Case: 14-13945    Date Filed: 04/14/2015   Page: 1 of 20


                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 14-13945
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket No. 7:12-cv-03691-RDP


GARY GLENN,
an individual,

                                                             Plaintiff-Appellant,

                                   versus

AMERICAN UNITED LIFE INSURANCE COMPANY,
a corporation,
DISABILITY REINSURANCE MANAGEMENT SERVICES INC,
a corporation,

                                                         Defendants-Appellees.

                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Alabama
                        ________________________
                              (April 14, 2015)

Before MARCUS, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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       Plaintiff Gary Glenn appeals from the district court’s entry of judgment as a

matter of law in favor of defendants American United Life Insurance Company

and Disability Reinsurance Management Services, Inc. on his claim for wrongful

denial of long-term disability benefits. For the following reasons, we affirm.

I.     BACKGROUND

       Plaintiff previously served as Chief Executive Officer of Med Management,

LLC. At the time, Med Management participated in a trust to which American

United Life Insurance Company (“American United”) issued a Group Long-Term

Disability Policy (the “Policy”). The Policy afforded Plaintiff disability insurance

coverage. Disability Reinsurance Management Services, Inc. (the

“Administrator”) served as administrator of all claims made under the Policy.

       On May 9, 2008,1 Plaintiff was forced to stop working because of anxiety

and manic symptoms—later diagnosed as Bipolar Disorder—that impaired his

decision-making and affected his mood and ability to focus. Plaintiff received

short-term disability benefits until August 2008, when he applied for long-term

disability benefits under the Policy. The Administrator approved Plaintiff’s

request on September 4, 2008, with retroactive application to August 7.

       1
          There is some discrepancy about the date Plaintiff ceased working. We adopt the date
alleged in Plaintiff’s complaint. But we note that Plaintiff’s brief identifies the date as March 14,
2008, while defendants claim it was May 7, 2008. Evidence in the record conflicts as to which
date is correct, but in any event, the actual date Plaintiff stopped working has no real impact on
his claim.
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      Though the Administrator noted that Plaintiff was then being treated “for a

medical condition related to [his] lumbar spine,” it approved Plaintiff’s claim for

long-term disability benefits based on his “medical diagnosis of anxiety and manic

disorder.” Importantly, with certain exceptions not applicable to Plaintiff, mental

disability benefits are only available for twenty-four months pursuant to the

Policy’s Mental Illness Limitation clause.

      Plaintiff collected the benefits for a time but was eager to return to work and

did so on a graduated schedule beginning in early 2009. By February 24, 2009,

Plaintiff had fully returned to work and ceased receiving benefits for the cognitive

impairments he was suffering. But Plaintiff began to think he returned to work too

soon, and in July 2009, he expressed concern to the Administrator about his ability

to continue working. Specifically, Plaintiff informed the Administrator that he

“had continued issues [with] his cognitive functioning associated [with] his bi-

polar,” that he felt “very negative to everything[] and ha[d] a big lack of

motivation and positive reaction,” and that, since his return, his partner had

expressed concern in “high level meetings” about his performance. Further,

Plaintiff’s psychiatrist, Dr. Joe Lucas, recommended that Plaintiff stop working.

      Reluctantly, Plaintiff again ceased working on August 20, 2009. He

resumed receiving benefits under the Policy’s Recurrent Disability clause, which

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permitted him to receive payments under his prior qualifying mental health

disability. This allowed Plaintiff to collect benefits without having to endure a

second “Elimination Period,” but it also restarted the two-year benefit period clock

at the point where Plaintiff resumed working after his first stint on disability.

      On May 7, 2010, while Plaintiff was still collecting benefits, the

Administrator sent Plaintiff a letter informing him that his twenty-four month

“mental and nervous limitation” period would expire on January 31, 2011. The

Administrator knew that Plaintiff also suffered from back pain, so its letter invited

him to provide medical documentation to support a disability claim for a physical

limitation.

      Plaintiff and the Administrator spoke on a phone call on October 29, 2010,

during which Plaintiff informed the Administrator that “his back [pain] is an issue

but the bigger issue is bi-polar and not being able to focus, or think positively.”

