Stanley Rothe v. Duke Energy Long Term Dis. P., et al

Filing

OPINION filed : we AFFIRM the district court's grant of summary judgment, decision not for publication. R. Guy Cole , Jr., Chief Circuit Judge (Authoring); Jeffrey S. Sutton and Raymond M. Kethledge, Circuit Judges.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0250n.06
Case No. 16-4225
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
STANLEY D. ROTHE,
Plaintiff-Appellant,
v.
DUKE ENERGY LONG TERM DISABILITY
PLAN;
DUKE
ENERGY
BENEFITS
COMMITTEE; LIBERTY LIFE ASSURANCE
COMPANY OF BOSTON,

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May 02, 2017
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE SOUTHERN
DISTRICT OF OHIO

OPINION

Defendants-Appellees.

BEFORE:

COLE, Chief Judge; SUTTON and KETHLEDGE, Circuit Judges.

COLE, Chief Judge. Stanley Rothe brought this case under the Employee Retirement
Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., after Liberty Life Assurance
Company of Boston (“Liberty”) denied his claim for long-term disability benefits. Rothe argues
that Liberty’s determination was arbitrary and capricious. The record establishes that Liberty
conducted a reasoned decision-making process and that its decision is supported by substantial
evidence. Accordingly, Liberty’s decision was not arbitrary and capricious. We, therefore,
affirm the district court’s grant of summary judgment to Liberty.

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I. BACKGROUND
Rothe worked as a gas controller for Duke Energy Corporation (“Duke”). Rothe filed a
claim for long-term disability (“LTD”) benefits, with a disability start date of January 3, 2013.
Rothe’s claim was based on his various chronic, degenerative medical conditions, including
“Spinal fusion” and “Backache NOS.” (Administrative Record, R. 11, PageID 135.) Rothe
submitted his claim pursuant to Duke’s Group Disability Income Policy. Under the policy,
Liberty determines eligibility for benefits and then pays those benefits.
The policy sets forth the relevant terms, defining “Disability” and “Disabled” under
Section 2(a)(i) as follows:
[I]f the Covered Person is eligible for the 24 Month Own Occupation
benefit, “Disability” or “Disabled” means that during the Elimination
Period and the next 24 months of Disability the Covered Person, as a
result of Injury or Sickness, is unable to perform the Material and
Substantial Duties of his Own Occupation.
(Id. at 101.) Section 2 also defines “Own Occupation” as follows:
“Own Occupation” means the Covered Person’s occupation that he was
performing when his Disability or Partial Disability began. For the
purposes of determining Disability under this policy, Liberty will consider
the Covered Person’s occupation as it is normally performed in the
national economy.
(Id. at 103.) As part of Liberty’s review of Rothe’s claim, Vocational Case Manager Ellen
Levine determined as part of her “Occupational Analysis/Vocational Review” that Rothe’s “own
occupation” as performed in the national economy is most analogous to “Gas Dispatcher,” as
listed in the Department of Labor’s Dictionary of Occupational Titles (“DOT”). Levine also
concluded that this occupation is most often performed at a sedentary work level. Levine
referenced the Department of Labor’s definition of sedentary work, which classifies such work
as exerting up to ten pounds of force up to one third of the time and a negligible amount of

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force—in lifting, carrying, pushing, pulling, or otherwise moving objects—between one and two
thirds of the time. The definition also requires that the job involve sitting most of the time,
although it may involve standing or walking occasionally.
The appeal review consultant considered medical reports from Rothe’s attending
physicians, Drs. Michael Rohmiller, Justin Kruer, Gregory Delorenzo, and Robert Noelker, to
supplement his claim. Rohmiller concluded that Rothe was permanently disabled from his job as
a gas controller at Duke. Kruer determined that Rothe had severe physical restrictions and
limitations that would affect him in the workplace. Noelker reported that Rothe’s mental status
would prevent him from performing the essential elements of his job. Liberty had Dr. Alvin
Gallanosa conduct an independent medical examination of Rothe. In addition, Dr. Jamie Lee
Lewis conducted a peer review, and Dr. David Monti conducted a clinical case review. Liberty’s
medical experts concluded that Rothe was capable of performing sedentary work.
On April 23, 2014, Liberty denied Rothe’s claim because it found that he was not
disabled under the policy. Rothe administratively appealed and submitted additional materials.
On appeal, Liberty retained Drs. Milton Klein and Peter Sugerman, who conducted a file review
of the physician reports and determined that Rothe would be able to perform at a sedentary work
level. On December 23, 2014, Liberty upheld its denial.
On March 30, 2015, Rothe filed this case with the district court under ERISA, claiming
that Liberty acted arbitrarily and capriciously in denying his LTD benefits. Both parties filed
motions for summary judgment. On September 30, 2016, the district court denied Rothe’s
motion and granted summary judgment to Liberty. Rothe timely appealed to this court.

