Price v. UNUM Life Insurance Company of America et al

Filing 30

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 3/14/2018. (kns, Deputy Clerk)

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I! S C' i .WT
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IN THE UNITED STATES DISTlUCT COUHT, ,,!v T'
t~;\ . : _:.".~'
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FOI{ THE DISTI{ICT OF MARYLAND
Southern Division
ic:t BAR 14
10: I q

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KOEBEL PRICE,

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I'laintiff,

Case No.: G.JH-16-2037

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v.
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UNUM LIFE INSURANCE COMPANY
OF AMERICA, et al.

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Defendants.

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MEMORANDUM OPINION
Plaintiff Koebel Price brings this action against insurance plan administrator UNUM Life
Insurance Company of America ("Unum") and his fonner employer. The National Democratic
Institute ("NO I." collectively, "Defendants"), under the Employee Retirement Income Security
Act of 1974 ("ERISA"), 29 U.S.c.

* 1001

el self ..

seeking review ofUl1llln's denial of Plaintiffs

claim fiJr long term disability benefits. ECF No. I. Now pending beftlfe the Court is Defendants'
Motion It)r Summary Judgment. ECF No. 23, and Plaintiffs Cross Motion ft)r Summary
Judgment. ECF No. 25. No hearing is necessary. Loc. R. 105.6 (D. Md. 2016). For the ft,llowing
reasons, Defendants' Motion It)r Summary Judgment is granted. and Plaintiffs Cross Motion It)r
Summary Judgment is denied.

I.

BACKGROUND

I

A. Employment

and Medical

HistolJ'

On Fcbruary 27. 2015. Pricc submitted

a claim to Unum for short and long term disability

bcncfits. alleging that he became totally disabled as of February 3. 2015 due to thc following
conditions:

MAST Ccll Activation

146-47. At the time of submitting
As an NDI cmployce.

U.S.c.

*

syndromc.

See LTD

and Dysautonomia.

his claim. Price was a 55-ycar old Scnior Advisor for NDI. Id

The Plan is regulated

Policy (thc "Plan")

under ERISA. which authorizes

to bring an action in federal court for wrongful

denial of insurancc

bcnclits.

29

I I 32(a)(I )(8).

Starting in 2012. Price cxhibited
medical

Sjogren's

Price was covered under NDr's Group Insurance

issued by Unum. See LTD 99-142.
individuals

Disorder.

providers.

including

a litany of medical ailmcnts as document cd by various

rheumatologists.

intcrnists.

immunologists.

an allcrgist and multi-disciplinary

these ailments.

Price was approved

pcriods oftimc

520-22:

312-13.

321-22:

bctween March 22. 2012 through May 31. 2015. LTD

Price contends

that his conditions

that precludc him Irom working.

following

and symptoms:

impairment.

teams at thc Mayo Clinic.2 Due to

treatmcnt

mcntal impairmcnts
diagnoses

ncurologists.

for leavc undcr thc Family and Medical Leave Act

C'FMLA ") for intermittcnt
1757-60:

a slccp specialist.

Sjogrcn's

which include. but are not limitcd to. thc

syndrome.

mcntal ItJg. hcrniated disc. insomnia.

cause physical pain and

arthropathy.

migraines.

fatiguc. cognitivc

small tiber neuropathy.

myalgia.

musclc achcs. and tinnitus.
Undcr the Plan. a claimant

is "disabled"

if Unum determines

that an cmployee

is:

I The Court relies 011 facts taken from the administrative record. which was filed under seal on April 13.2017. ECF
No. 22. The administrative record contains Bates Numbers in the form of"UA-CL-LTD-XXXXX:"
The Court will
reference the administrative record as "LTD XXXXX" herein.
.1 A comprehensive rcvic\\.' of Pricc"s medical conditions and history oftreatmcnt is set forth in PlaintifTs Cross
Motion for SUlllmary Judgment and briefly summarized herein. See ECF No. 25 at 6-9.

2

[L]imited Irom 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
carnings due to the same sickness or injury. Alicr 24 months of paymcnts. you arc
disabled when Unum determines that due to the same sickness or injury. you are unable
to perform the duties of any gainful occupation for which you are reasonably fittcd by
education. training or experience.
LTD 113. Material and substantial
performance

duties includes those that "are normally required for the

of your regular occupation:

and cannot be reasonably

128-29. Moreover. the Plan defines "regular occupation"
performing
performed

when your disability

or at a specific location'"

ternl disability

paymcnts.

you are routinely
as it is normally

instead of how the work tasks arc performed

Iix a specific

LTD 130. Under the Plan. a claimant must be continuously

for a period of 112 days (the "elimination

disabled

as ..the occupation

begins. Unum will look at your occupation

in the national cconomy.

employer

omitted or modi lied'" LTD

pcriod") beforc Unum willmakc

any long

LTD 113.

B. Claim I{c\"icw Proccss
Alier Price submitted

2015. Unum attcmpted
LTD 155 (emaillrom

occupation.

to collect Pricc's medical rccords prior to cvaluating

claim'"). On May II. 2015. Unum Lead Disability

a telcphone

interview

financcs. cducation.

benelits.

his claim . .'1<,<,. <'.g ..

I3cncfits Spccialist

with Pricc to rcview his medical conditions.

L.

treatment.

and the status of Price' s claim. LTD 229-33.

On May 21. 2015. Unum f(JrI11ally initiated review ofPrice's
disability

benelits on February 27.

Unum to NO! noting that "'we are waiting on medical rccords to approve

Mr. Pricc's disability
Hyde conducted

his claim for short and long term disability

LTD 264.3 Unum informed

claim as one for long term

Price that it was in the process of obtaining

.• The record suggests that Price's initial claim was accepted by Unum as a claim for short term disability benefits.
which was approved through May 22. 2015. However. the parties fail to explain how Unum's initial review of
Price"s claim for short term disability benefits affected its review of Price's long tefm disability claim and associated
ERISA procedural time limits. Therefore. the C01ll1 will only consider the actions taken by the parties as related to
Price"s claim for long term disability benefits once formally initiated on May 21. 2015.

3

information regarding Price's prior leave approved under the FMLA. position description. and
medical rccords as a part of evaluating his claim and committed to provide an updated status on
Junc 5.2015. LTD 265-66. On June 5. Unum informed Price that it was extending the time in
which it would make a determination on his long term disability claim and indicated that it
expected to make a decision on his claim within 30 days of rceeiving a responsc to its
information rcqucst. warning that it may make an eligibility determination within 45 days of the
date of the request if the information was not providcd. LTD 292. On June 19. aner rceeiving
some of the requested information. Unum again informed Pricc that it required additional
inl(JrInation to evaluate his eligibility for benefits. LTD 370. and continued to rcquest
information Irom his medical providers. See. e.g.. LTD 395-96. On July 2. Unum again updated
Price on the status of his claim. noting that Unum was still in the process of rcqucsting his
medical records. LTD 448--450. On July 14. Priee contacted Unum to discuss the timclinc for
adjudicating his claim and informcd Unum that itncedcd to make a decision within 60 days.
LTD 2059. In response. Unum provided Price with a review of the additional information it
needed to colleet in order to make a decision. Id. Finally. on August 17.2015. I(lilowing the
climination period. Unum advised Price that it was commencing the paymcnt of his long tcrm
disability bcnclits "under reservation of rights while wc continue to evaluate your claim to
determine if the inl(JrInation in your claim file supports disability under the provisions of the
policy" and whether Price had met all eligibility requircments to maintain coverage under the
Plan. LTD 994-97.
C. Initial Claim Determination
On October 15.2015. Unum ultimately denied Priee's claim for long tcrm disability
benefits. linding that despite the pain complaints made by Price. the evidence before it did not

