King v. Unum Life Insurance Co of America
Filing
28
ORDER denying 18 Plaintiff's Motion for Summary Judgment; granting 22 Defendant's Motion for Summary Judgment. Signed by Judge Tucker L Melancon on December 18, 2012. (crt,Bacon, C)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
Daryl King
Civil Action No. 11-2054
versus
Judge Tucker L. Melançon
Unum Life Insurance Co. of America
Magistrate Judge Hanna
RULING
Before the Court are cross motions for summary judgment filed by plaintiff Daryl King,
R. 18, and by defendant Unum Life Insurance Company of America (“Unum”), R. 22, and their
respective memoranda in opposition thereto, R. 24, 25. For the reasons that follow, plaintiff's
Motion for Summary Judgment will be DENIED and defendant’s Motion for Summary
Judgment will be GRANTED.
I. Background1
A. MAPP Construction, LLC’s Long Term Disability Policy and King’s Job Requirements
Plaintiff Daryl King was employed by MAPP Construction, LLC as a Construction
Superintendent, Administrative Record, 000060, 000062, and was a participant in a disability
plan sponsored by MAPP and insured by Unum under contract number 139922 (the “Plan”), A.R.
000007, which is governed by the Employee Retirement Income Security Act of 1974, 29 U.S.C.
§ 1001 et seq. (hereinafter “ERISA”).2 Unum served as the Plan Administrator and was vested
with the discretion to review claims, to resolve factual disputes, to make decisions regarding
1
The parties have stipulated that the administrative record filed into the record of this proceeding is complete. R. 15.
2
The parties do not dispute that ERISA governs the benefit plan in this case. R. 8.
1
eligibility, and to interpret the Plan. A.R. 000130. The pertinent provisions of the Plan provided
that a participant is “disabled” when Unum determines that:
[Y]ou are limited from performing the material and substantial duties of your regular
occupation due to your sickness or injury, and you have a 20% or more loss in your
indexed monthly earnings due to the same sickness or injury. . . . You must be under the
regular care of a physician in order to be considered disabled.
A.R. 000105. Thus, in order to receive long term disability benefits under the Plan, an employee
must be limited from performing the material and substantial duties of his or her “regular
occupation.” Regular occupation “means the occupation [the participant is] routinely performing
when [his or her] disability begins. Unum will look at [the participant’s] occupation as it is
normally performed in the national economy, instead of how the work tasks are performed for a
specific employer or at a specific location.” A.R. 000123.
Unum’s Occupation Identification review for plaintiff’s job determined that plaintiff’s
occupation of Construction Superintendent, in the national economy, required “[e]xerting up to
20 pounds of force occasionally, and/or up to 10 pounds of force frequently, and/or a negligible
amount of force constantly.” A.R. 000164–65. It also required occasional sitting, stooping,
kneeling, crouching, crawling, and climbing, and frequent standing, walking, reaching, and
keyboard use. Id. Travel was also required. Id.
B. King’s Injury and Initial Treatment
Plaintiff injured his lower back and left leg at his home on February 12, 2010.3 A.R.
000137. He did not cease working for MAPP until August 31, 2010. A.R. 000075. Plaintiff was
first examined by Dr. Charles Burnell, an emergency medicine physician, on the day he was
3
It is disputed what plaintiff was doing when he injured himself, but that dispute is not relevant to the issue before
the Court.
2
injured. A.R. 000279. Plaintiff complained of left lower back pain radiating into his left leg to his
knee, with increasing pain that interfered with his ability to drive. A.R. 000282. Dr. Burnell
ordered an MRI of his lumbar spine, which showed disk protrusion at L4-5 impinging on the L4
root, small central protrusion at L5-S1, and “[m]ild facet arthropathy and disk degenerative
disease.” A.R. 000284–85. Dr. Burnell diagnosed plaintiff with a lumbar herniated disc based on
plaintiff’s history, the doctor’s physical examination, and the test results. A.R. 000285. He
prescribed steroids, pain medication, and muscle relaxants, and referred plaintiff to Dr. Alan
Appley, a neurosurgeon. Id.
On the same day, February 12, 2010, plaintiff also saw Dr. Amarendar Kasarla at
Lafayette Surgical Specialty Hospital4 and reported that he was “unable to move or do any work
at home” and was “constantly having lower back pain with radiation to the left hip and left
lateral thigh region.” A.R. 000191. Dr. Kasarla’s physical examination of plaintiff revealed “mild
to moderate tenderness in the left paraspinal muscles at 3-4 region with decrease[d] sensation
over left L3-4 dermatones . . . .” Id. Dr. Kasarla recommended left L3 and L4 lumbar
transforaminal epidural steroid injections, which plaintiff received. Id. Dr. Kasarla also
prescribed pain medication. Id. He recommended that plaintiff “rest [at] home today.” A.R.
000193.
