Parker v. Sun Life Assurance Company of Canada et al

Filing 58

MEMORANDUM AND ORDER denying 43 Motion for Summary Judgment; granting 40 Motion for Summary Judgment. Signed by Chief District Judge Julie A Robinson on 9/22/2017. (ydm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CRAIG PARKER,
Plaintiff,
v.

Case No. 16-2554-JAR

SUN LIFE ASSURANCE COMPANY OF
CANADA,
Defendant.

MEMORANDUM AND ORDER
Plaintiff Craig Parker brings this action under the Employee Retirement Income Security
Act of 1974 (“ERISA”), seeking judicial review of Defendant Sun Life Assurance Company of
Canada’s denial of his claim for long-term disability benefits. This matter is before the Court on
the parties’ cross motions for summary judgment (Docs. 40 and 43). For the reasons stated
below, the Court denies Plaintiff’s motion for summary judgment and grants Defendant’s motion
for summary judgment.
I.

Uncontroverted Facts
A.

The Parties and the Plan

Plaintiff is a 56-year-old former engineer for Garmin International, Inc. (“Garmin”). He
began working as an engineer for Garmin in January of 1997. He stopped working for Garmin
on or about April 4, 2014, claiming he suffered from chronic fatigue, fibromyalgia, irritable
bowel syndrome (“IBS”), and adrenal insufficiency.1 When he left Garmin, he was a Design

1

AR at 31, 294.

1

Engineering Team Leader, responsible for “[d]irect[ing] and coordinat[ing] activities of an
Electrical Engineering team that is responsible for developing electronic components, products,
and systems.”2 Plaintiff was a salaried exempt employee with an annual salary of $132,069.60,
paid $5,079.60 every two weeks.3
Garmin sponsored an employee welfare plan that provided long-term disability (“LTD”)
benefits to eligible, qualifying participants. This plan is fully funded by a group insurance policy
Garmin purchased from Defendant (the “Plan”). Plaintiff was a participant of the Plan.
The Plan provides LTD benefits of 60% of the employee’s Total Monthly Earnings with
a maximum monthly benefit of $6,000 under the following circumstances:4
If Defendant receives Notice and Proof of Claim that an Employee is Totally or
Partially Disabled, a Net Monthly Benefit will be payable, subject to the
Limitations and Exclusions.
Proof of Total or Partial Disability must be given to Defendant upon request and at the
Employee’s expense.
To be eligible to receive a Net Monthly Benefit, the Employee must:
1.
satisfy the Elimination Period with the required days of Total or Partial
Disability;
2.

provide proof of continued Total or Partial Disability; and

3.
have regular and continuing care by a Physician who provides appropriate
treatment and regular examination and testing in accordance with the disabling
condition.5
For salaried exempt employees such as Plaintiff, the Plan contains the following
applicable definitions:
Material and Substantial Duties means, but is not limited to, the essential tasks,
functions, skills or responsibilities required by employers for the performance of

2

AR at 272.

3

AR at 549.

4

AR at 90.

5

AR at 127.

2

the Employee’s Own Occupation. Material and Substantial Duties does not
include any tasks, functions, skills or responsibilities that could be reasonably
modified or omitted from the Employee’s Own Occupation.
Own Occupation means the usual and customary employment, business, trade,
profession or vocation that the Employee performed as it is generally recognized
in the national economy immediately prior to the first date Total or Partial
Disability began. Own Occupation is not limited to the job or position the
Employee performed for the Employer or performed at any specific location.
Total Disability or Totally Disabled means the Employee, because of Injury or
Sickness, is unable to perform the Material and Substantial Duties of his Own
Occupation.
***
To qualify for benefits, the Employee must satisfy the Elimination Period with the
required number of days of Total Disability, Partial Disability or a combination of
days of Total and Partial Disability.6
The Plan provides that Defendant has discretionary authority to determine benefit
eligibility and interpret the terms of the Plan.7 This discretionary authority includes the right to
determine eligibility for benefits, the amount of benefits due, and to construe the terms of the
Plan.
B.

Plaintiff’s Claim for LTD Benefits

On October 9, 2014, Defendant received Plaintiff’s form request for LTD benefits, dated
September 29, 2014.8 In section 2 of the form, Plaintiff indicated that he first noticed symptoms
of his illness in March 2012, and described the nature of his illness/condition as “Dizziness,
sweating, and muscle spasms after eating. Symptoms have increased since that time.”9 Plaintiff

6

AR at 101–02.

7

AR at 145.

8

AR at 31–40.

9

AR at 31.

3

listed April 4, 2014, as the last day he worked, and April 7, 2014, as the first day he was unable
to work.10
In a letter dated October 22, 2014, Defendant acknowledged receipt of Plaintiff’s claim
for LTD benefits and informed him that it was awaiting documents from his employer and an
Attending Physician’s Statement (“APS”) to be completed by his treating doctor.11 Defendant
requested Plaintiff contact it to conduct a telephone interview. It also advised that it had
requested records from his doctors and explained the timeframe for its written decision.12
After receiving the requested medical records, Defendant obtained medical records
reviews from two registered nurses (“RN”) and an occupational analysis from a vocational
consultant. The latter stated, based on her review of the employer’s statement and job
description and the Economic Research Institute (“ERI”) Occupational Assessor:
[Plaintiff’s] occupation [of Design Engineering Supervisor] typically exists in the
national economy, according to ERI, at a Light exertion level – 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 to move objects. Physical demand
requirements are in excess of those for Sedentary Work. Sitting is required
frequently and standing and walking are is [sic] required occasionally.
This occupation also typically requires:
Frequent: reaching, talking, handling, keyboarding, hearing, near acuity, depth
perception
Occasional: reaching upwards, reaching downwards, fingering, sit/stand option,
far acuity and accommodation
***
The employer statement indicates that no lifting/carrying any weight is required.
This requirement is less than what is required for this occupation as it typically
exists in the national economy.13

10

Id.