4

support that he was limited Irom performing the material and substantial duties of his regular
occupation. LTD 1104-10. Unum's determination was based on a revicw of Price's availablc
medical records and a number of expert reviews as detailcd below.
I. Clinical Review
On August 3. 2015. C. Ramano. a registered nursc. conducted a clinical revicw of Price's
claim file. LTD 739-44. Ramano summarized "all written and telephonic communications with
the [Pricel. [Price's] employer and treating providers:' which included inf(mnation from thirteen
treating providers bctween 2012-20 15. Id. Of note. Ramano reproduced the reports of two of
Pricc's doctors. Drs. Macedo and Moss. suggestive of Pricc's inability to work. In Fcbruary and
March of2015. Macedo. a neurologist. documented Price's conditions of"arthralgias.

myalgia.

fatiguc. cognitive impairmcnt. migraine and autonomic dysfimction" and certified impairments
for Price based on MAST Cell Activation Disorder. Sjogren's syndrome. and Dysautonomia.
LTD 742. Macedo stated that Price was unable to work as a result of these impairments. which
he opined was a result of Price's travel for employmcnt. Id.: see also LTD 1638-51 (Macedo
medical records).
In July of 20 15. Moss. a clinical psychologist. reported diagnoses of dysthymic disordcr
and adjustment disorder with anxiety: however. Moss did not advisc Price to stop working. LTD
742. Moss indicated that Price had mild impairment in social fimctioning. moderate impairmcnt
in memory and concentration. and no impairment in independent functioning. Id.: see also LTD
1965-67 (Moss medical records). Ramano reported Moss' treatmcnt notes as follows:
Dr. Moss seen for depression/anxiety. emotional condition dctcriorating Irom a numbcr
of factors. To be terminatcd end of Feb, has considered disability but pushed to work
sincc hc knew his fiunily's life stylc would be greatly compromised with less income. Is
now apply I()r disability but docs not know if that will be succcssfili. will begin looking
for employment.

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LTD 742.
Finally, Ramano indicated that thcre were inconsistencies in the findings from Pricc's
medical providers, including but not limited to the findings noted from Macedo and Moss above,
and that because of "the multitude of symptoms rep0l1ed that are not explained by mcdical
information:'

Price's claim file should be provided to on-site physicians ("'asPs")

Ill[ further

review. LTD 744.
2. Occupational

Identification

ali August 10, 2015, R. Peavy, Unum's Senior Vocational Rehabilitation Consultant.
conducted an Occupational Identification to determine the material and substantial duties of
Price's occupation in the national economy, as well as its physical and cognitive demands. LTD
768-71. At the timc of his termination, Price's primary responsibilitics as a Senior Advisor for
NDI included, but were not limited to. the following categories of activity:
•

Provide strategies, tools and techniques to NDI's global staff members that can be
used to support and strengthen citizen organizing and activism in new and emerging
dcmocracies:

•

Uncover and document programmatic lessons and best practices:

•

Deliver training and technical assistance to civic partners:

•

Conduct in-country assessments of programs:

•

Synthesizc and draft conclusions. including programming recommendations:

•

Enhance the Institute's network of practitioners that would be able to act as project
consultants:

•

Liaise with international and domestic organizations to identity new approachcs:

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•

Represent NDI at appropriate professional confercnces and donor meetings. as well as
visiting with delegations:

•

Identify funding opportunities for new programs:

•

Work as team player on the citizen participation team. providing back-up to other
team mcmbers and supervising work by junior team members and interns .

. LTD 299-300.
Upon review of both Price's oflicialjob description and responsibilities as described by
Price himself: Peavy determined that Price's occupation in the national economy was most
consistent with a "Program Specialist:' as delined by the Enhanced Directory of Occupational
Titles ("cOOT" # 030.167-031). The job of Program Specialist typically requires a four-year
degree and subjects an employee to physical. cognitive. and mental stress demand requirements
01'''[ e]xerting up to 10 pounds of force occasionally mostly seated activity and brief periods of

standing and walking:' LTD 770. Unum recognized that the job of Program Specialist requires at
least occasional travel. making judgments and decisions. dealing with people. adaptation to
change. independent planning. and memory and concentration.4 Id.

.4

Peavy listed the material and substantial duties of a Program Specialist as follows:
Develops and manages assigned client relationships in a manner consistent with policies and procedures:
Schedules and facilitates program sUPPol1l11cetings:
Ensures timely completion and distribution of required documentation:
Monitors the implementation orall contractual obligations to ensure compliance with applicable agencies:
Prepares and assists in review of monthly status reports. test plans. design data books. and process and
material specifications as required:
Plans and coordinates meetings on project timing. goals, and budget to ensure fulfillment of internal
customer expectations and compliance with policies and contractual requirements:
Provides key financial data to Program Manager on a timely basis:
Creates. maintains. and updates assigned program schedules for contract dcliverables and key events:
Assists in the crcation of presentations outlining the program's strategies. products. and results associated
with internal goals:
Communicates findings and recommendations on critical initiatives to clients and internal partics;
Assists in managing or Icading special projects associated with the program and assign cd clients:
Builds and maintains an accurate client database:
Communicates \\Iith clients and management to resolve program issues:
Serves as the direct point of contact for clients:

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3. Mcdical Rcvicws
Following the clinical and occupational reviews. five different physicians reviewcd
Price's claim filc. On August 6. 2015. Dr. S. Kirsch reviewed Price's claim tile as dcscribcd in
Ramano's Clinical Revicw and recommended that Moss' mcdical rccords and Pricc's
prescription medications be rcvicwcd prior to sending Price' s claim for further evaluation. LTD

asp

758. On Septembcr 18.2015. Dr. N. Kletti. Unum's

psychiatrist. reviewcd Pricc's claim tile

and determined that it did not support a Iinding that Price was disabled under the Plan. LTD
1058-68. Kletti concluded that he did "not tind tile documentation to support psychiatric
impairment precluding ability to pcrform usual occupational duties at any timc during this
claim," Id at 1067-68. Kletti also raised concerns with Moss' findings. noting that Moss was the
only attending physician that had certitied an impainncnt on the basis of a psychiatric illness.
and he was unsuccessful in his attcmpts to contact Moss for further consultation. Id at 1067: see
also LTD 1028-31 (August 27. 2015 letter from Kletti to Moss). Finally. Kletti recommended an
additional medical revicw as "thcre remains unresolved AP lattending physician ]/OSP
disagreement following AI' contact attempts. and Psychiatry

asp

finds that AP's opinion is not

well supported by data." LTD 1068.
On Septcmbcr 24. 2015. Dr. R. Maguirc. another Unum asp certitied in preventative and
occupationalmcdicine.

reviewed Pricc's claim tilc and determined that Price did not havc

medical conditions prcventing him from perfi.mning the physical dcmands of his occupation.
LTO 1078-86. Maguire stated that Pricc "docs not have Mast Cell Activation Disorder givcn his
negative bone marrow biopsy and genctic testing ....

He docs not have Sjiigren's Syndromc as

Supervises. manages. and provides operational guidance to direct staff. including providing necessary skills
training.

LTD 769-70.

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documented by the negative lip biopsy and negative diagnostic testing." LTD 1084.' Moreover.
Maguire determined that •.the severity. existence. duration and frequency of symptoms that
would prevent him fi'OI11 orking were not consistent with clinical exams. diagnostic Iindings.
w
and his reported activity level" and noted that Price had worked fl)r approximately lllUr years
with his reported symptoms. LTD 1085-86.
Unum then provided Price's claim tile to two additional Designated Medical Officers to
review Klctti's psychiatric conclusions and Maguire's physical conclusions. On September 24.
2015. Dr. S. Shipko. a board-certified psychiatrist. reviewed Price's claim file. and agreed with
Kletti's opinion that the claim Iile did not support a Iinding that Price was disabled due to
psychiatric restrictions and limitations. LTD 1088-90. Specifically. Shipko noted that otlice visit
notes from Macedo and Moss "reflect a mild. stable psychiatric illness which is unchanged from
when the clamant was still working full time:' LTD I090. Finally. on October 6. 2015. Dr. J.
Bress. a board-certiJied internist. conducted a review of Price's claim file. Similar to the other
medical reviews. Bress noted that extensive testing had failed to reveal a cause for Price's
symptoms and concluded that there was no evidence showing that Price could not perform fulltime sedentary work. LTD 1094-97.
D. Appeal of Initial Claim Determination
I.