On March 22, 2010, on referral from Dr. Burnell, plaintiff was evaluated by
neurosurgeon Dr. Alan Appley for aching in the left side of his lower back, tingling in his left leg
to his knee, and weakness in his left leg. A.R. 000171. Plaintiff reported that his symptoms
improved when he laid down and that medications had given him no relief, but the epidural
4
The administrative record does not indicate Dr. Kasarla’s specialty, but does note that plaintiff saw him for pain
management. A.R. 000193.
3
injection had improved his symptoms. Id. Dr. Appley reviewed plaintiff’s February 12, 2010
MRI and confirmed that it showed L4-5 disc herniation, and a small central protrusion at L5-S1.
Id. Dr. Appley prescribed physical therapy, stating that “it is safe for him to carefully increase
his activities now.” Id. He also said that plaintiff needed “to start some type of home exercise
program.” Id. He prescribed a pain medication and noted that if plaintiff’s pain increased, he
would need to have another epidural injection. Id.
On March 23, 2010, plaintiff began physical therapy with Patricia Boulet. A.R. 000219.
Plaintiff reported lower back pain, and Boulet noted that plaintiff had palpatory tenderness and
spasms. A.R. 000227. Plaintiff continued physical therapy until June 24, 2010. A.R. 000258.
On May 11, 2010, August 23, 2010, and October 14, 2012, plaintiff visited Dr. Burnell
and reported chronic pain. A.R. 000371.
On September 3, 2010, plaintiff reported to Dr. Kasarla that the February 12, 2010
epidural injection helped him for a few months, but that his lower back to left leg pain and
numbness had increased. A.R. 000188. Dr. Kasarla gave plaintiff another lumbar epidural steroid
injection. Id.
C. Administrative Claims Process
1. Initial Approval
On November 1, 2010, plaintiff completed the initial claim form for benefits, A.R.
000075, and on November 16, 2010, Dr. Burnell submitted an Attending Physician’s Statement
to Unum wherein he opined that plaintiff “is currently unable to perform work duties,” and that
plaintiff’s restrictions and limitations were “no prolonged sitting ([more than one] hour) [and] no
stooping, pushing, pulling, bending over forward[,] except occasionally . . . .” A.R. 000082–83.
4
Unum approved plaintiff’s Long Term Disability benefit claim on December 8, 2010, and
his benefits began effective November 30, 2010. A.R. 000202. Unum “approved [plaintiff’s]
benefits because [he was] unable to perform prolonged sitting (greater than one hour), no
stooping, pushing, pulling, bending over forward (except occasionally) due to the symptoms
related to [his] Lumbar Disc herniation [sic].” Id. Unum noted that they would follow up with
plaintiff in one to two months in order to get updated information about his medical status and
treatment. Id. In a conversation with plaintiff before Unum made its initial decision, Unum
notified plaintiff that while they medically supported Dr. Burnell’s restrictions and limitations,
they expected improvements. A.R. 000140–41.
Unum made its initial decision after speaking with plaintiff and receiving medical records
from Dr. Kasarla and Dr. Appley and the Attending Physician’s Statement from Dr. Burnell. At
the time it made its decision, Unum had not yet received medical records from Dr. Burnell or
plaintiff’s physical therapist, Patricia Boulet.
2. Denial
After its initial decision, Unum continued to receive plaintiff’s medical records, including
records it requested as part of its initial review but did not receive until after its approval of the
claim. Plaintiff resumed physical therapy on November 3, 2010. A.R. 000250. In November
2010, plaintiff reported increased pain to his physical therapist, including that his pain prevented
him from walking more than one half mile, sitting for more than one hour, and driving more than
one hour. A.R. 000258, 000261–62.
On January 26, 2011, a Unum representative spoke with plaintiff, who reported that he
was in a lot of pain and could not ride in a car. A.R. 000294. On February 14, 2011, Boulet sent
5
her office notes to Unum for plaintiff’s visits from November 24, 2010 to February 3, 2011,
which indicated that plaintiff reported doing better and having less tightness, A.R. 000323,
000329, 000332–33, but that he also reported persistent numbness in his left leg. A.R. 000326.
Unum also received Dr. Burnell’s office notes from visits on May 11, 2010, August 23, 2010,
October 14, 2010, and January 12, 2011. A.R. 000371. Dr. Burnell submitted a narrative report
on March 7, 2011, in which he listed multiple restrictions and limitations for plaintiff, including
no sitting for over 20-30 minutes, no bending, lifting or twisting based on diagnosis, and limited
standing for over 20-30 minutes, and gave the opinion that plaintiff was unable to return to work.
A.R. 000353. In conversations with Dr. Burnell on February 24, 2011, A.R. 000342, and with
plaintiff on March 18, 2011, A.R. 000403, Unum learned that plaintiff had traveled to Texas and
to Chile.
