Brock v. AT&T Services, Inc.

Filing 18

MEMORANDUM OPINION & ORDER: Defendant's Motion for Summary Judgment 14 be SUSTAINED and Plaintiff's Motion for Summary Judgment 15 be OVERRULED. Signed by Judge Henry R. Wilhoit, Jr on 1/9/18.(KSS)cc: COR

Eastern District of Kentucky
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
ASHLAND
Civil Action No. 17-1-HRW
JUDITH BROCK,

v.

Fil.ED

JAN 09 2018
AT ASHLAND
ROBERT R. CARR
GLERK U.S. DISTRICT COURT

PLAINTIFF,

MEMORANDUM OPINION AND ORDER

AT&T SERVICES, INC.,

DEFENDANT.

This matter is before the Court upon the parties' cross Motions for Summary Judgment
[Docket Nos. 14 and 15]. For the reasons set forth below, the Court finds that Defendant AT&T
Services, Inc. is entitled to judgment as a matter oflaw.

I.
Judith Brock filed this civil action against her employer, AT&T Services, Inc. (hereinafter
"AT&T") pursuant to 29 U.S.C. § l 132(A)(l)(B), challenging the denial of her application for
short-term disability benefits.

A.
Plaintiff Judith Brock ("Brock") worked for AT&T Mobility Services, LLC ("AT&T") as
a Clerk from October 10, 2001 through November 21, 2015 [Docket No. 12-1, Administrative
Record 000059]. As an AT&T employee, Brock was an eligible employee in the AT&T Mobility
Disability Program ("DP"), which is regulated by the Employee Retirement Income Security Act,
29 U.S.C. § 1001 et. seq. ("ERISA"). [Docket No. 12-5, Plan 087]. The short-term disability
("STD") portion of the DP provides for benefits for up to 26 weeks after an eligible employee

has been determined to be partially or totally disabled. [Docket No. 12-3, Plan 056].
Under the terms of the DP, disability determinations are made by a third-party Claims
Administrator, Sedgwick Claims Management Services, Inc., through the Integrated Disability
Service Center ("IDSC"), which Sedgwick operates. [Docket No. 12-1, AR 000172]. The Claims
Administrator is the only entity which determines whether or not a participant is disabled and is
granted complete discretion to make such a decision. [Docket No. 12-5, Plan 068]. The plan
participant must be under the care of a physician, provide their medical providers with a release
and ensure that they submit medical information to the Claims Administrator in a timely manner.

Id. at 067. After a review of the medical information, if the Claims Administrator denies the
claim, the participant must be provided with an explanation as to the reason for denial of
disability benefits. Id. at 084. A plan participant has the right to appeal the denial and can file a
lawsuit if the claim is denied on appeal. Id. The Claims Administrator is granted complete
discretion to grant or deny appeals for disability benefits under the Plan. Id. As with the initial
claim decision, on appeal, the Claims Administrator must provide the participant with specific
reasons why the disability benefits claim is denied. Id.

B.
Plaintiff was employed by AT&T as a Clerk from October 1, 2001 until November 22,
2015. [Docket No. 12-1, AR 000059]. Her job was essentially sedentary and included filing,
answering the phone, typing, precessing mail and providing general office support. Id. at 000012
and 000068.
As an AT&T employee, Plaintiff was a participant in the DP, described supra.
During her tenure at AT&T, Plaintiff was diagnosed as having restless leg syndrome,

