May v. AT&T Integrated Disabilty

Filing 55

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 7/26/13. (SAC )

FILED
2013 Jul-26 PM 02:57
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DORIS W. MAY,
Plaintiff,
v.
AT&T INTEGRATED DISABILITY,
AT&T CORPORATION, AND
SEDGWICK CLAIMS MANAGEMENT,
INC.,
Defendants.

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CIVIL ACTION NO.
11-AR-1923-S

MEMORANDUM OPINION
All claims brought by plaintiff, Doris W. May (“Ms. May”),
against defendants, AT&T Integrated Disability, AT&T Corporation,
and Sedgwick Claims Management Services, Inc. (“Sedgwick”), except
her claim against Sedgwick under 29 U.S.C. § § 1001, et seq.
(“ERISA”),

have

previously been

dismissed.

This leaves

for

consideration only Ms. May’s ERISA claim against Sedgwick for
alleged wrongful denial of short-term disability benefits.

The

case was originally assigned to a magistrate judge to whom the
parties did not concede full jurisdiction.
This

court

continues

to

criticize

the

use

of

Rule

56,

F.R.Civ.P., for deciding ERISA disability cases, but acknowledges
that Sedgwick was following well recognized routine when it filed
a

Rule

56

motion

challenging

Ms.

May’s

ERISA

claims.

The

magistrate judge entered a report and recommendation (“R&R”),

1

recommending that Sedgwick’s motion be granted, and that Ms. May’s
ERISA claims be dismissed.

The R&R, insofar as it addressed the

ERISA claims, is set forth below in haec verba.

The emphasis on

the word “merely” was placed on that word by the magistrate judge.
He emphasized no other word.
Plaintiff’s ERISA Claims
Plaintiff alleges that defendant Sedgwick violated
her rights under ERISA by improperly denying her ShortTerm Disability benefits under AT&T Services, Inc.’s,
STD Plan.

To determine whether plaintiff was improperly

denied benefits under ERISA, the court must apply the
six-step

test

set

forth

in

Williams

v.

BellSouth

Telecommunications, Inc., 373 F.3d 1132, 1138 (11th Cir.
2004).

Blankenship

Company,

644

Eldridge

F.3d

v. Wachovia

v.
1350,

Metropolitan
1354-55

Corporation

Life

(11th

Insurance

Cir.

2011);

Long-Term Disability

Plan, No. 06-12193, 2007 WL 117712, at *1 (11th Cir.
2007).

The Williams test is as follows:
(1) The court must 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 the inquiry ends and the decision is
affirmed.
(2) If the administrator’s decision is, in
fact, “de novo wrong,” then the court must
determine whether the administrator was
vested with discretion in reviewing claims;
if not, the inquiry ends the decision is
reversed.
(3) If the administrator’s decision is “de
novo wrong” and he was vested
with

2

discretion in reviewing claims, the court
must determine whether “reasonable” grounds
supported the decision (hence, the court
must review the decision under the more
deferential
arbitrary
and
capricious
standard).
(4) If no reasonable grounds exist for the
decision, the inquiry ends and the court
must reverse the administrator’s decision;
if reasonable grounds do exist, the court
must determine whether the administrator
operated under a conflict of interest.
(5) If there is no conflict
inquiry ends and the court
administrator’s decision.

of interest,
must affirm

the
the

(6) If there is a conflict of interest, 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.
(emphasis
added).
Blankenship,

644

F.3d

at

1355.

A

pertinent

conflict of interest exists when the plan administrator
both

makes

eligibility

decisions

benefits out of its own funds.

and

Id.

pays

awarded

Where a conflict

exists and the court must reach step six, the burden is
on plaintiff to show that the administrator’s decision
was

tainted

by

self-interest.

Id.

Even

where

a

conflict exists, the court still owes deference to the
administrator’s
whole.

discretionary

decision-making

as

a

Id.
First,

the

court

must

determine

whether

the

administrator’s decision was “de novo wrong” under the
Williams

test.

The

court

finds

that

defendant

Sedgwick’s decision denying benefits to plaintiff for
certain periods of time was not de novo wrong.

3

Under

the Plan, entitlement to STD benefits depended on having
a

medical

condition

evidence that

supported

by

objective

medical

made a participant unable to perform any

type of work as a result of a physical or mental illness
or an accidental injury.
the

participant’s

“Any type of work” includes

regular

job

with

or

without

accommodations, any other company job with or without
accommodations, or temporary modified duties.

