Mayes v. Standard Insurance Company, The et al

Filing 45

MEMORANDUM AND ORDER granting Defendant The Standar Insurance Company's 32 Motion for Summary Judgment; and denying Plaintiff Jody Mayes' 35 Motion for Summary Judgment. Signed by District Judge Julie A. Robinson on 09/24/2014. (mg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JODY MAYES,

)
)
Plaintiff,
)
)
v.
)
)
THE STANDARD INSURANCE CO.,
)
)
Defendant.
)
____________________________________)

Case No. 13-2111-JAR

MEMORANDUM AND ORDER
Plaintiff Jody Mayes was employed by CenturyLink as a NTAC II Support Engineer.
She participated in a long-term disability (“LTD”) plan, sponsored by CenturyLink and issued by
Defendant The Standard Insurance Company (“Standard”). While out of work in August 2011
on short-term disability due to back pain, Plaintiff suffered a heart attack. She underwent heart
surgery in September and again in December 2011. Plaintiff applied for and was denied longterm disability benefits in 2012. Plaintiff brings this action against Standard under the Employee
Retirement Income Security Act of 1974 (“ERISA”), seeking judicial review of Standard’s
denial of long-term disability benefits. This matter is before the Court on the parties’ crossmotions for summary judgment (Docs. 32, 35). As described more fully below, the Court denies
Plaintiff’s motion for summary judgment and grants Standard’s motion for summary judgment.
I.

Standards of Review
Summary judgment is appropriate if the moving party demonstrates “that there is no

genuine dispute as to any material fact” and that it is “entitled to judgment as a matter of law.”1

1

Fed. R. Civ. P. 56(a).

Cross-motions for summary judgment “are to be treated separately; the denial of one does not
require the grant of another,” but “[t]o the extent the cross-motions overlap . . . the court may
address the legal arguments together.”2
Both parties argue that they are entitled to judgment as a matter of law. ERISA gives
Plaintiff, as plan beneficiary, the right to federal court review of the denial of her disability
benefits.3 “[I]n ERISA cases seeking review of a denial of ERISA benefits, the court’s review is
‘limited to the administrative record,’ i.e., the materials compiled by the ERISA plan’s
administrator in the course of making its decision.”4 This case is governed by the standards
applicable to an appeal of an administrative decision, and “the court acts as an appellate court
and evaluates the reasonableness of a plan administrator or fiduciary’s decision based on the
evidence contained in the administrative record.”5
Plaintiff concedes that the LTD Plan provides discretionary authority to Standard to
interpret its terms and conditions as well as to determine eligibility for benefits. Because the
Plan gives the administrator discretionary authority, “we employ a deferential standard of
review, asking only whether the denial of benefits was arbitrary and capricious.”6 Under this
standard, “review is limited to determining whether the interpretation of the plan was reasonable

2

Berges v. Standard Ins. Co., 704 F. Supp. 2d 1149, 1155 (D. Kan. 2010) (quotations omitted).

3

29 U.S.C. § 1132(a)(1)(B).

4

Berges, 704 F. Supp. 2d at 1155 (quoting Holcomb v. Unum Life Ins. Co. of Am., 578 F.3d 1187, 1192
(10th Cir. 2009) (citation omitted)).
5

Panther v. Synthes (U.S.A.), 380 F. Supp. 2d 1198, 1207 n.9 (D. Kan. 2005) (citing Olenhouse v.
Commodity Credit Corp., 42 F.3d 1560, 1579 & n.31 (10th Cir. 1994)).
6

Eugene S. v. Horizon Blue Cross Blue Shield of N.J., 663 F.3d 1124, 1130 (10th Cir. 2011) (quotations

omitted).

2

and made in good faith.”7 The decision of the plan administrator will be upheld “so long as it is
predicated on a reasoned basis,” and “there is no requirement that the basis relied upon be the
only logical one or even the superlative one.”8 “Consequently, the Tenth Circuit has observed
that the arbitrary and capricious standard ‘is a difficult one for a claimant to overcome.’”9 The
Court looks for “substantial evidence” in the record to support the administrator’s conclusion,
meaning “more than a scintilla” of evidence “that a reasonable mind could accept as sufficient to
support a conclusion.”10 “The substantiality of the evidence must be evaluated ‘against the
backdrop of the administrative record as a whole.’”11
In Metropolitan Life Insurance Co. v. Glenn,12 the Supreme Court held that when an
ERISA fiduciary is responsible for determining, in its discretion, eligibility for benefits under an
employer-sponsored plan and is also the party responsible for paying claims, a conflict of
interest exists.13 The Supreme Court held that a reviewing court should consider that conflict as
a factor in determining whether the plan administrator has abused its discretion in denying
benefits; and the significance of the factor will depend upon the circumstances of the particular
case.14 The Supreme Court held that:
7

Id. (quotations omitted).

8

Id. at 1134 (quotations omitted).

9

Berges, 704 F. Supp. 2d at 1174 (quoting Nance v. Sun Life Assur. Co. of Canada, 294 F.3d 1263, 1269
(10th Cir. 2002)).
10

Eugene S., 663 F.3d at 1134 (quotation omitted).

11

Berges, 704 F. Supp. 2d at 1175 (quotation omitted).

12

554 U.S. 105 (2008).

13

Id. at 114.

14

Id. at 105.

3

The conflict of interest . . . should prove more important (perhaps
of great importance) where circumstances suggest a higher
likelihood that it affected the benefits decision, including, but not
limited to, cases where an insurance company administrator has a
history of biased claims administration. . . . It should prove less
important (perhaps to the vanishing point) where the administrator
has taken active steps to reduce potential bias and to promote
accuracy, for example, by walling off claims administrators from
those interested in firm finances, or by imposing management
checks that penalize inaccurate decisionmaking irrespective of
whom the inaccuracy benefits.15
The parties agree that Standard acted as both the insurer and administrator of the Plan,
but Plaintiff has not presented evidence that Standard has a history of bias or that the provision
of benefits under the LTD-Plan had a significant economic impact on Standard.16 Although the
Court will weigh the dual-role conflict of interest “as a facto[r] in determining whether there is
an abuse of discretion,”17 the Court finds that the conflict should be given limited weight in this
case.
II.

Uncontroverted Facts
Plaintiff Jody Mayes was an employee of CenturyLink beginning in May of 2006,

working as a NTAC II Support Engineer. CenturyLink sponsored an employee welfare benefit
plan that provided long-term disability benefits to eligible, qualifying participants who complied
with the terms and conditions of that plan (“LTD Plan”). Standard issued the Group Policy
Number 643388-D that insured benefits that became payable under the LTD Plan. Mayes last
15

Id. at 117 (citations omitted).

