Chen v. CenturyLink

Filing 37

OPINION AND ORDER by Chief Judge Marcia S. Krieger on 5/18/17. (pglov)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 15-cv-01651-MSK-KMT
JULIE CHEN,
Plaintiff,
v.
CENTURYLINK, as Sponsor and Administrator of the CenturyLink Employee Benefit
Plan,
Defendant.

OPINION AND ORDER

THIS MATTER is before the Court on Plaintiff, Julie Chen’s, request for judicial review
of the decision made by the Defendant, CenturyLink, denying her long-term disability benefits
under its Employee Benefit Plan. The Administrative Record (AR) is found at # 26, 27, 28, 29.
Briefing on the Record is complete (# 34, 35, 36).
I.

Jurisdiction
CenturyLink’s Employee Benefit Plan is governed by the Employee Retirement Income

Security act of 1974 (“ERISA”), 29 U.S.C. § 1131, et seq. Section 1132 permits a person denied
benefits under an employee benefit plan to challenge the denial in federal court. Metropolitan
Life Ins. Co. v. Glenn, 554 U.S. 105, 108 (2008). The Court exercises jurisdiction over this
matter pursuant to 28 U.S.C. § 1331.

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II.

Factual Background
A. The Plan
Between 1986 and 1995, Ms. Chen worked for U.S. West (CenturyLink’s predecessor) as

an accounting systems analyst, a budget analyst, and a business case analyst. At all times, she
was covered by U.S. West’s Employee Benefit Plan. This Plan became the CenturyLink
Disability Plan (the Plan).
The Plan provides employees with both short and long term disability benefits. Short
term benefits last up to 52 weeks. Long-term benefits are governed by Section 1.15(d) of the
Plan. Long term benefits are available in two stages. A participant is entitled to an initial twelve
months of benefits, after which he or she may apply for permanent benefits. For purposes of
such benefits, Section 1.15(d)(ii) defines “disabled” as follows:
“(1) the Participant is unable to engage in any occupation or employment, which
inability is supported by Objective Medical Documentation, or (2) the Participant
is unable to engage in any occupation or employment, for which he/she might
reasonably become qualified through training or education that pays 60% or more
of his/her pay at the time his/her employment ended due to disability.”
“Objective Medical Documentation” is defined as:
“[W]ritten documentation of observable, measureable, and reproducible
findings from examination and supporting laboratory or diagnostic tests,
assessment or diagnostic formulation, such as, but not limited to, x-ray
reports, elevated blood pressure readings, lab test results, functionality
assessments, psychological testing, etc.”
The Plan requires recipients of long-term disability benefits to demonstrate continued
eligibility. Section 5.1(d)(ii)(II) of the Plan obligates them to provide the Plan Administrator
with documentation timely supporting a disability. Likewise, Section 5.1(d)(ii)(IV) requires
recipients to submit “Reports for Medical or Psychological exams from time to time, at the
request of the . . . Plan Administrator, for purposes of determining the participant’s condition.”

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Finally, Section 3.2(d) empowers the Plan Administrator to request claimants to supply “such
information as necessary for the proper administration of the Plan, including for purposes of
proving claimant’s eligibility and as a condition to a claimant’s receipt of benefits.
Documentation must include Objective Medical Documentation.”
B. Ms. Chen’s Disability
In October of 1995, Ms. Chen was diagnosed with end-stage renal disease accompanied
by musculoskeletal pain and discomfort. From October 25, 1995 through October 29, 1996, she
received short-term disability benefits, then beginning on October 30, 1996, she received the
initial twelve-months of long-term disability benefits provided for by the Plan. After that period
expired, Ms. Chen applied for and was deemed eligible for permanent, long term disability
benefits.
In 2000, Ms. Chen had a successful kidney transplant. Following the surgery, she
required immunosuppressive drugs that caused chronic fatigue and other side effects. Due to her
fatigue and compromised immune system, Ms. Chen’s treating nephrologist, Dr. Thomas
Mooney, has consistently opined that she was unable to perform work related activities.
Between 1997 and 2013, Plan Administrators periodically revisited Ms. Chen’s eligibility
and on all but one occasion, 1 continued her long-term disability benefits. In 2013, the Plan

