McClellan v. UNUM Life Insurance Company of America

Filing 15

MEMORANDUM OPINION AND ORDER. Signed by Honorable P. K. Holmes, III on January 24, 2012. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
RICHARD L. MCCLELLAN
v.

PLAINTIFF
Case No. 3:11-CV-03022

UNUM LIFE INSURANCE COMPANY OF AMERICA

DEFENDANT

MEMORANDUM OPINION AND ORDER
Plaintiff Richard L. McClellan brings this action pursuant to the provisions of the Employee
Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., alleging Defendant
Unum Life Insurance Company of America wrongly denied his claim for long term disability
benefits. Before the Court are the Administrative Record (Doc. 9), Plaintiff’s Brief (Doc. 11), which
is incorrectly styled “Motion for Summary Judgment”1, and Defendant’s Brief (Doc. 14). For the
reasons stated herein, the Court finds that Defendant’s decision to deny benefits is AFFIRMED,
Plaintiff’s claim is DENIED, and this case is DISMISSED with prejudice.
I. Background
Plaintiff, who holds a Bachelor of Science degree in electronics, was employed by Archer
Daniels Midland Company in Illinois as a process control engineer, responsible for programming
devices that controlled other manufacturing equipment. (Doc. 9-7, p. 29). The job Plaintiff
performed for his employer for approximately 10 years was a sedentary one limited to keyboarding

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Plaintiff submitted a second ERISA Brief to the Court, also incorrectly styled
“Motion for Summary Judgment” on July 25, 2011 (Doc. 12) along with a Statement of Facts in
Support (Doc. 13). Plaintiff never sought leave to file this additional brief or other documents, and
such filing was made after the deadline of July 22, 2011, which was imposed by the Court’s June
21, 2011 Order granting Plaintiff’s Motion for Extension of Time. As Plaintiff’s second Brief (Doc.
12) and Statement of Facts (Doc. 13) were filed too late and without leave of Court, they were not
considered by the Court.

and telephone work. Id. The job could be performed with alternating standing and sitting, and
primarily involved using a computer. Id. at p. 30.
On November 26, 2007, Plaintiff was involved in a one-vehicle auto accident in Illinois in
which he drove through a ditch. (Doc. 9-37, p. 28). After the accident, Plaintiff began experiencing
lower back pain. His family physician, Dr. Kureishy, examined Plaintiff the day after the accident,
took X-rays, and finding nothing wrong, sent Plaintiff home with pain medication only. (Doc. 9-34,
p. 11). The following week, Plaintiff underwent a CT scan, where a compression fracture of
unknown age and possible herniated discs were diagnosed. Within two weeks of the accident,
Plaintiff was back at work full time. However, six months later, by June of 2008, Plaintiff claimed
that back pain caused by the car accident ended his ability to work.2 Plaintiff received short term
disability benefits from June 2, 2008 until November 30, 2008. He began receiving long term
disability benefits on December 1, 2008, but these were terminated by Defendant on March 18, 2010.
A. Plaintiff’s Doctors
Plaintiff’s family doctor, Dr. Kureishy, referred Plaintiff to a neurologist, Dr. Mahmood, who
on June 9, 2008 evaluated Plaintiff’s complaints of numbness and radiation of pain from his lower
back to his left leg. Dr. Mahmood found no neurological basis for Plaintiff’s claimed symptoms
after performing a nerve conduction study. (Doc. 9-5, pp. 12-13).
Thereafter, Dr. Kureishy referred Plaintiff to neurosurgeon Dr. Chu, who ordered a CT scan
and MRI of Plaintiff’s lumbar spine on July 10, 2008 and identified an old compression fracture of

