Himel v. Deere & Company

Filing 40

ORDER AND REASONS: IT IS ORDERED that Defendant's 24 motion for summary judgment is GRANTED. IT IS FURTHER ORDERED that Plaintiff's 27 motion to supplement the administrative record is GRANTED. IT IS FURTHER ORDERED that Plaintiff's 28 motion for summary judgment is DENIED. Signed by Judge Ivan L.R. Lemelle on 3/8/2017. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PHILLIP HIMEL

CIVIL ACTION

VERSUS

NO. 16-6712

DEERE & COMPANY

SECTION "B"(5)
ORDER AND REASONS

Before the Court are three motions. First is “Defendant’s
Motion for Summary Judgment” (Rec. Doc. 24), to which Plaintiff
timely filed a response (Rec. Doc. 33). Second is Plaintiff’s
“Motion to Supplement the Administrative Record” (Rec. Doc. 27),
to which Defendant timely filed a response (Rec. Doc. 35). Finally,
Plaintiff filed a cross “Motion for Summary Judgment” (Rec. Doc.
28),

to

which

Defendant

filed

a

response

(Rec.

Doc.

37).

Accordingly,
IT IS ORDERED that Defendant’s motion for summary judgment
(Rec. Doc. 24) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s motion to supplement
the administrative record (Rec. Doc. 27) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s motion for summary
judgment (Rec. Doc. 28) is DENIED.

I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case arises out of Phillip Himel’s (“Plaintiff”) claim

for

disability

benefits

under

the

1

Employee

Retirement

Income

Security Act of 1974 (“ERISA”). Rec. Doc. 1 at ¶¶ 1-3 (citing 29
U.S.C. §§ 1001-1461). In November of 2012, Plaintiff suffered an
accident at home that resulted in lower back and left lower
extremity pain. Rec. Doc. 28-1 at 2 (citing Rec. Doc. 24-7 at 10).
He ultimately underwent a left-sided microdiscectomy on December
27, 2012. Id. (citing Rec. Docs. 24-7 at 18-20, 25-26; 24-6 at
47). Plaintiff claims that, at the time, he was employed by Deere
& Company (“Defendant”). Rec. Doc. 1 at ¶ 3.
Even though Plaintiff returned to work on March 26, 2013,
(Rec. Doc. 28-1 at 3 (citing Rec. Doc. 24-10 at 37)), an MRI was
taken in September of 2013 after continuing complaints of pain
(id. (citing Rec. Doc. 24-11 at 5)). On September 23, 2013,
Plaintiff
(“TGMC”)

was
for

admitted

to

treatment

of

Terrebone
lumbar

General

discitis

Medical

and

an

Center

infection

resulting from his surgery. Id. (citing Rec. Doc. 24-10 at 30). He
remained in the hospital for four days. Id. At a November 13, 2013
visit, Plaintiff’s doctor recommended physical therapy and stated
that Plaintiff could not work. Rec. Doc. 24-10 at 27. After
continued treatment, Plaintiff’s doctor noted on April 16, 2014
that Plaintiff “remain[ed] temporar[il]y totally disabled.” Rec.
Doc. 24-11 at 26.
By September of 2014, Plaintiff was still suffering; his
doctor again prescribed physical therapy and noted that Plaintiff

2

“remain[ed] completely disabled.” Rec. Doc. 27-3 at 68.1 However,
on November 10, 2014, Plaintiff’s doctor noted that Plaintiff was
“clearly much improved . . . but he still remains symptomatic with
back pain and left leg pain. I do feel he is basically temporarily
totally disabled at present. I do feel that[,] possibl[y] in 6
months’ time, he may be a candidate for some sedentary duty but I
am unsure of this depending on his issues with his left leg.” Id.
at 70. On December 4, 2014, after a nerve conduction study,
Plaintiff’s doctor concluded that “I do not believe he can engage
in any gainful employment given his clinical course and these
findings.” Rec. Doc. 24-14 at 36. Further, the Social Security
Administration (“SSA”) determined that Plaintiff became disabled
on August 21, 2013. Rec. Doc. 24-6 at 15.
Plaintiff maintains that he participated in Defendant’s ERISA
plan. Rec. Doc. 1 at ¶ 3. According to Plaintiff, the plan is selffunded by Defendant and Defendant is the plan administrator. Id.
at ¶¶ 5-6. Plaintiff received short-term disability benefits from
Defendant

from

September

15,

2013

until

those

benefits

were

exhausted a year later on September 15, 2014. Rec. Doc. 24-1 at 4
(citing

Rec.

Plaintiff

by

Doc.
his

24-4

at

2).

physicians,

he

Due

to

claims

limitations
that

he

is

placed

on

“totally

disabled” under the terms of the plan. Rec. Doc. 1 at ¶¶ 8, 10.

Note, the records contained in Rec. Doc. 27-3 were not part of the
administrative record, but are the subject of Plaintiff’s pending motion to
supplement the administrative record. See Rec. Doc. 27.
1

3

Accordingly, Plaintiff filed a claim for long-term disability
benefits. Id. (citing Rec. Doc. 24-4 at 128-30). However, after
Defendant’s

Medical

Director

reviewed

Plaintiff’s

file

and

determined that Plaintiff was unable to show that he could not
perform the duties of any job for which he may qualify, Defendant
denied Plaintiff’s claim. Id. (citing Rec. Doc. 24-4 at 1); see
also Rec. Doc. 1 at ¶ 10. Defendant informed Plaintiff of the
denial on September 22, 2014. Rec. Doc. 24-1 at 5 (citing Rec.
Doc. 24-4 at 2-3).
On January 16, 2015, Plaintiff requested an administrative
appeal through his retained counsel. Id. (citing Rec. Doc. 24-4 at
4-5). The appeal was submitted to Managing Care Managing Claims
(“MCMC”), “an external appeal board hired to review and provide an
independent

determination

and

recommendation

for

approval

or

denial.” Id. (citing Rec. Doc. 24-4 at 6-9, 131-33). Dr. Charles
W. Brock (“Dr. Brock”), a psychiatry and neurology/pain medicine
physician,
surgeon,

and

both

Dr.

Vicki

Kalen

recommended

that

(“Dr.

Kalen”),

Plaintiff’s

an

claim

orthopedic
be

denied

“because his condition did not meet the Plan definition of ‘totally
disabled.’”

Id.

at

5-6

(citing

Rec.

Doc.

24-4

at

10-19).

Specifically, Dr. Brock found that, even though Plaintiff could
not

“carry

out

his

vocation

with

or

without

reasonable

accommodations,” he could “carry out a full time occupation in a
sedentary vocation.” Rec. Doc. 24-4 at 11. Similarly, Dr. Kalen
4

concluded that Plaintiff “would not be able to perform his job,
but he would be able to perform any job with appropriate and
necessary

accommodations.”

