CLAY, Circuit Judge.
Plaintiff Nilratan Javery appeals the judgment of the district court in favor of Defendant, Lucent Technologies, Inc. Long Term Disability Plan for Management or LBA Employees ("the Plan"), denying Plaintiff's claim for disability benefits under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq.
Plaintiff contends that the Plan wrongfully denied his application for long term disability benefits. In support of his claim, Plaintiff submitted opinions and evaluations from several medical doctors and psychiatrists, the majority of whom assert that Plaintiff was unable to perform his job as a result of his physical and mental illnesses. Plaintiff also offered other evidence including his successful application for Social Security disability benefits to show that he was "disabled" as that term is defined in the Plan. Defendant argues that Plaintiff has not established by a preponderance of the evidence that he was "disabled" at the relevant time. Additionally, Defendant contends that Plaintiff should be judicially estopped from pursuing his ERISA claim because Plaintiff failed to disclose the claim in his Chapter 13 personal bankruptcy action.
On appeal, Plaintiff requests this Court, on de novo review, to reverse the order of the district court denying Plaintiff long term disability benefits. For the reasons
Plaintiff began working for Lucent Technologies, Inc. ("Lucent") as a software engineer in 1998. As an employee of Lucent, Plaintiff was a participant in Lucent's ERISA qualified welfare benefit plan: the Lucent Technologies Inc. Long Term Disability Plan for Management or LBA Employees ("the Plan"). The Plan offers long term disability benefits to participants who meet its defined requirements for eligibility. Lucent delegated the Plan's administration to a third party, Connecticut General Life Insurance Company ("CIGNA" or "the plan administrator").
Plaintiff's job as a software engineer required him to sit continuously for eight to ten hours each day. Plaintiff reported that the work was "fast-paced and it involved supporting [Lucent] employees and several consultants round the clock.... in excess of 70-75 hours per week over 5-6 months straight." (Admin. R.556) It was also a technically and intellectually demanding job which required knowledge of "[s]oftware based tools: Progress and Oracle database, Unix Operating system, Unix based 4GL languages such as awk, shell, scripting, perl." (Admin.R.521)
In early November 2002, Plaintiff first reported experiencing back pain. His family doctor, Dr. Dorado, prescribed medicine and additional testing, and recommended that Plaintiff take some time off work. Plaintiff took two weeks off in November 2002, and then returned to work at Lucent. In January 2003, after Lucent transferred Plaintiff from Ohio to Illinois, Plaintiff sought treatment from another physician, Dr. Jay Seymour. Plaintiff's lower back pain worsened. In May 2005, Dr. Seymour advised Plaintiff to stop working. Plaintiff stopped working on May 19, 2005.
Lucent approved and paid short term disability benefits from May 19, 2005 until those benefits expired on November 25, 2005. Lucent then notified the plan administrator that it believed Plaintiff might be eligible for long term disability benefits under the Plan. The plan administrator contacted Plaintiff and invited him to apply for long term disability benefits.
Under the terms of the Plan, a participant is entitled to receive a monthly disability benefit from the Plan if he or she is "disabled," which the Plan defines as follows:
(Admin. R. 005)
We note at the outset that only the first definition is relevant to our resolution of the present case: Plaintiff is entitled to disability benefits if he was "prevented by reason of ... disability ... from engaging in [his] occupation or employment at [Lucent]." As discussed below, when Plaintiff submitted his application for long term disability benefits on or about November 25, 2005, the plan administrator evaluated Plaintiff's eligibility for benefits "for the one year period commencing immediately after the 26 weeks of Short Term Disability Benefits have been paid," and denied Plaintiff's application. Though this case has a complicated procedural history, the dispute at the heart of the matter is whether or not the plan administrator's denial of Plaintiff's application at that time was proper. In other words, notwithstanding the fact that it is now 2014, the relevant time period is still November 25, 2005 through November 25, 2006, and the relevant inquiry is whether Plaintiff was unable to work as a software engineer at that time.
