Raymond Shaw v. AT&T Umbrella Benefit Plan

Filing

OPINION and JUDGMENT filed : The case is REMANDED to the district court for entry of an order awarding Raymond Shaw long-term disability benefits. Decision for publication. R. Guy Cole, Jr., Chief Judge, (AUTHORING); Ronald Lee Gilman and Raymond M. Kethledge (DISSENTING), Circuit Judges.

Case: 14-2224

Document: 34-2

Filed: 07/29/2015

Page: 1

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0171p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

RAYMOND SHAW,
Plaintiff-Appellant,
v.

┐
│
│
│
│

No. 14-2224

>

AT&T UMBRELLA BENEFIT PLAN NO. 1,
Defendant-Appellee.

│
│
│
┘

Appeal from the United States District Court
for the Eastern District of Michigan at Ann Arbor.
No. 5:13-cv-11461—Judith E. Levy, District Judge.
Argued: June 10, 2015
Decided and Filed: July 29, 2015
Before: COLE, Chief Judge; GILMAN and KETHLEDGE, Circuit Judges.
_________________
COUNSEL
ARGUED: Robert B. June, LAW OFFICE OF ROBERT JUNE, P.C., Ann Arbor, Michigan,
for Appellant. Laura A. Lindner, LITTLER MENDELSON, P.C., Milwaukee, Wisconsin, for
Appellee. ON BRIEF: Robert B. June, LAW OFFICE OF ROBERT JUNE, P.C., Ann Arbor,
Michigan, for Appellant. Laura A. Lindner, LITTLER MENDELSON, P.C., Milwaukee,
Wisconsin, for Appellee.
COLE, C.J., delivered the opinion of the court which GILMAN, J., joined.
KETHLEDGE, J. (pg. 19), delivered a separate dissenting opinion.

1

Case: 14-2224
No. 14-2224

Document: 34-2

Filed: 07/29/2015

Shaw v. AT&T Umbrella Plan

Page: 2
Page 2

_________________
OPINION
_________________
COLE, Chief Judge. Plaintiff Raymond Shaw sued defendant AT&T Umbrella Benefit
Plan (“the Plan”), alleging that the Plan denied his claim for long-term disability (“LTD”)
benefits in violation of the Employee Retirement Income Security Act of 1974 (“ERISA”). The
district court granted summary judgment to the Plan, finding that the Plan had properly denied
Shaw benefits. Because we find that the Plan acted arbitrarily and capriciously in denying Shaw
LTD benefits, we reverse the district court’s judgment. Further, because Shaw has demonstrated
that he was denied benefits to which he was clearly entitled, we remand this case to the district
court and direct it to enter an order awarding Shaw LTD benefits.
I. BACKGROUND
Shaw is a 39-year-old male who was employed as a customer service representative for
Michigan Bell until he stopped working as a result of chronic neck pain. Shaw was covered
under the AT&T Midwest Disability Benefits Program, a component of the AT&T Umbrella
Benefit Plan No. 1.
A. Disability Plan
Under the disability plan, short-term disability (“STD”) benefits of full or partial wage
replacement are available to employees for up to 52 weeks. To be eligible for STD benefits, an
employee must have a “sickness, pregnancy, or an off-the-job illness or injury that prevents
[him] from performing the duties of [his] job (or any other job assigned by the Company for
which [he is] qualified) with or without reasonable accommodation.” (R. 15-5, PageID 1129.)
After STD benefits run out, an employee may be eligible for LTD benefits. To be eligible for
such benefits, an employee must have “an illness or injury, other than accidental injury arising
out of and in the course of employment by the Company or a Participating Company, supported
by objective Medical Documentation.” (Id. at 1142.) Further, “[s]uch illness or injury [must]
prevent[] [him] from engaging in any occupation or employment (with reasonable
accommodation as determined by the Claims Administrator), for which [he is] qualified or may

Case: 14-2224
No. 14-2224

Document: 34-2

Filed: 07/29/2015

Shaw v. AT&T Umbrella Plan

Page: 3
Page 3

reasonably become qualified based on education, training or experience.” (Id.) In determining
eligibility for either STD or LTD benefits, the Plan reserves the right to conduct its own
“examination by a Physician chosen by the Claims Administrator, if the Claims Administrator
determines that such an examination is necessary.” (Id. at 1134, 1146.)
The disability plan provides that “[t]he Plan Administrator (or, in matters delegated to
third parties, the third party that has been so delegated) will have sole discretion to interpret [the
disability plan], including . . . determinations of coverage and eligibility for benefits, and
determination of all relevant factual matters.” (Id. at 1156.) The disability plan also states that
“[t]he Claims Administrator has been delegated authority by the Plan Administrator to determine
whether a particular Eligible Employee who has filed a claim for benefits is entitled to benefits”
and that “[t]he Appeals Administrator has been delegated authority by the Plan Administrator to
determine whether a claim was properly decided by the Claims Administrator.” (Id.)
Sedgwick Claims Management Services, Inc. (“Sedgwick”) is the third party that
administers benefits claims and appeals. Sedgwick’s AT&T Integrated Disability Service Center
(“IDSC”) handles disability-benefits claims. Sedgwick’s Quality Review Unit (“QRU”) decides
appeals of denied disability claims.
B. Shaw’s STD Benefits
Shaw suffered from chronic neck pain for years.

