LaShondra Davis v. Aetna Life Insurance Company

Filing

UNPUBLISHED OPINION FILED. [16-10895 Affirmed] Judge: JLW, Judge: JLD, Judge: CH. Mandate pull date is 07/05/2017 [16-10895]

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-10895

United States Court of Appeals
Fifth Circuit

FILED
June 14, 2017

LASHONDRA DAVIS,

Lyle W. Cayce
Clerk

Plaintiff - Appellant
v.
AETNA LIFE INSURANCE COMPANY,
Defendant - Appellee

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:15-CV-1654
Before WIENER, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
Lashondra Davis appeals the district court’s grant of summary judgment
in favor of Aetna Life Insurance Company. The district court held that Aetna
did not abuse its discretion under the Employee Retirement Income Security
Act of 1974 (ERISA), 29 U.S.C. § 1132(a)(1)(B), in denying Davis long-term
disability (LTD) benefits.

We agree with the district court that Aetna’s

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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decision to terminate Davis’s benefits did not constitute an abuse of discretion
and therefore AFFIRM.
I
Between October 2005 and April 2010, Davis worked at Experian
Information Systems, Inc. as a customer support associate. While she worked
at Experian, Davis was enrolled in the Experian Long-Term Disability Plan
(Plan). On April 21, 2010, Davis, who was thirty-four years old at the time,
stopped working full-time at Experian due to health issues.

Davis’s

rheumatologist and treating physician, Dr. Don E. Cheatum, diagnosed her
with, inter alia, systemic lupus erythematosus (lupus), fatigue, and morning
stiffness. Davis applied initially for short-term disability (STD) and then,
when her condition did not improve, for LTD benefits under the Plan.
Aetna, the Plan’s underwriter and claims administrator, approved STD
benefits to Davis based on Dr. Cheatum’s diagnosis beginning April 23, 2010.
In support of Davis’s claim, Dr. Cheatum provided Aetna with Attending
Physician Statements (APSs), starting in May 2010 and lasting throughout the
benefits period.

