Dardick v. UNUM Life Insurance Company of America et al

Filing 44

ORDER granting 43 Parties' Motion for Joint Determination. A review of the evidence and arguments presented by both parties shows that Unum's denial of Plaintiff's claim for ongoing disability benefits was not arbitrary and capricious. Judgment is entered in favor of Defendants and this case is dismissed with prejudice, by Judge Lewis T. Babcock on 10/19/2017. (ebuch)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
LEWIS T. BABCOCK, JUDGE
Civil Action No. 16-cv-02838-LTB-KLM
JOHN DARDICK,
v.

Plaintiff,

UNUM LIFE INSURANCE COMPANY OF AMERICA, a Maine corporation, and
FIRST UNUM LIFE INSURANCE COMPANY, a New York corporation,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This case is before me on the parties’ Joint Motion for Determination [Doc #
43]. After consideration of the parties’ briefs, the record, and the case file, and for
the reasons stated below, I grant the motion and enter judgment in favor of
Defendants.
I. Background
Plaintiff is a former vice president of Westcon Cloud Services.
Administrative Record (“AR”) 42. This case arises out of Defendants Unum Life
Insurance Company of America and First Unum Life Insurance Company’s
(collectively “Unum”) denial of Plaintiff’s claim for disability benefits under the
group disability benefits plan provided by Westcon Group, Inc. (“Westcon”).
Plaintiff’s claim against Unum is governed by the Employee Retirement Income
Security Act of 1974 (“ERISA”).
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A. Plaintiff’s Medical History
Plaintiff, now in his early 60’s, has a long history of cardiovascular health
issues dating back to when he suffered a heart attack while in his 30’s. AR 72.
Following his heart attack, Plaintiff underwent a coronary bypass grafting
procedure and did relatively well following this procedure. Id.
In July of 2015, Plaintiff was seen by Nelson P. Trujillo, M.D., who first
began treating Plaintiff in 2000, for complaints of chest pain, shortness of breath,
and fatigue. AR 72 & 843. Dr. Trujillo reported that Plaintiff denied that he was
experiencing depression or anxiety. AR 73. After a physical examination, Dr.
Trujillo noted that Plaintiff had “[p]remature severe coronary artery disease with
progressive symptoms concerning for recurrence/progression of his underlying
atherosclerosis;” an abnormal nuclear stress test; and symptoms that were “clearly
concerning.” AR 74. Dr. Trujillo instructed Plaintiff to exercise daily by taking a 20
minute walk. Id.
Dr. Trujillo summarized a coronary angiogram performed on Plaintiff on July
17, 2015 as showing that Plaintiff was “incompletely revascularized with severe
right distal coronary artery atherosclerosis, single mammary artery by-pass[,] and
distal LAD artherosclerosis.” AR 842. Dr. Trujillo further summarized that
Plaintiff’s “ejection fraction was reduced at 45%” as of July of 2015. Id.
On July 28, 2015, Plaintiff participated in a treadmill exercise stress test.
AR 75-6. The recorded results reflect “[n]o exercise induced ECG changes;” a score
consistent with “low cardiovascular risk (< 1% annual mortality);” and an abnormal
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study with exercise induced angina pectoris but normal heart rate and blood
pressure response. AR 75.
On August 31, 2015, Plaintiff underwent a percutaneous coronary
intervention (“PCI”), or coronary angioplasty, procedure that was deemed
successful. AR 497. During this procedure, Dr. Trujillo placed a stent in Plaintiff’s
right circumflex artery “although the right coronary artery remained too narrow to
stent.” AR 497 & 526.
Plaintiff was seen by Dr. Trujillo on September 18, 2015 for follow-up on the
August 31, 2015 PCI. AR 142-44. Dr. Trujillo noted that Plaintiff continued to
have angina with exertion and some rest angina with stress/anxiety and that he
was “as completely revascularized as he can be after recent PCI.” AR 142 & 144.
Dr. Trujillo again reported that Plaintiff denied that he was suffering from anxiety
or depression AR 143.
In addition to his cardiovascular health issues, Plaintiff had surgery on
October 30, 2015 for “repair of left distal biceps insertion.” AR 211. The surgeon
noted in his operative report that Plaintiff suffered from longstanding left elbow
pain and had felt something snap in his elbow when he was pushing a wheelbarrow.