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The administrative record contains no documentation of Plaintiff receiving any
medical treatment from the approximate date of the car accident until Plaintiff began taking short
term disability leave six months later.
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one of Plaintiff’s lumbar vertebrae, with no evidence of disc herniation or encroachment of the bony
elements on the central spinal canal. Id. at pp. 10-11. On August 25, 2008, Plaintiff was referred
to Dr. Furry, a pain management specialist, who reported that Plaintiff experienced discogenic pain
due to the old compression fracture. (Doc. 9-6, pp. 28-30). Though on September 5, 2008 Dr. Chu
cleared Plaintiff to go back to work (id. at p. 13), a pain management specialist named Dr. Fancher
recommended performing a surgical procedure on Plaintiff to address his continuing complaints of
lower back pain. (Doc. 9-9, p. 10-12). Dr. Fancher performed an operation called a kyphoplasty on
September 12, 2008 to elevate and stabilize the old compression fracture that had been identified in
Plaintiff’s low back. Id. Plaintiff then received epidural steroid injections on September 18, 2008
and October 2, 2008. (Doc. 9-11, pp. 6 and 8).
On November 3, 2008, Dr. Furry submitted a statement to Defendant concluding that Plaintiff
had no restrictions and limitations, had a good return to work prognosis, and had no barriers to return
to work. (Doc. 9-17, pp. 27-28). However, on November 4, 2008, Plaintiff’s family physician, Dr.
Kureishy, submitted a conflicting report to Defendant stating that Plaintiff had a poor prognosis for
returning to work, either on a part-time or a full-time basis, due to severe back pain. (Doc. 9-12, pp.
2-3).
On December 10, 2008, Plaintiff moved to Arkansas to be closer to family. (Doc. 9-16, p.
17). On December 16, 2008, Dr. Fancher, who performed Plaintiff’s kyphoplasty, declined to give
any opinion regarding restrictions and limitations on Plaintiff’s return to work, instead
recommending that Plaintiff be evaluated by another physician. Id. at pp. 28-29. Plaintiff thereafter
saw Dr. Robinson, a physician in Mountain Home, Arkansas. Id. at p. 17. On February 17, 2009,
Dr. Robinson reported to Defendant that Plaintiff suffered chronic back pain, but Dr. Robinson did
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not recommend any restrictions or limitations on Plaintiff’s ability to work, nor did the doctor state
his opinion on when Plaintiff could return to work. (Doc. 9-18, p. 23). When asked directly about
certifying Plaintiff’s continuing disability, Dr. Robinson refused to perform this determination. Id.
In the meantime, Plaintiff applied for Social Security disability benefits, but was denied. (Doc. 9-20,
p. 1).
On September 9, 2009, Defendant informed Plaintiff by letter that it required confirmation
from a treating physician that Plaintiff had a continuing disability, otherwise Defendant would make
a benefits determination based on the information it had at the time. (Doc. 9-22, pp. 26-27). On
October 7, 2009, Dr. Vann Smith, a neuropsychologist, reported to Defendant that he had examined
Plaintiff and concluded that Plaintiff had an organic brain dysfunction of moderate severity and
progressive velocity as a result of dealing with chronic pain. (Doc. 9-23, p. 4). It was Dr. Smith’s
view that Plaintiff suffered from cognitive problems of such severity that he could not return to
work. Id.
Several months later, another neuropsychologist named Dr. Back examined Plaintiff on April
26, 2010, and concluded that Plaintiff had extremely poor balance, constant back pain, and
depression. (Doc. 9-37, pp. 2-29). Dr. Back administered intelligence tests to Plaintiff, which
showed that his IQ was in the “dull normal range.”

(Doc. 9-38, p. 2).

