Seals v. Retirement Plan of International Paper et al
ORDER granting 16 Defendant's Motion for Summary Judgment; denying Plaintiff's 20 Motion for Summary Judgment. Signed by Judge Kristi K. DuBose on 1/23/2012. (cmj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
RETIREMENT PLAN OF INTERNATIONAL )
PAPER, et al.,
CIVIL ACTION NO. 11-00001-KD-N
This matter is before the Court on Defendants’ Motion for Summary Judgment (Docs.
16-19), Plaintiff’s opposition (Doc. 24, 28) and Defendants’ reply (Docs. 26, 32); and Plaintiff’s
Motion for Summary Judgment (Doc. 20) Defendants’ opposition (Doc. 23) and Plaintiff’s reply
At issue in this case is whether the Plaintiff Joseph Seals (“Plaintiff”) is entitled to long-
term disability retirement benefits under the International Paper Company’s Retirement Plan (the
“Plan”)1 (an employee pension benefit plan governed by ERISA, 29 U.S.C. § 1001 et seq.).
From June 16, 1983 through May 15, 2008, Plaintiff worked for International Paper in
various positions. (Doc. 17 at 2). While employed, Plaintiff was a participant in the company’s
retirement plan within the meaning of 29 U.S.C. § 1002(7). (Id.) On May 14, 2008, while working
as a process tester at the Riverdale, Alabama mill, Plaintiff allegedly became disabled -- due to
physical and mental disorders -- and thus unable to perform his regular occupation. (Doc. 1).
Specifically, Plaintiff contends that he is disabled due to fluctuating hypertension,
1 (Doc. 20-1 at 2-3).
hypercholesterolemia, diabetes mellitus, bilateral carpal tunnel syndrome, osteoarthritis of the
knees with severe bilateral knee inflammation, panic disorder with agoraphobia and depression.
(Id. at 2 at ¶8). Plaintiff offers, in support of his claim, medical records from his treating
physicians Dr. Raingarao V. Gummadapu (also called Dr. G.V. Rao (internist/cardiologist)), Dr.
H. John Park (orthopedist), and Licensed Clinical Social Worker Gordon Forward.
From a review of the record, a timeline of the relevant events surrounding Plaintiff’s
long-term disability benefits claim includes the following:
March 5, 2008: Plaintiff was seen by Dr. Rao who noted his was still under
doctor’s care until complications improve and he was still having carpal tunnel
syndrome. Diabetes mellitus and hypertension were also noted. (Doc. 20-1 at 16).
May 14, 2008: Plaintiff allegedly became disabled.
May 14, 2008: Plaintiff was seen by Dr. Rao for bilateral knee arthritis and
fluctuating blood pressure with complaints about joint space; joint narrowing was
noted. Diabetes mellitus and hypertension were noted. (Doc. 20-1 at 17).
May 15, 2008: Plaintiff’s last day of employment.
June 17, 2008: Plaintiff was seen by Dr. Rao “condition still remains the same
will remain under Dr. care until further notify.” Diabetes mellitus and
hypertension were noted. (Doc. 20-1 at 21).
July 23, 2008: Dr. Park treated Plaintiff for left knee pain and diagnosed him
with chronic, symptomatic left knee osteoarthritis. (Doc. 18-3 at 146).
September 9, 2008: Dr. Rao saw Plaintiff for “same problems” with
complications-diabetes mellitus and hypertension. (Doc. 18-3 at 84).
September 25, 2008: Dr. Rao completed an Attending Physician’s Statement of
Disability Functional Assessment Form diagnosing Plaintiff with hypertension,
diabetes mellitus with fluctuating blood sugar still not controlled, carpal [tunnel]
syndrome, anxiety and complications, and blood pressure “still having some
complications.” (Doc. 20-1 at 5). Dr. Rao noted that Plaintiff “remain under my
care until we get his tx. under control.” (Id.)
September 26, 2008: Plaintiff received notice from the Plan that he might be
eligible for disability retirement benefits and was provided with materials to
apply for same. (Doc. 18-3 at 11, 62-78).