Id.

at

14.

Pursuant

to

these

assessments, Defendant denied Plaintiff’s appeal on June 23, 2015.
Rec. Doc. 24-1 at 6 (citing Rec. Doc. 24-4 at 127).
Plaintiff filed the instant suit on May 20, 2016. Rec. Doc.
1 at ¶ 13. According to the complaint, Defendant abused its
discretion by denying Plaintiff’s claim in bad faith, “failing to
consider the disabling, synergistic effect of all of Plaintiff’s
medical

conditions,”

and

“failing

to

consider

his

medical

condition in relation to the duties of all occupations”; further,
Plaintiff claims that Defendant administered the plan, despite a
conflict of interest (“as [Defendant] is liable to pay benefits
from its own assets to Plaintiff, and each payment depletes
[Defendant’s] assets”); failed to uniformly interpret the plan;
and failed to give the “full and fair review” required by ERISA.
Id. at ¶¶ 14-21.

II.

THE PARTIES’ CONTENTIONS

A. CROSS MOTIONS FOR SUMMARY JUDGMENT
In its motion for summary judgment, Defendant maintains that
Plaintiff cannot show that Defendant “abused its discretion in
denying Plaintiff’s claim for benefits.” Rec. Doc. 24 at 1.

5

Plaintiff’s response simply directs this Court to his own
motion for summary judgment. Rec. Doc. 33 at 1. In his motion,
Plaintiff argues that Defendant abused its discretion in denying
Plaintiff’s claim because (1) there was a conflict of interest;
(2)

Defendant

failed

to

consider

Plaintiff’s

Social

Security

disability award; (3) Defendant failed to explain why it rejected
the opinions of Plaintiff’s treating physicians; (4) Defendant
lacks vocational evidence supporting its decision; (5) Defendant
failed to comply with ERISA’s procedural requirements; and (6)
Plaintiff meets the definition of “totally disabled” under the
plan. Rec. Doc. 28-1 at 8-20.
Defendant’s memorandum in response addresses each of these
allegations in turn. Rec. Doc. 37. Defendant’s arguments will be
discussed more fully below.

B. MOTION TO SUPPLEMENT THE ADMINISTRATIVE RECORD
Plaintiff

asserts

that

he

supplied

Defendant

with

supplemental medical evidence that was not included by Defendant
in the administrative record. Rec. Doc. 27 at 1. Specifically, he
argues that supplemental records were sent to Defendant on April
1, 2015 and received by Defendant on April 6, 2015. Rec. Doc. 271 at 2 (citing Rec. Doc. 27-3 at 1, 3). Further, he claims that
Defendant “acknowledged receipt of all documents” on April 8, 2016.
Id. In an April 20, 2015 letter, Plaintiff’s counsel again notified
6

Defendant of the supplemental records. Id. (citing Rec. Doc. 24-6
at 27). Essentially, Plaintiff maintains that the records should
be

included

in

the

administrative

record

because

they

“were

submitted to [D]efendant while the appeal was being processed by
[D]efendant and prior to the closing of the administrative claim
file”

and

that,

by

the

time

the

record

was

submitted

for

independent review on May 15, 2016, Defendant had possessed the
records for more than a month. Id. Further, Plaintiff notes that
Defendant never objected to the supplemental production. Id.
Defendant acknowledged in its motion for summary judgment
that Plaintiff supplemented his request for an appeal by a letter
dated March 23, 2015. Id. (citing Rec. Doc. 24-4 at 20). On April
8,

2016,

Defendant

acknowledged

receipt

of

the

March

23

communication, but not the April 1 communication now at issue. See
Rec.

Doc.

24-14

at

155-57.

In

its

acknowledgment,

Defendant

informed Plaintiff that the March 23 letter and accompanying CD
would be considered in Plaintiff’s appeal. Id. at 155.

III. LAW AND ANALYSIS
A. CROSS MOTIONS FOR SUMMARY JUDGMENT
Under Federal Rule of Civil Procedure 56, summary judgment is
appropriate

only

interrogatories,

if
and

“the

pleadings,

admissions

on

depositions,
file,

together

answers

to

with

the

affidavits, if any, show that there is no genuine issue as to any
7

material fact and that the moving party is entitled to judgment as
a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986) (quoting FED. R. CIV. P. 56(c)); see also TIG Ins. Co. v.
Sedgwick James of Washington, 276 F.3d 754, 759 (5th Cir. 2002).
A genuine issue exists if the evidence would allow a reasonable
jury to return a verdict for the nonmoving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant must
point to “portions of ‘the pleadings, depositions, answers to
interrogatories,

and

admissions

on

file,

together

with

the

affidavits, if any,’ which it believes demonstrate the absence of
a genuine issue of material fact.” Celotex, 477 U.S. at 323. If
and when the movant carries this burden, the non-movant must then
go beyond the pleadings and present other evidence to establish a
genuine issue. Matsushita Elec. Indus. Co., Ltd. V. Zenith Radio
Corp., 475 U.S. 574, 586 (1986).
However, “where the non-movant bears the burden of proof at
trial, the movant may merely point to an absence of evidence, thus
shifting to the non-movant the burden of demonstrating by competent
summary judgment proof that there is an issue of material fact
warranting trial.” Lindsey v. Sears Roebuck & Co., 16 F.3d 616,
618 (5th Cir. 1994). Conclusory rebuttals of the pleadings are
insufficient to avoid summary judgment. Travelers Ins. Co. v.
Liljeberg Enter., Inc., 7 F.3d 1203, 1207 (5th Cir. 1993).

8

“[A]

denial

of

benefits

challenged

under

[29

U.S.C.

§

1132(a)(1)(B)] is to be reviewed under a de novo standard unless
the

benefit

plan

gives

the

administrator

or

fiduciary

discretionary authority to determine eligibility for benefits or
to construe the terms of the plan,” in which case an abuse of
discretion standard is applied. Firestone Tire & Rubber Co. v.
Bruch, 489 U.S. 101, 115 (1989) (emphasis added); see also Sanders
v. Unum Life Ins. Co. of Am., 553 F.3d 922, 925 (5th Cir. 2008).
“Under this standard, when ‘the plan fiduciary’s decision is
supported

by

substantial

evidence

and

is

not

arbitrary

and

capricious, it must prevail.’” Sanders, 553 F.3d at 925 (emphasis
added) (quoting Corry v. Liberty Life Assur. Co. of Boston, 499
F.3d 389, 397 (5th Cir. 2007)). “Substantial evidence is ‘more
than a scintilla, less than a preponderance, and is such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.’” Ellis v. Liberty Life Assur. Co. of Boston, 394
F.3d 262, 273 (5th Cir. 2004) (quoting Deters v. Sec’y of Health,
Educ. & Welfare, 789 F.2d 1181, 1185 (5th Cir. 1986)) (citing
Richardson v. Perales, 402 U.S. 389, 401 (1971)). This Court may
take “account of several different, often case-specific, factors,
reaching a result by weighing all together.” Metro. Life Ins. Co.
v. Glenn, 554 U.S. 105, 117 (2008). “[A]ny one factor will act as
a tiebreaker when the other factors are closely balanced, the

9

degree

of

closeness

necessary

depending

upon

the

tiebreaking

factor’s inherent or case-specific importance.” Id.
Here,

the

plan

specifically

provides

that

“the

Plan

Administrator shall have discretionary authority to determine
eligibility for benefits, to construe the terms of the Plan and
the Component Benefits Programs, to resolve questions of fact, and
to decide any and all matters arising under the Plan and the
Component Benefits Programs . . . .” Rec. Doc. 24-15 at 12. Thus,
this Court will review Defendant’s denial of benefits under the
abuse of discretion standard.

