Till v. Lincoln National Life Insurance Company et al

Filing 77

MEMORANDUM OPINION AND ORDER: it is ORDERED as follows: (1) Plaintiff's 39 Motion for Summary Judgment is DENIED; and (2) Lincoln's 36 Motion for Judgment as a Matter of Law is GRANTED. A separate final judgment will be entered. Signed by Chief Judge William Keith Watkins on 4/25/2016. (kh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
SUSAN TILL,
Plaintiff,
v.
LINCOLN NATIONAL LIFE
INSURANCE COMPANY,
Defendant.

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CASE NO. 2:14-CV-721-WKW
[WO]

MEMORANDUM OPINION AND ORDER
Plaintiff brings this suit pursuant to the Employee Retirement Income
Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq. Before the court is
Defendant Lincoln National Life Insurance Company’s (“Lincoln”) Motion for
Judgment as a Matter of Law pursuant to Federal Rule of Civil Procedure 56 (Doc.
# 36) and brief in support (Doc. # 37). Plaintiff responded (Doc. # 56-1), and
Lincoln filed a brief in reply to Plaintiff’s response (Doc. # 62-1). Also before the
court is Plaintiff’s Motion for Summary Judgment (Doc. # 39) and brief in support
(Doc. # 40). Lincoln responded (Doc. # 58), and Plaintiff filed a brief in reply to
Lincoln’s response (Doc. # 64-1). After careful consideration of the evidence, the
parties’ briefs, and the relevant law, the court concludes that Plaintiff’s motion is
due to be denied and Defendant’s motion is due to be granted.

I. JURISDICTION AND VENUE
The court exercises subject matter jurisdiction over Plaintiff’s ERISA claims
pursuant to 28 U.S.C. § 1331. This case involves federal questions arising under
ERISA, over which the court has original jurisdiction pursuant to 29 U.S.C.
§ 1132(e). The parties do not contest personal jurisdiction or venue.
II. STANDARD OF REVIEW
To succeed on summary judgment, the movant must demonstrate “that there
is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). The court must view the evidence and
the inferences from that evidence in the light most favorable to the nonmovant.
Jean–Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).
The party moving for summary judgment “always bears the initial
responsibility of informing the district court of the basis for its motion.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986).

This responsibility includes

identifying the portions of the record illustrating the absence of a genuine dispute
of material fact. Id. Alternatively, a movant who does not have a trial burden of
production can assert, without citing the record, that the nonmoving party “cannot
produce admissible evidence to support” a material fact. Fed. R. Civ. P.
56(c)(1)(B); see also Fed. R. Civ. P. 56 advisory committee’s note (“Subdivision
(c)(1)(B) recognizes that a party need not always point to specific record materials.
2

. . . [A] party who does not have the trial burden of production may rely on a
showing that a party who does have the trial burden cannot produce admissible
evidence to carry its burden as to the fact.”). If the movant meets its burden, the
burden shifts to the nonmoving party to establish—with evidence beyond the
pleadings—that a genuine dispute material to each of its claims for relief exists.
Celotex, 477 U.S. at 324. A genuine dispute of material fact exists when the
nonmoving party produces evidence allowing a reasonable fact finder to return a
verdict in its favor. Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279
(11th Cir. 2001).
Cross-motions for summary judgment “must be considered separately,” and
“each movant bears the burden of establishing that no genuine issue of material
fact exists and that it is entitled to judgment as a matter of law.”

Shaw

Constructors v. ICF Kaiser Eng’rs, Inc., 395 F.3d 533, 538-39 (5th Cir. 2004); see
also Bricklayers, Masons & Plasterers Int’l Union of Am., Local Union No. 15 v.
Stuart Plastering Co., 512 F.2d 1017, 1023 (5th Cir. 1975)1 (“Cross-motions for
summary judgment will not, in themselves, warrant the court in granting summary
judgment unless one of the parties is entitled to judgment as a matter of law on
facts that are not genuinely disputed.”).

1

In some cases, “[c]ross motions for

In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981), the Eleventh Circuit
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the
close of business on September 30, 1981.
3

summary judgment may be probative of the nonexistence of a factual dispute.”
Shook v. United States, 713 F.2d 662, 665 (11th Cir. 1983).

However, the

existence of cross motions for summary judgment “‘do[es] not automatically
empower the court to dispense with the determination whether questions of
material fact exist.’” Ga. State Conference of NAACP v. Fayette Cty. Bd. of
Comm’rs, 775 F.3d 1336, 1345 (11th Cir. 2015) (quoting Lac Courte Oreilles
Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 349 (7th Cir.
1983)). This is so because “each party moving for summary judgment may do so
on different legal theories dependent on different constellations of material facts.
Indeed, cross-motions for summary judgment may demonstrate a genuine dispute
as to material facts as often as not.” Bricklayers, 512 F.2d at 1023.
“‘[W]hen both parties proceed on the same legal theory and rely on the same
material facts[,] the court is signaled that the case is ripe for summary judgment.”
Shook, 713 F.2d at 665. Even then, however, “[a] court may discover questions of
material fact even though both parties, in support of cross-motions for summary
judgment, have asserted that no such questions exist. . . . Thus, before the court
can consider the legal issues raised by the parties on cross-motions for summary
judgment, it must have no doubt as to the relevant facts that are beyond dispute.”
Griffis v. Delta Family-Care Disability, 723 F.2d 822, 824 (11th Cir. 1984)
(adopting order of district judge on summary judgment).
4

III. BACKGROUND
A.

Procedural Background
Plaintiff was employed as a radiology technologist by Gilliard Health

Services, d/b/a Evergreen Medical Center (“Gilliard”). (Doc. # 40, at 4.) Gilliard
purchased long term disability insurance for its employees, including Plaintiff.
(Doc. # 37, at 2.) Gilliard was the plan administrator and plan sponsor for the
disability insurance. (Lincoln/Till 000063.)2
Plaintiff has a long history of back problems and has not worked since
December 5, 2012, when she exacerbated her back condition. (Doc. # 40, at 5–6.)
She has been diagnosed with spondylotic3 disease of the thoracic spine and
multilevel spondylotic disease of the lumbar spine. (Lincoln/Till 000890.) On
February 6, 2013, Plaintiff applied for long term disability benefits under the
disability plan. (Lincoln/Till 001120–21.) Lincoln denied the claim because it
determined that the “medical documentation contained in [her] claim file [did] not
support Total Disability as defined by [the] policy.”

(Lincoln/Till 001001.)

Plaintiff administratively appealed the decision twice, and Lincoln upheld the
denial of benefits on both appeals. (Lincoln/Till 000075, 001059.)
2

Unless otherwise noted, the Lincoln/Till batestamp numbers refer to the administrative
record, which has been filed under seal at Doc. # 46.
3

Spondylosis is a degenerative condition affecting the spine. See Kimberley Middleton
and David E. Fish, PMC U.S. NATIONAL LIBRARY OF MEDICINE NATIONAL INSTITUTES OF
HEALTH, Lumbar Spondylosis: Clinical Presentation and Treatment Approaches, (Mar. 25,
2009), http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2697338/.
5

On August 1, 2014, Plaintiff filed her complaint alleging that Lincoln is a
plan fiduciary charged with certain duties under ERISA and that Lincoln has
breached several of its duties. (Doc. # 1.) She also alleges that Lincoln is a de
facto plan administrator and that Lincoln violated federal law by failing to provide
her requested documents that Lincoln used to support its decisions to deny her
benefits. The complaint does not set out numbered counts against Defendant.
Plaintiff seeks to recover “all benefits under the Plan to which she may be
entitled,” “waiver of premium[s] . . . under disability, life, accidental death and
dismemberment or accident policies,” and “any other benefits available through
[t]he Plan.” (Doc. # 1, at ¶ 2.) All of the benefits sought by Plaintiff are based on
the court determining that she is “disabled.” (Doc. # 1, at ¶ 2.) Plaintiff further
seeks an award of past benefits, prejudgment interest, costs and expenses including
attorney’s fees, a declaratory judgment concerning Plaintiff’s entitlement to future
benefits, and other injunctive relief. (See Doc. # 1, at 17–18.) She requests, as an
alternative form of relief, that the court “remove Lincoln from its fiduciary role in
the administration of [t]he Plan(s), and to appoint a special master to substitute for
[Lincoln].” (Doc. # 1, at 17–18.)
Lincoln filed a motion to dismiss seeking dismissal of Plaintiff’s claims
under § 502(a)(3) and § 502(c)(1)(B). (Doc. # 9.) The court granted dismissal of
Plaintiff’s claim under § 502(a)(3) that alleged that Lincoln breached a fiduciary
6

duty. It denied the motion as to her claim arising under § 502(c)(1)(B) that
Lincoln, as de facto plan administrator, failed to provide her with requested
documents that supported its decisions to deny benefits. (Doc. # 21, at 14–15.)
The court found that “[t]he question of whether a defendant is acting as plan
administrator is fact intensive and [is] better decided at a later stage of this
litigation.” (Doc. # 21, at 15.)
Lincoln now seeks summary judgment on Plaintiff’s remaining claims,
which are a § 502(a)(1)(B) claim to recover benefits and a § 502(c)(1)(B) claim for
failure to provide documents. 4 (Doc. # 37, at 2.) Lincoln argues that it is entitled
to summary judgment because Plaintiff failed to provide sufficient proof of Total
Disability as defined by the plan and that the statutory penalties under
§ 502(c)(1)(B) are only permitted for plan administrators, and it was not the plan
administrator or de facto plan administrator. Plaintiff seeks summary judgment on
her claims because she asserts that (1) she is disabled as a matter of law, (2)
Lincoln denied her a full and fair review, (3) Lincoln’s denial of benefits was
arbitrary and capricious, and (4) as de facto plan administrator, Lincoln violated
ERISA by failing to produce the entire ERISA record at Plaintiff’s request and

4

Lincoln’s summary judgment briefing focuses on long-term disability benefits. (See,
e.g., Doc. # 37, at 2 n.1.) Plaintiff has not indicated that any other benefits are at issue. On this
record, Plaintiff’s generic allegations seeking entitlement to “all benefits . . . to which she may be
entitled” is insufficient to put any other benefits at issue. In any event, Plaintiff has not
identified any other benefits to which she says she is entitled.
7

therefore penalties are due Plaintiff under § 502(c)(1)(B). (Doc. # 40, at 14–16,
33.)
B.

Factual Background
Plaintiff’s back problems started when she had a laminectomy in 1982.

(Lincoln/Till 000891.) An MRI of her lumbar spine on September 25, 2003,
shows degenerative changes, loss of disc height, and mildly bulging discs.
(Lincoln/Till 000751.) Clinical notes from Dr. John E. Hackman dated October 7,
2003, stated that Plaintiff had back pain with burning and numbness down both
legs and that her x-ray showed minor spinal stenosis. Follow-on notes from Dr.
Hackman indicate that an MRI of the neck showed degenerative changes.
(Lincoln/Till 000744.)

A November 11, 2003 MRI indicates stenosis, bony

spurring, mild disc bulging, and congenital narrowing. (Lincoln/Till 000750.)
Despite these problems, Plaintiff was able to work. (Doc. # 40, at 5–6.)
In 2004, Plaintiff began working as a radiology technologist for Gilliard.
(Doc. # 40, at 4.) Plaintiff’s job summary, according to her employer, is to
“operat[e] conventional, fluoroscopic, or portable radiology equipment to obtain
routine radiographs of designated body portions according to physicians’
specifications. . . . position[] patients and adjust[] x-ray equipment to correct
setting for each examination. . . . [and] [a]ssist[] physicians in carrying out
examinations by mixing and preparing contrast media, and assisting in sterile
8

procedures.” (Lincoln/Till 000329.) Her employer indicates that the physical
demands of her job include lifting up to ten pounds more than two-thirds of the
time, lifting up to twenty-five or fifty pounds from one-third to one-half of the
time, and lifting up to one hundred pounds up to one-third of the time. The
position also includes standing or walking up to two-thirds of the time.
(Lincoln/Till 000332.)
An x-ray of Plaintiff’s back on March 26, 2008, shows mild multi-level
dischogenic change throughout her cervical spine and severe multi-level
dischogenic change along with compression deformity of her thoracic spine.
(Lincoln/Till 000817.) A lumbrosacral spine study on April 4, 2012, revealed
degenerative arthritis of the lumbar spine and osteophytes. (Lincoln/Till 000837.)
Plaintiff continued to work until December 4, 2012, when she exacerbated
the condition of her back by assisting and repositioning a patient. (Doc. # 40, at 6.)
She sought treatment at Evergreen Primary Care on December 5 and December 10,
2012. The practitioner5 diagnosed Plaintiff with low back pain with radiculopathy,
prescribed pain medications, referred her for an MRI, and set up an appointment
with Dr. Barry Lurate. (Lincoln/Till 001077–79.) Dr. Lurate is an orthopedic
doctor who works at Pensacola Orthopaedics & Sports Medicine in Pensacola,
Florida. (Lincoln/Till 000891.)

