Miller v. Liberty Life Assurance Company of Boston

Filing 40

ORDER granting in part and denying in part 27 Plaintiff's Motion for Summary Judgment; denying 30 Defendants' Motion for Summary Judgment. Signed by Chief Judge K. Michael Moore on 10/2/2017. (bvr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 1:16-cv-25142-KMM
Wendy Miller,
Plaintiff,
v.
The PNC Financial Services Group, Inc.,
The PNC Financial Services Group, Inc.
and Affiliates Long Term Disability Plan,
an ERISA Benefit Plan
Defendants.
/
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court upon Plaintiff’s Motion for Summary Judgment
(“Plaintiff’s Motion”) (ECF No. 27) and Defendants’ Motion for Summary Judgment
(“Defendants’ Motion”) (ECF No. 30). The motions are now ripe for review.1 The Court, having
considered the parties’ submissions, the administrative record and relevant case law, and being
fully advised in the premises, grants Plaintiff’s Motion for Summary Judgment and denies
Defendants’ Motion for Summary Judgment.

1

In response to Plaintiff’s Motion, The PNC Financial Services Group, Inc., The PNC Financial
Services Group, Inc. and Affiliates Long Term Disability Plan (collectively, “Defendants”) filed
a Response in Opposition (“Defs.’ Opp.”) (ECF No. 32) and Responses to Plaintiff’s Statement
of Undisputed Facts (“Defs.’ Opp. 56.1”) (ECF No. 33). Plaintiff filed a Reply in Support (“Pl.’s
Reply”) (ECF No. 46).
In support of their Motion, Defendants separately filed a Statement of Undisputed Facts (“Defs.’
56.1”) (ECF No. 31). In response to Defendants’ Motion, Plaintiff Wendy Miller filed a
Response in Opposition (“Pl.’s Opp.”) (ECF No. 34) and Responses to Defendants’ Statement of
Undisputed Facts (“Pl.’s Opp. 56.1”). Defendants filed a Reply in Support (“Defs.’ Reply”)
(ECF No. 37).

1

I.

BACKGROUND2
This action seeks reversal of Liberty Life Assurance Company’s decision, as the Claims

Administrator for an employee welfare benefit plan, pursuant to the Employee Retirement
Income Security Act of 1974 (“ERISA”), § 502 (a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), to
terminate the long-term disability (“LTD”) benefits of Wendy Miller (“Plaintiff”).
A.

The Plaintiff and the Plan

Plaintiff worked as a Branch Manager II at The PNC Financial Services Group, Inc.
(“PNC”). See Pl.’s 56.1 ¶¶ 1, 5; Defs.’ 56.1 ¶ 1; see also Defs.’ Opp. 56.1 ¶ 5. By virtue of her
employment at PNC, Plaintiff participated in an employee welfare benefit plan known as The
PNC Financial Services Group, Inc. and Affiliates Long Term Disability Plan (the “Plan”). Pl.’s
56.1 ¶¶ 1–2; Defs.’ 56.1 ¶ 1–2. The Plan is governed the ERISA. Defs.’ 56.1 ¶ 2. The terms of
the Plan are written in a Summary Plan Description booklet (“SPD”), which serves as both the
plan document and summary plan description for the Plan. Pl.’s 56.1 ¶ 2.
The Plan provides full-time, salaried employees, who are out of work for longer than
ninety-one (91) days (the “Elimination Period”) with LTD benefits of up to 60% of their base
salary. Defs.’ 56.1 ¶ 2. The Plan allows employees to purchase an additional 10% of LTD
coverage for a total benefit of 70%. Id. Plaintiff participated in the Plan at the 70% level. Id.

2

The Court has determined the facts, which are undisputed unless otherwise noted, based on the
parties’ submissions, including the administrative record. Under Local Rule 56, “[a]ll material
facts set forth in the movant’s statement” of material facts “will be deemed admitted unless
controverted by the opposing party’s statement, provided that the Court finds that the movant’s
statement is supported by evidence in the record.” L.R. 56.1(b).

2

The SPD explains that the “claims administrator determines whether [a participant’s]
disability meets” the definition of an LTD. Pl.’s 56.1 ¶ 3; Defs.’ 56.1 ¶ 6. The SPD also provides
the following definition for an LTD:
For disabilities that extend beyond 91 consecutive calendar days
and are considered long term, the definition of disability is as
follows:
For the first 24 months [from the date LTD benefits begin]:
you are disabled if your disability makes you unable to
perform the material or essential duties of your own
occupation as it is normally performed in the national
economy.
After you have been disabled for 24 months: you are
disabled if your disability makes you unable to perform the
material duties of any occupation for which you are or can
become qualified to perform by education, training or
experience.
Pl.’s 56.1 ¶ 3; Defs.’ 56.1 ¶ 6. The SPD also provides that “[a]s a condition of receiving benefits
under the Plan, any person may be required to submit whatever proof the Plan Administrator
may require (either directly to the Plan Administrator or to any person delegated by it).” Defs.’
56.1 ¶ 7. The Plan is “fully self-funded” and the benefits are paid out of a trust, the funds of
which “must be used at all times for the exclusive benefit of Participants or Beneficiaries” of the
Plan. Defs.’ 56.1 ¶ 3.3
The SPD lists PNC as the Plan Sponsor and Plan Administrator and lists Liberty Life
Assurance Company (“Liberty”) as the Claims Administrator. Defs.’ 56.1 ¶ 4. As Plan
Administrator, PNC was authorized to delegate its responsibility under the Plan. Defs.’ 56.1 ¶ 5;

3

Plaintiff does not contest this fact but notes that she is unable to verify this information because
Defendants have exclusive control over the evidence that could verify these statements. Pl.’s
Opp. 56.1 ¶ 3. Because the fact is uncontroverted, the Court deems it as true. See L.R. 56.1(b).

3

see also AR 2679–2681.4 PNC and Liberty entered into an Administrative Services Only
Agreement (“ASA”), in which Liberty was vested with some authority to construe and interpret
the terms of the Plan and to evaluate and decide questions of eligibility and/or entitlement to
LTD benefits under the Plan. Id.
The SPD contains a clause providing that decisions made by the Plan may only be
overturned by a court if the decision is found to have been arbitrary and capricious. Id. The ASA
similarly provides that Liberty is deemed to have properly exercised its authority, unless it has
abused its authority by acting arbitrarily and capriciously. Id.
B.

The Claim and the Review

Plaintiff suffers from a degenerative disc disease causing chronic back pain that radiates
into her hips and legs (known as radiculopathy). Pl.’s 56.1 ¶ 6. Since 2009, Plaintiff has
undergone five surgical procedures in an attempt to alleviate her chronic pain and radiculopathy.
Pl.’s 56.1 ¶¶ 7–12. In April 2015, Plaintiff underwent the last of these surgical procedures, in
which she had a neurostimulator implanted. Id. ¶ 11. After this implant, Plaintiff was unable to
return to work and filed a claim for LTD benefits. Id. ¶ 13.
By letter dated August 5, 2015, Liberty informed Plaintiff that it had determined that she
was eligible to receive LTD benefits, but that her claim would be reviewed periodically and that
“approval at this time does not guarantee payments through the maximum benefits duration.”
Defs.’ 56.1 ¶ 9; Pl.’s 56.1 ¶ 14.
Months later, Liberty reviewed Plaintiff’s continuing eligibility. Pl.’s 56.1 ¶ 16. In the
course of its review, Liberty’s vocational consultant, Patricia Thal, completed an occupational
analysis, which determined that Plaintiff’s occupation as Bank Manager could be completed both
4

All references to the Administrative Record appear in this Order as “AR __.”