I'riee's Appeal

On April 12. 2016. Price submitted an appcal to Unum regarding its denial of disability
benefits and attached approximately 8.000 pages of supporting documentation. LTD 1309-454.
The appcallcttcr and attachments includcd medical evidence supporting Price's disability claim
as set forth in his claim file. additionalmcdical

evidence not previously considered. voluminous

5 On September
18.1015. Maguire unsuccessfully attempted to obtain additional information from Macedo
regarding Macedo's findings related to diagnoses of Mast Cell Activation Disorder and Sjogren's syndrome .. \'ee
LTD 1070-71.

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medical literature associated with his claimed conditions. personal statements regarding his
inability to work. and arguments that Unum's claim review process is inherently biased and
unfair. resulting in a predetermined outcome of denial. !d. Price' s additional medical evidence
included a neurorchabilitation evaluation by Dr. R. Parente. a licensed psychologist. LTD 966586. and a functional capacities evaluation C'FCE") by C. Martinez. a physical therapist. LTD
3035-47.
Parente's evaluation was based on a series of examinations conducted on February 17.
2016. including attention. concentration. and mcmory tests. Parentc noted that Price was able to
communicate well. ambulate without assistance. and displayed high intellectual functioning but
noticed problems with his memory and executive functioning. including difficulty organizing.
LTD 9671-72. Parente summarized his conclusions as follows: "My impression ofMr. Price was
that his medical condition has caused problcms with his memory and his executivc skills.
consistent with his se\l:report. Moreover. it is unclear whether or not these problcms will worsen
as his condition deteriorates. lie. therefore. docs not seem capable of returning to his fonncr job.
which would require high-level executive and memory skills:' LTD 9672.
Martinez assessed Price' s performance during physical and mental exercises conducted
on February 15. 2016. which were similar to that which Price must endure at work and provided
the following conclusion: 'The 1indings indicate he is unablc to sustain the tested capabilities on
the attached Functional Abilities Summary Chart ovcr an 8 hour day as hc cannot sustain this
level of effort for more than a Sh011period of time. which reduces his workplace activity ability
to part time levels but would still be subjected to interruption:'

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LTD 3035.

2. Unum's Appeal Decision
Upon review of Price's appeal. Unum upheld its initial decision and reaflirmed its finding
that Price "was ablc to perform the duties of his occupation and did not meet the definition of
disability requirements within" the Plan. LTD 9983-96. Following receipt of Price's appeal. M.
Snyder. a registered nurse. performed a second Clinical Review ofPrice's

file on May 2. 2016 in

preparation for further Medical Reviews by Unum physicians. LTD 9918-29. Snyder provided a
summary of the appeal materials. including a review of medical records considered during
Price's initial claim and additional medical information provided by Parente and Martinez.
Similar to the medical reviews performed during Unum's initial claim review. Snyder noted a
number of inconsistencies from Price's medical reports. including areas where Price's symptoms
and diagnoses were not substantiated by actual test results. necessitating filrther medical review.
On May 17.2016. psychiatrist Dr. P. Brown reviewed Price's records and addressed the
conclusions set forth in Parente's report. Brown concluded that the behavioral health information
set forth in the claim tile did not supporl a diagnosis of a cognitive disorder. LTD 9953-58.
Brown questioned the validity of Parente' s conclusions. pointing to the absence of raw data.
evidence of adequate cognitive functioning. and Parente's failure to distinguish between possible
causes of any rclated impairments. LTD 9957. Brown recommended thai Unum request
Parente's raw data and conduct filrther neuropsychology reviews upon receipt. LTD 9957."
On May 19. 20f6, family and occupational medical specialist Dr. S. Norris reviewed
Price's records and summarized that while Price's symptoms were reported since 2012.
diagnostic testing performed through several specialty evaluations did not identify any

(, Unum \\;a5 unable to obtain Parente's raw data. On May 2. 2016. Unulll requested Parente's "evaluation report,
treatment notes and raw data including scoring sheets. data summaries. test responses. computerized interpretive
summaries and any other clinical documents produced during the neuropsychological testing." LTD 9913-14. On
May 8, 2016. Price's counsel refused to provide the information. stating that the request for information "is a clear
violation of the psychologic ethics as your request for information is clearly improper:" LTD 9960.

1I

converging diagnoscs consistent with those symptoms. LTD 9962-67. Norris furthcr notcd that
"variablc nonspccific findings were noted on some diagnostic tests: however. other testing was
normal:' LTD 9963. Though not dispositive to his conclusions, Norris also noted that Price's
imminent tcrmination from NDI "appears to bc a primary contributing factor (per Dr. Moss) that
correlatcd with [Price's] 'dccision' to pursue disability:' Ill. Thereaftcr. Norris set forth a revicw
of Pricc's claim filc providcd in thc initial detennination, cxplaining how thc individualmcdical
reports and tests failed to substantiate a disability determination. LTD 9964-66. Rcgarding thc
FCE completed on February 15,2016, Norris found that Martinez's conclusions that Pricc could
not return to his previous position were unpersuasive becausc the cvaluation occurred over a ycar
after Price's date of disability, were based on Price's description of his job as that consistcnt with
a "heavy physical demand category" requiring him to lift upwards of70 pounds, and were
inconsistent with findings from prior physical examinations. LTD 9966.
In addition to its Medical Reviews, Unum reasscssed its carlier vocational dctermination
of Price's occupation as a Program Spccialist. In his appcal. Price provided general refcrence
material related to vocational assessments and supplemcnted his claim file with infornmtion
suggesting that Pricc's role as a Senior Advisor with NDI required additional mental and
physical demands, including thc need for Price to undcrgo strenuous conditions during
international travel. See LTD 1406-09. On August 28, 2016, S. O'Kclly. Unum's Senior
Vocational Rehabilitation Consultant, conducted another vocational review and determincd that
Price's additional information did not alter Unum's initial designation of Price's occupation as
that of a Program Spccialist. LTD 9907-11. Specifically, O'Kelly determined that the gencral
reference matcrial on vocational assessments was not specifically relevant to Pricc's individual
casc and, notwithstanding the additional mental and physical demands associated with Price's

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role as a Senior Advisor with NDI, the primary purpose of his occupation aligns with that ofa
Program Specialist as determined through Unum's initial vocational determination. LTD 991 1
(noting that "Programs can include a wide range of political and social goals for which the
majority would not require international travel or Iitling beyond the Sedentary range of
capacity.").
On May 27, 2016, having completed review of the inflJrlnation made available to it.
Unum informed Priee's counsel that it needed a 45-day extension to complete review of Price's
appeal because it was "in need of the outstanding raw test data requested from Dr. Parente:' LTD
9971. Unum indicated that the 45-day extension would begin when it received the data or. ifnot
received by June 3. 2016. the review would continue without such data. Id. Having not received
the infonnation by June 3. 2016. Unum informcd Price that it would make a decision by July 18.
2016.45 days later. LTD 9974. Nonethclcss.PlaintilTliled

suit on June 13.2016. two days prior

to receiving Unum's decision on his appeal. See ECF No. I: LTD 100015. Thereatler. on June
15.2016. Unum advised Price that it had completed its appellate review and upheld its initial
denial of benefits. LTD 9984.7
II.