On March 17, 2011, Unum decided to look further into plaintiff’s medical condition and
Dr. Burnell’s assessment of plaintiff’s restrictions and limitations. A.R. 000372. Unum made the
decision to look further into plaintiff’s medical status on the day that it performed a
Comprehensive Business Report for plaintiff, A.R.000377, and found a report of a corporation
named OSS Global, which listed as “Associated People” plaintiff Daryl King and “Chuck
Barnell [sic].” A.R. 000382–84.5
Unum arranged for a physician review of plaintiff’s file. On March 30, 2011, Dr. Daniel
Krell, a family practice physician, reviewed plaintiff’s medical records. A.R. 000413. While Dr.
Krell acknowledged the diagnosis of lumbar radiculopathy, he gave the opinion that the
restrictions and limitations given by Dr. Burnell were not supported by the available medical
5
Unum later relied in part on this information as a reason to deny plaintiff’s claim.
6
information and were overly pessimistic. A.R. 000415. He noted that the physical exams did not
find dermatomal sensory loss or specific muscle weakness, that an electrodiagnostic study was
never performed, and that it was reasonable to expect “more active diagnostic and therapeutic
interventions” given the impairing symptoms reported. Id. Dr. Krell spoke by telephone with Dr.
Burnell on March 31, 2011. A.R. 000417–18. Dr. Burnell repeated his opinion to Dr. Krell that
plaintiff was unable to perform the duties of his job because he could not sit for extended periods
of time, including sitting to be able to drive. Id. Dr. Burnell explained that plaintiff had only been
able to travel because he was able to take breaks; Dr. Krell suggested that plaintiff should also be
able to perform a light occupation with similar breaks. A.R. 000418. Dr. Krell did not change his
initial opinion on plaintiff’s limitations based on his telephone conversation with Dr. Burnell.
A.R. 000421. In his addendum report, Dr. Krell noted that issues that influenced his decision
included that “Dr. Burnell is a staff member and a director of a currently operating business
owned and directed by Mr. King” and that there were inconsistencies regarding plaintiff’s travel.
A.R. 000421. He stated that “[i]nitial symptoms were consistent with the 2/12/10 MRI findings,
but clinical exams do not document abnormal findings consistent with ongoing, active lumbar
radiculopathy, and electrodiagnostic study has not been documented.” A.R. 000422.
On April 5, 2011, Dr. Joseph Sentef, a family practice and occupational medicine
physician, reviewed plaintiff’s file. A.R. 000428–33. He concurred with Dr. Krell’s conclusions.
A.R. 000432. In support of his conclusion, he noted that further testing to support plaintiff’s
diagnosis had not been performed, that plaintiff had not pursued treatment for pain, and that the
physical exam reports did not note dermatomal sensory loss or neurological deficits. A.R.
000432. He, like Dr. Krell, noted plaintiff’s alleged business connection to Dr. Burnell and his
7
travel to Texas and to Chile. Id. Dr. Sentef misconstrued plaintiff’s medical record by noting that
the first documentation of plaintiff’s inability to sit at a desk to work on a computer was in
March 2011. Id. In actuality, one of the first restrictions or limitations set for plaintiff by Dr.
Burnell on November 16, 2010 was no sitting for longer than one hour. A.R. 000082.
On April 8, 2011, Unum informed plaintiff that they would discontinue paying him
disability benefits because he had the functional capacity to perform the duties of his occupation
as defined by the Plan. A.R. 000441. Unum noted, in particular, that despite his complaints of left
lower leg radiculopathy and lower back pain and Dr. Burnell’s repeated assertions of plaintiff’s
restrictions and limitations, “physical findings [had] not revealed any dermatomal sensory loss,
reflexes have been normal, and there has been no specific muscle weakness noted.” A.R. 000443.
Unum also noted that plaintiff’s travel to Texas and to Chile, his physical therapy, and his
frequent trips to the gym suggested that plaintiff was not as restricted as Dr. Burnell had
indicated. Id. In making its decision to discontinue payment of benefits to plaintiff, Unum relied
in part on Dr. Krell and Dr. Sentef’s medical opinions.
3. Appeal and Decision Upholding Denial
On June 21, 2011, plaintiff requested that Unum reconsider the decision to terminate his
benefits. A.R. 000656. Plaintiff submitted medical records from the months after the denial in
support of his appeal. He submitted records from Dr. John Cobb, orthopedic surgeon, Dr.
Appley, Dr. Burnell, and Patricia Boulet. Plaintiff saw Dr. Cobb on May 16, 2011 and
complained of constant lower back and left leg pain. A.R. 000570. Dr. Cobb noted that in
addition to the pain plaintiff reported, the physical exam showed swelling, redness of joints, joint
deformities, weakness of limbs, and loss of sensation, but that he has “fairly full flexion” though
8
he complained of stiffness. A.R. 000572–73. He diagnosed disc degeneration and “primarily
nerve related symptoms in the L5 distribution on the left.” A.R. 000574. Dr. Cobb counseled
plaintiff that he could either continue to manage his condition with exercise and epidural steroid
injections or that he could have surgery at L4-5. Id. Plaintiff was to make the decision whether or
not to have surgery based on whether he was able to manage his pain with more conservative
measures. Id. Dr. Cobb did not comment on plaintiff’s restrictions or limitations or his ability to
work.
