Statia Scott v. Eaton Corporation Long Term Di
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:09-cv-02572-HMH. Copies to all parties and the district court/agency. [998726865]. [10-2124]
Appeal: 10-2124
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Date Filed: 11/21/2011
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2124
STATIA SCOTT,
Plaintiff - Appellee,
v.
EATON CORPORATION LONG TERM DISABILITY PLAN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson.
Henry M. Herlong, Jr., Senior
District Judge. (8:09-cv-02572-HMH)
Argued:
October 27, 2011
Decided:
November 21, 2011
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Reversed by unpublished per curiam opinion.
ARGUED: Anna K. Raske, BENESCH, FRIEDLANDER, COPLAN & ARONOFF,
LLP, Cleveland, Ohio, for Appellant.
Robert Edward Hoskins,
FOSTER LAW FIRM, LLP, Greenville, South Carolina, for Appellee.
ON BRIEF: Jeffrey D. Zimon, BENESCH, FRIEDLANDER, COPLAN &
ARONOFF, LLP, Cleveland, Ohio, for Appellant.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
This case arises from the revocation by appellant Eaton
Corporation
Long
Term
Disability
Plan
(“Eaton”)
of
long-term
disability (“LTD”) benefits provided to appellee Statia Scott.
The district court reversed Eaton’s decision and awarded LTD
benefits to Scott.
Because we find that Eaton’s decision was
not an abuse of discretion, we reverse.
I.
A.
Eaton is the administrator of a LTD benefit plan for the
employees of Eaton Corporation, a manufacturer of, inter alia,
electrical components.
Benefits are funded by premiums paid by
the
contributions
employees
general assets.
and
by
from
Eaton
Corporation’s
This LTD plan is a “welfare plan” governed by
the Employee Retirement Income Security Act (“ERISA”).
3(1).
ERISA §
Eaton is the plan administrator and has discretion to
interpret and apply its provisions.
Eaton has delegated claims
administration
Management
to
Sedgwick
Claims
Service,
Inc.
(“Sedgwick”).
To be eligible for benefits under the plan, a beneficiary
must have a covered disability and must be under the continuous
care of a physician who verifies the beneficiary’s disability to
the satisfaction of the claims administrator.
2
As relevant to
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this appeal, a covered disability is an injury that renders the
beneficiary “totally and continuously unable to engage in any
occupation or perform any work . . . for which [she is], or may
become, reasonably well fit by reason of education, training, or
experience.”
eligibility,
J.A.
the
67.
After
claims
an
initial
administrator
evaluations to revalidate eligibility.
determination
performs
of
periodic
The burden is on the
beneficiary to show at the initial determination stage and at
subsequent revalidations that she is disabled.
LTD benefits end
on “[t]he first day for which [the beneficiary is] unable to
provide satisfactory evidence of a covered disability.”
71.
J.A.
The disability must be shown at all times by “objective
findings,” i.e., “those that can be observed by [a] physician
through
objective
means,
not
description of the symptoms.”
from
J.A. 73.
[the
beneficiary’s]
In addition, for those
claiming to be disabled due to mental illness, they must be
under the continuous care of a psychologist or psychiatrist.
B.
Because our review is very fact-dependent, we lay out the
history
of
Scott’s
disability
and
treatment
in
some
detail.
Eaton Corporation employed Scott for approximately 17 months.
In 1998, Scott stopped working because of chronic pain in her
right wrist and arm.
of
a
childhood
The chronic pain appears to be the result
injury
that
healed
3
improperly
and
that
was
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Date Filed: 11/21/2011
aggravated by an injury at work.
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Eaton initially granted Scott
benefits in 1998 based on this right arm pain.
In August 2003, Scott had surgery to address her right arm
pain.
Two months after surgery, her orthopedist, Dr. Timms,
noted “no wrist misalignment,” and although Scott complained of
crepitus 1 in her wrist, Dr. Timms saw “no real signs of anything
going wrong” and opined, “overall things look good.”
J.A. 437.
Three months after surgery, Dr. Timms noted that Scott’s wrist
had “loosened up nicely;” that she was not experiencing “a lot
of pain or swelling;” and that her range of motion was “quite
improved.”
J.A. 442.