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essential tremors and mild carpal tunnel syndrome [Docket No. 12-1AR000091, 000093].
On April 2, 2014, Plaintiffs treating physician, Dr. Suresh Kumar, saw the Plaintiff for
her history of essential tremors and peripheral neuropathy which she indicated were made
worse with stress or loud music. During that visit, he refilled her medication and told her
to follow up in four - six months. [Docket No. 12-2, AR 000147-148].
She saw Dr. Kumar a little over two weeks later, August 20, 2014. She told Dr. Kumar
that medication was controlling her restless syndrome and tremors. He, again, recommended a
follow up visit in four-six months. Id. at 000143-144.
Plaintiff saw Dr. Kumar again, about seven months later on May 5, 2015, for a follow up
of her restless leg syndrome and tremors. His prescription at that time was for an over the counter
medication and he advised Plaintiff to continue the medication. He recommended a follow up in
six months. Id. at 000140.
On November 16, 2015, Sedgwick, through the AT&T Integrated Disability Center,
opened a disability claim for the Plaintiff. Id. at 000152-153.
Pursuant to Plaintiffs authorization, Sedgwick received the Initial Physician Statement
("IPS") which Dr. Kumar, Plaintiffs treating physician, completed on November 16, 2015 in
which he stated that Plaintiff had been diagnosed with essential tremors which were "exacerbated
with loud noise". He noted that he had increased the dosage on Plaintiffs medication which was
expected to improve her functioning and suggested that Plaintiff be allowed to work away from
loud noise "if possible". [Docket No. 12-1, AR 00016)
An initial review of Plaintiffs claim on November 23, 2015 indicated that the medical
information did not support her disability claim. Id. at 00009.
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However, Sedgwick made a decision to obtain a medical review of Plaintiffs claim and
submitted it to an independent physician, Dr. Sherry Withiam-Leitch, a Board-Certified
Neurologist, for evaluation. Id. at 000014 and Docket No. 12-2, AR 000110-11.
Prior to the medical review, Plaintiff saw Dr. Kumar on November 6, 2015. At
that time, Plaintiff indicated that her tremors and restless leg syndrome were getting
worse. Dr. Kumar increased her medication and told her to follow up within his office in
4-6 months. The report did not indicate that the Plaintiff was disabled. Id. at 000086-89.
On December 15, 2015, Dr. Withiam-Leitch reviewed the IPS completed by Dr. Kumar
and also attempted to reach him by phone. [Docket No. 12-2, AR 000110]. Dr. Withiam-Letich
concluded in her report that there were "insufficient objective medical findings" to support a
finding that Plaintiff was precluded from performing her sedentary job as a Clerk. Id.
On December 16, 2015, Plaintiff saw Dr. Kumar for increased tremors as well as
numbness and weakness in her hands. Id. at 000094. Dr. Kumar recommended a nerve
conduction study for the numbness and weakness in Plaintiffs hands, increased her medication
for her tremors and determined that the current dosage of medication was controlling Plaintiffs
restless leg syndrome. Id. at 000095.
Plaintiffs claim for short-term disability benefits was denied on December 18, 2015.
Plaintiff submitted an appeal of the initial benefit denial on January 19, 2016. Id. at AR000097.
Sedgwick submitted Plaintiffs appeal for review to two (2) independent physicians, Dr.
Roberto Ramierz and Dr. Charles Brock. Id. at 000029-30.
Dr. Ramierz, Board-Certified in Internal Medicine, reviewed Plaintiffs medical
records and twice attempted unsuccessfully to contact Dr. Kumar, ultimately determining that
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Plaintiff was not precluded from performing her job as of November 29, 2015. Id. at 000069.
He based his conclusion on the lack of objective medical evidence to indicate
Plaintiff was disabled. He noted that there were no neurological changes upon physical
exam and Plaintiff was being treated with appropriate medication for her tremors,
peripheral neuropathy and restless leg syndrome. Id.
Dr. Brock, Board-Certified in Neurology and Pain Management, also conducted
an independent review of Plaintiffs medical records. He also tried and failed, on two separate
occasions, to reach Dr. Kumar. (Ex. A, AR000071). He also determined that Plaintiffs medical
records did not support a finding that she was disabled from performing her job as a Clerk from
November 29, 2015. He found that there was a lack of any abnormalities other than a
head tremor and that Dr. Kumar's plan was to adjust Plaintiffs medication as needed for
her tremors and restless leg syndrome. Dr. Brock's only recommendation was that
Plaintiff be allowed to work in a quiet environment. Id. at 000072-7.
Sedgwick representative spoke to Plaintiffs Attendance Manager, Marjorie Barney, on
February 17, 2016. Ms. Barney indicated that Plaintiff had an accommodation several
years ago due to loud noise in the center and Plaintiff was moved away from the music.
Ms. Barney also indicated that as of 2015, there was no longer any loud music or noises
in the center and that only "low volume" music was played. Id. at 000032.
On February 24, 2016, a Sedgwick representative followed up with the Plaintiff. Plaintiff
reported that while loud music was no longer played in the center, employees
had personal sound systems on which they played music. Plaintiff noted that she could
not tolerate the music so she took vacation in November, 2016 and, because she felt she