Id. The surgeon further noted that Plaintiff had persistent pain and “altered
neurological symptoms” in his arm. Id.
Plaintiff again saw Dr. Trujillo for follow-up on December 23, 2015. AR 2613. Dr. Trujillo reported that an echocardiogram taken a few days earlier showed an
ejection fraction of 50-55% and that Plaintiff continued to have exercise angina “in a
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stable fashion.” AR 261. Dr. Trujillo assessed Plaintiff with “coronary artery
disease involving native coronary artery of native heart with other form of angina
pectoris;” angina pectoris; fatigue; and improving cardiomyopathy. AR 263. Dr.
Trujillo noted that Plaintiff’s ejection fraction had improved “at least 5-10% with
initiation of beta blocker and up titration of drug” and recommended “continued
aggressive medical therapy.” Id. Dr. Trujillo again reported that Plaintiff denied
that he was suffering from anxiety or depression AR 262.
B. Plaintiff’s Disability Plan
Plaintiff asserted his claim for disability benefits under Unum Policy No.
465018001 (the “Plan”). AR 312. Under the Plan, Unum is obligated to pay
Plaintiff 60% of his monthly earnings in the event he becomes disabled. AR 317.
The Plan defines disability as follows:
you are limited from performing the material and substantial duties of
your regular occupation due to your sickness or injury; and
you have a 20% or more loss in your indexed monthly earnings due to
the same sickness of injury.
After 24 on these of payments, you are disabled when Unum
determines that due to the same sickness or injury, you are unable to
perform the duties of any gainful occupation for which you are
reasonably fitted by education, training or experience.
AR 334. The Plan defines the relevant terms set forth in bold above as follows:
MATERIAL AND SUBSTANTIAL DUTIES means duties that ... are
normally required for the performance of your regular occupation; and
cannot be reasonably modified or omitted.
REGULAR OCCUPATION means the occupation you are regularly
performing when your disability begins. [Unum] will look at your
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occupation as it is normally performed in the national economy,
instead of how the work tasks are performed for a specific employer or
at a specific location.
SICKNESS means an illness of disease. Disability must begin while
you are covered under the [P]lan.
AR 347-49. Plan benefits “are administered by the insurer and provided in
accordance with the insurance policy issued to the Plan.” AR 350. The Plan
expressly delegates discretionary authority to make benefit determinations to
Unum. AR 355. Benefit determinations “include determining eligibility for benefits
and the amount of any benefits, resolving factual disputes, and interpreting and
enforcing the provisions of the Plan.” Id.
C. Plaintiff’s Employment with Westcon
As vice president of Westcon, Plaintiff’s responsibilities included
Develop and manage weekly, monthly, quarterly plans for achieving
key performance goals. Refine and adapt business plans in real time
as business landscape evolves;
Build visibility and go to market plans with vendors and customers to
create a competitive advantage and financial growth plan for Westcon
and its partners;
Negotiate and execute regional and global vendor contracts and
approval processes. Support regional and country Business
Development Directors and Managers to increase revenues and
profitability;
Manage domestic and international personnel; and
International and domestic travel, up to 25%; travel will increase with
global portfolio and BlueSky platform rollout.
AR 857. The desired/required skills, knowledge, and experience for a vice president