September 30, 2008: Dr. Rao completed an Attending Physician’s Functional
Assessment Form for Limitations, finding that Plaintiff can stand/walk 1-3
hours/day, sit 3-5 hours/day, lift 10-20 pounds max., lift 10 pounds occasionally,
use his hands for repetitive simple grasping but not repetitive pushing/pulling,
fluctuating blood pressure might be a problem for reaching above shoulder level
… can use his feet for repetitive reining and pushing, is able to occasionally bend
and stoop but not climb, and is environmentally restricted from heights and
excess dust/fumes. (Doc. 20-1 at 8). Dr. Rao noted that Plaintiff suffers from
fluctuating blood sugar, blood pressure, carpal syndrome – “may cause him to
“blink” out at times and which cannot be determined when or where” as well as
anxiety. (Id.) For the Impairment Classification Physical Impairment portion of
the form, Dr. Rao found that Plaintiff is Class III – “slight limitation of functional
capacity, capable of light work (35-55%). (Id. at 9). Dr. Rao added that Plaintiff
has the qualifications (by reason of education, training or experience) to perform
the limited duties for which he is physically capable, the condition is likely
permanent, and he became disabled on 5/14/08. (Id.) Dr. Rao also completed a
Neuropsychiatric Disease Functional Assessment Form opining that Plaintiff had
“moderate” impairment in all 16 areas designated. (Doc. 18-3 at 99).
October 2, 2008: Dr. Rao saw Plaintiff who “still remains under Dr. care” with
same condition as stated in prior report. (Doc. 18-3 at 85).
October 5, 2008: Plaintiff applied for disability retirement benefits based on
diabetes mellitus, blood pressure continually raised, carpal tunnel syndrome and
anxiety. (Doc. 18-3 at 86). In support of his claim, Plaintiff attached the
Functional Assessment Form by Dr. Rao and an Attending Physicians Statement
October 10, 2008: Plan correspondence to Plaintiff states the Plan unable to
reach him. (Doc. 18-3 at 56, 81).
November 5, 2008: Plaintiff was seen by Dr. Rao and surgery was advised.
Hypertension, anxiety and diabetes mellitus were noted. (Doc. 20-1 at 18).
November 13, 2008: Plaintiff applied for, and received, sickness and accident
benefits (“S&A” benefits) through this date.
November 20, 2008: The Plan Administrator requested additional medical
records from Drs. Rao and Park, whom Plaintiff had identified as his orthopedic
and treating physicians. (Doc. 18-3 at 125-126).
November 26, 2008: Plaintiff was seen by Dr. Rao. It was noted that Plaintiff
complains of chronic knee pain (osteoarthritis) and fluctuating blood pressure
along with diabetes mellitus. (Doc. 20-1 at 14).
December 3, 2008: The Plan Administrator sent a second request for additional
medical records to Drs. Rao and Park. (Doc. 18-3 at 127-128).
December 5, 2008: The Plan Administrator notified Plaintiff that Dr. Rao had
not responded to its requests for additional medical records. (Doc. 18-3 at 50).
December 8, 2008: Plaintiff was seen by Dr. Rao and diabetes, hypertension and
anxiety were noted. (Doc. 20-1 at 19).
December 15, 2008: The Plan’s record notes that it had sent two (2) requests to
Dr. Rao with no response. At his point only the Plan only had received records
from Dr. Parks. (Doc. 18-3 at 51). Dr. Park’s records indicated that Plaintiff was
having “much less pain” with his knee in November 2008. (Id.) The Plan
corresponded with Plaintiff noting it was still waiting on Dr. Rao’s records.
(Doc. 18-3 at 129).
January 6, 2009: The Plan Administrator attempted to contact Plaintiff via
telephone to seek his assistance in obtaining Dr. Rao’s records.
January 13, 2009: The Plan Administrator again notified Plaintiff via letter that
Dr. Rao had not responded to its requests for additional medical records, which
was delaying a decision on his claim for benefits. (Doc. 18-3 at 49, 130).
Between February 9, 2009 and February 12, 2009: The Plan decided to deny
Plaintiff’s claim as the medical information received “to date” did not establish
that he was disabled from any occupation. (Doc. 18-3 at 45). After the initial
denial letter was prepared, however, Dr. Rao’s office responded to the Plan’s
requests for medical records, supplying February 9, 2009 records and a February
11, 2009 letter. (Id.)