1. CONFLICT OF INTEREST
If the plan administrator has a conflict of interest, the
court will consider the conflict as one factor in determining
whether or not the administrator abused its discretion. Holland v.
Int’l Paper Co. Ret. Plan, 576 F.3d 240, 247 (5th Cir. 2009)
(citing Crowell v. Shell Oil Co., 541 F.3d 295, 312 (5th Cir. 2008)
(quoting Glenn, 554 U.S. at 116); White v. St. Luke’s Episcopal
Health Sys., 317 F. App’x 390, 392 (5th Cir. 2009) (“a ‘conflict
of interest’ . . . should be ‘weighed as a factor’ in determining
whether an abuse of discretion occurred”)). The Supreme Court
clarified that the existence of a conflict does not change the
standard of review from deferential to de novo, but must merely be

10

taken into account as one factor among many. Id. at 248 (citing
Glenn, 554 U.S. at 116-17).
Plaintiff argues that Defendant operated under a “structural”
conflict of interest by serving as the plan administrator for a
plan that is funded by Defendant’s general assets. Rec. Doc. 28-1
at 9 (citing Rec. Doc. 24-15 at 8, 12, 14). He also argues that
there was an “actual” conflict of interest, because the person who
denied Plaintiff’s claim, MaryLinda Coward, is Defendant’s North
American Welfare Benefits Manager. Id. at 10 (citing Rec. Docs.
24-6 at 2-3; 24-14 at 151).
Defendant argues that there is no allegation of a history of
biased claims administration, Plaintiff has not adequately proven
procedural unreasonableness (see infra), and the administrative
record was submitted to both Defendant’s Medical Director and two
“independent medical professionals who have affirmed that they
have no conflict of interest and that their compensation is not
dependent, in any way, on the outcome of this case.” Rec. Doc. 37
at 4 (citing Rec. Doc. 24-14 at 24, 29).2
The Fifth Circuit in Holland explained that a structural
conflict exists where “the employer who funds the plan also
Defendant also notes that Plaintiff’s treating physician indicated on
September 16, 2014, that Plaintiff was capable of sedentary or light activity.
Rec. Doc. 37 at 4 (citing Rec. Doc. 24-14 at 159). However, in the same report,
the treating physician clearly indicated that “MY PATIENT IS LIKELY ‘NEVER’ TO
BE ABLE TO RETURN TO WORK (IMPLIES TOTAL AND PERMANENT DISABILITY).” Rec. Doc.
24-14 at 159. Thus, the treating physician’s comment, when considered in
context, is not as compelling as Defendant would like the Court to think that
it is.
2

11

determines eligibility for benefits . . . .” 576 F.3d at 248
(citing Glenn, 554 U.S. at 111-12). However, the significance of
the conflict will depend on the facts of the case:
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.
Id. at 248-49 (emphasis added) (quoting Glenn, 554 U.S. at 11617). Thus, “[i]f claimants do not present evidence of a particular
degree of the conflict, the court will generally find that any
conflict is ‘not a significant factor.’” Robinson v. Hartford Life
& Acc. Ins. Co., No. 08-1697, 2010 WL 3023371, at *5 (W.D. La.
July 29, 2010) (citing Holland, 576 F.3d at 249 (finding that,
where

there

was

no

evidence

that

a

conflict

affected

the

administrator’s decision or that there was a history of abuses,
the conflict did not significantly impact the abuse of discretion
analysis)). Similarly, in Robinson, the district court found that
any alleged conflict was not significant enough to justify a change
in the standard of review, because the plaintiff did not point to
any evidence of a history of abuses or of how the conflict might

12

have affected the administrator’s decision in that particular
case. Id.
Here, Plaintiff merely alleges that a structural conflict and
an actual conflict exist. He does not allege a history of abuses
by Defendant or provide this Court with evidence of how these
conflicts might have affected Defendant’s decision in this case.
At most, it appears that Plaintiff attempts to link the conflict
to

Defendant’s

[Plaintiff’s]
treating
detail

decision

reliable

physician.”

below,

but,

“arbitrarily

evidence,

This
to

to

the

including

allegation
extent

is

that

refuse
the

is

credit

opinions

discussed
it

to

in

of

a

greater

relevant

here,

Plaintiff does not provide any direct evidence that Defendant
ignored medical evidence or that it did so because of some conflict
of interest. To the contrary, the fact that Defendant’s independent
reviewers also recommended that Plaintiff’s claims be denied is
persuasive evidence that Defendant took steps to reduce potential
bias.

In

any

event,

conclusory

allegations

are

insufficient

summary judgment evidence and the existence of a conflict, alone,
does not indicate that Defendant abused its discretion in denying
Plaintiff’s claims.

2. THE SOCIAL SECURITY DISABILITY AWARD
Plaintiff also argues that Defendant’s failure to consider
the Social Security disability award was an abuse of discretion.
13

Rec. Doc. 28-1 at 10. First, there is no direct evidence that
Defendant did not consider the award. Instead, Plaintiff merely
notes that the award was not discussed in Defendant’s denial
notices. Id. (citing Rec. Docs. 24-6 at 2-3; 24-14 at 151).
In

Schexnayder

v.