1

During a review in May of 2004, a nephrologist, Dr. Michael Gross, reviewed Ms.
Chen’s record at the request of the then-Plan Administrator. He determined that she could
perform sedentary work. The Plan ordered a Functional Capacity Evaluation, which confirmed
Dr. Gross’s finding. Based on this determination, a disability case manager for the Plan
concluded that Ms. Chen was no longer eligible for long-term disability benefits. AR 410-11.
However, it appears that this denial was either never implemented or overturned on appeal, and
the parties do not dispute that Ms. Chen continued receiving long-term disability benefits until
2014.
3

Administrator delegated all its authority and responsibilities to a third party administrator, The
Standard Insurance Company (Standard), which began another review of Ms. Chen’s eligibility.
Dr. Paul Jain reviewed Ms. Chen’s medical records 2, and opined that Ms. Chen had no
limitations or restrictions preventing her from performing sedentary work. In December 2013,
benefits analyst Jessie Burke observed that medical documents showed Ms. Chen to be “stable
but with complaints of fatigue.” However, she also observed that reference was made to
impending travel. As a result, Ms. Burke sent a letter to Ms. Chen asking for updated medical
information, but no information was returned.
In January 2014, Ms. Burke sent a medical questionnaire to Dr. Mooney. Dr. Mooney
completed the form, stating that Ms. Chen suffered from “extreme fatigue, decreased energy and
endurance.” He opined that while Ms. Chen is able to care for most personal needs alone, she is
unable to perform sedentary work.
In February of 2014, Standard engaged a nephrologist, Dr. Joseph Lee, to review Ms.
Chen’s medical records. Dr. Lee issued a report finding that, despite fatigue and sporadic
infections, Ms. Chen was “functional and reportedly goes on vacation/travels”, that “chronically,
she has no limitations/ restriction as a result of her fatigue/ kidney transplant/medications/warts.”
2

The administrative record is replete with notes and records of treatment by Ms.
Chen’s, nephrologist, Dr. Mooney. A large part of these records are office visit notes from 2002
through 2014, including visit reports from October of 2008, October of 2009, and September of
2012.. Some notes characterize Ms. Chen as stable, doing well, and not reporting fatigue or
daily limitations, two visit reports (in mid and late 2013) discuss Ms. Chen’s plan to travel to
Europe. Other notes, such as one from March 2012, describe Ms. Chen as fatigued. Still others
address particular health concerns: two from 2013 discuss Ms. Chen’s heightened risk of
infections, and one from 2013 mentions treating Ms. Chen for diverticulitis. The administrative
record also contains insurance forms or questionnaires completed by Dr. Mooney, including
periodic Statements of Disability from April 2002 through November of 2009 a 2011
Questionnaire for a prior plan administrator, and a Standard MedicalQuestionnaire completed on
March 12, 2014. In each of these documents, Dr. Mooney opines that Ms. Chen suffers from
extreme fatigue and cannot work at a sedentary level job.
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Thus, he concluded that she was “capable of performing full time sedentary and/or light level
work.” Standard also requested a second document review by Dr. Paul Jain, who likewise
opined that Ms. Chen was not impaired by limitations or restrictions precluding sedentary work.
Based on these reports, Standard advised CenturyLink that Ms. Chen’s long-term
disability benefits should be terminated because her file lacked “objective medical
documentation to support that she suffers physical limitations and/or restrictions which would
prevent her from performing her company-assigned job.” Standard also informed Ms. Chen that
her claim was denied via a letter in February, 2014. The letter explained that Ms. Chen did not
meet the Plan’s definition of disabled because her medical records suggest that she is able to
perform full-time sedentary level work.
In August 2014, Ms. Chen appealed Standard’s determination. Standard assigned Gordon
Harris, a Benefits Review Specialist, to review the matter. Ms. Chen submitted additional
documentation, including a letter from Dr. Mooney and a Vocational/Employability Assessment.
First, Dr. Mooney’s letter, dated October 21, 2014, summarized Ms. Chen’s condition.
He observed that she suffered from “chronic, ongoing constitutional symptoms of malaise,
fatigue and decreased energy” and “limited functional status through the day and throughout the
week.” Dr. Mooney explained that her symptoms interfered with her ability to perform daily
activities. “On a good day she can be active with light household and personal tasks before she
has to rest for a few hours”; on a bad day she can accomplish very little. He added that Ms. Chen
is susceptible to illness and infections, and occasionally experiences other transplant
complications that sometimes require hospitalization and medical treatment.
Second, a Vocational/Employability Assessment was conducted by Joseph Blythe. Mr.
Blythe interviewed Ms. Chen and examined her medical records. He determined that Standard’s