February 11, 2009: Dr. Rao drafted a letter that stated that Plaintiff was under
his medical supervision for “multiple complaints” and that in his opinion,
Plaintiff is “unable to perform work related activities” for his job position. Dr
Rao further stated that plaintiff had hypertension, diabetes mellitus, hypercholesterol and anxiety. (Doc. 20-1 at 12). Dr. Rao included records from
2/11/09, 2/1/09, 1/9/09, 11/26/08, 5/14/08, 3/5/08, 12/8/08, 11/5/08, 9/8/08,
10/2/08 and 8/22/08, repeating these diagnoses. (Doc. 18-3 at 134-145).
February 12, 2009: Plan Administrator Sedgwick CMS notified Plaintiff that
they had completed their review of his claim and determined that he did not
qualify for disability retirement benefits under the Plan and denied his claim.
(Doc. 1-1; Doc. 18-3 at 45-46, 154-157). The Plan noted that on Plaintiff’s
functional assessment form, “the physician…noted you could do light
work….[and] we were unable to assess any medical [information] from…Dr.
[Rao]…despite the medical information received from [him], we were unable to
obtain a complete understanding of your medical conditions and how you are
prevented from performing any occupation for the rest of your life as required by
the plan.” (Doc. 1-1 at 3). The Plan concluded that nothing in Dr. Rao’s records
“conclusively proves” that Plaintiff has a “total and permanent disability from
any occupation.” (Doc. 18-3 at 45).
March 12, 2009: Dr. Rao drafted a letter stating that Plaintiff is “unable to
perform work activities” due to fluctuating hypertension, bilateral knee
inflammation, hypercholesterol, diabetes mellitus, anxiety and carpal tunnel
syndrome. (Doc. 18-3 at 167).
April 24, 2009: Dr. Rao completed a certificate of fitness for duty and work
restrictions concluding that Plaintiff “is not able to perform the job duties of his
position” and needs permanent work restrictions to allow Plaintiff to return to
work including: “I recommend Mr. Seal have surgery as he [is] able to attend the
procedure due to his condition. I tell he may benefit from this procedure. That
[is] why I excuse his work as permanent until he think[s] about the procedure.”
(Doc. 18-3 at 169). Dr. Rao opined Plaintiff “is NOT able to perform ANY job
duties at this time.” (Id. at 170).
April 30, 2009: Plaintiff was treated by Psychotherapist Gordon Forward for
anxiety and panic disorder with agoraphobia and depression. (Doc. 18-3 at 168).
May 22, 2009: The Plan received Plaintiff’s appeal of the denial of his claim (via
a letter dated March 23, 2009 (Doc. 18-3 at 166)) for disability benefits as well as
his records submission (a 3/12/09 letter from Dr. Rao noting his inability to
perform work related activities and a 4/30/09 letter from Licensed Clinical Social
Worker Gordon Forward discussing Plaintiff’s mental health treatment for panic
disorder with agoraphobia and depression but providing no opinion on
disability). (Doc. 18-3 at 39, 41).
June 2, 2009: The Plan acknowledged receipt of Plaintiff’s appeal by letter and
claim reopened for appeal. (Doc. 18-3 at 173).
June 4, 2009: The Plan record notes a 4/24/09 Fitness for Duty Certificate
“unable to work” and 4/30/09 note from Gordon Forward that Plaintiff was being
treated for panic disorder with agoraphobia and depression. (Doc. 18-3 at 40).
June 8, 2009: The Plan sent Plaintiff a letter about its efforts to reach him via
telephone to discuss his appeal and asked Plaintiff to contact the appeal specialist
to discuss his claim. (Doc. 18-3 at 40, 175).
June 12, 2009: The Plan appeal specialist spoke with Plaintiff; Plaintiff notified
the Plan that he did not intend to submit any additional information/records and
that the Plan could continue with the appeal process. (Doc. 18-3 at 39).