16

See Kimber v. Thiokol Corp., 196 F.3d 1092, 1098 (10th Cir. 1999) (noting that there is no per se rule of
significant economic impact, and that the long term disability costs amounted to a mere .3% of the company’s
operating expenses for the year); Eugene S. v. Horizon Blue Cross Blue Shield of New Jersey, 663 F.3d 1124, 1133
(10th Cir. 2011) (stating that a conflict based on generalized economic incentive is insufficient).
17
Holcomb v. Unum Life Ins. Co. of Am., 578 F.3d 1187, 1192 (10th Cir. 2009) (quotation marks and
citation omitted).

4

day of work at CenturyLink was August 4, 2011. She was a participant in the LTD Plan.
The LTD Plan provides that a participant is “disabled” if he or she meets one of two
definitions: (A) Own Occupation of Disability, or (B) Any Occupation of Disability. Under the
“Own Occupation” definition, a participant is disabled if:
as a result of Physical Disease, Injury, Pregnancy or Mental
Disorder:
1.
You are unable to perform with reasonable continuity the
Material Duties of your Own Occupation; and
2.
You suffer a loss of at least 20% in your Indexed
Predisability Earnings when working in your Own
Occupation.18
The LTD Plan provides that Standard has “full and exclusive authority to control and
manage the Group Policy, to administer claims, and to interpret the Group Policy and resolve all
questions arising in the administration, interpretation, and application of the Group Policy.”19
The Plan provides that this authority includes the right to
(a) determine eligibility for insurance;
(b) entitlement to benefits;
(c) the amount of benefits payable; and
(d) the sufficiency and the amount of information we may
reasonably require to determine a., b., or c., above.
Subject to the review procedures of the Group Policy, any decision
we make in the exercise of our authority is conclusive. However,
this provisions [sic] will not restrict any right you may have to file
a lawsuit or contact the Louisiana Insurance Commissioner if your
claim for benefits is denied.20
If a claim is denied, the LTD Plan provides that the claimant will receive a written notice of the

18

AR at 487.

19

AR at 500.

20

AR at 500–01.

5

denial that includes, inter alia, the reasons for the decision, and a description of any additional
information needed to support the claim. If all or part of a claim is denied, the claimant may
request a review and may send Standard “written comments or other items to support your
claim.”21
In January 2012, Mayes applied for LTD Plan benefits. Standard created an
administrative record (“AR”) regarding Mayes’ claim that included all the documents submitted
to Standard by Mayes and her physicians, attorney, and employer. The AR also includes
documents Standard otherwise obtained while the claim was pending.
Medical Records Prior to March 2012
At various times between August 2011 and January 31, 2013, Mayes was examined and
treated by neurologist Dr. Harold Hess, pain management physician Dr. Joel Ackerman,
infectious disease physician Dr. Himal Bajracharya, vascular surgeon Dr. Prem Samuel,
cardiologist Dr. Bernard Levi, cardiologist Dr. Gerald Mancuso, vascular surgeon Dr. Jeffrey
Cameron, and primary care physician Dr. Lisa Schnick. Dr. Schnick is also a personal friend of
Mayes. Medical records from these physicians are included in the AR. None of these physicians
in the medical records state an explicit opinion that Mayes was physically or mentally unable to
perform the material and substantial duties of her own occupation and did not impose any
restrictions or limitations upon Mayes’ activities after January 30, 2012.
Yet, Mayes’ physicians made several notations in her medical records about her medical
conditions during the period leading up to her LTD claim. The AR reflects that Mayes
underwent lumbar spine surgery in 2008. Dr. Hess performed the bilateral L4-L5

21

AT at 499.

6

hemilaminotomy and discectomy. He treated Mayes on August 11, 2011, noting that despite
doing well after the surgery, she developed pain again in the right buttock radiating down the
right leg to the right foot about one year prior, which had “markedly increased about three weeks
ago.”22 Dr. Hess noted numbness and weakness in the right leg and after reviewing an MRI
scan, referred Mayes for lumbar epidurals, and to a vascular surgeon for an evaluation because
the MRI reportedly showed an abdominal aneurysm. Mayes was treated by Dr. Ackerman on
August 24, 2011 and was administered a lumbar epidural. Dr. Ackerman noted that Mayes
tolerated the procedure well and that she would continue with pain medication at the direction of
her primary care physician. During the course of his examination, Dr. Ackerman noted that
Mayes’ pain was rated between 7/10 and 10/10, and that she was not sleeping well.
Mayes suffered a heart attack, her second, on September 2, 2011.23 On September 6, she
underwent a quadruple bypass surgery24 performed by Dr. Samuel. Karen Johnson, D.O.
completed a consultation report on September 7, indicating a consultation for diabetes
management during Mayes’ hospitalization. The report indicates that Mayes suffered from new
onset diabetes and was prescribed medication for the condition.
On September 30, Mayes attended a follow-up visit with her primary care physician, Dr.
Schnick. Dr. Schnick observed that Plaintiff was “feeling pretty good but having a little bit of
memory issues and the first few nights at home was a little unstable. Much improved now.
She also needs some FMLA papers signed. No other issues today.” Dr. Schnick also recited

22

AR at 125.

23

Plaintiff’s first heart attack took place in March 2011.

24

At times, this procedure is referred to in the AR as coronary artery bypass grafting, or “CABG.”

7

Mayes’ medical history, which included her aortic aneurysm, the herniated disc in a new area,
and numbness in her right leg. The progress note explains that Mayes is not a good back surgery
candidate yet because of her heart condition. Mayes also presented with symptoms associated
with a tick bite.
Mayes returned to Dr. Ackerman on October 19, 2011 for an epidural steroid injection.
Dr. Ackerman observed symptoms of foot drop, however, Mayes informed Dr. Ackerman that
Dr. Hess had ruled out surgical intervention due to her heart condition.
On December 1, 2011, Mayes underwent an abdominal aortic aneurysm repair with aortic
stent placement, performed by Dr. Jeffrey Cameron. Dr. Cameron noted that Mayes “tolerated
the procedure well” and that she was “in stable and satisfactory condition” in recovery.25
Plaintiff had an appointment with Dr. Schnick on December 13, 2011, to follow-up on
her diabetes, and to conduct lab work. Dr. Schnick noted Mayes’ recent surgery and that Mayes
was doing “a little bit better” after having abdominal pain. Mayes asked for a stronger dose of
Cymbalta for her chronic back pain, and discussed her continued sleeping problems. Dr.
Schnick noted that her recently-prescribed Ambien caused her to be up “running around,” and
her husband was worried she could fall and injure herself. She also noted increased hot flashes
since her heart surgery.
Dr. Schnick provided Standard with an Attending Physician’s Statement on January 7,
2012, in conjunction with Mayes’ LTD claim. Dr. Schnick relayed Mayes’ heart condition and
her degenerative bone disease, resulting in a ruptured disc in July 2011 that requires surgery in
the “next few months.” Dr. Schnick recommended that Mayes stop working, describing Mayes’

25

AR at 80.