5

The signature on the practitioner’s signature line is illegible.
9

Plaintiff had the MRI on December 12, 2012, and the report from the MRI
described disc herniation at L5-S1 producing spinal stenosis and minimal
narrowing of the foramina, a posterior bulge at L4-5 that slightly narrowed the
foramina, and a posterior bulge of the disc producing spinal stenosis and bilateral
foraminal encroachment at L2-3 and L3-4. (Lincoln/Till 001118–19.)

Plaintiff

first visited Dr. Lurate on December 18, 2012. At the visit, he checked the MRI
but found it mostly unreadable.

He noted that x-rays indicated multilevel

degenerative disc disease throughout the lumbar spine and into the lower thoracic
spine and that the MRI highlighted the multilevel spondylotic disease of the spine.
(Lincoln/Till 000891–92.)
Dr. Lurate’s notes from the December 18, 2012 visit indicate that he
performed a physical exam. He said that the pain was localized mid back and
thoracic back and then into the lower lumbar area, with no mass effect, no
scoliosis, and no paraspinal muscle spasm. He found her voluntary range of
motion to be poor on flexion and extension, but that Plaintiff tolerated hip rotation
well without pain and that straight leg raise and heel stretch were both negative.6
He stated that, although Plaintiff complained of numbness in her toes and tingling
dysesthesias in the posterolateral thigh and anterolateral leg, those symptoms were
not present that day. Dr. Lurate also notated that Plaintiff’s deep tendon reflexes in
6

Negative indicates that Plaintiff did not experience pain.
10

her knees and ankles were normal7 and that there were no motor or sensory
deficits. Dr. Lurate diagnosed Plaintiff with chronic low and mid back pain with
right lumbar radiculitis and an elevated BMI. He recommended avoiding surgery
if possible, referred Plaintiff to physical therapy for core strengthening, fitted her
for a lumbar corset to help with the pain, and referred Plaintiff to a pain
management specialist. (Lincoln/Till 000892.)
Plaintiff had another MRI on January 16, 2013. The report states that the
thoracic cord signal appears normal, there are disc desiccation and small disc
bulges at several levels of the thoracic spine, no spinal stenosis is noted, vertebral
body heights are within normal limits, and thoracic spine alignment is
unremarkable.

It indicates a diagnosis of multilevel thoracic spondylosis.

(Lincoln/Till 001117.)
On January 22, 2013, Plaintiff had a follow-up appointment with Dr. Lurate.
He stated that her dysesthesias down the right lower extremity was “largely
improved,” although he mentioned that her primary complaint was still right low
back pain with occasional numbness in her toes. He reviewed the January 16,
2013 MRI and said that it shows spondylotic disease of the thoracic spine. He
again said that surgery was not a good option and said that they would set Plaintiff
7

The notes state that “DTRs are 2+ in the knees and ankles.” A grade of 2 for deep
tendon reflexes is normal and a grade of 3 is increased but normal. See A. Chandrasekhar, MD,
Muscle Stretch Reflexes of the Upper and Lower Extremities, LOYOLA UNIV. MED. EDUC.
NETWORK, http://www.meddean.luc.edu/lumen/meded/medicine/pulmonar/pd/pstep56.htm (last
visited Apr. 18, 2016).
11

up with pain management in Pensacola. No physical exam is indicated on Dr.
Lurate’s notes from the January 22, 2013 visit. (Lincoln/Till 000890.)
Dr. Lurate referred Plaintiff to physical therapy two to three times a week
for four weeks. (Lincoln/Till 000839–54.) Plaintiff attended physical therapy at
Evergreen Medical Center six times from January 7, 2013, through January 24,
2013, when she stopped attending. At the initial appointment, she had a lumbar
range of motion of 25% and strength of two out of five. Repetition sets for her
exercises began with ten repetitions for each exercise. (Lincoln/Till 000841–42.)
On January 10, 2013, Plaintiff was able to increase her repetitions of each exercise
and add standing curls; she continued to add repetitions each session, up to fifteen
repetitions on January 14 and twenty repetitions on January 21, 2013. She also
showed progress on her exercises from two minutes initially up to three minutes on
January 16, 2013. The notes showed that she cried out in pain and grimaced
during the progressive exercise. The notes from January 21, 2013, indicate that her
pain level remained at a constant of about five out of ten from the initial session
through that date. (Lincoln/Till 000851.)
On January 24, 2013, Plaintiff attended her last physical therapy session. At
the session, she stated that she would be joining a wellness center so that she could
continue her exercises at home. The therapist also initiated dynamic stretching
during treatment that day. Plaintiff stopped attending physical therapy after six
12

sessions. The notes from the therapist indicate that she had met her short-term
goals of a 50% lumbar range of motion, worst pain level at seven out of ten, and
strength at a three-minus out of five. (Lincoln/Till 000853–54.)
Dr. Jeffrey Voreis is Plaintiff’s primary care doctor. The records from Dr.
Voreis’s office show visits on January 24, 2013, February 7, 2013, and March 4,
2013. On January 24, 2013, Dr. Voreis indicated in the physical exam section of
the notes that Plaintiff had a tender mid and low back and positive straight leg
raise.8 (Lincoln/Till 000498.) At the February 7, 2013 visit, he noted that she
limped on her left leg and could not sit, stand, lift, push, or pull for any period of
time, that she had difficulty with performing activities of daily living (ADLs) and
needed her husband’s help with them, and that she had paraspinal muscle spasm.
(Lincoln/Till 000497.) He prescribed Tramadol for the pain. On March 4, 2013,
Dr. Voreis indicated that Plaintiff still had severe back pain, but could function
with Tramadol. Her husband continued to help her perform her ADLs, and she had
a belated positive on the straight leg raise.
Dr. Voreis filled out the physician’s statement for Plaintiff’s initial longterm disability claim. On the undated9 statement, he indicated that Plaintiff could
not lift, push, pull, climb, lift patients, pull on patients, or climb stairs. He also
8

Positive indicates that Plaintiff was in pain when Dr. Voreis conducted the test.

9

Dr. Voreis did not date the form when he signed it. He did indicate that Plaintiff’s most
recent appointment with him was on February 7, 2013, therefore it was most likely filled out
prior to her March 4, 2013 office visit.
13

stated that her recovery was uncertain and that she appeared to have been at a level
of intractable pain for three months. (Lincoln/Till 0001037–39.)
On March 4, 2013, he filled out an abilities form on which he indicated that
she could occasionally carry up to twenty pounds, sit, stand, walk, bend, drive,
finger, handle, operate foot controls, and climb a few steps, but never kneel.10
(Lincoln/Till 001090.) On March 5, 2013, Dr. Voreis wrote an office note about
the condition of Plaintiff’s back. In the note, he stated that she limited her daily
activities due to the pain. Before the injury on December 4, 2012, her back pain
would return to a “baseline,” but after that date, the pain was only manageable
when she was on Tramadol. However, he said that even with the Tramadol, she
was limited to her ADLs. (Lincoln/Till 000495.)
On April 12, 2013, Dr. E. Arnold Johnson evaluated Plaintiff for her Social
Security benefits claim. He indicated that she declined to perform any task during
her physical exam, because she claimed that she could not do it. He said her grip
strength was fifteen pounds in her right hand and five pounds in her left hand. He
also stated that surgery was not an effective treatment option due to the extensive
nature of the disc disease shown on the MRI studies. (Lincoln/Till 000677.) He
found that Plaintiff could only sit or stand five to ten minutes without having to
change positions to relieve the pain, and was only able to tolerate thirty minutes
10

The terminology for Plaintiff’s physical abilities is as it was used on the forms and by
the doctors and parties throughout the administrative record.
14

seated in a car at one time. (Lincoln/Till 000678.) In his opinion, Plaintiff is
“unable to work at all.” (Lincoln/Till 000677.)
Dr. Voreis performed a long term disability exam for Plaintiff’s Social
Security Disability claim. His letter about the results of the examination and
Plaintiff’s physical condition is undated, and the last page of the attached medical
source statement is unsigned and undated.11 (Lincoln/Till 000689–90, 000696.) In
the examination letter, Dr. Voreis noted that Plaintiff is only able to sit for thirty
minutes, walk for twenty to thirty minutes, and stand for ten to twenty minutes. He
stated that when Plaintiff takes Tramadol she is “functional,” but he does not
indicate what he means by functional.
Dr. Voreis indicated that Plaintiff could not abduct her shoulders beyond
ninety degrees without extreme discomfort. He also indicated that she appeared to
have bilateral carpel tunnel syndrome, a grip strength of three and a half out of
five, and that she was too weak to elevate to her toes or tandem walk. In his
opinion, Plaintiff has “progressive lumbar problems with multi-level disc disease,
spondylosis, and spinal stenosis . . . with extensive herniated discs and spinal
stenosis.” (Lincoln/Till 000690.)

11

A clinical assessment of pain that is attached to the examination and medical source
statement is signed and dated March 4, 2014. (Lincoln/Till 000697.) The Social Security
determination also references the March 2014 assessment by Dr. Voreis. (Lincoln/Till 000374.)
15

On the attached medical source statement, Dr. Voreis indicated that Plaintiff
could occasionally lift up to ten pounds and carry up to two to three pounds. He
noted that she could sit, stand, or walk for twenty to thirty minutes uninterrupted,
that she used a cane to walk when she was unaccompanied on uneven ground, and
that she frequently drops things because her hands go numb. He stated that during
an eight-hour work day, she is able to sit for two hours, stand for one hour, and
walk for two hours. (Lincoln/Till 000692.) Dr. Voreis said that Plaintiff cannot
reach overhead, push/pull, climb a ladder or scaffold, balance, stoop, kneel,
crouch, or crawl. He also indicated that she is occasionally able to reach, handle,
finger, feel, operate foot controls, and climb ramps and up to four steps.
(Lincoln/Till 000693–94.) He noted that she was likely to be absent from work for
up to four days per month due to the impairment. (Lincoln/Till 000696.) The form
has several locations for the physician to indicate medical or clinical findings to
support these restrictions, but Dr. Voreis did not fill in any of these sections.
(Lincoln/Till 000691–96.)

He does not explain the basis for the increased

restrictions from his previous assessment of Plaintiff in March 2013.
The Social Security administrative law judge determined that beginning
December 5, 2012, Plaintiff was disabled as defined in the Social Security Act.
When making the decision, he gave “great weight” to Dr. Voreis’s and Dr.

16

Johnson’s assessments, and listed all of the restrictions Dr. Voreis had placed on
her physical activity. (Lincoln/Till 000367–76.)
C.

The Plan
The Summary Plan Description designates Gilliard as the plan administrator.

(Lincoln/Till 000063.) The Plan grants discretionary authority to Lincoln under its
claims provisions:
COMPANY’S DISCRETIONARY AUTHORITY. Except for the
functions that the Policy clearly reserves to the Policyholder or
Employer, the Company has the authority to manage the Policy,
interpret its provisions, administer claims and resolve questions
arising under it. The Company’s authority includes (but is not limited
to) the right to:
1.
establish administrative procedures, determine eligibility and
resolve claims questions;
2.
determine what information the Company reasonably requires
to make such decisions; and
3.
resolve all matters when an internal claim review is requested.
Any decision the Company makes in the exercise of its authority shall
be conclusive and binding; subject to the Insured Employee’s rights to
request a state insurance department review or to bring legal action.
(Lincoln/Till 000049.) The Plan further provides that:
“Total Disability” or “Totally Disabled” will be defined as follows.
1.
During the Elimination Period and Own Occupation Period, it
means that due to an Injury or Sickness the Insured Employee is
unable to perform each of the main duties of his or her regular
occupation.
2.
After the Own Occupation Period, it means that due to an
Injury or Sickness the Insured Employee is unable to perform
each of the main duties of any gainful occupation which his or
her training, education or experience will reasonably allow.

17

The loss of a professional license, an occupational license or
certification, or a driver’s license for any reason does not, by itself,
constitute Total Disability.
(Lincoln/Till 000054.) The “ELIMINATION PERIOD means the number of
days of Disability during which no benefit is payable.” (Lincoln/Till 000042.)
The elimination period under Plaintiff’s policy is ninety days.

(Lincoln/Till

000038.) Main duties are defined as follows:
MAIN DUTIES or MATERIAL AND SUBSTANTIAL DUTIES
means those job duties which:
1.
are normally required to perform the Insured Person’s regular
occupation; and
2.
cannot reasonably be modified or omitted.
It includes those main duties as performed in the national workforce;
not as performed for a certain firm or at a certain work site.
(Lincoln/Till 000044.) Under the definition of “Regular Occupation or Own
Occupation,” the policy provides that the definition “includes the main duties of
that occupation as performed in the national workforce; not as performed for a
certain firm or at a certain work site.” (Lincoln/Till 000045.)
The claims procedures in the policy require that a “[p]roof of claim . . . be
provided at the Insured Employee’s own expense. It must show the date the
Disability began, its cause and degree.”

(Lincoln/Till 000047.)

