GORDON J. QUIST, District Judge.
Plaintiff, Tricia Kerridge, has sued Defendant, United of Omaha Life Insurance Company (United), under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq., seeking review of United's decision denying her long-term disability benefits. United has filed the Administrative Record and the parties have filed cross-motions for judgment on the Administrative Record in accordance with the procedures set forth in Wilkins v. Baptist Healthcare System, Inc., 150 F.3d 609 (6th Cir. 1998).
For the reasons set forth below, the Court will grant United's motion and affirm its decision denying benefits.
The parties agree that the Court must apply the de novo standard in reviewing United's decision to deny Kerridge's claim for benefits. This standard applies to both factual and legal determinations by a plan administrator. Rowan v. Unum Life Ins. Co. of Am., 119 F.3d 433, 435 (6th Cir.1997). "In the ERISA context, the role of the reviewing federal court is to determine whether the administrator or fiduciary made a correct decision, applying a de novo standard." Perry v. Simplicity Eng'g, 900 F.2d 963, 966 (6th Cir.1990). "This review is limited to the administrative record and the court is obligated to determine whether the administrator properly interpreted the plan and if the insured was entitled to benefits under the plan." Kaye v. Unum Group/Provident Life & Accident, No. 09-14873, 2012 WL 124845, at *5 (E.D. Mich. Jan.17, 2012) (citing Perry, 900 F.2d at 967). "The administrator's decision is accorded no deference or presumption of correctness." Hoover v. Provident Life & Accident Ins. Co., 290 F.3d 801, 809 (6th Cir.2002) (citing Perry, 900 F.2d at 966). "When conducting a de novo review, the district court must take a `fresh look' at the administrative record but may not consider new evidence or look beyond the record that was before the plan administrator." Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 616 (6th Cir.1998) (citations omitted).
Kerridge was employed by SAF-Holland, Inc. as a Business Unit Financial Analyst, a sedentary position that involved sitting and walking. (ECF No. 7-6 at PageID.664.) During her employment with SAF, SAF maintained Group Policy, No. GLTD-AEMS, issued by United, that provided long-term disability (LTD) benefits to eligible SAF employees. (ECF No. 7-1 at PageID.42-71.) The Policy is an "employee welfare benefit plan" within the meaning of § 3(1) of ERISA, 29 U.S.C. § 1002(1), and Kerridge was a participant eligible for coverage under the Policy. (ECF No. 5 at pageID.12.)
The Policy defines "disability" and "disabled" as:
(ECF No. 7-1 at PageID.68-69.) Material duties are
(Id. at PageID.69.) An employee's regular occupation "means the occupation You are routinely performing when Your Disability begins." (Id. at PageID.70.)
On April 6, 2014, Kerridge submitted a claim for LTD benefits to United, claiming that she became disabled on October 22, 2013, due to "pass[ing] out unexpectedly, loss of memory, [and] can't function normally." (ECF No. 7-6 at PageID.662; see also ECF No. 7-2 at PageID.232 (describing passing out suddenly and briefly).) Kerridge identified Dr. Ramona Wallace as the physician who was treating Kerridge for her disability and also indicated that she had received treatment at the Cleveland Clinic from March 26, 2014 to the present.
In October 2013, Dr. Wallace ordered a Holter monitor recording (a device that monitors a person's heart rhythm).
On October 22, 2013, an MRI study was performed on Kerridge's brain. The study found "[n]o mass or area of abnormal signal intensity" and "a small cyst in the pineal gland, unchanged from previous studies."
Dr. Wallace saw Kerridge six times between the date Kerridge last worked and August 2014—December 19, 2013, January 8, 2014, February 12, 2014, February 28, 2014, and August 18, 2014. (ECF No. 7-2 at PageID.166-190.)
Unable to determine the specific etiology of Kerridge's syncope, Dr. Wallace referred Kerridge to the Cleveland Clinic for consultation and evaluation. Kerridge was seen at the Cleveland Clinic from March 26, 2014 through August 2014, during which time numerous tests were administered to Kerridge. On April 28, 2014, Dr. Wilson of the Cleveland Clinic reported to Dr. Wallace that Kerridge's "neurological, cardiac, and endocrine test[s] [were] stable," and that they had no answers for Kerridge's syncope. (ECF No. 7-3 at PageID.297.)