STANDARD OF REVIEW
A. Motion for Summary .Judgment under Rule 56
A party may move for summary judgment under Fed. R. Civ. P. 56(a). "The court shall

grant summary judgment if there is no genuine dispute as to any materiallact and the movant is
entitled to judgment as a matter of law:' Fed. R. Civ. P. 56(a). The movant has the "initial
responsibility ofinli.JrIning the district court of the basis for its motion. and identifying those
portions of the pleadings ... together with the affidavits. if any. which it believes demonstrate

7 After filing his Complaint and receiving Unum's appeal decision. Price provided Unum with a supplemental
response on July 28. 2016 to dispute Brown"s assessmentof Parente's conclusions. ECF No. 25-2.

13

the absencc ofa gcnuine issue ofmatcrial fact:' Celo/ex Corp. \".Cafre/I. 466 U.S. 317. 323
(1986) (intcrnal citation omitted). In considcring the motion ... thc judgc's function is not ... to
weigh thc cvidencc and dctcrminc the truth of the mattcr. but to dctcrminc whethcr thcrc is a
genuine issuc for trial:' Anderson ". Liher/y Lohhy. 477 U.S. 242. 249 (1986). To withstand a
motion for summary judgmcnt. thc nonmoving party must do more than present a merc scintilla
of evidcnce. Phillips \".CSX 7hlllsport. fnc .. 190 F.3d 285. 287 (4th Cir. 1999). Rathcr ... thc
advcrsc party must sct forth spccific facts showing that thcrc is a gcnuine issue for trial:'
Anderson. 477 U.S. at 250. Although thc Court should draw all justifiable infcrenccs in thc
nonllloving party' s f~lVor.the nonmoving party cannot crcatc a genuinc issue of matcrial fact
..through mere spcculation or the building of onc inlcrcncc upon anothcr:' 8t'ale ". Hal"l(\".769
F.2d 213. 214 (4th Cir. 1985).
Cross-Illotions tor summary judgment require that the Court consider "each motion
separately on its own merits to determine whether cithcr ofthc parties deserves judgment as a
matter of law." RossiJ!,l1ol\". Voorhaar. 316 F3d 516. 523 (4th Cir. 2003). "The Court must dcny
both motions ifit finds there is a genuine issue ofmatcrial fact. but if there is no genuine issue
and one or the other party is entitled to prevail as a matter of law. the court will render
judgment:'

Wallace \".Pallias. No. DKC 2008-0251. 2009 U.S. Dist. LEXIS 89700. at

* 13. 2009

WL 3216622 (D. Md. Sept. 29. 2009) (internal citation omitted).
B. Review of ERISA Benefits Eligibility Determination
As an initial matter, the Court must determine whether to review Unum's denial of
disability benefits de

no\"O

or for an abuse of discretion. The dcnial of benefits under an ERISA

plan must "be rcviewcd under a de no\"o standard of rcview unless the benefit plan gives the
administrator or fiduciary discretionary authority to determinc eligibility for bcnefits or to

14

construe the terms of the plan:'

Fires/one Tire & RI/hher Co. \'. Bruch. 489 U.S. 101. 115

(1989): see also Merropoliran Lile Ins. CO. I'. Glenn, 554 U.S. 105. 111 (2008). When the plan
vests the administrator with discretionary authority to make eligibility determinations, the Court
reviews the administrator's decision for abuse of discretion. See Williams

l'.

Me/ropoli/an Life

Ins. Co .. 609 F.3d 622. 629-30. The Plan provides that Unum "has the discretionary authority"
to make benefit determinations. including the eligibility for benefits. LTD 103. 1378
Because Unum makes benefit determinations and also pays those benefits to eligible
claimants. Unum operates under a conflict of interest. See Glenn. 554 U.S. at 108. But such
conflicts of interest are a common feature of ERISA plans and do not automatically prohibit the
Court from reviewing Unum's denial of benetits under the abuse of discretion standard. Id at
120-2 I (.I. Roberts concurring). Instead, Unum's conflict of interest is "one factor among many"
for the Court to evaluate under the abuse of discretion standard. /d. at 116. See also Champion

l'.

Black & Decker (U.s.) Inc.. 550 F.3d 353. 359 (4th Cir. 2008) (clarifying that conflict of interest
does not modify the standard of review: rather it is one of many factors in determining the
reasonableness of the Plan's discretionary determination).
Il0wever. the Court will not undertake a deferential review of Unum' s decision iI' Unum
commits substantial violations of ERISA deadlines. See Gilher/son

I'.

Allied Sixnal. Inc.. 328

F,3d 631 (10th Cir. 2003). ERISA regulations require that an adverse determination on a
disability claim be made within 45 days following receipt of the claim. 29 C.F.R,

* 2560,530-

1(1)(3) (200 I), The 45-day deadline may be twice extend up to 30 days upon showing that an

The plan provides the following explanation under "Discretionary Acts":
The Plan. acting through the Plan Administrator. delegates to Unum and its affiliate Unulll Group
discretionary authority to make benefit determinations under the Plan.... Benefit determinations include
determining eligibility for benefits and the amount of allY benefits. resolving factual disputes. and
interpreting and cnforcing the provisions of the Plan. All benefit determinations Illust be reasonable and
based onlhe terms of the Plan and the facts and circumstances ofench claim.
LTD 137.

R

15

extension was necessary due to matters beyond the control of the plan administrator. ~ 2560.530.
1(1)(3). A plan administrator must also complctc review of an appeal request within 45 days.
which may be extended for one additional 45 day period for "special circumstances:'
~ 2560.530-1 (i)( I)(i). Price argues that Unum requested extensions in its reviews of Price's
initial claim and administrative appeal for impermissible reasons. alleging that Unum failed to
act promptly in collecting Price's medical records and requested the raw data from Parente's
psychological tests in contravention of established ethical requirements. ECF No. 25 at 33."
However. the record indicates that upon receiving Price's short and long term disability claims.
Unum persistently contacted Price. NO\. and Price's medical providers to obtain his lengthy
collection of medical records during its extended review period. See. e.g.. LTO 153. 157. 176. As
these extensions were warranted and did not violate any clearly established ethical requirements.
and Price fails to show that Unum otherwise violated any ERISA deadlines. the Court has no
basis to supplant Unum's discretionary authority.

10

See Arlloh/ ex rei. IliII

t'.

!far/jiml Lite

CO., 527 F. Supp. 2d 495, 503 (W.O. Va. 2007) (citing McGarrah \'. lIar/jiml Life

111.1'.

111.1'.

Co.. 234

F.3d 1026 (8th Cir. 2000) C'a court 'may infer that the trustee did not exercise judgment when
rendering [its] decision' in only a limited number of circumstances, including 'where procedural
irregularities are so egregious that the court has a total lack of faith in the integrity of the
decision making process''')).
Pin cites to documents filed on the Court"s electronic filing system (CM/ECF) refer to the page numbers generated
by that system.
to Price contends that Unum"s request for raw data \\'as unethical because Unum failed to designate the reviewing
neuropsychologist that \\-'ould receive the data. ECF No. 25 at 5. Ilowever. Unum's request for Tmv data sent directly
to Parente provided assurancesthat the data would be handled by Dr. W. Black in accordance with "ethical and legal
standards for psychological matcrial as established by the APA:' LTD 991~. and the Court does not find this to bc in
any \\'ay unethical. Regardless. Price failed to explain Unum's purported ethical violation when responding to
q

Unum's data request. and correspondence between Unum and Price's counsel makes clear that Price had no interest

in working with Unum to provide this data in a format that appeased his ethical concerns. See LTD 9960 (letter from
S. Elkind. Counsel to Plaintiff: to C. Grant. Unum Lead Appeals Specialist. stating that Unum's request for
additional information from Parente was "clearly improper" \\'ithoUI substantiating why and characterizing Unulll's
action as "3 continuing course of unfair claims handling and [suggesting Unum) may as well proceed \\-'jtll
completing your review with the information provided as you have no intention of conducting yourself properly'").