June 17, 2009: The Plan requested occupational medicine and psychiatric
reviews of Plaintiff’s claim and claim file. Dr. Robert N. Polsky (psychiatrist)
and Dr. Robert D. Petrie (occupational and environmental medicine) were
selected to conduct an independent medical review of Plaintiff’s disability
June 25, 2009: Dr. Polsky provided the Plan with the results of his independent
medical review, opining that Plaintiff is not disabled. (Doc. 18-3 at 181-183).
Dr. Petrie provided the Plan with the results of his independent medical review,
opining that Plaintiff is not disabled and could perform light to medium job
activities.. (Id. at 184-186).
July 8, 2009: The Plan disability review committee met to discuss Plaintiff’s
claim and decided that a Transferable Skills Analysis report was needed and
requested that Dr. Petrie to clarify his report as well as that an internal medicine
specialist perform a “whole man” review of Plaintiff’s claim. (Doc. 18-2 at 3435).
July 14, 2009: Dr. Jordan (internal medicine) conducted a review of Plaintiff’s
claim and Dr. Petrie supplemented his review. (Doc. 18-3 at 33, 200-203). Dr.
Jordan concluded that Plaintiff was not disabled from performing any occupation
and is capable of sedentary to light work. (Id.) Also, Dr. Petrie opined that
Plaintiff’s anxiety diagnosis does not result in disability or indicate an inability to
perform unrestricted job duties. (Doc. 18-3 at 32-33, 204-205).
July 16, 2009: Job Accommodations Specialist Zenia Andrews, M.S., C.R.C.,
performed a Transferable Skills Analysis identifying six (6) light duty positions
that met Plaintiff’s education, work history and work restrictions. (Doc. 18-3 at
August 11, 2009: Two (2) additional Transferable Skills Analyses were
performed by Karen Taussig, M.S., C.R.C., identifying five (5) sedentary-light
and six (6) sedentary duty occupations that met Plaintiffs education, work history
and work restrictions. (Doc. 18-3 at 227-232).
August 20, 2009: The Disability Review Committee reconvened and completed
the review of Plaintiff’s appeal, including reviewing the reports of Drs. Petrie,
Polsky and Jordan and the three (3) TSAs, upholding the denial of his disability
retirement benefits claim. (Doc. 1-4).
As the basis for denial, the Plan
concluded that Plaintiff did not satisfy the disability definition as he was capable
of performing several sedentary and light duty positions that met his education,
training and experience. (Doc. 18-3 at 2-3, 28-29, 215-216).
October 21, 2009: Plaintiff filed a second appeal of the Plan decision via his
attorney. (Doc. 18-3 at 221-222).
October 27, 2009: The Plan acknowledged receipt of his second appeal. (Doc.
18-3 at 26-27, 219-220).
November 4, 2009: The Plan notified Plaintiff that he had completed all
allowable appeals under the Plan. (Doc. 18-3 at 26-27, 225).
On January 3, 2011, Plaintiff filed a Complaint against the Plan and Plan Administrator
to enforce his rights under the Plan pursuant to 29 U.S.C. § 1132(a)(1)(B), claiming that the
decision to deny him benefits constitutes an abuse of discretion as unreasonable and not based on
substantial evidence. (Doc. 1). Plaintiff also alleges a second count for equitable relief or
Standard of Review
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law. FED. R.
CIV. P. 56(a) (Dec. 2010). The recently amended Rule 56(c) provides as follows:
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party
may object that the material cited to support or dispute a fact cannot be presented
in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it
may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or
oppose a motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stated.
FED.R.CIV.P. Rule 56(c) (Dec. 2010). Defendant, as the party seeking summary judgment, bears
the initial responsibility of informing the district court of the basis for its motion, and identifying
those portions of the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue
of material fact. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the nonmoving party fails to make a
sufficient showing on an essential element of her case with respect to which she has the burden
of proof, the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323. In
reviewing whether the nonmoving party has met its burden, the court must stop short of
weighing the evidence and making credibility determinations of the truth of the matter…the
evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his
favor. Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998-999 (11th Cir. 1992), cert. den., 507
U.S. 911 (1993) (internal citations and quotations omitted).