When prodded as to how his back pain would preclude him from working, Plaintiff

stated that it was “[n]ot from doing the job so much as mental aspects[,] but in

terms of being problematic in meetings, [the pain] definitely contributes to not

being able to do [the] job effectively.” Plaintiff expressed particular concern about

being “self[-]conscious to have to excuse [him]self to get [his] back stretched,” and




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also about his ability to “try to stretch and bend” in a board meeting, as he must for

comfort.

      On November 24, 2010, the Administrator sent Plaintiff a second letter

reminding him of the approaching termination date of his mental health benefits

and requesting a supplemental Attending Physician’s Statement. Plaintiff’s

primary care physician, Dr. W. Guy Patterson, completed the form, indicating that

Plaintiff suffered from, among other things, problems with his left and right

sciatica, degenerative disc disease, and depression. When the Administrator

inquired as to whether Dr. Patterson thought that Plaintiff’s physical limitations

precluded him from work, Dr. Patterson responded that he did not perform

disability exams, but he prescribed that Plaintiff undergo a Functional Capacity

Exam. Plaintiff participated in the exam, which concluded that he was able to

perform light, sedentary work.

      On a subsequent call with the Administrator, Plaintiff stated that his pain had

shifted over the preceding six months from his lower back to shooting from his left

hip to ankle. Plaintiff claimed that this new pain was more severe than that

previously suffered and that he required a Lortab prescription to manage the pain.

Further, at Dr. Patterson’s behest, Plaintiff had seen a neurosurgeon, Dr. Colby

Maher, who speculated that he may be suffering from Piriformis Syndrome.

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       Sometime later, the Administrator sought opinions from Drs. Patterson and

Maher regarding Plaintiff’s Functional Capacity Exam results. Both agreed with

the conclusion that Plaintiff could perform sedentary work at a light demand level.

Accordingly, on May 4, 2011, the Administrator informed Plaintiff he was no

longer entitled to long-term disability benefits.2 Relying on the Functional

Capacity Exam, Dr. Patterson and Dr. Maher’s opinions that Plaintiff could

“perform activities of a light nature,” and its own medical consultant’s conclusion

that Plaintiff was capable of performing sustained light physical activities, the

Administrator determined that Plaintiff was “not physically disabled from

performing [his] regular occupation as [CEO of Med Management].”

       Plaintiff responded by lodging an appeal with the Administrator. In support,

he filed several additional documents, including a favorable disability decision

from the Social Security Administration,3 updated medical records and a sworn



       2
          Plaintiff’s mental health benefits expired on January 31, 2011, but the Claims
Administrator agreed to continue paying benefits until it could determine whether Plaintiff
suffered from a disabling physical condition.
       3
          We note here that our decision to affirm the denial of long-term benefits and the Social
Security Administration’s grant of disability benefits are not necessarily at odds. “[T]he
approval of disability benefits by the Social Security Administration is not considered dispositive
on the issue of whether a claimant satisfies the requirement for disability under an ERISA-
covered plan.” Whatley v. CNA Ins. Cos., 

, 1314 n.8 (11th Cir. 1999).
Additionally, Plaintiff’s attorney refused to furnish the Administrator the materials relied upon
by the Social Security Administration, distinguishing this case from Melech v. Life Insurance
Company of North America, 

, 672–76 (11th Cir. 2014). There is no allegation that
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statement from Dr. Patterson, the results of an Independent Medical Examination

performed by orthopedic surgeon Dr. Kenneth Jaffe, responses to questions

regarding Plaintiff’s Functional Capacity Exam provided by David Bledsoe, and a

report from vocational rehabilitation counselor John Long.

