THOMAS M. ROSE, District Judge.
Pending before the Court is Motion to Uphold the Administrative Decision by Defendant Unum Life Insurance Company of America. Doc. 20. The instant case is an E.R.I.S.A. action that asserts that Defendant Unum Life Insurance Company of America wrongfully denied long-term disability benefits to Plaintiff James Bennett. Because Plaintiff has not shown the insurance plan administrator to have been arbitrary and capricious in its interpretation of the Plan, the Court will grant the motion to uphold the administrative decision.
In 1996, Plaintiff James Bennett co-founded Data Research and Analysis Corporation. He held the title of President and CEO until 2009 when, due to his declining health, he stepped down and accepted a senior analyst position (LTD-1360, 1371). Plaintiff continued as a senior analyst until June 2011 when he retired, citing health reasons. (LTD-5). Plaintiff's employer provided employees, including Plaintiff, with a long term disability program issued and underwritten by the Defendant Unum (Group Account Number 586540). Id. This Plan constitutes an employer-funded employee welfare benefit plan within the meaning of 29 U.S.C. § 1002(A)(1).
Plaintiff's last day of employment was on June 30, 2011. Plaintiff received Short Term Disability benefits from July 2011 through October 2011. (LTD-62). Plaintiff subsequently was approved for long term disability benefits, yet Defendant did so on a "reservation of rights" approval. This period of receipt of benefits was from October 2011 through March 26, 2012 (LTD-334).
Plaintiff's pursuit of benefits administratively began on July 1, 2011, when he filed a claim for Long Term Disability benefits, reporting that he stopped working due to shortness of breath and fatigue related to interstitial lung disease, as well as back pain associated with spinal stenosis. (Id.) Over the course of Unum's review of his claim, Plaintiff identified several treating physicians, including Dr. Dara D. Regn, a pulmonary specialist; Dr. Abdul Mubarak, a pain management specialist; Dr. Kevin F. Heacock, a psychiatrist; Dr. John J. Steele, a neurosurgeon; Dr. Paul Haggerty, a primary care physician; and Dr. Michael W. Peelle, an orthopedic surgeon. (See, e.g., LTD-68, 70, 515, 527, 564, 603.)
Unum's Long Term Disability Plan, under which Plaintiff was insured, describes "disability" in terms of a two-part test and includes an "elimination period":
During your elimination period you will be considered disabled if:
(R. 16-1, LTD-112, PAGEID 147).
The Plan also defines "Regular Occupation":
(LTD-130, LTD-677.)
When last employed by the Data Research Corporation, Plaintiff served as a senior analyst and consultant. (LTD-71-72, 147, 206, 1360.) In that capacity, he would attend meetings, work on a computer, test software, and provide studies and analysis. (LTD-147, 206.) A detailed form UNUM provided Data Research Corporation did not inquire whether Plaintiff was required to travel as a part of his job duties. Data Research Corporation did indicate on the form that the position required 67-100% sitting. (LTD-207.) On November 15, 2011, a vocational assessment done at the behest of Defendant identified that Plaintiff's occupation required constant understanding and memory, frequent concentration and attention, constant work routine, frequent work distractions, constant adaptation to change, occasional travel, frequently independent planning, and constant keyboarding (LTD-301).
On November 22, 2011, without reaching a decision as to the merits of Plaintiff's claim, Unum approved benefit payments to Plaintiff under a reservation of rights for a disability date of July 1, 2011 (when Plaintiff ended his employment with the Data Research Corporation), with payments beginning on October 7, 2011, after the applicable elimination period. 6 (LTD-337.)
Unum commenced a medical review of Plaintiff's records that contained telling interactions with medical care providers. An illustrative example of these interactions comes from the notes of a July 14, 2011 visit with Dr. Patrick Allen:
LTD-321, Doc. 16 at 321, PAGEID 356.
