Cofield v. Hartford, The

Filing 34

MEMORANDUM OPINION AND ORDER- For the reasons stated within: (1) Pltf's motion to remand (Doc 24 ) is DENIED; (2) Pltf's objections to the admissibility of Hartford's evidence (see Doc 23 ) are OVERRULED; (3) Pltf's motion for summary judgment (Doc 18 ) will be denied; and (4) Hartford's motion for summary judgment (Doc 20 ) will be granted. Signed by Magistrate Judge Staci G Cornelius on 5/7/20. (MRR, )

FILED
2020 May-07 PM 03:38
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
RICKEY COFIELD,
Plaintiff,
v.
THE HARTFORD,
Defendant.

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Case No.: 4:18-cv-00607-SGC

MEMORANDUM OPINION AND ORDER 1
Plaintiff Rickey Cofield filed this matter, seeking long-term disability
(“LTD”) benefits pursuant to the Employee Retirement Income Security Act, 29
U.S.C. § 1001, et seq. (“ERISA”).

Defendant Hartford Life and Accident

Insurance Company issued and administered the LTD policy at issue. (Doc. 21 at
3). 2 Presently pending are three motions: (1) Plaintiff’s motion for summary
judgment3; (2) Hartford’s motion for summary judgment; and (3) Plaintiff’s
motion to remand. (Docs. 18, 20, 24). The motions are fully briefed and ripe for
1

The parties have consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c).
(Doc. 7).
2

Citations to the record in this case refer to the document and page numbers assigned by the
court’s electronic document management system and appear in the following format: (Doc. __ at
__). Citations to the sealed Administrative Record (Doc. 15) refer to the Bates-Stamped page
numbers assigned by the parties and appear in the following format: (R. __).
3

This motion is entitled “Plaintiff’s Motion for Judgment for Continuing LTD Benefits With
Submissions.” (Doc. 18 at 1). While the motion does not invoke a particular procedural rule, the
undersigned construes the motion as brought pursuant to Rule 56 of the Federal Rules of Civil
Procedure.

adjudication. (Docs. 18-31). As explained below, Plaintiff’s motions are due to be
denied, and Hartford’s motion is due to be granted.
I.

FACTS4
Plaintiff worked for Mohawk ESV, a carpet manufacturer, for thirty-three

years. (Doc. 31 at 1). Hartford issued a group policy (the “Policy”) to Mohawk to
insure LTD benefits under Mohawk’s employee welfare benefit plan (the “Plan”).
(Doc. 21 at 3). As a Mohawk employee, Plaintiff was a participant in the Plan;
Hartford administered LTD claims under the Plan. (Id.). The Policy included the
following definitions and provisions regarding Plaintiff’s eligibility for benefits:
Disability or Disabled means You are prevented from performing
one or more of the Essential Duties of:
1) Your Occupation during the Elimination Period;
2) Your Occupation, for the 12 months following the
Elimination Period, and as a result Your Current Monthly
Earnings are less than 80% of Your Indexed Pre-disability
Earnings; and
3) after that, Any Occupation.
If at the end of the Elimination Period, You are prevented from
performing one or more of the Essential Duties of Your Occupation,
but Your Current Monthly Earnings are equal to or greater than 80%
of Your Pre-disability Earnings, Your Elimination Period will be
extended for a total period of 12 months from the original date of
Disability, or until such time as Your Current Monthly Earnings are
less than 80% of Your Pre-disability Earnings, whichever occurs first.

4

This recitation includes all material facts necessary to resolve both pending motions for
summary judgment. Plaintiff largely admitted the facts set forth in Hartford’s brief in support of
its motion for summary judgment. (Doc. 25 at 2). Any factual disputes are noted, either in this
recitation of facts or the subsequent discussion.

2

Your Disability must result from:
1) accidental bodily injury;
2) sickness;
3) Mental Illness
4) Substance Abuse; or
5) pregnancy.
Your failure to pass a physical examination required to maintain a
license to perform the duties of Your Occupation, alone, does not
mean that You are Disabled.
(R. 49-50). The Policy further defined the terms “any occupation,” “other income
benefits,” and “overpayment” as follows:
Any Occupation means any occupation for which You are qualified
by education, training or experience, and that has an earnings potential
greater than the lesser of:
1) the product of Your Indexed Pre-disability Earnings
and the Benefit Percentage; or
2) the Maximum Monthly Benefit.
(R. 49).
Other Income Benefits means the amount of any benefit for loss of
income, provided to You or Your family, as a result of the period of
Disability for which You are claiming benefits under The Policy.
This includes any such benefits for which You or Your family are
eligible or that are paid to You or Your family, or to a third party on
Your behalf, pursuant to any:
...
5) disability benefits under:
a) the United States Social Security Act or alternative
plan offered by a state or municipal government;
(R. 51).
Overpayment: When does an overpayment occur?
An overpayment occurs:

3

1) when We determine that the total amount We have
paid in benefits is more than the amount that was due to
You under The Policy; or
2) when payment is made by Us that should have been
made under another group policy.
This includes, but is not limited to, overpayments resulting from:
1) retroactive awards received from sources listed in the
Other Income Benefits definition;
2) failure to report, or late notification to Us of any Other
Income Benefit(s) or earned income;
3) misstatement;
4)fraud; or
5) any error We make.
(R. 47).
Regarding the calculation and payment of benefits, the Policy provided:
If You are Disabled and not receiving benefits under the Return to
Work Incentive, We will calculate Your Monthly Benefit as follows:
1) multiply Your Monthly Income Loss by the Benefit
Percentage;
2) compare the result with the Maximum Benefit; and
3) from the lesser amount, deduct Other Income Benefits
The result is your monthly benefit.
(R. 42). Plaintiff was defined as a “class 2” employee under the Policy. (See Doc.
21 at 3). For a class 2 employee, the “Benefit Percentage” was 50%, and the
maximum duration of benefits for an employee who became disabled before the
age of sixty-one was five years. (R. 37-39).
Unsurprisingly, LTD benefit payments would cease when the employee was
no longer disabled under the Policy’s terms. (R. 42). Finally, the Policy provided
Hartford the right to recoup any overpayments:
4

We have the right to recover from You any amount that We determine
to be an overpayment. You have the obligation to refund to Us any
such amount. Our rights and Your obligations in this regard may also
be set forth in the reimbursement agreement You will be required to
sign when You become eligible for benefits under The Policy.
If benefits are overpaid on any claim, You must reimburse us within
30 days.
If reimbursement is not made in a timely manner, We have the right
to:
1) recover such overpayments from:
a) You;
b) any other organization;
c) any other insurance company;
d) any other person to or for whom payment
was made;
e) Your estate;
2) reduce or offset against any future benefits payable to
You or Your survivors, including the Minimum Monthly
Benefit, until full reimbursement is made. Payments may
continue when the overpayment has been recovered;
3) refer Your unpaid balance to a collection agency; and
4) pursue and enforce all legal and equitable rights in
court.
(R. 47-48).
Following a traffic accident, Plaintiff quit working for Mohawk in April
2016 due to back and hip pain. (Doc. 21 at 7; see R. 511, 586). Plaintiff was
approved for short-term disability benefits from May 2, 2016, through July 31,
2016. (Doc. 21 at 7; R. 510). During this time, Plaintiff sought medical treatment
from his primary care physician, Russel Peterson, M.D., who in turn referred him
to James McGrory, M.D., an orthopedist. (See Doc. 21 at 7; R. 555-58). Plaintiff
5

saw Dr. McGrory on May 4, 2016, complaining of lower back pain; x-rays showed
degenerative changes with disc space narrowing at L4-5, while an MRI revealed
degenerative disc disease with disc desiccation and a mild loss of disc height. (R.
555-61; see Doc. 21 at 7; Doc. 19 at 5). On May 18, 2016, Dr. McGrory noted
there was no significant neurocompressive disease; he prescribed a lumbar corset,
physical therapy, and muscle relaxers. (Doc. 19 at 5). Plaintiff saw Dr. McGrory
again on June 8, 2016, complaining of worsening hip pain and requesting surgery.
(R. 555; see Doc. 21 at 7; Doc. 19 at 5-6). On July 27, 2016, Dr. McGrory
completed an Attending Physician’s Statement (“APS”) noting Plaintiff: (1)
suffered from osteoarthritis of the hip; (2) was scheduled to have hip replacement
surgery on August 2, 2016; and (3) had “been out of work due to the severity of
diagnosis and a physically demanding job.” (R. 520-21; see Doc. 21 at 7-8).
Plaintiff submitted his application for LTD benefits under the Policy on
August 22, 2016; he was fifty-two. (R. 586-87; see R. 159). Hartford approved
Plaintiff’s claims effective August 1, 2016. (R. 198-201). Hartford paid Plaintiff
$1,000 per month—the maximum monthly LTD benefit under the Policy—for
twelve months. (See Doc. 21 at 17). Hartford’s award letter noted: (1) Plaintiff’s
monthly benefit would be reduced by any Social Security benefits he might

6

receive;5 and (2) benefits under the Policy would expire after five years, so any
payments would cease after July 31, 2021. (R. 198-99; see Doc. 21 at 8-9).
Additionally, Plaintiff executed a Reimbursement Agreement acknowledging
Hartford’s right to reduce or eliminate any future LTD benefits in order to recover
any unreimbursed overpayments. (R. 198; see Doc. 21 at 8).
Dr. McGrory performed Plaintiff’s left hip replacement on August 2, 2016.
(Doc. 21 at 8; Doc. 19 at 6). During follow-up visits, Dr. McGrory noted Plaintiff
was recovering and doing well. (Doc. 21 at 8; Doc. 19 at 6; R. 506, 525). During
a November 16, 2016 visit, Dr. McGrory noted Plaintiff’s left hip was doing well
but concluded he needed a right hip replacement. (Doc. 21 at 9; Doc. 19 at 6; R.
495). Dr. McGrory completed a second APS, including this assessment and noting
Plaintiff was unable to work due to right hip osteoarthritis; Dr. McGrory estimated
these restrictions would persist for three to six months. (R. 491; see Doc. 21 at 9).
Dr. McGrory performed Plaintiff’s right hip replacement on March 7, 2017. (Doc.
21 at 10; Doc. 19 at 6). Two weeks later, on March 22, 2017, Dr. McGrory noted
Plaintiff had restricted range of motion in his right hip, with pain in all directions;
Dr. McGrory also opined Plaintiff was unable to work at the time. (Doc. 19 at 7).
By April 19, 2017, Dr. McGrory noted Plaintiff had a normal gait, no limp, and

5

Regardless of any offset for other earnings, Plaintiff was entitled to the $100 minimum monthly
benefit so long as he was disabled under the Policy’s terms. (R. 37; Doc. 21 at 18; Doc. 25 at 1).