On June 15, 2011, plaintiff had X-Rays and an MRI, ordered by Dr. Appley, and the
radiologist noted degenerative disease. A.R. 000637. Plaintiff submitted that MRI to Unum for
consideration in his appeal. A.R. 000663. Dr. Appley recommended microdiscectomy surgery,
but did not comment on plaintiff’s restrictions or limitations or his ability to work. A.R. 000635.
Plaintiff visited Dr. Burnell on March 7, 2011 and June 27, 2011. A.R. 000746. Plaintiff reported
that he was still having pain, weakness, and problems driving and sitting. Id. On June 27, 2011,
Dr. Burnell reviewed plaintiff’s June 15, 2011 MRI and noted that the images confirmed
plaintiff’s diagnosis. Id. He also noted muscle wasting and atrophy. Id. Between February 3,
2011 and June 22, 2011, plaintiff attended physical therapy once on February 3, 2011, and then
regularly from March 2, 2011 until June 16, 2011. A.R. 000604–19. Plaintiff had several
telephone conversations with Unum during the months after his denial, during which he reported
pain. A.R. 000490, 000590.
In considering plaintiff’s request for reconsideration of its decision, Unum did not ask
plaintiff to submit to an independent medical examination but rather had a neurosurgeon, Dr.
Charles Sternbergh, review plaintiff’s medical records. On August 31, 2011, plaintiff’s medical
9
records, including the June 15, 2011 MRI images, were reviewed by Dr. Sternbergh. A.R.
000759–62. Dr. Sternbergh concluded that plaintiff was capable of working with
accommodations, including repositioning at hourly intervals. He described plaintiff’s complaints
of subjective pain, but noted that the record did not show any consistent “severe pressure on the
neural elements, . . . nerve root irritation[,] or neurological abnormality,” and therefore that the
complaints did not correlate with plaintiff’s medical records. A.R. 000761–62. He agreed with
Dr. Cobb that surgery was an option, but should only be pursued based on plaintiff’s complaints
of pain. A.R. 000762. He noted that plaintiff had not yet chosen to use analgesic medications or
aggressive medical pain management strategies. Id. For those reasons, he concluded that
plaintiff should be able to perform a job requiring light physical demands. Id.
On September 23, 2011, Richard Byard, Vocational Rehabilitation Consultant, performed
a Vocational Review for Unum. A.R. 000769. Byard’s review confirmed the initial Occupational
Identification review for plaintiff’s job, as set out above, and opined that plaintiff’s occupation
“would afford sufficient flexibility so as to permit physical position changes, at hourly intervals
if necessary, throughout the work day.” A.R. 000769–70.
In an October 3, 2011 letter to plaintiff upholding its previous decision, Unum stated that
Dr. Burnell’s opinion and plaintiff’s assertions of pain and inability to sit or travel indicating that
plaintiff could not work was contrary to plaintiff’s imaging and clinical exams, his failure to use
pain medications, and his ability to travel. A.R. 000779–83. Unum relied on its physicians’
opinions that plaintiff’s “persistent symptoms of back and left leg pain would not preclude [him]
from performing light physical demands with appropriate accommodations that allow
repositioning at hourly intervals if necessary.” A.R. 000781. It also noted Dr. Sternbergh’s
10
conclusion that the plaintiff’s “reports of severely limiting symptoms of pain are not consistent
with the clinical exams, diagnostic findings, and level of treatment.” Id. Based on their review,
Unum upheld its decision to deny benefits because its doctors found that plaintiff did not meet
the definition of disability under the Plan. A.R. 000782.
D. Summary Judgment Standard
A motion for summary judgment shall be granted if the pleadings, depositions, and
affidavits show that there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Little v. Liquid Air Corp., 37 F.3d
1069 (5th Cir. 1994) (en banc). Initially, the party moving for summary judgment must
demonstrate the absence of any genuine issues of material fact. When a party seeking summary
judgment bears the burden of proof at trial, it must come forward with evidence which would
entitle it to a directed verdict if such evidence were uncontroverted at trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986). As to issues which the non-moving party has the burden of
proof at trial, the moving party may satisfy this burden by demonstrating the absence of evidence
supporting the non-moving party's claim. Id. If the moving party fails to carry this burden, his
motion must be denied. If he succeeds, however, the burden shifts to the non-moving party to
show that there is a genuine issue for trial.6 Id. at 322–23. Once the burden shifts to the
respondent, he must direct the attention of the court to evidence in the record and set forth
specific facts sufficient to establish that there is a genuine issue of material fact requiring a trial.