       Upon receipt of the additional documents, the Administrator retained

medical consultant Dr. Sharon Hogan to review Plaintiff’s file. Dr. Hogan

determined that a preliminary question impeded her examination. Specifically, she

needed to know “whether [Plaintiff’s] reported cognitive dysfunction is organic or

psychological/psychiatric in etiology.” In other words, she questioned whether

Plaintiff’s cognitive impairments were the result of his back pain or his Bipolar

Disorder. Plaintiff would qualify to receive long-term benefits if his cognitive

disability stemmed from his back pain, but not if it stemmed from his Bipolar

Disorder or depression. Dr. Hogan outlined a three-part investigation to aid in this

determination: (1) request a neuropsychological evaluation with personality

testing, (2) retrieve Plaintiff’s 2011 pharmacy profile, and (3) inquire with

Plaintiff’s employer whether he had “any performance issues” between January

2007 and March 2008.




the Policy required Plaintiff to apply for Social Security benefits, as did the policy at issue in

.
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      Dr. Hogan’s effort was stymied at step one when Plaintiff, with recently-

acquired legal representation, refused to submit to a neuropsychological

examination. Plaintiff reasoned that the Policy’s Physical Examination clause

permits the Administrator to require only physical examinations—it does not

encompass mental testing. Consequently, the Administrator could not determine

the cause of Plaintiff’s mental impairments and affirmed its denial of benefits in a

letter on March 9, 2012. In support, the Administrator cited Plaintiff’s ability to

work in spite of “pain complaints [over] a number of years,” a psychiatric

condition that precipitated his earlier receipt of disability benefits for mental

impairments, and a “lack of medical evidence to support a physical condition that

would prevent [him] from working.”

      Plaintiff filed suit contesting the Administrator’s findings on October 24,

2012, pursuant to the Employee Retirement Income Security Act, 29 U.S.C.

§§ 1001 et seq. (“ERISA”). The parties filed cross motions for judgment as a

matter of law. Finding that Plaintiff failed to establish an entitlement to long-term

disability benefits under the Policy, the district court entered judgment as a matter

of law in favor of defendants. This timely appeal followed.

II.   STANDARD OF REVIEW




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

administrator’s determination regarding benefit eligibility, applying the same

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

,

1354 (11th Cir. 2011). Our review considers only “the material available to the

administrator at the time it made its decision.” 

does not set out a standard of review, this Court has

developed a multipart test, relying on Firestone Tire & Rubber Co. v. Bruch, 

, 109 (1989), and Metro. Life Ins. Co v. Glenn, 

, 111 (2008),

as guides. We proceed in the following manner:

      (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.



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       (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.

.



III.   ANALYSIS

       Our analysis in this case begins and ends at the first step of the test. We

conclude that the Administrator’s determination that Plaintiff is not entitled to

long-term disability benefits is not “wrong.” 4 “A decision is ‘wrong’ if, after a

review of the decision of the administrator from a de novo perspective, ‘the court

disagrees.’” Glazer v. Reliance Standard Life Ins. Co., 

, 1246 (11th

Cir. 2008) (quoting Williams v. BellSouth Telecomms., Inc., 

, 1138

& n.8 (11th Cir. 2004)). We consider, “based on the record before the

administrator at the time [the] decision was made, whether [we] would reach the

same decision as the administrator. If [we] determine[] that the plan administrator

was right, the analysis ends and the decision is affirmed.” 

When

appealing the Administrator’s denial of long-term disability benefits, Plaintiff

bears the burden to prove that he is disabled. Doyle v. Liberty Life Assur. Co. of
       4
         The parties agree that the Administrator did not possess discretion when reviewing
claims and that the correct standard of review is de novo.
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Boston, 

, 1362 (11th Cir. 2008); 

; see also

29 U.S.C. § 1132(a)(1)(B) (2014). Plaintiff has not carried that burden.

      Under the Policy, Plaintiff must show that “because of [i]njury or

[s]ickness[,] [he] cannot perform the material and substantial duties of his regular

occupation.” The policy defines “injury” as “bodily injury resulting directly from

an accident and independently of all other causes.” It defines sickness as an

“illness, bodily disorder, disease, Mental Illness, or pregnancy.” Here, Plaintiff

had already exhausted his two years of mental health benefits, so in order to obtain

long-term disability benefits, he had to show that a disabling physical condition

precludes him from performing his duties at Med Management.