The policy

provides what documentation is required to support a claim and also that proof of
continued disability must be provided upon Lincoln’s request in order for benefits
to continue.
18

D.

Plaintiff’s Claim
a.

Initial Claim

Plaintiff filed her claim for long term disability benefits under the plan on
February 6, 2013. (Lincoln/Till 001120–21.) In order to review the claim, Lincoln
requested an employee statement from Plaintiff, a statement from her employer, a
statement from her attending physician, a signed authorization, and a formal job
description from her employer. (Lincoln/Till 001116, 001127.) It also requested
medical

records

from

(Lincoln/Till 001115.)

Dr.

Yearwood,12

Dr.

Lurate,

and

Dr.

Voreis.

Lincoln determined that no benefits were payable on

Plaintiff’s claim and in the letter of denial explained that the medical
documentation in her file did not support a total disability as defined in the policy.
(Lincoln/Till 001084–87.)
Before making its initial benefits determination, Lincoln had Nancy
Bruemmer, a Senior Disability Nurse Consultant and Registered Nurse, review
Plaintiff’s MRI results and the records from Plaintiff’s visits to Dr. Lurate. (Doc.
# 37, at 8; Lincoln/Till 000016.) In her written review, Ms. Bruemmer discussed
all of Dr. Lurate’s records, notes, and opinions. She noted that there were no
records of treatment from Dr. Voreis to support the level of pain and impairment
that he indicated. Ms. Bruemmer’s conclusion was that it was reasonable to allow

12

Plaintiff saw Dr. Yearwood in December 2012 when Dr. Voreis was not available.
19

until January 22, 2013, for therapy and treatment. She determined that as of
January 22, 2013, Plaintiff’s symptoms had improved, that there was only one
physical exam on file without sufficiently abnormal exam findings, no evidence of
loss of strength, neuro, or motor findings, and that Plaintiff tolerated the three-hour
drive to Dr. Lurate’s office in Pensacola, so that there was not any support for
restrictions beyond January 22, 2013. (Lincoln/Till 000016.)
The denial letter noted that the documentation in the claim file included the
office and treatment notes from Andalusia Regional Hospital from November 2,
2012 through January 16, 2013; an undated attending physician statement from Dr.
Voreis; office and treatment notes from Dr. Barry Lurate from December 18, 2012
to January 22, 2013; and an abilities form filled out by Dr. Voreis on March 4,
2013. The letter informed Plaintiff that Dr. Voreis’s attending physician statement
did not contain treatment notes or other medical documentation to support the level
of impairment and pain that he noted on the statement. It also discussed the
records from Dr. Lurate and noted that the physical exam performed at the
December 18, 2012 visit did not show evidence of scoliosis or paraspinal muscle
spasm, although x-rays of the lumbar spine showed multilevel disc disease in the
lower and thoracic spine. The letter evaluated the visit to Dr. Lurate on January
16, 2013, noting that the records indicated that the dysesthesias she had reported at
the previous visit had improved, that an MRI of the thoracic spine showed
20

spondylotic disease, and no physical examination findings were noted.
(Lincoln/Till 001085.)
Regarding Plaintiff’s occupation, the letter explained that the policy
considers the main duties of her “occupation” and not her specific job and that the
term “occupation” means “a collective description of a number of individual jobs
that are performed, with variations, in many establishments,” so that “there will be
similarities between the main duties of [Plaintiff’s] occupation and those of [her]
job,” and “[t]here may also be some differences.”

(Lincoln/Till 001085.)

It

indicated that Lincoln had considered Plaintiff’s written job description, her
employer’s description of Plaintiff’s job duties, and the description of her
occupation from the Department of Labor’s Dictionary of Occupation Titles
(“DOT”) to determine the material and substantial duties of Plaintiff’s occupation.
(Lincoln/Till 001086.) Based on Lincoln’s occupational assessment, it determined
that the material and substantial duties of Plaintiff’s occupation included:
• Operates radiologic, conventional, fluoroscopic, or portable
equipment to produce radiographs (x-rays) of the body for
diagnostic purposes
• Positions patient on examining table and adjusts immobilization
devices to obtain optimum views of specified area of body
requested by physician
• Moves x-ray equipment into specified position and adjusts
equipment controls to set exposure factors, such as time and
distance, based on knowledge of radiographic exposure techniques
and protocols

21

(Lincoln/Till 001086.)

The letter stated that based on these material duties,

Lincoln had determined that the medical evidence did not support a finding that
Plaintiff was unable to perform the material and substantial duties of her regular
occupation.
In summary, Lincoln’s letter told Plaintiff that the medical documentation in
the claim file did not support total disability as defined in the policy. The letter
stated that it appeared that she had an exacerbation of chronic mid and low back
pain, but that the symptoms had improved by January 22, 2013, that there was only
one physical examination included in the documentation, that the file lacked
sufficiently abnormal examination findings and lacked documentation of a loss of
strength, neurological deficits, or motor findings. Based on these findings, Lincoln
had determined that there was no support for a limitation after January 22, 2013,13
“which

would

be

reasonable

to

allow

for

therapy

and

treatment.”

(Lincoln/Till 001086–87.)
b.

First Appeal

Plaintiff appealed Lincoln’s denial of benefits on September 16, 2013.
(Lincoln/Till 001073.) The claim file on appeal included the entire file from the
initial claim, as well as medical notes from Evergreen Primary Care, where
13

Since Plaintiff’s injury caused her to stop working on December 5, 2012, the
elimination period ended on March 4, 2013, and for her to receive benefits under the policy, she
had to “be restricted or limited from performing the main duties” of her occupation as of March
5, 2013. (Lincoln/Till 001086.) Plaintiff has never contested this date.
22

Plaintiff was seen on December 5 and December 10, 2012, and on January 7, 2013.
Lincoln also referred Plaintiff’s file for a peer review to Dr. Vicki Kalen, who is
Board Certified in Orthopedic Surgery. (Lincoln/Till 001061–62.)
Dr. Kalen reviewed Plaintiff’s claim file and determined that the clinical
findings in the MRIs showed degenerative changes consistent with Plaintiff’s age
and weight, but without significant neural compression. In her report she stated
that there were subjective complaints of pain without objective findings of
impairment. She said that the spondylosis would restrict Plaintiff from lifting more
than ten pounds frequently and twenty-five pounds occasionally and that Plaintiff
should only bend at the waist occasionally. However, Dr. Kalen stated that there
were no restrictions for sitting, standing, walking, crouching, crawling, kneeling,
reaching, fingering, handling, or operating foot controls. (Lincoln/Till 001066–
67.)
Dr. Kalen also reported that because the restrictions were based on
Plaintiff’s degenerative disease, they were effective from December 5, 2012,
forward, and even if Plaintiff’s symptoms improved, the restrictions would still be
appropriate. She said that Dr. Voreis’s statements that Plaintiff could not work and
could never work again were not reasonable or consistent with medical findings.
(Lincoln/Till 001067.) She noted that the March 4, 2013 abilities form completed

23

by Dr. Voreis did not include office visit notes with a history or examination.
(Lincoln/Till 001066.)
Dr. Kalen reviewed Lincoln’s requirements for a light duty occupation,
which include lifting no more than twenty pounds occasionally and up to ten
pounds frequently, standing or walking for six hours in an eight-hour day, possibly
continuously sitting with the consistent use of either hand or foot controls, and
carrying up to ten pounds. (Lincoln/Till 001066.) She also looked over Plaintiff’s
employer’s job description, which indicated it was a heavy level job occasionally
requiring lifting of up to 100 pounds.

(Lincoln/Till 001065.)

Dr. Kalen

determined that Plaintiff could work at the light level as described by Lincoln
because those requirements were within the restrictions she placed on Plaintiff, but
also stated that Plaintiff could not work at the heavy level because she should not
lift more than twenty-five pounds. (Lincoln/Till 001068.)
During the appeal process, Lincoln had Plaintiff’s occupational assessment
reviewed by Cathy McDonald, a vocational rehabilitation coordinator, to ensure
that the correct “Own Occupation” had been selected.

Ms. McDonald also

evaluated Dr. Kalen’s report and its impact on Plaintiff’s ability to perform her
own occupation. Ms. McDonald determined that the Radiologic Technologist
occupation was appropriate and that it is a light duty occupation. The restrictions
outlined in Dr. Kalen’s report showed that Plaintiff had a medium lifting capacity
24

so that she was able to perform the main duties of her own occupation.
(Lincoln/Till 000153.)
Lincoln upheld its initial denial of benefits after its review of Plaintiff’s
claim file and Dr. Kalen’s report.

The letter denying benefits explained that

Lincoln determined Plaintiff’s occupation based on information from her
employer, the DOT, and an evaluation from vocational professionals. The main
duties of her occupation were stated slightly differently from the first letter. They
were defined as follows:
• Positions patient on examining table and adjusts immobilization
devices to obtain optimum views of specified area of body
requested by physician
• Explains procedures to patient to reduce anxieties and obtain
patient cooperation
• Moves x-ray equipment into specified position and adjusts
equipment controls to set exposure factors, such as time and
distance, based on knowledge of radiographic exposure techniques
and protocols
• Practices radiation protection techniques, using beam restrictive
devices, patient shielding skills, and knowledge of applicable
exposure factors, to minimize radiation to patient and staff
(Lincoln/Till 001060.)

Lincoln explained that the physical capacity of a

Radiologic Technologist in the national workforce is a light physical capacity
occupation so that it includes occasionally lifting no more than twenty pounds,
frequently lifting up to ten pounds, and typically requires standing and walking for
six hours out of an eight-hour day. (Lincoln/Till 001060.) The summary of appeal
noted that the entire file was reviewed for the appeal, and it summarized the
25

medical documentation in the file.

Lincoln noted that when Dr. Lurate saw

Plaintiff on January 22, 2013, her right leg dysesthesias had improved, although it
was not gone. It also stated that Dr. Voreis had restricted Plaintiff to occasionally
lifting and carrying up to twenty pounds and occasionally sitting, standing,
walking, driving, fingering, handling, and working foot controls. He also stated
that she could never kneel. However, the letter also noted that there were no office
visit notes from Dr. Voreis providing a history or examination to support the
restrictions.
Lincoln based its decision on the report from Dr. Kalen and its review of the
file. It also noted that “[t]he sole occupational opinions, from Dr. DiVoreis [sic],
are unsupported by clinical findings.” (Lincoln/Till 001062.) It found that the
medical documentation did not support a finding that Plaintiff could not perform
the main duties of her own occupation as defined by the policy.
c.

Second Appeal

On November 11, 2013, Plaintiff appealed the denial of benefits a second
time. (Lincoln/Till 000918.) For the second appeal, Plaintiff provided additional
medical records, including her physical therapy records, and the Social Security
determination that she is totally disabled. (Doc. # 40, at 12.) During the review
for the second appeal, Lincoln sent the claim file to Dr. Heidi Klingbeil, who is
board certified in physical medicine and rehabilitation and board certified in pain
26

medicine, for review by a second independent physician. (Doc. # 37, at 10;
Lincoln/Till 000667.)

The medical documentation provided to Dr. Klingbeil

included the Social Security medical evaluation by Dr. Johnson and the Social
Security examination by Dr. Voreis. (Lincoln/Till 000663, 000665.) Dr. Klingbeil
first noted that she had thoroughly reviewed all of the received documentation and
then briefly summarized some of the medical records. Dr. Klingbeil completed her
review on May 29, 2014. She noted that the last physical exam performed on
Plaintiff was in 2013 because Plaintiff had declined the physical exam
attempted by Dr. Johnson. (Lincoln/Till 000663–65.) Dr. Klingbeil concluded
that Plaintiff’s current physical exam findings were unknown, and based on this
lack of an updated physical exam, the medical documentation did not support any
current restrictions.

(Lincoln/Till 000665.)

She stated that “[t]he attending

physician’s restrictions are not supported as reasonable or necessary for this
claimant, as there are no updated physical exam findings demonstrating objective
evidence of functional impairment that correlates with recent imaging that would
support medically appropriate restrictions.” (Lincoln/Till 000666.)
On July 9, 2014, Lincoln sent Plaintiff a letter denying benefits after its
second review of her file. (Lincoln/Till 000075.) It stated that during the review,
the entire claim file and all the additional documentation that she had submitted
were used to make the determination. The letter reiterated the vocational summary
27

of Plaintiff’s occupation, which it said was based upon the information from her
employer, the DOT, and an evaluation from vocational professionals.