In April 2014, the Cleveland Clinic performed a study on Kerridge for sleep apnea, a condition that causes individuals to stop breathing for short periods of time during sleep. The sleep study reported "[m]ild overall obstructive sleep apnea exacerbated to the severe in REM supine sleep" and "[a]bnormal sleep architecture likely due to respiratory events, PAP titration and first night effect." (ECF No. 7-2 at PageID.224-27.) Cleveland Clinic recommended that Kerridge start CPAP (continuous positive airway pressure) therapy. (Id. at PageID.224.)
On July 17, 2014, Cleveland Clinic took a muscle biopsy from Kerridge's thigh. (ECF No. 7-3 at PageID.357.) Microscopic analysis of the biopsy revealed "[m]ild non-specific abnormalities." (Id.) On August 5, 2014, an electron microscopy was performed on the biopsy for evidence of metabolic or mitochondrial disease.
(Id. at PageID.323.)
In an August 29, 2014, letter to Dr. Wallace, Dr. Wilson reported that Kerridge had "a mitochondrial myopathy and no cardiac involvement."
During 2014, Dr. Wallace issued three slips excusing Kerridge from work. The first slip, dated January 8, 2014, excused Kerridge from work until March 5, 2014, and imposed no work restrictions. (Id. at PageID.475.) The second slip, dated February 28, 2014, excused Kerridge until May 28, 2014, and imposed no work restrictions. (Id. at page ID.474.) The third slip, dated May 30, 2014, excused Kerridge until August 28, 2014, and also imposed no work restrictions. (Id. at PageID.473.)
On August 25, 2014, United sent Kerridge a letter stating that it had reviewed the medical evidence that Kerridge had submitted in support of her application for LTD benefits and concluded, in light of the pertinent Policy provisions, that "there [was] no medically based evidence to suggest restrictions and limitations to preclude [Kerridge] from any activity from [her] last day worked forward." (ECF No. 7-3 at PageID.314.) Therefore, United denied Kerridge's application but informed Kerridge that she was entitled to appeal the claim decision within 180 days. Subsequently, Kerridge retained counsel, who filed an appeal on behalf of Kerridge. (ECF No. 7-2 at PageID.159.)
In connection with Kerridge's appeal, United retained Mohammed J. Zafar, M.D., board certified in neurology and clinical neurophysiology, to conduct an independent medical examination (IME) of Kerridge for evaluation of fainting, memory loss, insomnia, and sleep apnea. (ECF no. 7-2 at PageID.144.) Dr. Zafar reviewed Kerridge's history of complaints with her, reviewed her "extensive available medical records," and physically examined Kerridge. (ECF No. 7-1 at PageID.132-33; ECF No. 7-2 at PageID.135-36, 144-45.) In the neurologic portion of his IME report, Dr. Zafar stated:
(Id. at PageID.137-38.)
Dr. Zafar also answered a series of questions posed by United. In particular, Dr. Zafar stated that Kerridge's "[l]imitations appear to be more cognitive/neuropsychological in nature," and suggested that "[n]europsychological evaluation may be considered to better evaluate reasonable restrictions and limitations." (Id. at PageID.139.) Dr. Zafar also opined that, given the absence of any conclusive medical evidence suggesting a cause for Kerridge's symptoms, "it would be difficult to suggest any major restrictions and limitations from a neurologic standpoint," although he noted that a musculoskeletal syndrome may limit Kerridge from performing activities such as reaching or working overhead and that her sleep disorder may require restrictions and limitations as to driving. (Id.) Dr. Zafar also noted a "paucity of findings both on exam and on the extensive testing (other than the sleep study) which do not reflect the impressions in the medical records." (Id.) Finally, in response to a question about verbal statements or physical behaviors that were inconsistent with Kerridge's reported symptoms, Dr. Zafar stated:
(Id. at PageID.140.)