7

walked without assistance, although he could not work for at least another two
months. (R. 407; see Doc. 21 at 10; Doc. 19 at 7).
During a July 5, 2017 visit, Dr. McGrory noted he was “very happy” with
the surgical results and that Plaintiff’s hip was “doing very well.” (R. 407). Dr.
McGrory noted Plaintiff’s principal limitation was lower back pain and that he
would have “a great deal of difficulty lifting.” (Doc. 19 at 17). On July 10, 2017,
Dr. McGrory completed a third APS, noting Plaintiff complained of severe lower
back pain. (R. 346-47). Dr. McGrory found tender L4-S1 paraspinals, worse with
extension, and half of normal range of motion. (R. 346). Dr. McGrory opined
Plaintiff was able to return to work but was restricted in the following respects: (1)
no bending, stooping, crawling, kneeling, or climbing; (2) lifting no more than
twenty pounds; (3) walking on concrete floors no more than one to two hours at a
time; (4) alternating between sitting and standing; (5) sitting intermittently for four
hours at a time, for a total of eight hours per day; (6) standing intermittently for
four hours at a time, for a total of eight hours per day; and (7) walking
intermittently for two hours at a time, for a total of eight hours per day. (R. 34647). Dr. McGrory further opined Plaintiff was capable of working under these
restrictions as of July 5, 2017. (R. 347).
Meanwhile, Hartford reviewed Plaintiff’s claim to determine whether he
would be entitled to LTD benefits after August 1, 2017, when Plaintiff would no
8

longer be considered disabled under the Policy unless he could not perform any
occupation.

(Doc. 21 at 9; Doc. 19 at 1-2).

On March 16, 2017, Plaintiff

completed a questionnaire noting he earned $300 per month as a preacher. (R.
477, 483).

On July 19, 2017, Kristel Heard, MS, CRC, Hartford’s clinical

rehabilitation counselor, conducted a review of Plaintiff’s claim and drafted an
“Employability Analysis Report” (“EAR”). (R. 301-36; see Doc. 21 at 11). The
EAR noted the restrictions imposed by Dr. McGrory’s July 10, 2017 APS, as well
as Plaintiff’s activity as a church pastor. (R. 301). The EAR concluded Plaintiff
was physically capable of performing eight jobs classified as sedentary or requiring
light exertion and earning between $2,385.80 and $2,598.27 per month. (R. 302).6
On July 25, 2017, Hartford notified Plaintiff his LTD benefits would be
terminated as of August 1, 2017, when the definition of disability changed. (R.
157-61; see Doc. 19 at 3-4). This determination was based on Dr. McGrory’s July
10, 2017 APS and Hartford’s EAR.

(R. 160).

Counsel for Plaintiff

administratively appealed the termination of LTD benefits, submitting an
evaluation Dr. McGrory completed on March 17, 2017, just ten days after
Plaintiff’s right hip replacement. (R. 238-41; see Doc. 19 at 4). Unsurprisingly,
Dr. McGrory’s earlier evaluation found Plaintiff suffered from more significant
6

This is the only portion of Hartford’s recitation of facts which Plaintiff denies. (See Doc. 25 at
2). However, Plaintiff does not offer an alternative version of the facts. Instead, it appears
Plaintiff takes issue with Hartford’s ultimate conclusion that he was physically capable of
performing other jobs.

9

limitations than reflected in his July 10, 2017 APS, and opined he was unable to
work at that time. (R. 254; Doc. 18-10 at 17). Plaintiff’s counsel also provided
two supporting letters noting Plaintiff slept with oxygen due to chronic obstructive
pulmonary disease (“COPD”). (Doc. 19 at 4).
In response to Plaintiff’s administrative appeal, Hartford hired Professional
Disability Associates to conduct an independent medical review, which Rajesh
Kannan Ethiraj, M.D., completed on February 27, 2018. (R. 394-400; Doc. 21 at
13; Doc. 25 at 16). As part of his review, Dr. Ethiraj spoke with Plaintiff’s
primary care physician, Dr. Peterson, regarding his medical conditions, which
included an upper respiratory infection, obesity, and mild chronic obstructive
pulmonary disease from past smoking. (R. 396). Dr. Peterson noted Plaintiff met
the criteria for receiving nocturnal oxygen but he had not placed any restrictions on
Plaintiff other than possible limitation of activity tolerance due to obesity. (Id.).
Dr. Peterson also agreed: (1) with the restrictions and limitations imposed by Dr.
McGrory’s July 10, 2017 APS; and (2) that Plaintiff could work full-time. (Id.).7
Dr. Ethiraj reviewed each of Plaintiff’s medical conditions in turn.
Regarding Plaintiff’s hip problems, Dr. Ethiraj concluded—based on the positive
surgical outcomes—there was no medical evidence to support any restrictions
7

Plaintiff filed a motion to strike—on hearsay grounds—Dr. Ethiraj’s statements regarding his
conversation with Dr. Peterson. (Doc. 23). The court termed the motion to strike, noting it
construed the motion as objections to the admissibility of this evidence on summary judgment.
(Doc. 32). The substance of Plaintiff’s objections will be addressed later in this opinion.