Plaintiff submitted his application for long term disability benefits on or around November 25, 2005. In his application, he described his disability as follows:
(Admin. R. 519) Plaintiff stated that he could "not even imagine delivering any commercial grade work as [he is] always in pain and quite disoriented." (Admin.R.520) Along with his application, Plaintiff submitted a great deal of medical evidence from various medical professionals, including:
On February 9, 2006, a nurse care manager employed by the plan administrator reviewed the medical evidence that Plaintiff submitted in support of his application. Based on his review of the file, and in spite of documentation from two of Plaintiff's treating doctors saying that Plaintiff was unable to work and statements from others as to Plaintiff's severe limitations, the nurse care manager concluded that Plaintiff "should be able to perform his sedentary occupation." Appellee Br. at 6. The plan administrator denied Plaintiff's claim on February 17, 2006, stating in part:
(Admin. R. 219) In addition, the denial letter specifically referenced Dr. Seymour's observation that going back to work would be "the best thing" for Plaintiff.
Plaintiff appealed, through counsel, on April 20, 2006. He supplied additional medical records, as well as letters from Dr. Seymour and Dr. Holtzmeier. In a letter dated April 21, 2006, Dr. Holtzmeier wrote:
Dr. Seymour explained that "the issue of [Plaintiff's] ability to work [is] very complicated[,]" but what Plaintiff needed most was "a trial of work in an environment with reasonable hours and accommodations, while undergoing a pain management program." (Admin.R.186) Because Lucent rejected Plaintiff's proposal of accommodations, Dr. Seymour urged the plan administrator to "please reconsider the decision to deny disability."
In spite of the new evidence, the plan administrator denied Plaintiff's appeal in a letter dated June 7, 2006. The letter reported that one of the plan administrator's in-house medical directors "reviewed the medical information [in Plaintiff's file] and advised the medical record review fails to reveal documented clinical findings to support limitations imposed." (Admin.R.181) With respect to Dr. Seymour and Dr. Holtzmeier's reports of Plaintiff's mental impairments, the plan administrator wrote:
Plaintiff appealed for a second time on July 31, 2006. He submitted additional evidence including:
After acknowledging that it had received and reviewed the psychiatric information from Dr. Weaver, Dr. Lowe, and Shepherd Hill, the plan administrator denied Plaintiff's second and final appeal on January 4, 2007.
Plaintiff filed for Chapter 13 personal bankruptcy on October 14, 2007. On January 7, 2009, Plaintiff filed a Complaint in the United States District Court for the Southern District of Ohio alleging that Defendant wrongfully denied him long term disability benefits in violation of ERISA, 29 U.S.C. § 1132(a)(1)(B). Defendant answered, and both parties moved for judgment on the administrative record. On March 10, 2011, the district court issued an opinion and order denying both parties' motions and remanding Plaintiff's claim to the plan administrator for further review of the mental component of Plaintiff's claim. In its opinion, the district court found that the proper standard of review of the plan administrator's decision was de novo.
After the district court remanded the case to the plan administrator in March 2011, Plaintiff submitted additional evidence to the plan administrator, including:
In August 2011, the plan administrator hired two doctors — psychiatrist Marcus J. Goldman and neurologist Choon S. Rim — to conduct independent medical reviews ("IMRs") of the medical information in Plaintiff's claim file.
Dr. Goldman reviewed the psychological evaluations of Dr. Borders and Dr. Lowe, but discredited their professional opinions after finding the diagnoses "unsupported by regular and reliable progress notes since 2006." Appellee Br. at 10. Dr. Goldman "noted the lack of any ongoing treatment or re-evaluation for psychiatric functionality conducted by Dr. Lowe after the 2006 report." Id. From his file review, Dr. Goldman concluded that, with the exception of the dates that Plaintiff was in an inpatient unit in 2006, the medical evidence did not "clearly, explicitly, consistently, or in any ... compelling or objective fashion" support the presence of a mental disorder of such severity as to preclude Plaintiff from functioning or working. Id. at 9-10.