4

at a sedentary and at a light level. Pl.’s 56.1 ¶ 16. Thal also found that there were employment
opportunities in the national economy existing at both levels. Defs.’ 56.1 ¶ 14.
While investigating Plaintiff’s claim, Liberty also consulted with an independent
physician Board Certified in Physical Medicine & Rehabilitation, Dr. Negin Gohari, who
reviewed the medical evidence in Plaintiff’s file. Defs.’ 56.1 ¶ 10. Dr. Gohari found in his
December 12, 2015 report (“Gohari’s Initial Report”) that Plaintiff’s “[d]iagnosis of postlaminectomy syndrome, status post spinal cord stimulator is supported by the medical evidence
in this file.” Id. Dr. Gohari concluded that Plaintiff had full-time capacity to work at a sedentary
level and found, inter alia, that Plaintiff “can sit up to a half-hour at one time up to three hours
per 8 hour day.” Id. ¶ 11; Pl.’s 56.1 ¶ 18.
Upon receipt of Dr. Gohari’s report, Liberty’s LTD Disability Case Manager sent an email to Dr. Gohari, informing him that “[p]er vocational guidelines, sedentary would mean she is
sitting most if not all of the day,” and requesting a clarification from him because Dr. Gohari
indicated that Plaintiff could work at a “sedentary level” but that Plaintiff “can sit up to a halfhour at one time up to three hours per 8 hour day.” Defs.’ 56.1 ¶ 11–12; Pl.’s 56.1 ¶ 19; AR
2351.
Dr. Gohari amended his report on January 5, 2016 (“Gohari’s Amended Report”) to set
forth revised restrictions. Defs.’ 56.1 ¶ 13. Dr. Gohari’s Amended Report indicated that Plaintiff
“can sit for two hours at a time for a total of 7 hours per 8-hour day.” Defs.’ 56.1 ¶ 13.
In the course of its review, Liberty also requested that Plaintiff’s physical therapist, Brian
Schuman, fill out a form indicating Plaintiff’s restrictions. Pl.’s 56.1 ¶ 16. On November 5, 2015,
Schuman filled out this form (the “Restrictions Form”) and indicated that Plaintiff had a “class
5” impairment with severe limitations of functional capacity. Defs.’ Opp. 56.1 ¶ 17. Schuman

5

also checked a box indicating that she is capable of performing “sedentary” work. Pl.’s 56.1 ¶ 17.
This form contains instructions to “check one that indicates what your patient is capable of
performing,” and contains four other potential check-boxes—all of which entail greater forms of
exertion than “sedentary.” See AR 2397 (For example, “sedentary” involves “lifting/carrying up
to 10 pounds occasionally,” whereas “light” involves “lifting/carrying up to 20 pounds
occasionally”).
C.

The Termination and the Administrative Appeal

By letter dated January 12, 2016, Liberty terminated Plaintiff’s benefits. Pl.’s 56.1 ¶ 21;
Defs.’ 56.1 ¶ 15. The letter stated, in part: “Based on the medical information in relation to your
occupation requirements, the consulting physician’s findings and the occupational analysis, you
no longer meet your Plan’s definition of disability, and we must close your claim. Benefits will
be paid through January 12, 2016 and your claim will be closed.” Defs.’ 56.1 ¶ 17. In the letter,
Liberty noted (a) the applicable definition of LTD, (b) medical documentation on file from Dr.
Daniel Laich (Neurosurgery), Physical Therapist Brian Schuman, and Dr. Joel See (Physiatry
and Pain Management), (c) Thal’s occupational analysis, and (d) Gohari’s Amended Report.
Defs.’ 56.1 ¶ 16; Pl.’s 56.1 ¶ 22. The letter made no mention of the restrictions set forth in Dr.
Gohari’s Initial Report. Pl.’s 56.1 ¶ 22. The termination letter also cited Schuman’s Restrictions
Form for the proposition that Schuman “note[d] [Plaintiff’s] ability to perform at a sedentary
level,” but omitted any reference of Schuman’s stated restrictions or limitations, or his opinion
that she is severely functionally impaired. Id. ¶ 23.

6

By letter dated June 29, 2016, Plaintiff informed Liberty that she had recently retained
counsel and requested an extension of 60 days to submit an appeal. Pl.’s 56.1 ¶ 24.5 After
conferring with PNC, Liberty denied the requested extension by letter dated July 7, 2016—the
day before her appeal due date. Pl.’s 56.1 ¶¶ 25–27.
Plaintiff submitted an appeal on July 8, 2016 and requested that Liberty toll its review
while Plaintiff gathered additional pertinent medical information. Pl.’s 56.1 ¶ 28. By letter dated
August 9, 2016, Liberty stated it would proceed with its review based on the information on file,
but that if additional information is received prior to its determination, such information will be
considered in the evaluation of the claim. Pl.’s 56.1 ¶ 30; Defs.’ Opp. 56.1 ¶ 30; AR 2049. By
letter dated August 29, 2016, Liberty notified Plaintiff that she would have until September 8,
2016 to submit information supporting her appeal. Pl.’s 56.1 ¶ 32.
1.

Plaintiff’s Post-Termination Treatments6 and Submissions

On January 12, 2016—the date of Liberty’ termination letter—Plaintiff had an office visit
with her treating physician, Dr. Joel See. Dr. See’s notes from this visit indicated that Plaintiff
“reports better back pain control and less radiating symptoms on the Nucynta, although she
reports a new symptom of headaches” and that Plaintiff “tolerated the Cymbalta as well.” Defs.’
56.1 ¶ 22. His plan for Plaintiff involved lowering the dose of Nucynta and trying to reduce the
opioid medication she was taking, with further injections only if more severe or radiating
symptoms would occur. Id.
5

The Plan provides that “[i]f your claim for benefits under the Plan is denied, you or your
representative may appeal the adverse benefit determination by submitting a request for review
in writing to the claims administrator within 180 days after your receipt of the written or
electronic notice of denial.” Defs.’ 56.1 ¶ 18.
6

The following do not reflect an exhaustive list of Plaintiff’s medical treatments, but merely the
events noted by the Parties in their respective statements of undisputed facts.

7

On July 7, 2016, Plaintiff underwent a medical examination from her treating physician,
Dr. Joel See. Defs.’ 56.1 ¶ 20–21. Dr. See’s office visit notes for that date indicate that Plaintiff
“has some disability paperwork from her disability attorney that she would like filled out.” Id.
The notes further indicate that they “went over the disability paperwork together, it seems that
she has very limited time with standing . . . [s]he also gets some sedation from some stronger
pain medications and muscle relaxers.” Id. ¶ 20. According to his note, Dr. See found “no new
weakness or difficulty with fine tasks . . . no slurred speech . . . no in-coordination or shuffling
gait.” Id. ¶ 21. Dr. See’s note also indicates that she will be dosed with oxycontin and Percocet
and will “try some long acting oxycodone” and “continue with the Cymbalta.” See AR 0090.
Between March 16, 2016 and September 16, 2016, Plaintiff submitted the following to
Liberty: a letter from her trigger point specialist, Mary Biancalana, Defs.’ 56.1 ¶ 28; a
questionnaire completed by Brian Schuman (“Schuman’s Physician’s Questionnaire”), Pl.’s 56.1
¶ 31; a set of additional medical records, id. ¶ 33; two reports completed by Dr. Stuart Rubin, id.
¶¶ 34, 36; and physical therapy records, id. ¶ 35.7
By letter dated March 16, 2016, Plaintiff’s trigger point therapist, Mary Biancalana,
stated that it was “not clear” that this therapy was helpful for Plaintiff “as her pain was constant
and pervasive.” AR 447. Biancalana “generalized” that Plaintiff “was completely impaired by

7

In all, Plaintiff submitted: medical records from her orthopedic surgeon’s practice, Swedish
Covenant Medical Group [AR 53–76, 2063–2156]; medical records from her pain management
specialist, Dr. Joel See [AR 77–117, 2451–2459]; physical therapy records from her physical
therapist, Brian Schuman [AR 449–803]; medical records from her internist, Dr. Steven Cataldo
[AR 378–413]; medical records from her general practitioner at Meridian Medical Associates
[AR 118–377]; a prescription history report [AR 2270]; statements from two of her former coworkers regarding her performance over time [AR 2157–2161]; a questionnaire from her
physical therapist, Brian Schuman [AR 2157–2161], and a peer review report and addendum
completed by Dr. Stuart Rubin [AR 805–814]. See Pl.’s 56.1 ¶ 37.