On August 12, 2009, Sedgwick

contacted Shaw about his absence from work and informed him that he might be eligible for
STD benefits. To qualify, Sedgwick told Shaw to submit medical documentation demonstrating
that his illness or injury “prevents [him] from performing the duties of [his] job with or without
reasonable accommodations.” (R. 15-1, PageID 708.)
After “a thorough review” of Shaw’s medical documentation, Sedgwick notified Shaw on
September 17, 2009, that his STD benefits claim had been approved retroactively to August 7,
2009. Over the course of the next year, Sedgwick conducted various reviews and reapproved
Shaw’s STD benefits claim on numerous occasions.
Throughout his time receiving STD benefits, Shaw was treated by Dr. Laura Reincke, a
family-medicine practitioner. Dr. Reincke ordered cervical epidural steroid injections to manage

Case: 14-2224
No. 14-2224

Document: 34-2

Filed: 07/29/2015

Shaw v. AT&T Umbrella Plan

Page: 4
Page 4

his pain. According to Dr. Reincke, these injections helped, but Shaw was “still getting neck
pain.” (R. 14-1, PageID 131.) In her medical charts, Dr. Reincke reported that Shaw was unable
to drive longer than a half-hour and could “only sit for 20 min[utes]” due to his condition. (R.
14-3, PageID 262.) In November 2009, Dr. Reincke recommended that Shaw contact Dr. Neil
Pasia, an orthopedic specialist, for further evaluation.
Dr. Pasia examined Shaw in December 2009 and January 2010. On December 15, 2009,
Dr. Pasia ordered an MRI of Shaw’s cervical spine. The MRI revealed a “herniated nucleus
pulposus at C6/7 causing right foraminal stenosis” and a “right paracentral disc bulge with
effacement of the thecal sac.” (R. 14-1, PageID 138.) A physical examination by Dr. Pasia also
revealed “some paravertebral spasm at the base of the neck” and “limited range of motion with
flexion, extension, rotation, and bending secondary to pain.” (Id.) However, the Spurling’s test1
result was negative. Dr. Pasia told Shaw that he may benefit from a cervical discectomy and
fusion and that surgery “would allow him to increase his current level of activity including job
functions and would decrease his pain medication intake.” (R. 14-2, PageID 140.) Dr. Pasia
also informed Shaw of the risks of surgery, including “bleeding, infection, decreased or loss of
motion, malunion, nonunion, need for further surgery, nerve damage, dural tear, paralysis, heart
attack, and/or potential death.” (R. 14-1, PageID 137.)
Shaw was evaluated further by Dr. Devon Hoover, a neurologist. On May 28, 2010, Dr.
Hoover found that Shaw had “neuroforaminal narrowing at C5-6 and C6-7.” (R. 14-4, PageID
325.) Dr. Hoover opined, “[t]hough the symptoms seem a bit pronounced for the MRI findings, I
do believe the MRI likely explains the pain. . . . I do feel that he would be a candidate for a C5-6
and C6-7 anterior cervical discectomy and fusion. . . . At this point, he wants to do physical
therapy and we will see him back in a couple of months to reassess.” (Id.)
While receiving STD benefits, Shaw was also treated by Dr. Pasia’s colleague, Dr.
Matthew Sciotti. On June 30, 2010, Dr. Sciotti examined Shaw. His physical examination
revealed “reduced range of motion” and “slight pain to palpation over the cervical paraspinal

1

Physicians conduct a Spurling’s test to assess nerve root compression and cervical radiculopathy by
turning the patient’s head and applying downward pressure. A positive Spurling’s sign indicates that the neck pain
radiates to the area of the body connected to the affected nerve. Spurling’s Test, Physiopedia.com,
http://www.physio-pedia.com/Spurling’s_Test (last visited July 12, 2015).

Case: 14-2224
No. 14-2224

Document: 34-2

Filed: 07/29/2015

Shaw v. AT&T Umbrella Plan

Page: 5
Page 5

muscles.” (Id. at 353.) The “Spurlings [were] negative bilaterally.” (Id.) Dr. Sciotti also
performed an electromyography (“EMG”), with a nerve conduction study to test the electrical
activity of Shaw’s muscles. The EMG revealed “few spontaneous waveforms in the right triceps
and cervical paraspinal muscles.” (Id. at 352.) Dr. Sciotti referred Shaw to the Matrix Pain
Management Clinic.
In June and July of 2010, Shaw saw a physical therapist, Dr. Sandy Payne. Shaw
reported he was “having less pain [and] more freedom of [movement] after treatment.” (R. 14-3,
PageID 237.) However, he demonstrated “a very low tolerance for light exercise and minimal
head movement with . . . increased pain.” (Id.) He also did not “demonstrate the tolerance for
progression of manual techniques or exercise due to reported pain.” (Id. at 241.) Shaw had
significant range-of-motion limitations, such as a cervical flexion of two degrees, an extension of
10 degrees, and a lateral flexion of 10 degrees. (Id. at 234.) Additionally, Dr. Payne reported
that Shaw had significant functional limitations, such as an inability to stand for more than 30
minutes, walk for more than 10 minutes, and lift more than 10 pounds with his left hand. (Id. at
235.)
In July 2010, Shaw also visited the Matrix Pain Management Clinic and was evaluated by
Dr. Diane Czuk-Smith, an anesthesiologist. Shaw reported “[t]he pain interfere[d] with his daily
activities always” and “[h]is sleeping pattern [was] poor, sleeping about 3 hours maximum,
waking up with the pain.” (R. 14-7, PageID 491.) Further, a physical examination showed
“spinous process tenderness C2 through 7 and T4 through 6,” “left facet tenderness C3 through
T5 and right C3 through 7,” and “suprascapular and upper trapezius muscle spasm.” (Id. at 493.)
Shaw’s range of motion from the neck was “positive at approximately 10 degrees flexion and
extension.” (Id.) Shaw exhibited “extremely limited” head turning causing “significant pain.”
(Id.)
C. Shaw’s Application for LTD Benefits
On April 22, 2010, Sedgwick sent Shaw a letter informing him that his STD benefits
would expire on August 7, 2010, and that he might be eligible for LTD benefits. In order to
determine Shaw’s eligibility, the letter instructed Shaw to complete the LTD application packet.
The packet required, among other things, Shaw to provide new authorizations for the release of