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at Westcon included 20 plus years of technology industry channel experience; 10
plus years of global senior management executive experience; 5 plus years of cloud
experience; and 15 plus years in product development and vendor management. AR
858.
Westcon completed an occupation description form requested by Unum and
indicated that Plaintiff worked 40+ hours a week; traveled 0-20% each week; and
supervised 2 employees. AR 174.
Dr. Trujillo recommended that Plaintiff stop working as of August 21, 2015.
AR 109. Plaintiff’s employment with Westcon ended September 1, 2015. AR 159.
D. Plaintiff’s Disability Claim
Unum acknowledged receipt of Plaintiff’s short term disability claim on
August 6, 2015 and requested additional information from Plaintiff. AR 27. Dr.
Trujillo completed the physician portion of Plaintiff’s short term disability claim
form and diagnosed Plaintiff with coronary artery disease and ischemic systolic
heart failure. AR 34. Under restrictions and limitations, Dr. Trujillo listed that
Plaintiff needed to avoid any activity that causes stress and be sedentary. AR 33.
In support of these restrictions and limitations, Dr. Trujillo cited “cardiac
catherization with moderate reduction in cardiac function, [ejection fraction] of 45%,
[and] incomplete revascularization with severe small vessel CAD & [ ] OM.” AR 33.
Dr. Trujillo also completed a Certification of Health Care Provider form on
which he indicated that Plaintiff suffered from (1) “severe premature coronary
artery disease;” (2) “reduced cardiac function;” and (3) “symptomatic angina at low
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workload with a treadmill.” AR 34. Dr. Trujillo also indicated that it would be
necessary for Plaintiff to work intermittently or at less than a full schedule. AR 35.
In response to a question about whether Plaintiff’s condition was chronic, Dr.
Trujillo responded that it was a “chronic condition with indefinite incapacitation.”