Five months after surgery, however, Scott
complained that the pain in her wrist had returned and that she
was experiencing “decreased sensation and shooting pains.”
443.
J.A.
Dr. Timms could not pinpoint the cause of the symptoms,
noting that, “she is just having generalized pain.
is no swelling.
full.”
Incisions are clean.
Again, there
Motion appears to be
J.A. 444.
Scott’s LTD benefits were terminated in 2004 based upon
“insufficient
documentation
of
a
functional
impairment
that
would preclude [Scott] from the job duties of any occupation.”
J.A. 119.
Scott appealed this termination and Eaton reinstated
1
Crepitus is “a palpable or audible grinding.” The Merck
Manual of Diagnosis and Therapy 285 (Robert S. Porter et al.
eds., 19th ed. 2011).
4
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her
Document: 36
benefits
Date Filed: 11/21/2011
after
an
independent
Page: 5 of 19
medical
evaluation.
This
independent medical evaluation noted that Scott’s symptoms were
possibly
caused
by
Reflex
Sympathetic
(“RSD”) 2
Dystrophy
secondary to her 2003 surgery.
In
2005,
benefits.
Scott
The
applied
Social
for
Security
Social
Security
Administration
disability
denied
Scott
benefits because it concluded that she was not disabled. 3
Also
in 2005, Scott presented to Dr. Riley--her primary physician-with swelling in her feet and ankles.
Later, a blood test
showed elevated levels of Rheumatoid Factor (“RF”). 4
Based upon
these
Rheumatoid
symptoms
Arthritis
and
(“RA”),
rheumatologist.
Scott’s
Dr.
Scott
family
Riley
history
suggested
declined.
that
of
Scott
Nevertheless,
see
Dr.
a
Riley
eventually diagnosed Scott with RA.
In
2006,
as
part
of
a
periodic
revalidation
of
her
eligibility for benefits, Eaton required Scott to undergo an
2
RSD, also known as “complex regional pain syndrome,” is a
neurological condition that “typically follows an injury,” and
is characterized by various degrees of burning pain, excessive
sweating, swelling, and sensitivity to touch. The Merck Manual
of Diagnosis and Therapy, supra, at 1633-34.
3
This was Scott’s second such denial. Scott was previously
denied Social Security disability benefits because she had not
yet paid enough into the system to become eligible.
4
RFs are antibodies that are present in about 70 percent of
patients with RA.
The Merck Manual of Diagnosis and Therapy,
supra, at 333.
5
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independent
Date Filed: 11/21/2011
medical
rheumatologist,
evaluation
Dr.
Stephenson,
by
Page: 6 of 19
a
rheumatologist.
stated,
Scott’s
The
“[p]revious
diagnosis of RSD and as well as RA are not supported by my
examination. . . .
factor.”
J.A.
I don’t think the RA is currently a clinical
510.
being overmedicated.
Dr. Stephenson also believed Scott was
He concluded that Scott’s chronic pain was
most likely caused by her depression and anxiety. 5
Nonetheless,
Dr. Stephenson believed Scott was totally disabled based on her
pain and mental illness.
Revalidation of Scott’s disability began again in 2007.
part
of
this
revalidation,
Sedgwick
asked
Scott’s
As
treating
physicians to complete questionnaires and submit medical notes
from recent examinations.
In his medical notes from May 1, 2007, Dr. Riley indicated
that Scott’s RA symptoms were worsening.
Dr. Riley indicated
that Scott told him that she has not seen a rheumatologist.
is
unclear
if
Dr.
Riley
was
aware
of
Dr.
It
Stephenson’s
examination of Scott in 2006 and his conclusion that Scott was
5
Dr. Stephenson did not discuss Scott’s mental illness indepth.
The first indication in the record that Scott suffers
from mental illness is a 2004 letter from Dr. Riley noting that
Scott suffers from anxiety and is taking Valium. It appears Dr.
Riley first prescribed Scott an antidepressant, Lexapro, in
January of 2007.
6
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not suffering from RA.
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Dr. Riley also noted that Scott was on
pain medication, “which she tries to take sparingly.”
J.A. 532. 6
In a questionnaire from Sedgwick completed by Dr. Riley on
September 22, 2007, Dr. Riley concluded that Scott was totally
disabled due to her anxiety and depression and pain in her right
arm.
