McCormick v. Liberty Life Assurance Company of Boston

Filing 41

MEMORANDUM OPINION AND ORDER as follows: (1) The 33 Motion for Summary Judgment is GRANTED; (2) The pretrial and the trial scheduled in this matter are CANCELLED; and (3) A separate final judgment will be entered taxing costs. Signed by Hon. Chief Judge Mark E. Fuller on 1/4/2010. (cb, )

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION S H A R O N MCCORMICK, P L A IN T IF F , v. T H E FRESENIUS MEDICAL CARE N O R T H AMERICA SHORT & LONG T E R M DISABILITY PLAN, D EFEN D A N T. ) ) ) ) ) ) ) ) ) ) ) C A S E NO. 3:08-cv-927-MEF (W O -D o Not Publish) M E M O R A N D U M OPINION AND ORDER P la in tif f Sharon McCormick ("McCormick") filed this action pursuant to the E m p lo ye e Retirement Income Security Act of 1974 ("ERISA") as an appeal of the decision b y the Defendant The Fresenius Medical Care North America Short & Long Term Disability P la n ("the Plan") to discontinue long-term disability ("LTD") benefits. This cause is before th e Court on the Defendant's Motion for Summary Judgment (Doc. # 33) filed on October 2 3 , 2009. The Court has carefully considered the submissions in support of and in opposition to the motion as well as the applicable law. For the reasons set forth below, the Court finds th a t the motion is due to be GRANTED. J U R I S D I C T IO N AND VENUE J u ris d ic tio n over this matter is asserted pursuant to 28 U.S.C. 1331 (federal q u e s tio n ) and 28 U.S.C. 1132 (diversity). While it was not invoked by McCormick, the C o u rt notes that 29 U.S.C. 1132(e)(1) (ERISA) also provides a basis for this Court to exercise subject matter jurisdiction over this action. The parties do not contest personal ju ris d ic tio n or venue, and the Court finds sufficient evidentiary support for both in this Court. S U M M A R Y JUDGMENT STANDARD S u m m a ry judgment is appropriate when "the pleadings, depositions, answers to in te rro g a to rie s , and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment a s a matter of law." Fed. R. Civ. P. 56(c). A material fact is genuine only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. L ib e r ty Lobby, Inc., 477 U.S. 242, 248 (1986). According to the Supreme Court, "a party s e e k i n g summary judgment always bears the initial responsibility of informing the district c o u rt of the basis for its motion, and identifying those portions of [the record] which it b e lie v e s demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. C a tr e tt, 477 U.S. 317, 323 (1986) (quotation omitted). The movant can meet this burden by p re s e n t i n g evidence showing there is no dispute of material fact, or by showing the nonm o v in g party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-23. After the movant satisfies this requirement, the burden shifts to "the adverse party [ w h o ] must set forth specific facts showing that there is a genuine issue for trial." Anderson, 4 7 7 U.S. at 250 (quotation omitted). "[T]his standard provides that the mere existence of s o m e alleged factual dispute between the parties will not defeat an otherwise properly 2 supported motion for summary judgment." Id. at 247-48. The non-moving party "must do m o re than simply show that there is some metaphysical doubt as to the material facts." M a ts u sh ita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The Eleventh C irc u it Court of Appeals has held that "[a]ll reasonable inferences arising from the u n d is p u te d facts should be made in favor of the nonmovant, but an inference based on s p e c u la tio n and conjecture is not reasonable." Blackston v. Shook & Fletcher Insulation Co., 7 6 4 F.2d 1480, 1482 (11th Cir. 1985) (citation omitted). F A C T S AND PROCEDURAL HISTORY T h e Court has carefully considered all deposition excerpts and documents submitted in support of and in opposition to the motion for summary judgment. The submissions of the p a rtie s , viewed in the light most favorable to the non-moving party, establish the following f a c ts . M c C o rm ic k worked as a dialysis nurse for Fresenius Medical Care North America (" F re s e n iu s " ) from 1991 through 1996 and from 2000 through February of 2004. By virtue o f her employment, McCormick was a participant in the Plan. The benefits provided to p a rtic ip a n ts in the Plan are set forth in governing plan documents. The Plan provides LTD benefits for plan participants who provide evidence that they q u a lif y as "disabled" as that term is defined by the Plan. To qualify as disabled "during the first 24 months of disability (including the LTD Elimination Period), the Covered Person [ m u s t be] unable to perform all of the material and substantial duties of his or her occupation 3 on an Active Employment basis because of an Injury or