Dr. Rim reviewed Plaintiff's diagnostic test results, psychiatric evaluations, medical evaluations from Plaintiff's treating physicians, and the Independent Medical Examination ("IME") conducted by Dr. Gary Skaletsky. Based upon his review, Dr. Rim determined that, from a neurological standpoint, the disability determinations made by Plaintiff's treating physicians, Dr. Seymour and Dr. Holtzmeier, were not supported by the record. Dr. Rim concluded that Plaintiff could perform his sedentary job with modest restrictions, such as frequently changing positions and refraining from lifting over ten pounds.
On September 6, 2011, the plan administrator denied Plaintiff's claim for benefits once again. On January 11, 2012, Plaintiff successfully moved to reactivate the case in federal court. In district court for the second time, both parties once again filed cross-motions for judgment on the administrative record. On June 20, 2012, the district court issued its opinion and order, which it filed under seal,
We consider first whether Plaintiff should be judicially estopped from pursuing his claim for long term disability benefits. Defendant contends that Plaintiff should be judicially estopped from pursuing the present claim because Plaintiff failed to bring the claim to the attention of the bankruptcy court in the Chapter 13 bankruptcy action Plaintiff filed on October 14, 2007. Defendant previously raised this argument twice before the district court: first in a motion for summary judgment, and second in its briefing for judgment on the administrative record. The district court rejected Defendant's argument both times, and declined to apply judicial estoppel "based on the specific facts present in this action."
We review de novo a district court's decision regarding the application of judicial estoppel. See White v. Wyndham Vacation Ownership, Inc., 617 F.3d 472, 476 (6th Cir.2010); Eubanks v. CBSK Financial Group, Inc., 385 F.3d 894, 897 (6th Cir.2004). In several recent cases, this Court has "questioned the continuing viability of the de novo standard for judicial estoppel, noting the Supreme Court's characterization of the doctrine as an equitable remedy `invoked by the court at its discretion' and recognizing that the `majority of federal courts' review for abuse of discretion." Kimberlin v. Dollar General Corp., 520 Fed.Appx. 312, 313 n. 1 (6th Cir.2013) (quoting New Hampshire v. Maine, 532 U.S. 742, 750, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001)); see also Lewis v. Weyerhaeuser Co., 141 Fed.Appx. 420, 424 (6th Cir.2005) ("In light of New Hampshire and the extensive contrary authority, we question the continued use of the de novo standard in the context of judicial estoppel."); but see Lorillard Tobacco Co. v. Chester, Willcox, & Saxbe, 546 F.3d 752, 757 (6th Cir.2008) ("The Supreme Court did not instruct that an abuse of discretion standard is appropriate, and this Court has continued to adhere to the de novo standard after New Hampshire. Without a more definitive statement from the Supreme Court, this Court is bound by its own precedent and will therefore apply the de novo standard to the district court's order.")
Although this issue remains unresolved in this Circuit, we need not resolve it in the present case because the district court's ruling was proper under either standard. See Kimberlin, 520 Fed.Appx. at 313 n. 1 (declining to adopt an abuse of discretion standard for review of judicial estoppel rulings because the district court would be affirmed under the de novo standard); Weyerhaeuser, 141 Fed.Appx. at 424 (same); Leonard v. Southwestern Bell Corp. Disability Income Plan, 341 F.3d 696, 700 (8th Cir.2003) (same).
The doctrine of judicial estoppel seeks "to preserve the integrity of the courts," Browning, 283 F.3d at 776 (citation omitted), by "generally prevent[ing] a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase." New Hampshire, 532 U.S. at 749, 121 S.Ct. 1808 (citation omitted). Though there are no "inflexible prerequisites" for judicial estoppel, id. at 751, 121 S.Ct. 1808, this Court has
Kimberlin, 520 Fed.Appx. at 314. We have made clear that "judicial estoppel does not apply where the prior inconsistent position occurred because of `mistake or inadvertence.'" Weyerhaeuser, 141 Fed. Appx. at 425 (emphasis added) (quoting Browning, 283 F.3d at 776) (internal quotation mark omitted). Failure to disclose a claim in a bankruptcy proceeding also may be excused where the debtor lacks a motive to conceal the claim, Browning, 283 F.3d at 776, or where the debtor does not act in bad faith, Eubanks, 385 F.3d at 895.