8

her pain and her past surgical procedures.” Id. Plaintiff received trigger point therapy in July and
August of 2015. Defs.’ 56.1 ¶ 28.
Plaintiff submitted Schuman’s Physician’s Questionnaire by letter dated August 24, 2016.
Defs.’ 56.1 ¶¶ 25–26; Pl.’s Opp. 56.1 ¶ 25. There is no record showing that Schuman treated or
examined Plaintiff after December 28, 2015. Defs.’ 56.1 ¶¶ 26, 29.8 Records from Plaintiff’s
December 28, 2015 physical therapy session indicate that Plaintiff was “[s]tarting to notice
improvement,” had a pain level of 4 out of 10, and was “[p]rogressing fair towards initial goals”
of limiting pain, increasing range of motion, and increasing strength. Defs.’ 56.1 ¶ 27.
Schuman’s plan for Plaintiff was to “[f]ocus on limiting soft tissue and MFR [myofascial
release], Progress HEP [home exercise program] to prepare for DC [discharge/discontinuance].”
Id.
Plaintiff submitted Dr. Rubin’s peer review reports on September 9, 2016 (“Rubin’s
Initial Report”) and on September 16, 2016 (“Rubin’s Addendum Report”). See Pl.’s 56.1 ¶¶ 34,
36. Rubin did not examine Plaintiff, but reviewed her medical records. Defs.’ 56.1 ¶ 29.
2.

Liberty’s Appellate Analysis and Conclusions

Upon receiving the appeal, Liberty consulted with an independent physician, Board
Certified in Physical Medicine and Rehabilitation, Dr. Howard Grattan, who prepared a report
dated August 19, 2016. Defs.’ 56.1 ¶ 23. Dr. Grattan did not physically examine Plaintiff but his
report indicates he reviewed Plaintiff’s medical records. Id.; Pl.’s Opp. 56.1 ¶ 23. Dr. Grattan’s
report also indicates that Dr. See explained to Dr. Grattan that Plaintiff “has been having pain
8

Plaintiff testified that when Liberty terminated Plaintiff’s LTD benefits, PNC also terminated
health insurance, thus Plaintiff was unable to afford to continue seeing Schuman or Dr. Laich.
See Pl.’s Opp. at 2 (citing Miller Aff. (ECF No. 34-1). Defendant has not contested this account,
but contends that it is not relevant. See Defs.’ Reply (ECF No. 37) at 10.

9

with prolonged sitting and standing” and that her “limitations in movement and positioning” are
“related to” Plaintiff’s “subjective reports of pain.” Defs.’ 56.1 ¶ 24. Dr. Grattan’s report also
indicates that Dr. Daniel Laich relayed that Plaintiff had not been seen by Dr. Laich since
October 1, 2015. Id. Dr. Grattan concluded that “given [Miller’s] significant surgical history she
would be functionally impaired, but would have the ability to sustain gainful employment on a
full time basis with restrictions and limitations.” Defs.’ 56.1 ¶ 23.
After the receipt of Rubin’s Initial Report and Schuman’s Physician’s Questionnaire, Dr.
Grattan prepared a supplemental report dated September 21, 2016, in which he concluded that
his earlier assessment regarding Plaintiff’s restrictions and limitations remained unchanged.
Defs.’ 56.1 ¶ 30.
Liberty also consulted with an independent physician Board Certified in Neurology, with
a sub-specialty certificate in Pain Medicine, Dr. David Hoenig, who prepared a report dated
October 10, 2016. Defs.’ 56.1 ¶ 31. According to Dr. Hoenig’s report, Dr. See informed Dr.
Hoenig on October 4, 2016, that Plaintiff “had multiple spine surgeries” and “is unable to do her
job as a banker which required her to sit and stand for long periods of time.” Id. However, Dr.
See also stated that Plaintiff’s “pain control is stable” and that “[h]e does not know if she is able
to work with restrictions and limitations” and “would need to do a functional capacity
evaluation.” Id.; AR 45.
Dr. Hoenig found that the need for restrictions and limitations were supported by
Plaintiff’s surgical history and treatment records. Defs.’ 56.1 ¶ 32. The restrictions and
limitations he found included the following functional abilities to “stand and walk for a
combined total of up to six hours, up to 1 hour at a time, throughout an eight hour day,” to
“occasionally lift and carry 20 pounds and frequently up to 10 pounds,” to “occasionally bend,

10

stoop, kneel, crouch, and crawl,” and to “never climb or work around heights.” Id. Dr. Hoenig
also found that “[t]here are no other restrictions or limitations.” Id. Dr. Hoenig further found that
the “severity and scope of the claimant's reported pain is consistent with the severity and scope
of the claimant's condition and intensity of treatment.” AR 48. The report also noted that Plaintiff
utilized “long-acting opiods,” “spinal cord stimulation,” and was seeing her physician on an
“almost monthly basis.” Id.
By letter dated October 25, 2016, Liberty denied Plaintiff’s appeal. Pl.’s 56.1 ¶ 38; see
also Defs.’ 56.1 ¶ 33. The denial relied on the following documents: Dr. Howard L. Grattan’s
August 19, 2016 and September 21, 2016 reports, Pl.’s 56.1 ¶ 39; Dr. David B. Hoenig’s October
10, 2016 peer review report, id. ¶ 40; and Patricia Thal’s January 8, 2016 occupational analysis,
id. ¶ 41. The letter indicated that Liberty “re-reviewed the information in the file in its entirety”
and concluded that Plaintiff “no longer met the definition of disability and proof of her continued
disability in accordance with the Plan provisions after January 12, 2016 ha[d] not been
provided.” Defs.’ 56.1 ¶ 34.
D.

This Action

Plaintiff originally filed this lawsuit on December 12, 2016. See Compl. (ECF No. 1). In
the Amended Complaint, Plaintiff asserts that the Defendants wrongfully terminated her benefits
under the Plan and seeks past LTD benefits, including prejudgment interest, retroactive to the
day benefits were to have commenced through the maximum benefits period pursuant to 29
U.S.C. § 1132(a)(1)(B). See Am. Compl. (ECF No. 13) ¶ 20. Plaintiff also seeks attorneys’ fees
and costs. Id. ¶ 23.

11

II.