The

summary determined that Plaintiff’s occupation as a Radiologic Technologist in
the national workforce is a light physical capacity occupation, which is defined as
lifting no more than twenty pounds occasionally and up to ten pounds frequently
and requiring standing or walking for six out of eight hours in a day. (Lincoln/Till
000076–77.) The letter summarized the report from Dr. Klingbeil and noted that
the report had been sent to Plaintiff’s counsel on June 3, 2014, to allow Plaintiff
time to send a copy to her treating physicians to review it and provide additional
information. It also stated that it had received a copy of Plaintiff’s favorable Social
Security determination on July 7, 2014, but no new medical information.
(Lincoln/Till 000078–79.)
In the decision portion of the letter, Lincoln recognized that Plaintiff had
several medical diagnoses, including chronic thoracic and lumbar pain, abdominal
pain, hyperlipidemia, esophageal reflux, fatigue, obesity, and depression.
However, Lincoln determined, after reviewing the medical documentation and
consulting Dr. Klingbeil’s report, that the documentation did not support a finding
that Plaintiff was unable to perform the main duties of her occupation through the
elimination period. Lincoln noted that the records did not indicate motor sensory
deficits, loss of coordination or range of motion, loss of strength, or other specific
28

deficits; it also stated that the record did not show functional impairment or a need
for restrictions or limitations. (Lincoln/Till 000079.) Lincoln acknowledged that
Plaintiff was receiving Social Security benefits, but informed Plaintiff that its
policy and review provisions were independent of Social Security processes, plan
provisions, and independent information received by the Social Security
Administration. (Lincoln/Till 000079.)
E.

Lincoln’s Policies and Procedures
Lincoln maintains its disability claims and appeals unit as separate and

independent entities from its financial and underwriting departments.

The

employees in the disability claims department and appeals unit are paid fixed
annual salaries and are not compensated based on the outcome of their claims.
(Doc. # 57-2, at 1.) These employees are eligible for annual bonuses, which are
based on the overall financial performance of Lincoln and its related entities in all
areas of its business and an individual employee’s performance. (Doc. # 57-2, at 2;
Doc. # 57-3, at 64.) Evaluations of the employees who handled Plaintiff’s claim
demonstrate that several areas of competency are considered, including customer
experience, operational execution, quality/risk management, and professional
development.

(See Doc. # 57-1.)

The operational execution portion of the

evaluation includes a discussion of an employee’s inventory management,

29

percentage of claims that are pending, and number of decisions made. (Doc.
# 57-1, at Lincoln/Till 001500.)
Lincoln’s policies include a method for evaluating a Social Security award.
The policy indicates that, if Lincoln determines that a benefits claim will be denied
even when a Social Security decision is favorable, that the letter should explain the
differences in the decision. (Lincoln/Till 001694–95.) Lincoln’s procedures also
give its employees examples of how to distinguish the two decisions.
IV. DISCUSSION
A.

Disabled as a Matter of Law
Plaintiff asserts that she is disabled as a matter of law and therefore should

be awarded long term disability benefits under the plan. (Doc. # 40, at 14.) She
insists that all of the evidence before the court supports that she is disabled. She
also argues that, while Lincoln is not legally bound by the Social Security
determination, its vocational analysis is “far more comprehensive than that
undertaken by Lincoln” so that it “stands alone and is uncontested.” (Doc. # 40,
at 15.) She asserts that Lincoln disregarded her complaints of pain, and that the
subjective nature of pain is not grounds for denial of benefits. Lincoln responds by
asserting that the administrative record does not demonstrate that Plaintiff is
disabled under the terms of the plan and cites Plaintiff’s medical records that
support its finding that Plaintiff is not disabled.
30

Plaintiff does not cite, nor has the court discovered, any legal authority that
supports her argument that she is disabled as a matter of law. This argument by
itself with no evidentiary support has no merit. Nor is a favorable Social Security
decision dispositive of disability under an ERISA plan. See Oliver v. Aetna Life
Ins. Co., 613 F. App’x 892, 897 (11th Cir. 2015) (citing Whatley v. CNA Ins. Cos.,
189 F.3d 1310, 1314 n.8 (11th Cir. 1999)). In order to show that she is entitled to
benefits under the ERISA plan, Plaintiff must show that Lincoln’s decision was de
novo wrong and arbitrary and capricious. See Blankenship v. Metro. Life Ins. Co.,
644 F.3d 1350, 1355 (11th Cir. 2011). The court turns to the issues of whether
Plaintiff received a full and fair review and whether Lincoln’s decision was
arbitrary and capricious.
B.

Full and Fair Review
Plaintiff asserts that Lincoln did not provide her a full and fair review of its

denial of benefits as required by ERISA. (Doc. # 40, at 16.) She insists that
Lincoln committed multiple procedural violations, including (1) allowing its
conflict of interest to taint the claim process, (2) disregarding her submission of
supporting evidence for her administrative appeal, (3) failing to provide her with
all relevant documents, (4) disregarding the Social Security determination and
vocational analysis, and (5) disregarding the actual requirements of her job
description. (Doc. # 40, at 15–27; Doc. # 56-1, at 19.) She argues that these
31

procedural violations are so egregious, that rather than remand with instructions to
provide a full and fair review, she is entitled to a judgment requiring Lincoln to
pay her long term disability benefits. (See Doc. # 40, at 15–16, 34.)
Pursuant to 29 U.S.C. § 1133, an administrator is required to “afford a
reasonable opportunity to any participant whose claim for benefits has been denied
for a full and fair review . . . of the decision denying the claim.” 29 U.S.C.
§ 1133(2); accord Glazer v. Reliance Standard Life Ins. Co., 524 F.3d 1241, 1245
(11th Cir. 2008). “The administrator must ‘[p]rovide . . . upon request . . . all
documents, records, and other information relevant to the claimant’s claim for
benefits’ to qualify as a ‘full and fair review.’” Glazer, 524 F.3d at 1245 (quoting
29 C.F.R. § 2560.53–1(h)(2)(iii)). In order for a review process to be deemed a
“full and fair review,” the procedures must “[p]rovide for a review that takes into
account all comments, documents, records, and other information submitted by the
claimant relating to the claim, without regard to whether such information was
submitted or considered in the initial benefit determination.” 29 C.F.R. § 2560.53–
1(h)(2)(iv); accord Glazer, 524 F.3d at 1245.

An administrator must have

substantial support to deny benefits and must promptly notify a plan participant,
in writing and in language likely to be understood by laymen, that the
claim has been denied with the specific reasons therefor. The
[administrator] must also inform the participant of what evidence he
relied upon and provide him with an opportunity to examine that
evidence and to submit written comments or rebuttal documentary
evidence.
32

Grossmuller v. Int’l Union, United Auto. Aerospace & Agricultural Implement
Workers of Am., 715 F.2d 853, 857–58 (3d Cir. 1983).
The Eleventh Circuit has found procedural unfairness when an administrator
failed to obtain and consider a Social Security disability award. Melech v. Life Ins.
Co. of N. Am., 739 F.3d 663, 675–76 (11th Cir. 2014) (determining that, “having
sent [the plaintiff] to seek alternative compensation, [the defendant] was not free to
ignore the evidence generated by the SSA process as soon as it no longer had a
financial stake in the amount of money the SSA decided to award”). Other courts
have found ERISA procedural violations based on a deficient letter denying
benefits or upholding a denial of benefits. Weaver v. Phoenix Home Life Mut. Ins.
Co., 990 F.2d 154, 159 (4th Cir. 1993) (determining that ERISA procedural
guidelines were violated because the defendant had not provided the plaintiff with
a specific reason for the denial of benefits); Grossmuller, 715 F.2d at

858

(affirming district court’s finding that the plaintiff did not receive a full and fair
review because the letter informing him that his benefits were being terminated did
not specify the evidence used to support the determination or allow the plaintiff an
opportunity to respond to or rebut the evidence); Olds v. Retirement Plan of Int’l
Paper Co., 782 F. Supp. 2d 1297, 1302 (S.D. Ala. 2001) (finding that the plaintiff
was denied a full and fair review because the defendant upheld a denial of benefits

33

without taking into account comments and records that confirmed the existence of
the condition upon which the plaintiff’s claim was based).
When a court determines that an administrator has violated ERISA
procedures, the usual remedy is to remand the case for a full and fair review. Id. at
1303 (quoting Weaver, 990 F.2d at 159). The one exception to a remand is when
“the record establishes that the plan administrator’s denial of the claim was an
abuse of discretion as a matter of law.”

Id. (quoting Gagliano v. Reliance

Standard Life Ins. Co., 547 F.3d 230, 240 (4th Cir. 2008)). For this exception to
apply, “the case [must be] so clear cut that it would be unreasonable for the plan
administrator to deny benefits on any ground.” Caldwell v. Life Ins. Co. of N. Am.,
287 F.3d 1276, 1289 (10th Cir. 2002) (internal citation and quotation marks
omitted).
1.

Lincoln’s Conflict of Interest

Plaintiff’s first ground for asserting that she was denied a full and fair review
is that Lincoln allowed its conflict of interest to taint the review process. (Doc.
# 40, at 17–18.) Lincoln does not deny that there is a structural conflict of interest
but asserts that it takes “active steps to reduce potential bias” so that any conflict
from its dual role of both administering and funding benefits, is de minimis. (Doc.
# 58, at 21.)

34

In her motion for summary judgment, Plaintiff makes conclusory statements
about “cherry-picking” and Lincoln’s procedural abuses during the review process.
(Doc. # 40, at 18.) However, she does not provide evidence to support these
accusations. She does not mention the conflict of interest in her reply to Lincoln’s
response to her motion for summary judgment. (See Doc. # 64-1.) In her response
to Lincoln’s summary judgment motion, she alleges that the evidence demonstrates
that Lincoln’s claims and appeals employees were not insulated from Lincoln’s
profit interests. (Doc. # 56-1, at 22–23.) Lincoln maintains that Plaintiff has taken
quotes from employee evaluations out of context in order to create an illusion of
improper impact of the structural conflict. (Doc. # 62-1, at 13.) It insists that
when the performance evaluations are read in their entirety and in context, the
comments do not indicate that the decision was tainted by the conflict of interest.
The Supreme Court has held “that for ERISA purposes a conflict exists”
when an insurance company “both evaluates claims for benefits and pays benefits
claims.” Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 112–115 (2008). The
Eleventh Circuit has applied Glenn to its six-step analysis.14 When a conflict of
interest is present, the sixth step is modified and the “conflict should merely be a
factor for the court to take into account when determining whether an
administrator’s decision was arbitrary and capricious.” Blankenship, 644 F.3d
14

The six-step analysis is discussed in part C of the Discussion.
35

at 1354–55. The effect of a structural conflict of interest does not need to be
considered until the sixth step of the analysis. See Blair v. Metro. Life Ins. Co.,
955 F. Supp. 2d 1229, 1254 n.16 (N.D. Ala. 2013). Plaintiff does not provide, nor
has the court been able to discover, precedent that holds that a decision influenced
by a conflict of interest is a denial of a full and fair review so that a claimant
should be granted benefits. Plaintiff has not shown that she was denied a full and
fair review based upon Lincoln’s conflict of interest. The analysis of the conflict
of interest is in the court’s discussion of the last step of the six-step analysis (part
IV.C.4.).
2.

Lincoln’s Alleged Disregard of Plaintiff’s Submission of Evidence

Plaintiff’s second ground for asserting that she was denied a full and fair
review is that Lincoln disregarded her submission of evidence supporting her
claim. (Doc. # 40, at 18.) She insists that Lincoln ignored many “physical exam
findings . . . including the many MRI studies and radiological reports and
physician and physical therapy records.” (Doc. # 40, at 19; see Doc. # 64-1, at 4–
5.) The only evidence Plaintiff cites to support this assertion is her attorney’s letter
to Lincoln, which contains unsupported conclusory allegations about the review
process. In the letter, counsel accuses Lincoln of writing Dr. Klingbeil’s report for
her, but the only basis for the allegation is that the report does not support his
client’s claim for disability benefits. (Doc. # 40, at 20; Lincoln/Till 000364.)
36

Plaintiff also claims that Lincoln refused to credit any of her medical records that
were dated prior to December 4, 2012, and takes issue with the fact that these
records were not requested by Lincoln on the initial review and were only included
in the claim file when her counsel undertook to collect and send them to Lincoln.
(Doc. # 64-1, at 2.) She insists that “[n]ot a single piece of evidence outside these
dates was discussed.” (Doc. # 64-1, at 3.)
Lincoln counters Plaintiff’s assertion by citing evidence in the administrative
record where it stated that it had reviewed all of the information in her file
including any newly submitted evidence. (Doc. # 58, at 17.) Lincoln also asserts
that each of the reviewing physicians considered all of the documentation in the
claim file. (Doc. # 58, at 17.)
An administrator conducting a “full and fair review” must take into account
any and all documentation, comments, and information provided, whether or not
the information was available during the initial claims decision. 29 C.F.R.
§ 2560.53–1(h)(2)(iv); accord Glazer, 524 F.3d at 1245.
In Lincoln’s initial letter denying benefits, and in both of the letters denying
benefits after the appeals, Lincoln stated that it had reviewed the entire claim file
and all evidence, including any newly submitted evidence. (Lincoln/Till 000075,
001059, 001084.) In Lincoln’s letter denying benefits after Plaintiff’s second
appeal, Lincoln stated that “[Plaintiff] is also being treated for abdominal pain,
37

hyperlipidemia, esophageal reflux, fatigue, obesity, and depression but the records
. . . do not show any significant abnormalities or impairment due to these
conditions.” (Lincoln/Till 000079.) A review of the administrative record reveals
that most of these conditions are noted in medical records that pre-date
December 4, 2012. (See e.g., Lincoln/Till 000757 (office note dated October 26,
2012 that indicates fibromyalgia); 000763 (office note dated July 6, 2011 that
indicates depression); 000764 (office note dated November 18, 2009 indicating
hyperlipidemia); 000765 (office note dated November 20, 2007 indicating
hyperlipidemia and fatigue); 000766 (office note dated October 23, 2007 indicating
hyperlipidemia and esophageal reflux); 000767 (office note dated October 29,
2008 indicating abdominal pain and hyperlipidemia).)
Dr. Kalen’s report from the first appeal discusses each of the records that the
file indicates she received. (See Lincoln/Till 001065–69.) Plaintiff does not allege
that Lincoln withheld any available medical documentation from Dr. Kalen when
she reviewed Plaintiff’s file. Dr. Klingbeil’s report from the second review states
that all of the “records provided were thoroughly reviewed.”