11

AR at 173.

12

Id.

13

AR at 461 (emphasis in original).

4

Both nurses opined that there was insufficient objective evidence in the current medical records
to support Plaintiff’s claim that he was unable to perform his job.14 Despite these opinions, after
talking to Plaintiff, Defendant referred the matter for a second level review by a medical doctor
(“MD”) before making a final determination.15
On February 27, 2015, Calvin P. Fuhrmann, M.D., opined the following in his report to
Defendant:16
1. [When Plaintiff had double vision, Plaintiff could not work; but this condition
had cleared completely after vitamin therapy.]17
2. [With respect to the claimant’s intermittent symptoms of fatigue, muscle
weakness, and generalized pain, it] is my considered medical opinion that [he]
would be able to function in his usual capacity provided he was given periods of
time to rest and this might translate into part-time employment. . . . I do not
believe at the present time the claimant is totally unable to carry out his full-time
activities, and this is confirmed by the [APS] completed by Dr. Brown in which
he said the claimant’s symptoms are intermittent.18
3. A diagnosis of fibromyalgia and chronic fatigue syndrome is supported.19
4. I am unable to identify any specific event or significant change in the
claimant’s symptomatology other than the fact that he reached a point where he
described to his physician that he could not work on a full-time basis.20
5. As noted, issues regarding when and how he can work on a full-time basis are
still open. What is quite clear is that if he is given appropriate time to rest that he
will be able to work on a part-time basis and work through this. Dr. Brown has
indicated that he is likely to improve over a 12-to-26-week period. This statement
was made in September [2014]. It is apparent to me that the claimant’s condition
should be reaching the point where he can return to full-time activity. . . . [A

14

AR at 370, 460.

15

AR at 467.

16

AR at 476–79.

17

AR at 477. Plaintiff had reported double vision beginning around May 2014 and was diagnosed with
possible fourth nerve palsy; he wore prism glasses and took B12 and Folate; and by early July 2014, the symptoms
resolved. AR at 460.
18

AR at 477–78.

19

AR at 478.

20

Id.

5

diagnosis for chronic Lyme disease] is not supported by the records . . .
reviewed.21
Based on Dr. Fuhrmann’s report, Defendant approved Plaintiff’s request for LTD
benefits for a specific period – July 15, 2014 through February 28, 2015. Defendant gave
Plaintiff its written decision via a letter dated March 3, 2015.22 In that letter, Defendant set forth
the date of disability as April 7, 2014, calculated Plaintiff’s benefits as $6,000 per month with
accrual beginning on July 15, 2014, explained the first check represents benefits payable from
July 15, 2014 through February 28, 2015, and future checks will be mailed around the twentieth
of the month.23 The letter stated, in pertinent part:
Your claim for Long Term Disability has been approved under the diagnosis of
Chronic Fatigue Syndrome and Fibromyalgia and is subject to [a 24-month
limitation].24
***
[B]enefits are issued on a monthly basis subject to ongoing proof of Total or
Partial Disability. Any benefits payable are issued at the end of each month of
continued disability. To assist you with sending ongoing proof of loss, we
commonly forward periodic attending physician’s statements, statements of
information, and activity questionnaires. These forms when completed fully and
properly, generally will provide sufficient information to determine ongoing
benefit eligibility. Please note, however, that sometimes this information may not
be sufficient, and we may require further documentation to determine if you
qualify for ongoing benefits.
The policy provides a Long Term Disability benefit for a potential maximum
benefit period to age 67. For the first 24 months of the benefit period, “total
disability” is evaluated against your ability/inability to perform your own
occupation as it existed immediately before any period of disability for which a
claim is filed. After benefits have been paid for 24 months, “total disability” is

21

AR at 478, 298.

22

AR at 483–87.

23

AR at 483.

24

AR at 485.

6

evaluated against your ability/inability to perform any gainful occupation for
which you are/become suited given your education, training and experience.25
Consistent with the above, on April 8, 2015, Defendant requested Plaintiff have his
treating doctors submit statements for his ongoing claim. Drs. Michael Brown and Jude LaClaire
submitted APSs on Plaintiff’s behalf.
In a letter dated May 8, 2015, Defendant suspended Plaintiff’s LTD benefits as of March
31, 2015, because the then current clinical data did not support total disability beyond that date.
Defendant explained, in pertinent part:
The Attending Physician Statement signed by Dr. Brown on 4/21/15; although
indicated medium function, he also advised your condition is unchanged and that
your physical restrictions and limitation[s] vary daily which is conducive (sic)
with a diagnosis of Fibromyalgia and Chronic fatigue. Dr. Brown originally felt
you were likely to improve over a 12-26 week period which it appears you have
with the given opinion of Dr. Brown that you are capable of medium function[;]
however we are aware of the Behavioral component that may impact your sustain
(sic) function and therefore have requested your claim be reviewed by our
medical consultant regarding the Behavioral component. We did not receive the
documentation regarding Dr. LaClairs (sic) treatment from you until April 28,
2015 and we need to allow time for the review before making a determination of
support of continued Total Disability.26
Defendant thereafter referred the matter for a psychiatric consultant review and another
MD review. Defendant received a report from Lisa Jacobus, MSW, LICSW, and a second
memorandum from Dr. Fuhrmann. On May 14, 2015, Jacobus wrote:
Documentation in the file does not provide support for an incapacitating
psychiatric disorder impacting the claimant’s ability to function including ability
to work. Records do not contain sufficient clinical information such as
comprehensive mental status exam results or information on limitations in day-today functioning to support an incapacitating psychiatric condition. In fact, mental
status exam findings that were provided from his primary care provider are mostly
unremarkable.