8

limitations as “Pt. w/ CABG & AAA repair physically weak & [reduced] mental capacity due to
O2 deprivation,” for sixty to ninety days from the date of the report.26 Dr. Schnick
recommended continued cardiac rehab until Mayes could undergo back surgery.
Also in January 2012, Mayes was treated by Dr. Ackerman and Dr. Hess. Dr. Ackerman
noted concern with Mayes’ foot weakness and that Mayes told him that Dr. Hess did not want to
entertain surgery for her back until March 2012, given her heart condition. Dr. Ackerman
recommend follow-up in two months to restart possible lumbar epidural steroid injections. Dr.
Hess presented Mayes with several alternative options to handle her right lumbar radiculopathy.
Mayes was to try to see if sitting in a slouched or leaning forward position helps her pain, which
would mean she was a candidate for nonsegmental instrumentation and fusion of L3-L4. The
other options would be a decompressive lumbar laminectomy, or a spinal cord stimulator trial.
Mayes was to return for a follow-up visit with Dr. Hess one week from January 27, 2012.
On February 8, 2012, Mayes underwent an echocardiogram stress test. A baseline ECG
was recorded and Mayes exercised for almost four minutes “to a maximal work rate of 7 mets.
Exercise was terminated due to chest discomfort, dyspnea, fatigue, and dizziness. Transthoracic
stress echocardiography. Image quality was adequate. There were no complications.”27 The test
results show that although the target heart rate was not achieved, the heart rate response was
normal and Mayes suffered no chest pain.
Mayes followed-up with Dr. Schnick on February 24, 2012 to go over her disability
forms. Mayes reported to Dr. Schnick that she was not feeling well after cardiac rehabilitation,

26

AR at 358.

27

AR at 269.

9

that she had increased fatigue, joint pain and muscle aches with occasional tingling in her
extremities, memory issues along with depression, and “significant issues with sleep.” Mayes
told Dr. Schnick that she does not feel that she will ever be able to go back to her normal job.
Dr. Schnick reported that Dr. Mancuso does not believe that Mayes’ issues were cardiac related
and that Mayes’ neurosurgeon has opted to put off back surgery a little bit longer due to Mayes’
other health issues, but that Mayes will “inevitably need something done because the stenosis
and her spine is pretty severe.”28 Dr. Mancuso noted at a February visit that Mayes has had
trouble working due to her chronic back pain, and that she struggles with low blood pressure and
fatigue. He noted that the December heart surgery set her back and that she had been “gone for
about a month for recovery.”29
Standard’s Review of the Medical Evidence
On February 27, 2012, Standard employee Terri Cazee, a nurse case manager, reviewed
Mayes’ medical records, including those provided by Dr. Ackerman from August 24, 2011 to
January 11, 2012; Dr. Samuel from September 2, 2011 to October 3, 2011; Dr. Cameron from
August 18, 2011 to January 16, 2012; St. Joseph Medical Center from September 2, 2011 to
September 12, 2011; Dr. Mancuso from October 6, 2011 to February 8, 2012; and from Fort
Scott Hospital from January 28, 2011 to January 16, 2012. Cazee provided answers to specific
questions regarding Mayes’ claim. She identified the following conditions reported by the
physicians as the source of impairment: a ruptured disc L5-S1 with compression to the S1 nerve
root, foot drop and weakness, two “MI’s” resulting in heart surgeries, and “DM” and

28

AR at 60.

29

AR at 162.

10

fibromyalgia that are not being treated aggressively. Cazee opined that the back condition would
preclude Mayes from sedentary to light full-time work activity for 21 to 28 days, but that
additional medical records were required to further evaluate the impairment. After Mayes’ first
heart surgery, Cazee opined that she would be precluded from sedentary to light level work for
up to 84 days. After the December surgery, Cazee opined that Mayes would be precluded from
sedentary to light work for 21 to 28 days, or until January 2, 2012. She based these estimates on
MDA Guidelines. Cazee stated that she was “unable to comment on the recovery of the low
back pain,” and recommended obtaining medical records from Dr. Hess, Dr. Mancuso, Dr.
Younger, a neurologist, and Dr. Schnick.
Dr. Albert Fuchs, who is board certified in internal medicine, provided Standard with a
Peer Review Report on Mayes. In his eight-page report, Dr. Fuchs set forth the medical
evidence he reviewed, which included an interview with Mayes’ primary care physician, Dr.
Schnick on March 27, 2012. He did not examine Mayes. Dr. Schnick signed a synopsis of their
conversation submitted to her from Dr. Fuchs, indicating that she agreed with his representation
of their phone conversation. She told Dr. Fuchs that the problem that most contributes to Mayes’
inability to work is her back pain, which also causes her insomnia and therefore sleep
deprivation. Dr. Schnick further reported to Dr. Fuchs that pain management was difficult with
Mayes because she does not tolerate opiate analgesics well. Dr. Fuchs asked Dr. Schnick about
her statement on January 7, 2012 that Mayes suffered from decreased mental capacity due to
brain hypoxia during her CABG. Dr. Fuchs asked if Mayes had been referred for neurocognitive
testing to better define this impairment; Dr. Schnick replied that Mayes had not. She told Dr.
Fuchs that “there could be other problems contributing to the patient’s inability to work, but that

11

the above are the only ones of which she is aware.”30
After reviewing the medical records, reports, MRIs, evaluation reports, and Cazee’s
report, and after interviewing Dr. Schnick, Dr. Fuchs concluded that Maye’s “limitations and
restrictions are not supported by the submitted medical records.”31 He determined that there is
no objective evidence of lingering symptoms attributable to her heart surgeries, nor to her back
pain. Dr. Fuchs explained that Dr. Ackerman as her pain specialist had not escalated her
prescribed analgesics, nor had any of the physicians referred Mayes to a sleep specialist. Dr.
Fuchs also dismissed Dr. Schnick’s reports of reduced mental capacity, explaining that there is
no support that the CABG caused decreased mental capacity other than the notes of subjective
complaints to Dr. Schnick. Dr. Fuchs noted that Mayes’ chronic sleep deprivation could be
treated more aggressively and yield symptomatic improvement.
Vocational Evidence
On March 13, 2012, Steven R. Cooper, Standard’s Vocational Case Manager, conducted
a job specialty report to determine Mayes’ “Own Occupation” as it is currently performed in the
general economy. Cooper reviewed Mayes’ statement, the employer’s statement, and the job
description, and concluded that Mayes’ own occupation best resembles the description for an
“Electronics Engineer,” which required light work strength capacity. Light work includes:
Exerting up to 20 pounds of force occasionally, and/or up to 10
pounds of force frequently, and/or a negligible amount of force
constantly (Constantly: activity or condition exists 2/3 or more of
the time) to move objects. Physical demand requirements are in
excess of those for Sedentary Work. Even though the weight lifted
may be only a negligible amount, a job should be rated Light
30

AR at 47.

31

AR at 53.