16

Regardless. even if Unum did not strictly comply with the time limits set forth in 29
C.F.R. ~ 2560.530-1. such procedural violations do not automatically strip Unum of its
discretionary authority to make claim determinations. Rather. the violations enable a claimant to
"be deemed to have exhausted the administrative remedies available under the plan" and bring
suit inlederal court. ~ 2560.503-1 (I). The following discussion by Judge Kelly in Hardt \'.
Reliance Standard Lire fns. Co.. 494 F. Supp. 2d 391. 393-94 (E.D. Va. 2007) provides a
comprehensive analysis of when a plan administrator. like Unum. may lose its discretionary
authority under ~ 2560.503-1 (I):
The original Department of Labor regulations implementing ERISA provided that a claim
or appeal was "deemed denied" ifit was not decided within the specilied time period.
E.g. 29 C.F.R. ~ 2560.503-I(h)(4) (1998). The United States Supreme C01ll1ruled that
this "deemed denied" regulation merely permitted a claimant to commence a civil action
without lirst exhausting his or her administrative remedies. Mass. Mut. Lire fns. Co. \'.
Russell. 473 U.S. 134. 144 (1985). Some lower courts went a step further. however. and
held that if a claim is deemed denied by operation of law. the Claims Reviewer has made
no discretionary decision to which deference is owed . .Iehian \'. f fe\l'lell-['ackard Co.
Employee Ben~/its Organization fncome Protection Plan. 349 F.3d 1098. 1103 (9th Cir.
2003); Gilbertson \'. Allied Signal, fnc .• 328 F.3d 625. 632-33 (10th Cir. 2003). Other
courts continued to deler to thc Claims Reviewer whenever there was a grant of
discretion in the Plan. regardless of whether the elaim was "deemed denied:' See. e.g. S.
Farm Bureau Ure fns. Co. \'. Moore. 993 F.2d 98. 101 (5th Cir.1993) ("In our view. the
standard of review is no difterent whether the claim is aetually denied or is deemed
denied."); Daniel\'. Eaton COli',' 839 F.2d 263. 267 (6th Cir.1988).
The Department of Labor issued amended ERISA regulations in 2000 that apply to
claims liled on or after January 1.2002 . .Iehian. 349 F.3d at 1103 n. 5. The amended
regulations still require that the Claims Reviewer render a decision on a disability
benefits appeal within a speci lied time frame. 29 C.F .R. ~ 2560.503-1 (1)(3) (2007)
(providing a 45-day time period and the option of a 30-day extension for disability
claims). However. a claim is no longer deemed denied after the expiration of the
regulatory deadline. Instead. a elaimant's administrative remedies are now deemed
exhausted once the deadline for decision has passed. so the claimant may then tile a civil
action. 29 C.F.R. 2560.503-1 (I).

*

The question thus presented is whether the amended regulations require courts to review
claim determinations made alier the regulatory deadline de no\'() or fiJI'an abuse of
discretion. There is no Fourth Circuit precedent on point. and the court has found scant
discussion in other jurisdictions. See BanI\'. Boston Shipping Ass 'II. 471 F.3d 229. 23517

36 (1st Cir. 2006) (recognizing the question. but resolving the case on other grounds):
Meyers \'. GE Group Life Assural1ce Co .. Civ. Action No. 04-5488. 2006 WL 680993. at
*9-10 (D.N.J. Mar. 10.2006) (refusing to apply de 110m review regardless of the
expiration of the regulatory deadlines). Having reviewed the available authorities. the
Court coneludes that the modified abuse of discretion standard of review is appropriate
for this case. II
PlaintilT Hardt did not tile the instant action until after Reliance had rendered its linal.
albeit untimely. decision. During the pendency of her appeal. the parties dickered going
back and forth regarding the FCEs. and this squabbling delayed a decision on the appeal.
Who is to blame Itlf the resulting delay is irrelevant. What matters is that Reliance was
taking action on Ms. Hardt's appeal. The partics were in contact. Reliancc was taking
steps commensuratc with the excrcise of its diserction as delineated in thc Plan. and
Reliance evcntually excreised its discrction whcn it denied Ms. Hardt's appcal. The Court
is obligatcd to givc that discretion dclerence. This holding follows a line of cases which
hold that "substantial compliancc" with thc ERISA ti'amcwork is suffieicnt to result in
review ftH abuse of discrction. Gi/herlsoll. 328 F.3d at 634-35: see a/so Galli \'. Re/iallce
Slalldard Life /11.1'. .. 415 F.3d 978. 985 (9th Cir.2005).'2
Co
Unlike flardl. Price tiled his Complaint within Unum's 45-day extcnsion period. but two
days he.fiJre Unum issucd its appcal detennination. See id. ("Had Ms. Ilardt tiled this action ancr
the 45-day pcriod but bcfore Rcliance rendered its decision. thc Court would thcn havc to decide
whether a defercntial standard of review remains appropriatc"). Nonetheless. Unum substantially
complied \\'ith ERISA's procedural requirements. While the parties disagreed on Unum's ability
to request raw data from Parente. Unum \vas taking steps commensuratc with its excreise of
discretion as delineated in the Plan and has provided a reasoned decision It)r the Court to review.
See Ellis

I'.

Mel. Life /11.1'. .• 126 F.3d 228. 235 (4th Cir. 1997) (substantial compliance cxists
Co

Following Hardt. the FOlll1h Circuit 110 longer applies the modified abuse of discretion standard ill conflict of
interest cases in favor of the nonnal abuse of discretion standard. See Thoma.\' 1'. United (!fOl11aha Life Ins. Co .. 536
F. App'x 247. 351 (4th Cir. 2013) (citing Champia/1 I'. Black,~ Decker IU.S) IlIc.. 550 F.3d 353 (4th Cir. 200R)).
12 Subsequent to PlaintitT tiling suit. the Department of Labor updated the ERISA regulations in 2017 to remove a
Plan's discretionary authority following procedural violations as follo\\'s:
In the case ora claim for disability benefits. if the plan fails to strictly adhere to all the requirements of this
section with respect to a claim. the claimant is deemed to have exhausted the administrative remcdies
available under the plan"""" If a claimant chooscs 10 pursue Uudicial rcliefltht! claim or appt!al is deemed
dt!nied on rt!\"ieH'
witholltthe exercise o/discretion hy an appropriate./iduciaJ:l'"
2560.503-1 (1)(2)( I) (2017) (emphasis added); see "Iso 81 Fed. Reg. 92341 (Dec. 19.2016). However. this
provision is not relevant to the instant action bec.mse I) it is only applicable to claims for disability benefits filcd on
or after January 1.201 R. 2560.503-1 (p)(3) (2017). and 2) the Department of Labor has delayed implemelllation of
thc updated rule through April I. 2018 pending further review pursuant 10 Executivc Order 13777, See 82 Fed, Reg.
56560 (Nov. 29. 2(17).
11

*

*

18

where the claimant is provided with "a statement of reasons that. under the circumstances of the
case. permitted a sufficiently clear understanding of the administrator's position to permit
effective review") (internal quotation marks and citations omitted)) ahrogated
hy Champioll. 550 r.3d 353.

q:

0/1

other groullds

Gritzer \'. CBS. IlIc.. 275 F.3d 291. 295 (3rd Cir. 200 I)

(declining to defer to plan administrator's discretionary dctcrmination when administrator
"apparcntly ncver made any el1'()rtto analyze appellants' claims much less to advise thcm of what
that analysis disclosed until alier [the] litigation was liled."). Moreover. Unummadc its ultimate
decision without data that Price himself maintaincd Unum could not havc. and any dclays
associated with Unum's attempt to obtain this information does not show that it fililcd to
substantially comply with ERISA's procedural requircments or prejudiced Price in any way. See
Amold ex rei. Hill \'. Har!fiml Lite Ills. Co.. 527 F. Supp. 2d 495. 503 (W.D. Va. 2007) ("When
considering whether an ERISA liduciary has substantially complied with the regulations. the
most important factor to consider is whether the record in a particular case creates a concern
regarding the overall adequacy and integrity of the fiduciary's dccisionmaking

process:").