LEGAL STANDARD
Although this matter is before the Court on cross-motions for summary judgment, in an

ERISA benefits denial case “the district court sits more as an appellate tribunal than as a trial
court.” See Curran v. Kemper Nat. Servs., Inc., No. 04-14097, 2005 WL 894840, at *7 (11th Cir.
Mar. 16, 2005) (quoting Leahy v. Raytheon Co., 315 F.3d 11, 17–18 (1st Cir. 2002)). The Court
“does not take evidence, but, rather, evaluates the reasonableness of an administrative
determination in light of the record compiled before the plan fiduciary.” Id. Thus, there “may
indeed be unresolved factual issues evident in the administrative record, but unless the
administrator’s decision was wrong, or arbitrary and capricious, these issues will not preclude
summary judgment as they normally would.” Pinto v. Aetna Life Ins. Co., No. 09-01893, 2011
WL 536443, at *8 (M.D. Fla. Feb. 15, 2011).
Under 29 U.S.C. § 1132(a)(1)(B), a benefit plan participant or beneficiary may bring a
civil action to recover benefits due under the terms of the plan, and to enforce or clarify rights
under the terms of the plan. The provision does not set forth the appropriate standard of review
for actions challenging benefit eligibility determinations. See Firestone Tire & Rubber Co. v.
Bruch, 489 U.S. 101, 109 (1989). Where a plaintiff challenges a denial of benefits under
§ 1132(a)(1)(B), a court must review the denial “under a de novo standard unless the benefit plan
gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or
to construe the terms of the plan.” Id. at 115.
The Eleventh Circuit has developed a multi-step framework for analyzing an
administrator’s benefits determination:
(1) Apply the de novo standard to determine whether the claim
administrator’s benefits-denial decision is “wrong” (i.e., the court
disagrees with the administrator’s decision); if it is not, then end
the inquiry and affirm the decision.
12

(2) If the administrator’s decision in fact is “de novo wrong,” then
determine whether [the administrator] was vested with discretion
in reviewing claims; if not, end judicial inquiry and reverse the
decision.
(3) If the administrator’s decision is “de novo wrong” and he was
vested with discretion in reviewing claims, then determine whether
“reasonable” grounds supported it (hence, review his decision
under the more deferential arbitrary and capricious standard).
(4) If no reasonable grounds exist, then end the inquiry and reverse
the administrator's decision; if reasonable grounds do exist, then
determine if he operated under a conflict of interest.
(5) If there is no conflict, then end the inquiry and affirm the
decision.
(6) If there is a conflict, the conflict should merely be a factor for
the court to take into account when determining whether an
administrator’s decision was arbitrary and capricious.9
See Blankenship v. Metro. Life Ins. Co., 644 F.3d 1350, 1355 (11th Cir. 2011).
III.

DISCUSSION
The Parties do not dispute that Plaintiff suffers from a degenerative disc disease causing

chronic back pain, which has resulted in five spinal surgeries. Pl.’s 56.1 ¶¶ 6–12. Instead, the
parties disagree about (1) whether Liberty’s decision should be reviewed de novo or only for
abuse of discretion and (2) whether Liberty’s decision to terminate Plaintiff’s LTD benefits was
wrong and/or abused discretion. Pursuant to the Eleventh Circuit’s framework as set forth in
Blankenship, the Court will first consider whether Liberty’s decision was de novo correct.

9

In ERISA cases, the phrases “arbitrary and capricious” and “abuse of discretion” are used
interchangeably. See Jett v. Blue Cross & Blue Shield of Ala., Inc., 890 F.2d 1137, 1139 (11th
Cir. 1989).

13

A.

Liberty’s Decision

At the first step, the administrator’s decision is reviewed de novo to determine whether it
was “wrong.” The decision is wrong if the Court disagrees with the administrator’s decision.
Capone v. Aetna Life Ins. Co., 592 F.3d 1189, 1196 (11th Cir. 2010). Based on the evidence
before the administrator at the time it made its decision, the court evaluates whether it would
have reached the same decision. Melech v. Life Ins. Co. of N. Am., 739 F.3d 663, 672–73 (11th
Cir. 2014); Blankenship, 644 F.3d at 1354–55. “If the decision is correct, the court goes no
further and grants judgment in favor of the administrator.” Melech, 739 F.3d at 673.
Both Parties contend that they are entitled to judgment as a matter of law under the de
novo standard.10 Plaintiff argues that Liberty’s decision is wrong for two reasons. First, Liberty
relied on flawed evidence. Second, Plaintiff contends that she has met her burden under the plan
by proving that she remains unable to complete the duties of her profession. Conversely,
Defendants argue that Liberty’s decision was de novo correct because (1) Liberty had sufficient
evidence to conclude as it did; and (2) Plaintiff did not satisfy her burden of proof. The Court
considers argument each in turn.
1.

Whether Liberty’s Evidence Was Flawed

In its initial January 12, 2016 decision to terminate Plaintiff’s benefits, Liberty
considered the following pieces of evidence: Thal’s occupational analysis, which determined that
Plaintiff’s occupation could be completed at a sedentary level or light level;11 medical records
from Dr. Laich, Brian Schuman, and Dr. See; Dr. Gohari’s reports based on a review of
10

Although Defendants argue that the abuse of discretion standard should apply, they also argue
the decision was de novo correct in the alternative. See Defs.’ Opp. at 10–16; Defs.’ Motion at
13–18.
11

AR 2342–2345.

14

Plaintiff’s medical records;12 and Schuman’s Restrictions Form13. See generally AR 2283–2287
(Liberty’s termination of benefits letter). Plaintiff objects to Liberty’s use of Dr. Gohari’s reports
and Schuman’s Restrictions Form.
Liberty’s termination letter indicates that Liberty’s Physical Medicine & Rehabilitation
reviewer (Dr. Gohari) completed his review on January 5, 2016 and concluded that Plaintiff
could “[s]it for up to two hours at a time for a total of seven hours per eight hour day.” AR 2284.
Although Gohari’s Amended Report (dated January 5, 2016) did contain this conclusion, AR
2348–2349, the conclusion directly contradicts Gohari’s Initial Report (completed December 12,
2015), which stated that that Plaintiff “can sit up to a half-hour at one time up to three hours per
8 hour day.” See AR 2357–2358.
The circumstances surrounding this drastic change of opinion (quadrupling her
continuous sitting time and more than doubling her cumulative sitting time) are suspicious. First,
Gohari’s Amended Report was completed after Liberty’s LTD Disability Case Manager sent an
e-mail to Dr. Gohari requiring an addendum to the report. See AR 2351. In this email, the Case
Manager informed Dr. Gohari that “[p]er vocational guidelines, sedentary would mean she is
sitting most if not all of the day” and requested a clarification because Dr. Gohari indicated that
Plaintiff could work at a “sedentary level” in Gohari’s Initial Report, but also specifically found
that Plaintiff “can only sit for 3 hours a day.” Id. Second, Plaintiff contends—and Defendant
does not dispute—that Dr. Gohari revised his opinion as to Plaintiff’s restrictions without
receiving any new medical evidence. See Pl.’s Motion at 26.

12

AR 2353–2358; AR 2348–2349.

13

AR 2397.

15

Liberty’s termination letter also notes that Plaintiff’s physical therapist, Brian Schuman,
“did note [Plaintiff’s] ability to perform at a sedentary level.” See AR 2284. While this is
technically true, upon closer examination, it appears that this indication resulted from the
misleading structure of a form that Liberty provided Schuman. In the course of its review,
Liberty requested that Schuman fill out a restrictions form. Pl. 56.1 ¶ 17. The form—bearing
Liberty Mutual Insurance letterhead—instructed Schuman to “check one” of five total boxes
“that indicates what your patient is capable of performing occupationally on a full-time basis,”
and provided five potential checkboxes: “sedentary,” “light,” “medium,” “heavy,” and “very
heavy.” See AR 2397. Although Schuman checked “sedentary,” the Court notes that each of the
alternatives entailed greater forms of exertion than sedentary. See id. For example, “sedentary”
involves “lifting/carrying up to 10 pounds occasionally,” whereas “light” involves
“lifting/carrying up to 20 pounds occasionally.” Id.14
In light of these irregularities, the Court agrees with Plaintiff that Gohari’s Amended
Report and Schuman’s Physician’s Questionnaire—both of which Liberty relied on in its January
12, 2016 assessment—were flawed and thus carry little probative value.
However, the “decision” to be reviewed in this case is not Liberty’s initial assessment,
but Liberty’s October 25, 2016 decision denying Plaintiff’s administrative appeal and upholding
Liberty’s earlier termination of Plaintiff’s benefits. See Till v. Lincoln Nat'l Life Ins. Co., 678 F.
App’x 805, 811 (11th Cir. 2017) (“This Court, in line with several other Circuit Courts of
Appeal, will consider only the reasonableness of an administrator’s final decision.” (citing, inter

14

The Court notes that Schuman also indicated on this form that Plaintiff had a “class 5”
impairment with “severe limitation of functional capacity.” AR 2398.