12

Work: (1) when it requires walking or standing to a significant
degree; or (2) when it requires sitting most of the time but entails
pushing, and/or pulling of arm or leg controls; and/or (3) when the
job requires working at a production rate pace entailing the
constant pushing and/or pulling of materials even though the
weight of those materials is negligible. NOTE: The constant stress
and strain of maintaining a production rate pace, especially in an
industrial setting, can be and is physically demanding for a worker
even though the amount of force exerted is negligible.32
Standard’s Initial Denial
Standard denied Mayes’ claim for LTD Plan benefits on April 3, 2012. The denial letter
quoted the LTD Plan’s definitions of disability. Standard determined that Mayes’ Own
Occupation was that of an Electronics Engineer, which, as performed in the national economy,
requires light work strength capacity. The letter proceeded to evaluate the medical evidence and
determined that it did not support the “Own Occupation” definition of disability. Standard’s
denial letter explains, in part:
A thorough review of your medical documentation was
conducted by a Physician Consultant. In his review of the
provided medical information, it supports that following both of
your surgical procedures (CABG September 6, 2011 and
abdominal aortic aneurysm repair on December 1, 2011), a
reasonable period of recovery would be required when there would
be limitations and restrictions that would preclude you from
performing your occupation. However, there is no indication that
there were any complications related to either procedure.
The available medical documentation indicates that you
have undergone the above mentioned procedures; however, you
would not be precluded from working following these procedures
after the Benefit Waiting Period, which ended on January 30,
2012. Medical records do not support any complications from
your procedures that would have precluded you from returning to
work.
Decision
32
AR at 455 (reciting the Dep’t of Labor Employment and Training Admin., Dictionary of Occupational
Titles (4th ed. rev. 1991) [hereinafter “DOT”]).

13

Upon review of the medical records from your treating
physicians, it is our determination that the available documentation
does not show evidence of limitations and restrictions from any
physical illness of a severity such that you would be precluded
from performing full-time work in your Own Occupation.
As such, your claim has been denied as you do not meet the
Own Occupation Definition of Disability under the Group Policy.33

On July 1, 2012, Mayes received a notice of disability award from the Social Security
Administration upon her initial application, effective starting in February 2012.34
Mayes sought review of Standard’s denial decision on September 28, 2012. As provided
by the Plan, this review was conducted by an independent reviewer separate from the individuals
who made the initial claim determination. Mayes submitted the following additional material to
Standard: (1) the Social Security Administration award letter; (2) updated medical records; and
(3) a transcribed statement from Mayes’ primary care physician, Dr. Schnick. Mayes argued that
Standard disregarded Dr. Schnick’s opinion in making the initial determination, and that
limitations imposed by her physicians prevent her from performing either her own occupation, or
any occupation. Mayes argued on appeal that Standard failed to consider the severity of her
condition, her multiple diagnoses in addition to her cardiac condition, and her multiple
medications and the compounding effect they have on her ability to perform the duties of her
own occupation.
Medical Evidence After March 2012
Dr. Ackerman continued to treat Mayes in April, May, and June 2012, noting her
persistent pain. He performed epidural steroid injections and discussed with Mayes the
33

AR at 390.

34

AR at 856–57.

14

possibility of a spinal cord stimulator as a method of treatment. Mayes also continued to be
treated by Dr. Schnick. Dr. Schnick noted during an April 6, 2012 visit that Mayes was upset
about her disability denial and that Mayes felt she could no longer work “at her same potentially
[sic] she did in the past.” Mayes again reported to Dr. Schnick loss of cognitive skills, affecting
her driving and her sleep. She reported continued back pain, as well as weight gain and
shortness of breath.35 In June, Dr. Schnick noted left Achilles pain accompanied by swelling in
the foot and ankle. Mayes continued to complain to Dr. Schnick of whole-body muscle and joint
pain, memory issues, heartburn, increased weight, and restless leg-type symptoms.36
Mayes participated in an overnight sleep study on August 2, 2012, conducted by
pulmonologist Dr. Sidney Devins. She was diagnosed with mild sleep apnea, after
demonstrating a fragmented sleep pattern. Dr. Devins further observed “no disturbance from
periodic leg movements.” Dr. Devins recommended overnight treatment with a nasal CPAP
based on the degree of daytime somnolence described by Mayes.
About one week after the sleep study, Mayes was admitted to the hospital for treatment
of an acute arterial occlusion in her right leg. Dr. Cameron performed surgical revascularization
and extracted a blood clot. The surgery went well and the hospital notes reflect that Mayes felt
symptom relief. She was discharged on August 13, 2014. She followed up with Dr. Cameron on
August 29, 2014, and had her staples removed. Dr. Cameron noted that she complained of
numbness over the sole of her foot with some mild anterior thigh pain, but stated that her
“surveillance looks very good today. . . . We will recheck her again in six months. Sooner

35

AR at 634.

36

AR at 633.

15

obviously if necessary.”37
On September 25, 2012, Mayes’ counsel obtained a sworn oral statement from Dr.
Schnick by telephone; it was transcribed by a court reporter.38 Dr. Schnick was not crossexamined, nor was Defendant present in person or through counsel. Dr. Schnick discussed
Plaintiff’s medical history, including her lower back issues for which surgery had been
postponed due to her heart surgeries. Dr. Schnick stated that Mayes’ condition had “[d]efinitely
deteriorated in just even the past year and a half or so. Ever since she started having severe back
pain, and then subsequently with her cardiac issues, went way downhill after that.”39 Schnick
explained that Mayes was not a candidate for back surgery, despite her severe back issues,
“[b]ecause of her extreme deteriorated cardiac condition.” She stated that the neurosurgeon
wanted to perform the surgery, but it would be too risky because she could not tolerate the
anesthesia.40
Dr. Schnick discussed her notations about Mayes’ diminished mental capacity and
oxygen deprivation: “I said she was physically weak. She had decreased mental capacity
secondary to oxygen deprivation and also sleep deprivation, and, then, pain from her back, so it’s
kind of multifactorial.” When asked why she did not recommend a mental status exam or a
neurocognitive test, Dr. Schnick said she had not
[b]ecause I’ve known the patient for several years, as I’ve already
stated, and at one of her follow-up visits, her husband was also

37

AR at 588.

38

AR at 741–62.

39

AR at 747:2–6.

40

AR at 749:24–750:4.

16

there. I think I have an office note that may even reference him
being present at one of the visits.
And he was saying that she gets up in the middle of the
night, she wanders around, she’s not sleeping, she doesn’t know
where she’s at. . . . [H]e would have to go try and find her because
they live kind of out in the country, so he didn’t want her to go
outside where there are animals, and he was, you know, fearful for
her health because she wasn’t really with it.41
Dr. Schnick further qualified her conversation with Dr. Fuchs on March 27, 2012. She stated
that the conversation centered around the conditions for which she treated Mayes, and that she
was not asked questions about Mayes’ cardiac condition.
Standard’s Review of the Medical Evidence on Appeal
In November 2012, Dr. Janette Green, who is board certified in internal medicine,
provided Standard with a second peer review of Mayes’ medical records, including the new
records submitted by Mayes. Dr. Green did not evaluate Mayes in person, but instead reviewed
records from Drs. Schnick, Samuel, Mancuso, Cameron, Ackerman, Johnson, and Hess. Dr.
Green provided her review and opinion in an eight-page report. The nurse case manager put
before Dr. Green several questions that she addressed in the report. She was asked first if the
medical records “support limitations or restrictions due to a combination of the claimant’s
multiple medical conditions and medication side effects that would have precluded her from
performing full-time light level work as described above beyond January 31, 2012? If so,
through what date?” Dr. Green responded:
After review of the available medical records, it is reasonable as of
January 31, 2012, and beyond that the claimant would be
precluded from light level occupations that require frequent
standing and walking (primarily due to her chronic back pain and

41

AR at 752:12–753:1.