Id.
By letter dated August 13, 2015, Unum requested additional information
from Dr. Trujillo. AR 59. In response to this request, Dr. Trujillo indicated that
Plaintiff was restricted from working from August 21, 2015 until an unknown date
and that he would re-evaluate Plaintiff’s status on September 15, 2015. AR 69.
On a form completed September 22, 2015, Dr. Trujillo advised Unum that
Plaintiff was “completely off work at this time.” AR 141. On an updated version of
this form completed January 6, 2016, Dr. Trujillo advised Unum that “[Plaintiff]
should remain off the job as we are still stabilizing his condition.” AR 267.
Unum initially approved Plaintiff’s benefits claim through September 20,
2015 but ultimately extended Plaintiff’s benefits through December 23, 2015. AR
94, 226, 238 & 246. By letter dated January 12, 2016, Unum notified Plaintiff that
it would not be extending Plaintiff’s benefits beyond December 23, 2015. AR 27980. By way of explanation, Unum noted that it initially approved three weeks of
benefits based on Plaintiff’s stent placement and later approved an additional six
weeks of benefits based on Plaintiff’s arm surgery. AR 279. Unum then cited
Plaintiff’s December 23, 2015 appointment with Dr. Trujillo and stated that “[t]he
medical records provided fail to illustrate specific medical findings to support
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ongoing restrictions that would prevent you from performing the material and
substantial duties of your regular sedentary occupation on a full time basis.” AR
279-80.
In April of 2016, Plaintiff appealed Unum’s decision not to extend his benefits
beyond December 23, 2015. In support of his appeal, Plaintiff provided details
about his health to a Unum representative (AR 359), and Bradley Fanestil, M.D.,
Plaintiff’s primary care physician, provided records from Plaintiff’s office visits on
April 14 and April 27, 2016 (AR 387-89, 382-83). There is no evidence that Plaintiff
sought any medical treatment from December 23, 2015 until he was seen by Dr.
Fanestil in April of 2016.
In the notes from Plaintiff’s office visit on April 14, 2016, Dr. Fanestil opined
that Plaintiff’s cardiovascular disease was disabling and that it was not healthy for
Plaintiff to keep working in light of his ongoing problems and “recurrent multiple
interventions” in the preceding year. AR 389. Dr. Fanestil noted that Plaintiff was
playing racquetball for 2.5 hours twice a week and working out two other times
each week. AR 387. Dr. Fanestil also assessed Plaintiff with fatigue that was likely
the result of depression and prescribed bupropion. Id. Dr. Fanestil told Plaintiff to
discontinue taking the bupropion at his April 27, 2016 visit based on concerns that
he was having a negative reaction the drug. AR 381-82. At that time, Plaintiff’s
EKG was normal. AR 382.
Susan Grover, a certified rehabilitation registered nurse with a bachelor of
science degree in nursing, reviewed Plaintiff’s file on behalf of Unum. AR 395-400.
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Ms. Gorver concluded (1) that Plaintiff’s cardiac condition left him “capable of
mainly seated work activity as of 12/23/15, as long as [Plaintiff] does no lifting
[greater than] 10 pounds occasionally and only occasional standing/walking;” (2)
that “there is no evidence of any significant symptoms related to stress and no
support that the insured would not be able to deal with normal workplace stress or
normal life stressors;” and (3) that Plaintiff’s recovery from the surgical procedure
on his left arm would usually not exceed 6 weeks and there was no medical data in
the file supporting lifting restrictions beyond January 1, 2016 or further office visits
to the surgeon. AR 399-400. Ms. Grover also noted that Plaintiff would have
needed 2-3 days to return to normal functional capacity after he stopped taking
bupropion due to side effects and that “[t]here is no further documentation of any
side effects related to any of his medications.” AR 400.
Richard Byard, a vocational consultant, also reviewed Plaintiff’s file on behalf
of Unum. AR 402-05. Mr. Byard revised the classification of Plaintiff’s occupation
from systems project manager to cloud solution manager based on further review of
the available occupational information. AR 403. Mr. Byard determined that
Plaintiff’s occupation required a “sedentary” level of physical exertion with
“frequent sitting, occasional standing, occasional walking, and the occasional
lifting/exertion of force of up to 10 pounds,” as well as “frequent keyboarding [and]
occasional reaching, handling, and fingering.” AR 403-4. Mr. Byard further
determined that Plaintiff’s nationwide business travel was a job specific
requirement that was “not necessarily representative of the manner in which the
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overall occupation is performed throughout the national economy” though it would
be reasonable to expect an occasional level of local business related travel in
Plaintiff’s occupation and that Plaintiff would typically be required to work in
excess of 40 hours a week. AR 404. Mr. Byard ultimately concluded that the
physical demands of Plaintiff’s occupation did not exceed his work capacity. Id.
By letter dated May 20, 2016, Unum advised Plaintiff that it had determined
that its initial decision not to extend disability benefits beyond December 23, 2015