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could not return to her job, she filed a disability claim. Id. at 000034.
Plaintiffs appeal was denied and she was notified of the denial on
April 15, 2016 via letter which set forth the reasons for the decision by the IDSC,
including that the reviews of her medical records from Dr. Kumar for the period April 2,
2014 through January 13, 2016 did not support a finding of any condition so severe or
uncontrolled with medication as to prevent her from performing her job as a Clerk as of
November 22, 2015. Id. at 000056.
This lawsuit followed. 1 Both parties seek summary judgment.

III.
Under Federal Rule of Civil Procedure 56©, summary judgment is proper "if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter oflaw." Fed.R.Civ.P. 56©; see also Celotex Corp. v.

Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91L.Ed.2d265 (1986). So long as the movant has
met its initial burden of "demonstrat[ing] the absence of a genuine issue of material fact,"

Celotex, 477 U.S. at 323, and the nonmoving party is unable to make such a showing, summary
judgment is appropriate. Emmons v. McLaughlin, 874 F.2d 351, 353 (6th Cir.1989). In
considering a motion for summary judgment, "the evidence as well as all inferences drawn
therefrom must be read in a light most favorable to the party opposing the motion." Kochins v.

Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir.1986); see also Matsushita Elec. Indus. Co. v.

This civil action was initially filed in Carter Circuit Court and removed to this
Court by Defendant pursuant to 42 U.S.C. § 1331.

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Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

When confronted with a properly-supported motion for summary judgment, the
nonmoving party "must set forth specific facts showing that there is a genuine issue for trial."
Fed.R.Civ.P. 56(e); see also Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246, 250 (6th
Cir.1998). A genuine issue of material fact exists for trial "if the evidence [presented by the
nonmoving party] is such that a reasonable jury could return a verdict for the nonmoving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91L.Ed.2d202 (1986). In

essence, the inquiry is "whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."
Id. at 251-52.

The standard of review for cross-motions of summary judgment does not differ from the
standard applied when only one party files a motion. Taft Broad. Co. v. U.S., 929 F.2d 240, 248
(6th Cir.1991 ). "The fact that both parties have moved for summary judgment does not mean that
the court must grant judgment as a matter of law for one side or the other; summary judgment in
favor of either party is not proper if disputes remain as to material facts. Rather, the court must
evaluate each party's motion on its own merits." Id. (citations omitted). Thus, when the court
reviews cross-motions for summary judgment, it "must evaluate each motion on its own merits
and view all facts and inferences in the light most favorable to the nonmoving party." Westfield
Ins. Co. v. Tech Dry, Inc., 336 F.3d 503, 506-07 (6th Cir.2003).

The first step in an BRISA-governed benefits action is to determine the applicable
standard of review-either arbitrary and capricious or de novo-based on the language in the

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benefit plan. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103
L.Ed.2d 80 (1989). Here, both parties agree that the Court should review the administrator's
denial of benefits under the arbitrary and capricious standard of review.
"[T]he arbitrary and capricious standard is the least demanding form of judicial review of
administrative action." Williams v. Int'/ Paper Co., 227 F.3d 706, 712 (6th Cir.2000). When
applying this standard, this Court "must decide whether the plan administrator's decision was
'rational in light of the plan's provisions.' "Id. (quoting Daniel v. Eaton Corp., 839 F.2d 263,
267 (6th Cir.1988)). Stated differently, "[w ]hen it is possible to offer a reasoned explanation,
based on the evidence, for a particular outcome, that outcome is not arbitrary or capricious."
Davis v. Ky. Fin. Cos. Ret. Plan, 887 F.2d 689, 693 (6th Cir.1989) (quoting Pokratz v. Jones
Dairy Farm, 771 F.2d 206, 209 (7th Cir.1985)). But simply because the arbitrary and capricious

standard applies does not mean that this Court's review is inconsequential. Moon v. UNUM
Provident Corp., 405 F.3d 373, 379 (6 1h Cir. 2005).