(Lincoln/Till

000663.) After listing the records that had been provided, Dr. Klingbeil briefly
summarizes the records.15 (Lincoln/Till 000664–65.) Plaintiff does not allege and
15

Despite Plaintiff’s contention that Lincoln ignored all records dated before December
4, 2012, her counsel’s letter took issue with the fact that many of the records summarized in Dr.
Klingbeil’s report did not involve Plaintiff’s back condition. (Lincoln/Till000364.) However,
Plaintiff’s counsel is the one who collected and submitted these records to Lincoln for review.
38

the court has not discovered that Lincoln withheld any available medical
documentation from Dr. Klingbeil when she reviewed Plaintiff’s file.
Plaintiff has not demonstrated that Lincoln failed to review any of her
submitted medical evidence during the pendency of her claim and appeals. Under
the terms of the plan, Plaintiff bore the burden to prove that she was disabled.
(Lincoln/Till 000047.) Therefore, Plaintiff was not denied a full and fair review
based on the fact that Plaintiff’s counsel collected and provided some of the
medical documentation for the second appeal or that the documentation was not
collected by Lincoln for the initial claim or first appeal. Plaintiff has not shown
that Lincoln disregarded her submission of medical documentation.
3.

Lincoln’s Alleged Failure to Provide All Relevant Documents

Plaintiff’s third ground for asserting that she was denied a full and fair
review is that Lincoln violated ERISA procedural tenets by not providing her with
all relevant documents. Plaintiff insists that because Dr. Klingbeil’s report was
noted in the claim file to be a “final report” that there must have been several drafts
that were not provided to her. (See Doc. # 40, at 20–21; Doc. # 41, Ex. 28.) She
(Doc. # 64-1, at 2.) As already discussed, Lincoln is required to review all of the documents in
the file in order to provide a full and fair review.
The fact that Dr. Klingbeil took the time to summarize all of the records and not just
those concerning Plaintiff’s back condition constitutes additional evidence that she reviewed the
entire file and did not ignore any of the evidence submitted by Plaintiff. Plaintiff’s assertion that
the summaries imply that Dr. Klingbeil ignored more probative evidence is unfounded. Dr.
Klingbeil provided more detailed summaries of the MRIs, x-rays, and office visit notes related to
Plaintiff’s back conditions than to those that are unrelated.
39

argues that she was also denied a “meaningful opportunity” to respond to Dr.
Klingbeil’s report and provide rebuttal evidence and that “[s]imply asking for
commentary on that review” was not enough for a full and fair review process.
(Doc. # 40, at 24–25.) Other than these drafts of the report, Plaintiff does not
identify which documents Lincoln failed to provide. In her response to Lincoln’s
summary judgment motion, she insists that Lincoln has still not complied with
discovery and states that she would be filing a motion to enforce in order to get the
necessary information from Lincoln. (Doc. # 56-1, at 22.) Lincoln insists that it
has complied with discovery and that Plaintiff “failed to identify how [its] response
was deficient.” Lincoln states that its counsel sent two letters to Plaintiff’s counsel
inquiring about the assertion and never received an explanation. (Doc. # 62-1,
at 16 n.7.) Plaintiff never filed the motion to enforce.
An administrator is required to provide “‘all documents, records, and other
information relevant to the claimant’s claim for benefits’ for the review to qualify
as a ‘full and fair review.’”
§ 2560.503–1(h)(2)(iii)).

Glazer, 524 F.3d at 1245 (quoting 29 C.F.R.

However, the Eleventh Circuit has held that an

administrator is not required to provide a claimant with a copy of a report by an
independent appeal-level reviewing physician until after the administrator has
made its decision on the appeal. Id. An administrator has not “relied upon” such a

40

report until the benefit determination has been made; therefore, the report does not
have to be produced to the claimant until after the final decision. Id.
The only documents that Plaintiff alleged that she did not received are early
drafts of Dr. Klingbeil’s report. There is no affirmative representation that such
drafts exist. Lincoln asserts that it has responded to discovery as ordered by the
court. Plaintiff did not respond to Lincoln’s counsel’s attempt to clarify what
discovery was sought and did not file the motion to enforce. The court concludes,
therefore, that all discovery issues are resolved and that the record is complete.
Dr. Klingbeil reviewed Plaintiff’s file on the second appeal; therefore,
Lincoln did not rely on the report until it made its determination during the second
appeal. Thus, Lincoln was not required to provide Plaintiff with a copy of the
report until after it made its determination on the second appeal. Lincoln provided
Plaintiff with a copy of the report prior to its determination and allowed her time to
forward it to her treating physicians for review. In the letter accompanying the
report, Lincoln stated that “If your client’s physicians should disagree with the
assessment then we would appreciate any information that he/she could provide to
us that would dispute the enclosed findings.” (Lincoln/Till 000661.) Plaintiff was
given twenty-one days to complete this process but did not submit additional
evidence or a rebuttal to the findings.

41

Based on the Eleventh Circuit’s holding in Glazer, the court finds that
Lincoln provided Plaintiff with Dr. Klingbeil’s report before it was required to do
so under ERISA procedures. See Glazer, 524 F.3d at 1245. Lincoln also allowed
Plaintiff adequate time to review and provide rebuttal information to the report.
Therefore, Plaintiff has not shown that Lincoln denied her a full and fair review by
failing to provide all relevant documents to her or by not allowing her a proper
opportunity to respond to Dr. Klingbeil’s report.
4.

Lincoln’s Alleged Disregard of the Social Security Determination

and Vocational Analysis
Plaintiff’s fourth ground for asserting that she was denied a full and fair
review is that Lincoln disregarded the Social Security determination and vocational
analysis. (Doc. # 40, at 25–26.) Plaintiff does not provide evidentiary support for
her conclusory assertion that Lincoln disregarded the Social Security determination
and vocational analysis. Instead, she relies on the Eleventh Circuit decision in
Melech and insists that Lincoln committed a violation similar to the procedural
violation in that case. (Doc. # 56-1, at 20 n.8 (citing Melech, 739 F.3d 663).) She
also quotes Lincoln’s policies requiring the appeal letter to make a distinction
between the Social Security decision and its decision, and states that Lincoln
violated its own policies by not addressing this distinction in the denial letter.
(Doc. # 40, at 7–8.) Lincoln contends that it did review the Social Security
42

determination and that Dr. Klingbeil also reviewed the medical evaluation by Dr.
Johnson for the Social Security claim. (Doc. # 58, at 15.)
In Melech, the Eleventh Circuit determined that it was procedurally unfair
for a plan administrator to participate in a claimant’s Social Security application
when the administrator granted the applicant’s benefits claim and therefore would
benefit from the Social Security award, but to ignore the Social Security
determination when the administrator denied benefits. 739 F.3d at 675–76. In a
recent unpublished decision, the Eleventh Circuit distinguished the Melech
situation and held that an administrator is not “required to specifically consider
either the Social Security award itself or the contents of the Notice of Award
letter” once it has already considered the Social Security doctor’s report. Oates v.
Walgreen Co., 573 F. App’x 897, 911 (11th Cir. 2014). The Eleventh Circuit
found these circumstances “very different from Melech, in which the plan
administrator deemed irrelevant the SSA award and the evidence on which it was
based.” Id. In Melech, no part of the Social Security award or file was available to
or reviewed by the administrator during the pendency of the claim. 739 F.3d
at 670.
The procedural violation that the Eleventh Circuit found in Melech is
different from the situation here.

Similar to the situation in Oates, where a

reviewing physician considered the Social Security medical evaluation, here Dr.
43

Klingbeil reviewed Dr. Johnson’s Social Security medical evaluation of Plaintiff
and Dr. Voreis’s assessment, both of which supported Plaintiff’s Social Security
claim. (See Oates, 573 F. App’x at 902; Lincoln/Till 000665.) Additionally,
Lincoln stated in its letter denying benefits after Plaintiff’s second appeal that it
had reviewed all of the documentation in the file. (Lincoln/Till 000077.) This
documentation included Dr. Johnson’s evaluation, Dr. Voreis’s long term disability
assessment for Social Security, the Social Security determination, and the
vocational analysis. Lincoln mentioned Dr. Johnson’s evaluation and the Social
Security benefits in the denial letter following the second appeal. Lincoln also
explained that the Social Security benefits decision is based on a different plan and
interpretation than the ERISA plan. (Lincoln/Till 000079.)
This language explains the difference between the Social Security grant of
benefits and Lincoln’s denial. Lincoln’s internal policies and procedures identify
specific Social Security provisions that do not apply to this ERISA plan, but those
provisions are not the only differences between the procedures in this case and the
Social Security procedures. See Oliver, 613 F. App’x at 897–99 (discussing the
Social Security five-step procedure and contrasting it with provisions in an ERISA
plan; determining that “based on our precedent and the manifestly different criteria
of the SSA and the Plan, [the claimant] cannot simply rely on the determination by
the SSA in challenging [the] denial of benefits”). Therefore, there is no evidence
44

that Lincoln violated its procedures by not mentioning one of the listed Social
Security distinction criteria, because those differences were not present here. It
followed its procedures by explaining that its denial is based on the plan provisions
that are independent and different from the Social Security provisions.
Plaintiff offers no proof that Lincoln disregarded or ignored the Social
Security determination or medical evaluation.

The administrative record

demonstrates that Lincoln reviewed the Social Security determination and the
evidence upon which it was based. Plaintiff has not shown that she was denied a
full and fair review by Lincoln’s alleged disregard of the Social Security
determination and the vocational analysis.
5.

Lincoln’s Alleged Disregard of Plaintiff’s Actual Job Requirements

Plaintiff’s fifth and final ground for asserting that she was denied a full and
fair review is that Lincoln disregarded her actual job requirements. (Doc. # 40,
at 27–29.) She insists that Lincoln ignored the actual description of her job, as
provided by Gilliard, and relied solely on the description provided in the DOT.
She also asserts that Lincoln ignored its own internal policies and procedures by
“ignoring” her actual job description because its policies require its personnel to
“examine” her job description and the “physical requirements of her job.” (Doc.
# 56-1, at 20–21.) Finally, she argues that the DOT job classifications are
outdated, having been produced in 1991, and having been recently replaced by a
45

new online classification system. (Doc. # 40, at 27–28.) However, Plaintiff did
not submit evidence to demonstrate how this new classification system would have
changed the national workforce definition of her occupation. Lincoln asserts that
Plaintiff’s argument ignores the plan provisions and definitions. (Doc. # 58, at 7.)
It also insists that it reviewed the entire file, including Plaintiff’s job description.
(Doc. # 62-1, at 4.)
Similar to Plaintiff’s other arguments about Lincoln ignoring or disregarding
portions of the record, Plaintiff does not provide proof that Lincoln “ignored” or
“disregarded” her actual job description.

On the contrary, the administrative

record shows that Lincoln reviewed Plaintiff’s actual job description several times.
In each of the three determination letters, Lincoln states that it reviewed the
entire claim file. (Lincoln/Till 000075, 001059, 001084.) Lincoln requested the
job description during the initial claim process.

(Lincoln/Till 001116.)

Additionally, each letter described the main duties of Plaintiff’s occupation as
determined by Lincoln, and noted that the determination was based on the
information from Plaintiff’s employer and the information from the DOT.
(Lincoln/Till 000076, 001060, 001086.) During the review on the first appeal,
Lincoln had a vocational analysis performed to determine that it had correctly
determined Plaintiff’s “own occupation” and the appropriate physical capacity
required. (Lincoln/Till 000153.) This analysis included reviewing the formal job
46

description provided by her employer.

Dr. Kalen also considered the job

description in her review and evaluated Plaintiff’s ability to work under both her
actual job description and the national workforce standard used by Lincoln.
(Lincoln/Till 001068.)
Plaintiff has not demonstrated that Lincoln disregarded her actual job
description during its initial claim review or during the two appeals. Nor has
Plaintiff produced binding authority that requires Lincoln to deviate from its “own
occupation” definition set out clearly in the policy. Plaintiff did not demonstrate
how the new online system used by the Department of Labor would have changed
her “own occupation” in the national workforce.