Plaintiff’s ERISA Claim: Count One
ERISA provides no standard for courts reviewing the benefits decisions of plan
administrators or fiduciaries; thus, the Supreme Court established guidance for same in Firestone
Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 (1989) and Metropolitan Life Ins. Co. v. Glenn,
554 U.S. 105 (2008). More recently, the Eleventh Circuit has reiterated a multi-step framework
to guide lower courts when reviewing a plan administrator’s benefits decision. This framework
consists of the following “six-step expanded Firestone” test:
(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.
(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
(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
Blakenship v. Metropolitan Life Ins. Co., 644 F.3d 1350, 1355 (11th Cir. 2011) (citing Capone v.
Aetna Life Ins. Co., 592 F.3d 1189, 1195 (11th Cir. 2010) and Williams v. BellSouth
Telecomms., Inc., 373 F.3d 1132, 1137 (11th Cir. 2004), overruled on other grounds by Doyle v.
Liberty Life Assurance Co. of Boston, 542 F.3d 1352 (11th Cir. 2008)). “All steps of the analysis
are ‘potentially at issue’ where a plan vests discretion to the plan administrator to make benefits
determinations. See id. at 1356 n 7. Conversely, then, where a plan does not confer discretion,
the court simply applies the de novo review standard established by the Supreme Court in
Firestone. See 489 U.S. at 115 (‘[W]e hold that a denial of benefits challenged under §
1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the
administrator or fiduciary discretionary authority to determine eligibility for benefits or to
construe the terms of the plan.’).” McCay v. Drummond Co, Inc., 2011 WL 5438950, *14 (N.D.
Defendant contends that the arbitrary and capricious standard applies. (Doc. 17 at 15).
Plaintiff contends that he prevails under any standard but that “the one most likely to apply” is
the heightened standard due to an “inherent conflict of interest” due to the “self insured nature of
the plan and the safe reliance on opinion of ‘in house’ non-examining medical information.”
(Doc. 20 at 4-5). A review of the record reveals that the Plan grants to the Plan Administrator the
discretionary power and discretionary authority to interpret the Plan and to determine the
amounts of benefits which shall be payable to any person in accordance with the provisions of
the Plan. (Doc. 18-2 at 102 at ¶12.01(b)(iii) (Plan 0102)). Moreover, Retirement Plan benefits,
including disability retirement benefits, are funded by a separate trust to which International
Paper does not have access for any purpose other than funding and administering claims for
benefits under the Plan. (Doc. 18-2 at 97 at Article X Funding (Plan 0097)). Based on the
foregoing, the Plan sufficiently confers discretion to the Plan Administration as to make
Plaintiff’s ERISA claim appropriately reviewed under the arbitrary and capricious standard.
Thus, the Plan Administrator’s decision will be affirmed if, upon de novo review, the Court
agrees with the Administrator’s decision; or the Court disagrees with the decision but the
decision is reasonable considering any conflict of interest which may exist. Plaintiff bears the
burden of showing the Administrator’s decision was de novo wrong or unreasonable and thus,
arbitrary and capricious. See, e.g., Doyle, 542 F.3d at 1360; Horton v. Reliance Std. Life Ins.
Co., 141 F.3d 1038, 1040 (11th Cir. 2001).
Plaintiff contends that summary judgment is due to be granted in his favor because: 1)
medical records establish the existence of a severe medical condition which is chronic and
uncontrolled; 2) Dr. Rao’s February 11, 2009 and March 14, 2009 statements constitute a “total
disability affidavit;” 3) the SSA determination was fully favorable and “was made available to
the plan administrat[or] prior to the final decision;” and 4) the Plan relied on non-examining
physicians or “paid experts” rather than his treating and examining physicians. (Doc. 20 at 6).2
Applying the foregoing standard of review, however, the Court has determined that the Plan
Administrator's benefits-denial decision is not “wrong”.
In order to qualify for disability retirement benefits under the Plan, Plaintiff must
establish that he is totally incapable of performing any employment for which he is qualified by
education, training or experience and that such condition is likely to be permanent for the rest of
his life. The Plan defines disability as follows:
If your become disabled while employed by the company, you may be entitled to
a disability retirement benefit under the Plan provided you meet the Plan’s
definition of “totally and permanently disabled” as determined by your plan
administrator. To be considered “totally and permanently disabled”, your
disability must be a medically determinable physical or mental condition or a
diagnosed terminal illness that keeps you from performing any employment for
which you are considered qualified by education, training, or experience and
which is likely to be permanent for the rest of your life.