Dr. Riley made no mention of Scott’s previous diagnoses of
RSD and RA.
Dr. Riley also indicated for the first time that
the medication Scott was taking made it difficult for her to
concentrate.
In medical notes from October 4, 2007, Dr. Riley concluded
that Scott “is permanently disabled secondary to” RA and RSD.
J.A. 547.
Dr. Riley also indicated that Scott had been seeing
Dr. Sida, a neurologist, for treatment.
The
times.
record
In
shows
notes
that
from
Dr.
Dr.
Sida
Sida,
examined
dated
Scott
October
3,
multiple
2007,
he
observed that Scott was “alert and oriented” and had “normal
language and attention.”
Scott
could
perform
memory was normal.
J.A. 545.
serial
seven
Dr. Sida also noted that
calculations 7
and
that
her
X-rays ordered by Dr. Sida indicated that
Scott was suffering from “degenerative facet joint arthritis of
6
At the time of the most recent review of her eligibility,
Scott was taking Mobic and Percocet.
7
A test for mental function, where a patient is asked to
count down from 100 by sevens.
7
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mild degree . . . and mild osteoarthritis.”
from
his
stated,
November
he
could
persistent pain.”
“has
been
7,
told
2007,
not
“find
J.A. 255.
she
treating for this.”
examination
has
a
J.A. 248.
of
In notes
Scott,
neuropathic
Dr.
cause
Sida
for
her
Dr. Sida also noted that Scott
rheumatoid
arthritis
but
no
one
is
Id.
Between December 13, 2007, and March 25, 2008, it appears
from the record that Dr. Riley examined Scott three times.
Dr.
Riley’s medical notes indicate that on December 13, 2007, Scott
came “[i]n for follow up on rheumatoid arthritis.”
Dr.
Riley
ordered
a
blood
test,
which
showed
J.A. 259.
Scott
had
an
Scott was examined by Dr. Riley again on March 7, 2008.
On
elevated RF level.
an
examination
“RSD.”
sheet
J.A. 266.
to work.”
Id.
under
“Assessment:,”
Dr.
Riley
wrote,
Under “Plan:,” Dr. Riley wrote, “Still unable
No mention is made of RA.
In a Sedgwick
questionnaire completed by Dr. Riley on March 17, 2008, he noted
for
the
first
time
that
side
effects
from
Scott’s
pain
medication “interfere[] with her ability to work,” J.A. 264, but
he
did
not
describe
what
this
interference
was
or
provide
objective findings to substantiate such interference.
After her next exam--on March 25, 2008--on an examination
sheet
under
arthritis.”
“Assessment:,”
J.A. 268.
Dr.
Riley
wrote,
“Rheumatoid
On the sheet, Dr. Riley also checked the
8
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box next to “edema” and noted that Scott’s hands and feet were
“puffy.”
Sedgwick
also
asked
Dr.
Riley
to
capacity evaluation (“PCE”) for Scott.
fill
out
a
physical
On the PCE, Dr. Riley
indicated that Scott was capable of sitting, standing, walking,
speaking,
and
viewing
a
computer
screen
for
8
hours
a
day.
Despite this, on the same PCE, Riley concluded that Scott could
do
zero
hours
of
sedentary
work
per
day.
To
address
this
apparent inconsistency, a Sedgwick representative contacted Dr.
Riley by phone.
The Sedgwick representative reported that Dr.
Riley said that Scott was capable of sedentary work.
To summarize, Scott had, at various times, been diagnosed
with
four
potentially
evidence as to each.
a
neurological
disabling
conditions,
with
conflicting
Two doctors had diagnosed Scott with RSD--
condition--but
Dr.
Stephenson
rejected
this
diagnosis and Scott’s treating neurologist, Dr. Sida, could find
no neurological cause for her pain.
Scott
with
rejected
RA;
this
however,
Dr.
diagnosis,
rheumatologist for treatment.
Dr. Riley had diagnosed
Stephenson,
and
Scott
had
a
rheumatologist,
never
seen
a
Two doctors also diagnosed Scott
as suffering from mental illness; Scott, however, has never been
under the continuous care of a psychologist or psychiatrist, as
required by the plan.
Dr. Riley also concluded that the side
effects from Scott’s pain medication would interfere with her
9
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ability to work, but no objective findings exist in the record
to substantiate such interference.