Thereforc. the Court will review Unum's disability determinations for an abuse of discretion.
III.

13

DISCUSSION

In reviewing Pricc's initial claim for disability benefits and subscquent appeal. Unum
maintains that it denicd Price's claim becausc. despite his complaints of pain. the medical
evidence beforc it did not support that he was limited from perli.JrI11ing material and
thc
substantial dutics of his regular occupation. See ECF No. 23-1 at 31: LTD I 104. The Court must
Separate from these alleged procedural violations. Price. in his Complaint. alleges that Unum failed to produce
Price's claim file documentation upon request as required by 29 C.F.R. ~ 2560.502- I(g). ECI' No. I ~ 22. However.
the administrative record shows that Price requested this documentation on January 16. 2016. and Unulll provided
the documentation on January 21 and 22. 2016. LTD 1148: 1150-51. This documentation was then reproduced and
referenced by Prices counsel in his April 12.2016 appeallener. LTD 1309 n. 2 ("The original claim liIe received
from the insurer has been provided for inspection to memorialize the exact contents sent to counsel in response to
the proper ERISA document rcqucsC). Price has not advanced this claim during the briefing herein. and the C01Jl1
has no basis to find that Unum violated any ERISA procedural requirements related to production ofdoclll11cnts.
13

19

determine whether, under the requirements of the Plan and ERISA itself: Unum's decision was
reasonable or an abuse of discretion. See E\'al/s \'. Eaton COl'll.Long Term Disability P/al/, 514
1'.3d 315, 322 (4th Cir. 2008) (the abuse of discretion standard "equates to reasonableness"): see
a/so id. at 325-36 ("Where an ERISA administrator rejects a claim to benefits on the strength of
substantial evidence. careful and coherent reasoning. faithful adherence to the letter of ERISA
and the language in the plan, and a tail' and searching process, there can be no abuse of
discretion.''). The Fourth Circuit has set forth eight nonexclusive tactors that courts should
consider in reviewing the reasonableness of a plan administrator's decision: 1) the language of
the plan: 2) the purpose and goals of the plan: 3) the adequacy of the materials considered to
make the decision and the degree to which they support it: 4) whether the fiducim-y's
interpretation was consistent with other provisions in the plan and with earlier interpretations of
the plan: 5) whether the decision-making process was reasoned and principled: 6) whether thc
decision was consistent with thc proccdural and substantive requirements of ERISA: 7) any
external standard relevant to the exercise of discretion; 8) and the fiduciary's motives and any
contlicts of interest it may have. Williams \'. Metropolitan LiFeIns. Co., 609 F.3d 622, 630 (4th
Cir. 2010) (citing Booth \'. iVal-ivlart Stores. Inc. Associates Health & WelFare P/an, 201 F.3d
335,342-43

(4th Cir. 2000)).1~

In reviewing the reasonableness ofUnum's

decision. the Court will only consider the

evidence placed before Unum when making the decision. See Hemsteil/ \'. Capita/Care. Inc.. 70
F.3d 783. 788-89 (4th Cir. 1995) (citing Sheppard & Enoch Prall Ho.\p. \'. rr{/\'e/ers Ins. Co.. 32
F.3d 120. 125 (4th Cir. 1994) ("when a district court reviews a plan administrator's decision

I~The COUll will not specifically address each individual factor as the parties have not ofTered arguments for ciJch
factor and. more importantly. the Fourth Circuit does not require such an approach. Slff!. e.g. £\,{~"c!I1f!\', Ubf!r(I'L((e
Assurance CO/llpan)' (!f 13os/on, No. TDC-16-1248. 2017 WL 2829673 (D. Md. June 29, 2017) (reviewing

administrator's decisions for abuse of discretion without explicit discussion of each individual factor).

20

under a deferential standard. the district court is limitcd to the evidcnce that was beforc the plan
administrator at the time of the decision")). Moreover. in making a claim for disability benefits
under the Plan. Price maintained the burden to submit the requisite proof to Unum. See. e.g.
Gallagher

1'.

Reliallce .'ltd. Lile Ills. Co.. 305 F.3d 264. 270 (4th Cir. 2002) (stating that an

ERISA plan participant bears the burden of proof that he qualities for long term disability
benetits). Considering the appropriate tactors. the Court finds that Unum's denial of disability
benetits was reasonable. and Price's arguments regarding Ullllln's abuse of discretion are
addressed in turn.
A. Adequacy of Medical Reviews and Appeal Determination
Unum did not conduct a physical examination of Price: rather, Unum relicd on internal
and contract physicians to perform "paper reviews" of Price' s medical records and determine
whether Price was disabled as defined by the Plan. Price argues that Unum's t11ilureto physically
examine him. and reliance on biased physicians. was an abuse of discretion.
Neither ERISA nor the Plan requires Unum to conduct a physical examination. See
I'iepellhagell \'. Old Domillioll Freight Lille. Illc. 395 F. App'x. 950. 957 (4th Cir, 2010)
(rejecting argument that plan administrator had duty to conduct independent medical
examination before denying benefits because elaimant. not plan administrator. has duty to
provide evidence of disability): see also LTO 113 (Plan provision stating that Unum "may
require you to be examined by a physician. other medical practitioner and/or vocational expert of
our choice") (emphasis added). Rather. ERISA allows plan administrators to rely on paper
reviews of medical records by consulting physicians so long as thc infonnation before the
physicians supports thcir determination. See Sheppard <I': lloch Prall H{}.\p 32 F.3d at 125
E
..

21

(finding no abuse of discretion where plan administrator relied on paper reviews of consulting
physicians).
Price further argues that Unum's reliance on paper reviews by psychiatrists, in lieu of an
actual examination, violated "psychological ethical codes" because such codes require an inperson evaluation prior to issuing any opinion or diagnosis. See ECF No. 25 at 19. However, the
Court is unaware of any legal requirement necessitating an in-person psychiatric evaluation. See
Samy \'. Fed. Express Corp. Long Term Disability I'lan, No. DKC-09-1254, 2010 U.S. Dis!.
LEXIS 77262, at *3--4 (D. Md. July 30.2010) (upholding insurer's reliance on a psychologist's
peer review of claimant's file). Moreover, Price misstates the American Psychological
Association ethics requirements reproduced in the administrative record. which allow a physician
to forego an in-person examination when reviewing a patient's records. See LTD 7386 ~ 9.0 I(c)
("When psychologists conduct a record review or provide consultation or supervision and an
individual examination is not warranted or necessary for the opinion, psychologists explain this
and the sources of information on which they based their conclusions and recommendation:').
Regarding the adequacy of the paper reviews, Price goes to great lengths to undercut the
credibility and impartiality of each of Unum's consulting physicians. Price provides examples of
other com1s declining to flJllow the physicians' conclusions, reproduces unfavorable reviews of
the physicians' reputations in private practice, and attacks their credibility based on their work
history and age. IS Price fails to provide any conclusive evidence that the reviewing physicians
were patently unable to assess Price's purported disability, and the Court need not render

15 Price devotes a considerable
portion of his Cross Motion for Summary Judgement to such arguments. \\ihich arc
not repeated herein. See ECF No. 25 at 19-25. Price's arguments that the revic\\'ing physicians are incapable of
making an unbiased decision are unpersuasivc. and many of Price"s citations exaggerate the degree to which cOUl1s
have discounted the conclusions of these physicians. See, e.g., ECF No. 25 at 19 (citing Doe \'. Unum L(Ii.!Ins. Co. (?!
Alii .• 116 F. Supp. 3d 221 (S.D.N. Y. 2015) (Price stating that Kletti's findings were "given no credibility" when the
reviewing court merely criticized Unum"s process for obtaining follow-up information from claimant"s physician.

not the quality ofKlctti"s

review or his credentials)).