(Doc. 20-1 at 2-3). Based on the administrative record, Plaintiff has not satisfied the Plan’s
First, even Plaintiff’s treating or examining physicians did not opine that he has a
diagnosed terminal illness or a physical/mental medical condition that keeps him from
performing any employment for which you are considered qualified by education, training, or
experience and which is likely to be permanent for the rest of his life. In September 2009, Dr.
Rao concluded that Plaintiff’s physical impairment consists of “Class III: slight limitation of
functional capacity-capable of light work (35-55%)[;]” and that his psychiatric impairment
consists of “Class III-[p]atient is able to engage in only limited stress situations and engage in
only limited interpersonal relations (moderate limitations).” The Court notes that in February
2 Relying on Whatley v. CNA, 189 F.3d 1310 (11th Cir. 1999).
and March 2009, Dr. Rao revised his findings to subsequently conclude that Plaintiff was unable
to perform the job duties of his position and needed permanent work restrictions (related to his
knee, for which Dr. Rao thought surgery would be beneficial). However, Dr. Rao explained in
April 2009, that he only put “permanent” work restrictions on Plaintiff “until he [could] think
about [having] the procedure” suggesting a non-permanent status of restrictions if/when
Plaintiff had the surgery.
Additionally, the records suggest that Dr. Rao’s findings and
restrictions were focused on Plaintiff’s current job position.
Second, in addition to reviewing the records from Plaintiff’s treating or examining
physicians, the Plan Administrator considered the findings of three (3) non-examining
independent medical reviewers who assessed Plaintiff’s disability benefits claim: Dr. Polsky, Dr.
Petrie and Dr. Jordan. Plaintiff contends that it was improper for the Plan Administrator to rely
on the findings of non-examining physicians because “such reviews…[are] the very essence of
arbitrariness and capriciousness” and that the Administrator “sought to gather support for its
position by employing chosen medical specialists.”
(Doc. 24 at 3).
characterization, the non-examining physicians each attested that their compensation was not
dependent on the specific outcome of their reviews and that they did not have any relationship,
including with the referring entity or befit plan, which creates a conflict of interest. As for
Plaintiff’s suggestion that the Administrator hand-picked physicians who were not independent,
he has presented no evidence of such, and the record indicates otherwise (e.g., the Plan
Administrator repeatedly requested records from Plaintiff and his physicians, and conferred with
Plaintiff’s physicians when possible to discuss his impairments and limitations). Additionally,
“[i]t is entirely appropriate for an administrator to rely on written reports of consultants who
have done paper reviews of a claimant’s medical records to rebut the opinion of the treating
physician asserting claimant is disabled.” Hufford v. Harris Corp., 322 F.Supp.2d 1345, 1349
(M.D. Fla. 2004). See also Richards v. Hartford Life and Accident Ins. Co.., 356 F. Supp.2d
1278, 1286 (S.D. Fla. 2004). Moreover, the Eleventh Circuit has explained that it is not error for
a plan administrator to “give different weight” to the opinions of independent reviewers. See,
e.g., Helms v. General Dynamics Corp., 222 Fed. Appx. 821, 833 (11th Cir. 2007); Slomcenski v.
Citibank, N.A., 432 F.3d 1271, 1279-1280 (11th Cir. 2005).
Notably, with regard to the Sixth Circuit case upon which Plaintiff relies for this
contention – Bennett v. Kemper Nat’l Services, Inc., 514 F.3d 547 (6th Cir. 2008) – the Eleventh
Circuit cited Bennett for the opposite contention: “we find nothing inherently objectionable
about a file review by a qualified physician in the context of a benefits determination[,]”
rejecting the lower court’s conclusion that file reviews “counted as evidence that [the benefit
decision maker] acted arbitrarily and capriciously.” Blakenship, 644 F.3d at 1357 (citing
Bennett, 514 F.3d at 554).