Therefore, Plaintiff has not

shown that she was denied a full and fair review by Lincoln’s alleged disregard of
her actual job description.

The definition Lincoln used for Plaintiff’s own

occupation is compared with Plaintiff’s job description during the six-step analysis
in Part IV.B.3.a.
Because Plaintiff has not shown that she was denied a full and fair review of
her claim, the court now turns to whether Lincoln’s benefits determination was
correct and reasonable under the appropriate standard of review for a denial of
benefits under ERISA.

47

C.

Six-Step Analysis
1.

Standard of Review

ERISA does not establish the standard a court uses to review an
administrative decision denying benefits under 29 U.S.C. § 1132(a)(1)(B);
however, the Supreme Court has recognized that there are three possible standards:
de novo, arbitrary and capricious, and heightened arbitrary and capricious. See
Glenn, 554 U.S. at 110–11 (citing Firestone Tire and Rubber Co. v. Bruch, 498
U.S. 101 (1989)); but see Doyle v. Liberty Life Assurance Co. of Bos., 542 F.3d
1352, 1359 (11th Cir. 2008) (“Glenn implicitly overrules and conflicts with our
precedent requiring courts to review under the heightened standard a conflicted
administrator’s benefits decision”). As the Supreme Court described, “a denial of
benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo
standard unless the benefit plan gives the administrator or fiduciary discretionary
authority to determine eligibility for benefits or to construe the terms of the plan.”
Firestone, 498 U.S. at 115. The de novo standard “offers the highest scrutiny (and
thus the least judicial deference) to the administrator’s decision.” Williams v.
Bellsouth Telecomms., Inc., 373 F.3d 1132, 1137 (11th Cir. 2004).
The arbitrary and capricious standard applies if the plan gives an
administrator discretionary authority. Doyle, 542 F.3d at 1359–60. In other words,
this standard applies when “the plan documents at issue explicitly grant the claims
48

administrator discretion to determine eligibility or construe terms of the plan.”
HCA Health Servs. of Ga., Inc. v. Emp’rs Health Ins. Co., 240 F.3d 982, 992 (11th
Cir. 2001).

This standard accords the most judicial deference–and the least

scrutiny–to the administrator’s decision. Williams, 373 F.3d at 1137.
The Eleventh Circuit has adopted a six-step framework for reviewing
ERISA benefits decisions. Blankenship, 644 F.3d at 1354. The framework was
first established in Williams and modified in Doyle based on the Supreme Court’s
decision in Glenn. Id. at 1354–55 (citing Williams, 373 F.3d at 1137–38; Doyle,
542 F.3d at 1359–60). The present six-step test is as follows:
(1) Apply the de novo standard to determine whether the claim
administrator’s benefits-denial decision is “wrong” (i.e., the court
disagrees with the administrator’s decision); if it is not, then end the
inquiry and affirm the decision.
(2) If the administrator’s decision in fact is “de novo wrong,” then
determine whether he was vested with discretion in reviewing claims;
if not, end the inquiry and reverse the decision.
(3) If the administrator’s decision is “de novo wrong” and he was
vested with discretion in reviewing claims, then determine whether
“reasonable” grounds supported it (hence, review his decision under
the more deferential arbitrary and capricious standard).
(4) If no reasonable grounds exist, then end the inquiry and reverse
the administrator’s decision; if reasonable grounds do exist, then
determine if he operated under a conflict of interest.
(5) If there is no conflict, then end the inquiry and affirm the
decision.

49

(6) If there is a conflict, the conflict should merely be a factor for the
court to take into account when determining whether an
administrator’s decision was arbitrary and capricious.
Id. at 1355 (citing Capone v. Aetna Life Ins. Co., 592 F.3d 1189, 1195 (11th Cir.
2010)).16 The arbitrary and capricious standard of review applies to “both the
administrator’s construction of the plan and concomitant factual findings.”
Paramore v. Delta Air Lines, Inc., 129 F.3d 1446, 1451 (11th Cir. 1997).
2.

Discretionary Authority and De Novo Review

The plan states that Lincoln has the discretionary authority to “1. establish
administrative procedures, determine eligibility and resolve claims questions;
2. determine what information the Company reasonably requires to make such
decisions; and 3. resolve all matters when an internal claim review is requested.”
(Lincoln/Till 000049.) Plaintiff does not contest Lincoln’s discretionary authority
under the plan. (See Docs. # 40, 56-1, 64-1.) Because of the clear grant of
discretionary authority under the plan, the court will review Lincoln’s decision for
reasonableness without reviewing the decision de novo.17 See Holland v. Int’l
16

The phrases “arbitrary and capricious” and “abuse of discretion” are interchangeable in
an ERISA case. Blankenship, 644 F.3d at 1355 n.5 (citing Jett v. Blue Cross & Blue Shield of
Ala., Inc., 890 F.2d 1137, 1139 (11th Cir. 1989)).
17

Although the court declines to review the decision de novo, the evidence in this case
supports a finding that Lincoln’s decision is wrong. Lincoln failed to credit the statements of the
three treating physicians who saw Plaintiff in person and all conflicting evidence was decided
against Plaintiff. Lincoln failed to credit any evidence supporting Plaintiff’s subjective
complaints of pain or loss of strength. Lincoln repeatedly noted that Plaintiff did not submit
evidence of a physical exam, but chose not obtain an independent medical examination by a
physician of its choice. Because the plan grants Lincoln discretion, it was not required to take
50

Paper Co. Retirement Plan, 576 F.3d 240, 246 (5th Cir. 2009) (noting that when a
plan clearly gives an administrator discretionary authority to determine benefits,
the appropriate standard of review is abuse of discretion).
3.

Arbitrary and Capricious Review

When reviewing a benefits determination under the arbitrary and capricious
standard, the court is limited to the record before the administrator at the time it
made the decision. Blankenship, 644 F.3d at 1354 (citing Jett, 890 F.2d at 1140);
see e.g. Buckley v. Metro. Life, 115 F.3d 936, 941 (11th Cir. 1997). Under this
standard, the administrator’s interpretation of the plan is entitled to a high level of
deference; however, the standard is not toothless. “[A] deferential standard of
review does not mean that the plan administrator will prevail on the merits. It
means only that the plan administrator’s interpretation of the plan ‘will not be
disturbed if reasonable.’”

Conkright v. Frommert, 559 U.S. 506, 521 (2010)

(quoting Firestone, 489 U.S. at 111).

If “no reasonable basis exists for the

decision,” then the decision is arbitrary and capricious. Braden v. Aetna Life Ins.
Co., 597 F. App’x 562, 565 (11th Cir. 2014) (quoting Shannon v. Jack Eckerd
Corp., 113 F.3d 208, 210 (11th Cir. 1997) (internal quotation marks omitted)).

any of these actions, however, when the court considers the combination of these factors it
“disagrees with the administrator’s decision.” See Capone, 592 F.3d at 1196 (noting that “[a]
decision is ‘wrong’ if, after a de novo review, ‘the court disagrees with the administrator’s
decision.’”) (citing Williams, 373 F.3d at 1138).
51

The “decision to deny benefits must be upheld so long as there is a
‘reasonable basis’ for the decision.” Oliver, 497 F.3d at 1195 (citing Jett, 890 F.2d
at 1140). “It is irrelevant that the court or anyone else might reach a different
conclusion.” Turner, 291 F.3d at 1274. The administrator’s decision “need not be
the best possible decision, only one with a rational justification.” Griffis, 723 F.2d
at 825. A denial of benefits based on conflicting, reliable evidence is not arbitrary
and capricious. See Oates, 573 F. App’x at 910 (citing Oliver, 497 F.3d at 1199).
When an administrator has discretion to determine the proof required for a finding
of disability, it is not unreasonable for the administrator to require objective
evidence. See Wangenstein v. Equifax, Inc., 191 F. App’x 905, 913–14 (11th Cir.
2014).
Plaintiff asserts that Lincoln’s decision was arbitrary and capricious because
(1) it ignored the actual requirements of Plaintiff’s job description, (2) it
disregarded the Social Security award and vocational assessment, (3) it favored the
opinions of “paper-reviewing doctors” over physicians who treated Plaintiff in
person, and (4) it ignored the many “physical exam findings” in the ERISA
record.18 (Doc. # 40, at 15–29.)

18

Plaintiff also asserts that the decision was not reasonable because she was denied a full
and fair review and because Lincoln allowed its conflict of interest to influence the decision. In
the previous section, the court determined that Plaintiff has not shown that she was denied a full
and fair review. Lincoln’s conflict of interest will be discussed in the sixth step of the analysis
(part IV.C.4.).
52

a.

Definition of Own Occupation

Plaintiff contends that Lincoln ignored Gilliard’s description of her
occupation in violation of its own procedures and ERISA. She accuses Lincoln of
“elect[ing] to rely exclusively” on the DOT definition. (Doc. # 40, at 27.) She
insists that courts “routinely require consideration of actual job responsibilities and
requirements.”

Plaintiff relies on Lasser v. Reliance Standard Life Ins. Co.,

344 F.3d 381, 385–86 (3d Cir. 2003), to support her proposition that Gilliard’s
description of her actual job responsibilities should be the only relevant description
of her “own occupation” under the plan. (Doc. # 40, at 28.) Lincoln asserts that its
determination that Plaintiff’s occupation was a light-duty occupation is correct and
reasonable under the terms of the policy. (Doc. # 58, at 7.) The court agrees with
Lincoln.
Plaintiff’s arguments fail for two reasons. First, her reliance on Lasser is
misplaced. In Lasser, because the policy did not define “regular occupation” the
court applied the “plain meaning of ‘regular occupation’” and rejected the
administrator’s “generic understanding” of the term.

344 F.3d at 385–86.

Unlike the policy in Lasser, the policy here defines the term “Regular
Occupation or Own Occupation” as “includ[ing] the main duties of that occupation
as performed in the national workforce; not as performed for a certain firm or at a
certain work site.” (Lincoln/Till 000045.) Lincoln included this definition in each
53

of its letters to Plaintiff denying her benefits after her two appeals. (Lincoln/Till
000075, 001059.) In Lincoln’s letter denying Plaintiff’s initial claim, it explained:
It is important to note that the policy under which you are covered
refers to and is governed by the main duties of your regular
‘occupation’ and not by the duties of your specific job. Nearly every
job in the economy is performed slightly different from one employer
to another. . . . The term ‘occupation’ refers to a collective description
of a number of individual jobs that are performed, with variations, in
many establishments.
Consequently, there will be similarities
between the main duties of your occupation and those of your job.
There may also be some differences.
(Lincoln/Till 001085.)

Under the terms of the policy, Plaintiff’s “regular

occupation” is defined not by her actual job duties and requirements, but by
reference to the main duties of her occupation as defined in the national workforce.
This definition was provided in the policy, reasonably relied upon by Lincoln in
making its benefits determination, and explained to Plaintiff when the benefits
were denied. Plaintiff has not presented an alternate definition of her occupation
based on the national workforce standard defined in the policy.
The second reason Plaintiff’s arguments fail is she has not provided
evidence that Lincoln disregarded her actual job requirements. As explained in the
full and fair review analysis, Part IV.B.5., the administrative record demonstrates
that Lincoln considered Gilliard’s description of Plaintiff’s actual job requirements
when it determined the main duties of her regular occupation. In addition, a
review of the main duties as defined by Gilliard and as defined by Lincoln
54

demonstrates that there are few differences. However, the main difference is a
significant one.
After reviewing all the relevant information, including Gilliard’s description,
a vocational analysis, and the DOT, Lincoln defined the main duties of Plaintiff’s
occupation as
• Positions patient on examining table and adjusts immobilization
devices to obtain optimum views of specified area of body
requested by physician
• Explains procedures to patient to reduce anxieties and obtain
patient cooperation
• Moves x-ray equipment into specified position and adjusts
equipment controls to set exposure factors, such as time and
distance, based on knowledge of radiographic exposure techniques
and protocols
• Practices radiation protection techniques, using beam restrictive
devices, patient shielding skills, and knowledge of applicable
exposure factors, to minimize radiation to patient and staff.
(Lincoln/Till 001060.)

Gilliard’s description of Plaintiff’s duties includes the

following responsibilities
• According to established procedures, prepares patients for
radiography by transporting patient between waiting/patient room
and x-ray room, ensuring proper identification of patient; assists
patient with dressing and undressing and lifts patients onto and off
examination table
• Properly positions patients in order to obtain desired radiographic
results according to physician specifications; places restraint
devices and protective lead shield on patient and briefly instructs
patient on proper position for required exposure.
• Calculates and selects proper technical factors such as: voltage,
current, exposure time, and focal distance based on information
such as patient’s age, physical condition, and suspected pathology
55

• Selects and loads proper film cassettes and operates radiology
equipment by manually activating proper switches and adjusts
switches in order to regulate length and intensity of exposure
• Monitors patient condition during procedure for possible
complications and administers emergency procedures in [sic] the
need arises.
(Lincoln/Till 001095.) The only material difference is Gilliard’s inclusion of the
responsibility for “lift[ing] patients onto and off examination table.”