22

judgment as to the overall qualifications of thesc physicians. Rather. the Court will consider the
credibility of these physicians based on whether thcir conclusions are reasonable and supported
by the medical records available to them.
Finally, Price argues that Unum failed to afford him with an opportunity to rebut the
conclusions of Unum's medical and vocational reviews performed in sUPPOl1of Price's appeal
prior to Unum rendering a decision. In submitting his appeal. Price advised Unum that "[slhould
you choose to have [Price'sl submitted evidence reviewed by any mcdical and/or vocational
professional. [Price] hereby reserves the right to respond to such professional's rcport prior to
your making a final claims dctermination:'

LTD 130 I. Because Unum did not abide by Price's

request. Price accuses Unum of "sandbagging" him. ECl' No. 28 at 15: ECl' No. 25-2. As with
many of Price's argumcnts, Price provides a lengthy discussion of ERISA casc law without
explaining its applicability to the instant litigation. See ECl' No. 28 at 15-17 (providing ERISA
case law regarding the need for a "meaningful dialogue" between the claimant and plan
administrator without any associated discussion of Unum's allegcd wrongdoing). While ERISA
precludes an employer from adding a new reason for claim denial in its final administrative
review, see SajJim v. Wells Fargo & Co. Long Term Disahilily Plan, 522 l'.3d 863, 871 (9th Cir.
2008), it does not entitle a claimant to the opportunity to continue to review and rebut medical
opinions generated in support of this review, See Midgel! v. Washington Group

1111

'1 Long Term

Disabilily Plan, 561 F.3d 887, 895 (8th Cir. 2009): see also Giles \'. Bert !Jell/Pete Rozelle NFL
Player Retirel11elll Plan, 925 F. Supp, 2d 700, 717-18 (D, Md, 2002) (noting that circuits arc no
longer split as to whether ERISA requires an insurer to provide a claimant with medical opinion
reports prior to issuance ofa final decision). Ullllln's appeal decision did not proffer any new
reasons for denying Price's claim: Unull1merely reaflinned its prior conclusions and explained

23

why Price's supplemcntal appeal materials were insuflicient to support a disability
determination. Contrary to Price's assertions, Unum provided Price with its questions regarding
Price's disability throughout the claim review process, though Pricc himself clected not to
provide Unum with a dircct rcsponse while his claim was pending. Thcrcforc, the Court !inds
that Unum's proccss for reviewing Price's claim was reasonablc16
B. Consideration

of Medical Evidence

Moving to the substance of the paper revicws. Pricc argues that Unum physicians
undertook a "selective review" of the evidcnce and relied on "incomplete and biased" lindings.
ECF No. 25 at 39-41. Price citcs ample law establishing that Unum may not relusc to consider
the opinions of Price's treating physicians or emphasize records suggestive of an ability to work
over others suggestive of a disabling condition. Howcver, Price fails to supplement these
statements of/a\\' with anything more than generalizcd asscrtions that Unum impropcrly weighed
evidence discrediting Price's disability. See id. at 39. Contrary to Price's allegations, Unum set
forth a comprehcnsive revicw of Price's medical history, inclusivc of results that both support
and discredit Price's disability. See LTD 738-744. Price's asscrtion that Unum failcd to identify
the purported inconsistencies inPricc's

medical file, see ECF No. 25 at 3, is simply wrong.

While Unum has not detailed these inconsistcncies in its summary judgment briee thcsc
inconsistencies arc set forth in considerable detail in Unum's dcnial of Price's initial claim and

1(, While Price did provide Unum \\'ith supplemental
information related to Parente's conclusions. the information
was provided after Unum issued its final determination and therefore not part of the administrative record under
review herein. See Bernstein, 70 F.3d at 788. Nor will the Court consider this supplemental information for purposes
ofimpeachmcnt.
While Price provides a lengthy discussion informing the Court that it may consider impeachment
evidence beyond the administrative record. Price fails to explain how the supplemental information should be used
to impeach anything. ECF No. 28 at 18-20. Similar to Price's appeal request. the Court finds the supplemental
information unpersuasive. The 400-plus page supplcmcnt is \I,.'hollyunconnected to the substantive conclusions
reached by Unum, providing extensive general medical literature and repeating attacks on the credihility of13rown
and Norris. The supplemental information only includes two pages that could provide insight into the reasonableness
of Ununfs decision-Parentc"s
response purportedly provided on pages 7917 and 791 S-but these pagcs werc
omitted from Price"s filings herein. S'('(! ECF No. 25-2 and 25-3 (providing all of Prices' supplemcntal information
ollachments. except pages 7917 and 7918. as Exhibit £3).

24

subsequent appcal. Sec. e.g. LTD 1105-07 (initial claim deniallettcr noting that Pricc's rccords
do not show that his psychiatric conditions worscncd prior to him stopping work and that the
intensity oftreatmcnt

is inconsistent with a disabling condition); LTD 9988 (appeal dccision

noting that laboratory testing did not substantiate finding of Mast Cell Activation Disorder).17
Moreover. Unum's paper reviews highlighted a number of facts that appear to undercut
the credibility ofthc ailments that. as Price contends. rcndcrcd him disablcd. For cxamplc.
Shipko noted that. notwithstanding Macedo's determination of Price having a cognitive mcntal
impairment. all of Maccdo's observation notes indicate "normal mental status cxaminations:'
LTD 1090. Brown concluded that the initial diagnosis ofSj(igrcn's syndrome in2012 "was
presumably due to a single test showing a weakly positive SS-I3" but that "[sJubsequent antibody
testing was negative. and lip bx (Mar 2015) was negativc for changes charactcristic of
Sjogrcn's:'

LTD 9965. Unum also found that statements from Price's spousc that hc is "confined

to his bcdroom in fatiguc and pain" were inconsistent with Pricc's own rcports of his activity
levels and thc tindings from his physical cxams. LTD 9929. Pricc is unable to point to any
specific medical evidence that Unum failed to consider. or cxplain how Unum's reliance on the
long list ofinconsistcncics

in Price's medicallilcs

was unreasonablc. Ultimately. Unum

concluded that Price claimed to sutTer from a number of ailments. but that those ailments were
unsubstantiated by diagnostic tcsting. did not corrcspond to a disabling condition rcndcring him
unable to work. and were prcscnt fiJI' a number of years prior to Pricc submitting his claim.
Unum. thus. interprctcd Pricc's medical records to suggest that Pricc's pending tcrmination. not a

17 Price references periods of intermittent leave approved under FMLA. as evidence of other disability approvals
without offering an explanation as to how such leave is indicative of a disabling condition under the Plan. 5;ee ECF
No. 25 at 18. The Court is not persuaded that Pricc's FMLA approval suggests that he had a disabling condition
under the Plan. (I: McCre,,,!!' \'. S(al/dard IllS. Co .. 417 F. Supp. 2d 684. 702 (D. Md. 2006) (an award of social
security benefits is not dispositive as to the propriety of an award under ERISA as the laws have differing definitions
of a disabling condition).