25

AR at 486.

26

AR at 547.

7

Someone with an incapacitating psychiatric condition would be expected to be
engaged in intensive psychotherapy and medication management with a specialist
in psychiatric care. Although the claimant is engaged in psychotherapy, he is not
engaged in medication management. Of note, the onset of treatment with a
therapist, following his last day of work is not necessarily reflective of someone
with an incapacitating psychiatric condition.27
On July 25, 2015, Dr. Fuhrman wrote, in pertinent part:
1. [Plaintiff] was seen and evaluated by Dr. Stephen Waller … [who] provided a
very detailed analysis of [Plaintiff’s] clinical findings. It was Dr. Waller’s
[conclusion] that [Plaintiff] did not have evidence of Lyme disease, he did not
have evidence of infectious meningitis, and . . . clearly noted that [Plaintiff’s]
mental status was essentially normal… It is my considered opinion that [Plaintiff]
had obviously shown significant improvement in his overall central nervous
system issues with particular attention to his memory and that the other symptoms
of muscle fatigue and weakness were not of the degree that would prevent him
from carrying out his usual activities. . . Based on the recently received medical
records, it is my considered medical opinion that the claimant does not have
evidence of chronic Lyme disease, that his overall symptoms have improved from
the point of view of his sinuses, and that there is nothing objective at the present
time to corroborate his issues regarding cognitive dysfunction or so-called brain
fog.
2. [Plaintiff] does have chronic sinus disease with evidence of functional
abnormalities. The claimant has not been on standard therapy for sinusitis as
noted and he is currently being followed by a naturopath with a list of apparently
21-plus medications and supplements that have been provided. It is my
considered medical opinion that at the present time the claimant’s condition has
stabilized. He has undergone appropriate sinus surgery. He has been seen by an
infectious disease specialist and a pulmonologist, and it is apparent that his
condition is such that he would be capable of carrying out full-time sedentary
activities.
3. Dr. Waller . . . noted [Plaintiff’s] mental status had improved significantly to
the point where he was able to relate in significant detail the various aspects of his
past medical history, clearly demonstrating that his mental status was not
impaired. It should be noted that the claimant was referred for
neuropsychological testing and when this information is made available, it will
shed further light on his condition. However, what is clear, and it is my
considered medical opinion, is that the claimant at the current time is fit for
duty.28

27

AR at 564.

28

AR at 604–07.

8

Based on these recent consultant reports, Defendant rendered its decision denying LTD
benefits beyond March 31, 2015, in a letter dated July 30, 2015 (the “Denial Letter”), stating:
We have determined that you are not eligible for Long Term Disability benefits
under the terms and conditions of Group Policy No. 231948 issued to Garmin
International Incorporated. In conclusion it is our medical staff’s opinion that you
have the ability to perform a sedentary level of activity on a sustained basis
throughout the day and that based on the current clinical notes the medical
documentation does not provide any objective evidence to support any restrictions
or limitations from performing the material and substantial duties of your own
occupation.
We have determined that you have not satisfied the definition of Total Disability,
as defined, to be eligible for continued Long Term Disability benefit
consideration and we are formally denying your claim at this time. Benefits have
been paid through March 31, 2015 and benefits beyond this date are denied.29
On October 1, 2015, Plaintiff requested an appeal of the July 30 decision. After receiving
additional information, Defendant referred Plaintiff’s claim for yet another independent medical
and psychological records review. Kevin Trangle, M.D., did the medical records review, while
Robert P. Odgers, PhD, ABPP, did the neuropsychological file review.
After reviewing their analyses, in a letter dated April 11, 2016, Defendant upheld its
previous determination to terminate Plaintiff’s claim effective March 31, 2015 (the “Appeal
Denial Letter”).30 On August 11, 2016, Plaintiff filed the present lawsuit, claiming Defendant’s
denial of LTD benefits was arbitrary and capricious.31

29

AR at 618.

30

AR at 1004–12.

31

AR at 1017–25.

9

II.

Standards of Review
A.

Summary Judgment Standard

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.”32
A fact is only material if a dispute over it would affect the outcome of the suit.33 An issue is only
genuine if it “is such that a reasonable jury could return a verdict for the nonmoving party.”34
“Where, as here, the parties file cross-motions for summary judgment, [the Court is]
entitled to assume that no evidence needs to be considered other than that filed by the parties, but
summary judgment is nevertheless inappropriate if disputes remain as to material facts.”35 The
Court considers cross-motions separately: the denial of one does not require the grant of the
other.36 “To the extent the cross-motions overlap, however, the Court may address the legal
arguments together.”37 The material facts are undisputed in this case, and the legal issues
asserted with respect to both motions are identical. The Court will therefore address those issues
together.
B.

Review of Adverse Benefits Determination

ERISA gives Plaintiff, as plan beneficiary, the right to federal court review of the denial
of his disability benefits.38 “[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

32

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

33

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

34

Id.

35

James Barlow Family Ltd. P’ship v. David M. Munson, Inc., 132 F.3d 1316, 1319 (10th Cir. 1997)
(citation omitted).
36

Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979).