10

beyond forbidding climbing and kneeling. (R. 397). Regarding back pain, Dr.
Ethiraj noted: (1) Plaintiff had reported back pain for more than two years; and (2)
the results of the May 12, 2016 MRI showed degenerative changes and facet
arthropathy at L3-L5 but no evidence of neurocompression. (Id.). As a result,
Plaintiff was prescribed a muscle relaxer and back support and was referred to
physical therapy. (Id.). Medical records did not show further evidence of this
condition until April 19, 2017, when plaintiff reported back pain and right leg
weakness. (Id.). However, there was no evidence of lumbar radiculopathy or
lower extremity neurologic deficits. (Id.). Dr. Ethiraj also noted Plaintiff was
morbidly obese and had mild COPD but there was no evidence to support
restrictions based on these conditions. (R. 397-98).
Regarding Plaintiff’s restrictions, Dr. Ethiraj concluded Plaintiff was slightly
more restricted than reflected in Dr. McGrory’s July 10, 2017 APS. Specifically,
Dr. Ethiraj opined Plaintiff could: (1) stand, walk, and climb for an hour at a time,
for a total of three to six hours each day; (2) walk for no more than one to two
hours at a time on concrete floors; (3) occasionally reach below the waist; (4)
occasionally lift, carry, push, and pull up to twenty pounds; and (4) never stoop,
crawl, kneel, climb ladders, or work at unprotected heights. (R. 399). Based on
these limitations, Dr. Ethiraj concluded Plaintiff would be capable of working on
August 1, 2017. (R. 400).
11

Based on Dr. Ethiraj’s recommendations, on March 1, 2018, Kristel Heard
created an addendum to her previous EAR. (R. 357-91; see Doc. 21 at 15).
Specifically, the EAR was adjusted to allow Plaintiff to: (1) constantly reach,
handle, finger, and feel; and (2) never work in high exposed places. (R. 357-58).
Heard concluded these restrictions still allowed Plaintiff to perform all of the jobs
identified in the original EAR. (R. 358).
On March 9, 2018, Hartford upheld its determination that Plaintiff was no
longer entitled to LTD benefits under the Policy. (R. 146-49; see Doc. 21 at 15).
In reaching this decision, Hartford analyzed Dr. Ethiraj’s review; it also considered
Dr. McGrory’s March 17, 2017 APS but noted it was contradicted by his more
recent July 10, 2017 APS. (R. 148). Hartford noted the limitations Dr. Ethiraj
recommended were actually more restrictive than those imposed by Dr.
McGrory—with which Dr. Peterson agreed—but still allowed Plaintiff to perform
other jobs. (R. 148-49). Hartford concluded Plaintiff could perform the essential
duties of other jobs and thus determined Plaintiff was not disabled under the Policy
beginning August 1, 2017. (R. 149).
Plaintiff filed an application for Social Security Disability Insurance
(“SSDI”) on July 7, 2016—six weeks before he submitted his application for LTD
benefits under the Policy. (Doc. 18-2 at 5; see R. 159). Although there is a factual
dispute on this point, it appears Plaintiff’s SSDI application was filed by a third12

party, Citizens Disability, LLC. (See R. 592).8 On November 29, 2016, Hartford
sent Citizens Disability a letter inquiring about the status of Plaintiff’s SSDI
application. (R. 190). On January 9, 2017, and April 18, 2017, Citizens Disability
sent Hartford notices stating that it represented Plaintiff in his SSDI application.
(R. 489, 433). After the Social Security Administration denied the application,
Plaintiff’s counsel in the instant lawsuit notified Hartford on April 24, 2017, that
he was representing Plaintiff in his appeal to the agency. (Doc. 18-7). Plaintiff
initiated the instant lawsuit by filing a complaint in Etowah County Circuit Court
on March 19, 2018. (Doc. 1-1). Hartford removed to this court on April 17, 2018.
(Doc. 1). At that time, Plaintiff’s appeal was still pending with the Social Security
Administration.
On November 11, 2018, Plaintiff’s counsel notified Hartford the Social
Security Administration had awarded Plaintiff SSDI benefits in a partially
favorable decision on May 20, 2018. (Doc. 21 at 16-17). The Social Security
Administration determined Plaintiff was entitled to $1,441.20 in monthly SSDI
benefits beginning in December 2016. (Id. at 17). As part of the SSDI award,
Plaintiff received $24,642 in past-due benefits for December 2016 through April
2018.

(Id.).