Case: 14-2224
No. 14-2224

Document: 34-2

Filed: 07/29/2015

Shaw v. AT&T Umbrella Plan

Page: 6
Page 6

medical records and “[p]roof that [he had] applied for Social Security Disability benefits.” (R.
14-1, PageID 112.)
On May 14, 2010, a Sedgwick claims representative called Shaw to discuss the LTD
application packet. The representative explained the LTD application process and obtained
information about Shaw’s condition. On June 15, 2010, Shaw submitted his application.
On July 27, 2010, Sedgwick sent Shaw’s application for LTD benefits to Dr. Xico
Roberto Garcia, a family-practice physician.

After reviewing the information, Dr. Garcia

concluded that the “[m]edical information provided [did] not support incapacity from a sedentary
job occupation.” (R. 14-1, PageID 84.) Dr. Garcia noted that although Shaw’s “[t]reating
provider state[d] today that the employee ha[d] persistent neck pain, right upper extremity
radiculopathy, limited neck range of motion, and inability to drive[,] . . . [t]here [were] no recent
objective range of motion measurements provided . . . [and] no recent findings to support
functional impairment.” (Id. at 83.) However, Dr. Garcia acknowledged that he received rangeof-motion measurements on July 6, 2010.
As part of Shaw’s application, on July 30, 2010, Srilakshmi Sennerikuppam, a jobaccommodation specialist, performed a “transferrable skills assessment” that took into
consideration Shaw’s “restrictions and limitations.” Sennerikuppam stated that a case manager
had asked that it be assumed that “Shaw can perform sedentary work.” (R. 14-3, PageID 251.)
According to Sennerikuppam, sedentary work “involves sitting most of the time, but may
involve walking or standing for brief periods of time.”

(Id.)

Given his experience and

education, Sennerikuppam identified three sedentary occupations Shaw could perform:
information clerk, telephone solicitor, and customer service representative. (Id. at 252.)
D. Shaw’s Denial of LTD Benefits
On August 18, 2010, Sedgwick sent a letter to Shaw informing him that he did not
qualify for LTD benefits based on a review of Dr. Reincke’s and Dr. Payne’s medical
documentation. Shaw was told that “[c]linical information does not document a severity of your
condition(s) that supports your inability to perform any occupation.” (Id. at 267.) Sedgwick

Case: 14-2224
No. 14-2224

Document: 34-2

Filed: 07/29/2015

Page: 7

Shaw v. AT&T Umbrella Plan

Page 7

found that although Shaw’s condition “may warrant ongoing treatment, the information reviewed
does not provide clinical evidence of total disability from August 8, 2010.” (Id.)
Sedgwick concluded that Shaw’s doctors’ notes did “not provide specific objective
physical examination findings to indicate functional impairment.” (Id.) Specifically, Sedgwick
found “no specific measurements of range of motion,” “no new neurological testing and motor
strength testing,” or “recent imaging studies or any other type of studies or findings to indicate
functional impair[ment] from [his] sedentary job duties or any other type of job duties.” (Id.)
Sedgwick informed Shaw that the job specialist identified three alternative occupations that he
was qualified to perform based on his training, education, and experience. The denial letter from
Sedgwick included an outline of the appeals procedure. The letter stated that Shaw or his
provider had to submit “[a] clear outline of your level of functionality” and “[f]indings from
physical examinations.” (Id. at 272.)
E. Shaw’s Appeal of the Denial of LTD Benefits
On February 15, 2011, Shaw appealed the denial of his LTD benefits claim. Along with
his appeal form, Shaw attached numerous exhibits documenting his condition, including the
Michigan Disability Parking Placard signed and certified by Dr. Reincke, the Matrix Pain
Management Clinic report, Dr. Reincke’s residual-functional-capacity questionnaire, and the
medical records of Drs. Sciotti, Pasia, and Hoover.
The functional-capacity questionnaire, provided by the Social Security Administration
(“SSA”) to assess Shaw’s ability to work, was completed by Dr. Reincke on February 9, 2011.
Dr. Reincke’s assessment showed that Shaw had persistent neck pain aggravated by prolonged
sitting and standing.

Dr. Reincke indicated that Shaw “[c]onstantly” had “pain or other

symptoms severe enough to interfere with attention and concentration needed to perform even
simple work tasks.” (R. 14-3, PageID 304 (emphasis in original).) Dr. Reincke noted that Shaw
could sit or stand only for 30 minutes at a time and would need to lie down for an hour at a time
to recuperate. In a typical eight-hour workday, Dr. Reincke said Shaw could stand or walk for
less than two hours. Overall, Dr. Reincke said Shaw has “good days” and “bad days.” (Id. at
306.)