Notes from a meeting in September 2011 with Dr. Allen displays similar concerns:
LTD-323, Doc. 16 at 323, PADEID 358,
During the elimination period, upon which Unum's decision was based, Plaintiff's primary treating physicians agreed that he could perform the material duties of his sedentary occupation. On January 6, 2012, Dr. Regn noted that she prescribed Plaintiff oxygen, but offered no restrictions and limitations and indicated that Plaintiff could perform a "full-time sedentary occupation," defined as "a job that requires 0-10 pounds of lifting occasionally . . ., frequent sitting . . ., occasional walking, and occasional traveling." (LTD-438-39.) Dr. Mubarak agreed with that position in a response dated February 28, 2012. (LTD-515.) In a March 7, 2012 conversation, Dr. Heacock similarly affirmed that Plaintiff's psychiatric condition did not impair him from working his sedentary occupation on a full-time basis. (LTD-527.) Around the same time, in March 2012, Plaintiff sought an opinion from a neurosurgeon, Dr. John J. Steele, as to whether surgery could benefit his back pain. (LTD-564.) Dr. Steele did not consider Plaintiff a good candidate for surgery and, although he did not remark on his ability to work, he released Plaintiff without limitation, indicating that he considered Plaintiff's cognitive functioning normal and noting no decrease in his executive functions. (LTD-564-65.) Finally, on March 21, 2012, Dr. Haggerty agreed that Plaintiff could perform a full-time sedentary occupation. (LTD-561-62.)
On March 23, 2012, Unum advised Plaintiff that it would not be able to continue the payment of the benefits. (LTD-578.) In support of its decision, Unum pointed out that it identified Plaintiff's occupation as that of a software consultant, a sedentary occupation (LTD-579), and because at least four of his treating physicians—pulmonologist Dr. Regn (on January 6, 2012), pain management specialist Dr. Mubarak (on February 28, 2012), psychiatrist Dr. Heacock (on March 8, 2012), and primary care physician Dr. Haggerty (on March 21, 2012)—each stated that Plaintiff could perform the material duties of his own occupation, Unum closed the claim effective March 26, 2012. (Id.) Although Unum paid Plaintiff under a reservation of rights from October 7, 2011, through March 26, 2012, it stated that it would not seek repayment of those benefits. (Id.)
After he received Unum's denial of benefits, Plaintiff provided a second opinion from Dr. Peelle, an orthopedic surgeon from the same office as Dr. Steele, the neurologist, stating that, based on a March 26, 2012 assessment, Plaintiff could not work more than 25-30 hours weekly and could not lift more than 15 pounds. (LTD-605.) On the date of that assessment, Dr. Peelle commented:
(LTD-603.) Dr. Peelle later clarified that he did not believe that Plaintiff could perform sedentary work because of Plaintiff's "severe lower back pain, heavy narcotic use, and longstanding time off work with no mental commitment to return to full-time work." (LTD-624.)
Unum requested that Drs. Peter G. Kouros and Susan B. Council, review Dr. Peelle's opinion. (LTD-667-71, 1294.) Summarizing their dual review, Dr. Council explained:
(LTD-670.)
By letter dated May 16, 2012, Unum advised Plaintiff that Dr. Peelle's decision did not change the benefits decision because, based on the medical review, the records, including the statement of pulmonologist Dr. Regn, did not support a disabling pulmonary condition, and, with respect to Plaintiff's back pain, Dr. Peelle's records did not substantiate a conclusion of abnormal range of motion and did not reflect any cognitive difficulties secondary to narcotic use. In other words, the medical records did not establish that either the pulmonary issue or back issue precluded Plaintiff from working his own occupation. (LTD-675-77.)