Plaintiff argues that any omission was wholly inadvertent, that he did not act in bad faith, and that he lacked any motive to conceal the claim. To support his position, Plaintiff submitted affidavits and other evidence indicating that he was not responsible for, and was entirely unaware of, any omission. Specifically, the evidence shows that Plaintiff and his spouse disclosed the claim to their bankruptcy attorney in writing and discussed the claim with their bankruptcy attorney, which suggests that any error was the fault of the attorney and not Plaintiff.
The district court considered the evidence and declined to apply the doctrine to bar Plaintiff's case, explaining that the uncontested evidence supported Plaintiff's position:
A fresh review of the facts and evidence in this case leads us to the same conclusion: any omission was almost certainly due to carelessness or inadvertent error as opposed to intentional, strategic concealment or impermissible gamesmanship. We note also that under Ohio laws, proceeds from a disability insurance policy are completely exempt from a debtor's estate (i.e., set aside for the benefit of the debtor) to the extent that they are necessary for the support of the debtor and his family. OHIO REV. CODE § 3923.19(A). Accordingly, Plaintiff had no motive for intentionally concealing the claim.
We consider next whether the district court erred when it remanded Plaintiff's disability claim to the plan administrator "for a full and fair review of [Plaintiff]'s disability claim." (R. 39, Opinion at 12-13). We review the district court's choice of remedy in an ERISA action for abuse of discretion. Shelby County Health Care Corp. v. Majestic Star Casino, 581 F.3d 355, 372 (6th Cir.2009); see also Willcox v. Liberty Life Assurance Co. of Boston, 552 F.3d 693, 703 (8th Cir. 2009) (finding that the district court did not abuse its discretion in remanding the case to the plan administrator for further administrative review).
Plaintiff sets forth a compelling argument that the district court, "while correctly determining that de novo [review] was required, nonetheless applied the standards applicable to deferential review." Appellant Br. at 24. Plaintiff contends that the district court's "decision to remand the case to [the plan administrator]... reflected the district court's misunderstanding of the difference between deferential and de novo review." Id. Defendant, on the other hand, contends that the district court's decision to remand the case was proper because the record lacked factual findings that would be relevant to its decision.
Admittedly, some of the analysis and case law in the district court opinion suggest that the district court gave too much deference to the plan administrator. See Salve Regina Coll. v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991) ("When de novo review is compelled, no form of appellate deference is acceptable."); see also Hoover v. Provident Life & Acc. Ins. Co., 290 F.3d 801, 808-09 (6th Cir.2002) ("When applying a de novo standard in the ERISA context.... [t]he [plan] administrator's decision is accorded no deference or presumption of correctness."). For example, the opinion states: "The administrative record fails to indicate... that [the plan administrator] reached a decision denying [the psychological] component of [Plaintiff]'s claim as the result of a deliberative, principled reasoning process.... This is problematic for [Defendant] because this Court `cannot uphold an ERISA plan administrator's determination if it is not the product of a deliberate, principled reasoning process." (R. 39, Opinion at 11-12) (quoting Elliott v. Metropolitan Life Ins. Co., 473 F.3d 613 (6th Cir.2006)) (quoting Glenn v. Metro. Life Ins. Co., 461 F.3d 660, 666 (6th Cir.2006)) (internal quotation marks omitted) (emphasis added). The district court's analysis is problematic because it is irrelevant on de novo review whether a plan administrator's decision was principled or reasoned; the plan administrator's reasoning (or lack thereof) is only important when a court engages in deferential review. Additionally, all of the cases upon which the district court relied — Elliott, 473 F.3d 613; Glenn, 461 F.3d 660; Smith v. Continental Cas. Co., 450 F.3d 253 (6th Cir.2006); and Buffonge v. Prudential Ins. Co. of America, 426 F.3d 20 (1st Cir.2005) — were cases decided on deferential review.