Hartford

Life

and

Accident

Insurance

Company, the Fifth Circuit noted that “[f]ailure to address a
contrary SSA award can suggest ‘procedural unreasonableness’ in a
plan administrator’s decision.” 600 F.3d 465, 471 (5th Cir. 2010)
(citing Glenn, 554 U.S. at 118-19). This unreasonableness could
justify the court giving more weight to an existing conflict. Id.
(citing Glenn, 554 U.S. at 118-19). In other words, “‘an ERISA
plan administrator’s failure to address the [SSA’s] finding that
the claimant was ‘totally disabled’ is yet another factor that can
render

the

denial

of

further

long-term

disability

benefits

arbitrary and capricious.’” Id. (quoting Glenn v. MetLife (Glenn
I), 461 F.3d 660, 669 (6th Cir. 2006), aff’d 554 U.S. 2343).
Defendant notes that (1) SSA findings are not binding on plan
administrators; and (2) the criteria for SSA disability differs
from that of ERISA plans. Rec. Doc. 37 at 5 (citing Dix v. La.
Health Servs. & Indem. Co., No. 12-319, 2014 WL 4843670, at *13
(M.D. La. Sept. 25, 2014), aff’d sub nom., 613 F. App’x 293 (5th
Cir. 2015) (“While SSA disability findings are ‘relevant and
instructive

in

a

Court’s

determination

of

whether

a

plan

administrator acted arbitrarily and capriciously,’ it is well
14

established that ‘Social Security Determinations are not binding
upon a plan administrator”) (internal citations omitted); Williams
v. Hartford Life Ins. Co., 243 F. App’x 795, 797 n.1 (5th Cir.
2007) (“Hartford is not required to defer to a Social Security
ruling”) (internal citations omitted); Hamilton v. Standard Ins.
Co.,

404

F.

App’x

895,

898

(5th

Cir.

2010)

(“because

the

eligibility criteria for SSA disability benefits differs from that
of ERISA plans, while an ERISA plan administrator should consider
a SSA determination, it is not bound by it”) (internal citations
omitted); Nugent v. Aetna Life Ins. Co., No. 12-65, 2013 WL
3777039, at *5 (E.D. La. July 17, 2013), aff’d, 540 F. App’x 473
(5th Cir. 2014) (where this Court previously noted that a plan
administrator’s
disability

as

decision
different

to

treat

the

from

the

plan’s

SSA’s

definition

definition

was

of
“not

arbitrary, because a rational administrator could find that the
definitions had different meaning, not only because of their
textual dissimilarity . . . but also because the Fifth Circuit has
held that they are different”) (internal citations omitted).
In Schexnayder, the SSA determined that the plaintiff was
fully disabled, but the plan administrator failed to address the
SSA award in any of its denial letters. Id. The Fifth Circuit
determined that “[b]ecause [the plan administrator] failed to
acknowledge an agency determination that was in direct conflict
with

its

own

determination,

its
15

decision

was

procedurally

unreasonable.”

Id.

Further,

because

the

plan

administrator

“benefitted financially from the government’s determination,” the
resulting procedural unreasonableness suggested that a financial
bias may have affected the plan administrator’s decision. Id.
Ultimately, “[a]lthough substantial evidence supported [the plan
administrator’s] decision, the method by which it made the decision
was unreasonable, and the conflict, because it is more important
under the circumstances, acts as a tiebreaker for us to conclude
that [the plan administrator] abused its discretion.” Id.
In

Robinson,

the

district

court

acknowledged

the

Fifth

Circuit’s statements in Schexnayder and the similarities between
the two cases, namely that the SSA determined that Robinson was
totally disabled and that the plan administrator did not address
the SSA determination in any of its denial letters. 2010 WL
3023371, at *5 n.4. Thus, the plan administrator’s “decision could
be

construed

as

procedurally

unreasonable.”

Id.

(emphasis

in

original). However, it was the fact that the plan administrator in
Schexnayer

failed

to

give

“any

acknowledgment”

of

the

SSA

determination that suggested the plan administrator failed to
consider all relevant evidence and led the Fifth Circuit to
conclude that the plan administrator’s decision was procedurally
unreasonable. Id. (citing Schexnayder, 600 F.3d at 471 n.3).
Further, it was the procedural unreasonableness in Glenn that
prompted the Supreme Court to give greater weight to an existing
16

conflict. Id. (citing Schexnayder, 600 F.3d at 471 n.3 (citing
Glenn,

554

U.S.

at

118-19)).

Robinson

was

distinguishable,

however, because the only evidence of the SSA award in the record
was a “one-page award notice and summary and a notice of award
letter

. . . .” Id. Thus, there was nothing “detailing the basis

and reasoning for the SSA’s determination of disability” and “no
way” for the plan administrator “to even begin to compare the SSA’s
determination

of

disability

with

the

information

[the

plan

administrator] had before it.” Id. Plus, the plaintiff did not
show that the definition of “disability” used by the SSA was the
same, or similar to, the definition used in the plan at issue. Id.
Here, even though the denial letters did not explicitly refer
to the SSA determination, Defendant did tell Plaintiff in its April
8, 2015 correspondence, and in its second denial letter, that all
information

in

the

record

would

be,

and

was,

considered

in

Plaintiff’s appeal. See Rec. Docs. 24-4 at 127, 24-14 at 155.
Granted, though, there was no explicit acknowledgment of the SSA
determination. However, as far as the Court is aware, the only
evidence of the SSA award in the administrative record is a sixpage notice of award letter. See Rec. Doc. 24-6 at 15. There is no
evidence of the basis for the SSA’s determination;

so, like

Robinson, there was no way for Defendant to compare the SSA’s
determination

with

the

information

in

the

record.

Further,

Plaintiff does not allege that the SSA’s definition of “totally
17

disabled” is the same as the plan’s definition. Based on these
facts,

and

Fifth

Circuit

precedent

recognizing

that

a

plan

administrator is not bound by the SSA’s determination, we do not
find the fact that Defendant failed to acknowledge the SSA award
explicitly in its denial letters an abuse of discretion.

3. THE OPINIONS OF PLAINTIFF’S TREATING PHYSICIANS
Plaintiff argues that Defendant did not explain its rationale
for disagreeing with Plaintiff’s treating physicians. Rec. Doc.
28-1 at 12. Specifically, he maintains that “[w]hile [D]efendant’s
reviewers note [Plaintiff’s] complaints and the objective evidence
supporting those complaints, the reviewer’s failure to adopt the
treating physician’s limitations without explanation represents an
arbitrary discounting of the evidence.” Id. at 14. Plaintiff
essentially argues that Defendant “arbitrarily refuse[d] to credit
[Plaintiff’s]

reliable

evidence,

including

the

opinions

of

a

treating physician.” Black & Decker Disability Plan v. Nord, 538
U.S.

822,

834

(2003).