The APSs described Davis’s diagnoses, limitations, and

abilities, and summarized her treatment and medications. All of Davis’s APSs
stated that she had “severe pain” and “fatigue” and that she was “chronically
[and] permanently disabled.” During this period, Dr. Cheatum also submitted
Capabilities and Limitations Worksheets (Worksheets) stating that Davis
could never climb, crawl, kneel, pull, push, reach forward or above her
shoulder, carry, bend, twist, use her hands for fine or gross manipulation or
repetitive motions, and that Davis could not sit, stand, or walk for “prolonged”
periods.
To determine Davis’s continued eligibility for STD benefits, in June
2010, Aetna asked Dr. Anne M. MacGuire, also a rheumatologist, to conduct a
peer review of Davis’s medical records and a peer-to-peer conversation with Dr.
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Cheatum. Dr. MacGuire agreed with Dr. Cheatum that Davis was disabled
due to the pain, fatigue, and cognitive impairment that resulted from her
medical condition. Aetna paid Davis twenty-six weeks of STD benefits between
April and October 2010. In September 2010, Aetna notified Davis that it was
evaluating her eligibility for LTD benefits.
On October 20, 2010, Aetna advised Davis that she met the “own
occupation” definition of disability, meaning that Davis was eligible to receive
monthly LTD benefits for twenty-four months because she was unable to
perform the material duties of her own occupation. Aetna paid LTD benefits
to Davis through the entire own-occupation period. During this period, Aetna
received additional progress notes, APSs, Worksheets, and laboratory results
regarding Davis’s medical condition.
In July 2012, Aetna was notified that an Administrative Law Judge
(ALJ) had recently denied Davis’s claim for Social Security Disability
Insurance (SSDI). The ALJ had found that the evidence “did not demonstrate
the requisite degree of joint, muscle, ocular, respiratory, cardiovascular,
digestive, renal, hematologic, skin, neurological, mental involvement or the
involvement of two or more organs/body symptoms with significant,
documented, constitutional symptoms and signs of severe fatigue, fever,
malaise and weight loss.” The ALJ also found that “[i]n activities of daily living
and social function, the claimant has mild restriction,” and “[w]ith regard to
concentration, persistence or pace, the claimant has mild difficulties.” The ALJ
stated that “the medically determinable impairments cannot reasonably be
expected to produce the symptoms to the degree alleged,” and that Davis’s
“statements concerning the intensity, persistence and limiting effects of these
symptoms are not found credible to the extent that they are outside the range
of medically reasonable attribution.”
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After the first twenty-four months of LTD benefits, in contrast to the own
occupation period, Davis’s Plan provided for payment only if Davis was “not
able, solely because of injury or disease, to work at any reasonable occupation.”
The Plan gave Aetna “the discretionary authority to determine whether and to
what extent employees and beneficiaries are entitled to benefits and construe
any disputed or doubtful terms of this policy.”
In May 2012, as part of Aetna’s assessment of Davis’s continued
eligibility for LTD benefits, a nurse performed a clinical review of Davis’s claim
and concluded that the documentation regarding her functional impairment
was inconsistent with Dr. Cheatum’s APSs stating that she was permanently
disabled. The nurse found that there was inconsistent documentation as to
her morning stiffness, that she had shown no synovitis (inflammation in the
joints), and that her mental status examinations were not documented. The
nurse recommended that Davis undergo an Independent Medical Examination
(IME).
In November 2012, Dr. Charles R. Crane, board certified in physical
medicine and rehabilitation, conducted the IME. Dr. Crane’s findings were
consistent with those of Dr. Cheatum: Davis was able to do sedentary and light
type activities, but only for brief periods of time. Due to the fatigue associated
with her lupus and rheumatoid arthritis, Davis could not sustain prolonged
periods of active work without having to take a break for rest and recovery.
Based on Dr. Crane’s report, Aetna approved Davis’s LTD benefits under the
“any reasonable occupation” standard and advised her that Aetna would
periodically reevaluate her eligibility. In January 2013, a claims examiner
conducted a telephone interview with Davis regarding her medical condition
and daily activities. Davis reported that she did not drive and continued to
suffer from severe fatigue, stiffness, and joint pain. Davis said that she could
type and do laundry, and on good days she could go out and do some shopping,
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but that going to a place like Wal-Mart would be “overdoing it.” Quarterly lab
tests from July 2012 and August 2013 showed that Davis exhibited
inflammation, lupus, and rheumatoid arthritis.
In late 2013, Aetna referred Davis’s claim to its risk management unit.
Aetna conducted a public records search on Davis. Aetna also obtained video
surveillance of Davis’s activities over a twenty-two minute period on December
31, 2013, and over a one-hour-and-forty-seven-minute period on January 3,
2014.

Davis was observed driving to three fast-food restaurants and a

pharmacy, turning her body, bending down, leaning forward, reaching into the
back seat of her car, carrying a bag over her shoulder, and walking quickly.
Aetna also performed a social media search of Davis and her husband.
Davis’s LinkedIn account confirmed that she was a student at Northcentral
University, although Aetna never confirmed whether Davis was actually
attending class. Her husband’s Facebook account reported that Davis visited
several restaurants, a movie theater, and a bowling alley during four days in
July and August of 2013. His social media account also indicated that they
visited various tourist attractions in San Antonio, Texas, during this period,
although there are no pictures of either Davis or her husband at these places.
In February 2014, Aetna asked Dr. Joseph L. Braun, an occupational
medicine specialist, to perform a peer review of Davis’s medical file. Dr. Braun
reviewed Dr. Cheatum’s office notes from November 2008 to November 2013,
the video surveillance, and the background records check. Dr. Braun also
spoke with Dr. Cheatum. During the conversation, Dr. Cheatum advised Dr.
Braun there were no recent changes in Davis’s medication or condition, that
her cognitive problems were caused by lupus, and that she could not do any
work, even sedentary, because of her fatigue, weakness, pain, and cognitive
problems.
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Dr. Braun disagreed with Dr. Cheatum, and concluded that “the
evidence presented [did] not support any level of restriction/limitation
resulting in impairment.” He said that the surveillance footage demonstrated
that Davis’s activities were “consistent with at least a sedentary [physical
demand level] occupation capacity,” and that Davis was capable of performing
in such capacity. In early March 2014, Aetna forwarded Dr. Braun’s report to
Dr. Cheatum and Davis for review and comment. Aetna did not receive a
response.
On March 27, 2014, Aetna informed Davis that she no longer qualified
for LTD benefits, which required her to be unable to work in any occupation.
Aetna advised Davis that it reached its decision after considering Dr.
Cheatum’s medical records, Davis’s self-reporting, the IME performed by Dr.
Crane, the surveillance and social media investigation, and Dr. Braun’s peer
review. It explained that:
Taken together, the clinical evidence in the claim file in
conjunction with your demonstrated functional capabilities fails
to support restrictions or limitations, physical or cognitive, that
would preclude you from sitting up to 8 hours a day, with the
ability to change positons as necessary and lifting up to ten
pounds occasionally. This level of functionality is consistent with
the requirements of your own occupation as a Customer Support
Associate.
Davis wrote to Aetna to appeal its decision. Dr. Cheatum sent Aetna
additional medical records reiterating his previous findings. He provided a
letter to Aetna stating that Davis’s lupus was “rather severe,” but that she did
not need to see a psychologist, psychiatrist, or neurologist for her cognitive
problems.