Sickness..." In order to remain e lig ib le for LTD benefits after the initial twenty-four month period, the participant must p ro v id e evidence that she is "unable to perform, with reasonable continuity, all of the m a te ria l and substantial duties of his or her own or any other occupation for which he or she is or becomes reasonably fitted by training, education, experience, age and physical and m e n ta l capacity." It is undisputed that the Plan Administrator was vested with full discretionary a u th o rity to make decisions with regard to claims for benefits under the Plan. Specifically, th e Plan provides that: [ t]h e Plan Administrator, any claims administrator, and any a g e n t of either, shall exercise their responsibilities and authority in carrying out their duties under this claims procedure as f id u c ia rie s of the Plan and, in such capacity, shall have the d is c re tio n a ry authority and responsibility (1) to interpret and c o n s tru e the Plan and any rules or regulations under the Plan, (2) to determine the eligibility of employees to participate in the P la n , and the rights of claimants to receive benefits under the P la n , and (3) to make factual determinations in connection with a n y of the foregoing. Any such administrator may, in its d is c re tio n , determine to hold a hearing or hearings in carrying o u t its responsibilities and authority under this claims procedure. Under the Plan Documents, McCormick's employer is defined as the Plan Administrator and L ib e rty Life Assurance Company of Boston ("Liberty Life") is the Claims Administrator. In December of 2003, McCormick submitted a claim for LTD benefits to the Plan. In support of her claim, McCormick stated that she had severe back pain and other pain, 4 fibromyalgia, diabetes, and hypertension and that she had been unable to work since August 2 6 , 2003. McCormick authorized the release of her medical records to substantiate the claim. Based on a review of the information McCormick submitted and her medical records, Liberty L if e determined that McCormick qualified as disabled as that term is defined in the Plan and a p p ro v e d her initial claim for LTD benefits. Liberty Life notified McCormick of its decision in a letter dated February 9, 2004. This letter explained that McCormick would begin receiving benefits on February 22, 2004. It further explained that for the first twenty-four months, her disability would be evaluated re la tiv e to her inability to perform the material and substantial duties of her own occupation, b u t that thereafter her disability would be evaluated relative to her inability to perform her o w n or any other occupation for which she had the training, education, or experience.1 It is u n d is p u te d that McCormick received the LTD benefits payments beginning in February of 2 0 0 4 and that she received them until they were discontinued on March 21, 2006. In a letter d a te d December 20, 2005, Liberty Life sent McCormick a letter indicating that her continued L T D benefit eligibility after the initial twenty-four months was being evaluated and that she w o u ld need to provide information from her treating physicians. In a letter dated March 1, 2006, Liberty Life notified McCormick that a decision had n o t yet been made concerning her eligibility for benefits beyond the initial twenty-four It is undisputed that McCormick from the filing of her claim until the present, M c C o rm ic k is unable to perform the material and substantial duties of her own occupation a s a general duty nurse for Fresenius. 5 1 months, but that she would continue to receive LTD benefits until a decision was made. Liberty Life also explained that it would need McCormick to complete a Functional C a p a b ilitie s Evaluation ("FCE"). On March 7, 2006, McCormick participated in an FCE with a Rheumatology specialist n a m e d Dr. Christopher Adams ("Dr. Adams").2 The results of the FCE showed that M c C o rm ic k had the ability to engage in activities that allow her to alternate between sitting a n d standing. Dr. Adams opined that McCormick was able to safely meet the physical d e m a n d s for light work and that she demonstrated good functional capacities abilities and p h ys ic a l endurance for work that alternates between walking/standing and sitting. He further f o u n d that her functional capacities and training would allow her to work in restricted c a te g o rie s of nursing such as a school nurse, an infection control nurse, a nursing educator, a n office nurse, and an occupational health nurse, but that she could not meet the physical d e m a n d s of general duty nursing. The FCE noted that McCormick's perception of her pain a n d impairment was that she was "crippled," but that conclusion was incongruous with her a c tu a l functional abilities demonstrated during the FCE. Liberty Life reviewed records from a number of sources concerning McCormick's c o n d itio n . It reviewed the March 7, 2006 FCE from Dr. Adams and Dr. Adam's office notes f o r McCormick from July through September of 2005. It also reviewed office notes from M c C o rm ic k 's September 6, 2005 visit to Dr. Cousins. It reviewed the records from Dr. 2 Dr. Adams is one of McCormick's treating physicians. 