Plaintiff’s SSDI award overlapped—albeit after the fact—with

8

On July 6, 2016, Citizens Disability sent Plaintiff a letter: (1) thanking him for signing
documents; (2) attaching the disability application Citizens Disability would file with the Social
Security Administration; and (3) noting Citizens Disability would file the disability application
unless Plaintiff needed to make any changes. (R. 592).

13

Hartford’s payment of LTD benefits under the Policy for eight months, from
December 2016 through July 2017. Accordingly, under the Policy, Plaintiff should
have received the $100 monthly minimum payment from December 2016 through
July 2017—not the $1,000 monthly benefit Hartford paid. As a result of the SSDI
award, Hartford overpaid Plaintiff $7,200 in LTD benefits. (See Doc. 21 at 18).
II.

DISCUSSION
Before addressing the motions for summary judgment, the court will

consider Plaintiff’s pending motion to remand and his objection to Dr. Ethiraj’s
statement.
A.

Plaintiff’s Motion to Remand

Plaintiff moves to remand this case so Hartford can consider the Social
Security Administration’s determination that he was disabled. (Doc. 24). The
general rule in the Eleventh Circuit is that this court’s review 9 is limited to the
evidence available to an ERISA claims administrator at the time it made its
decision. See Jett v. Blue Cross & Blue Shield of Ala., Inc., 890 F.2d 1137, 1140
(11th Cir. 1989); Blankenship v. Metro. Life Ins. Co., 644 F.3d 1350, 1354 (11th
Cir. 2011). Here, the Social Security Administration did not issue its award until
May 20, 2018—more than two months after Hartford’s final administrative
decision.
9

As explained subsequently in this opinion, the arbitrary and capricious standard of review
applies in this case.

14

Plaintiff’s motion primarily consists of block quotes from Metro. Life Ins.
Co. v. Glenn, 554 U.S. 105 (2008), Oliver v. Coca-Cola Co., 397 F. Supp. 2d 1318,
1326 (N.D. Ala. 2005), Schexnayder v. Hartford Life and Accident Ins. Co., 600
F.3d 465 (5th Cir. 2010), and White v. Life Ins. Co. of N. Am., 892 F.3d 762, 76768 (5th Cir. 2018). However, none of these decisions require remand here.
First, Glenn held a contrary disability determination by the Social Security
Administration is relevant when there is a conflict of interest. 554 U.S. at 118. As
explained in more detail below, Plaintiff has not shown Hartford’s decision was the
product of a conflict of interest. “The Glenn decision does not stand for the
proposition that the Social Security Administration’s disability determinations are
binding on ERISA plan administrators.” Oates v. Walgreen Co., No. 12-0908,
2013 WL 1632011, at *9 (M.D. Fla. April 16, 2013). That an SSDI determination
is not determinative of disability under an LTD policy is not surprising given the
unique five-step sequential evaluation process, standards regarding disability, and
attendant regulations governing Social Security decisions. See Curran v. Kemper
Nat’l Servs., Inc., No. 04-14097, 2005 WL 894840 at *8 (11th Cir. Mar. 16, 2005);
Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 803-05 (1999).
Next, in Oliver, a court sitting in this district found an SSDI award bolstered
the opinions of the plaintiff’s treating physicians and “would tip the balance” in the
plaintiff’s favor on “close” medical questions. 397 F. Supp. 2d at 1326. Here, the
15

medical question is not close because Plaintiff’s treating physicians agreed with
Hartford’s conclusions regarding Plaintiff’s abilities and limitations. If anything,
Hartford imposed more significant limitations than did any of his treating
physicians. Finally, in both Schexnayder, 600 F.3d at 470-71, and White, 892 F.3d
at 768, the Fifth Circuit remanded, as procedurally unreasonable, cases in which
contrary SSDI awards were included in the administrative records but were not
addressed in the administrators’ denials. These decisions do not apply here, where
Hartford had already issued its final decision before the SSDI award was issued.
As other courts sitting in this district have noted, “if the plan had such a duty [to
continue to consider additional documents], the process of deciding each claim for
benefits under ERISA could continue ad infinitum, or as long as the plaintiff
continued to have doctor or hospital visits and chose to submit additional
documents for consideration.” Ray v. Sun Life & Health Ins. Co., 752 F. Supp. 2d
1229, 1234 (N.D. Ala. 2010); White v. Hartford Life & Accident Ins. Co., No. 092384-JEO, 2011 WL 13285549, at *1 (N.D. Ala. Oct. 26, 2011).
Finally, as Hartford notes, remand to the administrator here would not afford
Plaintiff relief. Plaintiff received a year’s worth of the maximum LTD benefit
available under the Policy until the definition of disability changed on August 1,
2017. The maximum duration of LTD benefits available under the Policy was five
years, meaning Plaintiff could have collected LTD benefits for another four years
16

at most. However, under the income offset provisions of the Policy, Plaintiff
should have received the minimum benefit amount of $100 per month starting in
December 2016.