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conclusion that Ms. Chen could return to a sedentary occupation was flawed because: 1) Ms.
Chen had not worked for nineteen years, and thus, her skills – specifically, her computer skills
and knowledge of accounting software – were obsolete; 2) warts on her hands affected her
ability to reach, handle, or finger items, a task necessary for her occupation; 3) she suffered
consistent fatigue and therefore would only be able to work intermittently; 4) her weakened
immune system both rendered her susceptible to illnesses and lengthened her recovery time; and
5) Dr. Mooney, who had the most intimate knowledge of Ms. Chen’s condition, remained
consistent in his opinions of her abilities for many years.
Mr. Harris then directed that a second Vocational Assessment be performed by Julie
Sliga. In December of 2014, Ms. Sliga examined several documents including Ms. Chen’s
completed education, training and experience form, an Employability Evaluation Report from
2004, Dr. Lee’s February 2014 review, Mr. Blythe’s report, and an interview with Ms. Chen
from January 22, 2014. Ms. Sliga agreed that Ms. Chen’s accounting skills were obsolete.
However, based on Ms. Chen’s education, verbal and written communication skills, presentation
skills, organizational ability, and basic computer skills, she identified two appropriate sedentary
occupations that Ms. Chen could perform – telephone solicitor and customer service
representative. According to the Bureau of Labor statistics, each job would pay more than 60%
of her base pay at the time Ms. Chen became disabled.
In January of 2015, Mr. Harris also obtained a report from an internal medicine
physician, Dr. Janette Green. Dr. Green conducted a medical record review, and determined
that, although Ms. Chen complained of fatigue, “only in recent documentation” did Dr. Mooney
report that the fatigue was problematic and that severe, limiting fatigue was not consistently

6

documented. Dr. Green thus found that objective documentation in Dr. Mooney’s records was
not sufficient to preclude Ms. Chen from working a sedentary occupation.
On February 19, 2015, Mr. Harris affirmed Standard’s denial of benefits. In his letter to
Ms. Chen. Mr. Harris explained that he had reviewed “all of the claim file documentation,”
including all the “medical documentation,” 3 but had particularly focused on the information
relevant to Ms. Chen’s abilities as of February 28, 2014 (the date her of her benefit denial) and
beyond. Applying the Plan’s definitions, Mr. Harris found that there was insufficient Objective
Medical Documentation to conclude that Ms. Chen was unable to perform a sedentary job that
paid 60% or more of her base pay at the time she became disabled. Specifically, Mr. Harris
found that: 1) Dr. Mooney’s opinion (as described in his October 21, 2014 letter) that Ms.
Chen’s “extreme fatigue, decreased energy and endurance” and “limited functional status”
prevented her from working a sedentary job was inconsistent with office visit notes in which he
describes Ms. Chen as stable and doing well; 2) travelling to Europe, Hawaii, and Miami
required a certain level of endurance which was, in some ways, more taxing than working a

3

Specifically, he referred to the following:
•
•
•
•
•
•
•
•
•

A June 2004 Functional Capacity Evaluation concluding that though Ms. Chen is limited
by fatigue, she is capable of sedentary work;
Dr. Mooney’s visit reports from October 2008, October 2009, March 2012, September
2012, January 2013, May 2013, and September 2013.
Dr. Johs’, February 2013 examination of Ms. Chen;
Ms. Chen’s June 2014 emergency room visit diagnosing diverticulitis;
A July 2014 report from Broomfield Family Practice;
Dr. Mooney’s completed November 2009 Statement of Disability form, his March 12,
2014, returned Standard Medical Questionnaire and his October 21, 2014 letter;
Evaluations by reviewing doctors completed at the request of Standard, including those
by Drs. Lee, Jain, and Green;
Ms. Chen’s post-transplant domestic and international travel, namely trips to Europe,
Hawaii, and Miami; and
The Vocational/Employability Assessments performed by Mr. Blythe and Ms. Silga.
7

sedentary job – that Ms. Chen is able to go on trips suggested that her fatigue was not severe
enough to prevent her from working a sedentary job; and 3) although Ms. Chen had been out of
the workforce for some time, she still possessed the skills for two jobs which would pay more
than 60% of her compensation at the time of her disability.
III.