Further, Dr. Robert N. Polsky, a board-certified psychiatrist, reviewed Plaintiff’s records
and conferred with Mr. Forward (one of Plaintiff’s treating physicians)3 before concluding that
Plaintiff is not disabled. Dr. Polsky opined that while his mental condition “would perhaps make
work more difficult” he is not disabled as “there is insufficient clinical evidence that would
substantiate a global impairment of functioning precluding him from performing job duties.”
(Doc. 18-3 at 36-37). Likewise, Dr. Petrie, a board-certified physician in occupational and
environmental medicine, reviewed Plaintiff’s records and concluded that he is not disabled but
rather would be “expected to be able to function in a light-to-medium category of employment.”
3 Dr. Polsky tried twice to reach Dr. Rao but his phone calls were not returned.
(Id. at 37-38). Dr. Petrie also tried to reach Dr. Rao but was informed that he was discontinuing
his practice and was unavailable. (Id.) Dr. Petrie was, however, able to confer with Dr. Park.
(Id.) Dr. Petrie also supplemented his initial medical review, noting Plaintiff’s psychiatric
assessment, and opined that the anxiety diagnosis “does not result in disability or indicate an
inability to perform unrestricted job duties” either alone or when in combination with the other
medical conditions. Similarly, Dr. Taiye A. Jordan, a board-certified physician in internal
medicine, conducted a “whole man” review of Plaintiff’s benefits claim. Before rendering his
conclusions, Dr. Jordan reviewed Plaintiff’s records and tried to reach Dr. Rao but was told he
was out of the office on extended medical leave. Dr. Jordan opined that Plaintiff is not disabled
from performing any occupation, from an internal medicine perspective, as he is capable of
working in the sedentary to light job duty description.
Third, Plaintiff relies on the “fully favorable” June 30, 2009 SSA decision4 to contend
that the Plan Administrator’s decision was arbitrary and capricious. (Doc. 20-1 at 23-24); (Doc.
1-2). There is no evidence to support that Plaintiff submitted the SSA decision to the Plan
Administrator during the claim process, even though the Administrator requested documentation,
spoke to Plaintiff regarding his appeal, and the SSA decision was issued before the appeal
process had completed. As such, the SSA decision is simply not before the Court on summary
4 The Court simply notes, without considering, the SSA found Plaintiff disabled as of May 14, 2008 and
listed his impairments fluctuating hypertension, diabetes mellitus, bilateral carpal tunnel syndrome,
osteoarthritis of the knees with severe bilateral knee inflammation, panic disorder with agoraphobia and
depression. (Doc. 1-2). The SSA decision concluded that Plaintiff retains the residual functional capacity
to perform sedentary work within the parameters specified in the Healthcare Provider Certification
Fitness for duty and Work Restrictions completed by Dr. Dr. Rao such that he “is unable to sustain work
activity at any exceptional level on a regular and continuing basis.” (Doc. 1-2 at 8-9). The SSA added
that if Plaintiff had the residual functional capacity to perform the full range of sedentary work, a finding
of “not disabled” would be directed but “the additional limitations [by Dr. Rao] so narrow the range of
work Claimant might otherwise perform that a finding of ‘disabled’ is appropriate[.]” (Id. at 10).
judgment. This is because it is improper for this Court to consider evidence not submitted to the
administrator during the claims process; rather, the Court may only consider the administrative
record (the facts known to the administrator at the time the decision was made). See, e.g.,
Blakenship, 664 F.3d at 1354; Lee v. Blue Cross/Blue Shield of Ala., Inc., 10 F.3d 1547, 1550
(11th Cir. 1994); Jett v. Blue Cross & Blue Shield of Ala., Inc., 890 F.2d 1137, 1139 (11th Cir.
Fourth, Plaintiff contends that the Transferable Skills Analysis (TSAs) requested by the
Plan Administrator were flawed as they “did not take into account” his disabling conditions
based on the SSA decision. (Doc. 25 at 5-6). As noted supra, the Court cannot consider the SSA
decision because it was never submitted to the Plan Administrator and is thus not part of the
Nevertheless, the record indicates that on July 16, 2009, Job Accommodations Specialist
Zenia Andrews, M.S., C.R.C., performed a TSA and concluded that there were six (6) light duty
positions that met Plaintiff’s education, work history and work restrictions. On August 11, 2009,
Karen Taussig, M.S., C.R.C., performed two (2) additional TSAs in which she opined in the first
TSA that there were five (5) sedentary-light duty occupations which met Plaintiff’s education,
work history and work restrictions, and in the second TSA found six (6) sedentary occupations
that met Plaintiff’s education, work history and work restrictions.