By September 6, 2012, Plaintiff's condition had further deteriorated. He was evaluated by an independent vocational expert, Mark Anderson, M.S., CDMS, LPC and Diplomate of the American Board of Vocational Experts (LTD-1370-1374). Anderson noted first that Bennett holds a Ph.D. in Operations Research from the University of Texas at Austin (LTD-1371). He then evaluated Bennett's own occupation with the Data Research and Analysis Corporation, and identified that work as that of Management Analyst, which is a skilled, sedentary occupation (LTD-1372). Anderson performed Purdue Pegboard Manual Dexterity testing, which showed that Plaintiff, at that time, had below average finger dexterity, manual dexterity, and motor coordination and minimal ability in eye/hand/foot coordination and color discrimination. Id. Anderson noted the physicians' restrictions of maximum lifting of 15 pounds, frequent change in positions when seated, use of a cane with ambulation, walking for 5-10 minutes before requiring rest, and medications affecting concentration and continuity of thought. (LTD-1373). After performing a computerized vocational analysis (Vocational Diagnosis and Assessment of Residual Employability — VDARE) of the labor market, Anderson concluded there were no occupations that matched all of Bennett's restrictions. Id.
Plaintiff appealed the administrative decision on October 4, 2012. (LTD-1360-63.) On appeal, Plaintiff reiterated that Dr. Peelle identified restrictions and limitations that would prevent Plaintiff from working full-time in his sedentary occupation and added that, on July 30, 2012, Dr. Haggerty requested that Plaintiff participate in a formal occupational medicine consultation but, in the interim, renewed the work restrictions issued by Dr. Peelle. (Id.; LTD-2081.) Plaintiff noted that the Social Security Administration approved his request for disability benefits on August 26, 2012, and identified a disability date of October 2010—a date several months before Plaintiff left his employment with the Data Research Corporation. (LTD-1361.)
On appeal, Unum referred the file to yet another Board-certified physician, Dr. Laina
Rodela, for review. (LTD-2125-31.) On January 17, 2013, Dr. Rodela noted that Dr. Peelle apparently interacted with Plaintiff only twice. The first occasion was a 20-minute visit on June 30, 2011, after which Dr. Peelle noted that Plaintiff "wanted to be on disability since he perceives that he cannot work" and deferred any disability determination to a pain management specialist or primary care manager. (LTD-1146.) Notably, at that point, Dr. Peelle released Plaintiff without any work restrictions. (Id.) On the second occasion, Dr. Peelle met with Plaintiff for a second opinion over another 20-minute visit on March 26, 2012, nine months after the first visit. (LTD-2127, 2252-53.) According to Dr. Rodela:
(LTD-2127.)
Dr. Rodela observed that, among all the physicians to treat Plaintiff, only two reported restrictions—Dr. Peelle and, later, Dr. Haggerty. (LTD-2129.) Summarizing her conclusions, Dr. Rodela found "an absence of medical data" to support ongoing restrictions and limitations given no evidence of persistent side effects from Plaintiff's medications and narcotic use, the fact that Plaintiff's pneumonitis improved and ultimately resolved; his chronic back pain preceded the date of disability by at least 6 months. (LTD-2130.) Thus, "it is reasonable to limit lifting to occasional up to 10 lbs., but there is no evidence to support a restricted work week in terms of hours. His pain management provider, Dr. Mubarak, also agrees there are no [restrictions and limitations] to preclude him from the above physical activity." (Id.) Also, Dr. Rodela noted that "Dr. Haggerty's change in opinion results after the claimant describes financial issues during a 7/2012 visit. The [attending physician] documents that his restrictions are those provided earlier by Dr. Pee[l]le and are considered an interim opinion pending an occupational therapy evaluation. The claimant does not follow through with this recommendation." (LTD-2131.)