Standard of Review

Ms. Chen now appeals from Standard termination of her long term disability benefits
under the Plan. The Plan is governed by ERISA. ERISA contains no statutory standard for
review of benefit decisions, therefore the Court is guided by case law.
When an ERISA plan gives its administrator discretionary authority to determine
eligibility for benefits, a court reviews a denial of benefits using an arbitrary and capricious
standard. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109, 115 (1989); Graham v.
Hartford Life & Acc. Ins. Co., 589 F.3d 1345, 1357 (10th Cir. 2009); Rekstad v. U.S. Bancorp.,
451 F.3d 1114, 1119 (10th Cir. 2006). A denial can be arbitrary or capricious for a number of
reasons - if it is not supported by substantial evidence, if it is based on a flawed process, or if the
plan administrator has made a mistake of law, acted in bad faith, or was compromised by a
conflict of interest. Graham, 589 F.3d at 1358; Adamson, 455 F.3d at 1212.
Generally, a plan administrator’s decision is not arbitrary and capricious so long as it
predicated upon a reasoned basis and supported by substantial evidence. Graham, 589 F.3d at
1357 (quoting Adamson v. Unum Life Ins. Co. of Am., 455 F.3d 1209, 1212 (10th Cir. 2006).
Substantial evidence is “such evidence that a reasonable mind might accept as adequate to
support the conclusion reached by the [decision maker]”; it requires more than a scintilla but less
than a preponderance. Flint v. Sullivan, 951 F.2d 264, 266 (10th Cir.1991) (citations omitted). It
is not uncommon for a record to contain conflicting evidence, but the presence of conflicting

8

evidence does not make the decision arbitrary or capricious. Robison v. Reliance Standard Life
Ins. Co., 2017 WL 972126, *5 (W.D. Okla. March 10, 2017) (examining Roganti v. Metropolitan
Life Ins. Co., 786 F.3d 201, 212 (2d Cir. 2015)). Although a plan administrator cannot
indiscriminately refuse to credit a claimant’s evidence, there are no requirements as to how an
administrator must weigh the evidence. Roganti, 786 F.3d at 212. For example, if an
administrator is faced with two conflicting medical conclusions and disfavors that of the treating
physician because it contains less objective medical assessments, the plan administrator’s
decision may still be supported by substantial evidence. Black & Decker Disability Plan v. Nord,
538 U.S. 822, 834 (2003); Sandoval, 967 F.2d at 382; see Hobson v. Metropolitan Life Ins. Co.,
574 F.3d 75, 90 (2d Cir. 2009). Indeed, an administrator’s decision need not be the only logical
one or the best one, it must only fall “somewhere on a continuum of reasonableness – even if on
the low end.” Adamson, 455 F.3d at 1212; Kimber v. Thiokol Corp., 196 F.3d 1092, 1098 (10th
Cir. 1999); see also Schandel v. Siebert, 175 F.Supp.3d 1238, 1245 (D. Colo. 2016).
In reviewing a denial of benefits, the Court acts in an appellate capacity, limiting itself to
the record considered by the plan administrator and the grounds stated by the administrator in
support of the decision. See Cardoza v. United of Omaha Life Ins. Co., 708 F.3d 1196, 1201
(10th Cir. 2013); Murphy v. Deloitte & Touche Group Ins. Plan, 619 F.3d 1151, 1157 (10th Cir.
2010); Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10th Cir. 1994); Spradley v.
Owens–Ill. Hourly Employees Welfare Ben. Plan, 686 F.3d 1135, 1141 (10th Cir. 2012). The
Court does not engage in de novo review, and thus does not substitute its assessment of the
evidence for that of the administrator. Simply because the Court might have reached a different
outcome, the plan administrator’s decision is not arbitrary and capricious. Sandoval v. Aetna Life
& Cas. Ins. Co., 967 F.2d 377, 382 (10th Cir. 1992).

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IV.