Also, Dr. Riley previously
noted that Scott tried to take her medication “sparingly,” and
Dr. Sida concluded that Scott had normal cognitive functioning.
Finally, as to the cumulative effect of Scott’s ailments on her
ability to work, Dr. Riley came to conflicting conclusions on
the PCE and, when asked to clarify, stated that Scott could
perform sedentary work.
C.
Sedgwick submitted the above information along with Scott’s
medical
records
to
a
specialist
rheumatology, Dr. Lumpkins.
report,
concluded
that
in
internal
medicine
and
Dr. Lumpkins, in a July 23, 2008,
Scott
could
perform
sedentary
work.
First, Dr. Lumpkins noted that Scott’s primary physician, Dr.
Riley, had concluded that Scott could perform sedentary work.
Regarding Scott’s RSD, Dr. Lumpkins concluded that Scott could
perform work so long as it did not entail “repetitive fine motor
manipulation.”
J.A. 575.
As to concerns regarding potential
side effects of Scott’s pain medication, Lumpkin concluded that
one medication Scott was taking, Mobic, “would not be expected
to influence [Scott’s] functional ability in a sedentary . . .
work
environment.”
J.A.
578.
As
to
another
medication,
Percocet, Lumpkin concluded that its side effects would limit
Scott from “working at unprotected heights, driving a company
10
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vehicle, [and] working with heavy machinery or safety sensitive
materials.”
Id.
As
to
Dr.
Riley’s
diagnosis
of
RA,
Dr.
Lumpkins noted that while there was some objective evidence that
Scott
has
some
sort
of
arthritis,
conclude that Scott had RA.
it
was
insufficient
to
Based on Dr. Lumpkins’s report, on
October 7, 2008, Sedgwick notified Scott that her LTD benefits
would cease starting November 1, 2008.
Scott
procedure
sought
on
review
October
25,
of
this
2008.
decision
On
pursuant
November
7,
to
2008,
plan
Scott
provided Sedgwick with a letter from Dr. Riley, dated October
11, 2008, in which he again asserted that Scott was totally
disabled and could perform no work.
In the letter, Dr. Riley
referred to “the side effects of the chronic medication that
[Scott] takes,” J.A. 552, but did not indicate what those side
effects were.
The letter contained no objective findings and
did not attempt to explain his previous inconsistent conclusions
on
the
PCE
or
sedentary work.
his
later
statement
that
Scott
could
perform
Dr. Riley also submitted additional information
to Sedgwick in December 2008 and early 2009.
This information
showed that Dr. Riley had not seen Scott in person from March of
2008 until after Eaton revoked her benefits in October of that
year.
The information also indicated that in March of 2009, Dr.
Riley ordered a bone scan for Scott to check for RA.
scan revealed no obvious signs of RA.
11
The bone
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On review, Sedgwick engaged three physicians (a physical
medicine specialist, a psychiatry and neurology specialist, and
an internal medicine and rheumatology specialist) to re-evaluate
Scott’s medical records and speak with Dr. Riley.
All three
physicians concluded that Scott was able to work.
Based on
these reports, Sedgwick reaffirmed its original decision.
Scott appealed this decision to Eaton, pursuant to plan
procedure.
Upon her appeal, Eaton provided her records to three
anonymous physicians (a specialist in neurology, a specialist in
psychiatry,
and
a
specialist
in
physical
medicine).
physicians all concluded that Scott could work.
Scott’s appeal on September 28, 2009.
letter,
Eaton
noted
that
the
only
J.A. 86.
physician
conclude Scott was disabled was Dr. Riley.
These
Eaton denied
In its denial
since
2007
to
Eaton discounted Dr.
Riley’s conclusions based on the various inconsistencies among
his
diagnoses
concluded
dearth
of
that
and
his
the
weakness
supporting
lack
of
of
objective
objective
Dr.
findings.
Riley’s
evidence,
Eaton
conclusions,
and
the
the
unanimous
contrary view of the seven reviewing physicians, noted above,
was enough to support the original revocation of Scott’s LTD
benefits.
D.
On October 9, 2009, Scott sued Eaton, seeking reinstatement
of
her
benefits.
On
February
12
11,
2010,
the
district
court
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stayed the action to permit Eaton to review an affidavit by Dr.