(Doc. 30-

4 Ex. A ¶ 2.10).
Defendant Sedgwick denied plaintiff benefits for
the periods at issue because her treating physicians did
not

produce

materials

the

supporting

requisite
a

objective

conclusion

disabled under the Plan.

that

examination
plaintiff

was

Further, upon both a first-

level and a second-level appeal from these conclusions,
independent medical examiners opined that
conditions

described

in

plaintiff’s

the medical

records

did

not

support the conclusion that she was unable to perform
the sedentary work associated with her job.
The

first

denial

of

STD benefits

period of May 24 to June

15,

2010.

was

for

the

At that time,

plaintiff’s condition was described as being a cervical
radiculopathy

and

cervical

spondylosis.

Although

plaintiff was hospitalized for a few days after May 17,
by May 24 she was out of the hospital and receiving
treatment

from

Dr.

Thomas

Wilson.

Physician’s Statement dated June

6,

In an

Attending

2010, Dr. Wilson

reported that plaintiff was being treated with epidural
blocks and “will be off work day of block and day after

4

block.”

(Doc. 30-6, DEF 000084).

This plainly implies

that, but for the day of and the day after an epidural
block,

plaintiff

disabled.

was

capable

of

working

and

not

The epidural block occurred on June 16, and

plaintiff was awarded STD for that day and day after
(June 17).

The decision to deny STD benefits from May

24 to June 15 was not wrong.
The next period of time for which plaintiff sought
STD benefits was from June 21 to July 15, 2010.

After

plaintiff returned to work on June 18, she remained only
four hours and left, and she did not return to work on
the next scheduled work

day.

As a result, she was

deemed to have had a relapse of the condition involved
in her previous period of STD and a new claim for STD
was started on June 21.

(Doc. 30-8, DEF 000281).

On

June 24, plaintiff was diagnosed with a ruptured and
herniated

cervical

disc,

and

she

corrective surgery on July 16, 2010.

was

scheduled

for

In an Attending

Physician’s Statement by Dr. Carter Morris on July 1,
2010, Dr. Morris reported his findings of a herniated
cervical disc, with surgery scheduled for July 16.

The

only work restriction he reported at that time was “No
working during post op recovery period.”
DEF 000465).

(Doc. 30-10,

Five days later, however, Dr. Morris wrote

a letter “To Whom It May Concern,” saying “For Medical
reasons,

please

excuse

the

work prior to her surgery.”
In

another

letter

dated

above-named

from

(Doc. 30-10, DEF 000467).

July

8,

requested that plaintiff be excused

5

employee

Dr.

Morris

again

prior to surgery

because

“Work

00469).

exacerbates

pain.”

(Doc.

30-10,

DEF

Nevertheless, two medical advisors, Dr. Mickle

and Dr. Lewis, reviewed plaintiff’s records, and both
concluded that plaintiff was capable of working

with

restrictions in the preoperative time frame of June 21
to July 15, 2010.

(Doc. 30-10, DEF 000484 and DEF

000487-488).
The
medical

court

agrees

evidence

that

presented

there

as

to

was
why

no

objective

plaintiff

was

incapable of working prior to her surgery on July 16.
While Dr. Morris wrote at least two work excuses for
plaintiff,

his

exacerbates

only

pain.”

explanation
There

was

no

was

that

objective

“Work
medical

evidence of disability in that, as Drs. Mickle and Lewis
noted, the plaintiff’s medical records indicated that
she

had

no

dexterity.

loss

of

These

range

of

objective

motion,
findings

strength,

or

counter

the

contention that plaintiff was incapable of working with
appropriate restrictions to reduce her pain.

Thus, the

decision by Sedgwick that plaintiff was not entitled to
STD from May 21 to June 15 was not wrong.
The third and final time period plaintiff claims
she was improperly denied STD benefits was from November
15,

2010,

periods

to

when

May

9, 2011,

she

received

granted STD benefits.

except
epidural

for

three two-day

blocks

and

was

As noted earlier, plaintiff’s

own treating physicians, Dr. Morris and Dr. Leong, both
cleared

her to

return

to

work

beginning November 15, 2010.

6

without

restrictions,

(Doc. 30-14, DEF 000776-

000777;

DEF

000792;

Doc.

30-15,

DEF

000857).

Furthermore, an independent medical reviewer, Dr. Levy,
opined also that plaintiff was able to return to work by
November

15.

(Doc.

30-15,

DEF

000866).