Analysis
Ms. Chen argues that Standard’s denial of benefits was arbitrary and capricious because

it: 1) denied benefits after providing them for nineteen years; 2) did not review a complete
record; 3) failed to consider that she was eligible for social security benefits; 4) emphasized only
the portions of the record that supported denying benefits; 5) did not conduct a full, impartial
administrative review; and 6) improperly determined that because Ms. Chen is able to travel, she
could perform sedentary work.
In deference to the standard by which ERISA appeals are reviewed, the Court notes that
there is no explicit challenge by Ms. Chen as to sufficiency of the evidence to support the
administrator’s denial of benefits. To the extent that there is an implicit challenge, the Court
finds that although the evidence in the record is conflicting, the administrator’s decision is
supported by substantial evidence.
Standard identified, both in the February 28, 2014 letter of denial and in the February 15,
2015 letter affirming that denial, the evidence supporting its decision. This included reliance
upon 1) medical opinions that Ms. Chen was capable of performing sedentary work; 2) medical
opinions that the fatigue described by Dr. Mooney was not supported by objective medical
documentation; and 3) a vocational expert’s determination that Ms. Chen could obtain and
perform work that would pay more than 60% of her base compensation at the time she stopped
working due to disability.
True, the medical evidence is conflicting. On one hand, there is evidence supporting a
finding that Ms. Chen is disabled. For example, Dr. Mooney periodically completed insurance
forms for Ms. Chen in which he repeatedly expressed his opinion that she suffers from severe
fatigue. Standard considered these forms, but afforded them less weight because they were

10

prepared for purposes of securing disability benefits for Ms. Chen. In addition, at least one of
office visits report by Dr. Mooney reflects that Ms. Chen suffers from fatigue, while other visit
reports mention other health concerns such as susceptibility to infection and diverticulitis. 4
Standard considered these reports.
On the other hand, different visit reports by Dr. Mooney and others are more optimistic,
describing Ms. Chen as stable and doing well, able to engage in light walking, and indicating she
has been, and plans to, travel. In addition, the record contains paper reviews conducted by three
independent 5 physicians, all of whom who opine that Ms. Chen is not disabled. All three believe
Ms. Chen is able to perform sedentary work. For example, Dr. Lee concludes that following Ms.
Chen’s transplant she is “stable with excellent function,” and “capable of performing full time
sedentary work.” In more detail, Dr. Green found that Ms. Chen’s “severe limiting fatigue is not
consistently demonstrated throughout the documentation,” which more often refers to her fatigue
as “mild.” Moreover, she found that Ms. Chen’s “limitations are based on [her] self-reported
complaints”; there is “no documented diagnostic studies or exams which demonstrate . . . fatigue
of a severity that would give [Ms. Chen] limitations or restrictions to a sedentary level
occupation.”
The record also contains disparate conclusions by vocational experts as to whether Ms.
Chen is employable in a sedentary occupation that pays 60% or more of her base pay at the time
she first became disabled. Ms. Chen’s own Vocational/Employability Assessment, done by Mr.
4

Standard recognized that in 2013 Ms. Chen developed “recurrent diverticulitis,” reported
initially by Dr. Mooney. Dr. Johs conducted a more detailed examination of Ms. Chen related to
her diverticulitis, which he characterized as mild. And in June of 2014, Ms. Chen visited the
emergency room due to a bout of diverticulitis. There is no evidence however, that diverticulitis
contributed to Ms. Chen’s disability or specifically, her fatigue.
5

The physicians affirm that their compensation was not dependent on the specific outcome
of the case. Ms. Chen has not offered evidence to dispute this fact.
11

Blythe, concluded that because Ms. Chen had been out of the workforce for nineteen years, her
skills were obsolete and dated, making her unemployable. Standard’s vocational consultant, Ms.
Sliga, disagreed. She examined Ms. Chen’s skills and education and agreed that Ms. Chen was
no longer employable as an accountant. However, she determined that Ms. Chen could work as a
telephone solicitor or customer service representative. Both jobs, according to the Bureau of
Labor statistics, are sedentary jobs that pay more than 60% of Ms. Chen’s base pay. Standard
accepted Ms. Sliga’s report. Standard noted that Mr. Blythe did not consider alternative
occupations or offer an opinion as to whether Ms. Chen was able to obtain other (nonaccountant) employment still paying 60% of her base pay.
In the face of such conflicting evidence, the Court’s role is not to determine its weight or
to substitute its view for that of the administrator. Standard’s denial is supported by substantial
evidence. The question then becomes whether its decision is arbitrary or capricious for another
reason.
A. Inconsistency with Prior Eligibility Decisions
Ms. Chen contends that it was arbitrary for Standard to deny benefits after paying them
for nineteen years. She particularly objects to the fact that during the time she was receiving
benefits, the Plan Administrators accepted the opinions of Dr. Mooney with little question. This
argument is appealing from a lay perspective, but it ignores the fact that new medical and
vocational evidence was obtained prior to Standard’s decision.
ERISA does not prevent a plan administrator from reversing course and finding a
claimant no longer entitled to disability benefits. Kimber v. Thiokol Corp., 196 F.3d 1092, 1099
(10th Cir. 1999). A denial of benefits, even after many years during which benefits were paid, is
not arbitrary and capricious if it is supported by new medical or other information. See, e.g.,