6 Carlos Wise ("Dr. Wise") from September through December of 2005 3 and the January 12, 2 0 0 6 FCE Dr. Wise conducted.4 Based on its review of this information, Liberty Life c o n c lu d e d that McCormick had the ability to perform with reasonable continuity, all of the m a te ria l and substantial duties of an occupation that was sedentary or required light physical e x e rtio n . Furthermore, it found that based on her training, education, experience, and p h ys ic a l restrictions, she had the ability to perform four different nursing occupations: a s c h o o l nurse, a nurse case manager, a telephonic triage nurse, and an office nurse in a m e d ic a l practice. Accordingly, Liberty Life notified McCormick, in a letter dated March 21, 2 0 0 6 , that she no longer qualified as disabled under the Plan and that her LTD benefits would b e discontinued. On December 12, 2003, McCormick had applied for disability benefits from the S o c ia l Security Administration. Initially, her claim was denied. On March 16, 2006, M c C o rm ic k had a hearing on her claim. On March 22, 2006, an Administrative Law Judge f o r the Social Security Administration found that McCormick was disabled as of August 25, 2 0 0 3 because of inflammatory arthritis, hypothyroidism, bilateral carpal tunnel syndrome, d e g e n e ra tiv e joint disease, and status post cervical fusion with residual neck pain so severe 3 Dr. Wise is a family practitioner. He began treating McCormick in 2004. In his FCE of McCormick, Dr. Wise opined that she would never be able to return to work, although he does not specify if he means as a general duty nurse or in any nursing re la te d position. He bases his conclusion on a diagnosis of fibromyalgia and neuropathy and f in d in g s that she suffered diffuse muscle and joint pain. 7 4 that the combination of her impairments medically equaled the requirements of the Listing 1 4 .0 9 in the Social Security Administration's Listing of Impairments. The Administrative L a w Judge indicated that she was basing this conclusion of the testimony of Dr. James A n d e rso n . By a letter dated May 30, 2006, McCormick asked Liberty Life to reconsider its d e c is io n .5 McCormick complained that the March 2006 FEC conducted by Dr. Adams was f la w e d because it was not conducted over more than one day. She explained that she had b e e n uncharacteristically pain free on the date of the March 2006 FEC, but that she had s u f f e re d severe pain and muscle spasms after completing the FEC. She stated that she c o n tin u e d to experience pain in her back and hip from the date of the March FCE to the date o f her May appeal. She argued that the light duty nursing jobs for which she was found to b e qualified did not exist within her immediate geographic area. She complained that the o p in io n s of her treating physicians had been disregarded. She outlined continued health p ro b le m s from which she suffered. She noted that the Social Security Administration had f o u n d her to be totally disabled. McCormick also submitted a letter from Dr. Adams dated A p ril 20, 2006 in support of her appeal. In the April 20, 2006 letter, Dr. Adams explained that he had seen McCormick on that d a te and that she had stated that she felt terrible after the March 7, 2006 FCE at Dr. Adams' o f f ic e . McCormick completed a health assessment questionnaire on April 20, 2006 that 5 The Plan directs participants to appeal adverse benefit decisions first to Liberty Life. 8 showed considerable deterioration in her assessment of her ability to climb stairs, get up from a chair, touch her feet while seated, reach behind her back, engage in leisure activities, dress h e rs e lf , and open a carton. Based on the deterioration McCormick reported, Dr. Adams o p in e d that she was not capable of meaningful gainful employment. L ib e rty Life acknowledged receipt of McCormick's appeal in June of 2006. It re f e rre d her claim to MLS National Medical Evaluation Services, Inc. ("MLS") for further re v ie w . MLS referred the claim to Dr. Eric Beck, a physician Board Certified in Physical M e d ic in e and Rehabilitation, Pain Management, and Electrodiagnostic Medicine for in d e p e n d e n t medical review. Dr. Beck reviewed medical records for McCormick from May o f 1998 through March of 2006 from a variety of sources. He also