitation of medical data without reasoning," id. at PAGEID 1774 (citing Kennard v. Means Indus., Inc., No. 13-1911, 555 F. App'x 555, at *557 (6th Cir. Feb. 13, 2014) ("Bare recitations of medical data, without reasoning, cannot produce a logical judgment about a claimant's work ability.") (internal citations and quotation marks omitted)). However, this Court cannot agree the TPA's denial letter constitutes a bare recitation of medical data, without reasoning.
Plaintiff also complains that Drs. Taff and Kaplan improperly ignored the reports of plaintiff's treating providers that plaintiff's many medications, including Wellbutrin, Cymbalta, Trazodone, and Klonopin, A.R. I PAGEID 293, impaired her ability to work. See A.R. II PAGEID 1599 ("There is no evidence of side effects from any medication that would impair her ability to do her job."), 1611 ("There is no documented titration of medications due to side effects and no documented impairment of the claimant's ability to perform her job due to medication usage."). This Court agrees.
In a report following his August 8, 2011,
Plaintiff further argues that it was arbitrary and capricious for the TPA to refuse to review the Social Security Administration's decision. Plaintiff's Motion, PAGEID 1775-78; Plaintiff's Opposition, PAGEID 1824-25. This Court disagrees. "[A]n ERISA plan administrator is not bound by an SSA [Social Security Administration] disability determination when reviewing a claim for benefits under an ERISA plan." Whitaker v. Hartford Life & Acc. Ins. Co., 404 F.3d 947, 949 (6th Cir. 2005). "[E]ntitlement to Social Security benefits is measured by a uniform set of federal criteria. But a claim for benefits under an ERISA plan often turns on the interpretation of plan terms that differ from SSA criteria." Id. However, "the SSA determination, though certainly not binding, is far from meaningless." Calvert v. Firstar Fin., Inc., 409 F.3d 286, 294 (6th Cir. 2005).
As noted supra, the TPA refused to reopen its administrative record in order to review the Social Security decision because, inter alia, the Social Security decision was "submitted untimely" after the administrative record was closed and approximately one month after the TPA had issued its decision. A.R. II PAGEID 1706.
The United States Court of Appeals for the Sixth Circuit has held that, "where a plan administrator has denied a disability claim, a remand to the administrator to consider a contrary SSA determination issued after the administrative decision is unwarranted." Seiser v. UNUM Provident Corp., No. 04-1177, 135 F. App'x 794, at *799 (6th Cir. Apr. 22, 2005). See also Kouns v. Hartford Life & Acc. Ins. Co, 780 F.Supp.2d 578, 590 (N.D. Ohio 2011) (citing Seiser and finding "that the favorable Social Security Administration decision in October 2009 is not a relevant factor in determining whether Hartford acted arbitrarily and capriciously in terminating the Plaintiff's disability benefits [in July 2009]."). Thus, the TPA's refusal to consider the decision of the Social Security Administration — issued after the TPA's denial of benefits — is not a factor suggesting the arbitrary and capricious denial of benefits.
To summarize, the TPA's reliance on file reviews that improperly questioned plaintiff's credibility and which did not sufficiently support the denial of benefits, its rejection of the opinions of plaintiff's treating medical providers, its failure to adequately consider the number and nature of plaintiff's medications, and its failure to consider the specific requirements of plaintiff's job lead to the conclusion that the denial of plaintiff's claim for benefits was arbitrary and capricious. Stated differently, it was the "cumulative effect" of these factors, rather than any single factor, that results in a finding that the TPA's decision was arbitrary and capricious. Zenadocchio, 936 F. Supp.2d at 885.
When an ERISA plan administrator's decision to deny benefits is found to be arbitrary and capricious, courts may either award benefits to the claimant or remand the matter to the plan administrator for further action or consideration. Elliott, 473 F.3d at 621 (citing Smith, 450 F.3d at 265). "Remand to the plan administrator is appropriate where the problem is with the integrity of the plan's decision-making process, rather than that a claimant was denied benefits to which he was clearly entitled." Hayden, 763 F.3d at 607. Here, the record does not clearly establish that plaintiff is entitled to benefits; instead, there were deficiencies in the TPA's decisionmaking process. Accordingly, remand to the TPA for further proceedings is appropriate.
Accordingly, Plaintiff's Second Motion for Judgment on the Administrative Record, ECF No. 45, is
The Clerk is