17

aggravated by her multiple other medical conditions). However,
documentation does not support that the claimant would be
precluded from sedentary level or light level occupations that do
not require frequent standing or walking after January 31, 2012,
with the exception of a short period of time in August 2012 when
she was being treated for the stent thrombosis.42
Dr. Green was asked to describe Mayes’ reasonable limitations and restrictions supported by the
medical records as to her physical abilities during an eight-hour workday. She replied that her
limitations would preclude medium-level occupations and above, and would preclude her from
“light level occupations that require frequent standing or walking.”43
Dr. Green was also asked about Mayes’ cognitive functions because her “own occupation
requires above average general learning, verbal and numerical abilities, as well as above average
spatial and form perception.” Dr. Green responded that the documentation did not support that
Mayes had cognitive defects that would preclude her from the duties of her own occupation.44
Vocational Evidence on Review
On January 24, 2013, Karol Paquette prepared a memorandum to Mark Sampson, the
Standard Benefits Review Specialist assigned to Mayes’ claim, in response to his request that
she review and comment on the amount of standing and walking required to perform Mayes’
Own Occupation. Paquette reviewed the employer’s statement, Mayes’ statement, Mayes’ job
description, and the vocational review prepared by Cooper. She also spoke with a contact at the
CenturyLink office where Mayes worked, and she consulted the LTD Plan definition of Own
Occupation. Paquette opined that Mayes’ Own Occupation continues to be best described as an

42

AR at 516.

43

Id.

44

Id.

18

“Electronics Engineer” as described by the DOT, a light occupation. However, when evaluating
the definition of the DOT, she concluded that a number of different jobs within this occupation
may perform duties for specific employers that are not necessarily performed by all employers.
Based on the call with a CenturyLink contact, “the claimant’s job was sedentary in nature. The
claimant was working on the network system to do maintenance to the system and upgrades to
improve functions. . . . The claimant, and other engineers, performing this work were sitting at a
computer in a cubical for the work shift. They worked remotely with field technicians that
would be doing the physical upgrades . . . .”45
Paquette noted that her CenturyLink contact confirmed that Mayes’ Own Occupation was
sedentary and did not involve standing and walking except to go on a break. He also stated that
he believed Mayes worked remotely from home for awhile. “As the work is generally performed
in the national economy, it would be reasonable that the claimant could obtain work such as this
in her Own Occupation that would not require frequent standing and walking.”46
Standard’s Decision on Review
Standard denied the appeal on January 31, 2013 in a fourteen-page decision, which
considered the additional evidence provided on review, and addressed the issues raised in the
review letter. The final decision explains that Mayes exhausted her right to one independent
review under the terms of the Policy, but invited Mayes to submit any additional information
from Mayes’ social security file that she would like for Standard to consider. This lawsuit
followed on March 4, 2013.

45

AR at 445.

46

Id.

19

III.

Discussion
In its motion for summary judgment, Standard argues that its decision was not arbitrary

and capricious, citing the medical record, and arguing that it was not erroneous for Standard not
to defer to Dr. Schnick’s opinion that Mayes is disabled. Plaintiff advances several arguments in
her motion for summary judgment: (1) Standard changed its reason for denying her claim
between the initial denial and the denial on review; (2) Standard failed to sufficiently investigate
Mayes’ eligibility for benefits; (3) Standard selectively reviewed the evidence, therefore, its
decision cannot be based on substantial evidence, and (4) the administrative record supports
Mayes’ claim for benefits. The Court addresses the reasons cited by Standard for its denial and
Mayes’ challenges to Standard’s investigation and review of the administrative record. The
Court concludes that substantial evidence in the record, when evaluated against the backdrop of
the administrative record as a whole, supports Standard’s denial of LTD benefits in this matter.
A.

Reasons Provided by Standard for the Denial

ERISA requires plan administrators to provide claimants a reasonable opportunity for “a
full and fair review” of the denial decision.47 Mayes argues that she was not provided this
opportunity because Standard changed its reasons for the denial between the initial denial
decision and the decision on review. Mayes contends that because the vocational reviews
differed between the first and second denial decisions, it was impossible for her to provide the
necessary documentation to support her claim on review, making the claim a “moving target,”
and rendering Standard’s decision arbitrary and capricious.
The initial denial decision identifies Mayes’ Own Occupation as that of an Electronics

47

29 U.S.C. § 1133(2).

20

Engineer, which as performed in the national economy requires light work. The decision quotes
the DOT description of light work and, after summarizing its review of the medical evidence,
explains that Mayes’ physical illness would not preclude her from performing full-time work in
her Own Occupation, i.e, light work. The decision concludes that Mayes did not suffer
complications from either heart surgery and had concluded a reasonable period of recovery. In
its review of the medical evidence, the decision acknowledges Dr. Schnick’s notes that Mayes
suffered from diminished capacity from her heart procedure, but it noted that she has “not
received a mental status examination nor have you been referred for any neurocognitive
testing.”48 In addition to explaining that it did not find medical evidence to support Mayes’
disability claim, it also explained that the Physician Consultant, Dr. Fuchs, reviewed the medical
evidence and did not find evidence that Mayes’ medical issues preclude her from light work.
The initial decision explains the review process, including that if Mayes requests a
review, the person conducting the review may “consult with a medical professional with regard
to this claim. The medical professional will be someone who was not previously consulted in
connection with this claim.”49 The decision explains that if she seeks review, Mayes has the
right to submit additional information in support of her claim that she is unable to work as a
result of her medical condition after January 30, 2012.
Per Standard’s instructions, Mayes submitted a lengthy written appeal of the decision and
additional evidence in support of her claim, including the transcribed statement of Dr. Schnick.
The appeal raised several challenges to the initial decision: that Standard disregarded the opinion

48

AR at 389.

49

AR at 390.