Although

plaintiff continued to suffer neck pain, for which she
received

three

epidural

blocks,

there

simply

is

no

medical evidence that plaintiff was incapable of working
at

a

sedentary

job

after

November

15.

Sedgwick’s

decision to deny STD benefits after November 15 was not
wrong.
Plaintiff’s

reliance

on

Lee

v.

BellSouth

Telecommunications, Inc., 318 Fed. Appx. 829 (11th Cir.
2009)

is

misplaced.

Lee is a

case

dealing

with

a

diagnosis of “chronic pain syndrome,” a fundamentally
different diagnosis than plaintiff’s.

It is in cases

involving this diagnosis of chronic pain syndrome, and
not

cases

involving

general

pain

accompanying

a

diagnosis of a distinct medical condition, that it is
unreasonable for a plan administrator to ignore both
objective and subjective medical evidence submitted by
the plaintiff.

Lee, 318 Fed. Appx. at 837.

mischaracterizes the

Lee

holding as

Plaintiff

applying

to

all

cases involving chronic pain when, in fact, the holding
applies only to cases involving a diagnosis of chronic
pain syndrome, a diagnosis which inherently relies upon
subjective evidence of pain.

Id.

Furthermore, in Lee,

the court noted that there is no objective laboratory
test for diagnosing chronic pain syndrome.

Id.

The

same cannot be said of plaintiff’s diagnoses of cervical

7

radiculopathy,
herniated

cervical

cervical

spondylosis,

disc,

and

ruptured

ischemic

and

stroke.

Plaintiff’s range of motion and strength tests indicated
essentially normal function, and the X-rays of her neck
after surgery revealed a successful fusion of the C6-7
vertebrae.

The

objective

medical

evidence

did

not

reveal a condition so debilitating as to make plaintiff
disabled.
Moving to the second step in the Williams process,
even

if

decision

the

court

to deny

found

that

plaintiff

STD

defendant
benefits

Sedgwick’s
for

certain

periods of time was de novo wrong, that would not end
the

inquiry

because

discretionary
Sedgwick,

authority.

as

discretionary

Sedgwick

claims
authority

was

The

Plan

administrator,
to determine

vested

with

explains

that

has

complete

whether

benefits

are approved under the Plan and to interpret the terms
and provisions of the Plan pertaining to STD benefits.
(Doc. 30-4 ¶ 4-5).

Thus, once the second step of the

Williams test is reached, the arbitrary and capricious
standard of review applies.
Now that the court has found that Sedgwick was
vested with discretionary authority under the Plan, the
third step of the Williams test requires the court to
determine

whether

Sedgwick’s

denial

capricious standard.
limited

to

a

decision

was made

reasonable
decision

grounds

under

the

existed

for

arbitrary

and

At this stage, the court’s role is

determination
rationally

8

of

whether

in good

Sedgwick’s

faith

and

not

whether it was right; Sedgwick’s decision need not be
the best possible decision, only one with a rational
justification.

Guy

v.

Southeastern

Iron

Workers’

Welfare Fund, 877 F.2d 37, 38 (11th Cir. 1989); Griffis
v. Delta Family-Care Disability Plan, 723 F.2d 822, 825
(11th Cir. 1984).
Sedgwick

to

plaintiff’s

Furthermore, the court cannot require

accord
treating

more

weight

physicians,

to

the

nor

opinions

may

the

of

court

impose upon Sedgwick a burden of explanation because it
credited reliable evidence that conflicts with treating
physicians’ evaluations.

Black & Decker Disability Plan

v. Nord, 538 U.S. 822, 834 (2003).

A plan administrator

may give different weight to the opinions of treating
physicians over those of independent physicians employed
by

defendants

capriciously.

without

[These

acting

sources

arbitrarily

should

Blankenship, 644 F.3d at 1356.

be

and

reversed.]

During plaintiff’s

first claim for disability benefits, after all appeals
were

exhausted,

Sedgwick

denied

STD

benefits

to

plaintiff for the period from May 24, 2010 to June 15,
2010.

(Doc. 30-7, DEF 000191-000192).

On first-level

appeal, in upholding the denial of plaintiff’s benefits
between May 24 and June 15 of 2010, Sedgwick relied on
the reports of medical doctors, J. Parker Mickle and
Jamie Lee Lewis.

(Doc 30-6, DEF 000113, 000138-000144).

The stated reason for the denials was that the medical
information received

did not provide enough objective

documentation to substantiate a finding that plaintiff
was

totally disabled

for

the

9

denial

periods.