Riley. 8
this
Eaton agreed to reconsider its revocation in light of
affidavit.
anonymous
After
reviewing
review
physicians
of
who
the
affidavit,
previously
could work again came to the same conclusion.
Eaton sustained the revocation.
the
concluded
same
Scott
Based on this,
As to Dr. Riley’s assertion
that Scott’s medication will prevent her from working, Eaton
noted:
[A]lthough Dr. Riley expresses concern with respect to
Ms. Scott’s ability to perform sedentary work, given
the medications she uses, his office notes and records
do not evidence the cognitive changes that he told the
independent
physician
reviewer
may
impact
her
functional capacity.
J.A. 97.
The
parties
then
moved
for
judgment
pursuant
to
the
district court’s “Specialized Case Management Order for ERISA
benefits cases.”
J.A. 1249.
The district court found Eaton had
abused its discretion in two ways.
First, the district court
concluded that Eaton acted unreasonably when, on review of its
initial determination, it failed to give adequate weight to Dr.
Riley’s letter of October, 17, 2008: “Instead of meaningfully
8
The affidavit was undated and not notarized, but appears
to be from sometime in 2009. Scott’s subjective complaints were
listed and Riley averred that Scott’s “subjective complaints and
limitations are consistent with her objectively diagnosed
medical conditions,” J.A. 598, but the affidavit listed no
objective findings.
Scott’s medical conditions were noted as
RSD and RA.
13
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discussing the impact that Dr. Riley’s subsequent letter had on
the conclusion that Scott could perform sedentary work, Eaton
turned to hired peer reviewers in an attempt to reconcile its
initial
determination
disability.”
J.A.
that
Scott
1257-58.
no
longer
Second,
the
had
a
covered
district
court
concluded that Eaton violated terms of the plan when it “failed
to adequately address the impact of Scott’s medication regime on
her ability to work.”
J.A. 1259.
The district court stated:
“Eaton’s reviewers collectively failed to evaluate and consider
the disabling side effects of Scott’s narcotic medication.
By
failing to consider the side effects of Scott’s pain medication,
the Plan Administrator and its reviewers have disregarded the
terms
of
the
Plan.”
J.A.
1261-62.
The
district
court
accordingly reversed Eaton’s revocation and awarded Scott LTD
benefits.
Eaton appealed.
II.
On appeal, Eaton argues that the district court erred when
it
reversed
because
Eaton’s
Eaton’s
decision
to
decision-making
end
Scott’s
process
was
LTD
sound
benefits,
and
its
ultimate decision was supported by substantial evidence.
We
agree.
Because the LTD plan granted Eaton discretionary authority
to determine eligibility for benefits, “the exercise of assigned
14
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discretion is reviewed for abuse of discretion.”
Evans v. Eaton
Corp. LTD Plan, 514 F.3d 315, 321 (4th Cir. 2008).
district
court
functions
in
this
context
as
a
“[T]he
deferential
reviewing court with respect to the [administrator’s] decision,
and we review the district court’s decision de novo, employing
the same standards applied by the district court in reviewing
the
[administrator’s]
omitted).
In
decision.”
Evans,
we
Id.
provided
a
(internal
helpful
quotations
and
in-depth
discussion of the abuse of discretion standard in ERISA cases,
beginning with the following principle: “At its immovable core,
the abuse of discretion standard requires a reviewing court to
show
enough
deference
to
a
primary
decision-maker’s
judgment
that the court does not reverse merely because it would have
come to a different result in the first instance.”
It
is
also
discretion
important
standard
.
to
.
keep
.
like
in
mind
other
that
such
Id. at 322.
“the
abuse
standards,
of
bites
mainly in close cases,” and in a close case, a court “should
.
. . acknowledge[] the essential equipoise and stay[] its hand.”
Id. at 325.
Particularly as to ERISA, we advised, a court should “not
disturb an ERISA administrator’s discretionary decision if it is
reasonable,” and “an administrator’s decision is reasonable if
it is the result of a deliberate, principled reasoning process
and if it is supported by substantial evidence.”
15
Id. at 322
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(internal quotations omitted).