Dr. Cheatum also provided his responses to a Social Security

Administration questionnaire that stated that “none of Davis’s symptoms or
limitations, in [his] expert opinion, are inappropriate or excessive,” and that
“with lupus . . . you have good days and bad days.” Dr. Cheatum also provided
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office visit notes from April and May 2014, in which he noted Davis was still
suffering from severe fatigue and morning stiffness, and her lab test results,
which indicated that Davis still exhibited inflammation consistent with his
diagnosis of lupus and rheumatoid arthritis.
In July 2014, Aetna asked Dr. Siva Ayyar, an occupational medical
specialist, to conduct another peer review. Dr. Ayyar reviewed Dr. Cheatum’s
office notes, APSs, laboratory results, Dr. MacGuire’s 2010 peer review, work
history questionnaires, 2011–2012 Worksheets, Davis’s unfavorable SSDI
decision, the 2012 IME report, her social media profile, the surveillance report,
and video. Dr. Ayyar also attempted to conduct a peer-to-peer conference with
Dr. Cheatum but was unable to reach him.
Dr. Ayyar concluded “while [Davis] may carry a diagnosis of [lupus],
there is no evidence that this issue is generating the need for any continuous
medically necessary limitations and/or restrictions . . . .” Dr. Ayyar noted that
the “surveillance video and report suggest that the claimant is, in fact,
essentially unimpaired from neurologic and musculoskeletal perspectives,”
and while Davis may require temporary limitations when she experiences
flares, “there is no evidence that the claimant is continuously symptomatic
insofar as the lupus is concerned.” Dr. Ayyar disagreed with Dr. Cheatum’s
diagnosis that Davis should be “deemed totally functionally impaired,” stating
that Davis is “independently ambulatory,” and “exhibits and retains wellpreserved ability, capability and functionality well in excess of her stated
capacity and well in excess of her proclamation of inability to work from a
medical perspective.”
Aetna forwarded Dr. Ayyar’s peer review to Dr. Cheatum for comment.
In response, Dr. Cheatum provided a July 23, 2014, progress note. His note
reiterated that Davis should be considered “chronically disabled,” and that his
opinion should “outweigh[] any other opinion the insurance carrier might wish
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to bring forth.” Dr. Cheatum stated that if the “insurance carrier doctor does
not realize that this patient is disabled, then that doctor needs to go back to
school.”
After reviewing the progress note, Dr. Ayyar responded, noting that Dr.
Cheatum’s own progress note “suggested that [Davis] presented to the clinic in
an essentially unimpaired manner . . . despite multifocal pain complaints and
lowgrade swelling appreciated about the knees and wrists.” Dr. Ayyar stated
that while Davis may require temporary limitations when she suffers severe
lupus flares, Davis had not demonstrated the need for any “specific
biomechanical limitations or restrictions.”
At Aetna’s behest, Dr. Ayyar finally spoke with Dr. Cheatum who stated
that he believed Davis’s complaints of multifocal pain, fatigue, and malaise
should result in her qualifying for long-term disability, and that he was
inclined to discount the covert surveillance video on the grounds that these
were filmed on some of the Davis’s “good days.” Dr. Ayyar responded that
Davis’s “previous behavior on covert surveillance suggest[s] that she is, in fact,
essentially unimpaired from the neurologic and musculoskeletal perspectives
and, moreover, argues against the need for the imposition of any continuous
biomechanical limitations or restrictions.”
Aetna upheld its prior decision to terminate Davis’s LTD benefits based
on insufficient medical evidence to support Davis’s inability to perform any
occupation. Aetna found that although Davis carried a diagnosis of lupus and
might require temporary limitations associated with temporary flares, her
medical condition did not require the imposition of continuous physical
limitations or restrictions.
In May 2015, Davis filed suit against Aetna pursuant to 29 U.S.C.
§ 1132(a)(1)(B), in federal district court seeking past-due LTD benefits and to
have her benefits reinstated. The parties filed cross motions for summary
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judgment. The district court concluded that Aetna’s decision to terminate LTD
benefits was based on and supported by a complete and thorough review of the
claim file which included medical records, multiple opinions from Davis’s
treating physician Dr. Cheatum, two different peer review physicians, an ALJ,
video surveillance, social media investigation, and Davis’s self-reporting
during the relevant time.
The court determined that Aetna considered and addressed the various
aspects of Davis’s medical evidence—including Dr. Cheatum’s records and
opinions and Davis’s self-reports of pain. The district court concluded that
Aetna had presented substantial evidence to support its denial of LTD benefits
under the “any reasonable occupation” standard. The court found the peer
reviewers’ reports to be reliable and that the public record search and video
surveillance revealed a higher level of activity than either Davis or Dr.
Cheatum had reported. The district court found that there was a rational
connection between the medical evidence and Aetna’s finding that Davis was
not eligible for LTD.
The district court also considered the July 2012 decision by an ALJ
denying Davis’s claim for SSDI. The court found the ALJ’s denial of Davis’s
request for SSDI highly relevant as to whether Aetna acted arbitrarily and
capriciously.