reviewed Dr. Adams' A p ril 20, 2006 letter to Liberty Life.6 Dr. Beck made attempts to reach Dr. Adams to discuss M c C o rm ic k with him, but was only able to leave messages to which Dr. Adams did not r e s p o n d . Dr. Beck completed his review of the file and delivered an Independent Peer R e v ie w Report to Liberty Life on July 20, 2006. Dr. Beck concluded that McCormick had a number of documented musculoskeletal conditions resulting in functional impairment. The f u n c tio n a l impairment permanently restrict McCormick's ability to bend, stoop, twist, push, p u ll, do overhead work, squat, crouch, stand, walk, and climb. Dr. Beck found the March 2 0 0 6 FCE to be valid and acknowledged that while McCormick faced restrictions she could He does not appear to have reviewed a copy of Dr. Wise's letter of July 12, 2006, w h ic h was not received by Liberty Life until well after the date of the completion of Dr. B e c k 's report on July 31, 2006. 9 6 alternate between walking, sitting, and standing. McCormick continued to see her treating physicians while her appeal was pending. Dr. Wise dictated a letter on July 12, 2006 in which he indicated that he had been treating M c C o rm ic k for the following diagnoses: severe degenerative arthritis (wide spread), f ib ro m ya lg ia , hypertension, diastolic cardiac dysfunction, gastroesophageal reflux disease, h yp o th yro id is m , severe chronic neck and back pain with cervical radiculopathy (status post d is k e c to m y), and bilateral carpal tunnel syndrome (status post bilateral carpal tunnel release p ro c e d u re ). Dr. Wise opined that it was his medical opinion that McCormick is not able to re tu rn to work as she is trained only as a registered nurse and not of an age where she would b e marketable for new or gainful employment. He also outlined the numerous ways in which h e r health problems interfered with her ability to work as a registered nurse or even comply w ith the continuing education requirements for licensing as a nurse. Liberty Life appears to h a v e received this letter on July 31, 2006, but it does not appear to have been delivered to the a p p e a ls division until August 3, 2006, two days after Liberty Life had drafted its letter to M c C o rm ic k addressing her appeal. Liberty Life considered McCormick's medical records, Dr. Beck's independent e v a l u a t i o n of McCormick's medical records, and the documents McCormick submitted in s u p p o rt of her appeal. Ultimately, it decided to affirm its decision to discontinue her LTD b e n e f its . By a letter dated August 1, 2006, Liberty Life communicated this decision to M c C o rm ic k and again noted that it had identified four occupations that McCormick had the 10 ability to perform. Liberty Life informed McCormick that she had the right to appeal its d e c is io n to her employer, Fresenius. On November 29, 2006, McCormick wrote a letter to Fresenius appealing Liberty's L if e ' s decision to discontinue her LTD Benefits and asking Fresenius to help her get her b e n e f its back. She stated that she was willing to take another FCE, but only if it is one that is complete. She explained what she perceived as deficiencies in the FCE performed in M a rc h of 2006. She explained the difficulties she had after that FCE. She outlined her re c e n t unsuccessful efforts to work part time taking care of a woman who needed assistance o r her infant grandchild. She also explained that the Social Security Administration had a w a rd e d her disability payments. Fresenius received this appeal letter on December 8, 2006. It referred McCormick's c la im s to its Employee Benefits Review Committee ("the Committee"). The Committee then f o rw a rd e d the file to Best Doctors, Inc. for independent review. Best Doctors, Inc. assigned th a t review to Dr. Phillip Mease ("Dr. Mease"), a Clinical Professor at the University of W a s h in g to n and the Chief of Rheumatology Clinical Research Division of Swedish Hospital in Seattle, Washington. Dr. Mease reviewed McCormick's medical records with an eye to d e te rm in in g whether McCormick was disabled from all work, whether her March 2006 FCE w a s a valid measure of her disability, and whether her use of opioids for her conditions 11 would exclude her from gainful employment.7 Dr. Mease found that the FCE and the in d e p e n d e n t medical review by Dr. Beck were probably reasonably accurate in indicating that M c C o rm ic k is not totally disabled, but does have significant reasons for partial disability and f u n c tio n a l limitation. He suggests that with reasonable accommodations and limitations she c o u ld work, but acknowledged that positions might not be available in her immediate job m a rk e t. He opined that some, but not all employers would not accept