Case: 14-2224
No. 14-2224

Document: 34-2

Filed: 07/29/2015

Page: 8

Shaw v. AT&T Umbrella Plan

Page 8

In addition to submitting these materials, Shaw requested an additional 30 days to submit
further medical documentation. On February 21, 2011, Sedgwick sent Shaw a letter granting his
request. On March 17, 2011, Shaw submitted additional medical documentation, including the
entire examination report from the Matrix Pain Mangement Clinic, further records from Dr.
Reincke, and records from Mercy Hospital.
On March 21, 2011, Shaw also submitted an Employability Assessment by Jen Kaiser or
Jennifer Turecki. The report states that Shaw’s “prognosis is poor. . . . [and he] experiences
headaches with the pain level of 7 to 10 . . . 3 to 4 times per week, lasting 4 to 24 hours each
occurrence.”

(R. 14-10, PageID 604.)

The report concludes that Shaw cannot engage in

“competitive employment” because “[t]here is no competitive employment that allows an
individual to lie down” or “allow[s] for missing more than 2 days per month.” (Id.)
Sedgwick forwarded Shaw’s file to two independent physician advisors to perform a
medical review: Dr. Imad Shahhal and Dr. Jamie Lee Lewis. On March 23, 2011, Dr. Shahhal,
a neurosurgeon, called and left messages with Drs. Reinke and Hoover, requesting that they call
back within 24 hours; otherwise, he would complete the report “based on available medical
information.” (R. 14-10, PageID 614–15.) Drs. Reinke and Hoover did not call back in the time
provided and Dr. Shahhal completed the report on March 28, 2011. After reviewing Shaw’s
medical documentation, Dr. Shahhal concluded that Shaw was “not disabled from any
occupation.”

(Id. at 616.)

As the rationale for this conclusion, Dr. Shahhal stated that

“[a]lthough the patient does have evidence of cervical disc disease and radiculopathy over a
prolonged period of time, the most recent examination of 9/03/10 showed a positive Spurling test
on the right with normal strength, sensation, and reflexes.” (Id.)
On March 23, 2011, Dr. Lewis, a specialist in physical medicine and rehabilitation and
pain medicine, also called and left messages with Drs. Reincke, Smith, Payne, and Pasia,
requesting that they call back within 24 hours; otherwise, he would complete the report “based
on available medical information.” (Id. at 619–20.) They did not call back in the time specified
and Dr. Lewis completed the report on March 28, 2011. After reviewing Shaw’s medical
documentation, Dr. Lewis concluded that Shaw was “not disabled from any occupation.” (Id. at
621.) Dr. Lewis found that because Shaw decided against surgery, “medical documentation

Case: 14-2224
No. 14-2224

Document: 34-2

Filed: 07/29/2015

Page: 9
Page 9

Shaw v. AT&T Umbrella Plan

would suggest noncompliance with medical care.” (Id. at 622.) Dr. Lewis further concluded that
“[t]he above findings would not support a musculoskeletal condition that would preclude
performance of sedentary work, nor is there evidence that performance of sedentary work would
result in objectively measurable exacerbation of an underlying physical condition that would be
expected to further exacerbate underlying pain level.” (Id.)
While Sedgwick’s physician advisers conducted their review, on April 22, 2011, the SSA
granted Shaw a “fully favorable decision.”

(14-11, PageID 662.)

The SSA found Shaw

“disabled from July 31, 2009” as a result of “cervical herniation at C6-7 with radiculopathy, and
degenerative disc disease at C5-6.” (Id. at 668, 670.) It further found that Shaw’s “medically
determinable impairments could reasonably be expected to produce the alleged symptoms, and
that [Shaw’s] statements concerning the intensity, persistence and limiting effects of these
symptoms [were] generally credible.” (Id. at 671.)
On April 28, 2011, Sedgwick sent Shaw a letter informing him that his claim for LTD
benefits had been denied.

Sedgwick found that Shaw did not provide “objective medical

documentation” showing that he cannot engage in “any occupation or employment . . . for which
[he] is qualified.” (Id. at 674.) Sedgwick stated that the QRU and two independent physician
advisors reviewed all of the information supporting his claim, which included, among other
things, documentation from Drs. Reincke, Pasia, Sciotti, Czuk-Smith, and Hoover. The letter
also noted the transferable-skills analysis that identified three alternative occupations Shaw was
qualified to perform based on his “training, education and experience.”

(Id. at 675.)

Accordingly, Sedgwick upheld the denial of Shaw’s LTD benefits.
F. Procedural History
On March 31, 2013, Shaw filed a complaint against the Plan in the United States District
Court for the Eastern District of Michigan, alleging that he was wrongly denied LTD benefits
owed under the terms of the Plan. On February 28, 2014, the parties filed cross-motions for
judgment on the administrative record. On September 8, 2014, the district court granted the
Plan’s motion and entered judgment dismissing Shaw’s case with prejudice. Shaw now appeals
the district court’s judgment.

Case: 14-2224
No. 14-2224

Document: 34-2

Filed: 07/29/2015

Page: 10
Page 10

Shaw v. AT&T Umbrella Plan
IV. ANALYSIS

A. Standard of Review
Under Section 502 of ERISA, a beneficiary or plan participant may sue in federal court
“to recover benefits due to him under the terms of his plan, to enforce his rights under the terms
of the plan, or to clarify his rights to future benefits under the terms of the plan.” 29 U.S.C.
§ 1132(a)(1)(B). A claim of denial of benefits in an ERISA case “is to be reviewed under a de
novo standard unless the benefit plan gives the [plan’s] administrator or fiduciary discretionary
authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone
Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).