It also found significant that the ALJ had determined that

Davis’s self-reporting was not supported by the medical evidence and therefore
was not credible.
The district court concluded that Aetna did not abuse its discretion in
denying Davis’s claim for LTD benefits. Although Aetna had a conflict of
interest as both plan administrator and underwriter, the court found that
Davis had not shown that the conflict impacted Aetna’s decision to deny
benefits in any significant way. Davis timely appealed.
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II
We review “a district court judgment on cross-motions for summary
judgment de novo.” Cedyco Corp. v. PetroQuest Energy, LLC, 497 F. 3d 485,
488 (5th Cir. 2007). In this case, because the Plan gives the plan administrator
the discretionary authority to construe the Plan’s terms and to render benefit
decisions, we will reverse Aetna’s denial of benefits only if it abused its
discretion. See Corry v. Liberty Life Assurance Co. of Boston, 499 F.3d 389, 397
(5th Cir. 2007) (citing Vega v. Nat’l Life Ins. Serv., Inc., 188 F.3d 287, 295 (5th
Cir. 1999) (en banc)).

Under the abuse of discretion standard, the plan

administrator’s decision will prevail if it “is supported by substantial evidence
and is not arbitrary and capricious.” Ellis v. Liberty Life Assurance Co. of
Boston, 394 F.3d 262, 273 (5th Cir. 2005). This court has defined “substantial
evidence” as “more than a scintilla, less than a preponderance, and is such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Id. “(quoting Deters v. Sec’y of Health, Educ. & Welfare, 789 F.2d
1181, 1185 (5th Cir. 1986)). “An arbitrary decision,” by contrast, “is one made
without a rational connection between the known facts and the decision or
between the found facts and the evidence.” Corry, 499 F.3d at 398 (internal
quotation marks and citation omitted). Our “review of the administrator’s
decision need not be particularly complex or technical; it need only assure that
the

administrator’s

decision

fall

somewhere

reasonableness—even if on the low end.”