Plaintiff

also

notes

that

Defendant’s

reviewers relied “solely on a paper review,” such that their
opinions

should

be

given

less

weight

than

the

opinions

of

Plaintiff’s treating physicians, which were based on physical
examinations. Id. at 15.
Defendant argues that the cases relied upon by Plaintiff are
distinguishable

because,

in

each
18

of

those

cases,

“the

administrators

disregarded

Plaintiff’s

medical

records

and

complaints of pain.” Rec. Doc. 37 at 5. In contrast, Defendant
maintains that it considered Plaintiff’s limitations, medical
records, and complaints of pain. Id. at 5-6. Further, Defendant
notes that a plan administrator’s independent medical reviewers do
not need to perform a physical examination, but may instead rely
upon “paper reviews.” Id. at 6 (citing Vercher v. Alexander &
Alexander Inc., 379 F.3d 222, 231 n.12 (5th Cir. 2004) (in which
the plan doctor simply reviewed the claimant’s records, without
examining the claimant in person).
Significantly,

in

addition

to

the

passage

quoted

by

Plaintiff, the Supreme Court in Black & Decker also noted that
“courts have no warrant to require administrators automatically to
accord special weight to the opinions of a claimant’s physician;
nor may courts impose on plan administrators a discrete burden of
explanation when they credit reliable evidence that conflicts with
a treating physician’s evaluation.” 538 U.S. at 834 (emphasis
added).
Nonetheless, Plaintiff cites several other cases, sometimes
for their law and sometimes for their facts, in support of his
position. For example, in Kalish v. Liberty Mutual/Liberty Life
Assurance Company of Boston, the Sixth Circuit noted that “when a
plan administrator’s explanation is based on the work of a doctor
in its employ, we must view the explanation with some skepticism.”
19

419 F.3d 501, 507 (6th Cir. 2005) (citing Moon v. Unum Provident
Corp.,

405

F.3d

373,

381-82

(6th

Cir.

2005)).

Similarly,

“physicians repeatedly retained by benefits plans may have an
incentive to make a finding of ‘not disabled’ in order to save
their

employers[’]

money

and

preserve

their

own

consulting

arrangements.” Id. (quoting Black & Decker, 538 U.S. at 832).
Further,

“a

plan

administrator,

in

choosing

the

independent

experts who are paid to assess a claim, is operating under a
conflict of interest that provides it with a ‘clear incentive to
contract with individuals who were inclined to find in its favor
that [a claimant] was not entitled to continued [disability]
benefits.’” Id. at 507-08 (citing Calvert v. Firstar Fin., Inc.,
409 F.3d 286, 292 (6th Cir. 2005)). Thus, any such incentive may
be considered as a factor in determining if the plan administrator
abused its discretion. Id. at 508 (citing Black & Decker, 538 U.S.
at 832).
However, in Kalish, the Sixth Circuit ultimately found that
the plaintiff only offered conclusory allegations of the plan
administrator’s doctor’s bias, without any “statistical evidence
to suggest that, when retained by [the plan administrator], [the
doctor] consistently opined that claimants are not disabled.” Id.
(internal citations omitted). Accordingly, the Sixth Circuit could
not conclude that the plan administrator acted arbitrarily and
capriciously in crediting its doctors and independent reviewers
20

over that of the plaintiff’s treating physicians. Id. (internal
citations omitted).
Similarly, here, there is no evidence that the independent
reviewers used by Defendant have a tendency to find that claimants
are

not

disabled.

They

even

explicitly

state

that

their

compensation does not depend upon the outcome of the case. See
Rec. Doc. 24-14 at 24, 29. Put simply, there is no evidence that
either Dr. Brock or Dr. Kalen acted in a biased way.
In Schully v. Continental Casualty Company, a claimant had to
submit

sufficient

“Proof

of

Disability,”

including,

but

not

limited to, “objective medical findings,” in order to qualify for
benefits. 634 F. Supp. 2d 663, 681 (E.D. La. 2009), aff’d, 380 F.
App’x 437 (5th Cir. 2010). The plan administrator found that the
plaintiff’s subjective complaints of back and neck pain were not
supported by “objective medical evidence” and accordingly denied
the

claim.

Id.

However,

the

court

found

that

the

plaintiff

submitted “a considerable amount” of objective medical evidence,
including

MRIS,

cervical

myelograms,

and

functional

capacity

examinations. Id. at 682. Even though the plan’s independent
reviewers

all

determined

that

the

plaintiff’s

subjective

complaints were not supported by objective medical evidence, none
of these physicians examined the plaintiff in-person and only one
actually spoke to the plaintiff’s treating physician. Id. at 683.
The court recognized that, even though treating physicians are not
21

given

preference

arbitrarily
including

refuse

the

under
to

opinions

ERISA,

credit
of

a

“an

administrator

claimant’s

treating

reliable

physicians.”

may

not

evidence,

Id.

(quoting

Schexnayder, 553 F. Supp. 2d 658, 666 (M.D. La. April 2, 2008),
aff’d in part, reversed in part, 600 F.3d 465 (quoting Black &
Decker, 538 U.S. at 834)). The court also found the “independent
reviewers[’]”

determinations

suspicious

because

they

readily

credited arbitrary evidence. Id. at 684.
On the one hand, the Hartford refused to acknowledge
that evidence such as Plaintiff’s cervical myelogram,
numerous MRI reports, multiple failed surgeries, CAT
scan, and Functional Capacity Evaluation constituted
sufficiently credible “objective medical evidence” of a
disability; on the other hand, however, the Hartford
readily noted as persuasive such inconclusive and
arbitrary evidence as the fact that Plaintiff’s profile
page appeared on his firm’s website.
Id. This inconsistent methodology, along with the plan’s dual role
as administrator and payor, supported a finding of bias and
warranted the use of a less deferential standard. Id. at 685.
Ultimately,

the

court

determined

that

the

plan

administrator

abused its discretion in denying benefits. Id. at 687.
Unlike Schully, there is no evidence that the independent
reviewers in this case arbitrarily discounted any evidence in the
record. Plaintiff does not argue that Defendant concluded that
there was no objective evidence, despite the obvious existence of
such evidence; nor does Plaintiff argue that Defendant’s reviewers
relied

on

questionable

evidence,
22

like

an

internet

profile.

Instead, Plaintiff merely argues that Defendant’s reviewers did
not

explicitly

detail

the

basis

for

their

disagreement

with

Plaintiff’s treating physicians. Plaintiff even admits that the
reviewers took note of Plaintiff’s complaints and the objective
evidence of those complaints. It is also clear that the reviewers
considered the opinions of Plaintiff’s treating physicians. See
Rec. Doc. 24-14 at 22-23, 29. They simply disagreed with those
opinions. We have found, and Plaintiff has cited, no case law
requiring

the

plan’s

reviewers

to

explain

exactly

why

they

disagreed with the opinions of a claimant’s treating physicians.
In Adams v. Metropolitan Life Insurance Company, the Middle
District of Louisiana recognized that a plan administrator could
disagree with a claimant’s treating physicians, but it could not
“arbitrarily refuse to credit a claimant’s reliable evidence,
including the opinions of a treating physician.” 549 F. Supp. 2d
775, 792 (M.D. La. 2007) (quoting Black & Decker, 538 U.S. at 834).
Further, the court noted that subjective evidence and complaints
of pain cannot be ignored. Id. at 792-93 (citing Audino v. Raytheon
Co. Short Term Disability Plan, 129 F. App’x 882, 885 (5th Cir.
2005)). In Adams, the plan administrator ignored the claimant’s
complaints

of

severe

headaches

and

documentation

from

the

claimant’s treating physicians showing that the claimant suffered
from disabling headaches, to conclude that objective evidence of
a disability was not present and therefore that the claim should
23

be denied. Id. at 792. The district court recognized that the plan
did not limit the record to objective evidence and accordingly
concluded that the plan administrator should not have ignored the
claimant’s complaints and the treating physicians’ assessments.
Id. at 794. Even though the plan administrator could legally
discredit the complaints and assessments, it failed to do so. Id.
“Unable to prove that the plaintiff is not suffering from disabling
pain,