37

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

38

29 U.S.C. § 1132(a)(1)(B).

10

plan’s administrator in the course of making its decision.”39 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.”40
The Plan provides discretionary authority to Defendant 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.”41 Under this standard, “review is
limited to determining whether the interpretation of the plan was reasonable and made in good
faith.”42 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.”43 “Consequently, the Tenth Circuit has observed that the arbitrary and
capricious standard ‘is a difficult one for a claimant to overcome.’”44 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

39

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)).
40

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)).
41

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

omitted).
42

Id. (quotations omitted).

43

Id. at 1134 (quotations omitted).

44

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

11

conclusion.”45 “The substantiality of the evidence must be evaluated ‘against the backdrop of
the administrative record as a whole.’”46
In Metropolitan Life Insurance Co. v. Glenn,47 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.48 The Supreme Court explained that a reviewing court should consider that conflict as a
factor in determining whether the plan administrator has abused its discretion in denying
benefits; but the significance of the factor will depend upon the circumstances of the particular
case.49 The Supreme Court stated that:
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.50
It is undisputed that Defendant acted as both the insurer and administrator of the Plan, but
Plaintiff has not presented evidence that Defendant has a history of bias. Plaintiff simply points
out that denying Plaintiff’s claim would save Defendant approximately $300,000. This alone is

45

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

46

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

47

554 U.S. 105 (2008).

48

Id. at 114.

49

Id. at 105.

50

Id. at 117 (citations omitted).

12

insufficient.51 The Court will thus keep the dual-role conflict of interest in mind in determining
whether there is an abuse of discretion, but will give it limited weight in this case.52 The record
shows Defendant endeavored to discover the severity of Plaintiff’s ailments, obtaining an
occupational analysis, two RN reviews, three MD reviews (albeit two were from one doctor),
and two psychiatric reviews.
III.

Analysis
In its motion for summary judgment, Defendant argues that its decision was not arbitrary

and capricious, citing Plaintiff’s own treating physicians’ medical records and several
independent physicians’ assessments of those records. Plaintiff argues Defendant’s termination
of his LTD benefits was arbitrary and capricious due to the following: 1) Plaintiff’s condition did
not change nor improve between the initial approval and subsequent denial, thus it was
unreasonable for Defendant to change its decision; 2) Defendant improperly analyzed the
material and substantial duties of Plaintiff’s own occupation; 3) Defendant selectively reviewed
the medical evidence and ignored Plaintiff’s treating physicians’ opinions; 4) Defendant required
Plaintiff to provide evidence of symptoms that cannot be objectively measured; 5) Defendant
denied benefits based on the difficulty in diagnosing his illnesses; and 6) the administrative
record supports Plaintiff’s claim for benefits. After due consideration of these arguments, the
Court concludes that substantial evidence in the record, when evaluated against the backdrop of
the administrative record as a whole, supports Defendant’s denial of LTD benefits in this matter.

51

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., 663 F.3d at 1133 (stating that a conflict based on generalized economic
incentive is insufficient).
52

Holcomb v. Unum Life Ins. Co. of Am., 578 F.3d 1187, 1192 (10th Cir. 2009) (court gave conflict-ofinterest limited weight because administrator hired two independent physicians and the record demonstrated that the
administrator diligently endeavored to discover the nature of plaintiff’s ailments).

13

A.

No Change or Improvement in Condition to Support Suspension of Benefits

Plaintiff essentially argues that after Defendant approved his LTD claim, it accepted that
he was totally disabled, thus the burden shifted to Defendant to produce medical evidence that he
was no longer disabled.53 He also argues that because his condition did not change nor improve
during the two month period between when his LTD request was first approved and then
suspended, Defendant abused its discretion when it later terminated his benefits.54 He further
argues that Defendant’s decision to terminate was an abuse of discretion in light of the fact that
Defendant both approved and terminated Plaintiff’s claim based on the same information.55 The
Court finds these arguments unpersuasive for four reasons.
First, Plaintiff’s initial argument ignores that Defendant’s approval for LTD benefits was
for a specific time-frame. In the March 3 letter, Defendant accepted Plaintiff was disabled from
April 7, 2014 through February 28, 2015 only. And under the Plan, Plaintiff bears the burden of
providing proof of continued Total or Partial Disability.56 That burden did not shift by virtue of
the March 3 letter. Indeed, Defendant made it clear in the letter that “benefits are issued on a
monthly basis subject to ongoing proof of Total or Partial Disability.”57
Second, the “no change in condition” argument erroneously assumes the medical records
predating the March 3 letter supported a Total Disability finding only. But Defendant’s decision
to suspend benefits was based in part on information it received prior to the March 3 letter.
Specifically, Dr. Brown’s initial APS dated September 26, 2014, and three medical records

53

Doc. 44 at 55.

54

Id. at 54–56.

55

Id. at 57.

56

AR at 127.

57

AR at 486.