was correct. AR 410-17. By letter dated July 1, 2016, Unum further advised
Plaintiff that any additional information he wished to have considered had to be
submitted by August 20, 2016 and that any such information would be reviewed o
determine if an additional appeal would be permitted. AR 445. Plaintiff’s counsel
requested an additional 60 days to provide additional information but this request
was denied. AR 477 & 479. Unum also advised Plaintiff’s counsel that the
governing disability policy did not provide for a second appeal. AR 462 & 479.
Plaintiff’s counsel submitted additional information to Unum on August 18,
2016 including medical records from Dr. Trujillo and Dr. Fanestil. AR 486-513.
Plaintiff also provided letters from both Dr. Trujillo and Dr. Fanestil. In his letter,
Dr. Trujillo opined that Plaintiff “remains at significant risk for future cardiac
events;” will “likely ... succumb to coronary artery disease;” and “is unable to
continue in his previous career.” AR 842-43. With respect to Unum’s decision on
Plaintiff’s benefits claim, Dr. Trujillo commented that it did not account for the
emotional/occupational stress of Plaintiff’s job which could precipitate coronary
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artery disease; that Plaintiff could experience angina with minimal exertion or
emotional stress; and that Plaintiff has significant intolerance to medical therapy
and needs more aggressive treatment for his depression/PTSD. AR 843. Dr.
Trujillo also recommended that Plaintiff be seen by Jeff Boone who Dr. Trujillo
described as “excellent at defining how emotional/job stress can affect
cardiovascular status.” Id. In Dr. Trujillo’s opinion, “this component of [Plaintiff’s]
disability is the most difficult to quantify” but was determinative of his disability
claims. Id. Plaintiff asserts that he did not have time to obtain a report from Dr.
Boone within the time allotted for his submission of additional materials to Unum.
AR 498 n. 63.
In his letter, Dr. Fanestil reported that, in addition to Plaintiff’s coronary
artery disease, Plaintiff had been suffering for 2 years from symptoms of anxiety
and depression and from sympathetic and autonomic nervous system issues that
had not been resolved through typical treatment as of August 10, 2016. AR 881.
Dr. Fanestil also stated his opinion that as of August 21, 2015, Plaintiff was no
longer capable of working as vice president of Westcon and that it was very unlikely
that Plaintiff would ever regain the ability to be employed in such a position. Id.
Unum again had Mr. Byard review the requirements of Plaintiff’s job with
Westcon. AR 890-93. Based on his review of additional information, Mr. Byard
found that Plaintiff’s job demands were most consistent with those of the
occupational titles of a vice president - product development and vice president marketing, combined. AR 891. After listing the material and substantial duties of
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these occupations, Mr. Byard concluded that the physical demands of Plaintiff’s
occupation were the same as those he previously identified. AR 891-2; 403-4.
Unum also had Ms. Grover review Plaintiff’s file again. AR 894-99. Ms.
Grover concluded that “it is unclear if [Plaintiff] would be capable of sustained
‘sedentary’ activities, as defined by [Byard’s second] vocational review ...” AR 898.
Ms. Grover referred the case for physician review. AR 898.
Plaintiff’s file was then sent to Christopher Bartlett, M.D., a board-certified
doctor in family medicine, for review. AR 908. Dr. Bartlett was specifically asked
two questions. First, Dr. Bartlett was asked “[d]oes the available file
documentation validate/support restrictions ... on function or limitations ... on
function beyond 12/23/15...?” AR 906. Dr. Bartlett responded no to this question
and explained that “[f]rom a whole person standpoint, the available information
does not support that [Plaintiff] lacks the functional capacity for predictable and
sustained full-time sedentary activities as defined by [Byard’s second] vocational
review.” Id. Dr. Bartlett based this response on Plaintiff’s reported physical
activities, his normal physical and mental status examinations, the absence of any
behavioral health treatment, his normal EKG showing normal ejection fraction, and
his ability to generate 11 METS on a Graded Exercise Test indicating medium work
level capacity. Id.
Second, Dr. Bartlett was asked “is there any evidence or medical signs of side
effects resulting from the use of prescription medications ...?” Id. Dr. Bartlett
responded that there was no evidence that Plaintiff had any side effects rising to
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the level of impairment and that Plaintiff was able to perform activities well beyond
sedentary levels while on his prescription medications. AR 906-7.
By letter dated September 30, 2016, Unum notified Plaintiff’s attorney that it
had completed an additional appellate review of Plaintiff’s claim for disability
benefits and that the additional information submitted did not change its prior
denial of additional benefits. AR 911-14.
II. Standard of Review
Where, as here, an ERISA benefits plan grants an administrator
discretionary authority to determine eligibility for benefits, a deferential standard
of review is applied, asking only whether the benefits decision was arbitrary and
capricious. LaAsmar v. Phelps Dodge Corp. Life, Accidental Death &