on

a

continuum

of

Id. (internal quotation marks

omitted).
In determining whether there was an abuse of discretion, we also
consider

whether

the

plan

administrator

had

a

conflict

of

interest. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).
A plan administrator has a conflict of interest if it “both evaluates claims for
benefits and pays benefits claims.” Metro. Life Ins. Co. v. Glenn, 554 U.S. 105,
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112 (2008). However, a conflict of interest is “but one factor among many that
a reviewing judge must take into account.” Id. at 116. “[A] conflict of interest
. . . should prove more important (perhaps of great importance) where
circumstances suggest a higher likelihood that it affected the benefits
decision.” Id. at 117. “[A] reviewing court may give more weight to a conflict
of interest[] where the circumstances surrounding the plan administrator’s
decision suggest ‘procedural unreasonableness’”—that is, where the “method
by which [the plan administrator] made the decision was unreasonable.”
Schexnayder v. Hartford Life & Accident Ins. Co., 600 F.3d 465, 469–71 (5th
Cir. 2010) (quoting Glenn, 554 U.S. at 118). 1
III
Davis argues that Aetna’s decision to terminate Davis’s disability
benefits was procedurally unreasonable in light of its structural conflict of
interest.

In support, Davis avers that Aetna gave greater weight to the

opinions of its peer review physicians over her treating physician, Dr.
Cheatum, and she alleges that Aetna failed to provide the peer review
physicians with all of the relevant medical evidence. Davis further argues that
Aetna abused its discretion by (1) relying on peer review physicians who were
not properly qualified; (2) rejecting Davis’s self-reporting regarding her

Davis argues that because of Aetna’s conflict of interest and the procedural
unreasonableness by which it terminated her benefits, the district court should have accorded
less deference to Aetna’s decision. Davis’s argument misapprehends applicable case law.
While procedural unreasonableness is a factor that a court must consider in determining
what weight to accord a plan administrator’s conflict of interest, even where such evidence
suggests that more weight should be given to a conflict, it has no effect on the standard of
review. See Holland v. Int’l Paper Co. Ret. Plan, 576 F.3d 240, 247 n.3 (5th Cir. 2009)
(explaining that the Supreme Court’s decision in Glenn “directly repudiated the application
of any form of heightened standard of review to claims denials in which a conflict of interest
is present”). We will therefore review Aetna’s decision to terminate Davis’s benefits for an
abuse of discretion.
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condition; and (3) placing improper weight on the surveillance and social media
investigation evidence.
A
Davis first asserts that Aetna, which has a structural conflict of interest
in that it is both the administrator and insurer of the disability plan, acted in
a procedurally unreasonable manner. “Procedural unreasonableness” means
simply that the “method by which [the plan administrator] made the decision
was unreasonable.” Schexnayder, 600 F.3d at 469–71. In Metropolitan Life
Insurance Co. v. Glenn, the Supreme Court considered a similar claim to that
raised by Davis. The plan administrator had initially urged the claimant to
argue to the Social Security Administration that she could not work, but then
when it did its own review the plan administrator found that she could in fact
perform sedentary work and was therefore ineligible for disability benefits.
See 554 U.S. at 118. The Court observed that this “course of events . . .
suggested procedural unreasonableness.” Id. The Court added that the fact
that the plan administrator relied on medical reports that favored the denial
of benefits while ignoring reports that reached the opposite conclusion and
failed to provide the medical experts with all of the evidence further
demonstrated procedural unreasonableness. Id.
Davis alleges that, like the plaintiff in Glenn, Aetna’s decision was
procedurally unreasonable because Aetna also favored the medical reports that
supported denying her benefits and also failed to give the peer review
physicians all of the pertinent medical evidence. However, the similarities
between this case and Glenn are only superficial. Unlike in Glenn, Aetna and
the SSA reached the same conclusion that Davis was not entitled to benefits.
Second, although the Supreme Court’s decision does not go into much detail,
the Sixth Circuit’s lengthy discussion of the facts in Glenn shows that Davis’s
claim is readily distinguishable. Moreover, the Sixth Circuit found that in
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denying the claimant’s benefits, the plan administrator failed to explain why
it had credited a “brief form” from the claimant’s treating physician that stated
she was capable of working in a sedentary position, but had ignored every
single one of the treating physician’s more detailed reports that reached the
opposite conclusion. Glenn v. MetLife, 461 F.3d 660, 672 (6th Cir. 2006), aff’d
sub nom. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008). The Sixth Circuit
also found that the plan administrator withheld from the peer review physician
evidence from the claimant’s treating physician that concluded the claimant
could not return to work, but provided other evidence that supported the
conclusion that the claimant could perform a sedentary job. Id. at 671–72, 674.
On the basis of this evidence, the Sixth Circuit concluded that the plan
administrator’s decision “was not the product of a principled and deliberative
reasoning process,” and was therefore “arbitrary and capricious.” Id. at 674.
Unlike the plan administrator in Glenn, Aetna did not ignore or
mischaracterize the recommendations of Dr. Cheatum, or rely on medical
reports that ignored his diagnosis and conclusions.