Dr. Back found that

Plaintiff’s IQ had significantly decreased since the time Dr. Smith had evaluated it (from an IQ of
105 to an IQ of 75). Dr. Back opined: “For his IQ to have dropped. . . is very significant, and would
mean a rapidly progressing cortical disorder.” Id. at p. 4. However, this diagnosis was not
supported, and Dr. Back did not endorse it. Instead, Dr. Back suggested that Plaintiff was
exaggerating or feigning a cognitive disorder: “His history does not indicate the presence for any
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such condition. His non-existent memory is also felt to be due to psychological factors.” Id.
B. Defendant’s Doctors
On December 29, 2009, on behalf of Defendant, a physician named Dr. Frigon conducted a
review of all the medical information in Plaintiff’s file. Dr. Frigon opined that the work restrictions
recommended by Dr. Kureishy were not supported. (Doc. 9-27, p. 22). Dr. Frigon also concluded
that there were no physical examinations or test findings in the file to indicate that Plaintiff lacked
the physical capacity to perform full-time work. Id. In fact, the most recent diagnostic testing
indicated that Plaintiff’s old compression fracture in his lumbar region had been properly treated via
kyphoplasty, and there was no organic explanation for his ongoing complaints of low back pain. Id.
Dr. Frigon concluded that two years after the car accident that allegedly caused Plaintiff’s injuries
there is no clear cause for Plaintiff’s ongoing pain complaints that would preclude him going back
to work. Id.
Dr. Council, Defendant’s designated medical officer, also reviewed Plaintiff’s medical file
and found that the records did not indicate impairment that was sufficient to preclude work. Id. at
p. 28. She elaborated: “MRI scans and CT scans reveal no involvement of neural structures and
EMG was normal of both lower extremities. . . Compression fractures generally heal within 12
weeks and can be very painful initially with lessening of pain with healing. File does not contain
any significant medical information between initial radiographic study and stopping work. It is
unclear why pain worsened to a point to prevent work 6-7 months after the [car accident].” Id.
Defendant also hired a neuropsychologist, Dr. McLaren, to evaluate the findings of Plaintiff’s
neuropsychologist, Dr. Smith. Id. at pp. 6-11. Dr. McLaren concluded that Dr. Smith’s cognitive
evaluation of Plaintiff was deficient in that it lacked a comprehensive assessment as to emotional
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status or memory. Id. Furthermore, Dr. McLaren criticized Dr. Smith’s pattern of testing and
disagreed with Dr. Smith’s diagnosis of dramatic cognitive defects. Id.
Following Dr. McLaren’s review, Defendant hired a second neuropsychologist, Dr. Denney,
to provide a second opinion. Dr. Denney administered tests to Plaintiff to determine his mental
status and also to determine whether Plaintiff gave maximum and accurate effort on the tests. (Doc.
9-34, pp. 9-10). He concluded that Plaintiff’s performance fell at the lower end of the random range
“and created a profile that, if a valid reflection of his true cognitive ability, would be
worse than that demonstrated by individuals who are severely demented and living
in convalescent homes. His performance was worse than patients asked to fake
impairment. This performance was also well below that of the chronic pain
normative samples. . . performing worse than chronic pain patients, moderate to
severe brain injury patients, and patients with severe dementia . . . These findings
clearly indicate that he did not put forth appropriate effort during neuropsychological
testing. Consequently, the following test results are not a valid indication of his true
cognitive abilities.”
Id. at pp. 18-19.
Dr. Denney concluded that his all-day testing of Plaintiff suggested “gross over-exaggeration
of self-reported complaints.” Id. at p. 20. Dr. Denney also stated, “I am unable to determine his
genuine strengths and weaknesses because he was either feigning or grossly over-exaggerating
neurocognitive deficits.” Id. at p. 22.
Defendant next hired Dr. Zimmerman, a licensed psychologist, to evaluate Dr. Back’s report.
Dr. Zimmerman concluded that “there was no test evidence that contradicted Dr. Denney’s
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diagnostic impression of Malingered Neurocognitive Dysfunction3.” (Doc. 9-38, p. 14). Plaintiff’s
medical file was then reviewed by Dr. McPhee, another physician hired by Defendant. Dr. McPhee
affirmed that “. . . [t]he claimant’s self described functional impairments are inconsistent with his
observed activities and are not validated by the clinical or diagnostic finding.” (Doc. 9-39, p. 2).
C. Surveillance Evidence
In February of 2010, Defendant conducted surveillance of Plaintiff and documented footage
of him driving, going to the bank, shopping at Wal-Mart, making multiple trips to and from
residences, carrying sticks, bending, squatting, hammering, and walking without a cane or other
medical device. (Docs. 9-31 and 9-32).
II. Standard of Review
Generally, once a plaintiff has exhausted his administrative remedies, the court’s function
is to conduct a review of the record that was before the administrator of the plan when the claim was
denied. See Farfalla v. Mutual of Omaha Ins. Co., 324 F.3d 971, 974-75 (8th Cir. 2003); Firestone
Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). A denial of benefits claim under ERISA is
reviewed for an abuse of discretion when “a plan gives the administrator discretionary power to
construe uncertain terms or to make eligibility determinations.” King v. Hartford Life & Accident
Ins. Co., 414 F.3d 994, 998-99 (8th Cir. 1997)(en banc)(citing Firestone Tire & Rubber Co. v.
Bruch, 489 U.S. 101, 111 (1989)). If a plan confers discretionary authority, then the Court must
defer to the determination made by the administrator or fiduciary unless such determination is