Accordingly, even if Hartford determined on remand that

Plaintiff was disabled in light of the SSDI award, the most it could ever owe
Plaintiff would be $4,800 in LTD benefits. Because this amount is less than the
$7,200 Hartford already overpaid from December 2016 through July 2017, remand
would not afford Plaintiff any relief.
For the foregoing reasons, Plaintiff’s motion to remand for consideration of
the SSDI award is DENIED. (Doc. 24).
B.

Plaintiff’s Objections to Hartford’s Evidence

As previously noted, the court construes Plaintiff’s motion to strike as
objections to the admissibility of Hartford’s evidence in support of its motion for
summary judgment. Thus construed, Plaintiff objects on hearsay grounds to Dr.
Ethiraj’s review to the extent it describes Dr. Peterson’s statements regarding
Plaintiff’s restrictions. (Doc. 23). The one-page motion does not cite any legal
authority, and Plaintiff did not file a reply in support of the motion.
As an initial matter, courts hearing ERISA cases must examine the
administrative record to determine whether it supports the administrator’s decision.
Thus, for purposes of this court’s review, Dr. Ethiraj’s recap of his conversation
with Dr. Peterson does not constitute hearsay because it is not offered for the truth
17

of the matter asserted. See Adair v. El Pueblo Boys’ & Girls’ Ranch, Inc., No. 061343, 2008 WL 792031, at *9 (D. Colo. Mar 20, 2008); Trustmark Ins. Co. v.
Schuchman, No. 99-1081, 2004 WL 1622094, at *12 (S.D. Ind. June 8, 2004).
Next, even if Dr. Ethiraj’s description of the conversation was subject to the rule
against hearsay, it would fall within the business record exception. FED. R. EVID.
803(6); Adair, 2008 WL 792031 at *9; (see Doc. 22-1).
For the foregoing reasons, Plaintiff’s objections to the admissibility of Dr.
Ethiraj’s statements are OVERRULED. (Doc. 23).
C.

Motions for Summary Judgment

Because ERISA does not provide a standard for courts reviewing the
benefits decisions of plan administrators, the Eleventh Circuit created a six-step
review process in Williams v. BellSouth Telecomms, Inc., 373 F.3d 1132 (11th Cir.
2004). Since Williams, the first five steps have remained unchanged; the sixth step
has been modified in light of the Supreme Court’s decision in Glenn, 554 U.S. at
128. Following Glenn, the six-step review process 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 judicial inquiry and reverse the decision.

18

(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.
(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.
Blankenship, 644 F.3d at 1355. At step six, as modified by Glenn, if a conflict
exists, the conflict is treated as one factor in determining whether the
administrator's benefits decision was arbitrary and capricious.

See Capone v.

Aetna Life Ins. Co., 592 F.3d 1189, 1196 (11th Cir. 2010) (quoting Doyle, 542 F.3d
1352, 1360 (11th Cir. 2008)). “[T]he 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.” Id.
Here, the Policy gives Hartford full discretionary authority to determine
eligibility for benefits. 10 Accordingly, the arbitrary and capricious standard applies

10

The Policy gives Hartford “full discretion and authority to determine eligibility for benefits
and to construe and interpret all terms and provisions of The Policy.” (R. 49). The Policy also
provides that “all proof submitted must be satisfactory” to Hartford. (R. 46). This language
vests Hartford with discretionary authority. See Tippitt v. Reliance Standard Life Ins. Co., 457
F.3d 1227, 1233-34 (11th Cir. 2006); Levinson v. Reliance Standard Life Ins. Co., 245 F.3d
1321, 1324-25 (11th Cir. 2001).

19

to both pending motions for summary judgment; Hartford’s denial of LTD benefits
will be upheld unless it abused its discretion. Jett, 890 F.2d at 1139. 11 Having set
forth the standards governing this case, each motion for summary judgment is
addressed in turn.
1.

Hartford’s Motion for Summary Judgment

Because Hartford determined Plaintiff was capable of performing a number
of jobs at the light exertional level, it concluded he was not disabled under the
Policy after July 31, 2017, when the definition of disability changed. Hartford’s
conclusion regarding Plaintiff’s abilities is supported by Dr. McGrory’s July 10,
2017 APS, in which he released Plaintiff to work with restrictions. While Dr.
McGrory noted Plaintiff had lower back pain and suffered from degenerative
changes, the restrictions he imposed accounted for this condition. Dr. McGrory’s
opinions in the July 10, 2017 APS are consistent with his treatment records, which
reflect Plaintiff’s steady improvement following his hip replacements. From June
2016 through November 2016, Dr. McGrory noted Plaintiff: (1) experienced pain
to a degree that interfered with his activities of daily living (R. 549); (2) had
painful range of motion which produced groin, thigh, and knee pain, as well as a
positive Stinchfield response (R. 520); (3) was prescribed narcotic pain medication
11

Plaintiff does not address Hartford’s contention that the arbitrary and capricious standard of
review applies to this case; nor does he suggest another standard that should apply. However,
the undersigned construes Plaintiff’s arguments that Hartford abused its discretion or was
“wrong and unreasonable” as a tacit admission that abuse of discretion is the appropriate
standard here. (See Doc. 25 at 7-16).