16

alia, Khoury v. Group Health Plan, Inc., 615 F.3d 946, 952 (8th Cir. 2010) (reviewing
administrative appeal))).
Liberty’s October 25, 2016 appeal denial letter indicates that these questionable
documents played a minor role in Liberty’s administrative appellate determination. AR 27–33.
Liberty indicated that it “re-reviewed the information in the file in its entirety,” Defs.’ 56.1 ¶ 34,
and considered additional evidence, including Dr. Grattan’s August 19, 2016 and September 21,
2016 reports and Dr. Hoenig’s October 10, 2016 report. See AR27–33; see also Pl.’s 56.1 ¶¶ 39–
41. Notably, Liberty’s appeal denial letter cites to Dr. Grattan’s opinion that Plaintiff could only
sit for 90 minutes continually up to 6 hours per day, AR 30—which differs from both of Dr.
Gohari’s opinions (including the amended one that Plaintiff objects to). The appeal denial letter
also makes no reference to Schuman’s Restrictions Form or the “sedentary” checkbox therein.
The Parties agree that Liberty relied on the opinions of Dr. Grattan and Dr. Hoenig in
denying Plaintiff’s appeal. See Pl.’s Motion at 27; Defs.’ Opp. at 18. Plaintiff argues that Dr.
Grattan’s and Dr. Hoenig’s reports are flawed for two reasons. First, Plaintiff argues that neither
doctor considered all of the evidence in her file—in particular, the peer review reports Plaintiff
submitted from Dr. Stuart Rubin and Schuman’s Physicians Questionnaire. Second, both doctors
“downplayed the significance” of Ms. Miller’s medication. See Pl.’s Motion at 27–30.
Dr. Grattan prepared a report dated August 19, 2016 based upon a review of Plaintiff’s
medical records. AR 2032–2038. Grattan concluded that “given [Plaintiff’s] significant surgical
history she would be functionally impaired, but would have the ability to sustain gainful
employment on a full time basis with restrictions and limitations.” AR 2037.
As previously noted, Plaintiff submitted Schuman’s Physician’s Questionnaire by letter
dated August 24, 2016. Defs.’ 56.1 ¶¶ 25–26; AR 2017–2021. Plaintiff also submitted a peer

17

review report and an addendum report completed by Dr. Stuart Rubin on September 9, 2016 and
on September 16, 2016, respectively. See Pl.’s 56.1 ¶¶ 34, 36. After the receipt of Schuman’s
Physician’s Questionnaire and Dr. Rubin’s reports, Dr. Grattan prepared a supplemental report
concluding that his earlier assessment as to the appropriate restrictions and limitations remained
unchanged. See AR 815–821. Dr. Grattan’s report reveals that he reviewed Schuman’s
Physician’s Questionnaire because he summarizes the findings therein. See AR 819. By contrast,
while Dr. Grattan lists Dr. Rubin’s reports in the last two bullet points of the materials he
reviewed, AR 0816, his report contains zero analysis of those reports. See AR 815–821. Notably,
Dr. Grattan does not explain how he derived the 90-minute restriction for continuous sitting for a
total of 6 hours in an 8-hour day, AR 820, or why he disagreed with Dr. Rubin’s assessments—
which were one-third the length (30-minute limit for continuous sitting and a total of two hours
of sitting in an 8-hour day, AR 811).
Dr. Hoenig’s October 10, 2016 report similarly does not address Dr. Rubin’s reports. In
fact, it does not even reference those reports or Schuman’s Physician’s Questionnaire. See AR
44–50. Moreover Dr. Hoenig reaches several conclusions directly contradicting the findings in
those documents, without explicitly addressing the contrary evidence. For example, Dr. Hoenig
stated “there are no side effects attributed to the claimant’s medications.” AR 49. However,
Schuman specifically noted on his questionnaire that Ms. Miller experiences the following sideeffects from her medication: “fatigue, dizziness, muscle weakness, and difficulty sleeping.” AR
2018.
In short, Dr. Grattan and Dr. Hoenig ignored Plaintiff’s evidence contrary to their
conclusions and showed no sign of substantively addressing such evidence. This is problematic
because Liberty’s appellate denial letter relies so centrally on those reports such that, as Plaintiff

18

points out, the letter is largely “copied and pasted” from those reports. See Pl.’s Motion at 27.
While neither Liberty nor its consultants need to agree with Plaintiff’s doctors’ medical opinions,
Liberty cannot just ignore inconvenient evidence. See Metro. Life Ins. Co. v. Glenn, 554 U.S.
105, 118 (2008) (finding MetLife had emphasized a certain medical report that favored a denial
of benefits and had deemphasized certain other reports that suggested a contrary conclusion); 29
C.F.R. §§ 2560.503-1(h)(2)(iv) (requiring that the Plan “provide for a review that takes into
account all comments, documents, records, and other information submitted by the claimant
relating to the claim . . .”). Accordingly, based on the evidence before the administrator at the
time it made its decision, the Court would not have relied on Dr. Grattan’s and Dr. Hoenig’s
reports as Liberty did to evaluate Plaintiff’s evidence for her claim.
2.

Whether Plaintiff Satisfied her Burden of Proving Disability

In defending Liberty’s decision, Defendants argue that the decision to deny LTD benefits
beyond January 12, 2016 was de novo correct because Plaintiff “failed to carry her burden of
proof in establishing that she was “unable to perform the material or essential duties of [her] own
occupation” at the sedentary level of functioning. Defs.’ Motion at 14. Relatedly, Defendants
argue that it is “implicit in the requirement of proof that the evidence is objective” because the
plan “puts the burden on the claimant” to provide proof of disability. Defs.’ Motion at 21.
At the outset, the Court rejects Defendants’ argument that Plaintiff’s LTD claim was
properly denied for failing to provide “objective” evidence. First, it is undisputed that the plan
does not explicitly require objective evidence. See id. (Defendants merely argue that there is an
“implicit” requirement). When a plan does not require objective evidence, the Court will not read
in such a requirement. See Creel v. Wachovia Corp., No. 08-10961, 2009 WL 179584, at *7
(11th Cir. Jan. 27, 2009) (“When the plan has no [objective evidence] requirement, however, we

19

evaluate the reasonableness of the decision in light of the sufficiency of the claimant’s subjective
evidence and the administrator’s actions.”). Second, Liberty’s own consultant, Dr. Hoenig,
concluded that the “severity and scope of the claimant’s reported pain is consistent with the
severity and scope of the claimant’s condition and intensity of treatment.” AR 48. In other
words, Dr. Hoenig concluded that there is no reason to doubt that Plaintiff’s subjective reports of
pain were the product of fabrication or exaggeration. See Nevitt v. Standard Ins. Co., 2009 WL
4730316, * 7 (N.D. Ga. 2009) (finding that decision to terminate disability benefits was
unreasonable where claimant consistently complained of migraines, treating physicians’ reports
noted consistency with cervical injury, there was no substantial evidence of malingering, and the
plan did not require objective evidence).
Because Plaintiff’s benefits were terminated within the first 24 months from the date her
LTD benefits began, AR 2283–2287, the relevant definition of disability in the SPD is as
follows: “you are disabled if your disability makes you unable to perform the material or
essential duties of your own occupation as it is normally performed in the national economy.”
AR 2668. The sole evidence in the record regarding the material or essential duties of Plaintiff’s
occupation is Thal’s occupational analysis, which concluded that the typical physical demands of
Plaintiff’s occupation are “most often performed at a sedentary and light physical demand levels,
with sufficient opportunities at both levels.” AR 2344; see generally AR 2342–2345.
Plaintiff submitted large quantities of evidence relating to this qualification—both
subjective and objective—casting doubt over the possibility that Plaintiff could perform at either
level. Plaintiff submitted the following to Liberty: medical records from her orthopedic
surgeon’s practice, Swedish Covenant Medical Group [AR 53–76, 2063–2156]; medical records
from her pain management specialist, Dr. Joel See [AR 77–117, 2451–2459]; physical therapy