After a follow-up letter from Unum, Dr. Haggerty clarified that, although he agreed that, in October 2011, Plaintiff was able to lift/carry up to 10 lbs. occasionally, frequently sit, and occasionally walk/stand, he feels "since then that his status regarding his chronic pain has worsened," and referred Unum to an attached letter dated September 12, 2012. (LTD-2147.) In that September 12, 2012 letter, Dr. Haggerty stated that, according to Plaintiff's own report, he "cannot sit or stand for prolonged periods of time due to his back pain, and that his [mental state] is often clouded due to his narcotic therapy . . . . I have discussed with Mr. Bennett that I cannot say he is fully disabled, but that I did not think it would be unreasonable to limit his work load to 24 hours weekly. I referred Mr. Bennett to complete an occupational therapy evaluation to better assist in determining his level of disability, but he has not completed this yet." (LTD-2081-82, 2082, 2150.) Notably, Dr. Haggerty mentioned that Social Security did not ask him to provide any evaluation for the determination. (LTD-2150.) Regardless, on January 22, 2013, Plaintiff's counsel stated: "Dr. Hagg[e]rty is . . . a primary care physician only. We officially present for the record that Dr. Hagg[e]rty is extensively out of date on Major Bennett's treatments listed above for the pain management and the severe depression associated with his debilitating diseases. Again, we must note that Major Bennett's treatment is managed by the Pain Management Clinic and
On January 25, 2013, Unum upheld the decision on appeal in a 12-page correspondence. (LTD-2175-86.) Unum noted the elimination period that had to be exhausted before Unum could pay benefits extended from July 2011 through October 6, 2011, and that, during and after that period, the applicable medical records and opinions of Dr. Regn (pulmonologist), Dr. Mubarak (pain specialist), and Dr. Heacock (psychiatrist)—without revision on appeal—demonstrated that Plaintiff was not impaired from working full time in his own occupation. (LTD-2180.) Likewise, Dr. Haggerty stated that, at least as of October 2011, Plaintiff could perform the duties of his own occupation. (LTD-2180.) Unum believed that Plaintiff had not presented persuasive evidence that he suffered a continuing disability through the necessary elimination period before Long Term Disability coverage ended in October 2011, and no compelling evidence of disability thereafter. (LTD-2175-86.) Unum concluded
(LTD-2175)
After receiving Plaintiff's Social Security file (LTD-2260-70), Unum unilaterally conducted another review, and upheld its decision in a correspondence dated May 16, 2013 (LTD-4085-89.) Unum ultimately declined to reverse its decision based on the Social Security file because of several differences in analysis, including that: (1) the Social Security Administration determination set a disability date of October 15, 2010, a period during which Plaintiff continued to work 32 to 40 hours per week, and did not have the requisite earnings loss for purposes of the Policy (LTD-002267); (2) Unum determined Plaintiff's disability date to be July 1, 2011, the date on which he left his employment and, as of October 2011, his pulmonary condition improved and his MRIs revealed normal pulmonary function, resulting in Dr. Regn's opinion that Plaintiff could perform his occupation; (3) the symptoms and restrictions reported by Plaintiff in May 2012 did not have corresponding objective documentation during the elimination period; (4) during the elimination period, no back/chronic pain doctors restricted Plaintiff's work activities; (5) the Social Security Administration functional capacity form documented that Plaintiff could hold a sedentary position (LTD-2266); and (6) the Social Security Administration decision stated that it relied on Vocational Rule 201.14 "as a framework," which allows for a disability finding for individuals in skilled positions closely approaching advanced age (Plaintiff was 54 years and 3 months at the time of decision, and 52 years and 5 months at onset), which is not a factor under the terms of the Policy (LTD-2267). (LTD-4087-88.) In fact, the Social Security Administration decision notes that Plaintiff's capability remained "unresolved." (LTD-2267.)
Plaintiff filed this ERISA denial-of-benefits lawsuit on December 23, 2013. (Doc. 1.) The matter is before the Court on Unum's motion to uphold the administrative decision. (Doc. 20.)
A participant or beneficiary of an ERISA qualified plan may bring suit in federal court to recover benefits due under the terms of the plan. 29 U.S.C. § 1132(a)(1)(B). The general rule in cases challenging the denial of employee benefits under 29 U.S.C. § 1132(a)(1)(B) is that the district court reviews the plan administrator's decision de novo, unless the plan gives the administrator discretionary authority to determine participants' eligibility for benefits, in which case the court must apply the arbitrary and capricious standard of review. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989); Cox v. Standard Ins. Co., 585 F.3d 295, 299 (6th Cir. 2009). Whether a benefits plan grants discretionary authority is determined by reference to the plan's specific language. Although the use of certain terminology is not necessary to vest discretion and thereby trigger the arbitrary and capricious standard, the plan nonetheless must contain "a clear grant of discretion [to the administrator] to determine benefits or interpret the plan." Perez v. Aetna Life Ins. Co., 150 F.3d 550, 557 (6th Cir. 1998) (quoting Wulf v. Quantum Chem. Corp., 26 F.3d 1368, 1373 (6th Cir. 1994)).