Dismemberment & Dependent Life Ins. Plan, 605 F.3d 789, 796 (10th Cir. 2010).
Under the arbitrary and capricious standard, “review is limited to determining
whether the interpretation of the plan was reasonable and made in good faith.” Id.
(citation omitted). A benefits decision need not be the only logical one nor even the
best one to be upheld under this standard so long as it falls somewhere on a
continuum of reasonableness - even if on the low end. Kimber v. Thiokol, 196 F.3d
1092, 1098 (10th Cir. 1999). A benefits decision may be arbitrary and capricious
based on a lack of substantial evidence, i.e. such evidence that a reasonable mind
might accept as adequate to support the decision. Rekstad v. U.S. Bancorp, 451
F.3d 1114, 1119-20 (10th Cir. 2006).
An inherent conflict of interest arises when the entity that determines
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eligibility for benefits is the same entity that pays the benefits. Metropolitan Life

Ins. Co. V. Glenn, 554 U.S. 105, 111-115 (2008). When such a conflict of interest
exists as it does here, the benefits decision is still subject to the arbitrary and
capricious standard of review but the conflict is weighed as a factor in determining
whether there is an abuse of discretion. Id. at 115-116.
III. Analysis
A. Unum’s Analysis of Plaintiff’s Medical Condition
Plaintiff first argues that Unum’s initial denial of benefits was premised on a
mis-characterization of his medical condition. Specifically, Plaintiff asserts that
Unum initially evaluated his claim for disability benefits as though it was premised
solely on his August 31, 2015 PCI and his October 30, 2015 arm surgery rather than
on his severe chronic coronary artery disease. I disagree.
While Unum’s initial denial letter dated August 13, 2016 does specifically
refer to Plaintiff’s PCI and arm surgery, it also notes that Dr. Trujillo advised
Plaintiff to stop working in August of 2015 due to coronary artery disease. AR 279.
In addition, it is abundantly clear that Unum considered Plaintiff’s history of
coronary artery disease from the notes relating to both his first and second appeals,

see AR 399; 895-98 & 906-8, as well as the correspondence from Unum denying
these appeals, see AR 412-15 & 911-13. Under these circumstances, Unum’s
characterization of Plaintiff’s medical condition throughout the claims process was
not arbitrary and capricious.
Plaintiff next argues that Unum limited its review of Plaintiff’s medical
14

records so that it could be willfully ignorant of the full extent of his condition.
However, it is undisputed that Plaintiff’s attorney provided Unum with medical
records dating back 10 years in connection with Plaintiff’s second appeal, and
Unum’s overall review was therefore not as limited as Plaintiff suggests. There is
also no evidence to suggest that Plaintiff or his treating physicians were precluded
from providing additional records to Unum at any other time while Plaintiff’s claim
for long term disability benefits was under consideration.
Plaintiff also argues that Unum ignored the stress inherent in his demanding
occupation and his doctors’ opinions about his ability to cope with such stress. Ms.
Grover, however, addressed the stress component of Plaintiff’s occupation in her
review of Plaintiff’s claim on appeal but found “no evidence of any significant
symptoms related to stress and no support that the insured would not be able to
deal with normal workplace stress or normal life stressors.” AR 399-400. Dr.
Bartlett also took Plaintiff’s ability to handle stress into account but concluded that
the lack of any prescribed behavioral health treatment was inconsistent with any
behavioral health conditions “including intolerance of stress.” AR 906-7.
The fact that Plaintiff received largely no treatment for his alleged
depression and anxiety also undermines Dr. Fanestil’s opinions that Plaintiff
suffered from these conditions as a result of chronic long term stress and that they
would make it very difficult for Plaintiff to continue in his occupation. AR 881.
Finally, although Dr. Trujillo faulted Unum for failing to account for the stress of
Plaintiff’s job which he “imagine[d] is quite high,” he acknowledged that the effects
15

of Plaintiff’s job related stress on his cardiovascular health was difficult to quantify
and, for that reason, referred him elsewhere for analysis of this issue. AR 843.
Under these circumstances, I conclude that Unum’s consideration of Plaintiff’s job
related stress did not render its denial of his disability benefits claim arbitrary and
capricious.
Plaintiff next faults Unum for citing Plaintiff’s level of exercise and normal
test results as evidence that supports its denial of his request for long term
disability benefits. While not dispositive of whether Plaintiff was disabled within
the meaning of the policy, these facts are relevant to Plaintiff’s claim, and Unum’s
reliance on them, along with all other evidence in the file, does not render its
adverse benefit determination arbitrary and capricious.
Finally, Plaintiff challenges the appellate review of his benefits claim by Ms.
Grover and Dr. Bartlett. First, Plaintiff argues that there is no evidence in the
record that either Dr. Bartlett or Ms. Grover has “any relevant training or
experience in treating advanced cardiac disease or, for that matter, in treating
mental health conditions secondary to that condition.” The same can also be said of
Dr. Fanestil, who is board certified in internal medicine (AR 881), and of Dr.
Trujillo with respect to Plaintiff’s mental health conditions yet Plaintiff offers no
other medical opinions to support his argument that Unum erred in its benefits
decision.
Moreover, to show that Unum erred in failing to have his file reviewed by
more specialized medical personnel, Plaintiff cites 29 C.F.R. 2560.503-1(h)(3)(iii)
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which provides that
... in deciding an appeal of any adverse benefit determination that is
based in whole or in part on a medical judgment ... the appropriate