20

records from her physical therapist, Brian Schuman [AR 449–803]; medical records from her
internist, Dr. Steven Cataldo [AR 378–413]; medical records from her general practitioner at
Meridian Medical Associates [AR 118–377]; a prescription history report [AR 2270]; statements
from two of her former co-workers regarding her performance over time [AR 2157–2161]; a
questionnaire from her physical therapist, Brian Schuman [AR 2157–2161], and a peer review
report and addendum completed by Dr. Stuart Rubin [AR 805–814]. See Pl.’s 56.1 ¶ 37.
Moreover, there is ample evidence even in Liberty’s own consultants’ reports suggesting
that Plaintiff is unable to function at even the sedentary level, because inter alia, she has
difficulty sitting. See, e.g., AR 2357 (Dr. Gohari’s December 12, 2015 Report found that
Plaintiff “can sit up to a half-hour at one time up to three hours per 8 hour day.”); AR 824 (Dr.
See informed Dr. Grattan that Plaintiff “has been having pain with prolonged sitting and
standing” and that Plaintiff’s “limitations in movement and positioning” are “related to” her
“subjective reports of pain.”); AR 46 (Dr. See explained Dr. Hoenig that Plaintiff is “unable to
do her job as a banker which required her to sit and stand for long periods of time.”). Per the
Dictionary of Occupational titles—referenced in Liberty’s denial letter, AR 2285—this
restriction would prohibit Plaintiff from working in even a sedentary occupation because that
requires “frequent to constant” sitting.15
When “the claimant has put forward ample subjective evidence, we look at what efforts
the administrator made to evaluate the veracity of her claim, particularly focusing on whether the
administrator identified any objective evidence that would have proved the claim and on what
15

See also AR 48, (Dr. Hoenig’s Report relayed that “[t]he claimant is utilizing opioids,
including long-acting opioids” along with “spinal cord stimulation as well.”). See Flanigan v.
Liberty Life Assur. Co. of Boston, 277 F. Supp.2d 840 (N.D. Ohio 2003) (“The fact that Plaintiff
is on so many strong medications is objective evidence that she is indeed chronically disabled”).

21

kinds of independent physician evaluations it conducted.” See Creel, 2009 WL 179584 at *7. For
the reasons set forth in Section III.A.1, supra, the Court finds that Liberty’s reliance on the
reports of Dr. Hoenig and Dr. Grattan fell short of the evaluation of Plaintiff’s claims that the
Court would have conducted in the shoes of the Claims Administrator. See Dimaria v. First
Unum Life Ins. Co., 2005 WL 743324, *4 (S.D.N.Y. 2005) (In conducting its de novo review,
the Court “stands in the shoes of the original decisionmaker.”).
Additionally, the Eleventh Circuit has held that an “administrator’s decision to deny
benefits would be unreasonable if it failed to identify what objective evidence the claimant could
have or should have produced, even if the administrator submitted the file for peer review.” Id.
Here, Liberty failed to identify any specific objective evidence that would be required for a
continuation of Plaintiff’s benefits. Instead, in its denial letter, Liberty suggested Plaintiff submit
office treatment notes, test results, prescription histories, treatment plans from physicians, and
any other additional information she felt would support her claim. AR 2286. This is the type of
evidence Plaintiff submitted, and at no time was she notified that more specific objective
evidence was required.16 In light of the foregoing, the Court would have reached a different
decision than Liberty did in terminating Plaintiff’s LTD benefits. Accordingly, Liberty’s
decision is “de novo” wrong. Melech, 739 F.3d at 672–73.
B.

Liberty’s Discretion

The Court must next address whether the Plan vested Liberty with discretion to determine
eligibility in reviewing claims for LTD benefits. See Capone, 592 F.3d at 1195. If Liberty had

16

Plaintiff contends—and Defendants do not contest—that Liberty has never informed Plaintiff
that her claim was terminated due to lack of objective evidence until Defendants’ Motion for
Summary Judgment (ECF No. 30). See Pl.’s Opp. at 20. This post-hoc rationale was not
identified in Liberty’s termination letter, 2283–2287, or its appeal denial letter, AR 27–33.

22

discretionary authority, then the ultimate question would be whether reasonable grounds
supported the decision to deny benefits; in other words, whether Liberty’s decision was arbitrary
and capricious. Id.; see also Glenn, 554 U.S. at 111 (Where plan grants “the administrator or
fiduciary discretionary authority to determine eligibility for benefits . . . [t]rust principles make a
deferential standard of review appropriate.” (citations and internal quotation marks omitted)). If
Liberty lacked the discretionary authority, however, then the Court reverses Liberty’s decision.
Capone, 592 F.3d at 1195.
Plaintiff argues that Defendants have the burden of proving that the arbitrary and
capricious standard applies to Liberty’s decision, and that Defendants have not met this burden
because no plan document expressly grants discretion regarding claims to Liberty. See Pl.’s
Motion at 8–14. Defendants reject Plaintiff’s contention that they have the burden of establishing
that abuse of discretion applies, and argue that even if Defendants had such a burden, it is met
because Liberty was properly granted discretion to decide LTD claims. See Defs.’ Opp. at 3–8.
While the Eleventh Circuit has conclusively established that an ERISA claimant bears the
burden of “prov[ing] she is disabled and the administrator’s decision was an abuse of discretion,”
Howard v. Hartford Life & Acc. Ins. Co., 563 F. App’x 658, 663 (11th Cir. 2014), it appears the
Eleventh Circuit has not yet determined whether the ERISA claimant or the ERISA administrator
bears the burden of showing that abuse of discretion is the proper standard of review. Some
courts—including courts in this Circuit—have concluded that the administrator bears the burden.
See, e.g., Wilson v. Walgreen Income Prot. Plan for Pharmacists & Registered Nurses, Walgreen
Co., 942 F. Supp. 2d 1213, 1250 (M.D. Fla. 2013) (finding “Defendants have not met their
burden to establish that Sedgwick was effectively granted discretion under the plan to act as an
administrator or fiduciary”). Additionally, the Second Circuit has reasoned that the plan

23

administrator “bears the burden of proving that the arbitrary and capricious standard of review
applies, since the party claiming deferential review should prove the predicate that justifies it.”
Kinstler v. First Reliance Standard Life Ins. Co., 181 F.3d 243, 249 (2d Cir. 1999) (citation and
internal quotation marks omitted). However, it is unnecessary for this Court to decide the issue
of who bears the burden here, because regardless of which party bears the burden, Liberty has
not been granted sufficient discretion by the Plan.
In Firestone Tire & Rubber Co. v. Bruch, the Supreme Court held “a denial of benefits
challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit
plan gives the administrator or fiduciary discretionary authority to determine eligibility for
benefits or to construe the terms of the plan.” 489 U.S. 101, 115 (1989). The terms that are
required to provide discretionary authority to a plan administrator must be stated in “express
language” that “is unambiguous in its design to grant discretion regarding entitlements to the
fiduciary or administrator.” Kirwan v. Marriott Corp., 10 F.3d 784, 789 (11th Cir. 1994); see
also Moon v. American Home Assurance Co., 888 F.2d 86, 88–89 (11th Cir. 1989) (emphasizing
that discretionary authority cannot be implied from the plan, but must be expressly given by the
plan.). Accordingly, this Court is tasked with “examining the plan documents to determine
whether they grant the administrator discretion . . . .” Tippitt v. Reliance Standard Life Ins. Co.,
457 F.3d 1227, 1232 (11th Cir. 2006).
“A ‘plan document’ refers to the written document which sets forth the requirements of
every employee benefit plan under 29 U.S.C. § 1102(b), i.e., provides a procedure for
establishing and carrying out a funding policy, describes the procedures for the operation and
administration of the plan, provides a procedure for amending the plan and for identifying the
persons who have authority to amend the plan, and specifies the basis on which payments are