6
Where the nonmoving party has the burden of proof at trial, the moving party does not have to produce evidence
which would negate the existence of material facts. It meets its burden by simply pointing out the absence of
evidence supporting the non-moving party's case. Celotex Corp., 477 U.S. at 325. To oppose the summary judgment
motion successfully, the non-moving party must then be able to establish elements essential to its case on which it
will bear the burden of proof at trial. A complete failure of proof by the nonmoving party of these essential elements
renders all other facts immaterial. Id. at 322.
11
Celotex Corp., 477 U.S. at 324; Fed. R. Civ. P. 56(e). There must be sufficient evidence favoring
the non-moving party to support a verdict for that party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249; Wood v. Houston Belt & Terminal Ry., 958 F.2d 95, 97 (5th Cir. 1992). There is
no genuine issue of material fact if, viewing the evidence in the light most favorable to the nonmoving party, no reasonable trier of fact could find for the non-moving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
If no issue of fact is presented and if the mover is entitled to judgment as a matter of law,
the court is required to render the judgment prayed for. Fed. R. Civ. P. 56(c); Celotex Corp., 477
U.S. at 322. Before it can find that there are no genuine issues of material fact, however, the
court must be satisfied that no reasonable trier of fact could have found for the non-moving
party. Id.
E. Standard of Review – ERISA Claims
The United States Court of Appeals for the Fifth Circuit has held that when a “plan . . .
grant[s] the plan administrator discretionary authority to . . . determine eligibility for benefits, a
plan’s eligibility determination must be upheld by a court unless it is found to be an abuse of
discretion.” Atkins v. Bert Bell/Pete Rozelle NFL Player Ret. Plan, 694 F.3d 557, 566 (5th Cir.
2012) (citing Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 111 (2008)). In this case, the Plan at
issue grants the Plan Administrator discretionary authority to interpret the terms of the Plan and
to determine eligibility for and entitlement to Plan benefits in accordance with the terms of the
Plan. Accordingly, review for abuse of discretion is the appropriate standard to be used by the
Court in resolving the dispute in this case.
12
In the context of ERISA, the abuse of discretion standard of review “is the functional
equivalent of arbitrary and capricious review.” Anderson v. Cytec Industries, Inc., 619 F.3d 505,
512 (5th Cir. 2010). A decision is arbitrary if it is made “without a rational connection between
the known facts and the decision or between the found facts and the evidence.” Atkins, 694 F.3d
at 566 (citing Holland v. Int'l Paper Co. Ret. Plan, 576 F.3d 240, 246 (5th Cir. 2009)).
Furthermore, an administrator must have “substantial evidence” to support its decision to deny or
terminate benefits. Id. (citing Ellis v. Liberty Life Assurance Co. of Boston, 394 F.3d 262, 273–
74 (5th Cir. 2004)). 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.” Id. (quoting Ellis, 394 F.3d at 273).
In Metropolitan Life Insurance Company v. Glenn, 554 U.S. 105 (2008), the Supreme
Court stated that a structural conflict of interest created by the plan administrator’s dual role in
making benefits determinations and paying benefits claims “should be taken into account on
judicial review of a discretionary benefit determination.” Id. at 115. In considering the Court's
ruling in Glenn, the Fifth Circuit has stated:
If the administrator has a conflict of interest, [the court should] weigh the conflict of
interest as a factor in determining whether there is an abuse of discretion in the benefits
denial, meaning [the court should] take account of several different considerations of
which conflict of interest is one.
Holland, 576 F.3d at 247 (internal quotations omitted). The Fifth Circuit further stated:
In reviewing the plan administrator's decision, we take into account . . . several different
considerations. . . . These factors are case-specific and must be weighed together before
determining whether a plan administrator abused its discretion in denying benefits. Any
one factor may act as a tiebreaker when the other factors are closely balanced, the degree
of closeness necessary depending upon the tiebreaking factor’s inherent or case-specific
importance.
13
Schexnayder v. Hartford Life & Acc. Ins. Co., 600 F.3d 465, 469 (5th Cir. 2010) (quotation
marks and citations omitted).