This

difference is demonstrated in the difference in the physical requirements as noted
by Dr. Kalen during her review of Plaintiff’s medical records. (See Lincoln/Till
001065, 001068.)

As defined by Gilliard, Plaintiff’s occupation is a heavy

physical capacity occupation, but as defined by the DOT, Plaintiff’s occupation is
a light physical capacity occupation. Plaintiff asserts that Lincoln’s use of the
DOT is unreasonable because it is outdated. (Doc. # 40, at 27–28.)
The Eleventh Circuit recently considered a similar situation in an
unpublished decision. In Stiltz v. Metro. Life Ins. Co., 244 F. App’x 260 (11th Cir.
2007), the plan defined “occupation” in a way that allowed the administrator to
look beyond the “specific position,” and the administrator relied upon the DOT to
determine that the relevant occupation was “light-duty.” Id. at 264. The claimant
in Stiltz disagreed with this description of his occupation and argued that his
occupation was more than light duty. Id. The Eleventh Circuit determined that the
administrator was “entitled to rely on the [DOT]” and was “not de novo wrong” in

56

its interpretation of the plan and its decision that the claimant could perform his
light-duty occupation. Id.
Although Stiltz is not binding, it is instructive on the reasonableness of
Lincoln’s reliance on the DOT. Based on Stiltz and the definition of “regular
occupation” in the plan, the court finds that Plaintiff has not shown that Lincoln
was arbitrary and capricious in its reliance on the DOT or its determination that
Plaintiff’s occupation was a light physical capacity occupation.19
b.

Social Security Determination

Plaintiff argues that Lincoln’s decision was arbitrary and capricious because
it ignored the Social Security determination and vocational assessment. (Doc.
# 40, at 25–26.) She insists that the Social Security’s definition of disability is “far
more exacting than the ‘own occupation’ definition” in the policy. (Doc. # 40,
at 26 (emphasis in the original).) She asserts that Lincoln’s “disregard” of the
Social Security decision, and particularly the vocational assessment, is arbitrary
and capricious. (Doc. # 40, at 26; Doc. # 56-1, at 16–17.) Lincoln states that it did
consider the Social Security determination; however, that determination “lacked
any proof supporting Plaintiff’s claim.” (Doc. # 58, at 15.)

19

This conclusion is technically correct in a strict view of precedent and the plan
definition of “own occupation.” But it risks making the court complicit in a bureaucratic time
warp of an outdated definition, a regulatory trick typical of government-run agencies.
57

A favorable benefits determination by the Social Security Administration “is
not considered dispositive on the issue of whether a claimant satisfies the
requirement for disability under an ERISA-covered plan.” Oliver, 613 F. App’x at
897 (citing Whatley, 189 F.3d at 1314 n.8). The Social Security Administration
has its own set of policies and procedures it must follow when making benefits
determinations, and these can substantially vary from an ERISA policy. See id. at
897–99 (discussing the differences between the Social Security process and the
ERISA plan). One significant difference is that “[t]he Social Security law that
greater weight must be given to the opinion of the treating physician is not
applicable to the decision of a claims administrator of an ERISA-governed
employee health plan. . . .” Jett, 890 F.2d at 1140; see Black & Decker Disability
Plan v. Nord, 538 U.S. 822, 832–33 (2003) (noting “critical differences between
the Social Security disability program and ERISA benefit plans [that] caution
against importing a treating physician rule from the former area into the latter”).
As discussed in the full and fair review analysis, Part IV.B.4., Plaintiff has
not shown any evidence that the Social Security determination was disregarded or
ignored.

Lincoln not only reviewed the Social Security determination, but it

explained its reasons for not following it in its letter denying Plaintiff’s benefits
after her second appeal. (Lincoln/Till 000078–79.) The letter includes a quote
from Dr. Klingbeil’s report that states that, during the Social Security medical
58

exam, Dr. Johnson did not perform a physical exam on Plaintiff, because she
declined. (Lincoln/Till 000078.)20 Notably, the Social Security determination
gave “great weight” to Dr. Johnson’s opinion. (Lincoln/Till 000374.) Based upon
controlling precedent, Lincoln was not required to give the same deference to his
opinion. The court cannot say that it was unreasonable for Lincoln to determine
that other medical evidence was due more weight than Dr. Johnson’s opinion based
on Lincoln’s determination that Dr. Johnson did not perform a physical exam.21
The second appeal denial letter also explained that the Social Security
determination was based on the Social Security Administration’s plan provisions
and independent information that was a separate consideration from Lincoln’s
decision. Lincoln considered the Social Security award and medical examination
and distinguished its decision from the Social Security grant of benefits. The court
finds that Plaintiff has not shown that Lincoln’s decision was arbitrary and
capricious based on its lack of consideration of the Social Security award letter and
medical examination.

20

Dr. Klingbeil did not fully contextualize Plaintiff’s declination – “[s]he cried almost
constantly during the evaluation, appeared to be is [sic] significant pain and appeared
exhausted” (Lincoln/Till 000677) – in her report, but she had the benefit of the information. She
chose not to credit it.
21

Analysis of the medical evidence and physical exams is discussed in the next section.
59

c.

Opinions of Treating Physicians

Plaintiff contends that Lincoln should have given more deference to the
opinions of the physicians who saw her in person rather than the independent
physicians who only reviewed her file. She cites two Ninth Circuit cases22 in
support of her assertion that “[i]t is well established that the opinions of treating
physicians that are based on direct observations, examination, and clinical findings,
are to be accorded greater weight than those of paper-reviewing doctors.23 (Doc.
# 40, at 20–21.) She argues that it was arbitrary and capricious for Lincoln to
credit the reviewing physicians’ opinions over the opinions of Plaintiff’s treating
physicians. (Doc. # 64-1, at 7.) Lincoln responds that the record shows that it and
the independent physician reviewers considered all of the information in the record
and that Plaintiff has “no basis for the conjecture that Lincoln or the independent
physicians disregarded the opinions of treating physicians or any other medical
documentation in the claim file.” (Doc. # 58, at 17.)

22

Solomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 676 (9th Cir. 2011);
Montour v. Hartold Life & Accident Ins. Co., 588 F.3d 623, 634 (9th Cir. 2009).
23

Plaintiff also asserts that there were several procedural defects in Dr. Klingbeil’s
report. (Doc. # 40, at 20 (citing Plaintiff’s counsel’s letter to Lincoln complaining about the
review and report done by Dr. Klingbeil).) Aside from the letter setting forth these allegations,
Plaintiff has not provided evidence to support them. Therefore, these allegations will not be
further addressed.
60

In contrast to the Ninth Circuit24 cases cited by Plaintiff, the Eleventh Circuit
has held that an “administrator is not categorically required . . . to accept the
opinions of the claimant’s treating physicians over those of independent medical
professionals who have reviewed the claimant’s file but have not directly observed
the claimant.” Oates, 573 F. App’x at 909 (citing Blankenship, 644 F.3d at 1356);
see id. at 909 n.17 (noting that in Blankenship the court applied Black & Decker,
538 U.S. at 834, to a conflict between treating physicians and physicians who had
only reviewed the plaintiff’s file). In fact, the Eleventh Circuit has held that a
district court erred by giving “special weight to the opinions of [the plaintiff’s]
treating physicians.” Shaw v. Conn. Gen. Life Ins. Co., 353 F.3d 1276, 1287 (11th
Cir. 2003). While an administrator may not arbitrarily ignore relevant medical
evidence, it is not arbitrary and capricious to deny a disability claim “on the basis
of conflicting, reliable evidence.” Oliver v. Coca Cola Co., 497 F.3d 1181, 1199
(11th Cir. 2007) (citing Shaw, 353 F.3d at 1287).
Plaintiff has not provided evidence showing that the reviewing physicians’
reports and opinions were unreliable. Also, as discussed in the full and fair review
analysis, Part IV.B.2., Plaintiff has not demonstrated that Lincoln ignored or
disregarded any of the medical evidence in the administrative record. Therefore,

24

See Turner v. Delta Family-Care Disability & Survivorship Plan, 291 F.3d 1270,
1273–74 (11th Cir. 2002) (noting that the Ninth Circuit precedent requiring deference to
opinions of treating physicians is contrary to the law of the Eleventh Circuit).
61

Lincoln’s decision was not arbitrary and capricious based upon Lincoln’s decision
to accord greater weight to the opinions of the independent reviewing physicians.
d.

Physical Exam Findings

Plaintiff insists that Lincoln “endeavored mightily to avoid acknowledging
many ‘physical exam findings’ included in [her] ERISA record, including the
many MRI studies and radiological reports and physician and physical therapy
records . . . .” (Doc. # 40, at 19.) Plaintiff makes several conclusory allegations
including that Lincoln and the reviewing physicians “failed to actually read the
vast majority of the medical records,” “never actually considered [Plaintiff’s
records],” and “never read . . . the information sent on [Plaintiff’s] behalf.” (Doc.
# 64-1, at 4–6 (emphasis in the original).)
Lincoln insists that its decision to deny Plaintiff benefits was reasonable and
that Plaintiff cannot meet her burden of showing that it was arbitrary and
capricious. (Doc. # 58, at 20.) Lincoln contends that Plaintiff has not cited
evidence that Lincoln ignored any of the medical evidence and that she has failed
to explain why the opinions of the reviewing physicians were unreasonable. (Doc.
# 58, at 20; Doc. # 62-1, at 5.) Lincoln cites Plaintiff’s physical therapy records,
Dr. Lurate’s notes, Dr. Kalen’s report, and Dr. Klingbeil’s report in support of its
argument that it had a reasonable basis for its decision. (Doc. # 62-1, at 6–7.) It

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argues that because it had a reasonable basis as supported in the record, the
decision was not arbitrary and capricious.
It is clear from the administrative record and the parties’ briefs that Lincoln
and Plaintiff do not agree on the definition of “physical exam.” Lincoln noted the
lack of a physical exam in the record in each of its letters denying Plaintiff
benefits.

In the denial letter following the second appeal, Lincoln informed

Plaintiff that her file “lack[ed] documentation showing abnormal physical
examination findings.” (Lincoln/Till 000079.) In the denial letter following the
first appeal, Lincoln noted that the file contained “limited physical examination
notes.” (Lincoln/Till 001062.) In the denial letter for the initial claim, Lincoln
stated that “[t]here is only one physical examination with the medical
documentation in your file” and that “[t]here is a lack of sufficiently abnormal
examination findings. . . .”

(Lincoln/Till 001086.)

Despite these repeated

statements about a lack of physical exams, Plaintiff insists that the record shows
“physical exam findings” in the form of her MRIs, x-rays, physician notes, and
physical therapy notes that Lincoln “disregarded.” (Doc. # 40, at 19.) Neither
party defines “physical exam” in any of the briefs, but a review of the
administrative record is enlightening.
The first letter Lincoln sent Plaintiff denying benefits contains a detailed
discussion of the medical documentation in the file. (Lincoln/Till 001084–88.)
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The letter noted that x-rays showed “multilevel disc disease in the lower and
thoracic spine” and that an MRI showed spondylotic disease.

Most of the

discussion concerned records from Dr. Lurate and the relevant portion states that
during Plaintiff’s first visit to Dr. Lurate “a physical examination revealed no
evidence of scoliosis or paraspinal muscle spasm. A poor voluntary range of
motion of the back in flexion and extension is noted as well as hip rotation being
well tolerated without pain. A straight leg raise was found to be negative.” It goes
on to discuss Plaintiff’s second visit to Dr. Lurate and states that “[t]here were no
physical examination findings noted.”

(Lincoln/Till 001085.)

The summary

portion of the letter explicitly notes that “[t]here is only one physical examination
with the medical documentation in your file” and “[t]here is a lack of sufficiently
abnormal examination findings in addition to a lack of documentation of any loss
of strength, neurological deficits, or motor findings.” (Lincoln/Till 001086.)
A review of Dr. Lurate’s notes from Plaintiff’s two visits shows that on the
first visit, he included a “PHYSICAL EXAM” section in the notes and did not
include a similar section on the second visit. Under the “PHYSICAL EXAM”
section from December 18, 2012, Dr. Lurate indicated he had checked Plaintiff’s
range of motion with her back flexed and extended, had conducted a straight leg
raise, a heel stretch, checked her reflexes in her knees and ankles, and had checked
Plaintiff for a mass effect, scoliosis, and paraspinal muscle spasm. His notes about
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Plaintiff’s MRI and x-rays are not included in this section, but are under the
heading of “DIAGNOSTIC STUDIES.” (Lincoln/Till 000891.)
Based upon this review of Lincoln’s first determination letter and the
medical records in the administrative record, it is clear that Lincoln does not
include MRIs or x-rays within its definition of “physical exam.”

This is

demonstrated because the letter discussed the results of the MRIs and x-rays, but
noted that there was only one physical exam.