When the plan grants the plan

administrator such discretion, then a court must review the administrator’s denial of benefits
under the arbitrary-and-capricious standard. Marks v. Newcourt Credit Grp., Inc., 342 F.3d 444,
456 (6th Cir. 2003).
Under either de novo review or arbitrary-and-capricious review, generally a court may
consider only the evidence available to the administrator at the time the final decision was made.
McClain v. Eaton Corp. Disability Plan, 740 F.3d 1059, 1064 (6th Cir. 2014). On appeal, we
review de novo the district court’s finding that the administrator’s denial was not arbitrary and
capricious. Id.
Shaw argues that de novo review applies here because there is insufficient evidence
showing that the Plan gave Sedgwick discretionary authority.

However, the controlling

agreement, the AT&T Midwest Disability Benefits Program, explicitly states that “[t]he Plan
Administrator (or, in matters delegated to third parties, the third party that has been so delegated)
will have sole discretion to interpret [the disability plan], including . . . determinations of
coverage and eligibility for benefits.” (R. 15-5, PageID 1156.) The plan administrator delegated
to the claims administrator the authority “to determine whether a particular Eligible Employee
who has filed a claim for benefits is entitled to benefits” and delegated to the appeals
administrator the authority to “determine whether a claim was properly decided by the Claims
Administrator.” (Id.)

Case: 14-2224
No. 14-2224

Document: 34-2

Filed: 07/29/2015

Shaw v. AT&T Umbrella Plan

Page: 11
Page 11

The contact-information section in the Plan identifies the IDSC as the claims
administrator and the QRU as the appeals administrator. The IDSC and the QRU are both
divisions within Sedgwick. Therefore, Sedgwick has “sole discretion to interpret the Program,
including, but not limited to, interpretation of the terms of the Program, determinations of
coverage and eligibility for benefits, and determination of all relevant factual matters.” (Id.)
Thus, the arbitrary-and-capricious standard applies.
B. Merits
Under the arbitrary-and-capricious standard, we must uphold the plan administrator’s
decision if it is “the result of a deliberate, principled reasoning process” and “supported by
substantial evidence.” DeLisle v. Sun Life Assur. Co. of Canada, 558 F.3d 440, 444 (6th Cir.
2009) (quoting Glenn v. MetLife, 461 F.3d 660, 666 (6th Cir. 2006)). “When it is possible to
offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not
arbitrary or capricious.” Davis v. Ky. Fin. Cos. Ret. Plan, 887 F.2d 689, 693 (6th Cir. 1989)
(internal quotation marks omitted). However, arbitrary-and-capricious review is not a “rubber
stamp.” Cox v. Standard Ins. Co., 585 F.3d 295, 302 (6th Cir. 2009). “Several lodestars guide
our decision: ‘the quality and quantity of the medical evidence’; the existence of any conflicts of
interest; whether the administrator considered any disability finding by the Social Security
Administration; and whether the administrator contracted with physicians to conduct a file
review as opposed to a physical examination of the claimant.” Fura v. Fed. Express Corp. Long
Term Disability Plan, 534 F. App’x 340, 342 (6th Cir. 2013) (quoting Bennett v. Kemper Nat’l
Servs., Inc., 514 F.3d 547, 552–53 (6th Cir. 2008)).
After reviewing the record, we conclude that the Plan acted arbitrarily and capriciously in
denying Shaw LTD benefits. Although the Plan determined that there was not objective medical
documentation of Shaw’s inability to perform any occupation, it ignored favorable evidence
submitted by his treating physicians, selectively reviewed the evidence it did consider from the
treating physicians, failed to conduct its own physical examination, and heavily relied on nontreating physicians.

Case: 14-2224
No. 14-2224

Document: 34-2

Filed: 07/29/2015

Page: 12

Shaw v. AT&T Umbrella Plan

Page 12

1. Ignoring Favorable Evidence from Shaw’s Treating Physicians
“[P]lan administrators are not obliged to accord special deference to the opinions of
treating physicians.” Black & Decker Disability Plan v. Nord, 538 U.S. 822, 825 (2003).
However, they “may not arbitrarily refuse to credit a claimant’s reliable evidence, including the
opinions of a treating physician.” Id. at 834.
Here, the Plan completely ignored favorable evidence from Shaw’s treating physicians.
In rejecting Shaw’s claim for LTD benefits, the Plan stated there were “no specific
measurements of range of motion. There was no specific physical examination to indicate
functional impairment. There were no new neurological testing and motor strength testing.” (R.
14-3, PageID 267.) However, Shaw’s medical records provide just such information. Dr.
Payne’s physical-therapy records show that Shaw had significant range-of-motion limitations,
such as a cervical flexion of two degrees, an extension of 10 degrees, and a lateral flexion of 10
degrees.

Additionally, Dr. Payne’s records show that Shaw had significant functional

limitations, such as an inability to stand for more than 30 minutes, walk for more than 10
minutes, and lift more than 10 pounds with his left hand. Moreover, Shaw’s Matrix Pain
Management Clinic records provide specific range-of-motion limitations and the detailed results
of a physical examination.
According to these records, “Range of motion of the neck is positive at approximately
10 degrees flexion and extension. Head turning is extremely limited and eliciting significant
pain.” (R. 14-7, PageID 493.) The fact that the Plan made the “factually incorrect assertion[]”
that Shaw had not submitted specific measurements of range of motion supports a finding that
the Plan acted arbitrarily and capriciously. See Butler v. United Healthcare of Tenn., Inc.,
764 F.3d 563, 568 (6th Cir. 2014) (finding that the plan acted arbitrarily and capriciously in part
because it “ignored key pieces of evidence” and made “factually incorrect assertions”).
The Plan also ignored Dr. Reincke’s residual-functional-capacity questionnaire submitted
as part of Shaw’s appeal of the denial of LTD benefits. The questionnaire stated that Shaw
“[c]onstantly” had “pain or other symptoms severe enough to interfere with attention and
concentration needed to perform even simple work tasks.” (R. 14-3, PageID 304 (emphasis in
original).) More significantly, Dr. Reincke indicated on the questionnaire that Shaw could sit