In sum, the Court agrees with the Plan Administrator’s decision and affirms same. See,
e.g., Williams, 373 F.3d at 1137-1138; Blakenship, 644 F.3d at 1355. Plaintiff has failed to
satisfy his burden of showing that the decision was de novo wrong or unreasonable to thus be
arbitrary and capricious. See, e.g., Doyle, 542 F.3d at 1360; Horton, 141 F.3d at 1040. The Plan
fully considered the medical information submitted by Plaintiff and his physicians -- as well as
the opinions of three (3) non-examining physicians and three (3) TSAs performed by two (2)
different Job Accommodations Specialists -- to conclude that he failed to make a sufficient
showing of disability as defined under the Plan. In any event, if certainly cannot be said that the
Plan decision was arbitrary and capricious. White v. Coca-Cola, Co., 542 F.3d 848, 856 (11th
Cir. 2008) (providing that as long as a reasonable basis appears for the benefit decision “it must
be upheld as not being arbitrary and capricious, even if there is evidence that would support a
Accordingly, it is ORDERED that Defendant’s motion for summary judgment as to
Count One is GRANTED and Plaintiff’s motion for summary judgment as to Count One is
Equitable relief and/or estoppel: Count Two
Plaintiff asserts a second count for equitable relief and/or estoppel “to the extent that he is
entitled to such under ERISA’s catch-all provision.” (Doc. 1 at ¶27). As set forth in Waschak v.
The Acuity Brands, Inc. Senior Management Benefit Plan, 384 Fed. Appx. 919, 923 (11th Cir.
….Equitable estoppel is appropriate where “(1) the relevant provisions of the plan
at issue are ambiguous, and (2) the plan provider or administrator has made
representations to the plaintiff that constitute an informal interpretation of the
ambiguity.” Jones v. American Gen'l Life and Accident Ins. Co., 370 F.3d 1065,
1069 (11th Cir.2004) (citations omitted).
Plaintiff has neither alleged ambiguity in the Plan,5 nor that the Plan Administrator made
representations to him that constitute and informal interpretation of the ambiguity. Additionally,
ERISA’s “catch-all” provision -- Section 502(a)(3) of ERISA (29 U.S.C. § 1132(a)(3)) -- does
5 At best, Plaintiff contends only that the requirement for permanent disability in the Plan is “overly
broad” and imposes an “onerous burden for plaintiffs in not only proving their current status but what is
likely to occur in the future.” (Doc. 25 at 4-5).
not save Count Two because Plaintiff has an adequate remedy under 29 U.S.C.§ 1132(a)(1)(B) in
Count One. Indeed, when a plan participant seeks the benefits that he contends should have been
distributed under an ERISA plan, the appropriate remedy is not a claim for “other appropriate
equitable relief,” but rather a claim under Section 1132(a)(1)(B). See, e.g., Ogden v. Blue Bell
Creameries U.S.A., Inc., 348 F.3d 1284, 1288 (11th Cir. 2003); Katz v. Comprehensive Plan of
Group Ins., 197 F.3d 1084, 1088-1089 (11th Cir. 1999); Kennedy v. Metropolitan Life Ins. Co.,
357 F. Supp. 2d 1346, 1348-1349 (M.D. Fla. 2005). Accordingly, it is ORDERED that
Defendant’s motion for summary judgment as to Count Two is GRANTED and Plaintiff’s
motion for summary judgment (to the extent it addresses Count Two) is DENIED.
Accordingly, it is ORDERED that Defendant’s motion for summary judgment (Doc. 16)
is GRANTED such that Plaintiff’s claims are DISMISSED WITH PREJUDICE; thus,
Plaintiff’s motion for summary judgment (Doc. 20) is DENIED.
DONE and ORDERED this the 23rd day of January 2012.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
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