14

reviews. In the APS dated September 26, 2014, Dr. Brown indicated Plaintiff had the capacity to
perform medium work and estimated his physical limitations will last approximately 12-26
weeks.58 With respect to Plaintiff’s mental limitations, Dr. Brown indicated Plaintiff’s ability to
sustain work performance, attention, and concentrations were severely impaired.59 He estimated
that Plaintiff would be able to return-to-work, full-time, in “3-6 months.”60 In a letter dated
January 1, 2015, Dr. Brown clarified that “All of [Plaintiff’s] symptoms significantly inhibit
[Plaintiff] from adequately carrying out the daily requirements of his job at Garmin.”61
The two RN reviewers, however, opined that there was insufficient objective evidence in
the file to support finding Plaintiff incapable of sustaining light capacity work except for the
limited period when he suffered from double vision and was recovering from sinus surgery.
Dr. Fuhrmann, the MD reviewer, opined that Plaintiff’s complaints were consistent with
fibromyalgia and chronic fatigue and that these conditions could limit his ability to carry out full
time activities; but because Dr. Brown described Plaintiff’s symptoms as intermittent, Plaintiff
would be able to work part-time if given periods of rest.62 Dr. Fuhrmann thus did not fully
endorse Dr. Brown’s opinion. Instead of quibbling over when and how Plaintiff can work on a
full-time basis, Dr. Fuhrmann agreed that Plaintiff should be able to return to full-time activity
within Dr. Brown’s estimated time-frame. Six months from the date of Dr. Brown’s APS is
March 27, 2015. Thus, Defendant’s decision suspending LTD benefits as of March 31, 2015,

58

AR at 296.

59

AR at 298.

60

Id.

61

AR at 396

62

AR at 477.

15

was not arbitrary or capricious because Plaintiff’s own treating physician’s statement provided
the basis for that decision.
Third, contrary to Plaintiff’s argument, Defendant did not approve and suspend LTD
benefits based on the exact same information. Defendant suspended LTD benefits after
receiving Dr. Brown’s APS dated April 21, 2015, and Dr. LaClaire’s Behavioral APS and
treatment notes on April 28, 2015. In his APS dated April 21, 2015, Dr. Brown indicated that
Plaintiff still had the capacity to perform medium work, Plaintiff’s progress was “unchanged,”
and “[Plaintiff] is overall about the same in regards to fatigue/mental fog/concentration.”63 In
this APS, Dr. Brown did not include a behavioral assessment because Plaintiff was now under a
psychiatric physician’s care. Under these circumstances, Defendant had a reasoned basis to
focus on Dr. Brown’s opinion regarding Plaintiff’s physical limitations and his conclusion that
Plaintiff had the capacity to perform medium work. If Plaintiff could perform medium work, his
physical impairments did not prevent him from performing the material and substantial duties of
his own occupation, which indisputably was at a lower exertional level. It was thus reasonable
for Defendant to suspend LTD benefits pending a review of Dr. LaClaire’s APS and treatment
records on the behavioral component of Plaintiff’s limitations and restrictions.
Finally, even if Defendant inconsistently treated Dr. Brown’s APSs, any error for the
suspension would have been harmless because the final termination of benefits was supported by
additional, substantial evidence as discussed in Section C. below.
B.

The Material and Substantial Duties of Plaintiff’s Own Occupation

Plaintiff argues that Defendant erred in terminating his benefits based on its medical
staff’s opinion that he had the ability to perform sedentary work when Plaintiff’s own occupation

63

AR at 530–31.

16

as a Design Engineering Team Leader was light work. The Court finds the issue of whether or
not Plaintiff’s own occupation was sedentary or light work a red-herring. Plaintiff’s treating
physician indicated that Plaintiff has the capacity to perform medium work, which means he can
do either sedentary or light work. In any case, any error for denying LTD benefits based on
Dr. Fuhrmann’s opinion that Plaintiff had the ability to perform sedentary work was harmless
because Plaintiff’s restrictions and limitations after March 31, 2015, were not physical in nature,
rendering the physical exertional level of Plaintiff’s job irrelevant.
Plaintiff next argues that the ability to perform sedentary or light work does not render
him able to perform the material and substantial duties of his own occupation. He claims
Defendant erroneously focused on his ability to perform “the functional aspects” of his own
occupation, rather than his ability to perform the material duties of his own occupation, such as
overseeing employees, mentoring and training employees, and assisting human resources with
recruitment of new employees.64 The Court disagrees.
Defendant retained Kristin Esposito, a vocational expert, who identified the physical and
mental components of Plaintiff’s job as it is generally recognized in the national economy.
Esposito’s analysis considered several sources of evidence, including the Dictionary of
Occupational Titles definitions, as well as Garmin’s job description. Plaintiff did not dispute
Esposito’s analysis, which indicated the material and substantial duties of a design engineer
supervisor are intellectual, rather than physical.
Even though he did not review Esposito’s analysis, Dr. Fuhrmann knew Plaintiff was “a
Team Leading Engineer.”65 Defendant asked Dr. Fuhrmann to consider Plaintiff’s physical and

64

Doc. 44 at 59–64. Plaintiff listed sitting, standing, walking, etc. as the functional aspects, thus the Court
construes this argument as one challenging his ability to perform the mental components of his job. Id. at 62.
65

AR at 476.

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mental limitations. As to the latter, Dr. Fuhrmann found “nothing objective at the present time to
corroborate [Plaintiff’s] issues regarding cognitive dysfunction or so-called brain fog.”66
Dr. Furhmann noted that Dr. Waller, one of Plaintiff’s treating physicians, had indicated that
Plaintiff’s mental status was essentially normal and did not support a diagnosis of significant
cognitive dysfunction.67 Michelle Doucette, a LTD benefits analyst for Defendant, then
connected the dots between Dr. Furhmann’s and Espoito’s analyses to conclude that Plaintiff had
failed to satisfy his burden to prove he was unable to perform the material and substantial duties
of his own occupation.
But even if Dr. Furhmann’s report was insufficient by itself, when combined with Drs.
Trangle and Odgers’ reports, the Court cannot say Defendant failed to assess whether Plaintiff
could perform the material and substantial duties of his own occupation pursuant to the Plan.
Drs. Trangle and Odgers both indicated that they reviewed Esposito’s Occupational Analysis.
Dr. Trangle’s report contains an educational and occupational history section that set forth the
physical requirements of Plaintiff’s Own Occupation.68 Dr. Trangle identified the only
impairment that precluded Plaintiff from performing most if not all of his essential work duties
was hypertropia in the left eye which caused double-vision. That condition “restricted him from
driving, operating hazardous machinery and working at unprotected heights,” but had resolved
by September 2014.69 He concluded that no further physical limitations or restrictions were

66

AR at 606.