The Court's review of the administrative decision must be based only upon the material in
the administrative record, and therefore, the Court "may not consider new evidence or look
beyond the record that was before the plan administrator." See Wilkins v. Baptist Mem 'l
Healthcare Sys., Inc., 150 F.3d 609, 616 (6th Cir.1998); see also Crews v. Central States, 788

F.2d 332 (6th Cir.1986) (limiting the review to the record before the administrator when the
standard is arbitrary and capricious). The Court may consider the parties' arguments concerning
the proper analysis of the evidentiary materials in the administrative record, but it may not admit
or consider any evidence not presented to the administrator. Id.

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Finally, In analyzing the plaintiffs claims, it is of no consequence whether the Court
agrees or disagrees with the decision of the Administrator to terminate Madden's benefits. The
Court must only determine whether the Administrator's decision was arbitrary or capricious.

IV.
Although the plaintiff has raised several issues, the crux of this case is whether there is
evidence in the administrative record to justify the defendants' actions in light of the applicable
review standard.
First, Plaintiff contends that Sedgwick ignored the opinion of her treating physician that
she is disabled.

This argument is somewhat curious, given that the administrative record does

not contain such an opinion. Dr. Kumar's Initial Physician Statement (IPS) on November 16,
2015 did not indicate that Plaintiff was disabled; he only request was to allow Plaintiff to work in
a quiet room without loud noises. Nor did he did cite any other functional limitations. On
December 16, 2015, Dr. Kumar included an indication in his notes that he would "discuss with
the doctor in charge of that and see whether she can go on Disability." That is the only thing in
the record from Dr. Kumar which could be considered a statement as to disability. However, in
his notes from that appointment, he stated that Plaintiff's essential tremor symptoms were
mostly controlled with medication, her restless leg syndrome symptoms were controlled with
medication and he would conduct nerve conduction study to examine the numbness and
weakness in Plaintiffs hands. These notes do not support Plaintiffs suggestion that Dr. Kumar
believed her to be disabled.

Moreover, the nerve conduction study Dr. Kumar which he

performed on January 30, 2016, was a "normal study".

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Sedgewick had the same records this Court has reviewed. The administrator's job is to
weigh the evidence and come to a reasoned decision. This duty was fulfilled here because
Sedgwick considered all of the evidence, including the notes and assessments of the treating
physician, and made a reasoned decision that Plaintiff was not disabled based on all of the
evidence.
Plaintiff also argues that the Administrator's decision was arbitrary and capricious
because the Administrator relied on the recommendations of physicians who had simply
reviewed her medical files rather than actually examining her. This argument is unavailing as
well. There is no question that this Court should consider the fact that the physicians conducted
file reviews rather than physical exams. And while the failure to conduct a physical examination
"may, in some cases, raise questions about the thoroughness and accuracy of the benefits
determination," there is "nothing inherently objectionable about a file review by a qualified
physician in the context of a benefits determination." Calvert v. Firstar Fin., Inc., 409 F.3d 286,
295-96 (6th Cir.2005).
Furthermore, Plaintiff has not presented evidence showing that the review by these
doctors was in any way inadequate, and the Administrator's reliance on a file review, standing
alone, is not sufficient for a court to conclude that the determination was arbitrary and capricious.
See id. at 295. A file review is considered inadequate when it is established that the independent
physician(s) did not review the full record or summarily rejected a treating physician opinion
without providing reasons for the rejection. Jensen v. Aetna Life Ins. Co. 32 F. Supp. 3d 894, 902
(W.D. Tenn. 2014). Dr. Brock and Dr. Ramierz considered all of Plaintiffs medical records
including any statements and notes by her treating physician. Neither physician made any