21

of her treating physician, Dr. Schnick, in making the initial determination; that the limitations
imposed by her physicians prevent her from performing either her own occupation, or any
occupation; that Standard failed to consider the severity of her condition, her multiple diagnoses
in addition to her cardiac condition, and her multiple medications and the compounding effect
they have on her ability to perform the duties of her occupation. She continued to argue that she
suffered diminished mental capacity since her heart surgeries and that the initial decision ignored
that evidence.
The decision on appeal involved an independent review of the entire record, including the
updated evidence. A new vocational specialist considered the demands of Mayes’ “Own
Occupation,” and a new physician conducted a review of the medical evidence. Like the initial
decision, Standard determined that Mayes’ impairments do not rise to the level of severity to
render her unable to perform her Own Occupation. The lengthy decision considered all of the
information presented on initial review, as well as the additional information submitted by
Mayes on appeal.
While Mayes is correct that during the course of the review Standard changed its
assessment of the physical demands of her occupation, the Court does not find that this changed
the basis of Standard’s original decision. The decisions are consistent in finding that Mayes’
limitations do not rise to the level of disability under the “Own Occupation” definition in the
LTD Plan. The initial decision discussed Mayes’ medical conditions and found that they did not
prohibit the Light Work of an Electronics Engineer. But the first vocational specialist did not
discuss the specific physical requirements of Mayes’ job with anyone at CenturyLink. The
decision on review, in contrast, was based in part on the second vocational specialist’s interview

22

with Mayes’ employer, which explained the actual duties of Mayes’ job. The employer relayed
that Mayes performed her work while sitting at a computer and working remotely with field
technicians who managed the physical aspects of the job. This was part and parcel of Standard’s
independent review. Because Mayes’ actual job duties did not require standing or walking
except to go on break, the vocational specialist classified it as sedentary in nature, or a type of
light work that did not involve frequent standing and walking. Plaintiff sought and received an
independent review, which included a fresh vocational specialist, who considered more specific
evidence in determining the functional requirements of Mayes’ job.
Moreover, the decision on review explains that the medical evidence does not support “a
level of impairment due to any one or more of Ms. Mayes’ medical conditions that would have
prevented her from performing full-time sedentary or light level work beyond the end of the 180day Benefit Waiting Period.”50 This decision is consistent with the initial denial—the reviewers
did not find that her impairments prevented her from either sedentary or light work. It was not
arbitrary or capricious for Standard to make further findings on the functional requirements of
Mayes’ job.
Mayes contends that the decisions are a moving target. But her reliance on Holmstrom v.
Metropolitan Life Insurance Co.51 for this proposition is misplaced. The court in Holmstrom
explained that an insurer’s decision is arbitrary and capricious where it invites additional
evidence to establish disability, yet when provided with the requested evidence, finds that it was
not sufficient under new requirements or standards that had not been previously communicated

50

AR at 803 (emphasis added).

51

615 F.3d 758 (7th Cir. 2010).

23

to the insured.52 In that case, the Court found that the insurer “moved the target” by rejecting the
insured’s cognitive testing and functional capacity evaluation after making general requests for
them, on the basis that they failed to meet new requirements not previously disclosed.53 The
court also found arbitrary and capricious the insurer’s decision to discount medical evidence
produced after the termination of benefits, despite the fact that it requested the insured undergo
testing that by definition would take place after the cutoff.54
Here, the initial denial letter invited Mayes to submit evidence in support of her claim of
cognitive impairments—it mentioned the lack of a sleep study, and the lack of a mental status
examination or neurocognitive testing. On appeal, Mayes presented the results of a sleep study
but did not submit results or records about any other cognitive testing. Unlike the plaintiff in
Holmstrom, Mayes did not accept the insurer’s invitation to submit cognitive test results in
support of her claim that she suffered from diminished cognitive capacity. While Mayes did
submit the results of the sleep study, the decision on review did not apply a new requirement or
standard in rejecting this evidence; it simply observed that the results did not show a significant
enough impairment to allow a finding of disability under the terms of the Plan. The Court does
not find this to be arbitrary and capricious decision-making; instead, the two decisions are
consistent and reasonable applications of the language in the LTD Plan to the medical evidence
in the record both at the time of the initial determination, and on review.
B.

Standard’s Review of the Medical Evidence

52

Id. at 775–76.

53

Id. at 776.

54

Id.

24

Mayes argues that Standard’s decision was arbitrary and capricious because it failed to
properly investigate her claim for LTD benefits and selectively reviewed the medical evidence.
Specifically, she argues that Standard ignored its own reviewer’s recommendations to obtain
more information regarding her medical status, that it discounted medical opinions in support of
Mayes’ claim of disability, that it failed to consider the combination of Mayes’ conditions, that it
failed to consider the side effects of Mayes’ medications, and that it improperly discounted the
opinions of her treating physicians.
1.

Obligation to Obtain More Evidence

Mayes complains that the record includes recommendations from the nurse and physician
reviewers that additional documentation is needed to support certain claims of impairments. She
points to Cazee’s February 2012 review, where she identified several areas that required
additional medical records to support the impairment claim; Dr. Fuch’s March 2012 review
recommending neurocognitive testing, and Dr. Green’s review that cited a lack of “physical
exam,” cognitive testing or other diagnostic studies. First, the Court notes that “nothing in
ERISA requires plan administrators to go fishing for evidence favorable to a claim when it has
not been brought to their attention that such evidence exists.”55 But the Court must also look to
the Plan itself to determine the standards that apply to the duty to investigate the claim.56 The
Proof of Loss provision of the LTD Plan requires the claimant to provide Standard with written
Proof of Loss that she is disabled and entitled to benefits at the claimant’s expense.57

55

Holt v. Cont’l Cas. Co., 379 F. Supp. 2d 1157, 1175 (D. Kan. 2005) (quoting Gaither v. Aetna Life Ins.
Co., 394 F.3d 792, 804 (10th Cir. 2004)).
56

Gaither, 394 F.3d at 804.

57

AR at 498.

25

“Completed claims statements, a signed authorization for us to obtain information, and any other
items we may reasonably require in support of a claim must be submitted at your expense.”58
While the Court observes that the Plan does provide the administrator with discretion to
require a claimant to submit certain evidence in support of a claim, Mayes is unable to point this
Court to any additional medical evidence she could have mustered to support her claimed
impairments in this case. There is no indication that Standard did not request documentation
from all of her many physicians, or that medical evidence exists to support her claim that was not
requested. Going back to the initial decision, it explained that neither Mayes’ back problems nor
her cardiac condition were severe enough to preclude her from working in her Own Occupation
after the waiting period expired. The decision did note that perhaps the claim in Dr. Schnick’s
January 7, 2012 treatment note about Mayes’ cognitive impairment could prohibit her from light
work, and noted that further testing might support this. The decision invited Mayes to submit
such evidence if she decided to seek an independent review.
Mayes contends that both Dr. Fuchs and Dr. Green note Mayes’ complaints of cognitive
defects “throughout their reviews.” This is a misleading characterization of these reviews. To
be sure, several physicians noted her complaints of fatigue, but only Dr. Schnick discussed
cognitive impairments which she surmised were tied to loss of oxygen during the heart surgery.
And Dr. Schnick’s statements rely on Mayes’ subjective complaints of decreased mental
capacity. Standard encouraged Mayes to produce more evidence on review to support her claim
of cognitive impairment; specifically, objective medical evidence in support of that claim. On
review, Mayes did undergo a sleep study, however, she did not submit any other diagnostic

58

AR at 499.