II. Analysis
A. Conflict of Interest
Plaintiff disputes Unum’s findings and argues that Unum and the physicians that
reviewed his medical records at Unum’s request arbitrarily disregarded his treating physicians’
opinions, which were based on objective medical evidence in the record, because they were
acting under a conflict of interest as Unum determined who was eligible for benefits and also had
the obligation to pay benefits if disability were found to exist. When the plan administrator “both
evaluates claims for benefits and pays benefits claims,” as in this case, the Court must weigh the
conflict of interest as a factor in determining whether there is an abuse of discretion in the
benefits denial. Glenn, 554 U.S. at 112. “The weight that this conflict will have relative to other
factors changes, however, depending upon the circumstances of a particular case.” Schexnayder,
600 F.3d at 470. When a claimant provides no evidence of the degree of the conflict or how the
conflict influenced the benefits decision, the court will generally find that the conflict is “not a
significant factor.” Holland, 576 F.3d at 249; see also Glenn, 554 U.S. at 117–18 (discussing
factors to be evaluated in considering administrator’s conflict of interest). In this case, plaintiff
has provided limited evidence of how Unum’s conflict of interest influenced its benefits
decision. Plaintiff points to Unum’s initial letter of discontinuance, its characterization of
plaintiff’s travel to Texas and to Chile and his ability to go to physical therapy and to the gym as
evidence of functional capacity, and its decision to discontinue benefits without having received
medical evidence showing a change in plaintiff’s condition and argues that Unum arbitrarily
14
relied on that insignificant evidence to support their decision to discontinue benefits because
Unum was driven by financial interest. Plaintiff submits nothing else in his attempt to establish
how the conflict played a role in Unum’s decision to deny Long Term Disability benefits under
the Plan. Accordingly, the Court having considered Unum’s conflict of interest, based on the
particular circumstances of this case as demonstrated by the administrative record, finds the
conflict not to be a significant factor. The Court considered the conflict, as well as the other
evidence contained in the administrative record, in determining whether Unum’s decision to
discontinue and not to reinstate plaintiff’s Long Term Disability benefits suggests procedural
unreasonableness.
B. Abuse of Discretion
a. Unum’s Change in Position
Plaintiff argues that Unum abused its discretion by initially approving plaintiff’s claim
and subsequently stopping benefits and denying his claim. However, the Fifth Circuit has stated
that
when a plan fiduciary initially determines that a covered employee is eligible for benefits
and later determines that the employee is not, or has ceased to be, eligible for those
benefits by virtue of additional medical information received, the plan fiduciary is not
required to obtain proof that a substantial change in the [long term disability] recipient’s
medical condition occurred after the initial determination of eligibility.
Ellis, 394 F.3d at 274. Here, after making its initial decision approving plaintiff’s claim, Unum
received medical records from plaintiff’s physical therapist, A.R. 000216–36, 000310–35, and
Dr. Burnell, A.R. 000280–85, 000369, had telephone conversations with both plaintiff and Dr.
Burnell, A.R. 000294, 000342, 000403, and had two physicians review plaintiff’s file, A.R.
000414–33. Unum was not required to prove a substantial change in plaintiff’s medical
15
condition, and therefore its initial approval and subsequent denial is not, in and of itself, proof of
an abuse of discretion, particularly in light of the entirety of the administrative record before the
Court.
b. Substantial Evidence for Defendant’s Decisions
Plaintiff also argues that Unum abused its discretion in several other ways. First, plaintiff
argues that the best evidence of his disability comes from his treating physicians. Plaintiff’s
treating physician Dr. Burnell maintains that plaintiff is unable to work due to degenerative disc
disease and lumbar radiculopathy and the accompanying impairing pain. Neither Dr. Kasarla, Dr.
Appley, nor Dr. Cobb opined that plaintiff was unable to work. Unum’s reviewing physicians Dr.
Krell, Dr. Sentef, and Dr. Sternbergh disagreed with Dr. Burnell’s assessment of plaintiff’s
restrictions, thus his inability to work at his occupation as defined by the Plan. The Supreme
Court in Black & Decker Disability Plan v. Nord, 538 U.S. 822, 825 (2003), held that “plan
administrators are not obliged to accord special deference to the opinions of treating physicians.”
Of course, plan administrators may not “arbitrarily refuse to credit” the opinions of the treating
physician. Id. at 834. Here, Unum and the physicians it had review plaintiff’s medical records
considered the opinions of Dr. Burnell, Dr. Kasarla, Dr. Appley, and Dr. Cobb and came to a
different conclusion. A.R. 000781. The Fifth Circuit has stated that “the job of weighing valid,
conflicting professional medical opinions is not the job of the courts; that job has been given to
the administrators of ERISA plans.” Corry v. Liberty Life Assur. Co. of Boston, 499 F.3d 389,
401 (5th Cir. 2007). Based on the administrative record before the Court, Unum did not abuse its
discretion in not relying on the opinion of Dr. Burnell.
16
Similarly, plaintiff argues that Unum should have ordered a physical examination of
plaintiff, rather than merely having physicians review his medical records. A plan administrator’s
decision to have a physician conduct a file review, rather than a physical examination, is not per
se arbitrary. Gooden v. Provident Life & Accident Ins., Co., 250 F.3d 329, 335 (5th Cir. 2001). In
Gooden, the Fifth Circuit held that the plan administrator did not abuse its discretion by relying
upon the assessment of a physician who had not examined the plaintiff because objective
medical information in the records could confirm the plaintiff’s condition. Id. Plaintiff’s medical
records contain both objective and subjective bases for his asserted condition, i.e. the results of
objective tests and subjective complaints of pain. Based on the administrative record, the best
course might have been for Unum to have had plaintiff undergo an independent medical
examination. However, based on that same record, the Court cannot find that Unum abused its
discretion in not requiring plaintiff to undergo a medical examination, given the results of the
objective tests and the thorough consideration of plaintiff’s complaints of subjective pain by Drs.