However, the district court's standard of review and authority to remand are legally and analytically distinct, and, even under de novo review, remand is the appropriate remedial measure where further fact-finding is necessary to determine claimant eligibility for benefits. See
A close examination of the administrative record and district court opinion reveals that the district court intended to remand the case for further fact-finding to supplement the incomplete record. In its opinion, the district court appears to adopt Defendant's argument "that the record is not sufficiently developed to make an informed decision on the existence of any claimed psychological disability, and [Defendant] does not know whether the Court has familiarity with the Plan or the medical expertise necessary to make a disability determination in the first instance." (R. 39, Opinion at 12) (quoting R. 37, Def's Resp. Opp. Mot. for Judg. on Admin. Rec., at 10-11) (internal quotation marks omitted). Additionally, the court twice mentions a lack of "findings" in the administrative record. Although we are troubled by the fact that the district court articulated the remedy as "remand for a full and fair review," which is typically associated with deferential review, the court's concern over the inadequate factual findings and insufficient development of the administrative record suggests that the district court intended to remand the claim for further development of the record, and not merely out of deference to the plan administrator.
Therefore, we decline to hold that the district court abused its discretion in remanding the claim to the plan administrator.
Finally, we consider whether the district court erred in denying Plaintiff's claim for disability benefits. We review the district court's judgment on Plaintiff's ERISA claim de novo, applying the same standard of review to the plan administrator's action as required by the district court. Moore v. Lafayette Life Ins. Co., 458 F.3d 416, 427 (6th Cir.2006). As the district court correctly determined, and as Defendant conceded at oral argument, the plan administrator's decisions in this case are not entitled to deference. See Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 616 (6th Cir.1998) ("In cases in which a plan administrator is given no discretionary authority by the plan, review of the plan administrator's decision by the district court — as well as the court of appeals — is de novo, with respect to both the plan administrator's interpretation of the plan and the plan administrator's factual findings."). Therefore, we take a "fresh look" at the administrative record, id., giving proper weight to each expert's opinion in accordance with supporting medical tests and underlying objective findings, and "accord[ing] no deference or presumption of correctness" to the decisions of either the district court or plan administrator, Hoover, 290 F.3d at 809.
To succeed in his claim for disability benefits under ERISA, Plaintiff must prove by a preponderance of the evidence that he was "disabled," as that term is defined in the Plan. See Tracy v. Pharmacia & Upjohn Absence Payment Plan, 195 Fed.Appx. 511, 516 n. 4 (6th
In reaching this conclusion, we first looked to the nature of Plaintiff's job. See Elliott, 473 F.3d at 618 (a decision on a disability benefits claim requires "an application of the relevant evidence to the occupational standard" because "medical data, without reasoning, cannot produce a logical judgment about a claimant's work ability"). Both parties agree that Plaintiff's job as a software engineer was technically and intellectually demanding and required sitting for prolonged periods of time.