MetLife

appears

to

have

resorted

to

another

tactic,

discounting the plaintiff’s accounts of pain altogether.” Id. The
plan administrator relied on reports by its doctors that found the
claimant fully functional, despite substantial evidence to the
contrary. Id. Reviewing the record “with slightly less deference
because [the defendant] ha[d] a conflict of interest,” the district
court made the following findings:
In light of the fact that MetLife did not consider or
evaluate the SSA determination of disability; conducted
only a file review; found no medical documentation for
the plaintiff’s condition despite extensive medical
documentation; and discounted the plaintiff’s subjective
complaints and her doctor’s assessment of them based on
the fact that headaches are subjective, this Court finds
that MetLife acted arbitrarily and capriciously in
denying the plaintiff’s claims for Phase II benefits.
Id.
Like Schully, the court in Adams found that it was an abuse
of

discretion

when

the

plan

administrator

and

its

reviewers

arbitrarily concluded that there was no objective evidence of a
disability. Here, Defendant does not dispute the existence of such
24

evidence. Instead, Defendant’s reviewers simply interpreted that
evidence in a way that Plaintiff’s treating physicians did not.
Defendant’s reviewers did not arbitrarily conclude that Plaintiff
is fully functional. Rather, the reviewers recognized significant
limitations. They simply concluded that Plaintiff is not “totally
disabled,” as defined by the plan. There is not substantial
evidence to suggest that this conclusion was unreasonable. Thus,
it was not an abuse of discretion for Defendant to rely upon the
opinions of its medical reviewers over the opinions of Plaintiff’s
treating physicians.

4. VOCATIONAL EVIDENCE
Plaintiff argues that Defendant’s denial letter fails to
specify any job that Plaintiff is qualified to perform in light of
the limitations noted by Defendant’s own reviewers. Rec. Doc. 281 at 16. Defendant responds that a plan administrator does not
need to mention an available occupation in its denial letter in
order to survive the abuse of discretion standard. Rec. Doc. 37 at
6 (citing Dabon v. Aetna Life Ins. Co., 61 F. App’x 120, at *1
(5th Cir. 2003) (where the plaintiff suggested that the defendant
abused its discretion by “discussing the need for vocational
evidence

and

then

failing

to

obtain

it,”

the

Fifth

Circuit

determined that the defendant never concluded that vocational
evidence

was

necessary,

the

defendant
25

had

a

rehabilitation

consultant review the file, and, even if they had concluded more
vocational

evidence

was

necessary,

“an

administrator

has

no

obligation to reasonably investigate a claim”; instead, the court
must

“focus

on

whether

the

record

adequately

supports

the

administrator’s decision”) (internal citations omitted).
We have found no case law requiring the plan administrator to
provide the claimant with a list of jobs for which it believes the
claimant is qualified and capable. Here, Defendant’s reviewers
determined that Plaintiff was capable of sedentary work and they
did not need to investigate these opportunities further.
Plaintiff also points to his treating physicians’ opinions
that he would miss up to four days per month from work and be “offtask” at least 20% of the time. Rec. Doc. 28-1 at 17 (citing Rec.
Doc. 24-14 at 81, Dr. Don Gervais’ opinion, 87, Dr. Chris Cenac’s
opinion). He then cites to an absenteeism presentation given on
November 6, 2010 in New Orleans and included in the administrative
record. Id. (citing Rec. Doc. 24-14 at 113-27). Plaintiff suggests
that the presentation supports a finding that missing up to four
days of work per month “is unacceptable in competitive employment.”
Id. The presenter was attempting to understand why some vocational
experts state that missing three to four days of work per month is
acceptable. Rec. Doc. 24-14 at 113. He theorized that many of these
experts probably incorrectly assume that workers are given certain
holidays and paid personal, sick, and vacation leave. Id. at 117.
26

Based on various studies, he concluded that a typical worker misses
less than one day per month. Id. at 123. He then asked, “[i]f
something is 3 or 4 times worse than typical can it ever be
acceptable?”

Id.

Ultimately,

based

on

survey

averages,

he

determined that “6 to 8 days per year is seen as a level of absence
that is perhaps tolerable to most employers.” Id. at 125.
Based on this presentation and the conclusions of Plaintiff’s
treating physicians, it appears that Plaintiff wants this Court to
conclude

that

Plaintiff

could

not

maintain

employment

in

a

competitive market. However, it is not the Court’s role, at the
summary judgment stage, to credit the opinions of Plaintiff’s
treating physicians over the opinions of Defendant’s independent
reviewers. After excluding those conflicting opinions, it would be
impossible for this Court to determine whether or not Plaintiff
could maintain full-time employment. Instead, it is our role to
determine if Defendant abused its discretion in determining that
Plaintiff could maintain such employment.
Plaintiff

cites

one

Fifth

Circuit

case

to

support

his

contention that Defendant’s failure to discuss how Plaintiff could
perform any occupation with his noted limitations is a “glaring
omission that demonstrates [D]efendant was more interested in
denying this claim than paying benefits to a deserving claimant.”
Rec. Doc. 28-1 at 17 (citing Robinson v. Aetna Life Ins. Co., 443
F.3d

389,

396

(5th

Cir.

2006)).
27

In

Robinson,

however,

the

administrator based its denial on a finding that the plaintiff’s
job did not require driving, but the Fifth Circuit determined that
the record did not contain any “evidence that driving was not an
essential task required of employees in positions comparable to
[the plaintiff’s] job

. . . .” 443 F.3d at 395 (emphasis added).

Because a person under the applicable plan was “totally disabled”
when they could not perform the “material duties” of their “own
occupation,”
unsupported

and

the

finding

administrator’s
that

the

denial

plaintiff’s

was

based

occupation

on

did

an
not

require driving, the Fifth Circuit vacated and remanded with
instructions that judgment be entered in favor of the plaintiff.
Id. at 391, 397. There simply is no comparable discrepancy in the
instant case, especially when we take into account that Defendant
reasonably credited the opinions of its medical reviewers over the
opinions of Plaintiff’s treating physicians.
Finally, Defendant urged this Court to remember that there
are often “conflicting medical opinions, with the plaintiffs’
treating

physicians

generally

supportive

of

a

finding

of

disability and the defendants’ internal reviews or independent
examining physicians determining otherwise,” that “it is the role
of the ERISA administrator, not the reviewing court, to weigh valid
medical opinions,” and that an administrator’s denial is generally
only overturned when “there is a ‘complete absence in the record
of

any

‘concrete

evidence’’

supporting
28

a

denial.”