20

(R. 490); and (4) was at risk for falling and used a cane (R. 549). However,
following Plaintiff’s second hip replacement, he showed steady improvement. By
April 19, 2017, Plaintiff was walking without an assistive device and had a normal
gait with no limp. (R. 407; see R. 467). Dr. McGrory repeatedly noted Plaintiff
was doing well and had no complaints or issues regarding his hip replacements.
(R. 407, 467, 506, 525). By July 2017, Dr. McGrory noted Plaintiff was no longer
taking pain medications. (R. 346).
Dr. McGrory’s treatment records and the July 10, 2017 APS support
Hartford’s determination that Plaintiff could perform other work and thus was not
disabled under the Policy. Paramore v. Delta Air Lines, Inc., 129 F.3d 1446, 1451
(11th Cir. 1997) (affirming summary judgment for administrator where plaintiff’s
treating physician opined he was capable of performing other occupations); Kirby
v. Hartford, No. 08-0848-VEH, 2009 WL 10703312 at *12 (granting summary
judgment for Hartford where records from plaintiff’s treating physician supported
administrator’s conclusion plaintiff was not disabled). Similarly, while Plaintiff
complains of COPD and back pain, the medical evidence does not reveal Plaintiff
suffered disabling limitations as a result of these conditions.
On appeal, Dr. Ethiraj conferred with Dr. Peterson, who agreed with the
restrictions imposed by Dr. McGrory’s opinion. Dr. Ethiraj imposed limitations
that were slightly more restrictive than those suggested by Dr. McGrory and
21

approved of by Dr. Peterson.

Under the revised restrictions imposed by Dr.

Ethiraj, Hartford’s amended EAR concluded Plaintiff was capable of performing
the occupations identified in its original EAR. In light of the administrative record,
Hartford’s decision was not wrong; at step one of the post-Glenn analysis, the
court agrees with it. Moreover, as explained below, even if Hartford’s decision
was wrong in this case, Plaintiff could not demonstrate it was arbitrary and
capricious.
As previously noted for purposes of step two of the analysis, Hartford was
vested with discretion in reviewing claims under the Policy; thus the arbitrary and
capricious standard

applies at step three.

In light of the foregoing medical

evidence, even if Hartford’s decision was de novo wrong, Plaintiff cannot
demonstrate it was unreasonable under the arbitrary and capricious standard. In
the Eleventh Circuit, so long as there is a reasonable basis for a decision, “it must
be upheld as not being arbitrary or capricious, even if there is evidence that would
support a contrary decision.” White v. Coca-Cola Co., 542 F.3d 848, 856 (11th
Cir. 2008) (quoting Jett, 890 F.2d at 1140). As another court sitting in this district
has noted, where “it is possible to offer a reasoned explanation, based on the
evidence, for a particular outcome, that outcome is not arbitrary or capricious.”
White, 2011 WL 13285549, at *9 (quoting Davis v. Ky. Fin. Co. Ret. Plans, 887
F.2d 689, 693 (6th Cir. 1989)).
22

Moving to step four of the analysis, Plaintiff notes Hartford hired
Professional Disability Associates to review the evidence on appeal at the
administrative level. (E.g. Doc. 25 at 11, 16). However, courts in the Eleventh
Circuit have held there is no inherent conflict of interest in employing independent
record reviewers. McCay v. Drummond Co., 823 F. Supp. 2d 1221, 1246 (N.D.
Ala. 2011); see Doyle, 542 F.3d at 1361-62. 12 Accordingly, to the extent Plaintiff
contends Hartford was operating under a conflict of interest, he has failed to carry
his burden in that regard.13
In response, Plaintiff contends summary judgment is inappropriate for four
reasons: (1) Hartford is judicially estopped from denying benefits; (2) Hartford’s
“history of abuse”; (3) problems with Dr. Ethiraj’s review; and (4) Hartford’s

12

Although not argued, to the extent Hartford both made eligibility decisions and paid benefits
from its own funds, the court has considered whether this structural conflict of interest tainted
Hartford's decision. The weight of the conflict of interest varies based on its “inherent or casespecific importance.” Glenn, 554 U.S. at 117. And even when a conflict of interest exists, the
Eleventh Circuit has emphasized “courts still ‘owe deference’ to the plan administrator's
‘discretionary decision-making’ as a whole.” Blankenship, 644 F.3d at 1355 (quoting Doyle, 542
F.3d at 1363). Ultimately, “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 101). Plaintiff has not shown, and the court’s review of the record has not revealed,
that any structural conflict of interest had particular “inherent or case-specific importance.” See
White, 2011 WL 13285549 at *11.
13

Finally, stepping aside from the six-step review process, it does not appear Plaintiff can prove
any damages in this case. Plaintiff claims entitlement to the $100 monthly minimum benefit
under the Policy. (Doc. 25 at 1). However, as noted in the facts section of this opinion, the most
Hartford could owe under the minimum benefit would be $4,800. Because Hartford has already
overpaid—and not recouped—$7,200 in LTD benefits, it is difficult to envision how Plaintiff
could show damages. Plaintiff has not responded to Hartford’s arguments on this point. (See
Doc. 21 at 27-29).