24

made to and from the plan.” See Schena v. Metro. Life Ret. Plan for U.S. Employees, No.
205CV-249-FTM-29SPC, 2006 WL 3333550, at *3 (M.D. Fla. Nov. 16, 2006), aff'd, 244 F.
App’x 281 (11th Cir. 2007) (citing Cotton v. Massachusetts Mut. Life Ins. Co., 402 F.3d 1267,
1275 n.8 (11th Cir. 2005)).
The Parties agree that the Summary Plan Description (“SPD”) governs the terms of the
Plan because it serves as the Plan document. See Pl.’s Motion at 13; Defs.’ Motion at 8.
Additionally, the SPD explicitly states that “this booklet serves as the plan document and the
summary plan description (SPD) required under ERISA.” AR 2665.
Plaintiff correctly concedes that the Plan grants discretionary authority to PNC. See Pl.’s
Motion at 11. In relevant part, the SPD vests the “Plan Administrator” with “the exclusive
discretionary authority to determine eligibility for benefits under the Plan, to construe the terms
of the Plan and to determine any question which may arise in connection with its operation or
administration, except to the extent that the Plan Administrator has authorized the claims
administrator to make such determinations.” AR 2679. The SPD defines the “Plan
Administrator” as the “Plan Sponsor,” which is “The PNC Financial Services Group, Inc.” AR
2683.
Plaintiff also correctly concedes that the Plan granted PNC the ability to delegate its
discretion to Liberty. See Pl.’s Motion at 11. The SPD explains that the “Plan Administrator”
“may allocate or delegate fiduciary responsibilities to other persons (including insurance
companies and third party administrators).” AR 2681. The SPD also states that the “Plan
Administrator has delegated certain administrative functions to the claims administrator,” which
is defined as “The Liberty Life Assurance Company.” Id.

25

Plaintiff argues, however, that PNC failed to properly delegate its discretionary authority
to Liberty—the entity that actually made the benefits determination at issue in this case. Pl.’s
Motion at 11. Accordingly, Plaintiff concludes, Liberty’s determination should not be accorded a
deferential review by this Court under the abuse of discretion standard. Id. Defendants argue that
Liberty was accorded discretion sufficient to trigger an abuse of discretion review for four
reasons. For the reasons set forth below, however, each of Defendants’ arguments fails.
First, Defendants point to a clause in the SPD, which provides that “[i]f a decision made
by the Plan is challenged in court, the court’s review . . . shall be limited to a determination of
whether the decision was arbitrary and capricious.” Defs.’ Reply at 2; AR 2679. Plaintiff argues
that this is a legal conclusion, which does not bind the Court. See Pl.’s Motion at 12. Defendant
counters that this is permissible, and points to dicta in Firestone Tire & Rubber Co. v. Bruch,
489 U.S. 101 (1989). See Defs.’ Reply at 3. In that case, the Supreme Court stated that “[n]either
general principles of trust law nor a concern for impartial decisionmaking . . . forecloses parties
from agreeing upon a narrower standard of review.” Id. at 115.
On first blush, that dicta appears to conflict with the Court’s holding—just three
sentences later—that “a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed
under a de novo standard unless the benefit plan gives the administrator or fiduciary
discretionary authority to determine eligibility for benefits or to construe the terms of the plan.”
Id. (emphasis added). However, the statements can be reconciled as follows: the parties are free
to agree to an abuse of discretion review, and the way to attain that deferential review is through
the plan providing “the administrator or fiduciary discretionary authority to determine eligibility

26

for benefits or to construe the terms of the plan.” Id. A review of caselaw discussing this dicta
reveals that Courts have nearly unanimously interpreted it in a similar way.17
Defendant has not proffered any cases—and the Court is aware of none—that construe
this dictum to permit an ERISA plan to merely stipulate to an abuse of discretion review without
also conferring discretionary authority to an administrator or fiduciary. Moreover, “when
discretion is not clearly granted to the administrator, de novo review is appropriate because, in
that case, deferential review ‘would afford less protection to employees and their beneficiaries
than they enjoyed before ERISA was enacted.’” Foster v. Sedgwick Claims Mgmt. Servs., Inc.,
842 F.3d 721, 734 (D.C. Cir. 2016) (citing Firestone, 489 U.S. at 113–14); see generally Brown
v. Blue Cross & Blue Shield of Alabama, Inc., 898 F.2d 1556, 1563 (11th Cir. 1990) overruled
on other grounds by Doyle v. Liberty Life Assurance Co. of Boston, 542 F.3d 1352 (11th Cir.
2008) (discussing the tension between the parties’ ability to “agree[] upon a narrower standard of
review” and an interpretation of ERISA that “would afford less protection to employees and their
beneficiaries than they enjoyed before ERISA was enacted.”). Accordingly, the Court finds that
this clause does not prompt the Court to review Liberty’s decision for an abuse of discretion.

17

See, e.g., Foster v. Sedgwick Claims Mgmt. Servs., Inc., 842 F.3d 721, 734 (D.C. Cir. 2016)
(affirming deferential standard of review because the parties have agreed to it by vesting trustee
with “discretion to construe disputed terms of the plan and determine eligibility for benefits.”);
Reinking v. Philadelphia Am. Life Ins. Co., 910 F.2d 1210, 1214 (4th Cir. 1990) overruled in
part on other grounds by Quesinberry v. Life Insurance Co. of North America, 987 F.2d 1017,
1030 (4th Cir. 1993) (en banc) (finding that the parties have not agreed upon a narrower standard
of review because the policy did not grant PALICO discretionary authority to find the facts
necessary to make eligibility determinations); Neurological Res., P.C. v. Anthem Ins. Companies,
61 F. Supp. 2d 840, 856 (S.D. Ind. 1999) (finding parties have not agreed upon a narrower
standard of review because provision granting administrator discretion did not provide sufficient
discretion to determine whether a claimant is eligible for benefits); Freeman v. Sickness & Acc.
Disability Plan of AT & T Techs., Inc., 823 F. Supp. 404, 410 (S.D. Miss. 1993) (finding that
parties had agreed upon a narrower standard of review because the “language of the Plan was
sufficient to bestow discretionary authority”).

27

Second, Defendants argue PNC’s delegation to Liberty is partially set forth in the SPD in
two places. Defendants first note that the Plan specified that a claimant “may be required to
submit whatever proof the Plan Administrator may require (either directly to the Plan
Administrator or to any person delegated by it).” Defs.’ Motion at 11–12; AR 2682. While
similar clauses can generally confer discretion to the party who may require such proof,18 the
party requesting proof here is the Plan Administrator, which is PNC—not Liberty. Accordingly,
this clause does not grant Liberty any discretion.
Next, Defendants note that the SPD specifies that the “claims administrator determines
whether [a claimant’s] disability meets” the definitions of disabled under the plan. Defs.’ Reply
at 3 (citing AR 2668). As noted above, the SPD defines the “claims administrator” as Liberty.
AR 2681. However, this clause also fails to invoke an abuse of discretion review for two reasons.
First, this clause limits Liberty’s review to only one component for eligibility: disability.
The SPD imposes several other requirements in order to determine eligibility, over which the
SPD does not confer Liberty any role—much less discretion. See, e.g., AR 2676 (listing
exclusions if a claim arose from certain actions or if certain conditions apply). This clause falls
short of conferring Liberty with authority “to determine eligibility for benefits or to construe the
terms of the plan,” Firestone, 489 U.S. at 115; see, e.g., Reinking v. Philadelphia Am. Life Ins.
Co., 910 F.2d 1210, 1214 (4th Cir. 1990) overruled in part on other grounds by Quesinberry v.
Life Insurance Co. of North America, 987 F.2d 1017, 1030 (4th Cir. 1993) (en banc) (rejecting
abuse of discretion standard of review because policy did not grant PALICO discretionary
authority to find the facts necessary to make eligibility determinations); Neurological Res., P.C.
18

See, e.g., Tippitt v. Reliance Standard Life Ins. Co., 457 F.3d 1227, 1233 (11th Cir. 2006)
(finding that requirement to submit “satisfactory proof” conferred discretion to plan
administrator).