12

Sandoval v. Aetna Life & Cas. Ins. Co., 967 F.2d 377, 382 (10th Cir. 1992). For example, in
Sandoval, a claimant had received disability benefits for some eleven years before his benefits
were denied. The plan administrator, as part of its routine claims review, requested additional
health information from the claimant and scheduled an independent medical evaluation. The
independent evaluating physician opined that the claimant was no longer disabled. The claimant
submitted his treating physician’s report reaching the opposite conclusion. However, the plan
administrator relied upon the independent evaluation, which contained more objective medical
findings. On appeal, the Tenth Circuit affirmed the plan administrator’s denial, concluding that it
was supported by substantial evidence – namely, a detailed and contemporary medical report.
Sandoval, 967 F.2d at 378-79, 3822; see also, Meraou v. Williams Co. Long Term Disability
Plan, 221 Fed App’x 696, 706 (10th Cir. February 9, 2007) (that a plan administrator found the
claimant disabled some fifteen years prior does not bind later reversal as the claimant is under a
continuing obligation to prove disability status). 6
The administrative record is replete with documents in which Dr. Mooney opined that
Ms. Chen was disabled: in January of 2003 Dr. Mooney indicated that Ms. Chen was “totally
disabled from any occupation,” due to her restrictions as to daily activities such as her ability to
attend meetings, respond to work pressures, and perform simple and complex tasks and in 2008,
Dr. Mooney opined that Ms. Chen was disabled from any occupation, her health status had not
changed or improved, and she suffered from severe daily fatigue. (Both of these observations
were made in the context of responding to insurers’ requests for information as to Ms. Chen’s
6

Ms. Chen directs the Court to Miller v. American Airlines, Inc., 632 F.3d 837, 848 (3d
Cir. 2011). In Miller, the Third Circuit determined that an administrator’s reversal of its prior
decision to award benefits is an irregularity suggesting abuse of discretion. The facts in Miller
are distinguishable from those presented here. In Miller, the Third Circuit’s decision turned on
the fact that the reversal of a prior grant of benefits was made without receiving any new medical
information.
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disability.) In 2012, Dr. Mooney indicated that Ms. Chen’s fatigue and malaise were continuing,
and she was susceptible to frequent infections.
In the course of its review and the appeal, Standard obtained and reviewed new evidence.
Three doctors contemporaneously examined Ms. Chen’s medical records and offered opinions.
All three concluded that objectively, her medical conditions did not prevent her from working a
sedentary job. Standard also noted that Ms. Chen’s historical medical records contain conflicting
evidence. For example, Dr. Mooney’s regular visit reports sometimes differ, to a degree, from
conclusions he made in the context of responding to an insurance questionnaire. Some visit
reports omit any severe fatigue and do not suggest Ms. Chen is unable to engage in daily
activities or travel.
Accordingly, the Court cannot find that Standard’s denial of benefits was arbitrary and
capricious simply because, for the previous nineteen years, Ms. Chen was deemed eligible.
B. Failure to Consider a Social Security Determination
Ms. Chen contends that Standard’s failure to consider that she had been determined to be
disabled for purpose of social security benefits made its decision arbitrary and capricious.
Although a plan administrator should not ignore a claimant’s eligibility for social security
disability benefits, see Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105, 110 (2008), the validity
of a claim for benefits under an ERISA plan turns on the interpretation of the plan at issue, not
on whether the claimant is eligible for social security benefits. Croll v. Connecticut General Life
Ins. Co., 863 F.Supp.2d 1093, 1102 (D. Colo. 2012) (citing Meraou, 221 Fed App’x at 706).
The weight given a social security determination is determined on a case by case basis,
and is affected by a number of factors. Torrey v. Qwest Communications International, Inc., 838
F.Supp.2d 1201, 1210 (D. Colo. 2012). Glenn, supra, is instructive. There, the plan