Page: 16 of 19
In Donovan v. Eaton Corp. LTD
Plan, 462 F.3d 321, 329 (4th Cir. 2006), this court held an
administrator’s reasoning process to be unprincipled when the
administrator
ignored
pro-beneficiary
evidence.
As
we
have
noted, “what rightly offended the Donovan court was not [the
administrator’s]
selectivity
(which
is
part
of
a
plan
administrator's job), but its ‘wholesale disregard’ of evidence
in
the
claimant’s
favor.”
Evans,
514
F.3d
at
326
(quoting
Donovan, 462 F.3d at 329).
Applying these principles to the facts of this case, we
conclude
that
Eaton’s
decision
was
reasonable.
First,
the
district court was incorrect that Eaton disregarded Dr. Riley’s
October
2008
letter.
The
record
is
clear
thoughtfully considered the views of Dr. Riley.
reviewers
discussed
Dr.
Riley’s
views,
but
that
Eaton
Eaton and its
gave
them
little
weight because of their inconsistency and the fact that many of
them were not based on objective evidence.
Furthermore, Dr.
Riley’s conclusions--those of a well-meaning family doctor--were
contradicted by several specialists, who gave no indication of
unreliability.
conclusions
in
It was not unreasonable to discount Dr. Riley’s
these
circumstances.
See
Black
&
Decker
Disability Plan v. Nord, 538 U.S. 822, 834 (2003) (“[C]ourts
[may not] impose on plan administrators a discrete burden of
explanation when they credit reliable evidence that conflicts
16
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with a treating physician’s evaluation.”); see also id. at 832
(noting that a treating physician’s conclusion may be questioned
because “a treating physician, in a close case, may favor a
finding of ‘disabled’ ”).
Second, the district court was incorrect that Eaton ignored
potential side effects of Scott’s medication in concluding that
she was able to work.
Dr. Lumpkins, in reviewing Scott’s record
for Sedgwick, noted that Scott can do sedentary work but that
side
effects
of
Percocet
would
keep
Scott
from
“working
at
unprotected heights, driving a company vehicle, [and] working
with heavy machinery or safety sensitive materials.”
J.A. 573.
Then, in the final cancellation letter, Eaton stated, “We also
note that although Dr. Riley expresses concern with respect to
Ms.
Scott's
medications
evidence
ability
she
the
uses,
cognitive
to
his
perform
office
changes
sedentary
notes
that
he
work
and
told
given
records
the
do
not
independent
physician reviewer may impact her functional capacity.”
92.
the
J.A.
This is sufficient consideration, especially considering
the lack of objective evidence supporting the existence of such
side effects.
See Evans, 514 F.3d at 326 (noting approvingly
that “[t]he benefits cancellation letter
. . . gave due regard
to the evidence in [the beneficiary’s] favor”).
Finally,
the
district
court
erred
in
reversing
Eaton’s
decision, which was based upon--at best--conflicting evidence.
17
Appeal: 10-2124
Document: 36
Date Filed: 11/21/2011
Page: 18 of 19
In favor of a finding of disability were only Scott’s subjective
complaints,
the
inconsistent
conclusions
of
physician, and some objective evidence of RA.
Scott’s
primary
Against a finding
of disability were not only the unanimous assessments by peer
reviewers,
but
also
the
following
facts:
(1)
Dr.
Riley’s
diagnosis of RA has never been substantiated by a rheumatologist
and a bone scan revealed no obvious signs of RA; (2) Dr. Riley’s
diagnosis
Scott’s
of
RSD,
treating
a
neurological
neurologist,
condition,
Dr.
Sida,
was
refuted
by
who
found
no
neurological cause of her pain; and (3) there is no objective
evidence
Scott
suffers
side
effects
from
her
medication
and
Scott had been observed by Dr. Sida as alert and oriented. 9
Based on this evidence, Eaton’s decision to end Scott’s benefits
was not unreasonable.
See Elliot v. Sara Lee Corp., 190 F.3d
601, 606 (4th Cir. 1999) (noting that an administrator does not
abuse its discretion by denying benefits if the record contains
“conflicting medical reports”).
9
Scott has not argued that her mental illness entitled her
to LTD benefits.
18
Appeal: 10-2124
Document: 36
Date Filed: 11/21/2011
Page: 19 of 19
III.
For
the
foregoing
reasons,
the
holding
of
the
district
court is
REVERSED.
19
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