On May 8, 2015, United informed Kerridge's counsel by letter that it had denied Kerridge's appeal. (ECF No. 7-1 at PageID.90.) United indicated that its decision was based on the records from Dr. Wilson and the Cleveland Clinic, the other records in Kerridge's file, and Dr. Zafar's report from the IME. (Id. at PageID.91.) United noted that "Dr. Zafar reported that Ms. Kerridge's clinical examination and testing does not show any definite evidence for an intracranial structural or peripheral neurologic disorder." (Id. at PageID.91-92.) United also noted that Dr. Zafar indicated that any limitations would be "more cognitive in nature and may be addressed appropriately by a neuropsychological evaluation," but stated that "we do not have any information to conclude that Ms. Kerridge is seeking the care for a psychological disorder." (Id. at PageID.92.) United thus concluded that Kerridge was not entitled to benefits because the evidence did not show that Kerridge would be unable to perform the material duties of her sedentary Financial Analyst occupation. (Id.)
Thereafter, Kerridge filed the instant action seeking review of United's decision.
In order to show that she is entitled to LTD benefits, Kerridge must present objective evidence to support a finding that she is disabled within the terms of the Policy. See Javery v. Lucent Techs., Inc. Long Term Disability Plan, 741 F.3d 686, 700 (6th Cir. 2014). Although Kerridge argues that "the great balance of medical evidence in this case" supports her claim of disability (ECF No. 9 at PageID.696), the medical evidence discussed above belies this assertion.
While it is true that, in the Physician's Statement Kerridge furnished in support of her claim, Dr. Wallace specified various medical conditions or disorders as bases for Kerridge's claimed disability and cited numerous restrictions, these statements are unsupported, and even contradicted, by evidence in the record. For example, although Dr. Wallace conducted or ordered numerous medical tests on Kerridge, none of the tests supported that Kerridge was unable to perform any of the duties of her sedentary Financial Analyst position. Similarly, Dr. Wallace's office notes consistently reflect normal exam findings, including the areas of memory and orientation. (ECF No. 7-2 at Page ID.168, 171, 179, 183, 188-89.) Moreover, while Dr. Wallace did issue three "disability notices," as Kerridge describes them, none of the notices or slips indicated that Kerridge was limited or restricted from performing any of the material duties of her job. In fact, the last "disability notice," issued on May 30, 2014, said that Kerridge could return to work on August 28, 2014. (ECF No. 7-5 at PageID.473.) Because Dr. Wallace never amended this notice or provided an additional notice stating that Kerridge would be off work after August 28, 2014, United could reasonably conclude that Kerridge was not disabled after that time.
The records and medical tests from the Cleveland Clinic also fail to show that Kerridge was disabled under the Policy. As noted above, Dr. Wilson reported to Dr. Wallace on April 28, 2014, that Kerridge's "neurological, cardiac, and endocrine test[s] [were] stable," and that there were no answers for Kerridge's syncope (fainting). (ECF No. 7-3 at PageID.297.) A sleep study performed the same month indicated that Kerridge experienced mild overall obstructive sleep apnea and recommended that she start CPAP therapy. Kerridge followed through on the recommendation, and in July 2014, reported that "she [wa]s doing well with [CPAP], [and] notice[d] [the] benefit[s] of restful sleep and relief of migraines." Kerridge said that daytime sleepiness, energy level, and restful sleep were improved. (ECF No. 7-2 at PageID.216.) Subsequently, in August 2014, an electron microscopy of a biopsy of Kerridge's muscle tissue taken in July 2014 revealed a "mitochondrial myopathy and no cardiac involvement." (ECF No. 7-5 at pageID.476.) Dr. Wilson prescribed vitamin B12, carnitor, and conenzyme Q10 and recommended activities for Kerridge's overall health and conditioning, (id.), but did not indicate that mitochondrial myopathy restricted Kerridge in any way that would prevent her from performing her job. Given the lack of any medical evidence in the record that Kerridge's sleep apnea (which had improved with CPAP therapy) or her diagnosis of mitochondrial myopathy warranted restrictions or somehow limited Kerridge from performing the material duties of her Financial Analyst position, there is no sufficient basis to conclude that Kerridge is disabled under the Policy.