      To that end, Plaintiff claims (1) that his back pain makes it impossible to

maintain a work posture for an eight-hour day and (2) that his necessary pain

medications cloud his mind to the point that he cannot perform his tasks as CEO.

We consider each of these claims, beginning with the effects of the medication,

and we conclude that the Administrator was not “wrong” to deny Plaintiff’s claim

for long-term benefits.

      A.     The Impairing Side Effects of Plaintiff’s Medications

      Plaintiff began suffering from back pain as early as July 2006, when an MRI

revealed an impinged nerve in his lower back. In July 2007, a neurosurgeon

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diagnosed Plaintiff with foraminal stenosis, 5 for which he received epidural steroid

injections in February 2008. Nevertheless, Plaintiff’s back pain did not preclude

him from working at that point, nor did his short-term memory problems, which he

experienced as a side effect of the medication he was then taking.

       Not long after, in March 2008, Plaintiff was admitted to the hospital for

chest pain. While there, Plaintiff reported “mental [] and personality symptoms”

that began when he received epidural steroid injections the month prior. The

mental and personality changes caused problems at work, where Plaintiff struggled

in meetings, and at home, where he was “obsessive and agitated.” Plaintiff

admitted to staff that he was stressed, and the discharging physician concurred,

writing that Plaintiff’s “problems are related to stress as he has trouble with his

son, his mother, and his job.” A consultative neurological examination concluded

that Plaintiff suffered from “cognitive impairment and personality change.”

Consequently, the discharging physician recommended that Plaintiff resume taking

Lexapro, a prescription medication used to treat depression and anxiety, which he

had recently stopped taking.




       5
         Stenosis is “a narrowing of spaces in the spine [] that results in pressure on the spinal
cord and/or nerve roots” and “may give rise to pain or numbness in the legs.” What is Spinal
Stenosis?, Nat’l Inst. of Arthritis & Musculoskeletal & Skin Diseases (Jan. 2013), available at
http://www.niams.nih.gov/Health_Info/Spinal_Stenosis/ (last accessed Jan. 22, 2015, 5:27 p.m.).
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      Subsequently, Dr. Lucas diagnosed Plaintiff with Bipolar Disorder and

depression, to which he was predisposed. Thereafter, Plaintiff received the full

two-year limit of long-term disability benefits solely for the “medical diagnosis of

anxiety and manic disorder,” which affected his ability to perform the critical

thinking that his position required.

      Now, Plaintiff claims that the same cognitive impairments for which he

previously received mental illness disability benefits—and that he and his

physicians consistently attributed to his Bipolar Disorder—are in fact side effects

of the medications that he takes for his back pain. Simply put, there are conflicts

in the record as to the source of Plaintiff’s cognitive impairments that prevent him

from performing his job. Reviewing that record, we conclude that Plaintiff has

failed to show that these impairments stem from a physical condition, which is a

showing that is necessary to entitle Plaintiff to long-term disability benefits.

      First, Plaintiff’s contention that his disabling cognitive impairments are the

result of his pain medications finds no support in Dr. Lucas’s psychiatric treatment

notes, which persistently diagnose Plaintiff with Bipolar Disorder and depression

and identify those mental illnesses as the source of his disability. To the extent

that Dr. Lucas believed the epidural steroid injections for back pain precipitated

Plaintiff’s Bipolar Disorder, Plaintiff admits that other physicians disagreed.

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      Nor does internist Dr. Patterson’s recent sworn statement convince us that

Plaintiff’s pain medications impact his focus, concentration, and processing

abilities to the point that he is unable to function as CEO because Dr. Patterson

previously found that those disabling conditions stemmed from Plaintiff’s Bipolar

Disorder and depression. See 

(“Plan administrators

need not accord extra respect to the opinions of a claimant’s treating physicians.”).

      Of course, orthopedic surgeon Dr. Jaffe did find that the side effects of

Plaintiff’s pain medications, of which he required a “significant amount,” caused

him problems “relat[ing] to cognition.” However, several factors weigh against

Dr. Jaffe’s opinion. First, according to Dr. Patterson, Plaintiff “does not take pain

medications regularly,” and no information in the record explains how the sporadic

use of medications could cause Plaintiff’s constant cognitive impairments.