named fiduciary shall consult with a health care professional who has
appropriate training and experience in the field of medicine involved in
the medical judgment. (Emphasis added).

In initially denying Plaintiff’s claim for disability benefits beyond December 23,
2105, Unum reviewed the Plaintiff’s records and concluded that they “fail[ed] to
provide specific medical findings to support ongoing restrictions that would prevent
[Plaintiff] from performing the material and substantial duties of [his] regular
sedentary occupation on a full time basis.” AR 280. Thus, Unum did not a make a
medical judgment as to whether Plaintiff suffered from coronary artery disease or
the other cardiac conditions identified by Dr. Trujillo but rather determined that
Plaintiff’s medical records failed to establish that Plaintiff was incapable of
performing his job despite these conditions. In this regard, it is notable that Dr.
Trujillo never opined that Plaintiff was permanently disabled from performing his
job prior to Unum’s initial adverse benefit determination. Instead, Dr. Trujillo
indicated that he was monitoring Plaintiff’s ability to work on an ongoing basis.

See AR 33, 36, 69, 110 & 267. Under these circumstances, Unum’s reliance on the
opinions of Ms. Grover and Dr. Bartlett did not render its denial of Plaintiff’s
benefits claim arbitrary and capricious.
Plaintiff additionally argues that it was a procedural irregularity to have Ms.
Grover twice review Plaintiff’s file. Assuming that Plaintiff was entitled to a second
appeal, the fact that Unum also had Dr. Bartlett review Plaintiff’s file in connection
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with this appeal cures any irregularity resulting from Ms. Grover’s second review
since there is no dispute that Dr. Bartlett’s opinions supported Unum’s denial of
Plaintiff’s claim for disability benefits.
In sum then, there is no basis to conclude that Unum’s analysis of Plaintiff’s
medical condition rendered its adverse decision on Plaintiff’s benefits claim
arbitrary and capricious.
B. Unum’s Analysis of Plaintiff’s Occupation
Plaintiff argues that Unum consistently mis-characterized his occupation and
that this mis-characterization contributed to the denial of his claim for ongoing
disability benefits. I disagree.
It is undisputed that Unum labeled Plaintiff’s occupation differently
throughout the various stages of the claims process. Plaintiff argues that this fact
demonstrates that Unum mishandled his claim but it is also indicative of good faith
on Unum’s part that it continued to revise the classification of Plaintiff’s occupation
as it received additional information. In any event, the only specific job duties that
Plaintiff argues Unum failed to account for in its analysis of his occupation are its
travel requirements and the stress associated with it.
The Plan provides that a participant is disabled when the participant is
limited from performing the material and substantial duties of his regular
occupation “ as it is normally performed in the national economy, instead of how the
work tasks are performed for a specific employer or at a specific location.” AR 347.
Any procedures set forth in Unum’s claims manual are subject to this Plan
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provision. See e.g. AR 644 (“Each claim is unique and must be evaluated on its own
merits. The actual policy governing the claim must be referenced.”).
In his analysis of the duties of both a cloud solution manager and a vice
president-product development/vice president-marketing, Mr. Bayard acknowledged
Plaintiff’s representation of his job’s travel demands but concluded that these
demands were specific to Plaintiff’s employment with Westcon and not necessarily
representative of how these occupations are performed in the national economy. AR
404 & 892. While Plaintiff argues that Mr. Byard analyzed occupations different
from his actual occupation, Mr. Byard reasonably identified the combined vice
president position to be most consistent with Plaintiff’s occupation after reviewing
all the information in the file including the affidavit from Plaintiff’s supervisor (AR
891), and Plaintiff has failed to identify any other differences between his vice
president position at Westcon and the combined vice president position identified by
Mr. Byard. Unum therefore did not act unreasonably in determining that Plaintiff
was still able to work at his occupation despite an alleged inability to meet the
specific travel demands of his job with Westcon.
With regards to stress, Unum adequately considered this component of
Plaintiff’s occupation in its analysis of Plaintiff’s medical condition as discussed
above and reasonably determined that there was a lack of medical evidence
demonstrating that Plaintiff was incapable of tolerating stress. Thus, Unum did
not fail to account for the stress of Plaintiff’s occupation even if certain individuals
who reviewed Plaintiff’s file from a vocational perspective did not specifically
19