67

AR at 605.

68

AR at 941–42.

69

AR at 975.

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supported and deferred an analysis of Plaintiff’s mental health conditions to an appropriate
specialist.70
Dr. Odgers focused on the mental limitations and noted the following: 1) test scores
across multiple cognitive domains, including attention and concentration, memory, and higher
level processing of information, were normal; and 2) mild impairment on verbal fluency
measures. He also concluded that “there was nothing in the record to support [brain fog] other
than [Plaintiff’s] subjective reports.”71 He further noted that Dr. Schuchardt, Plaintiff’s PCP,
consistently noted in mental status examination that Plaintiff was alert, oriented, and cognitively
intact. Because there is substantial evidence supporting the conclusion that Plaintiff’s symptoms
did not impact his cognitive abilities, it is axiomatic that Plaintiff’s ability to perform his material
duties, such as reasoning, problem solving, talking, and coordinating with his subordinates, was
not affected. The Court finds Defendant’s assessment of the material duties of Plaintiff’s own
occupation was not arbitrary and capricious.72
C.

Defendant’s Review of the Medical Evidence

Plaintiff raises numerous arguments regarding Defendant’s treatment of the medical
evidence. The Court addresses them in random order.
1.

Objective Evidence Requirement

Plaintiff argues that Defendant erred by requiring him to provide objective evidence of
symptoms that are entirely subjective in nature, such as: fatigue, pain, brain fog, or flu-like

70

Id.

71

AR at 1001.

72

Mayes v. Standard Ins. Co., No. 13-2111-JAR, 2014 WL 4725452, at *17 (D. Kan. Sept. 24, 2014)
(finding Standard’s assessment of the material duties of Plaintiff’s occupation as electronics engineer not arbitrary
and capricious because insufficient evidence supported plaintiff’s claim of non-exertional impairments relating to
fatigue and cognitive limitations).

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symptoms. The Court rejects this argument because Defendant did not require Plaintiff to
provide objective evidence of his subjective symptoms. Instead, Defendant wanted objective
evidence regarding the restrictions and limitations that prevent Plaintiff from performing his
Garmin job duties.73
As this Court noted in Swanson,74 in cases where the disabling condition’s symptoms are
entirely subjective, such as chronic fatigue syndrome and fibromyalgia, the following general
rule emerged: “while a plan administrator may not reasonably demand objective medical
evidence of a condition which is incapable of objective diagnosis, it may reasonably require
objective evidence that a claimant’s diagnosed condition renders her unable to perform her
occupational duties.”75 Objective evidence of occupational limitations include, inter alia:
1) tests of physical strength or stamina, or mental ability; 2) psychiatric evaluations showing
whether claimants struggle to concentrate or interact with others in a positive manner; and
3) functional capacity evaluations testing a person’s actual ability to perform physical tasks such
as sitting, standing , walking, lifting, and reaching.76
In this case, Plaintiff went through a battery of tests that could serve as objective
evidence of his limitations and restrictions. The results of these tests, however, did not support
his claims. In the Appeal Denial Letter, Defendant referenced a number of tests (or lack thereof)
and noted their results. The following represents a sampling of these notations: 1) no

73

Denial Letter, AR at 680 (“based on the current clinical notes[,] the medical documentation does not
provide any objective evidence to support any restrictions or limitations from performing the material and
substantial duties of [his] own occupation.”).
74

Swanson v. Unum Life Ins. Co. of Am., No. 13-CV-4107-JAR, 2015 WL 339313 (D. Kan. Jan. 26, 2015).

75

Id. at *9 (citations omitted).

76

Id. at *10 (citing Karvelis v. Reliance Standard Life Ins. Co., No. 03–3848, 2005 WL 1801943, at *15
(S.D. Tex. July 28, 2005) (finding that a psychiatric evaluation provided objective evidence of a claimant’s ability to
“concentrate, remember, and interact with coworkers and subordinates”)).

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comprehensive mental status exam in record; 2) mental status exam findings by treating
physician were mostly unremarkable; 3) the brain MRI with and without contrast show no
evidence of parenchymal, leptomeningeal, or cranial nerve involvement; 4) a plethora of
diagnostic studies failed to reveal the presence of a readily accepted disease entity potentially
responsible for his subjective complaints; 5) neuropsychological evaluation on December 9,
2015, indicated test scores across multiple cognitive domains, including attention and
concentration, memory, and higher level processing of information were normal; the only
significant finding was relatively mild impairment on verbal fluency measures; 6) no objective
personality measures were administered; and 7) neuropsychological test findings generally did
not correlate with the SPECT findings.77
The Court concludes that Defendant may require objective evidence of the restrictions
and limitations that prevent Plaintiff from performing his Garmin job duties in light of his
diagnosis for chronic fatigue and fibromyalgia. The Court agrees with Defendant that the record
in this case contains no objective evidence of Plaintiff’s asserted occupational limitations. Even
if there was some objective evidence, it was insufficient. In light of the dearth of objective
evidence in the record supporting Plaintiff’s asserted occupational limitations, the record
supplied a reasoned basis for Defendant’s benefits determination.
Duty to Consider Treating Physicians’ Opinions

2.