Second, Plaintiff has repeatedly complained of mental impairments at work over a

number of years despite his physicians’ frequent tinkering with his prescriptions.

During this time, his symptoms persisted even though his medications were

changed. Additionally, Plaintiff at times informed the Administrator that his pain

medications were helping his condition. And finally, while Plaintiff occasionally

complained about these medications, in March 2010 he identified the cause of his




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disability as Bipolar Disorder, to which he attributed his “anxiety; depression;

[inability] to focus; [lack of] motivation[; and] memory loss.”

      In sum, there are inconsistencies in the record about the source of Plaintiff’s

cognitive disability. Up to the point that Plaintiff exhausted his mental health

benefits, his physicians consistently ascribed his cognitive disability to his Bipolar

Disorder and depression. Their diagnoses later changed. See 

. Accordingly, Plaintiff has not carried his burden of proving that his

cognitive impairments are side effects of his pain medications, rather than the

effects of his Bipolar Disorder and depression.

      B.     Disabling Physical Pain

      In addition to the cognition-related side effects of his pain medications,

Plaintiff alleges that he suffers from disabling physical pain that entitles him to

long-term disability benefits under the Policy. Plaintiff’s strongest piece of

evidence indicating a disabling physical impairment is the Independent Medical

Exam performed in September 2011 by Dr. Jaffe. Dr. Jaffe found that Plaintiff

was “unable to sit or stand for any extended lengths of time because of the severe

pain in his lower back.” He explained that sitting for more than thirty minutes

caused Plaintiff significant pain, and, in his opinion, Plaintiff could only sit or




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stand for less than one hour at a time and less than a total of three hours in a single

work day.

       On the other hand, the Functional Capacity Exam that Plaintiff underwent in

February 2011—on which he “performed well” and which he undertook without

the assistance of his medications—found that Plaintiff “demonstrated the ability to

function at the full range of LIGHT work.” Upon review, Drs. Patterson and

Maher agreed with this conclusion. 6

       Later, in a sworn statement taken by Plaintiff’s attorney, Dr. Patterson

qualified his earlier agreement with the result of the Functional Capacity Exam.

Namely, while he did not disclaim his prior opinion that Plaintiff could physically

perform light work, he did note that he did not consider at the time “the question of

[whether Plaintiff was] able to function at a cognitive level as well.” With that




       6
          On appeal, Plaintiff argues that the Administrator abused its discretion by considering
the results of Plaintiff’s 2011 Functional Capacity Exam because it lacked the authority to
require Plaintiff to undergo an examination conducted by an occupational therapist. For three
reasons, we reject this claim. First, Plaintiff consented to the Functional Capacity Exam, for
which his primary care physician provided a prescription. Second, and notably, the
Administrator only resorted to the Functional Capacity Exam because its request for Dr.
Patterson’s opinion about the extent of Plaintiff’s disability returned the response that Dr.
Patterson “do[es] not perform disability exams.” Cf. Capone v. Aetna Life Ins. Co., 

, 1199–1200 (11th Cir. 2010) (an insurer’s denial of disability benefits was clearly “wrong”
where the insurer failed “to fully investigate [the plaintiff]’s claims” to determine the cause and
circumstances surrounding his injury). Finally, Plaintiff’s notion that the Administrator
“undoubtedly would have used [any] refusal to be examined as grounds to terminate his benefits”
is conjecture.
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consideration in mind, Dr. Patterson now contends that Plaintiff’s “pain level is

significant enough that he would not be able to function at work.”

        This opinion contrasts starkly with neurosurgeon Dr. Maher’s March 2011

treatment notes, where he found that Plaintiff’s leg pain “ha[d] completely

resolved and [that] he is very happy.” As for Plaintiff’s back, Dr. Maher noted that

“he is better” and that “[i]t is still a bit of a mystery what caused his symptoms.”

Indeed, Dr. Maher wrote that Plaintiff had only “very mild low back pain” at the

time.