In the instant case, "The Plan, acting through the Plan Administrator, delegates to Unum and its affiliate Unum Group discretionary authority to make benefit determinations under the Plan." (LTD-138.) Therefore, an arbitrary and capricious standard applies. Still, however, "an administrator lacks discretion to rewrite the Plan." Delisle v. Sun Life Assurance Co. of Canada, Inc., 2005 WL 6525940, 2-3 (E.D. Mich. 2005) (quoting Saffle v. Sierra Pacific Power Co., 85 F.3d 455, 460 (9th Cir. 1996).
Additionally, the Supreme Court has held that an inherent conflict of interest exists when the insurance company that is responsible for paying ERISA benefits out of its own pocket is also the plan administrator that determines eligibility for benefits. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 108 (2008). A court must consider such a conflict in determining whether the plan administrator abused its discretion in denying benefits; however, "conflicts are but one factor among many that a reviewing judge must take into account." (Id. at 116.) The significance of the conflict of interest factor will depend on the particular circumstances of the case. (Id. at 108). Moreover, a plaintiff need not establish that the conflict affected the benefit decision for the court to consider the conflict on review. Johnson, 324 Fed. App'x at 466 (citing Glenn, 554 U.S. at 108). Plaintiff has not introduced evidence of conflict. Cf. Dimery v. Reliance Standard Life Ins. Co., 2012 WL 1067409, 15 (N.D. Cal. 2012) ("Neither Reliance nor Dr. Dimery has introduced extrinsic evidence pertaining to the conflict, although the Court permitted discovery on this issue. . . . Thus, there is no evidence regarding Reliance's rate of claims denials or how frequently Dr. Kaplan, Dr. Mills or the vocational experts conducted reviews for Reliance. Montour, 588 F.3d at 634; Nolan v. Heald College, 551 F.3d 1148, 1152 n.3 (9th Cir. 2009) (discussing evidence of the number of reviews conducted by particular providers and percentage of income derived from plan administrator)").
Plaintiff protests that Unum found that Plaintiff was able to work during the elimination period. The Sixth Circuit enforces policy provisions that require that a claimant demonstrate continuing disability during an elimination period to extend coverage under the policy. See Frazier v. Life Ins. Co. of N. Am., 725 F.3d 560, 568-69 (6th Cir. 2013).
Plaintiff decries that Defendant changed its rationale for denial on the final denial, claiming that Unum shifted its decisional basis to requiring disability evidence as of October of 2011, allegedly depriving Plaintiff of an opportunity to rebut this rationale, and asserting that Defendant's refusal to consider evidence after October 2011 was arbitrary and capricious. Plaintiff also asserts that Unum was required to address the specific activities of Plaintiff's job before concluding that Plaintiff could perform skilled sedentary work and that substantial medical evidence demonstrated that Plaintiff was disabled and entitled to benefits. Plaintiff describes as the illusory review of the evidence by Unum, asserting that, at its core, it was arbitrary and capricious. Additionally, Plaintiff believes he submitted evidence that could allow one to conclude that Bennett was disabled as of March 2012.