This fact is supported by the

subsequent denial letters. In the first appeal denial letter, in a paragraph discussing
Plaintiff’s MRIs, the letter also states that “[n]o formal physical examination is
noted” and “no formal examination was recorded.” (Lincoln/Till 001061.) In the
second appeal denial letter, Lincoln again noted that “the file lacks documentation
showing abnormal physical examination findings. There is no indication for a loss
of motor sensory deficits, loss of coordination or range of motion, loss of strength,
or other specific deficits. The file does not show that [Plaintiff] is functionally
impaired or that she would have restrictions or limitations.” (Lincoln/Till 000079.)
The letter also quoted from Dr. Klingbeil’s report, noting that “[p]hysical exam
was not performed as the claimant declined.” (Lincoln/Till 000078.)
As stated in the full and fair review analysis, in Part IV.B.2., Plaintiff has not
demonstrated that Lincoln ignored or disregarded any of her medical records.
Lincoln has consistently stated that the medical documentation lacks physical
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exam findings, and Plaintiff has not shown that this consistent statement is a
manipulation of the evidence or an attempt to avoid a finding of disability. The
MRIs, x-rays, doctors’ notes, and physical therapy notes were all reviewed and
discussed in the letters denying Plaintiff’s appeals and by Dr. Kalen and Dr.
Klingbeil in their respective reports. The fact that Lincoln does not term the MRIs,
x-rays, and doctors’ notes to be “physical exam findings” does not mean that they
were not reviewed and considered. Plaintiff has not cited and the court has not
discovered any evidence that supports a finding of disability that was not
considered by Lincoln.25 Lincoln did not unreasonably ignore or disregard the
physical exam findings in the medical documentation.
e.

Reasonable Basis

Lincoln asserts that its decision denying Plaintiff benefits was not arbitrary
and capricious because the evidence in the record and the opinions of the two
independent reviewing physicians provide a reasonable basis for the decision.
(Doc. # 37, at 16.) Lincoln argues that the medical documentation shows that
Plaintiff was being treated for her back problems and demonstrated that her back

25

The court notes that Lincoln stated in the denial letter following the second appeal that
there was no finding of a loss of strength. (Lincoln/Till 000079.) However, Dr. Johnson
indicated that Plaintiff’s grip strength was fifteen pounds in her right hand and five pounds in her
left hand. (Lincoln/Till 000677.) Dr. Voreis also indicated that her grip strength was at three
and a half out of five. (Lincoln/Till 000690.) Because Dr. Klingbeil reviewed the
documentation containing both of these statements and the denial of the second appeal was based
on more than lack of evidence demonstrating a loss of strength, the court does not find that these
statements change its analysis.
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was improving prior to the end of the elimination period. (Doc. # 58, at 10–11.)
Plaintiff asserts that she is “disabled as a matter of law,” but does not provide
support for the “matter of law” claim of this conclusory proposition. (Doc. # 40, at
14–15.) However, in many of her arguments, she relies on the opinions of Dr.
Voreis and Dr. Johnson, both of whom conclude that she is unable to work. (See,
e.g., Doc. # 56-1, at 13–15.)
Dr. Voreis and Dr. Johnson both indicated that Plaintiff is disabled and
unable to work. (Lincoln/Till 000677, 000696.) In the letter denying Plaintiff’s
initial claim and the letter denying benefits after the first appeal, Lincoln noted that
there were no notes from Dr. Voreis that provided a history or exam that would
support his opinion of Plaintiff’s restrictions and limitations.

(Lincoln/Till

0001061–62, 001085.) In the letter denying benefits after the second appeal,
Lincoln indicates that neither Dr. Voreis nor Dr. Johnson performed a physical
exam of Plaintiff. (Lincoln/Till 000078.) Lincoln also indicates that Dr. Voreis’s
opinion is not supported by clinical findings. (Lincoln/Till 001062.)
The restrictions indicated by Dr. Voreis in March 2013 are similar to those
indicated by Dr. Kalen upon review of Plaintiff’s file during the first appeal. On
the March 4, 2013 abilities form, Dr. Voreis indicated that Plaintiff could
occasionally carry up to twenty pounds, sit, stand, walk, bend, drive, finger,
handle, operate foot controls, and climb a few steps, but never kneel. (Lincoln/Till
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001090.) Dr. Kalen’s restrictions indicated that Plaintiff could lift up to ten pounds
frequently and up to twenty-five pounds occasionally and only bend at the waist
occasionally. (Lincoln/Till 001066–67.) Dr. Kalen agreed that Plaintiff could not
work in a heavy duty physical capacity, but Lincoln’s decision was based on
Plaintiff’s occupation being a light duty occupation.
Dr. Voreis changed his opinion of Plaintiff’s needed restrictions based on his
March 2014 assessment. He examined the same MRIs from December 2012 and
January 2013 during the assessment, but determined that different restrictions were
appropriate. (Lincoln/Till 000689, 000692.) However, he did not explain the basis
for this change in opinion. Also, despite his opinion that Plaintiff was unable to
work, he only indicated that she would be absent from work for up to four days per
month based on her impairment. The form had an option for him to indicate that
she would miss more than four days per month, but he did not indicate that she
would need to miss work that frequently. (Lincoln/Till 000696.)
Nurse Bruemmer, Dr. Kalen, and Dr. Klingbeil each reviewed Plaintiff’s file
and reached conclusions different from those of Dr. Voreis and Dr. Johnson.
(Lincoln/Till 000016, 000663–67, 001065–69.)

Plaintiff has not identified

significant medical evidence that supports Plaintiff’s impairment that was not
considered by Lincoln or one of its reviewers. Lincoln consistently found a lack of
abnormal physical exam findings in Plaintiff’s medical records, and because it had
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discretion to determine whether Plaintiff was disabled, it is not unreasonable for it
to require abnormal physical exam findings. See Wangenstein, 191 F. App’x at
913–14 (holding that an administrator with discretion “in terms of what it
considers adequate ‘proof’ of continuing disability” is not unreasonable to require
objective evidence).
A decision to deny benefits is not arbitrary and capricious when it is based
on a review by a registered nurse and two board-certified independent medical
consultants. See Keith v. Prudential Ins. Co. of Am., 347 F. App’x 548, 551 (11th
Cir. 2009).

Nothing in the record demonstrates that the opinions of Nurse

Bruemmer, Dr. Kalen, and Dr. Klingbeil are unreliable. It is not unreasonable for
Lincoln to deny Plaintiff’s claim based on conflicting but reliable evidence.
Lincoln explained its reliance on its reviewers based on the lack of objective
physical examination findings by the treating physicians. Therefore, the court
concludes that Lincoln had a reasonable basis on which it relied to deny Plaintiff’s
benefits, and its decision was not arbitrary and capricious.
4.

Conflict of Interest

Plaintiff argues that Lincoln’s decision was tainted by a conflict of interest
and that in the absence of the conflict, Lincoln would have reached a decision
favorable to her. (Doc. # 40, at 17–18; Doc. # 56-1, at 21–24.)

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When a claim administrator both funds the plan and evaluates claims, it
operates under a conflict of interest. Glenn, 554 U.S. at 114. Where a conflict
exists and a court weighs the conflict in the sixth step of the analysis, “the burden
remains on the plaintiff to show the decision was arbitrary; it is not the defendant’s
burden to prove its decision was not tainted by self-interest.” Blankenship, 644
F.3d at 1355 (citing Doyle, 542 F.3d at 1360) (internal quotation marks omitted)
(noting that even a claim for half a million dollars “is a relative amount when the
plan administrator is global”). “The effect that a conflict of interest will have
within the Williams analysis in any given case will vary according to the severity
of the conflict and the nature of the case: [A court should] look to the conflict’s
‘inherent or case-specific importance.’” Id. (quoting Glenn, 554 U.S. at 117).
When an administrator is vested with discretionary authority under a plan,
even in the presence of a conflict of interest, courts “owe deference” to that
“discretionary authority.”

Doyle, 542 F.3d at 1363.

A structural conflict of

interest is “a factor” in the analysis, “but the basic analysis still centers on
assessing whether a reasonable basis existed for the administrator’s benefits
decision.” Blankenship, 644 F.3d at 1355. A structural conflict of interest is
unremarkable in today’s marketplace, and the existence of the conflict is not “a
license, in itself, for a court to enforce its own preferred de novo ruling about a
benefits decision.” Id. at 1356.
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Plaintiff has not demonstrated that the structural conflict of interest
influenced Lincoln’s determination of her claim. She insists that because the
employees’ annual bonuses are based on corporate profitability and a denial of a
disability claim adds dollars to the company’s bottomline that implies that these
employees must be motivated by denying claims. (Doc. # 56-1, at 23.) This
connection is tenuous at best. As the Eleventh Circuit has noted, “most insurers
are well diversified, so that the decision in any one case has no perceptible effect
on the bottom line. There is correspondingly slight reason to suspect that they will
bend the rules.” Blankenship, 644 F.3d at 1357 (quoting Leipzig v. AIG Life Ins.
Co., 362 F.3d 406, 409 (7th Cir. 2004)) (internal quotation marks omitted). “While
it is true that every dollar not paid to a beneficiary is a dollar saved by [Lincoln] in
the short run, other factors and different business considerations may be in play.”
Id. A review of the evaluations of the employees demonstrates that their employee
reviews were based on more than just denying or closing claims. Lincoln had
many detailed performance metrics it used in the evaluations. The reviews do not
demonstrate a bias in claims determinations. (See Doc. # 57-1.)
Because Plaintiff has not pointed to evidence in the record suggesting that
Lincoln has a “history of biased claims administration,” the structural conflict in
this case has little weight. See Doyle, 542 F.3d at 1362 (quoting Glenn, 554 U.S.
at 116). The conflict is a factor to consider in the determination of the outcome,
71

but Lincoln is vested with discretion to make benefits decisions under the plan and
is therefore owed deference.

Although there is conflicting medical evidence,

Lincoln has demonstrated a reasonable basis for its decision, and even in the
presence of the conflict, the court cannot say that Lincoln’s decision to deny
Plaintiff benefits was arbitrary and capricious. See id. Because the decision to
deny long term disability benefits was not arbitrary and capricious, Lincoln is
entitled to summary judgment on Plaintiff’s § 502(a)(1)(B) claim to recover
benefits.
D.

Penalties Under § 502(c)(1)(B)
Section 502(c)(1) of ERISA provides that
Any administrator . . . who fails or refuses to comply with a request
for any information which such administrator is required by this
subchapter to furnish to a participant or beneficiary . . . may[,] in the
court’s discretion[,] be personally liable to such participant or
beneficiary in the amount of up to $100 a day from the date of such
failure or refusal, and the court may[,] in its discretion[,] order such
other relief as it deems proper.

29 U.S.C. § 1132(c)(1).26 The Eleventh Circuit held in an unpublished decision
that “[a] plan administrator is either ‘the person specifically so designated by the
terms of the instrument under which the plan is operated,’ . . . or a company acting
as a plan administrator.”

Lockhart v. Blue Cross Blue Shield of Tenn.,

503 F. App’x 926, 928 (11th Cir. 2013) (internal quotations and citations omitted).

26

The daily penalty has increased from $100 to $110. 29 C.F.R. § 2575.502c–1.
72

The Eleventh Circuit recognizes the de facto plan administrator doctrine, but limits
application of the doctrine to employers seeking to avoid liability as plan
administrators. It declined to apply the de facto administrator doctrine to third
party administrative services providers. Oliver, 497 F.3d at 1194–95. This court
has also rejected application of the de facto plan administrator doctrine to a claims
administrator based on the express language of ERISA. Poole v. Life Ins. Co. of N.
Am., 984 F. Supp. 2d 1179, 1192 (M.D. Ala. 2013).
Plaintiff’s only argument about application of the de facto plan administrator
doctrine is that the earlier denial of Lincoln’s motion to dismiss warrants the
imposition of § 502(c)(1)(B) penalties against Lincoln.

The court’s previous

finding that “[t]he question of whether a defendant is acting as plan administrator
is [a] fact intensive [issue that is] better decided at a later stage of this litigation”
(Doc. # 21, at 15) does not end the inquiry. This is the later stage of the litigation.
The Summary Plan Description designates Gilliard as the plan administrator.
Plaintiff has not provided evidence to the contrary and has only made conclusory
statements that Lincoln is the de facto plan administrator. Because the de facto
plan administrator doctrine does not apply to third-party administrators and
because no evidence supports a finding that Lincoln is a de facto plan
administrator, § 502(c)(1)(B) penalties are inappropriate. Lincoln is entitled to
summary judgment on Plaintiff’s § 502(c)(1)(B) claim.
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V. CONCLUSION
For the foregoing reasons, it is ORDERED as follows:
(1)

Plaintiff’s Motion for Summary Judgment (Doc. # 39) is DENIED;

(2)

Lincoln’s Motion for Judgment as a Matter of Law (Doc. # 36) is

and

GRANTED.
A separate final judgment will be entered.
DONE this 25th day of April, 2016.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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