Plaintiff argues that Defendant’s complete disregard for his treating physicians’ opinions
was improper and an abuse of discretion.78 But Defendant did not completely disregard or
ignore Plaintiff’s treating physicians’ opinions. Indeed, Defendant relied upon several of

77

AR at 1006–11.

78

Doc. 44 at 74–75.

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Plaintiff’s treating physicians, namely Drs. Gierer, Waller, and Pearson in its final
determination.79 As to the remaining treating physicians’ opinions, Defendant concluded that
their assessments appeared to be based wholly on Plaintiff’s subjective descriptions of his pain
and limitations and, thus, did not constitute objective evidence of his inability to sustain work
performance, attention, or concentration. Defendant’s approval of LTD benefits from July 15,
2014 through March 31, 2015, further belies this particular argument. The Court concludes
Defendant did not wholly disregard or ignore Plaintiff’s treating physicians’ opinions.
3.

Difficulty in Diagnosis

Plaintiff argues that Defendant abused its discretion by terminating his claim due to the
difficulty in his diagnosis. He maintains that his symptoms of fatigue, headaches, body aches,
muscle pains, and brain fog are totally disabling “regardless of whether the etiology of his
symptoms is toxic mold exposure, Lyme Disease, Babesia infection, fibromyalgia, chronic
fatigue, or something else his physicians have yet to ascertained (sic).”80 The Court rejects this
argument as specious. Defendant did not terminate benefits based on the difficulty in diagnosing
his conditions and linking the symptoms to a certain illness. Defendant does not dispute that
Plaintiff had these symptoms. Indeed, Dr. Fuhrmann agreed that Plaintiff’s symptomology was
compatible with fibromyalgia and chronic fatigue. But as Plaintiff says, the etiology of these
symptoms is irrelevant. In any case, having these symptoms does not automatically entitle
Plaintiff to LTD benefits because many people perform their job duties while suffering one or
more of these symptoms. Indeed, the record indicates Plaintiff worked while suffering from

79

AR at 1009.

80

Doc. 44 at 70.

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these symptoms for a period of time.81 The severity of the symptoms is the determinative factor.
Defendant denied benefits beyond March 31, 2015, because the medical record did not contain
objective evidence that indicated the severity of Plaintiff’s fatigue, headaches, body aches,
muscle pains, and brain fog prevented him from performing the material and substantial duties of
his own occupation.
4.

No Duty to Employ Independent Physician to Examine Plaintiff

Plaintiff argues that Defendant abused its discretion by failing to employ an independent
medical examiner to evaluate him in person where Defendant’s consultants disagreed with his
treating physicians’ opinions. While such exams might be helpful, they are not required.82 The
Court cannot say that Defendant’s decision to forego an independent examination in this case
was unreasonable, especially where the medical record is so detailed and includes exhaustive
reports by other doctors. With such comprehensive medical records available for review, it was
not unreasonable for Defendant to rely on the independent specialists’ analyses of the medical
records rather than requiring Plaintiff to undergo an independent exam (or potentially a series of
independent exams), given the multiple specialties of the reviewing doctors who reviewed
Plaintiff’s medical records.

81

Employee’s Statement, AR at 31 (first noticed symptoms in March 2012, but worked until April 4,

2014).
82

Blair v. Alcatel-Lucent Long Term Disability Plan, 688 F. App’x 568, 577 (10th Cir. 2017) (“Although
the Plan gives CIGNA the right to have a physician of its choice examine [plaintiff], it does not require CIGNA to
personally examine the claimant.”); Fought v. UNUM Life Ins. Co. Of Am., 379 F.3d 997, 1015 (10th Cir. 2004)
(noting independent medical examinations are often helpful, but they are not required), abrogated in part on other
grounds by Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 116 (2008); Smith v. Metro. Life Ins. Co., 344 F. Supp. 2d
696, 703 (D. Colo. 2004) (holding independent physical exams are not required and causing two reviews of
Plaintiff's medical records to be performed was sufficient.).

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5.

Substantial Evidence

Plaintiff argues that the reports of Drs. Furhmann, Trangle, and Odgers do not constitute
substantial evidence. Plaintiff faults Dr. Furhmann for: 1) failing to identify the records he
reviewed; 2) not speaking to Plaintiff’s treating physicians before issuing his report; 3) not
personally examining Plaintiff; and 4) not evaluating the material and substantial duties of
Plaintiff’s own occupation. Plaintiff faults Dr. Trangle for: 1) not discussing Plaintiff’s job
duties and/or his ability to perform those duties; 2) failing to consult with Plaintiff’s treating
physicians prior to issuing his report; 3) devoting the past 27 years as a consultant for employers
and insurers; and 4) previously having been accused of being biased against claimants with
fibromyalgia and chronic fatigue. Finally, Plaintiff argues that Dr. Odgers’ opinion is irrelevant
because he did not file his claim based on a mental illness.
The Court finds it unnecessary to address each of these alleged faults because the
question is not whether a certain doctor’s opinion alone is substantial evidence.83 Instead, the
Court asks whether there is substantial evidence in the record as a whole supporting Defendant’s
benefits.84 And the answer in this case is yes. Plaintiff nitpicks each of these doctors’ reports.
He emphasizes the evidence in his favor, while ignoring evidence to the contrary. The Court’s
review is not so narrow. The Court looks to the record as a whole and defers to Defendant’s
decision if it is supported by substantial evidence.
Plaintiff’s argument that Dr. Odgers’ opinion is irrelevant lacks merit. Plaintiff reported
to Defendant that he began seeing a psychiatrist in January 2015, for depression, anxiety, and

83

Some of these arguments are duplicative and have been rejected earlier in this opinion. See Section III.B
and III.C.4.
84

Caldwell v. Life Ins. Co. of N. Am., 287 F.3d 1276, 1282 (10th Cir. 2002) (“Substantiality of the evidence
is based upon the record as a whole.”).