(DEF

000113).
after

The denial was upheld on second-level appeal

plaintiff’s

medical

records

were

reviewed

doctors Imad Shahhal and Howard Grattan.
DEF

000179-000185).

These

doctors

by

(Doc. 30-7,
reported

that

plaintiff’s records did not present evidence that she
was unable to perform a sedentary job for the denial
periods.

Id.

Plainly, Sedgwick had a rational and good

faith basis for

exercising its discretion to deny STD

payments to plaintiff during this period of time.
During
benefits,

plaintiff’s

after

all

second

appeals

claim

were

for

disability

exhausted,

Sedgwick

denied benefits to plaintiff for the period from June
21, 2010 to July 15, 2010.
Shahhal

and

Dr.

Grattan

(Doc. 30-4 ¶ 8).

again

reviewed

Dr.

plaintiff’s

medical records on second-level appeal.

(Doc 30-7, DEF

000191-000192).

nothing

They

concluded that

in

the

records indicated that plaintiff was unable to perform
a sedentary job between June 21 and July 15 of 2010.
Id.

This

also

was

a

rational

basis for

exercising

discretion to deny STD payments to the plaintiff.
Finally,
benefits,

during

after

denied disability

all

plaintiff’s
appeals

were

third

claim

exhausted,

for

Sedgwick

benefits, except for three two-days

periods when plaintiff received epidural blocks, for the
entire period from November 11/16/2010, to May 9, 2011.
Her

medical records

were

examined

on

appeal

by

Dr.

Michael T. Levy, Dr. J. Parker Mickle, and Dr. Charles
Brock.

(Doc.

000919-000925).

30-13,

DEF 000717-000719;

Again,

these doctors

10

Doc.

reported

30-15,
that,

based on her medical records, plaintiff was capable of
performing her normal sedentary job during the denial
periods.

Id. These were a rational basis for doing so.

Plaintiff

argues

that

defendants
of

peer

ignored

the

physicians

and

independent

Cezayirli.

She relies on the statements of her treating

medical

her

the

reviewers

the

findings

and

treating

examiner,

Dr.

doctors that, during the relevant periods, she could not
bend or stoop, sit or stand for prolonged periods, lift
over ten pounds, and could only work for four hers per
day.

(Doc. 30-8, DEF 000240; Doc. 30-11, DEF 000532).

She further relies on Dr. Cezayirli’s statements that
plaintiff, during the relevant periods, was unable to
“return to a sitting position in one position working at
a computer terminal until January 1, 2011.”
11, DEF 000537).

(Doc. 30-

However, the evidence on file shows

that plaintiff, while performing her job duties as a
service representative, was not required to be seated in
her chair continuously; she was able to get up, walk
around,

and

come

back

throughout the day.
not dispute this.
heavy lifting.

to

her

desk

(Doc. 30-3 ¶ 7).

at

any

point

Plaintiff does

Further, her job did not require any

(Doc. 30-1, 15).

Thus, had she returned

to work during the denial periods, the evidence shows
that plaintiff would not have been required to sit or
stand for prolonged periods nor lift over ten pounds.
Most importantly, that she was allowed to stand up and
walk around at any time during the day means that she
would not have been required to sit in one position at

11

a computer had she returned to work during the denial
periods.
While

defendant

Sedgwick’s

decision

to

deny

plaintiff benefits during the relevant time periods may
not have been the correct or best decision, the court
cannot

find

unreasonable.
find

that

that,

given

the

evidence,

it

was

However, as noted, the court does not

Sedgwick’s

decision

was

de

novo

wrong.

Because the court finds that defendant Sedgwick’s denial
of benefits to plaintiff over certain periods of time
was not de novo wrong and, even if it was, the decision
to deny benefits was reasonable under the Williams test,
defendants

are

entitled

to

summary

judgment

as

to

plaintiff’s ERISA claim.

Because Ms. May timely filed objections to the R&R, the court
is obliged to consider Sedgwick’s motion for summary judgment de
novo, and to accord the R&R no deference, treating it only as a
high quality brief amicus curiae on behalf of Sedgwick.

There are

several intriguing, provocative, and unique aspects to this case.
The first and foremost unique aspect is the fact that Ms. May
only sought short-term disability benefits and was denied them only
for portions of the short terms for which she applied.

This does

not mean, of course, that she does not have the right to seek
judicial relief to recover money she claims to have been wrongfully
denied her, plus, of course, attorneys’ fees attributable to the
denial if in violation of ERISA.
12

However, this court has never

before been called upon to rule on ERISA liability for a series of
“off-and-on” or intermittent periods of short-term disability.