28

v. Anthem Ins. Companies, 61 F. Supp. 2d 840, 856 (S.D. Ind. 1999) (rejecting arguments
seeking an abuse of discretion review where the Plan “simply does not give the administrator
discretion to determine whether a claimant is eligible for benefits.”). Second, the language is not
“express” and “unambiguous” as is required. Kirwan, 10 F.3d at 789. It is unclear whether
Liberty has the full discretion PNC reserved for itself; in particular it is unclear whether
Liberty’s determinations are final, or whether Liberty’s authority extends to making such
determinations during an administrative appeal.
Third, Defendant argues that the Administrative Services Agreement, AR 2722–2742
vests Liberty with the requisite discretion. Plaintiff argues that the ASA is neither a plan
document nor incorporated by reference into the SPD, nor executed pursuant to a procedure in
the SPD, and therefore cannot confer Liberty the necessary discretion. See Pl.’s Motion at 13–14;
Pl.’s Reply at 5–8. Defendants do not argue that the ASA is a plan document,19 or that the SPD
incorporates the ASA, but argue that there is no such “high bar” for delegation of discretionary
authority. See Defs.’ Opp at 4–6.
The Eleventh Circuit has not yet addressed the exact issue here, which is whether
delegation of authority to a third party through a contract, which is not referenced in the Plan
document, can constitute a grant of discretion such that judicial review of the third party’s

19

Nor could they. The ASA does not satisfy the requirements for a plan document summarized
above. See Schena, 2006 WL 3333550 at *3; see also Alday v. Container Corp. of Am., 906 F.2d
660, 665 (11th Cir. 1990) (finding “booklet does not fulfill the requirements for plan descriptions
and summary plan descriptions” and thus could not be considered to determine parties’ intent or
to alter terms under the plan documents).

29

ERISA determination is reviewed only for abuse of discretion.20 The Court agrees with the
majority of courts to consider the issue, which have found that it cannot. See, e.g., Frichter v.
Health Care Service Corp., 301 F.3d 811, 817 (7th Cir. 2002) (rejecting argument that ASA
granted Health Care Service Cop discretion and noting that the ASA is not a “plan document”);
Crider v. Highmark Life Ins. Co., 458 F. Supp. 2d 487, 518 (W.D. Mich. 2006) (holding that a
delegation found in a separate service agreement, which is not referred to in the Plan documents,
is not valid under 29 U.S.C. § 1105(c)(1)); see also Cosey v. Prudential Ins. Co. of Am., 735 F.3d
161, 170 n.8 (4th Cir. 2013) (declining to consider an ASA for state-law reasons, but noting that
“in the ERISA context, the Supreme Court’s decision in Amara has cast serious doubt on
whether non-plan documents can be used to interpret a plan’s language.” (citing CIGNA Corp. v.
Amara, 563 U.S. 421 (2011))); accord Schena, 244 F. App’x at 284 (referencing a “rigorously
enforced rule” in which courts may “not look outside formal plan documents” to determine the
terms of a plan).
Moreover, even if the ASA were a plan document, the ASA does not confer the type of
discretion required for this Court to accord an abuse of discretion review. The Eleventh circuit
has held that reservations of “full and exclusive authority to determine all questions of coverage
and eligibility” along with “full power to construe the [ambiguous] provision[s]” of the plan
“reserve enough discretion to make the arbitrary and capricious standard applicable.” Cagle v.
Bruner, 112 F.3d 1510, 1517 (11th Cir. 1997); see also Buce v. Allianze Ins. Co., 247 F.3d 1133,

20

The Eleventh Circuit has found that a contract can delegate duties for the purposes of
determining liability in a breach of fiduciary duty action. See Willett v. Blue Cross & Blue Shield
of Alabama, 953 F.2d 1335, 1340 (11th Cir. 1992). However, in determining whether to apply
the abuse of discretion standard, the Eleventh Circuit has defined the task in terms of “tasked
with “examining the plan documents to determine whether they grant the administrator
discretion . . . .” Tippitt, 457 F.3d at 1232.

30

1138–39 (11th Cir. 2001) (upholding the district court’s application of heightened arbitrary and
capricious review where the insurance policy provided that the insurance company had the
exclusive right to interpret the provisions of the plan). However, the ASA falls short of this
conferral of discretion. For example, Annex B of the ASA provides that “[i]n the event that the
Sponsor [PNC] determines that Liberty has misinterpreted the Plan and so informs Liberty in
writing, all claims reported after delivery of such writing will be processed and paid in
accordance with the Sponsor’s interpretation as set forth in such writing.” AR 2734. Annex B
further provides that “[a]ll doubtful claims will be referred to the Sponsor for its determination
of liability.” Id. Finally, Annex B indicates that Liberty will make determinations on the
disposition of certain ERISA appeals, but in other cases PNC will be “responsible” for making
those determinations. See AR 2735.
In other words, Liberty does not have the “full and exclusive authority to determine all
questions of coverage and eligibility” or the “full power” to construe ambiguous provisions,
Cagle, 112 F.3d at 1517. “A plan can give an administrator discretion in some areas but not in
others.” Anthem Ins. Companies, 61 F. Supp. 2d at 856. The ASA simply does not give the
administrator full discretion to “determine whether a claimant is eligible for benefits.” Id.
For both reasons, the ASA does not properly vest Liberty with sufficient discretionary
authority such that an abuse of discretion review applies to its decisions. Accordingly, the Court
concludes that Liberty was not vested with discretionary authority, and therefore its decision is
properly reviewed under the de novo standard. See Firestone, 489 U.S. at 115. Because the Court
has already found that Liberty’s decision to terminate her benefits was de novo wrong, it must
“end the inquiry” and reverse Liberty’s decision to terminate benefits. See Capone, 592 F.3d at
1195. Plaintiff’s request for a summary judgment hearing is accordingly denied.

31

IV.

CONCLUSION

For the reasons provided, it is ORDERED and ADJUDGED that:
1. Plaintiff’s Motion for Summary Judgment (ECF No. 27) is GRANTED IN PART
AND DENIED IN PART.
2. Defendants are instructed to provide past-due benefits from the date benefits were
terminated, plus interest at the statutory rate. See 28 U.S.C. § 1961.
3. Defendants’ Motion for Summary Judgment (ECF No. 30) is DENIED.
4. The Clerk is directed to CLOSE this case. All pending motions, if any, are DENIED
MOOT.
5. The Court retains jurisdiction to resolve any dispute over the amount of benefits owed
and any motion for fees and costs.
2nd
DONE and ORDERED at Miami, Florida, this ____ day of October, 2017.

Kevin Michael Moore

Digitally signed by Kevin Michael Moore
DN: o=Administrative Office of the US Courts,
email=[e-mail], cn=Kevin Michael Moore
Date: 2017.10.02 17:30:54 -04'00'

K. MICHAEL MOORE
CHIEF UNITED STATES DISTRICT JUDGE
cc: All counsel of record

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