23

failure to consider Plaintiff’s SSDI award. (Doc. 25). Each argument is addressed
in turn.
First, Plaintiff contends Hartford is judicially estopped from denying he is
disabled because it offered to provide legal counsel to assist him in his SSDI
application. (Doc. 25 at 4-7). Plaintiff relies exclusively on the April 18, 2017
letter Citizens Disability sent Hartford noting it represented Plaintiff. (Doc. 25 at
3, 4; Doc. 19 at 3, 13; Doc. 30 at 1; Doc. 31 at 1, 8). As Plaintiff would have it,
this letter constituted Hartford’s offer to provide legal counsel, and he notified
Hartford that he rejected this offer via a notice of representation his current counsel
sent Hartford on April 24, 2017. (Doc. 25 at 4). However, the letter on which
Plaintiff relies is from Citizens Disability to Hartford; Citizens Disability notified
Hartford that it represented Plaintiff, as it had since July 7, 2016—before Plaintiff
filed his application for LTD benefits under the Policy. Plaintiff does not take
issue with Hartford’s position that it did not refer him to legal counsel and that
Citizens Disability is not its Agent. (Doc. 29 at 7). Accordingly, Plaintiff’s
arguments concerning judicial estoppel are based on a faulty factual premise.
Next, Plaintiff contends Hartford’s decision was an abuse of discretion due
to its “history of abuse.” (Doc. 25 at 7-13). However, Plaintiff’s arguments in this
regard largely consist of block quotations from Ninth Circuit cases in which courts
have found Hartford abused its discretion by relying on biased record reviewers
24

(Doc. 25 at 7-11), as well as district court decisions in which Hartford was found to
have abused its discretion (id. at 11-13). Absent is any substantive discussion of
how Hartford erred in denying Plaintiff’s LTD benefits here. 14 Under the facts of
this case, where Hartford imposed limitations that were more significant than those
contemporaneously imposed by his treating physicians, Plaintiff has failed to show
Hartford’s decision was an abuse of discretion due to any conflict of interest.
Third, Plaintiff contends Hartford’s decision was “wrong and unreasonable”
based on the inclusion of Dr. Peterson’s statements in Dr. Ethiraj’s review. (Doc.
25 at 13-16). In particular, Plaintiff notes Dr. Peterson was not the orthopedic
surgeon and the conversation with Dr. Ethiraj did not include mention of the right
hip replacement surgery. (Id. at 16). In light of the medical evidence from Dr.
McGrory, this argument fares no better than the argument addressed in the
preceding paragraph.15
Finally, Plaintiff contends Hartford erred in light of his SSDI award. (Doc.
25 at 17-20). The vast majority of Plaintiff’s argument in this regard is a verbatim

14

Plaintiff quotes extensively from Caplan v. CNA Fin. Corp., 544 F. Supp. 2d 984 (N.D. Cal.
2008), and Montour v. Hartford Life & Accident Ins. Co., 588 F.3d 623 (9th Cir. 2009). (Doc.
2525 at 8-11). As another court sitting in this district has held, these cases “are unpersuasive
because Eleventh Circuit law differs from Ninth Circuit law on the issue of reliance on peer
reviewers . . . .” White, 2011 WL 13285549, at *10. Moreover, Plaintiff has not produced
evidence showing how Hartford’s relationship with Dr. Ethiraj or his employer led to a tainted
decision. See id.
15

To the extent Plaintiff also relies on an argument that Dr. Ethiraj’s description of the
conversation with Dr. Peterson constitutes hearsay, that argument has already been rejected.

25

repetition of his arguments presented in the motion to remand—arguments the
court has already rejected. (Compare Doc. 25 at 17-20 with Doc. 24; Doc. 30 at 25). To the extent Plaintiff contends Hartford erred in failing to address the SSDI
award, the award was not issued until after Hartford’s final decision and thus was
not—and could not have been—in the Administrative Record Hartford considered.
Moreover, as previously discussed, whether Plaintiff is disabled under the
standards governing SSDI benefits is not determinative of whether he is disabled
under the Policy. Accordingly, Plaintiff’s SSDI award does not militate against
Hartford in this case, where its decision was supported by the Administrative
Record.
For the foregoing reasons, Hartford’s motion for summary judgment will be
granted. (Doc. 20).
2.

Plaintiff’s Motion for Summary Judgment

Plaintiff’s motion for summary judgment simply repackages arguments from
his motion to remand and opposition to Hartford’s motion. (Doc. 19). Having
already considered and rejected these arguments, further discussion is not
warranted. Accordingly, Plaintiff’s motion for summary judgment will be denied.
(Doc. 18).

26

III.

CONCLUSION
For all of the foregoing reasons: (1) Plaintiff’s motion to remand (Doc. 24)

is DENIED; (2) Plaintiff’s objections to the admissibility of Hartford’s evidence
(see Doc. 23) are OVERRULED; (3) Plaintiff’s motion for summary judgment
(Doc. 18) will be denied; and (4) Hartford’s motion for summary judgment (Doc.
20) will be granted.
A separate order will be entered.
DONE this 7th day of May, 2020.

______________________________
STACI G. CORNELIUS
U.S. MAGISTRATE JUDGE

27