It

is apparent from the record that Sedgwick responded to Ms. May’s
relatively small claims just as vigorously and with just as much
adversarial zeal as if they had been a single monumental long-term
disability claim, something that these three claims might well have
become if Ms. May had presented an LTD claim. Ms. May, who was pro
se during the claims process, was hopelessly out-classed.
instance, David could not slay a well-armed Goliath.

In this

Sedgwick,

which admittedly was the ERISA claims fiduciary, demonstrated more
loyalty to the funding entity which had employed it, than to its
cestui que trust during the administrative process.
jealously guarded its client’s money.

Sedgwick

This is one of the most

bothersome aspects not only of this case, but of ERISA benefits
cases in general.

Ms. May was faced with the unenviable task of

separately appealing to a conflicted judge each of the judge’s
three short-term denials.

She hit a stone wall each time.

A second noteworthy and equally bothersome feature of this
case arises from the fact that Ms. May, because she was obligated
to do so by the terms of the Plan, applied to the Social Security
Administration (“SSA”) for disability benefits. After being denied
by

SSA, she appealed.

Her SSA appeal was pending when the

magistrate judge issued his R&R.

Between the time the R&R was

entered and Ms. May’s objections were filed, the SSA granted Ms.

13

May’s appeal and impressively found that she was totally disabled
as of May 16, 2010, and from that time forward she lacked the
capacity to perform any job whatsoever.

The time period of Ms.

May’s disability, as determined by the SSA, embraces all three of
the time periods investigated by Sedgwick and considered by the
magistrate

judge.

Because

the

SSA

finding

was

not

in

the

“administrative record”, it was not considered by the magistrate
judge, who agreed with Sedgwick that Ms. May was not disabled
during the
benefits.

periods

for

which

she

had

been

denied

short-term

Ms. May now insists that the SSA finding be considered

by this court and heavily weighed in her favor, both in evaluating
de novo the R&R, and in evaluating the Sedgwick denials, whether de
novo or with the deference that automatically follows the fact that
Sedgwick was granted discretionary authority to interpret the Plan
and to rule dispositively on claims.
Not unexpectedly, Sedgwick moves to strike the SSA finding,
and to limit this court’s review of the R&R to the “administrative
record”, namely, the materials that were before Sedgwick and before
the magistrate judge, both of whom knew of Ms. May’s pending SSA
appeal when they reached their respective identical conclusions.
Neither Ms. May nor Sedgwick has cited any case on all fours with
a case having the sequence of events of this case.
faced with a sui generis situation.

The court is

What is the court to do with

the belated SSA finding under these procedural circumstances?

14

In Sedgwick’s original brief

to

the magistrate judge in

support of its motion for summary judgment, it argued:
Another interesting fact about May’s claims under the ADA
and Rehabilitation Act is that she testified that she has
applied for Social Security Disability Benefits. (May
Depo., p. 19). May’s initial request for Social Security
Disability Benefits was denied, and she has appealed that
denial.
(May Depo., p. 19).
May’s appeal remains
pending. (May Depo., p. 20). As stated by the Eleventh
Circuit, “to obtain Social Security Disability Benefits,
an applicant must prove he is disabled.” Kurzweg v. SCP
Distributors, LLC, 424 Fed. Appx. 840, 843, 2011 U.S.
App. LEXIS 8281, 24 Am. Disability Cas. (BNA) 1555 (11th
Cir. 2011), citing Jones v. Apfel, 190 F.3d 1224, 1228
(11th Cir. 1999).
For purposes of obtaining Social
Security Disability Benefits,
A disability is defined as the “inability to
engage in any substantial gainful activity by
reason of any medically determinable physical
or mental impairment which can be expected to
result in death or which has lasted or can be
expected to last for a continuous period of
not less than 12 months.”
42 U.S.C. §
423(d)(1)(A). The impairment must be “of such
severity that he is not only unable to do his
previous work but cannot, considering his age,
education, and work experience, engage in any
other kind of substantial gainful work which
exists in the national economy.”
Kurzweg, 424 Fed. Appx. At 843.
The SSA disability standard is correctly outlined by Sedgwick.