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II. ANALYSIS
A. Standard of Review
We review de novo a decision “granting judgment in an ERISA disability benefit action
based on an administrative record, and apply the same legal standard as did the district court.”
Glenn v. MetLife, 461 F.3d 660, 665–66 (6th Cir. 2006) (citation omitted). “In this case, the
district court appropriately reviewed the record under the ‘arbitrary and capricious’ standard,
because the plan at issue granted the plan administrator discretionary authority to interpret the
terms of the plan and to determine benefits.” See id. at 666 (citing Firestone Tire & Rubber Co.
v. Bruch, 489 U.S. 101, 111–15 (1989)).
A plan administrator’s decision will not be deemed arbitrary or capricious so long as “it
is possible to offer a reasoned explanation, based on the evidence, for a particular outcome.”
Evans v. UnumProvident Corp., 434 F.3d 866, 876 (6th Cir. 2006) (quoting Killian v.
Healthsource Provident Adm’rs, Inc., 152 F.3d 514, 520 (6th Cir. 1998)). This standard “is the
least demanding form of judicial review of administrative action.” Watson v. Solis, 693 F.3d
620, 623 (6th Cir. 2012) (quoting Farhner v. United Transp. Union Discipline Income Prot.
Program, 645 F.3d 338, 342 (6th Cir. 2011)). We will uphold a decision “if it is the result of a
deliberate, principled reasoning process and if it is supported by substantial evidence.” Baker v.
United Mine Workers of Am. Health & Ret. Funds, 929 F.2d 1140, 1144 (6th Cir. 1991) (per
curiam).
B. Conflict of Interest
Rothe claims that Liberty has a conflict of interest in this case because it both determines
eligibility for benefits and pays them.

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“[A] conflict of interest exists for ERISA purposes where the plan administrator evaluates
and pays benefits claims, even when, as here, the administrator is an insurance company and not
the beneficiary’s employer.” DeLisle v. Sun Life Assurance Co. of Canada, 558 F.3d 440, 445
(6th Cir. 2009). Conflicts of interest do not change the standard of review, but, where one exists,
we weigh it in determining whether the benefits decision was arbitrary and capricious. Peruzzi v.
Summa Med. Plan, 137 F.3d 431, 433 (6th Cir. 1998). We give more weight to the conflict in
circumstances that suggest a higher likelihood that it affected the benefits decision. DeLisle,
558 F.3d at 445. Relevant circumstances include whether the administrator repeatedly retains
the same physician, id., both decides claims and pays benefits, id., or uses in-house consultants,
Helfman v. GE Group Life Assur. Co., 573 F.3d 383, 393 (6th Cir. 2009).
Here, Liberty retained reviewing physicians, decided the claim, would be responsible for
paying benefits, and used an in-house vocational expert. Accordingly, we weigh Liberty’s
conflict in deciding whether its decision was arbitrary and capricious.
C. Liberty was not Arbitrary and Capricious in Denying Rothe’s Claim
Liberty denied Rothe’s claim for LTD benefits because it determined that he could
perform his “own occupation” as defined by the policy. Rothe argues that this determination was
arbitrary and capricious because Liberty disregarded his actual job requirements, the applicable
federal regulations, and substantial medical testimony.
1. Own Occupation
To receive LTD benefits under the policy, Rothe needed to prove that he (1) continues to
have a disability, (2) needs regular attendance by a physician, and (3) receives the appropriate
available treatment. The policy defines a disabled person as one who “as a result of Injury or
Sickness is unable to perform the Material and Substantial Duties of his Own Occupation.”