Case: 14-2224
No. 14-2224

Document: 34-2

Filed: 07/29/2015

Shaw v. AT&T Umbrella Plan

Page: 13
Page 13

and stand for only 30 minutes at a time and had to lie down for an hour to recuperate afterwards.
A functional capacity evaluation “is generally a reliable and objective method of gauging the
extent one can complete work-related tasks.” Caesar v. Hartford Life & Accident Ins. Co.,
464 F. App’x 431, 435 (6th Cir. 2012) (internal quotation marks omitted); see also Brooking v.
Hartford Life & Accident Ins. Co., 167 F. App’x 544, 549 (6th Cir. 2006) (describing a
functional-capacity evaluation as “objective evidence” of the claimant’s back pain). Further,
these conclusions in Dr. Reincke’s residual-functional-capacity questionnaire are supported by
her earlier medical records, which noted that Shaw could “only sit for 20 minutes” (R. 14-3,
PageID 262), as well as the physical therapy records from Dr. Payne, which stated that Shaw
could stand for only 30 minutes and walk for only 10 minutes (Id. at 235).
Instead of offering evidence to contradict Dr. Reincke’s residual-functional-capacity
questionnaire’s conclusions, the Plan’s physician advisors simply ignored the questionnaire and
concluded that Shaw could perform sedentary work. “[A] plan may not reject summarily the
opinions of a treating physician, but must instead give reasons for adopting an alternative
opinion.” Elliott v. Metro. Life Ins. Co., 473 F.3d 613, 620 (6th Cir. 2006); see also Hayden v.
Martin Marietta Materials, Inc. Flexible Benefits Program, 763 F.3d 598, 608–09 (6th Cir.
2014) (finding that the plan acted arbitrarily and capriciously in denying benefits for a mental
disorder in part because the plan failed to “‘give reasons’ for rejecting a treating physician’s
conclusions”).
Finally, the Plan ignored favorable evidence from Shaw’s treating physicians by failing
to make a reasonable effort to speak with them.

Although the Plan’s physician advisors

attempted to contact each of Shaw’s treating physicians, they gave the treating physicians only
24 hours to respond to their requests before they made their disability decisions “based on
available medical information.” None of the physicians was able to meet this unreasonable
deadline.

Physicians, like other professionals, are busy and cannot always return calls

immediately. Thus, “although persons conducting a file review are not per se required to
interview the treating physician,” Helfman v. GE Grp. Life Assurance Co., 573 F.3d 383, 393
(6th Cir. 2009), the cursory manner in which the Plan attempted to contact Shaw’s treating
physicians is evidence that the Plan’s decision was not “the result of a deliberate, principled

Case: 14-2224
No. 14-2224

Document: 34-2

Filed: 07/29/2015

Shaw v. AT&T Umbrella Plan

Page: 14
Page 14

reasoning process.” DeLisle, 558 F.3d at 444; see Cooper v. Life Ins. Co. of N. Am., 486 F.3d
157, 168 (6th Cir. 2007) (“We find that [the doctor’s] haste to complete his report in disregard of
his explicit instructions to interview [the claimant’s] treating physicians was unreasonable,
especially because he allowed so little time before he ‘pulled the trigger.’”).
2. Selectively Reviewing Treating Physician Evidence
An administrator acts arbitrarily and capriciously when it “engages in a selective review
of the administrative record to justify a decision to terminate coverage.” Metro. Life Ins. Co. v.
Conger, 474 F.3d 258, 265 (6th Cir. 2007) (internal quotation marks omitted). Dr. Garcia
engaged in selective review when he concluded on July 29, 2010, that Shaw was not disabled
because “[t]here [were] no recent objective range of motion measurements provided.” (R. 14-1,
PageID 83.) But in the very next sentence, Dr. Garcia specifically notes that he received range
of motion measurements on July 6, 2010. Dr. Garcia fails to explain why these measurements
were not satisfactory.
Dr. Shahhal engaged in a selective review when he concluded that Shaw was not disabled
because his “exam on 09/03/10 showed a positive Spurling test on the right, with normal
strength, sensation, and reflexes.” (R. 14-10, PageID 616.) First, a “positive Spurling test”
indicates that the patient has neck pain radiating to the area of the body connected to the affected
nerve; if anything, a positive Spurling’s test is evidence of a disability. Second, although Shaw
may have had “normal strength, sensation, and reflexes” in his arms, Shaw’s disability stemmed
from pain in his neck. In the same examination on September 3, 2010, Dr. Hoover stated that
Shaw “continues to have pain in his neck and radiating in the right arm to the hand.” (R. 14-4,
PageID 323.)
Dr. Lewis also engaged in a selective review of the record when he suggested that Shaw
was noncompliant with medical advice because Shaw did not have surgery. Drs. Pasia and
Hoover recommended “C5-6 and C6-7 cervical discectomy and fusion” to “increase his current
level of activity including job functions . . . [and] decrease his pain medication intake.” (R. 14-4,
PageID 325; R. 14-2, PageID 140.) However, both doctors also informed Shaw of the risks of
surgery and identified physical therapy as an alternative and a more conservative treatment
option. Shaw chose to undergo physical therapy in June and July of 2010. There is nothing in

Case: 14-2224
No. 14-2224

Document: 34-2

Filed: 07/29/2015

Page: 15

Shaw v. AT&T Umbrella Plan

Page 15

the Plan that requires Shaw to pursue the more aggressive treatment recommended by doctors in
order to be eligible for LTD benefits.