If

the SSA finding is given the weight some courts give it in ERISA
disability cases, there is a strong basis for Ms. May’s following
argument:
May has now been determined to be fully disabled by the
Social Security Administration. This determination was
made after all briefing was completed. Usually such a
determination
will
require
remand
to
the
Plan
Administrator, but in this case, considering that the
15

District Court reviews de novo (Moon v. Am. Home, 888
F.2d 86, 89 (11th Cir. 1989) a remand is unnecessary
since any determination by the Plan Administrator, when
considering the Administrative Record as a whole along
with this new determination of disability, that May is
not disabled and not entitled to benefits would be
arbitrary and capricious.
This is especially true
considering the strong and broad language used by the
Administrative Law Judge and the determination that no
job is available to May nationwide.
Ms. May’s opposition to a remand to the plan administrator is an
entirely reasonable position for Ms. May to take in light of the
virtually

universal

experience

by

ERISA

claimants

that

reconsideration by an inherently conflicted plan administrator is
rarely, if ever, worthwhile.

It is not only expensive and time

consuming, but it only challenges the conflicted decision-maker to
find a new, if sophistic, reason for reaching the same conclusion
it reached earlier.

What are lawyers and “independent” medical

opiners for?
Sedgwick, itself, is careful not to mention the remand option.
Instead, it places its eggs in the basket of eliminating from
consideration

entirely

the

SSA

determination

and

Ms.

May’s

affidavit that accompanies it. Sedgwick and its lawyers would have
to test their forensic abilities if they had to deal with the SSA
finding.
On more than one occasion, this court has expressed its
disagreement with what this court believes to be the Eleventh
Circuit’s badly flawed, and highly peculiar way of responding to
the instructions laid down by the Supreme Court in Metropolitan
16

Life v. Glenn, 128 U.S. 2343 (2008).

Yet, this court is unwilling

to repeat unsuccessful arguments that have fallen on deaf ears.
The Eleventh

Circuit

made

its

positions

abundantly

clear

in

Blankenship v. Metropolitan Life, 644 F.3d 135 (11th Cir. 2011).
Shortly thereafter, in Ray v. Sun Life, 443 Fed. Appx 529 (11th
Cir.

2011),

the

Eleventh Circuit

added

reinforcement

to

the

concrete that it had poured around its feet in Blankenship, by
holding:
Based on the administrative record available to Sun Life
when it made its decision, see Blankenship, 644 F.3d at
1354 (review of benefits denial is limited to
consideration of the material available to
the
administrator at the time it made its decision), we can
not say that Sun Life’s denial of benefits is de novo
wrong. (emphasis added).
In

Ray,

the

“administrative

record”

contained

something

not

contained in the “administrative record” before the magistrate
judge in

the

disability.

instant

case, namely, an

SSA finding

of

total

Despite this fact, Sun Life easily preferred the

findings of its “two non-examining medical experts” over

the

findings

SSA

of

determination.

the
In

treating
Ray,

physicians,

the

Eleventh

and

over

Circuit

the

elaborated

its

Blankenship positions with two pregnant sentences: (1) “No special
weight is to be accorded the opinion of a treating physician”; and
(2)

“[W]hile

approval

of

social

security

benefits

may

be

considered, it is not conclusive on whether a claimant is also
disabled under the terms of an ERISA plan.”
17

In Ray, the Eleventh

Circuit had no problem in agreeing with the lower court that Sun
Life was not de novo wrong when it found no entitlement

to

benefits.
Not only does the
sanctity to

the

Eleventh Circuit now give dispositive

“administrative

record”,

which

is

not

to

tampered with or supplemented with new, albeit important

be
and

relevant evidentiary material, but if this court were to be so
innovative and adventurous as to deny Sedgwick’s motion to strike,
and if Sedgwick were ordered to take another look at Ms. May’s
claims in light of the favorable SSA decision, Sedgwick could and
probably would treat the SSA finding simply as something else to
discount in comparison with its “independent non-examining medical
experts”.

Assuming arguendo that this court has the power to

remand the case to the Sedgwick briar patch, that briar patch is
one in which Sedgwick is accustomed to navigate.
It is easy to detect that the magistrate judge was operating
under what he realized are the severe constraints imposed by
Blankenship.

Even if he had expended monumental effort, he could

not have found a way around the Eleventh Circuit’s multi-step
framework for reviewing an ERISA denial. No other circuit court of
appeals in the United States has adopted the Eleventh Circuit’s
strange six step scheme. The Eleventh Circuit stands starkly alone
in its reading of MetLife v. Glenn.

One proof of the magistrate

judge’s complete understanding of the Eleventh Circuit is that he
18

places emphasis on the word “mere” employed by the Eleventh Circuit
in its Step Six. The magistrate judge never really arrived at Step
Six in his analysis, because he found that Sedgwick’s decision was
not de novo wrong (was it de novo right?).