Finally, Dr. Zafar's IME of Kerridge highlights the absence of any objective medical evidence supporting Kerridge's claim that she was disabled. Dr. Zafar reviewed Kerridge's medical complaints with Kerridge, reviewed her medical records, and physically examined Kerridge. Dr. Zafar reported mostly normal findings and indicated that he was unable to identify any restrictions and limitations from a neurologic standpoint given the absence of medical evidence suggesting a cause for Kerridge's symptoms. (ECF No. 7-2 at PageID.139.) Kerridge argues that Dr. Zafar's IME findings and opinions must be rejected because Dr. Zafar spent only one day meeting with Kerridge, reviewing her medical records, and examining Kerridge, but nothing Kerridge argues suggests that Dr. Zafar's IME was not thorough and accurate. For example, although Dr. Zafar did not specifically refer to Dr. Wilson's finding of "mitochondrial myopathy" in his answers to United's questions, the section of his report listing the medical records he reviewed included the records pertaining to Dr. Wilson's finding of mitochondrial myopathy and the sleep disorder study. (Id. at PageID.135-36.) Moreover, Dr. Zafar noted that Kerridge "had no difficulties with positional transfers which would be expected with a myopathy." (Id. at PageID.140.) Thus, Kerridge fails to identify an adequate basis for rejecting Dr. Zafar's opinions.
Kerridge argues that several cases suggest that the Sixth Circuit strongly prefers the medical opinions of treating physicians to those of physicians like Dr. Zafar, who are hired by insurance companies to conduct an IME. The cases Kerridge cites, Hoover v. Provident Life and Accident Insurance Co., 290 F.3d 801 (6th Cir. 2002), Calvert v. Firstar Finance, Inc., 409 F.3d 289 (6th Cir. 2005), and Kalish v. Liberty Mutual/Life Assurance Co. of Boston, 419 F.3d 501 (6th Cir. 2005), do not support her argument. In Hoover, the court concluded that the insurer's decision to accept the opinions of its own physicians, who had not examined the plaintiff and only reviewed her medical records, over the opinion of the plaintiff's treating physician, to deny benefits was incorrect. Hoover, 290 F.3d at 809. In Calvert, the court said that an insurer's "reliance on a file review does not, standing alone, require the conclusion that [the insurer] acted improperly," although it noted that "the failure to conduct a physical examination—especially where the right to do so is specifically reserved in the plan—may, in some cases, raise questions about the thoroughness and accuracy of the benefits determination." Calvert, 409 F.3d at 295. The court also confirmed that it found "nothing inherently objectionable about a file review by a qualified physician in the context of a benefits determination." Id. at 296. Similarly, consistent with Calvert, the court in Kalish said that whether a doctor physically examined a claimant—as opposed to conducting only a file review—is one factor bearing on a court's analysis of whether a plan administrator acted arbitrarily and capriciously in denying benefits. Kalish, 419 F.3d at 508. None of the foregoing cases suggests, as Kerridge argues, that opinions of treating physicians are preferred over opinions of plan-retained physicians who perform an IME and actually examine the claimant. Moreover, Calvert and Kalish both make clear that a plan administrator's reliance on a file review, alone, is not enough to conclude that the plan administrator acted improperly. Finally, even if the Court accepted Kerridge's proposed rule and disregarded Dr. Zafar's IME, the Court would still reach the same conclusion because the balance of the medical evidence does not show that Kerridge was disabled.
Next, Kerridge faults United for failing to employ a vocational expert to support its determination that Kerridge was not unable to perform her job. "[A] plan administrator is not required to obtain vocational evidence where the medical evidence contained in the record provides substantial support for a finding that the claimant is not totally and permanently disabled." Judge v. Metro. Life Ins. Co., 710 F.3d 651, 662-63 (6th Cir. 2013). Here, as noted above, there is substantial medical evidence that Kerridge was not disabled. Moreover, because Dr. Wallace did not restrict Kerridge from working after August 28, 2014, and Dr. Wilson did not restrict Kerridge from working at all, there is no medical opinion evidence that Kerridge was unable to return to work. Thus, there was no need for a vocational analysis.