consider this factor. There is therefore no basis to conclude that Unum’s analysis
of Plaintiff’s occupation rendered its adverse decision on Plaintiff’s claim arbitrary
and capricious.
C. Unum’s Consideration of the Opinions of Plaintiff’s Treating Physicians
Plaintiff’s argues that Unum impermissibly elevated the opinions of its
reviewers over those of Plaintiff’s treating physicians. This argument is easily
dismissed. First, as Unum points out there is no requirement under ERISA that
special deference be given to the opinions of treating physicians. Black & Decker

Disability Plan v. Nord, 538 U.S. 822, 834 (2003). As noted by the Supreme Court,
“...if a consultant engaged by a plan may have an “incentive” to make a finding of
“not disabled,” so a treating physician, in a close case, may favor a finding of
“disabled.” Id. at 832. This is particularly true here where Plaintiff’s primary
treating physician, Dr. Trujillo, provided a much stronger statement regarding
Plaintiff’s claimed disability in conjunction with Plaintiff’s second appeal than he
had at any time prior.
Although Plaintiff argues that a plan administrator may engage in arbitrary
and capricious behavior by giving greater weight to a non-treating physician’s
opinion over that of a treating physician “for no apparent reason,” Goetz v. Greater

Georgia Life Ins. Co., 649 F. Supp. 2d 802, 813 (E.D. Tenn 2009), Unum had good
reason to discount the opinions of Plaintiff’s treating physicians that Plaintiff was
permanently disabled. Among other things, Plaintiff’s treating physicians did little
to treat Plaintiff’s alleged depression and anxiety. In fact, Dr. Trujillo did not
20

report that Plaintiff suffered from these conditions in contemporaneous medical
reports he prepared after seeing Plaintiff.
Curiously, Plaintiff also argues that Unum impermissibly ignored the opinion
of its reviewer Ms. Grover that “it is unclear if [Plaintiff] would be capable of
sustained “sedentary” activities, as defined by [Byard’s second] review.” AR 898.
Plaintiff ignores the fact, however, that Ms. Grover referred the file to Dr. Bartlett
“for further analysis and comments regarding [Plaintiff’s] function and supported
[restrictions and limitations].” AR 898. After conducting his review, Dr. Bartlett
concluded that the information in Plaintiff’s file did not show that Plaintiff lacked
“the functional capacity for predictable and sustained full-time sedentary activities
as defined by [Byard’s second] vocational review.” AR 906. Dr. Bartlett’s opinions
therefore served to clarify any uncertainty expressed by Ms. Grover, and Unum did
not act arbitrarily and capriciously in relying on Dr. Bartlett’ opinion on this issue.
IV. Conclusion
For the reasons set forth above, IT IS HEREBY ORDERED that
1. The Parties’ Motion for Joint Determination [Doc # 43] is GRANTED;
2. A review of the evidence and arguments presented by both parties shows
that Unum’s denial of Plaintiff’s claim for ongoing disability benefits was not
arbitrary and capricious; and

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3. Judgment is entered in favor of Defendants, and this case is DISMISSED
WITH PREJUDICE.

Dated: October

19 , 2017.
BY THE COURT:
s/Lewis T. Babcock
Lewis T. Babcock, Judge

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