The magistrate judge

avoided a need to consider whether Sedgwick’s clear, but “mere”,
conflict-of-interest played a part in the denial decision.

The

word “mere” rhymes with the word “sneer”.

It is like saying “she

has a mere

After Blankenship, no

case of terminal cancer.”

district court within the Eleventh Circuit, and certainly not the
Eleventh Circuit itself, has ever found that the inherent and
inevitable conflict-of-interest recognized by the Supreme Court in
MetLife v. Glenn is a serious factor that must always be considered
as something that can be, and often is, sufficient to topple an
otherwise justifiable denial decision.
Not only did the magistrate judge understand what “mere”, as
used by the Eleventh Circuit, means, but on several occasions he
echoes the Eleventh Circuit’s many affirmances of denials that were
based on a lack of “objective” proof of disability, something the
Eleventh Circuit, perhaps aberrantly, criticized in Oliver v. Coca
Cola Co., 497 F.3d 1187, 1196 (11th Cir. 2009), as follows:
Coca-Cola based its rejection of Oliver’s claim on its
contention that Oliver failed to provide “objective
evidence” of his disability, stating that the “true
organic etiology” of Oliver’s pain had not been
determined. R3-61, Exh. 30. Yet much medical evidence,
especially as it relates to pain, is inherently
“subjective” in that it cannot be quantifiably measured.
19

Indeed, the only evidence of a qualifying disability may
be the sort of evidence that Coca-Cola and Broadspire
characterize as “subjective”, such a physical examination
and medical reports by physicians, as well as the
patient’s own reports of his symptoms.
The Eleventh Circuit’s Step Five and Step Six both begin with
the word “IF”: (5) “IF” there is no conflict...., and (6) “IF there
is a conflict.....” (emphasis added).

IF the Supreme Court in

MetLife v. Glenn made nothing else clear, it made it absolutely
clear that a conflict-of-interest always exists under circumstances
like these, and that the conflict is a substantial factor that must
be considered in evaluating wether the denial was arbitrary and
capricious.

For a long period of time, the Eleventh Circuit found

that some of the schemes and disguises used by ERISA decisionmakers were sufficient to demonstrate that they operated without a
conflict-of-interest.

Now

that

the

ever-present

conflict-of-

interest cannot be explained away, the decision-makers no longer
try to prove the non-existence of the conflict still theoretically
recognized in Step Five.

The depreciation of the conflict-of-

interest inherent

use

in

the

of

the

word

“mere”

allows

the

decision-maker happily to skip over Step Five and go straight to
Step Six.

The word “IF” does not fit.

There is no “IF”. Although

Sedgwick may argue that it itself is not obligated to pay benefits
that the Plan may be obligated to pay to Ms. May, it is clear that
its loyalty is to the owner of the pocket from which those benefits
would be drawn.

If any proof were needed of the fact that for

20

ERISA purposes, Sedgwick is the alter ego of the funding entity, it
is the fact that the decision-maker and the payor are represented
by the same lawyers.

They are all in this together.

Without this court’s considering the SSA determination, which
will be separately stricken on Sedgwick’s motion, this court
respectfully disagrees with the magistrate judge’s conclusion that
Sedgwick’s decision was not de novo wrong. The magistrate judge is
saying that if he had been the decision-maker, he would have
reached the same conclusion that was reached by Sedgwick.

Upon a

de novo review limited to the “administrative record”, this court
finds that Sedgwick’s decision was “de novo wrong”, and if that
were the end of the inquiry, this court would have granted Ms.
May’s claims for short-term benefits.
qualified

as

credibility

Sedgwick,

if

determinations

not

more

without

the

This court is just as
so,

to

make

opportunity

demeanor and the interests of the witnesses.

necessary
to

assess

This court finds Ms.

May believable and finds that she suffered from the debilitating
pain she sought to have corrected by surgery.

Her claims were of

such small amounts that they cannot suggest a motive for fraud or
mispresentation.

No sane person would submit to two dangerous

surgeries just to obtain small amounts of disability benefits.
In the last paragraph of the R&R, the magistrate judge,
inconsistent with his finding that Step One was as far as he needed
to go, said:

21

[D]efendant Sedgwick’s decision to deny plaintiff
benefits during the relevant time periods may not have
been the correct or best decision. (emphasis added).
In

these

words,

the

magistrate

judge

was

expressing

serious

reservations about the correctness of a decision he had found to be
correct.