Kerridge next argues that United's decision must be reversed because United engaged in selective review, or "cherry-picking" of the evidence in the medical file to support its denial of benefits. While a plan administrator may not engage in a selective claim review process by relying only upon evidence that is favorable to the claimant, see Spangler v. Lockheed Martin Energy Sys., Inc., 313 F.3d 356, 362 (6th Cir. 2002), Kerridge fails to support this argument by describing the evidence that United allegedly ignored. Thus, this argument also fails.
Finally, Kerridge argues that United has an inherent conflict of interest because it determines eligibility for benefits and pays those benefits. "If the standard of review is de novo, then the significance of the administrator's conflict of interest evaporates." Price v. Hartford Life & Accident Ins. Co., 746 F.Supp.2d 860, 866 (E.D. Mich. 2010). Because the Court has reviewed United's decision to deny benefits under a de novo standard of review and has not deferred to United's determination, any asserted conflict of interest is irrelevant to the Court's analysis.
In paragraph 13 of her complaint, Kerridge alleges that she applied for, and obtained, Social Security disability benefits. (ECF No. 1 at pageID.3.) There is no dispute that the favorable Social Security award was not part of the administrative record that United reviewed.
The law in the Sixth Circuit is clear: regardless of the standard of review, "the district court [is] confined to the record that was before the Plan Administrator." Wilkins, 150 F.3d at 615 (citing Perry v. Simplicity Eng'g, 900 F.2d 963, 966 (6th Cir. 1990)); accord Cooper v. Life Ins. Co. of N. Am., 486 F.3d 157, 171 (6th Cir. 2007) (noting that because the proffered evidence did not concern a procedural challenge to the administrator's decision, "consideration of evidence outside the administrative record would be improper"); Moon v. Unum Provident Corp., 405 F.3d 373, 378 (6th Cir. 2005) ("Our review is confined to the administrative record as it existed on July 11, 2002, when Unum issued its final decision upholding the termination of Moon's LTD benefits."). Accordingly, because the favorable Social Security determination was not before United at the time it issued its final decision, this Court may not consider it in reviewing United's decision to deny Kerridge's claim for benefits.
The cases Kerridge cites in support of her argument that "applicable Sixth Circuit authorities on point hold that an ERISA benefits denial decision is an ongoing decision and the parties may supplement the administrative record at any time up until the Court decides litigation deriving from that denial," (ECF No. 11 at PageID.732), are unavailing. For example, in Williams v. International Paper Co., 227 F.3d 706 (6th Cir. 2000), the additional evidence was actually presented to the plan administrator during the administrative appeal, but the plan administrator declined to consider it. Id. at 709-10. In Killian v. Healthsource Provident Administrators, Inc., 152 F.3d 514 (6th Cir. 1998), the claimant's attorney submitted additional materials to the plan administrator approximately 10 days after the administrator denied the claimant's appeal. Although the administrator initially indicated that it was reviewing the new materials, five days later the administrator said that it would not consider the materials because they were not timely submitted. Id. at 518. While the Sixth Circuit ultimately affirmed the denial of benefits, it concluded that the administrator acted arbitrarily and capriciously in refusing to consider the additional materials because the plan did not contain a procedure for appealing a denial of a preauthorization claim for benefits. Id. at 521. Finally, an administrative record was not at issue in Best v. Cyrus, 310 F.3d 932 (6th Cir. 2002), because Best involved claims by a plan and its current trustees against a former trustee for breach of fiduciary duty, not a claim for benefits. Thus, Best is inapposite to the instant case. In any event, the administrative record in the instant case closed on May 8, 2015, when United denied Kerridge's appeal. Because Kerridge never presented the Social Security award to United during the administrative appeal, this Court may not consider it in reviewing United's denial of benefits.
For the foregoing reasons, the Court will grant United's motion for judgment on the administrative record, deny Kerridge's motion for judgment on the administrative record, and affirm United's decision denying Kerridge LTD benefits.
An Order consistent with this Opinion will be entered.