26

records that might substantiate Dr. Schnick’s note about mental impairment. Instead, Mayes
relied on Dr. Schnick’s telephonic statement where she reiterated her treatment note that Mayes
complained of diminished mental capacity since her heart surgeries, and that she suffered from
insomnia. Dr. Schnick suggested that much of the cognitive decline was due to Mayes’
insomnia, explaining how concerned Mayes’ husband had been about that issue.
The Court cannot find that Standard’s decision was arbitrary and capricious for not
requesting additional medical evidence. It is true that “fiduciaries cannot shut their eyes to
readily available information when the evidence in the record suggests that the information
might confirm the beneficiary’s theory of entitlement and when they have little or no evidence in
the record to refute that theory.”59 But here, Standard addressed Mayes’ assertion of a mental
impairment and found that it was not supported by evidence in the record; evidence that it
invited Mayes to submit on review. Its decision was based on much more than a scintilla of
evidence. The record supports Mayes’ claim of insomnia; the objective medical evidence
substantiates that she suffers from mild sleep apnea, which is treatable. No further objective
evidence of cognitive impairment was presented by Mayes and it was not arbitrary and
capricious for Standard not to specifically request further evidence of such impairment. Mayes’
argument appears to conflate Standard’s review of the medical evidence in the record, finding it
does not support her disability claim, with the duty to seek additional evidence to substantiate
Mayes’ claim. As stated, the insurer does not have an affirmative duty under ERISA to seek out
evidence to support a claim of disability under these circumstances and the Plan here does not
impose any heightened requirement. Given the length and detail in both denial decisions, Mayes

59

Benson v. Hartford Life & Acc. Ins. Co., 511 F. App’x 680, 685–86 (10th Cir. 2013).

27

was fully armed with the notice required under ERISA in order to challenge the decision on
review, and appeal to this Court.60
2.

Consideration of Certain Medical Evidence

Next, Mayes points to medical evidence that she contends should have been given more
weight in the final decision—Dr. Green’s opinion that Mayes was precluded from performing
certain light work, the co-morbidity of her multiple conditions, and the side effects of her
medications. The Court finds these challenges unavailing. First, Mayes’ contention that Dr.
Green determined that she was “totally disabled” is not an accurate statement of the record. Dr.
Green did not make such a finding. Furthermore, Standard did not omit Dr. Green’s conclusion
about her functional capacity in its final decision. The final decision stated that the consulting
internist found that the medical records do not support impairments that would prevent her from
performing sedentary or light level work that does not require frequent standing and walking.
Dr. Green explicitly concluded that Mayes would be precluded from performing light level work
that requires frequent standing and walking. These conclusions are entirely consistent.
Standard also considered the myriad impairments included in the medical record to
determine if she was disabled as defined in the Plan. The decisions discuss her back problems,
cardiac issues, diabetes, Lyme Disease, surgical procedures, depression, insomnia, and
diminished cognitive abilities. Mayes’ contention that Standard’s decision hinged on Nurse
Cazee’s review, which only addressed her cardiac condition, is not supported by the record. The
record reflects that Dr. Fuchs reviewed the medical records after Nurse Cazee’s review, and that
he interviewed Dr. Schnick. Dr. Green preformed an independent review of the medical

60

See 29 C.F.R. § 2560.503-1(g).

28

evidence, as supplemented, before the final decision was issued, including evidence obtained
long after Cazee’s review.
Mayes complains that Dr. Fuchs’ communication with Dr. Schnick was incomplete, but
this too is unsupported by the record. First, Dr. Schnick signed a statement sent by Dr. Fuch’s
that summarized her statements during this phone call, affirming that it was an accurate
representation of their conversation. There is no evidence that she attempted to correct or clarify
any of her statements to him during that initial review. Moreover, on appeal, Mayes submitted
what is essentially an ex parte deposition of Dr. Schnick, which Standard considered and
addressed in its final decision.
Finally, Mayes’ contention that Standard failed to consider the side effects of her many
medications is unavailing. Again, the record does not support this characterization of Standard’s
decision. In Mayes’ appeal letter, her attorney listed all of her medications and then generically
listed potential side effects. Standard’s final decision addressed this argument and found that the
evidence did not support that this claimant suffered from the side effects discussed: “we
understand that many medications may have side effects. . . . Therefore, in evaluating any
possible functional impairment resulting from medication side effects, we look at the claimant’s
medical records for documentation of subjective reports or clinical observations.”61
To be sure, the evidence supports Mayes’ claim that she was on an extensive medication
regimen for her many medical issues, but as Standard explained, the administrative record does
not support her contention that she suffered from side effects that impaired her ability to work.
The only evidence in the record along these lines involved the medication prescribed for her

61

AR at 794.

29

insomnia. As Dr. Green observed, Mayes described side effects to Dr. Schnick associated with
one of her sleep aid medications, at which point it was discontinued and a new medication was
prescribed. Standard determined that while Mayes may have established that the many
medications she was prescribed have potential side effects, she did not support with medical
evidence that she in fact suffered from those side effects. This conclusion is supported by more
than a scintilla of evidence and the Court declines to find it was arbitrary and capricious.
3.

Deference to Treating Physicians’ Opinions

Mayes contends that Standard ignored the opinions of her treating physicians that she is
disabled when it denied her LTD claim. Mayes argues that she does not contend that Standard
should have deferred to her treating physicians, instead, she argues that Standard ignored them
entirely. The Court does not find this to be an accurate representation of Standard’s decision
denying benefits. It is clear from a review of both the initial denial decision and the final denial
decision, that Standard reviewed the medical evidence submitted by Mayes’ treating physicians.
The fact that it interprets them differently than Mayes is not the same thing as ignoring them, as
she contends. Mayes generally argues that they “consistently reported that Mayes has remained
totally unable to return to work in any capacity.” But in discussing the specific medical records,
Mayes points to records of her complaints to physicians of pain, fatigue, memory loss,
numbness, weakness and chest pain. The denial decisions discussed these reports in detail and
Mayes points the Court to no medical evidence in the record speaking to her functional capacity
to perform her job as a result of these issues, other than those of Dr. Schnick.
After considering Dr. Schnick’s treatment notes and her sworn statement, Standard
concluded that her opinion on disability was not determinative. “It is well settled that ERISA