Rather, Aetna placed

greater weight on the conclusions of Drs. Braun and Ayyar, who, upon review
of the relevant medical evidence, including Dr. Cheatum’s notes, and after
discussing their findings with Dr. Cheatum, disagreed with Dr. Cheatum’s
conclusions that Davis was permanently disabled. This is clearly permissible.
See, e.g., Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003)
(noting that while “[p]lan administrators . . . may not arbitrarily refuse to
credit a claimant’s reliable evidence, including the opinions of a treating
physician,” ERISA does not require plan administrators to accord special
deference to the opinions of a claimant’s treating physicians); Corry, 499 F.3d
at 401 (plan administrator did not abuse its discretion in crediting its
consulting physicians over the claimant’s treating physicians; this merely
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constituted a “battle of the experts,” where the administrator was “vested with
[the] discretion to choose one side over the other”).
Similarly, while Davis is correct that a plan administrator cannot pick
and choose the evidence it provides to peer reviewers in an effort to obtain a
favorable report that supports its desired outcome, that is not what Aetna did.
In his report, Dr. Braun stated that he considered the following records: Dr.
Cheatum’s office notes from November 23, 2008 to November 8, 2013; the video
surveillance; and the background records check. Dr. Braun also stated that he
had conducted a peer-to-peer conversation with Dr. Cheatum. Aetna did not
withhold contradictory evidence, and Davis does not explain how Aetna’s
failure to provide Dr. Braun with additional evidence affected his conclusions.
Davis contends that Aetna should have provided Dr. MacGuire’s report, but it
was dated July 12, 2010, and did not concern Davis’s eligibility for LTD. Dr.
Braun stated in his report that he was aware of the IME and its conclusions,
and he was indisputably aware of Dr. Cheatum’s diagnosis and conclusions.
Thus, the additional materials would likely not have had an effect on Dr.
Braun’s opinion.
Dr. Ayyar reviewed Davis’s medical records from 2010 to 2014, including
Dr. Cheatum’s office notes, x-rays, the IME report, lab results, and the
surveillance report and video. Like Dr. Braun, Dr. Ayyar agreed with Dr.
Cheatum’s conclusions that Davis suffered from lupus, but disagreed that the
evidence showed a need for any continuous medically necessary limitations or
restrictions. Although Dr. Ayyar did not review all of the Worksheets, the
Worksheets simply restate Dr. Cheatum’s diagnosis that Davis was completely
disabled. Davis does not explain how Dr. Ayyar’s conclusions would have
differed had he been provided with the Worksheets.
In sum, the record does not reveal any evidence that would allow us to
draw a reasonable inference that Aetna’s structural conflict of interest may
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have influenced its benefits decision.

We therefore conclude that Aetna’s

structural conflict of interest itself need not be accorded particularly great
weight when considering whether Aetna abused its discretion. Cf. Glenn, 554
U.S. at 117 (conflict of interest should prove more important where
circumstances suggest that the conflict affected the benefits decision).
B
Davis next assails the evidence supporting Aetna’s decision by
challenging the qualifications of Drs. Braun and Ayyar, both occupational
medicine specialists. Davis argues that neither of them are board certified in
rheumatology, Dr. Cheatum’s

specialty.