This court not only believes that Sedgwick’s decision

“may not have been correct”, but that it was incorrect.
There is no purpose to be served by this court’s writing a
full scale opinion to show why Sedgwick was de novo wrong.

Such an

undertaking becomes academic in light of the rule enunciated in
Firestone Tire & Rubber v. Bruch, 489 U.S. 101 (1989), namely, that
a

self-interested

entity,

if

granted

discretion,

can

sit

in

judgment on the correctness of its own rulings, and that despite
its glaring self-interest, it can be objective and fair to the
ERISA beneficiary against whom it has an adversarial relationship.
Perhaps some day the Supreme Court will recognize the “due process”
implications in Bruch.
This court’s quarrel with the Eleventh Circuit’s ERISA regime
cannot form a basis for ignoring binding precedent.

Based on the

“administrative record”, this court agrees with the magistrate
judge that it was not “unreasonable” for Sedgwick to prefer the
opinions of its own hired physicians over the findings of Ms. May’s
treating physicians, who could not satisfy Sedgwick “objectively”
that Ms.

May’s

pain

before

surgery

and

during

periods after

surgery, was so disabling that she could not perform any job.

22

Further, because

Sedgwick’s

obvious

conflict-of-interest

is a

“mere” factor that can be discounted into virtual oblivion, this
court defers to Sedgwick’s exercise of the discretion which Bruch
accorded

it,

and

which

the

Eleventh

Circuit

magnified

in

outside

the

Blankenship.
In

Blankenship,

the

Eleventh

Circuit

went

“administrative record” to mention the fact that Metropolitan Life
had such a big balance sheet that a disability claim of a “mere”
$500,000

could

not

cause

fiduciary

obligation.

Circuit’s

departure

it

While
from

to
not

the

flinch

from

discharging

understanding
“administrative

the

its

Eleventh

record”

in

Blankenship, this court readily adopts the Blankenship idea for
this case.

Sedgwick should have had no hesitancy in dipping into

AT&T’s deep pocket when Ms. May was only seeking chump change.
This court respectfully declines Ms. May’s invitation to be
the first district court within the Eleventh Circuit to find that
a “mere” conflict-of-interest tips the balance in favor of a
disability claimant.

There are many cases elsewhere in which the

inherent conflict-of-interest tips the balance in favor of the plan
beneficiary, but this court has found none in the Eleventh Circuit.
Conclusion
This

court

commends

to

any

reader

of

this

opinion

the

penetrating article written by Marc Galanter, entitled “Why The
‘Haves’ Come

Out

Ahead: Speculations
23

On

The

Limits

Of Legal

Change”, found at 9 Law & Soc’y Rev. 95 (1974).
out of a seminar held at Yale Law School.

The article grew

Inter alia, Professor

Galanter said:
Most analyses of the legal system start at the rules end
and work down through institutional facilities to see
what effect the rules have on the parties. I would like
to reverse that procedure and look through the other end
of the telescope. Let’s think about the different kinds
of parties and the effect these differences might have on
the way the system works.
Because of differences in their size, differences in the
state of the law, and differences in their resources,
some of the actors in the society have many occasions to
utilize the courts (in the broad sense) to make (or
defend) claims; others do so only rarely.
We might
divide our actors into those claimants who have only
occasional recourse to the courts (one-shotters or OS)
and repeat players (RP) who are engaged in many similar
litigations over time. (emphasis added).
Ms. May has only one ERISA case, this one.

Sedgwick, and other

professional claims administrators and insurers, have many cases
and are represented by highly competent lawyers who are well
trained in ERISA jurisprudence, which has mutated far away from
original Congressional intent.

The “one-shotters” cannot compete

with the “repeat players”.
This court’s unsolicited advice to Ms. May is to forget the
possibility that her case will be the first case in the Eleventh
Circuit since Blankenship in which an adverse decision by a plan
administrator will be set aside as an abuse of discretion.

An

appeal by Ms. May would require the Eleventh Circuit to review de
novo this opinion, which has reviewed de novo the magistrate

24

judge’s opinion,
opinion.

which, in turn, reviewed de novo Sedgwick’s

If Ms. May does not take this court’s advice, and if the

Eleventh Circuit should find a way to commiserate with her in a
more tangible way than this court has been able to do, this court’s
feelings will not be hurt.
By separate orders, the motions of Sedgwick to strike and for
summary judgment will be granted.
DONE this 26th day of July, 2013.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

25