30

does not require plan administrators to ‘accord special deference to the opinions of treating
physicians,’ nor does it place ‘a heightened burden of explanation on administrators when they
reject a treating physician’s opinion.’”62 The final decision spends approximately two pages
addressing Dr. Schnick’s sworn statement; it did not ignore her opinion. Instead, Standard
concluded that Dr. Schnick’s assessment was based primarily on Mayes’ subjective complaints
and not on objective medical data; it could not corroborate her opinions on any of Mayes’ health
conditions with the specialists’ records or other objective tests.63 Standard explained that
“[w]hile we have considered and appreciate Dr. Schnick’s comments, we do not find that Dr.
Schnick’s statement provides a persuasive rationale for concluding that Ms. Mayes’ [sic]
remained Disabled beyond the end of the Benefit Waiting Period.”64 It was not arbitrary and
capricious for Standard not to credit Dr. Schnick’s opinion that Mayes was disabled.
The Court further finds that, contrary to Mayes’ contention, Standard did consider and
weigh her other treating physicians’ opinions. Both of Standard’s written decisions relied on
physician consultants who reviewed all of the medical evidence and attempted to synthesize the
many physicians’ recommendations and treatments for her myriad medical conditions. These
reviewing physicians could not identify any other treating physician record that supported a
finding of disability other than Dr. Schnick. Indeed, Mayes points this Court to no other treating
physician opinion in the record stating that Mayes was precluded from performing her job after

62

Berges v. Standard Ins. Co., 704 F. Supp. 2d 1149, 1189 (D. Kan. 2010) (citing Rasenack ex rel. Tribolet
v. AIG Life Ins. Co., 585 F.3d 1311, 1325 (10th Cir. 2009) (quoting Black & Decker Disability Plan v. Nord, 538
U.S. 822, 823 (2003))).
63

Kimber v. Thiokol Corp., 196 F.3d 1092, 1099 (10th Cir. 1999).

64

AR at 802.

31

January 30, 2012. Based on their review of the medical records, both consulting physicians
determined that Mayes could perform the functions of her occupation and Plaintiff pointed
Standard to no other physician opinion other than Dr. Schnick that controverted these
determinations.
There is no dispute that Mayes suffers from several serious medical issues, for which she
was prescribed numerous medications. However, Plaintiff failed to present objective medical
evidence of the degree of her fatigue, pain, or cognitive impairment that would allow this Court
to determine that Standard’s decision was not supported by substantial evidence. There is no
abuse of discretion in denying benefits to a claimant who failed to present “reasonable medical
evidence concerning the severity of her condition or how it affected her ability to work.”65
C.

Standard’s Review of the Vocational Evidence

Mayes argues that Standard erred by failing to conduct a vocational assessment to
determine Mayes’ employability or ability to work, and based on her actual job duties. She
argues that Standard evaluated her functional capabilities such as sitting and standing, rather
than her ability to perform the material duties of her Own Occupation. Under the Plan, disability
is defined in this context as being unable to perform the “material duties” of her Own
Occupation. “Material Duties” under the Plan
means the essential tasks, functions and operations, and the skills,
abilities, knowledge, training and experience, generally required
by employers from those engaged in a particular occupation that
cannot be reasonably modified or omitted. In no event will we
consider working an average of more than 40 hours per week to be
a Material Duty.66
65

Gilbertson v. Alliedsignal, Inc., 172 F. App’x 857, 861 (10th Cir. 2006).

66

AR at 487.

32

Mayes contends that Standard never inquired into the requirements of her job and instead
focused on what is not required—standing and walking. Mayes further argues that Standard did
not take into account her non-exertional limitations—cognition, stamina, fatigue, and ability to
handle stress.
The Court finds that Standard’s assessment of the material duties of Mayes’ Own
Occupation, as defined in the Plan, was not arbitrary and capricious. As already discussed in
detail, Standard considered several sources of evidence in determining the material duties of her
occupation as an Electronics Engineer, and relied on the DOT definitions, as well as the
employer’s description of that job in determining whether Mayes’ limitations precluded her from
working. Moreover, as already described, Standard concluded that there was not sufficient
evidence in the record to support Mayes’ claim of non-exertional impairments, so to the extent
she claims that her fatigue and cognitive limitations precluded her from working, the Court had
already found that Standard’s determination was supported by substantial evidence.
D.

Social Security Determination

Mayes challenges Standard’s decision because it did not give weight to her disability
benefits award by the Social Security Administration (“SSA”). Mayes concedes however, that
an award of disability benefits does not dictate a finding of LTD benefits in this case, as there are
“critical differences between the Social Security disability program and ERISA benefit plans.”67
Here, Standard found that the SSA award letter was not persuasive evidence of disability
because it was an initial award letter that contained no explicit findings. Of course, in order to
be awarded disability benefits, the SSA had to find that Mayes was entitled to those benefits. A

67

Black & Decker Disability Plan v. Nord, 538 U.S. 822, 832 (2003).

33

social security applicant “shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable to do his
previous work but cannot, considering his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national economy.”68
But Standard explained in its final denial letter that the SSA did not issue a written
decision with factual findings, therefore there is no indication that the SSA found that Mayes
suffers from a level of impairment that precludes full-time sedentary work, or light work that
does not require frequent standing or walking beyond January 30, 2012. Likewise, there is no
indication in the record as to the particular impairment or impairments that the SSA found severe
enough to preclude Mayes’ work. Moreover, unlike under the Social Security scheme, here the
plan administrator need not give controlling weight to a treating physician’s opinion over the
opinion of a consulting physician.69 Given the lack of information about the basis of the SSA’s
decision, it was not arbitrary and capricious for Standard to afford it little weight.
IV.

Conclusion
In sum, the Court finds that even giving some limited weight to Standard’s conflict of

interest in this matter, its decision denying Mayes’ LTD benefits was not arbitrary and
capricious, and was supported by substantial evidence in the administrative record. Much of
Mayes’ challenge before this Court centers around her contention that Standard had an
affirmative duty to harness further evidence in support of her disability claim. While Mayes is
correct that in certain circumstances the fiduciary has such a duty, it is not the sweeping rule that

68

42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).

69

See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).

34

she represents in her appeal. Gaither did not hold that “the administrator must pore over the
record for possible bases for disability that the claimant has not explicitly argued, or consider
whether further inquiry might unearth additional evidence.”70 Here, Standard reviewed the
administrative record, rendered a detailed decision, and allowed Mayes a full and fair
opportunity for an independent review. After considering additional evidence and argument
from Mayes, Standard reconsidered but ultimately upheld its original denial decision. The
investigation did not violate ERISA and its decision was not arbitrary and capricious.71 In
upholding Standard’s denial of LTD benefits, the Court makes no finding as to whether
Standard’s was the best, or “superlative” decision; rather, the Court concludes that Standard’s
decision was made in good faith and on a reasoned basis.
IT IS THEREFORE ORDERED BY THE COURT that Defendant The Standard
Insurance Company’s Motion for Summary Judgment (Doc. 32) is granted; Plaintiff Jody
Mayes’ Motion for Summary Judgment (Doc. 35) is denied.
IT IS SO ORDERED.
Dated: September 24, 2014
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

70

Gaither v. Aetna Life Ins. Co., 394 F.3d 792, 807 (10th Cir. 2004).

71

See Benson v. Hartford Life & Acc. Ins. Co., 511 F. App’x 680, 686 (10th Cir. 2013).

35