ERISA regulations require plan

administrators to utilize peer reviewers that have “appropriate training and
experience in the field of medicine involved in the medical judgment.” 29
C.F.R. § 2560.503-1(h)(3). However, we have held that a plan administrator
does not abuse its discretion merely by selecting a reviewing physician who
does not have the exact same specialty as the claimant’s treating physician.
See, e.g., Burtch v. Hartford Life & Accident Ins. Co., 314 F. App’x 750, 753 n.3
(5th Cir. 2009) (per curiam) (plan administrator did not abuse its discretion by
selecting an internist with no specialized training in pulmonology to review the
claimant’s emphysema as a peer reviewer). 2
As the district court noted, Aetna did not request review by a specialist
from a completely unrelated field of medicine; both Drs. Braun and Ayyar,
occupational medicine specialists, had the “appropriate training and
experience in the field of medicine involved in the medical judgment.” See 29
C.F.R. § 2560.503-1(h)(3). Davis does not explain how their qualifications
rendered them unsuited to determine whether she was capable of working in

Although Burtch is not “controlling precedent,” it “may be [cited as] persuasive
authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).
2

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“any reasonable occupation.” We thus conclude that Aetna did not abuse its
discretion in relying on their findings.
C
Davis also alleges that Aetna abused its discretion by ignoring and
rejecting Davis’s self-reports of pain, chronic fatigue, and short-term memory
loss.

Davis notes that Aetna’s only comment regarding her subjective

complaints in its denial letter was that she “claimed symptoms of fatigue,
anemia, malaise . . . pain in multiple joint sites . . . cognitive and memory
problems.”
Plan administrators may not ignore consistent complaints of pain as
subjective, but they are not required to give such complaints determinative
weight. See Corry, 499 F.3d at 400–01. Nor do plan administrators need to
explain why they credited evidence that contradicts a claimant’s reported
limitations. See Nord, 538 U.S. at 834.
Davis fails to show that that Aetna ignored or rejected Davis’s
complaints of pain or fatigue. Aetna relied on Drs. Braun and Ayyar, who
considered Davis’s reports of pain, fatigue, and short-term memory loss and
yet reached the conclusion that the medical evidence did not support the
conclusion that Davis was entitled to LTD benefits. Aetna did not abuse its
discretion in determining that Drs. Braun’s and Ayyar’s conclusions, which
took Davis’s reports into account, deserved more weight than Davis’s selfreporting.
D
Finally, Davis argues that the surveillance and social media
investigation evidence do not disprove Dr. Cheatum’s conclusions regarding
Davis’s limitations or refute Davis’s self-reporting regarding her condition.
Both Davis and Dr. Cheatum said that Davis had good days and bad days and
that the surveillance and social media captured her activity level on good days.
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Davis also argues that the surveillance captured Davis only driving and sitting
in her car for brief periods and that this does not establish that she could sit
for most of a work day or stand and walk on an occasional basis. She also
argues that Aetna improperly placed special importance on the fact that Davis
drove when she claimed she did not. Davis concedes that she drove, but
emphasizes that Dr. Cheatum expressly noted in each of his Worksheets that
Davis could drive. She asserts that her misstatement to Aetna was therefore
inconsequential.
The surveillance footage and social media search were only part of the
evidence that Aetna relied on to determine Davis’s eligibility. Aetna also based
its decision to terminate Davis’s LTD benefits on its own review of Dr.
Cheatum’s medical records and opinions, the IME report, an ALJ’s
determination that Davis was ineligible for SSDI, Davis’s self-reporting during
the relevant time, and the conclusions of the two peer reviewers. The peer
reviewers themselves reviewed Davis’s medical records and also discussed
Davis’s condition with Dr. Cheatum. Both peer reviewers, and in turn Aetna,
concluded that Davis possessed a level of functionality that would not prevent
her from working eight hours a day in a sedentary position, although Aetna
acknowledged that Davis may require temporary limitations or restrictions at
times when she experiences flares due to her medical condition.
Moreover, Aetna relied on the surveillance footage not only as evidence
to determine Davis’s actual limitations, but also as evidence to determine
whether Davis’s self-reporting was credible.

Aetna recognized that Davis

would likely have good days and bad days; however, it concluded from the
entirety of the evidence that Davis could work in a sedentary position with
occasional limitations when she experienced flares from lupus.
We therefore conclude that Aetna’s reliance on the surveillance and
social media evidence did not constitute an abuse of discretion.
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***
While there is some evidence in the record to support Davis’s claim for
disability, there is substantial evidence supporting Aetna’s decision to deny
her LTD benefits. Given the deferential abuse of discretion standard of review,
we are compelled to agree with the district court that Aetna did not abuse its
discretion. For these reasons, the district court’s judgment is AFFIRMED.

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