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After eight hours of testing, Dr. Denney had determined that Plaintiff’s alleged
neurocognitive dysfunction was “malingered.” The medical definition of “malingering” is:
“feigning illness or disability to escape work, excite sympathy, or gain compensation.” Stedman’s
Medical Dictionary 1147 (28th ed. 2006).
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arbitrary and capricious. Firestone, 489 U.S. 115. “[R]eview for an ‘abuse of discretion’ or for
being ‘arbitrary and capricious’ is a distinction without a difference” because the terms are generally
interchangeable. Jackson v. Prudential Ins. Co. of Am., 530 F.3d 696, 701 (8th Cir. 2008), citing
Schatz v. Mutual of Omaha Ins. Co., 220 F.3d 944, 946 n.4 (8th Cir. 2000).
Abuse of discretion is the proper standard of review in this case, as the benefits plan
administered by Plaintiff’s employer, Archer Daniels Midland Company, delegated to Defendant the
discretionary authority to make eligibility determinations. (Doc. 9-4, p. 26). The decision of the
administrator may only be overturned if it was not “reasonable, i.e., supported by substantial
evidence.” Donaho v. FMC Corp., 74 F.3d 894, 899 (8th Cir. 1996). The administrator’s decision
will be deemed reasonable if “a reasonable person could have reached a similar decision, given the
evidence before him, not that a reasonable person would have reached that decision.” Id. If the
decision is supported by a reasonable explanation, it should not be disturbed, even though a different
reasonable interpretation could have been made. Cash v. Wal-Mart Group Health Plan, 107 F.3d
637, (8th Cir. 1997), citing Donaho, 74 F.3d at 899.
The Court will examine the basis behind the administrator’s decision in order to determine
if it is supported by substantial evidence. The evidence should be assessed by its quantity and
quality, and this review, “though deferential, is not tantamount to rubber-stamping the result.”
Torres v. Unum Life Ins. Co. of Am., 405 F.3d 670, 680 (8th Cir. 2005).
There are five factors the Court will analyze in order to determine whether an administrator’s
decision was reasonable:
(1) whether the administrator’s interpretation is consistent with the goals of the Plan;
(2) whether the interpretation renders any language in the Plan meaningless or
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internally inconsistent; (3) whether the administrator’s interpretation conflicts with
the substantive or procedural requirements of the ERISA statute; (4) whether the
administrator has interpreted the relevant terms consistently; and (5) whether the
interpretation is contrary to the clear language of the Plan.
Id. (citing Shelton v. ContiGroup Cos., Inc., 285 F.3d 640, 643 (8th Cir. 2002)).
In addition to analyzing these five factors, the Court will also consider that a conflict of
interest may exist in this case, as Defendant both determines whether an enrollee is eligible for
benefits and also pays the benefits out of its own pocket. Plaintiff contends the conflict of interest
should be considered as a factor in determining whether there was an abuse of discretion. The
Supreme Court has stated that a reviewing court is to give importance to this conflict of interest
depending upon how closely the other factors are balanced. Metro. Life Ins. Co. v. Glenn, 128 S. Ct.
2343, 2351 (2008). Accordingly, the Court will review the denial of benefits for an abuse of
discretion, taking into account relevant factors to include the potential conflict of interest.
III. Discussion
In determining whether Defendant’s denial of benefits was reasonable and supported by
substantial evidence, the Court reviews the quantity and quality of the medical evidence provided
in the administrative record, as well as the relevant provisions of the benefit plan (“Plan”).
An employee with a “disability” is defined by the Plan as: “. . . limited from performing the
material and substantial duties of your regular occupation due to your sickness or injury; and . . . a
20% or more loss in your indexed monthly earnings due to the same sickness or injury.” (Doc. 9-4,
p. 2). The term “material and substantial duties” means “duties that are normally required for the
performance of your regular occupation; and cannot be reasonably omitted or modified.” Id. at p.
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17. The term “regular occupation” refers to “the occupation you are routinely performing when your
disability begins.” Id. at p. 18.
Under the Eighth Circuit’s holding in Shelton v. ContiGroup Cos., Inc., 285 F.3d 640, 643
(8th Cir. 2002), the first factor the Court must consider in evaluating the reasonability of a Plan
administrator’s denial of ERISA benefits is whether the administrator’s interpretation is consistent
with the goals of the Plan. The Plan’s goal or intent is to “provide coverage for a payable claim
which occurs while . . . covered under the policy or plan.” (Doc. 9-3, p. 30). A payable claim is one
for which Defendant is liable under the terms of the policy, which is triggered by a finding of
disability. As discussed above, a “disability” is a condition that limits the employee from performing