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(Administrative Record, R. 11, PageID 101.) The policy further defines “own occupation” as
“the Covered Person’s occupation as it is normally performed in the national economy.” (Id. at
103.)
We have held that “own occupation” is a general term that refers to categories of work as
opposed to the employee’s particular duties. Osborne v. Hartford Life & Accident Ins. Co.,
465 F.3d 296, 299–300 (6th Cir. 2006). In Osborne, we held that it was not arbitrary and
capricious to look to sources such as the DOT to determine a person’s own occupation. Id. at
299. Levine determined that Rothe’s job tasks matched the position of “Gas Dispatcher” as
listed in the DOT. Rothe argues that Levine ignored his Duke Physical Job Evaluation Form,
which listed the physical requirements of a gas controller at Duke. However, the policy does not
define “own occupation” in terms of Rothe’s particular job; the policy defines it in terms of the
occupation as “performed in the national economy.” (Administrative Record, R. 11, PageID
103.) Levine reasonably compared Rothe’s duties, as described in his Duke job description, to
the DOT to determine the best comparison for Rothe’s job in the national economy.
2. Federal Regulations
Rothe further argues that Liberty acted arbitrarily and capriciously by failing to consider
whether the side effects of his medication would prevent him from complying with federal
regulations governing gas controllers. This argument is also unavailing. Rothe cannot dispute
that Liberty relied on substantial medical evidence in concluding that the side effects of Rothe’s
prescriptions do not preclude him from “perform[ing] the Material and Substantial Duties of his
Own Occupation.” (Administrative Record, R. 11, PageID 101.) Lewis, Monti, and Klein
reported that the medical evidence does not support Rothe’s claim that the medications cause
side effects that would make him unable to perform the duties of his occupation. Moreover,

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Rothe does not point to any contrary report from an expert regarding his side effects, relying
instead on the listing of common side effects for his prescribed medications. Liberty therefore
did not act arbitrarily and capriciously because it based its decision on substantial medical
evidence.
Rothe also claims that his prescriptions for Norco (hydrocodone-acetaminophen) and
Ultram (tramadol) would cause him to fail a federally required drug test. See 49 CFR § 199.3.
However, this argument is precluded by our previous holding that Liberty was not arbitrary and
capricious in deeming Rothe’s “own occupation” to be that of a gas dispatcher and Rothe’s
admission that gas dispatcher is not a federally regulated position. (See Appellant Br. 26.)
3. Medical Testimony
Rothe argues that Liberty disregarded substantial medical testimony in finding that he
could “perform the Material and Substantial Duties of his Own Occupation.” (Administrative
Record, R. 11, PageID 101.) However, Rothe’s arguments are unpersuasive. He argues that
even though Liberty acknowledged the medical reports of Rohmiller, Kruer, Delorenzo, and
Noelker, they did not consider the “history and findings” in their reports. (Appellant Br. 39–40.)
But these were not the only medical reports in the record. The record also includes the reports of
Lewis, Gallanosa, Monti, Klein, and Sugerman.

The conclusions of each expert were not

uniform, and Liberty had to weigh the conflicting reports. See Cox v. Standard Ins. Co.,
585 F.3d 295, 302 (6th Cir. 2009) (recognizing that it is not arbitrary and capricious to deny
benefits “when, although the treating physician believed the claimant was totally disabled, other
medical evidence indicated that the claimant could perform sedentary work”) (internal quotation
marks omitted). Liberty relied on substantial medical testimony in making its decision and did

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not disregard any expert. Under the arbitrary and capricious standard of review, that is enough to
constitute a reasoned decision-making process.
III. CONCLUSION
The district court properly determined that Liberty did not act arbitrarily and capriciously
in denying Rothe’s claim for LTD benefits. Accordingly, we affirm the district court’s grant of
summary judgment.

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