the use of opioids. Based on the administrative records, including McCormick's medical records, Dr. B e c k 's independent review report, and Dr. Mease's independent review report, the C o m m itte e concluded that McCormick's medical condition did not prevent her from p e rf o rm in g the material and substantial duties of the four identified occupations: school n u rs e , nurse case manager, telephonic triage nurse, and office nurse in a medical practice. Consequently, it found that she did not meet the Plan definition of disabled for purposes of e lig ib ility for benefits beyond the initial twenty-four months. Fresenius notified McCormick o f its decision by a letter dated September 10, 2007. On November 24, 2008, McCormick filed suit against Liberty Life, alleging that its d e c is io n to discontinue her LTD benefits was a violation of ERISA. On February 12, 2009, M c C o rm ic k amended her complaint to assert her claims against the Plan. Specifically, she a lle g e s that the Plan's decision to discontinue her LTD benefits was arbitrary and capricious. It appears that the review completed by Best Doctors, Inc. included review of the le tte r from Dr. Wise dated July 12, 2006 and the letter from Dr. Adams dated April 20, 2006. 7 12 The Plan answered and denied that its decision was arbitrary and capricious. Rather, it c o n te n d s that McCormick's benefits were discontinued because she was not disabled as d e f in e d by the Plan. The Plan seeks summary judgment on McCormick's claim. DISCUSSION E R IS A permits a person denied benefits under an employee benefit plan to challenge th a t denial in federal court. See 29 U.S.C. 1132(a)(1)(B). In an ERISA plan participant's c h a lle n g e to the decision of an ERISA plan administrator to deny plan benefits courts in this c irc u it apply a multi-step analysis: (1 ) Apply the de novo standard to determine whether the claim a d m in is tra to r's benefits denial decision is "wrong" (i.e., the c o u rt disagrees with the administrator's decision); if it is not, th e n end the inquiry and affirm the decision. (2 ) If the administrator's decision is "de novo wrong," then d e te rm in e whether he was vested with discretion in reviewing c la im s ; if not end judicial inquiry and reverse the decision. (3 ) If the administrator's decision is "de novo wrong" and he w a s vested with discretion in reviewing claims, then determine w h e th e r "reasonable" grounds supported it (hence, review his d e c is io n under the more deferential arbitrary and capricious s ta n d a rd ). S e e Doyle v. Liberty Life Assurance Co. of Boston, 542 F.3d 1352, 1356 (11th Cir. 2008) (u p h o ld in g a district court's analysis following the above steps after Metro. Life Ins. Co. v. G le n n , 128 S. Ct. 2343) (2008). The existence of a conflict of interest for the administrator 13 should be taken into account when determining whether an administrator's decision was a rb itra ry and capricious. See Doyle, 542 F3d at 1360. In performing the de novo review, a court must first turn to the plan itself because a p la n administrator must discharge its duties with respect to a plan in accordance with the d o c u m e n ts and instruments governing the plan insofar as such documents and instruments a re consistent with the provisions of ERISA. See 29 U.S.C. 1104(a)(1)(D). The parties to th is action agree that under the Plan the determination of eligibility for LTD benefits beyond th e initial twenty-four months required an assessment of McCormick's ability to perform, w ith reasonable continuity, all of the material and substantial duties of her own or any other o c c u p a tio n for which she is or becomes reasonably fitted by training, education, experience, a g e and physical and mental capacity. Under the first step of the analysis, a court may only p ro p e rly consider the record that was before the administrator when it made its decision. See G la z e r v. Reliance Std. Life Ins., 524 F.3d 1241, 1247 (11th Cir. 2008). Throughout her administrative appeals and in her submissions in opposition to the P la n 's motion, McCormick relies on the fact that the Social Security Administration has d e te rm in e d that she is entitled to disability benefits as evidence that the decision under the P la n to terminate her benefits was erroneous. The Social Security Administration's d e te rm in a tio n that an individual is or is not disabled under its statutes and regulations does n o t dictate whether that same individual is disabled under the terms of an ERISA policy. See W h a tle y v. CNA Ins. Cos., 189 F.3d 1310, 1314 n.8 (11th Cir. 1999) ("We note that the 14 approval of disability benefits by the Social Security Administration is not considered d is p o s itiv e on the issue of whether a claimant satisfies the requirement