        Nor does Dr. Patterson’s sworn statement jibe with his earlier view of

Plaintiff’s physical impairment. Dr. Patterson’s initial Attending Physician’s

Statement identified Plaintiff as physically capable of performing sedentary work

for an eight-hour day. Although he indicated in September 2008 that Plaintiff felt

back pain when standing for more than one hour or sitting for more than thirty

minutes, Dr. Patterson did not indicate that such pain would preclude Plaintiff from

performing his job, in contrast to his view of Plaintiff’s cognitive impairments,

which were attributed to his Bipolar Disorder. And one year later, Dr. Patterson

indicated that Plaintiff had only a Class II physical impairment, meaning that he

was limited to “[m]edium manual activity,” maintaining that Plaintiff’s “reason for

disability relates to [his] depression with bipolar features.”

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      The most severe diagnosis of Plaintiff’s physical disability came in

December 2010, when Dr. Patterson determined that Plaintiff suffered a Class IV

physical impairment, meaning that he had a “[m]oderate limitation of functional

capacity” but was still “capable of clerical/administrative (sedentary) activity.”

Notably, Dr. Patterson did not indicate that Plaintiff had a Class V physical

impairment, meaning that he would be precluded from even sedentary activity.

      Finally, there are Plaintiff’s own conflicting statements, which present

several different narratives. Plaintiff earlier informed the Administrator that his

back condition was “[a]lways there,” and that he had “realized that it will always

be there.” Rather than creating complications at work, Plaintiff described his

“[forty-five] minute drive” as the most difficult aspect of his back pain. Then, in

September 2009, Plaintiff told the Administrator that he would be able to return to

work if he did not have his back condition. However, the next year he told the

Administrator that “his back is an issue[,] but the bigger issue is bi-polar and not

being able to focus, or think positively, [and his] negative thoughts.” And in

February 2011, Plaintiff told the Administrator that his pain “changed totally” from

occurring in his lower back to “start[ing] in his hip and ma[king] its way down to

[his] left leg to about his ankle,” which statement Dr. Patterson’s treatment notes

confirm. The very next month, though, Dr. Maher wrote that Plaintiff’s leg pain

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had “completely resolved.” Finally, Plaintiff admits that he possesses the physical

capacity to perform household chores, complete yard work, and go fishing, albeit

with some difficulty.

      Accordingly, because there is ample evidence that Plaintiff’s physical pain

does not prevent him from performing “the material and substantial duties of his

regular occupation,” and because the policy requires Plaintiff to show that physical

pain is the cause of his disability, Plaintiff has not met his burden. See 

(finding that the district court was not “wrong” to deny claimant

disability benefits where “[t]he record contains ample evidence that Glazer is not

disabled within the meaning of the policy”). Plaintiff is thus not entitled to long-

term disability benefits.

      C.     Conclusion

      Plaintiff has not carried his burden to prove that he suffers from a disabling

physical impairment for which he is entitled to receive long-term disability

benefits. See 

; 

. First, he has not

provided evidence sufficient to indicate that his cognitive impairments result from

side effects of his pain medications, as the record shows that his physicians

previously believed that the impairments stem from his Bipolar Disorder and

depression. Nor has he shown that he suffers disabling pain that precludes him

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from “perform[ing] the material and substantial duties of his regular occupation”

because the record contains ample evidence that he could adequately perform his

duties. See 

. Drs. Patterson and Maher agreed that

Plaintiff could perform light, sedentary work, with the latter subsequently finding

that Plaintiff’s pain had completely resolved. Accordingly, Plaintiff has not shown

an entitlement to long-term disability benefits, and the Administrator’s decision

denying his claim for such was not “wrong.”

      Because we arrive at this conclusion, we do not reach Plaintiff’s argument

on appeal that the Administrator did not possess the authority to compel him to

undergo a neuropsychological examination. Because we analyze the

Administrator’s determination de novo, we also do not reach Plaintiff’s argument

that the district court erred in considering Plaintiff’s refusal to undergo a

neuropsychological examination.

      AFFIRMED.




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