Krell, Sentef, and Sternbergh, upon which Unum relied.
While many cases, including cases out of this Court, have held that subjective accounts of
pain cannot be summarily dismissed, see, e.g., Tesch v. Prudential Ins. Co. of America, 829 F.
Supp. 2d 438, 497–99 (W.D. La. 2011); Schully v. Cont'l Cas. Co., 634 F. Supp. 2d 663, 683
(E.D. La. 2009), aff'd 380 F. App’x 437 (5th Cir. 2010); Audino v. Raytheon Co. Short Term
Disability Plan, 129 F. App’x 882, 885 (5th Cir. 2005), a plan administrator’s decision is not
arbitrary or capricious as long as it considers, evaluates, and addresses the claimant’s subjective
complaints, Corry, 499 F.3d at 401; see also Anderson, 619 F.3d at 514. Unum’s final letter of
denial noted plaintiff’s reports of back pain that prevented him from being able to sit. A.R.
17
000780. It also noted Dr. Sternbergh’s consideration of plaintiff’s “persistent symptoms of back
and leg pain,” and his opinion that plaintiff’s reported symptoms would “not preclude [him] from
performing light physical demands with appropriate accommodations that allow repositioning at
hourly intervals if necessary.” A.R. 000780–81. Rather than ignoring plaintiff’s subjective
complaints of pain, Unum and its consulting physicians considered them and found them to be
insufficient to support a disability, as defined by the Plan.
Next, plaintiff suggests that because he can show evidence to support his claim of
disability, Unum’s determination was arbitrary and capricious. However, “the law requires only
that substantial evidence support a plan fiduciary’s decisions, including those to deny or to
terminate benefits, not that substantial evidence (or, for that matter, even a preponderance) exists
to support the employee's claim of disability.” Corry, 499 F.3d at 402 (citing Ellis, 394 F.3d at
273). As long as there exists substantial evidence in the administrative record to support Unum’s
denial of plaintiff’s claim, the Court must uphold that decision, even if the evidence is
disputable. Firman v. Life Ins. Co. of N. Am., 684 F.3d 533 (5th Cir. 2012) (citing Holland, 576
F.3d at 246). “Ultimately, [the court's] review of the administrator's decision need not be
particularly complex or technical; it need only assure that the administrator's decision fall[s]
somewhere on a continuum of reasonableness-even if on the low end.” Anderson, 619 F.3d at
512 (citing Corry, 499 F.3d at 398).
Plaintiff also argues that plaintiff is disabled under the Plan because he is unable to
perform the responsibilities of his position at MAPP Construction as he describes the job
responsibilities. However, under the Plan, to determine the responsibilities of a claimant’s
regular occupation, “Unum will look at [the claimant’s] occupation as it is normally performed
18
in the national economy, instead of how the work tasks are performed for a specific employer or
at a specific location.” A.R. 000123. Unum determined that plaintiff’s occupation as Construction
Superintendent, as performed in the national economy, included:
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. . . . Occasional: Sit, stoop,
kneel, crouch, crawl, climb . . . . Frequent: Stand, walk, reach, keyboard use . . . . Travel
would be a requirement of the occupation.
A.R. 000163–64. Plaintiff’s actual responsibilities at MAPP Construction are not relevant under
the Plan.
Unum argues that substantial evidence supported its decision. The Court agrees. Unum
appears to accept, based on the objective medical data and diagnoses, that plaintiff suffers from
degenerative disc disease and lumbar radiculopathy. Its decision to deny benefits instead rests
upon its assessment of what those data and diagnoses mean in terms of plaintiff’s physical
limitations and therefore his ability to work. Its determination was supported by three consulting
physicians, including a family practice physician, a family practice and occupational medicine
physician, and a neurosurgeon. Dr. Krell reviewed plaintiff’s medical records and had a
telephone conversation with Dr. Burnell, plaintiff’s treating physician. He noted a lack of
objective evidence of plaintiff’s inability to work. He discussed his concerns with Dr. Burnell
and did not find Dr. Burnell’s responses to be persuasive. Dr. Sentef similarly noted a lack of
objective evidence of plaintiff’s restrictions and limitations. Dr. Sternbergh reviewed plaintiff’s
medical records, including his June 2011 MRIs, and concluded that plaintiff’s records did not
support his inability to work. Dr. Sternbergh also noted that despite plaintiff’s complaints of
pain, he was not using pain medications. In its letters explaining its denial of benefits to plaintiff,
Unum acknowledged Dr. Burnell’s opinion that plaintiff could not work, but relied on its
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consulting physicians’ opinions that objective evidence did not support plaintiff’s inability to
work and that plaintiff, in spite of his pain, could perform light physical demands given the
ability to change positions. Ultimately, in the “‘battle of the experts[,]’ the administrator is
vested with discretion to choose one side over the other.” Corry, 499 F.3d at 401. All three
consulting physicians concluded that there was a lack of objective evidence supporting plaintiff’s
inability to work, and their conclusions serve as substantial evidence to support Unum’s decision
to discontinue paying benefits to plaintiff.