Therefore, Dr. Lewis’s conclusion that Shaw was

noncompliant with medical advice constitutes a selective review of the record.
3. Failing to Conduct Its Own Physical Evaluation
“[T]here is nothing inherently improper with relying on a file review, even one that
disagrees with the conclusions of a treating physician.” Calvert v. Firstar Fin. Inc., 409 F.3d
286, 297 n.6 (6th Cir. 2005). However, we have held that the failure to conduct a physical
examination, where the Plan document gave the plan administrator the right to do so, “raise[s]
questions about the thoroughness and accuracy of the benefits determination.”

Helfman,

573 F.3d at 393 (quoting Calvert, 409 F.3d at 295).
Here, the Plan specifically reserved the right to conduct its own “examination by a
Physician chosen by the Claims Administrator, if the Claims Administrator determines that such
an examination is necessary.” (R. 15-5, PageID 1134, 1146.) However, the Plan’s physician
advisors failed even to attempt to conduct their own in-person evaluation of Shaw. This is
especially troubling because the Plan’s physician advisors “second-guess[ed] [Shaw’s] treating
physicians” and made “credibility determinations.” Judge v. Metro. Life Ins. Co., 710 F.3d 651,
663 (6th Cir. 2013).
The Plan second-guessed Shaw’s treating physicians when it credited the assumption of
the transferrable-skills analysis that “Mr. Shaw can perform sedentary work” over Dr. Reincke’s
conclusion that Shaw could not sit for more than 30 minutes at a time. In the letter denying
Shaw’s LTD benefits, the Plan relies in part on the transferrable-skills analysis as a reason for its
decision to deny him benefits. However, the entire issue before the Plan was whether Shaw
could perform sedentary work and Shaw’s treating physician, Dr. Reincke, concluded that he
could not sit for more than 30 minutes at a time. Given that a sedentary job is defined as “sitting
most of the time,” the Plan should have explained why it credited the flawed assumption of the
transferrable-skills analysis over Dr. Reincke’s findings.
The Plan made a credibility determination when it discounted Dr. Reincke’s medical
records because they were “based solely on Shaw’s own subjective complaints of pain.”

Case: 14-2224
No. 14-2224

Document: 34-2

Filed: 07/29/2015

Page: 16

Shaw v. AT&T Umbrella Plan

Page 16

(Appellee’s Br. at 22.) However, without ever examining Shaw, the Plan should not have made
a credibility determination about Shaw’s continuous reports of pain. See Fura, 534 F. App’x at
343 (“[The doctor] never examined [the claimant], so he had no first-hand knowledge of [the
claimant’s] pain.”); Smith v. Cont’l Cas. Co., 450 F.3d 253, 263–64 (6th Cir. 2006) (holding that
it was improper to rely on non-examining medical consultant to determine severity and
credibility of pain). As the Eleventh Circuit observed, “[t]here is, quite simply, no laboratory [ ]
test to diagnose chronic pain syndrome. . . . Chronic pain syndrome is a severely debilitating
medical condition that may be fully diagnosed only through long-term clinical observation.”
Lee v. BellSouth Telecomms., Inc., 318 F. App’x 829, 837 (11th Cir. 2009). Because chronic
pain is not easily subject to objective verification, the Plan’s decision to conduct only a file
review supports a finding that the decision-making was arbitrary and capricious.
4. Heavily Relying on Physician Consultants
“The Supreme Court has acknowledged ‘that physicians repeatedly retained by benefits
plans may have an incentive to make a finding of “not disabled” in order to save their employers
money and to preserve their own consulting arrangements.’” Elliott, 473 F.3d at 620 (quoting
Nord, 538 U.S. at 832); see also Butler, 764 F.3d at 569 (“That reviewing physicians paid by or
contracted with the insurer agree with its decision, though, does not prove that the insurer
reached a reasoned decision supported by substantial evidence.”).
Dr. Lewis’s conclusions have been questioned in numerous federal cases, in all of which
he was hired by Sedgwick. See, e.g., Holzmeyer v. Walgreen Income Prot. Plan for Pharmacists
& Registered Nurses, 44 F. Supp. 3d 821, 837 (S.D. Ind. 2014) (“The record review opinions of
Drs. Parisien and Lewis—upon which Sedgwick’s letter of termination principally relied—either
ignored or misconstrued the functional capacity evaluations proffered by [claimant’s] treating
physicians.”); James v. AT & T W. Disability Benefits Program, 41 F. Supp. 3d 849, 865–66, 883
(N.D. Cal. 2014) (finding that Dr. Lewis’s review ignored or misstated evidence by treating
physicians); May v. AT & T Integrated Disability, 948 F. Supp. 2d 1302, 1308 (N.D. Ala. 2013)
(finding that Sedgwick, including Dr. Lewis, “demonstrated more loyalty to the funding entity
which had employed it, than to its cestui que trust during the administrative process”), aff’d, 579
F. App’x 690 (11th Cir. 2014); Dudley v. Sedgwick Claims Mgmt. Servs., Inc., No. 3:11-CV-