ERISA requires an insurance carrier to delineate its specific reason for denial in order to afford the participant an opportunity for a full and fair review. 29 U.S.C. §1133. Defendant's initial March 2012 denial states that, "[b]ased on our review, the information in your claim file indicates you are able to perform the duties of your own occupation, you no longer meet the policy definition of disability and your claim has been closed effective March 26, 2012 (LTD-579). Plaintiff decries that the denial informed Plaintiff that he may submit an appeal, but does not identify that only evidence from prior to October 2011 will be relevant or considered. It also does not describe the additional material or information necessary to perfect the claim or explain why it is necessary. (LTD-581)
Contrary to Plaintiff's protestations, Unum presented the same basis for denial at each stage of review-that, barring Dr. Peelle (whose restrictions Unum found unpersuasive given the diagnostic record), Plaintiff's medical record (as early as September 2011) and key treating physicians (as early as January 2012) supported his release for full-time work in his own occupation. The two cases cited by Plaintiff in support of his position, Houston v. Unum Life Insurance Company of America, 246 F. App'x 293 (6th Cir. 2007), and Wenner v. Sun Life Assurance Company, 482 F.3d 878 (6th Cir. 2007), do not support his position. In Houston, the Sixth Circuit concluded that an insurer failed to comply with 29 U.S.C. § 1133 where the insurer initially terminated benefits because it identified the plaintiff's job as sedentary and, after the plaintiff provided additional evidence to correct the job classification, denied benefits on appeal because Plaintiff failed to see the proper specialist to obtain a diagnosis. Houston, 256 F. App'x at 300.
In Wenner, the insurer told Plaintiff it was denying his claim for one reason, and then turned around and terminated his benefits for an entirely different and theretofore unmentioned reason, without affording him the opportunity to respond to the second, determinative reason for the termination. Here, the insurer was consistent in its reason for denying Plaintiff. What changed was the evidence submitted by Plaintiff that was being found insufficient to support a claim. As surely as an insurer is responding to new evidence, a change in the explanation of the reasoning that supports its decision is in order, it is the reason that must remain the same. Here it does.
Plaintiff also asserts that Unum was required to address the specific activities of Plaintiff's job before concluding plaintiff could perform skilled sedentary. The terms of the Policy, however, dictate that a "regular occupation" is the occupation that the claimant is routinely performing when disability begins, and that Unum will consider a claimant's occupation "as it is normally performed in the national economy, instead of how the work tasks are performed for a specific employer or at a specific location." (LTD-130, LTD-677.) This is to say, Unum does not insure one against not being able to perform at a superlative level in one's field, if that is that level of expertise and responsibility one has achieved. Unum insures against not being able to perform as the average drone.
It is not for the Court to consider why anyone of superlative ability would want such insurance, but only to inquire whether Unum was arbitrary and capricious in determining that the Claimant was able to perform at an average level during the elimination period. Unum determined Plaintiff's occupation not to be the dynamic co-founder he was with his specific employer, but a "software consultant" in the national economy which is considered to be "a sedentary occupation, which requires exerting up to 10 pounds occasionally, and occasional walking." Unum was not arbitrary and capricious in making this determination.
Arguably, Plaintiff did submit evidence that could allow one to conclude, based upon his pain and the effect of pain medications, that he was disabled as of March 2012. However, even the evidence weighing in Plaintiff's favor is equivocal. Doctors Peelle and Haggerty's determinations of disability were interim decisions recommending further evaluation that Plaintiff did not pursue. The "restrictions . . . provided . . . by Dr. Pee[l]le and are considered an interim opinion pending an occupational therapy evaluation. The claimant does not follow through with this recommendation." (LTD-2131.) "Dr. Haggerty stated: I cannot say he is fully disabled, but . . . I did not think it would be unreasonable to limit his work load to 24 hours weekly. I referred Mr. Bennett to complete an occupational therapy evaluation to better assist in determining his level of disability, but he has not completed this yet." (LTD-002081-82, 2082, 2150.) Thus, while there was credible evidence on both sides of this question, there was substantial medical evidence to demonstrate that Plaintiff was not disabled with regard to performing his job as it is normally performed in the national economy, allowing Unum to determine that Plaintiff was not entitled to benefits in a manner that was not arbitrary and capricious.
Because Plaintiff has not shown Defendant's denial of his claim for benefits to be arbitrary and capricious, Motion to Uphold the Administrative Decision by Defendant UNUM Life Insurance Company of America, doc. 20, is