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credibility determinations regarding Plaintiffs medical history or symptoms. Each physician
found that Plaintiffs symptoms were being controlled with medication and there were no
objective findings that she could not perform her job as a Clerk.
Nor was Sedgwick required to have Plaintiff undergo an examination before making a
determination regarding her STD claim. The lack of a physical examination is not a determining
factor as to whether or not the denial of an STD claim is arbitrary and capricious. Particularly
when Plaintiff has not shown how a physical examination would result in a different decision.
Mellian v. Hartford Life & Accident Ins. Co., 161 F. Supp. 3d 545, 565 (E.D. Mich. 2016).
(Failure to obtain medical examination is not arbitrary and capricious when independent
physician reviewers have conducted thorough examination of medical records).
Plaintiff also suggests that Sedgwick "predetermined" that she was not entitled to
benefits. Yet this assertion is not supported by the record. The record establishes that once an
initial review determined that there was insufficient medical information to support Plaintiffs
claim for STD benefits, which at that time consisted of only the IPS report from Dr. Kumar,
Sedgwick delayed any final decision until additional medical information was received.
Thereafter, Sedgwick spoke with the Plaintiff, attempted to reach Dr. Kumar and eventually
referred her medical file to an independent physician reviewer for a decision on her initial claim
for STD benefits. The sequence of events belies Plaintiffs claim that Sedgwick somehow "prejudged" her claim.
Finally, Plaintiff argues that the administrative decision is flawed because conflict of
interest exists because the plan administrator is also the payor of benefits. A court must take into
consideration the conflict of interest that arises when one entity is both the administrator and the

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insurer: "where there is a monetary incentive for the insurance company or its claims
administrator to deny the claim, 'the potential for self-interested decision-making is evident.' "

Rabuckv. Hartford Life and Acc. Ins. Co., 522 F.Supp.2d 844, 872 (W.D.Mich.2007) (quoting
University Hasps. of Cleveland v. Emerson Elec. Co., 202 F.3d 839, 846 n. 4 (6th Cir.2000)).
This consideration applies, however, only where there is "significant evidence" that the insurer
was motivated by self-interest. Peruzzi v. Summa Medical Plan, 137 F.3d 431, 433 (6th
Cir.1998). Such is not the case here. AT&T are completely separate entities. And Plaintiff fails
to cite to any evidence that the third-party Claims Administrator, Sedgwick Claims Management
Services, Inc., through the Integrated Disability Service Center ("IDSC"), which Sedgwick
operates, is also the payor of benefits under the AT&T Mobility Disability Program ("DP"). To
the cOontrary, documents in the administrative record establish that short-term disability benefits
paid to eligible employees under the DP are provided from a trust which is funded by
contributions from AT&T. [Docket No. 12-5, p. 92]. Moreover, while AT&T Services, Inc., is
the Plan Administrator, it does not determine whether an employee is entitled to benefits under
the plan.
[AT&T has] delegated complete discretionary fiduciary
responsibility for all disability determinations ... to determine

whether a particular Eligible Employee who has filed a claim for
benefits is entitled to benefits under the Program, to determine
whether a claim was properly decided, and to conclusively interpret
the terms and provisions of the Program" to the Claims
Administrator.

Id. at 91.
Given that AT&T grants complete discretionary authority to the claims administrator to

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determine benefit eligibility, there is no evidence conflict of interest.

v.
While Plaintiff disagrees with the Administrator's ultimate decision, she fails to point to
anything to establish that the Administrator's decision was not a "reasoned" one. In short, the
Administrator had evidence from which it rationally concluded that Plaintiff was not disabled
under the Plan. See Williams, 227 F.3d at 712 (explaining that when a decision is rational in light
of a plan's provisions, it is not arbitrary or capricious). Because Plaintiff has not demonstrated
that the Administrator's reliance on such evidence was unreasonable, arbitrary and capricious,
this Court must affirm the Administrator's decision.
Accordingly, IT IS HEREBY ORDERED that Defendant's Motion for Summary
Judgment [Docket No. 14] be SUSTAINED and Plaintiffs Motion for Summary Judgment be
OVERRULED [Docket No. 15].
This

q~day of January, 2018.
Signed By:

Henry R, Wilhoit, Jr.

United States District Judge

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