Case: 14-2224
No. 14-2224

Document: 34-2

Filed: 07/29/2015

Shaw v. AT&T Umbrella Plan

Page: 17
Page 17

0028-G, 2011 WL 5080739, at *7 (N.D. Tex. Oct. 24, 2011) (finding for defendant but noting
that Dr. Lewis’s opinion was in direct conflict with the opinions of claimant’s treating
physicians), aff’d, 495 F. App’x 470 (5th Cir. 2012). Therefore, Dr. Lewis’s track record further
supports the conclusion that the Plan did not engage in a “deliberate, principled reasoning
process” in this case. Glenn, 461 F.3d at 666.
Based on the above review of Sedgwick’s decision-making process, we find that
Sedgwick’s denial of Shaw’s LTD benefits was arbitrary and capricious. “While none of the
factors alone is dispositive, we find that as a whole, they support a finding that [Sedgwick] did
not engage in a deliberate and principled reasoning process.” Helfman, 573 F.3d at 396. Any
other finding in the face of such flagrant errors would essentially turn judicial review of these
matters into a “rubber stamp.” Cox, 585 F.3d at 302.
C. Remedy
When a benefits plan is found to have acted arbitrarily and capriciously, we have two
options: award benefits to the claimant or remand to the plan administrator. Our court has
adopted the rule that “where the problem is with the integrity of the plan’s decision-making
process, rather than that a claimant was denied benefits to which he was clearly entitled, the
appropriate remedy generally is remand to the plan administrator.” Elliott, 473 F.3d at 622
(internal quotation marks and brackets omitted).
Remand here would be a useless formality. Although the plan’s decision-making process
was unquestionably flawed, it is also clear that Shaw was denied benefits to which he is entitled.
See Cooper, 486 F.3d at 171 (finding, in similar chronic-pain case, no need to remand the matter
to the administrator because objective medical evidence showed that the plaintiff was clearly
entitled to benefits); Kalish v. Liberty Mut./Liberty Life Assurance Co. of Boston, 419 F.3d 501,
513 (6th Cir. 2005) (concluding that the appropriate remedy was an immediate award of
benefits).
Shaw’s medical records contain objective medical evidence that he is disabled. Dr.
Reincke’s medical records and functional capacity evaluation show that Shaw is unable to sit or
stand for more than 30 minutes and has to lie down for an hour or more to recuperate. As stated

Case: 14-2224
No. 14-2224

Document: 34-2

Filed: 07/29/2015

Shaw v. AT&T Umbrella Plan

Page: 18
Page 18

earlier, a functional-capacity evaluation is “objective evidence” of a claimant’s disability.
Brooking, 167 F. App’x at 549; see also Caesar, 464 F. App’x at 435.
Further, Shaw’s MRI revealed a herniated nucleus pulposus at C6/7 causing right
foraminal stenosis and a right paracentral disc bulge with effacement of the thecal sac. A
physical examination by Dr. Pasia revealed “some paravertebral spasm at the back of the neck”
and “limited range of motion with flexion, extension, rotation, and bending secondary to pain.”
Shaw’s medical records contain positive and negative Spurling’s tests. (R. 14-1, PageID 90; R.
14-4, PageID 346; R. 14-10, PageID 616.) But Dr. Reincke has explained that Shaw’s condition
is subject to variability. An EMG revealed “few spontaneous waveforms in the right triceps and
cervical paraspinal muscles.” (R. 14-4, PageID 352.) Finally, there are specific measurements
demonstrating range-of-motion limitations. In similar cases where there has been objective
medical evidence that a claimant is disabled, we have awarded benefits without remanding. See,
e.g., Cooper, 486 F.3d at 171 (awarding benefits due to objective medical evidence showing
claimant was disabled); Kalish, 419 F.3d at 513 (same); Caesar, 464 F. App’x at 436 (same);
Brooking, 167 F. App’x at 550 (same). Given the substantial and objective medical evidence
demonstrating that Shaw is disabled, Shaw is entitled to LTD benefits.
V. CONCLUSION
For the foregoing reasons, we conclude that the Plan acted arbitrarily and capriciously in
denying Shaw LTD benefits, and remand this case to the district court to enter an order awarding
Shaw LTD benefits.

Case: 14-2224
No. 14-2224

Document: 34-2

Filed: 07/29/2015

Shaw v. AT&T Umbrella Plan

Page: 19
Page 19

_________________
DISSENT
_________________
KETHLEDGE, Circuit Judge, dissenting. To qualify for long-term disability benefits
under AT&T’s Plan, Raymond Shaw needed to show by “objective Medical Documentation”
that he would not be able to “engag[e] in any occupation or employment . . . for which [he is]
qualified or may reasonably become qualified[.]” The Plan administrator found that Shaw was
able to engage in sedentary work, and so denied his claim. Our review of that decision is
deferential: we ask only whether the Plan’s decision was arbitrary or capricious. See Borda v.
Hardy, Lewis, Pollard & Page, P.C., 138 F.3d 1062, 1066 (6th Cir. 1998).
The Plan’s decision was neither of those things. Shaw failed to show, with “objective
medical documentation,” that his condition was so severe as to prevent him from working in any
occupation.

True, Shaw’s family-practice doctor did once suggest—in a handwritten note

supported by scant medical analysis—that Shaw would need to take 60-minute breaks every
30 minutes. But three specialists who reviewed Shaw’s medical file each opined that he could
nevertheless perform sedentary work. The Plan’s reliance on those opinions was not arbitrary
and capricious. I respectfully dissent.