Plaintiff argues Unum’s consideration of his ability to travel to Texas and to Chile in its
decision to deny his benefits was an abuse of discretion. He argues that he was only able to travel
to Texas because as a passenger, he was able to recline and to take breaks. Unum noted his
ability to make accommodations during the five hour trip to Texas in its explanation of its
decision. A.R. 000780. Plaintiff also argues that Unum abused its discretion by relying on
plaintiff’s ability to go to the gym in its decision to deny plaintiff’s benefits. Unum did not note
plaintiff’s ability to go to the gym or physical therapy in its final denial letter, A.R. 000779–83,
however, his ability to travel to the gym and physical therapy was noted in the initial denial
letter. A.R. 000443. While plaintiff’s ability to travel as a passenger to Texas and to Chile
provides some evidence of his ability to travel as a driver as required by his occupation, it is not
precisely comparable and thus cannot by itself support a conclusion regarding plaintiff’s
abilities. See, e.g., Bray v. Fort Dearborn Life Ins. Co., 312 F. App’x 714, 716 (5th Cir. 2009)
(unpublished) (upholding district court decision that substantial evidence did not exist where
surveillance videos showed activities incomparable to plaintiff’s work); Schully v. Cont'l Cas.
Co., 634 F. Supp. 2d 663, 672 (E.D. La. 2009), aff'd, 380 F. App’x 437 (5th Cir. 2010) (granting
20
disability claim for plaintiff with lumbar spine disease who traveled abroad); accord Patterson v.
Prudential Ins. Co. of Am., 693 F. Supp. 2d 642, 657 (S.D. Tex. 2010) (finding that limited
surveillance of plaintiff walking and driving did not “by itself support a conclusion either way as
to Plaintiff’s capabilities”). However, as set out above, substantial evidence is contained in the
administrative record for Unum’s decision notwithstanding plaintiff’s travel.
In finding substantial evidence to support Unum’s decision, the Court did not consider
and consequently did not rely upon the alleged business relationship between plaintiff and his
treating physician, Dr. Burnell. Throughout the administrative record, Unum and its physicians
make reference to the allegation that plaintiff and his treating physician are both linked to the
same corporation. As the Supreme Court has noted in its case rejecting the “treating physician
rule,” “if a consultant engaged by a plan may have an ‘incentive’ to make a finding of ‘not
disabled,’ so a treating physician, in a close case, may favor a finding of ‘disabled.’” Black &
Decker Disability Plan v. Nord, 538 U.S. 822, 832 (2003). While evidence that plaintiff’s
treating physician may have known plaintiff outside of the doctor-patient relationship could
provide some evidence of bias, Unum does not explain how the alleged relationship influenced
Dr. Burnell’s decision, other than that its physicians believed that Dr. Burnell’s conclusion about
plaintiff’s ability to work was not accurate. Plaintiff’s relationship with his treating physician
was not considered by the Court in its determination that the administrative record contained
substantial evidence to support Unum’s decision to discontinue the payment of Long Term
Disability benefits to plaintiff and to ultimately deny his claim.
21
C. Attorney’s Fees
Plaintiff seeks an award of attorney’s fees under ERISA. An award of attorney’s fees in an
ERISA action is purely discretionary. 29 U.S.C. § 1132(g)(1); Salley v. E.I. DuPont de Nemours
& Co., 966 F.2d 1011, 1016 (5th Cir. 1992). The Supreme Court has held that a fees claimant
must show “‘some degree of success on the merits’ before a court may award attorney's fees
under § 1132(g)(1).” Hardt v. Reliance Standard Life Ins. Co., 130 S. Ct. 2149, 2158 (2010).
Here, plaintiff failed to prevail on the merits, and an award of attorney’s fees to plaintiff fails as a
matter of law.
III. Conclusion
Substantial evidence is contained in the administrative record before the Court to support
Unum’s decision to discontinue paying Long Term Disability benefits to plaintiff. Plaintiff’s
Motion for Summary Judgment, R. 18, will be DENIED and defendant’s Motion for Summary
Judgment, R. 22, will be GRANTED.
THUS DONE AND SIGNED at Lafayette, Louisiana this 18th day of December, 2012.
_________________________
Tucker L. Melançon
UNITED STATES DISTRICT JUDGE
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