14

administrator directed the claimant to first seek social security benefits, which the claimant did.
Later, using a standard nearly identical to that employed under the Social Security Act, the plan
administrator denied benefits under an ERISA plan. The Supreme Court agreed with the Sixth
Circuit that the plan administrator’s inconsistent positions, coupled with other red flags in the
plan administrator’s review, made the denial decision arbitrary and capricious.
Here, however, Ms. Chen was determined to be disabled for Social Security purposes in
1996, before she had a kidney transplant. Standard acknowledged that determination in its letter
of February 28, 2014. Unlike the facts in Glenn, there is no showing that the Social Security
standards applied in 1996 are the same as those applicable under the Plan. But more importantly,
Ms. Chen’s condition at the time of her Social Security Disability determination is in 1996 was
significantly different from her post-transplant condition at the time of Standard’s decision at
issue almost 20 years later.
Based on these circumstances, the Court does not find that Standard’s refusal to give
more weight to Ms. Chen’s eligibility for social security benefits rendered denial of benefits
arbitrary and capricious.
C. “Cherry-picking” the Record
Ms. Chen also complains that Standard did not consider the entire record, but instead
relied only on evidence favoring denial of her claim (a practice described as “cherry-picking”).
As a general rule, a plan administrator is not required to “pore over the record,” picking
out and addressing all evidence supporting payment or denial of a claim. Gaither v. Aetna Life
Ins. Co., 394 F.3d 792, 806-07 (10th Cir. 2004). But at the same time, the plan administrator
cannot shut her eyes to readily available evidence that suggests the claimant is entitled to
benefits. Id.

15

Often there is evidence that both supports payment and that which supports the denial of
benefits. As the Court has emphasized, where there is conflicting evidence, the plan
administrator’s reliance on some evidence and rejection of other evidence does not make the
decision arbitrary or capricious. See Adamson v. Unum Life Ins. Co. of Am., 455 F.3d 1209,
1212-13 (10th Cir. 2006). In such situation, the question is whether the administrator reviewed
and considered all of the evidence. See, e.g. Brown v. Liberty Assur. Co. of Boston, No. CIV-140519-HE, 2015 WL 3651542, *3 (W.D. Okla. June 11, 2015),
Here the Court is satisfied that Standard considered all of the evidence that Ms. Chen
supplied. It directly addressed Dr. Mooney’s reports and assessments. It directed that evaluations
of her ability to work be prepared and it considered the inconsistencies in the reports submitted
by its own expert as well as hers. Ms. Chen points to evidence that she contends was not
considered by Standard, but the record reflects that Standard did, indeed, consider such
information. 7 It simply did not find the evidence persuasive.
Standard is afforded discretion to weigh and evaluate the evidence, and it offered
reasonable explanations for its evidentiary determinations. The fact that it found some evidence
more compelling that other evidence does not mean that Standard acted improperly.
7

Ms. Chen contends that Standard focused on office visits where Dr. Mooney did not
report fatigue or problems, while ignoring those visit reports where he did. Ms. Chen has
identified office visits on several dates in which Dr. Mooney recorded that Ms. Chen was
experiencing fatigue and other health problems. However, the Court finds no evidence that
Standard ignored these. Rather, Standard’s February 15, 2015 letter detailing its denial of
benefits after administrative review, states that it considered medical records prepared by Dr.
Mooney that date back at least to 2008, including those that detail Ms. Chen’s limitations.
Standard also considered a report from March 2, 2012, in which Ms. Chen reported to Dr.
Mooney that she was tired. Most telling, however, is that some of the reports Ms. Chen contends
that Standard ignored are actually cited by Standard in its February 15 letter. For example, Ms.
Chen contends that Standard did disregarded Dr. Mooney’s report on January 28, 2013 or that
dated September 6, 2013. To the contrary, Standard specifically referenced the reports from both
of those dates, noting that in the former Dr. Mooney evaluated Ms. Chen’s diverticulitis and in
the latter Ms. Chen reported “mild fatigue.”
16