“the material and substantial duties of [his] regular occupation.” (Doc. 9-4, p. 2).
Here, the administrator’s decision to deny Plaintiff benefits was entirely consistent with the
goals of the Plan. Considering the medical data present in the administrative record, including
reports from doctors who directly treated Plaintiff and those who reviewed the paper file, the sole
support for Plaintiff’s claims of incapacitating back pain comes from Plaintiff’s family practice
physician, Dr. Kureishy. Dr. Kureishy’s directive that Plaintiff discontinue full-time work stands
alone among the many other doctors’ recommendations, including Plaintiff’s own doctors’
recommendations, that Plaintiff is fully capable of returning to his former job. The law is clear that
insurance companies are not required to give more weight to the opinions of doctors who treat the
patient, as opposed to those who merely review the patient’s file. Black & Decker Disability Plan
v. Nord, 538 U.S. 822, 834 (2003).
The medical tests in Plaintiff’s file revealed an old compression fracture and a disc bulge,
but with no neural or nerve root compromise to explain Plaintiff’s complaints of pain. Plaintiff’s
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own doctors, Doctors Chu and Mahmood, examined Plaintiff and found no objective medical
evidence supporting Plaintiff’s claim of disability. Both Dr. Chu and another of Plaintiff’s doctors,
Dr. Furry, a pain specialist, cleared Plaintiff to return to work with no restrictions or limitations.
Five doctors hired by Defendant also failed to find any organic reason for Plaintiff’s pain and all
recommended that Plaintiff resume full-time work.
As for Plaintiff’s complaints of neuropsychological deficits, including memory problems and
other cognitive disorders, the Court finds that Defendant’s doctors demonstrated that Plaintiff’s
claims in this area were not genuine. Drs. Denney, McLaren, and Zimmerman concurred that
Plaintiff’s cognitive deficits were feigned. Indeed, it stretches the imagination to believe that
Plaintiff, an engineer with a college degree, suffers from such severe back pain (with no organic
cause) that his IQ has dropped to 75, which is lower than the average IQ score of a person with a
severe brain injury or dementia.
The second factor in assessing the reasonableness of Defendant’s decision is whether the
interpretation renders any language in the Plan meaningless or internally inconsistent. Shelton, 285
F.3d at 643. Since the medical evidence overwhelmingly supports a determination that Plaintiff is
not disabled, Defendant’s decision is reasonable and a proper interpretation of the Plan’s terms.
Plaintiff’s former job was sedentary, involving seated work at a computer or on the telephone.
Sitting and standing, alternating, were acceptable work behaviors. There is substantial evidence in
the record that Plaintiff would be able to perform these work tasks and be successful in this work
environment.
In examining the remaining three of the five factors announced in Shelton, this Court must
assess the following in determining whether an abuse of discretion occurred: (1) whether the
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administrator’s decision to deny benefits conflicts with the substantive or procedural requirements
of the ERISA statute; (2) whether the administrator has interpreted the words at issue consistently;
and (3) whether the administrator’s interpretation is contrary to the clear language of the Plan. The
Court finds that Defendant has acted carefully, reasonably, and appropriately in evaluating Plaintiff’s
claim in light of the Plan’s terms and that the remaining three Shelton factors are satisfied.
Moreover, Defendant’s decision was supported by substantial evidence. The video surveillance
conducted by Defendant’s agent showed Plaintiff engaging in a number of activities without
noticeable restrictions. Relying on such video surveillance “provides another form of objective
evidence upon which an ERISA plan administrator may base its claims determinations.” Green v.
Union Sec. Ins. Co., 2011 U.S. App. LEXIS 14994 (8th Cir. July 22, 2011).
Finally, there is no evidence in the record to indicate that a conflict of interest influenced
Defendant’s decision. The decision was supported not only by Defendant’s medical consultants but
by Plaintiff’s own treating physicians. Accordingly, the conflict of interest factor is not significant
in the Court’s abuse of discretion review. The Court finds that Defendant did not abuse its discretion
in denying Plaintiff’s claim and that Defendant’s decision was supported by substantial evidence on
the record.
IV. Conclusion
For the foregoing reasons, IT IS HEREBY ORDERED that Defendant’s decision to deny
benefits is AFFIRMED, Plaintiff’s claim is DENIED, and this case is DISMISSED with prejudice.
An order of judgment shall be filed contemporaneously herewith, with all parties instructed to bear

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their own fees and costs.
IT IS SO ORDERED this 24th day of January, 2012.

/s/P. K. Holmes, III
P.K. HOLMES, III
UNITED STATES DISTRICT JUDGE

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