24

cognitive issues.85 Plaintiff even saw a neurologist, who ruled out dementia, a mental
impairment.86 Because Plaintiff claimed cognitive impairments (brain fog, confusion, anxiety,
etc.), sought psychiatric care, and provided those medical records, Defendant acted reasonably in
obtaining psychiatric reviews. After reading Dr. Odgers’ report, the Court finds it highly
relevant, easy to understand, and probative, making it substantial evidence supporting
Defendant’s benefits determination.
Regarding Dr. Trangle’s alleged long history as a consultant for plan administrators,
Plaintiff has failed to demonstrate bias on Dr. Trangle’s part that requires the Court to conclude
that Defendant’s reliance on his opinion was arbitrary and capricious. “Undoubtedly, the
relationship between a plan administrator and its medical consultants is material to the Court’s
determination of whether the administrator’s decision was arbitrary and capricious, especially in
a case in which the consultants’ opinions contradicted the opinion of the claimant’s treating
physician.”87 Certainly a history of biased opinions from a particular physician would be
relevant information for a reviewing court to take into consideration, but in the three cases cited
by Plaintiff, two courts found Dr. Trangle not biased.88 The third case is factually
distinguishable because it involved Dr. Trangle’s theory of causation for a neck fusion

85

AR at 533–54.

86

AR at 13, 519, 605, 911.

87

Rizzi v. Hartford Life & Acc. Ins. Co., 613 F. Supp. 2d 1234, 1248 (D.N.M. 2009), aff’d sub nom. Rizzi v.
Hartford Life & Acc. Ins. Co., 383 F. App’x 738 (10th Cir. 2010).
88

Cooper v. Intel Corp. Long Term Disability Plan, No. 3:13-CV-01852-HZ, 2014 WL 3895989, at *4 (D.
Or. Aug. 8, 2014) (“Even viewing the abstracts and medical article in the light most favorable to Plaintiff, I decline
to infer that Dr. Trangle is biased against or ignorant about fibromyalgia.”), aff’d, No. 14-35745, 2017 WL 1960580
(9th Cir. May 11, 2017); State ex rel. Hudson v. Ohio Pub. Emps. Ret. Sys., No. 10AP-904, 2011 WL 4924259, at
*12 (“Dr. Trangle’s opinion concerning the diagnosis of fibromyalgia does not demonstrate bias on his part.”).

25

operation.89 Here, Dr. Trangle was asked to review a plethora of symptoms and purported
diagnosis. And though he may have criticized some of Plaintiff’s physicians’ treatment plans, he
also agreed with “the general consensus among [Plaintiff’s treating] physicians” that Plaintiff’s
medical information did not support an infectious, autoimmune, autonomic, hematologic,
neurologic, nutritional, immunodeficiency mediated disease.90 The Court finds Dr. Trangle’s
report constitutes substantial evidence supporting Defendant’s benefits determination.
As Judge Herrera succinctly noted in Rizzi v. Hartford Life & Acc. Ins. Co.:
[T]he Court’s role . . . is not to referee a battle of physicians or to decide whether
Defendant’s decision to terminate Plaintiff’s LTD benefit payments was correct.
It is simply to determine whether Defendant reasonably exercised its discretion
and based its determination on substantial evidence.91
None of the alleged errors in Dr. Furhmann’s report warrant its complete exclusion. In
sum, the Court finds Defendant’s reliance on the opinions of Drs. Fuhrmann, Trangle, and
Odgers as non-examining and non-treating physicians reasonable. Defendant’s benefits
determination was thus based on substantial evidence.
IV.

Conclusion
Given the divergence of Plaintiff’s treating physicians’ opinions with respect to fatigue

and brain fog, the absence of clinical findings, and the reviewing physicians’ unified conclusion
that he retained cognitive functions, the Court finds that Plaintiff has not met his burden of
proving that he lacked the physical capacity or mental acuity to perform the material and
substantial duties of his own occupation. Thus, Defendant was justified in deciding to uphold its

89

.State ex rel. Morton Int’l, Inc. v. Indus. Comm., No. 06AP-382, 2007 WL 944005, at *7 (“Dr. Trangle’s
opinion that the Injured Worker’s current problems are merely the result of a progressive degenerative condition
does not seem realistic.”).
90

AR at 978.

91

Rizzi, 613 F. Supp. 2d at 1249.

26

determination that Plaintiff’s limitations were such that he could perform his own occupation.
The Court is sympathetic to Plaintiff’s plight. However, after review of the entirety of the
administrative record and consideration of the parties’ arguments, it is clear that Defendant’s
benefits determination was supported by substantial evidence.
IT IS THEREFORE ORDERED that Defendant’s Motion for Summary Judgment is
GRANTED (Doc. 40) and Plaintiff’s Motion for Summary Judgment is DENIED (Doc. 43).
IT IS SO ORDERED.

Dated: September 22, 2017
S/ Julie A. Robinson
JULIE A. ROBINSON
CHIEF UNITED STATES DISTRICT JUDGE

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