Accordingly, the Court does not find that Standard disregarded evidence favorable to Ms.
Chen.
D. Consideration of Travel
Ms. Chen contends that Standard’s consideration of her travel made its decision arbitrary
and capricious. The Court disagrees.
There are no specific prohibitions on what sort of evidence a plan administrator may
consider in determining whether a claimant is disabled. It is proper to consider a claimant’s
daily activities and limitations and to verify a claimants’ symptoms and alleged limitations by
conducting limited surveillance of a claimant’s daily life. Gross v. Sun Life Assur. Co. of
Canada, 734 F.3d 1, 25 (1st Cir. 2013). In considering symptoms and limitations, a plan
administrator may consider those activities that a claimant performs that could be inconsistent
with the medical limitations, including traveling. Tsoulas v. Liberty Life Assur. Co. of Boston,
454 F.3d 69, 77 (1st Cir. 2006).
The mere fact that Standard considered references to Ms. Chen’s travel was not improper.
The question is whether it considered such information in light of her medical condition. It
might be improper for a claims administrator to conclude without any medical evidence that her
travel per se precluded a finding disability. But here, Ms. Chen’s ability and inclination to travel
was considered by medical experts in the context of her medical symptoms, particularly her
persistent fatigue. Standard relied upon the medical opinions that Ms. Chen’s travel was
inconsistent with her claims of debilitating fatigue. Although the Court might not necessarily
have weighed the evidence in the same way as the Plan Administrator, it is not for the Court to
substitute its assessment of the evidence for that of Standard.
E. Full and Fair Impartial Review

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Ms. Chen makes two arguments in this context. First, she contends that Standard failed to
provide her with a full and fail review because the claims examiner who initially denied her
claim was “involved” in the review. Second, she takes issue with the fact that the administrative
record is absent of any documentation for a three-year period (September of 2004 through
October of 2007). Neither is availing.
There is no doubt that Plan participants are entitled to full and fair review by the
appropriate named fiduciary of the decision denying the claim. 29 U.S.C. § 1133(2); LaAsmar v.
Pehlps Dodge Corp. Life, Accidental Death & Dismemberment & Dependent Life Ins. Plan, 605
F.3d 789, 797 (10th Cir. 2010). A full and fair review involves a two-step process: 1) adequate
notice to the claimant; and 2) a reasonable opportunity for a fair review. Brimer v. Life Ins. Co.
of N. Am., 462 Fed App’x 804, 808-09 (10th Cir. February 10, 2012). A reasonable opportunity
for fair review is the opportunity for the claimant to submit written comments, documents,
records, and other information relating to eligibility for benefits. 29 U.S.C. § 1133(2). Fair
review also requires a claimant know the relevant information, including “what evidence the
decision-maker relied upon.” Id. Benson v. Hartford Life & Acc. Ins. Co., 511 Fed App’x 680,
686 (10th Cir. Feb. 14, 2013) (quoting Sage v. Automation, Inc. Pension Plan & Trust, 845 F.2d
885, 893–94 (10th Cir.1988)); see also Sandoval, 967 F.2d at 382. The necessary procedures
required for a full and fair review are also outlined in great detail in 29 C.F.R. § 2560.503-1(h).
First, Subsection (h)(3)(ii) of the Code of Federal Regulations mandates that a review
“does not afford deference to the initial adverse benefit determination,” and “is conducted by an
appropriate named fiduciary of the plan” who is “not the individual who made the adverse
benefit determination that is the subject of the appeal.” 29 C.F.R. § 2560.503-1(h)(3)(ii).
Contrary to Ms. Chen’s assertion, the review of Standard’s denial decision was conducted by

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Mr. Harris, a benefits analyst who was not involved in the initial denial. Although Mr. Harris
asked the original claim examiner to arrange for an assessment, nothing suggests that the original
claim examiner was involved in review process. Absent any showing that the vocational analysis
was somehow affected by the claim examiner’s role in setting it up, the Court finds no
abridgement of Ms. Chen’s rights to a full and fair review.
Ms. Chen also contends that records from September of 2004 through October of 2007
were not considered by Standard in its initial benefits denial. Assuming this to be the case, Ms.
Chen has not explained why such records are necessary to a full and fair determination of her
claim. These records pertained to time periods six to ten years before the claim assessment. How
they would impact a determination of Ms. Chen’s condition in 2013 or 2014 is unclear.
V.

Conclusion
Having reviewed the administrative record and the parties’ briefs, the Court finds that

there is substantial evidence to support Standard’s denial and none of the alleged irregularities
with Standard’s procedure are sufficient to demonstrate that decision was arbitrary or capricious..
The Court therefor AFFIRMS the decision, and directs the Clerk of Court to enter Judgment in
favor of the Defendant.
Dated this 18th day of May, 2017
BY THE COURT:

Marcia S. Krieger
United States District Court

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