Killen

v.

Reliance Standard Life Ins. Co., 776 F.3d 303, 309 (5th Cir. 2015)
(internal citations omitted).
Turning to the opinions in this case, Defendant’s first
reviewer, Dr. Brock, determined that Plaintiff “would be able to
do occasional walking and standing, up to ten minutes at a time
and one hour each per day . . . .” Rec. Doc. 24-14 at 21-22.
Further, he could sit, with the ability to reposition as needed;
occasionally lift, push, pull, and carry up to ten pounds; reach
at waist/desk level without restriction; and reach below waist
level and above shoulder level occasionally. Id. at 22. Dr. Kalen
made similar findings, noting that Plaintiff could sit for an hour
at a time, with the ability to move around for two to three minutes
each hour; walk and stand up to thirty minutes at a time, for up
to two hours per day; reach without restriction; and lift no more
than ten pounds; but he could not bend, squat, kneel, crawl, or
climb stairs regularly. Id. at 26.
Both Dr. Brock and Dr. Kalen noted the limitations imposed by
Plaintiff’s treating physicians. See Rec. Doc. 24-14 at 22 (where
Dr. Brock notes that Plaintiff’s physicians found that Plaintiff
could not maintain any competitive employment and cold not perform
any occupation because he could not be expected to attend work on
a consistent basis “as he will miss four days per month and be off
task for 25% or more at a time”); 29 (where Dr. Kalen recognized
the treating physician’s opinion that Plaintiff “would be ‘off
29

task’ due to his medications for 25% of the time” and “would have
no ‘good days,’ only bad”). It appears that, after reviewing the
record, they simply disagreed with those assessments. Again, it
was not an abuse of discretion for Defendant to rely upon the
findings

of

its

independent

reviewers

over

the

findings

of

Plaintiff’s treating physicians.

5. ERISA’S PROCEDURAL REQUIREMENTS
ERISA outlines certain procedural and notice requirements
that must be satisfied when a plan administrator denies a claim
for benefits. Schadler v. Anthem Life Ins. Co., 147 F.3d 388, 393
(5th Cir. 1998) (citing Halpin v. W.W. Grainger, Inc., 962 F.2d
685, 688 (7th Cir. 1992)). Specifically, § 1133 provides:
In accordance with regulations of the Secretary, every
employee benefit plan shall—
(1) Provide
adequate
notice
in
writing
to
any
participant or beneficiary whose claim for benefits
under the plan has been denied, setting forth the
specific reasons for such denial, written in a
manner
calculated
to
be
understood
by
the
participant, and
(2) Afford a reasonable opportunity to any participant
whose claim for benefits has been denied for a full
and fair review by the appropriate named fiduciary
of the decision denying the claim.
29 U.S.C. § 1133. Further, the Department of Labor’s regulations
elaborate

that

electronically

the
and

denial
set

should

forth,

in

understood by the claimant:
30

be
a

provided
manner

in

writing

calculated

to

or
be

(i)

The specific reason or reasons for the adverse
determination;
(ii) Reference to the specific plan provisions on which
the determination is based;
(iii) A description of any additional material or
information necessary for the claimant to perfect
the claim and an explanation of why such material
or information is necessary; [and]
(iv) A description of the plan’s review procedures and
the time limits applicable to such procedures . .
. .
29

C.F.R.

§

2560.503-1(g)(1)(i)-(iv).

Ultimately,

the

denial

notice must merely “substantially comply” with the statute and
regulations. Lacy v. Fullbright & Jaworski, 405 F.3d 254, 257 (5th
Cir. 2005); see also Baptist Mem’l Hosp.—DeSoto Inc. v. Crain Auto.
Inc., 392 F. App’x 288, 293 (5th Cir. 2010). “This means that
‘[t]echnical noncompliance with ERISA procedures ‘will be excused’
so long as the purposes of section 1133 have been fulfilled.”
Robinson, 443 F.3d at 393 (citing White v. Aetna Life Ins. Co.,
210 F.3d 412, 414 (D.C. Cir. 2000)). The statute and regulations
were “designed to afford the beneficiary an explanation of the
denial of benefits that is adequate to ensure meaningful review of
that denial.” Schneider v. Sentry Grp. Long Term Disability Plan,
422 F.3d 621, 627-28 (7th Cir. 2005) (quoting Halpin, 962 F.2d at
690); see also Lafleur v. La. Health Serv. & Indem. Co., 563 F.3d
148, 154 (5th Cir. 2009) (noting that the Fifth Circuit has “looked
favorably upon decisions that require ‘knowing what evidence the
decision-maker relied upon, having an opportunity to address the
accuracy and reliability of the evidence, and having the decision31

maker consider the evidence presented by both parties prior to
reaching and rendering his decision’” and that “[s]ubstantial
compliance requires ‘meaningful dialogue’ between the beneficiary
and

administrator”).

Nonetheless,

“[r]emand

to

the

plan

administrator for full and fair review is usually the appropriate
remedy when the administrator fails to substantially comply with
the procedural requirements of ERISA.” Lafleur, 563 F.3d at 157
(internal citations omitted).
Here,

Plaintiff

argues

that,

because

Defendant’s

denial

letters fail to provide specific reasons for the denials or outline
the evidence considered by the plan administrator, the denials do
not substantially comply with the statute and regulations. Rec.
Doc. 28-1 at 19. Thus, Plaintiff maintains that the case should,
at the very least, be remanded; alternatively, he suggests that
the

procedural

deficiencies

support

a

finding

that

the

administrator abused its discretion. Id.
Defendant responds that its denial letters amounted to a
“meaningful

dialogue”

with

Plaintiff

because

they

“provided

adequate notice in writing to Plaintiff that he was not eligible
for long term disability benefits because he was not totally
disabled

as

description

defined
of

by

the

Plaintiff’s

Plan”

appeal

limits.” Rec. Doc. 37 at 8.

32

and

the

rights

plan

and

“provided

applicable

a

time

Defendant’s initial denial letter informed Plaintiff that he
did not qualify for long-term disability benefits because he did
not meet the plan’s definition of “totally disabled.” See Rec.
Doc. 24-4 at 1. It also cited the relevant section of the plan,
Article II, section 2. Id. The second denial letter contained
substantially similar information. See id. at 127. Thus, contrary
to Plaintiff’s arguments, the letters did provide the specific
reason for the denials and they did substantially comply with the
statute and regulations. In other words, Defendant adequately
complied with ERISA’s procedural requirements.