We next looked at the medical evidence, and applied it to the occupational standard. The medical evidence in the administrative record indicates that a combination of extreme pain, and mental illness, and the effects of pain medication made it exceedingly difficult for Plaintiff to concentrate, handle stress, stay awake during the day, remember things, relate to co-workers, make decisions, or sit for any extended period of time. Anecdotal evidence of Plaintiff's erratic behavior bolsters the medical evidence that Plaintiff was not competent to perform his job. Three different physicians — Dr. Holtzmeier, Dr. Seymour, and Dr. Saguil — each of whom treated Plaintiff during the relevant time frame, found him unable to return to work. Of the two psychiatrists who evaluated Plaintiff in 2006, one determined that he was seriously mentally ill and incapable of working, and the other found substantial impairment in Plaintiff's ability to sustain the stress and pressure of day-to-day work. Their diagnoses were confirmed shortly thereafter by Dr. Borders, a psychiatrist at Shepherd Hill behavioral health facility, when Plaintiff was hospitalized for twelve days for mental illness in an acute in-patient unit in September 2006. This evidence supports Plaintiff's testimony that he could not "perform[] timely and quality work" or deliver "any commercial grade work." (Admin.R.519-20)
Juxtaposed against this array of evidence is the opinion of Dr. Skaletsky from July 2005, as well as the opinions of Dr. Goldman and Dr. Rim, neither of whom ever examined Plaintiff and whose opinions are based on file reviews undertaken in August 2011.
While Dr. Skaletsky's report is relevant and informative, his suggestion that "there is no anatomic or physiologic basis for the chronic pain syndrome that is present" does not preclude a finding that Plaintiff was disabled. (Admin.R.278) On the contrary, Dr. Skaletsky's finding that there is no neurological basis for Plaintiff's pain, accompanied by his "concern[] that there is a strong psychogenic input to the symptoms," (Admin.R.277) actually bolsters the mental component of Plaintiff's claim.
Similarly, we are not pursuaded by the opinions of Dr. Goldman and Dr.
In addition, we note that there were several problems with Dr. Goldman's analysis and report. As previously discussed, Dr. Goldman erroneously drew negative inferences from the lack of evidence regarding Plaintiff's mental health after 2006. See footnote 3, supra at 696. In particular, we are troubled by the fact that Dr. Goldman overlooked certain evidence in the file and drew adverse conclusions about the "absence" of such evidence. For instance, Dr. Goldman found it significant that none of Plaintiff's "non-mental health providers" reported any findings that would support significant psychopathy (Supp.Admin.R.179), overlooking the Attending Physician Statements completed by Dr. Holtzmeier and Dr. Seymour, both of whom are "non-mental health providers," documenting their observations that Plaintiff was not mentally fit to work. Dr. Goldman also claimed that "at no time has there been any formal psychological testing, including MMPI, PAI, or MCI to better establish the nature and extent and veracity of the claimant's complaints," ignoring Dr. Lowe's administration of the Beck Depression Inventory, which indicated "Severe depression." (Supp.Admin.R.180) We also found it troublesome that Dr. Goldman ignored the intellectual aspects of Plaintiff's job as a software engineer. See Elliott, 473 F.3d at 618; see also Rohr v. Designed Telecommunications, Inc., 2009 WL 891739 at *11 (S.D.Ohio, 2009) ("Jefferson Pilot ignored the most significant aspects of Plaintiff's job, i.e., the intellectual and/or mental functions."). Although Dr. Rim's report was less factually and analytically problematic than Dr. Goldman's report, Dr. Rim's file report was very limited in scope, and only answered the question of whether Plaintiff is disabled "strictly from a neurological standpoint." (Supp.Admin.R.193)
Plaintiff submitted medical evidence from numerous doctors and therapists who directly treated or examined him and concluded that he was unable to work due to a combination of his physical and mental conditions. He visited over a dozen medical experts. Those doctors who knew him best concluded, unequivocally, that he was unable to work at the relevant time. Defendant offers little to contradict this evidence. Accordingly, Plaintiff is entitled to disability benefits for the relevant period.
For the foregoing reasons, we
In addition, although Plaintiff has submitted evidence of his medical condition beyond November 25, 2006, we only consider such evidence to the extent that it speaks to Plaintiff's condition during the relevant time period. The primary benefit of such evidence in evaluating Plaintiff's condition during the relevant period is that the post-2006 evidence speaks to the credibility and accurateness of the earlier evaluations and opinions. In considering the post-2006 evidence, we are mindful that Plaintiff may only prevail by establishing that he was unable to work as a software engineer between November 25, 2005 and November 25, 2006.