for disability under a n ERISA-covered plan."). Although the court may consider the award in reviewing an E R IS A administrator's decision, Kirwan v. Marriott Corp., 10 F.3d 784, 790 n.32 (11th Cir. 1 9 9 4 ), the court is not bound to do so. Given the record before this Court, the Court is not p e rs u a ded that the Social Security Administration's determination that McCormick is entitled to disability benefits establishes or even suggests that the decision to deny her further LTD b e n e f its under the Plan was de novo wrong. Indeed, when all information in the record is c o n s id e re d , the Court cannot find that this decision to deny benefits was de novo wrong. For th is reason alone, the Court finds that the Plan is entitled to judgment as a matter of law. Nevertheless, the Court finds, in the alternative, that even assuming arguendo that the denial o f benefits under the Plan was de novo wrong, the Plan is still entitled to judgment as a m a tte r of law because the decision was not without a reasonable basis and was not arbitrary a n d capricious for the reasons set forth below. Where, as here, an ERISA plan endows the plan administrator with discretion to d e te rm in e eligibility for plan benefits, courts must review the administrator's decision under a deferential standard. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111 (1989). A re v ie w in g court will reverse the plan administrator's decision only if it was arbitrary and c a p ric io u s . Paramore v. Delta Air Lines, 129 F.3d 1446, 1449 (11th Cir. 1997). This means th a t the Court must inquire as to whether the plan administrator's decision had a reasonable 15 basis. The parties do not dispute that this is the proper standard. M c C o rm ic k contends that the denial of her LTD benefit's claim is without a re a s o n a b le basis because Liberty Life and Fresenius ignored the uncontroverted opinions of h e r treating physicians that she is disabled and unable to return to work.8 Specifically, she p o in ts to the July 12, 2006 letter from Dr. Wise, the FCE form Dr. Wise completed in D e c e m b e r of 2005, and the April 20, 2006 letter to Liberty Life from Dr. Adams. The United S ta te s Supreme Court has held, however, that a plan administrator has no obligation to give a treating physician's opinion more weight. See Black & Decker Disability Plan v. Nord, 538 U .S . 822 (2003). Here, the opinions of the two treating physicians upon which McCormick re lie s are conclusory and fail to provide adequate basis for the conclusion that McCormick is unable to work. Moreover, Dr. Adams, the very physician who performed the detailed M a rc h 2006 FCE did not indicate that he had retested McCormick and observed measurable c h a n g e in her condition. Instead, he administered a questionnaire and noted that M c C o rm ic k 's own self-reported assessment was that her condition had worsened. Thereafter, he failed to respond to inquiries by the doctor performing an independent peer re v ie w . In contrast, the March 2006 FCE Dr. Adams completed explained why McCormick w a s capable of some level of work. After securing an independent peer review and reviewing all of the available medical For the reasons outline in the Plan's reply brief, the cases upon which McCormick re lie s in her brief in opposition do not support the conclusion she urges here. 16 8 information on McCormick, Liberty Life determined that she was not disabled within the P la n 's definition. After McCormick appealed, Fresenius obtained yet another independent p e e r review and considered all of the available medical information. Although these d e c i s i o n s were made in the face of conflicting medical evidence, there exists a reasonable b a s is for the determination that McCormick is able to work in several types of nursing p o s itio n s . This determination necessarily rests in large part on the March 2006 FCE, but the in d e p e n d e n t medical experts who assessed the file both opined that it was a reasonable or v a lid assessment of her condition and restrictions. The decision regarding McCormick's L T D benefits was not arbitrary and capricious as a matter of law as it is supported by reliable e v id e n c e in the Administrative Record. Accordingly, the Court will affirm the decision to d e n y McCormick's benefits and grant the Plan's motion for summary judgment. CONCLUSION F o r the foregoing reasons, it is hereby ORDERED as follows: (1 ) Defendant's Motion for Summary Judgment (Doc. # 33) is GRANTED. (2 ) The pretrial and the trial scheduled in this matter are CANCELLED. (3 ) A separate final judgment will be entered taxing costs. DONE this the 4th day of January, 2010. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE 17

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