6. THE PLAN’S DEFINITION OF “TOTALLY DISABLED”
The plan provides that “eligible full-time salaried employees
. . . who remain totally disabled after completion of the full
period of Salary Continuance or Short Term Disability will be
eligible for Long Term Disability benefits . . . .” Rec. Doc. 244 at 139. A person is “totally disabled” when
on evidence satisfactory to the Company and the
Company’s Medical Director or the Director’s designate,
the employee is unable to perform the duties of the
assigned job or any job for which the employee is or may
reasonably become qualified based on education, training
or experience due to a physical or mental condition
caused by illness or injury.
Id. at 140 (emphasis added).
Plaintiff maintains that the evidence in the administrative
record, including medical records and opinions, demonstrate that
33

he “continues to suffer severe, debilitating pain that prevents
him from working” and that his “established limitations . . . are
inconsistent with any full-time employment.” Rec. Doc. 28-1 at 20.
He also argues that the administrator’s medical reviewers did not
dispute (1) Plaintiff’s condition or that his condition causes
limitations; (2) the opinions of his treating physicians regarding
the amount of time that Plaintiff would be off-task; or (3) the
expected

absenteeism

rate,

which

would

be

unacceptable

in

a

competitive workplace. Id.
Defendant maintains that its “decision to deny long term
disability

benefits

[Plaintiff’s]

is

medical

supported
records

by

substantial

because

the

evidence

list

of

in

medical

limitations and restrictions do not bar him from performing job
duties at a sedentary level.” Rec. Doc. 37 at 8.
Even adjusting the abuse of discretion standard to provide
slightly less deference, in light of any existing conflict(s),
there is still substantial evidence in the record, i.e. more than
a scintilla but less than a preponderance, to allow Defendant to
reasonably

conclude

that

Plaintiff

did

not

meet

the

plan’s

definition of “totally disabled.” Plaintiff’s treating physicians
and Defendant’s independent reviewers simply disagree as to the
extent

of

Plaintiff’s

limitations.

Accordingly,

we

find

that

Defendant did not abuse its discretion when it denied Plaintiff’s
claims for long-term disability benefits.
34

B. MOTION TO SUPPLEMENT THE ADMINISTRATIVE RECORD
“The plan administrator has the obligation to identify the
evidence in the administrative record and the claimant must be
afforded a reasonable opportunity to contest whether that record
is complete.” Estate of Bratton v. Nat’l Union Fire Ins. Co. of
Pittsburgh, Pa., 215 F.3d 516, 521 (5th Cir. 2000) (citing Vega v.
Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 295 (5th Cir. 1999),
abrogated in part by Glenn, 554 U.S. 105 (citing Barhan v. Ry-Ron
Inc., 121 F.3d 198, 201 (5th Cir. 1997))). In Vega, when the
plaintiff sought to introduce evidence to the court that was not
before the plan administrator, the Fifth Circuit determined that
“[t]he district court . . . correctly held that it could not admit
new evidence . . . .” 188 F.3d at 299-300. It further held that
“the administrative record consists of relevant information made
available to the administrator prior to the complainant's filing
of a lawsuit and in a manner that gives the administrator a fair
opportunity to consider it.” Id. at 300. Thus, the Fifth Circuit
seemed to “recognize that, in undefined circumstances, a claimant
may

supplement

the

administrative

record

even

after

a

plan

administrator has denied a claim.” Anderson v. Cytec Indus., Inc.,
No. 07-5518, 2009 WL 911296, at *7 (E.D. La. Mar. 27, 2009), aff’d,
619 F.3d 505 (5th Cir. 2010).3 In any event, though, “the Fifth

The Court in Anderson also noted that “if Vega is read to allow claimants to
supplement the administrative record after the administrator’s claim denial, it
appears to be the only circuit to allow it.” 2009 WL 911296, at *7 n.9 (citing
3

35

Circuit has chosen not to give content to what constitutes a fair
opportunity to consider additional evidence.” Id.
In

Anderson,

the

parties

disputed

whether

or

not

the

administrative record included evidence submitted by the plaintiff
before filing suit but after the defendant denied the plaintiff’s
administrative appeal. 2009 WL 911296, at *7. Specifically, the
appeal was decided in July of 2006 and the plaintiff sought to
supplement the record six months later. Id. On appeal, the Fifth
Circuit avoided the timing issue by finding that, even if the
supplemental materials were part of the administrative record, it
would still find that the administrator’s decision was not an abuse
of discretion. 619 F.3d at 516. Specifically, notes and reports on
the plaintiff’s mental health “after his final appeal was denied
[were] weakly relevant, at best, to his mental health during the
time period at issue”; a letter from a psychiatry resident who did
not treat the plaintiff during the relevant time period was also
conclusory; and a letter from a psychiatrist, who never treated
the plaintiff, failed to assert that the plaintiff could not
perform his job during the relevant time period. Id. at 5176-17.
Here, Plaintiff seeks to introduce fifty-six pages of medical
records from TGMC and Houma Orthopedic Clinic. See Rec. Doc. 27-3
at 1. Specifically, the records appear to contain July 28, 2014

various cases from the Sixth, Ninth, and Tenth Circuits, as well as the Eastern
District of Louisiana).

36

MRI results (id. at 81-81); progress notes from August 4, September
29, November 10, and December 22, 2014 doctor’s visits (id. at 6570, 75-76); September 30, 2014 and November 14, 2013 prescriptions
for physical therapy (id. at 16-17, 42, 58-59); TGMC physical
therapy notes and evaluations from October 3 through December 1,
2014 (id. at 8-13, 18, 20-22, 26-29, 33-39, 43-45, 51-54, 63); a
medicine list (id. at 19); low back pain questionnaires (id. at
23-24,

46-47,

61-62);

a

lower

extremity

functional

scale

questionnaire (id. at 25, 60); signed TGMC notices and consent
forms (id. at 30, 40-41, 48, 55-57, 64); and December 2014 and
January 2015 test results and notes from the Southeast Neuroscience
Center (id. at 71-74, 77-80).
We do not think, and Plaintiff does not appear to argue, that
these

records

contain

any

significant

information

(i.e.

any

“smoking gun”) that was not already available to Defendant’s
independent reviewers, who were aware that Plaintiff had undergone
various MRIs, that Plaintiff was prescribed physical therapy, and
that

Plaintiff’s

treating

physicians

believed

he

was

totally

disabled. Thus, like the Fifth Circuit in Anderson, we find that,
even if the additional records were included in the administrative
record, we would still find that Defendant’s denial was not an
abuse of discretion.

37

IV.

CONCLUSION

For the reasons outlined above,
IT IS ORDERED that Defendant’s motion for summary judgment
(Rec. Doc. 24) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s motion to supplement
the administrative record (Rec. Doc. 27) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s motion for summary
judgment (Rec. Doc. 28) is DENIED.
New Orleans, Louisiana, this 8th day of March, 2017.

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SENIOR UNITED STATES DISTRICT JUDGE

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