25

worsening of these ailments, was a principal driver in his decision to pursue disability benefits.
Because this determination is supported by the administrative record and Unum's associated
.
paper reVIews, t Ile Court lb' no aSISto upset . now. 18
las
It

C. Consideration of Conclusions from Treating Physicians
While Macedo and Parente each determined that Price sulTercd from certain impainnents
that prevented him from sustaining full time employment. Unum. without the usc or an
independent medical examination, declined to adopt such conclusions. Price argues that Unum's
failure to adopt the opinions of his treating physicians in favor or its paper review is evidence
that Unum abused its discretion. ECF No. 25 at 41. Plan administrators should generally place
greater emphasis on the opinions of reviewing physicians that have actually examined the
claimant. see Tor/a
S.c. 20 J 6) (citing

l".

Har!fiml

EWlIIS.

Life and Accidel1f Illsurallce Co .. 162 F. Supp. 3d 520. 530 (D.

514 F.3d at 320), and in-person examinations "can prove especially

significant in cases in which the plan administrator is operating under a connict or interest or
rejects a treating doctor's opinion." Laser

l".

f'rm'idel1f Life & Accidel1f

111.1'.

Co .. 2 J I F. Supp. 2d

645,650 (D. Md. 2002). However, a plan administrator is not required to rely on the opinions or
a claimant's treating physicians and acts within its discretion when resolving contlicting reports
regarding a claimant's health and work ability. !d at 651: see also Hrodish

I'.

Federal Express

Corp .. 384 F. Supp. 2d 827, 836 (D. Md. 2005) (no abuse or discretion where plan administrator

denied claim based on peer review of medical records that differed rrom conclusions of
claimant's treating physician).

III

Price argues that Unum's reliance

011

his pending termination to justify denying his claim is an impermissible

"post~hoc rationalization" that cannot be raised before the Court because it was never conveyed in Unulll's claim
denial. ECF No. 28 at 9. However. in Price"s claim tile, multiple medical reviewers recognized that. per Moss' exam

notes. Price"s pending termination
9963.

was a factor in his decisions

to pursue disability bellelits .. c,,'ee.e.g,

26

l.TD 1090.

The administrative record indicates that Unum idcntified information within Price's claim
liIe that contlicted with the opinions of Macedo and Parcntc. For cxample. Unum's clinical
reviews document instances where Maccdo's findings of neuropathy and Mast Ccll Activation
Disorder were unsubstantiated by diagnostic tcst rcsults and opinions from other trcating
physicians. LTD 9928 (referencing conclusions from allergist Rank and neurologist Birnbaum
following testing performed at the Mayo Clinic and Johns Hopkins). Unum's mcdical revicw
highlighted instances whcre Macedo's cxamination notes conflicted with his overall opinion
regarding Price's ability to work. LTD 1096-97 (Bress indicating that Macedo's cxamination
notes suggested normal gait. strength. physical appearance. and "ncuropsych" exam). Unum also
took issue with the conclusions of Parente. noting that Parentc's opinion conflictcd with
observations made and rcsults obtained during the exam. failcd to address the possible
significance of Price' s diagnoses of anxiety and dcpression. and was undertaken a ycar alicr
Price's proffered February 2015 date of disability. LTD 9985-86. The mere fact that Pricc can
point to some evidence indicating that he is unablc to work docs not undcrmine Unum's ovcrall
assessment of his claim tile. See Neilso/1

l'.

U/1UIII l.ife //1.1'.Co. of A 111.• No. CCB-II-33 17. 2013

U.S. Disl. LEXIS 35543. at *17 (D. Md. Mar. 13.2013).
Unum raised its concerns with Macedo and Parente dircctly and provided them with an
opportunity to substantiate their opinions prior to Unum rcndering a dccision of its own. See
LTD 1070-7\ (Unum letter to Maccdo datcd Scptcmber \8. 2015); LTD 9913-14 (Unum Icttcr
to Parente dated May 2. 2016). Recciving no response from the treating physicians. or any
further clarification from Price or his attorney. Unum's dccision to discount thc conclusions of
Macedo and Parcntc in light of the idcntified inconsistcncics was not an abuse of discretion.

27

D. Ade1luaey of Voeational Review
Plan fiduciaries must use an "objectivcly reasonable" description of the insured's
occupation in making a disability determination. Gallagher \'. Reliance Slal/d. Life II/.I'ur. Co ..
305 F.3d 264, 271 (4th Cir. 2002). While Unum considercd Price's ability to work bascd on the
generic job responsibilities of a Program Specialist. and not the specitic job requircments of
Price's position with NOI. such an approach was reasonablc. At the outset, Unum considered
Price's job description and duties as characterizcd by both NDI and Price himself and determined
that Price's job aligned with the material and substantial duties, and associated physical and
cognitivc demands. of a Program Spccialist. The Program Spccialist occupational dcscription
was taken from PAQ Scrviccs lnc:s eDOT, and UlIllln's classification ofPricc under a generic
job dcscription is pCrJnitled under the Plan. See LTO 130 (""Unum will look at your occupation as
it is normally pcrformed in the national economy, instead of how the work tasks arc performcd
for a specitic employcr or at a specific 10cation'.).I"
Pricc lails to acknowledge which. ifany. of the material and substantial duties set forth in
the Program Spccialistjob description do not apply to Pricc'sjob

such that Unum's reliance on it

was objcctively unreasonable. Nor does Price explain how his actual job rcsponsibilities. as
characterized by NOl"sjob description. involve substantially more rigorous physical or cognitivc
dcmands than that of a Program Specialist. Rather. Price's main argumcnt is that Unum f[lilcd to
consider Price's international travel when classifying his job as a Program Specialist. ECl' No.
25 at 42. Howevcr, Unum documcntcd Price's purported travel dcmands when conducting its
19 Price attempts to undercut Unum's reliance on the Program Specialist job description by arguing that it could not
find that specific job description in the 1991 Dictionary of Occupational Titles (""Dar') found on Westlaw and that
Peavy's review somehow violated the ethical requirements of vocational rehabilitation counselors. see ECF No. 25
at 42-43 (citing LTD 3055. 1241). HO\vcver. because Unum set forth the description of a Program Specialist in
Price's claim file. and Price is unable to offer any substantive <trgumcntsas to \vhy the role inadequately captures
Price"s material and substantial dutics with ND!. Prices argumcnts here are unpersuasive, See also W,.,~hl\',
S"IIivan. 900 F.2d 675, 684 (3rd Cir. 1990) (the fact that a specilic job "is not found in the DOT proves that the
DOT is not comprehensive. not that the job docs not exist"),

28

vocational review, and the Program Specialist position does in fact reflect occasional travel. LTD
768-70. But even if Price's actualtravcI demands were more rigorous than that required by a
generic Program Specialist, Unum's vocational review need only capture material and substantial
duties that are comparable, not necessarily identical. to that required by Price's actual job. See
Gallagher. 305 F3d at 272 (noting that plan's reliance onjob description that omits travel
requirements is "not a fatal flaw" because claimant is unable to establish that he cannot perflmn
his non-travel duties). In comparing the duties of a Program Specialist to Price's actual job
responsibilities as set forth in Unum's vocational review and reproduced herein, see sllpra 1.C.2,
the Court is unable find any significant differences between the two jobs. Both jobs rcquire
effective communication skills, preparation and delivery of training materials, travel. elient
interaction, and data analysis. Therefore, Unum's assessment of Price's abi lity to work as
defined by the generic responsibilities and demands of a Program Specialist was not an abuse of
discretion.
E. Adherence

to Plan Guidelines

A plan administrator has an obligation to follow procedures set forth in its claims
processing documents, All1llins \'. ConnecliclI/ General L!fi: IllS. Plan. 880 F. Supp. 2d 7 I3, 7 I9
(E.D.Va. 2010), and Price argues that Unum failed to follow its own procedures when reviewing
his claim. Price allegcs that Unum failed to notify him of his right to request an independent
medical examination as a result of the conflicting opinions bctween his treating physicians and
Unum's reviewing physicians. ECI' No. 25 at 44. Price also alleges thatLJnum's procedures
prohibit it from paying disability benefits under a "reservation of rights" without undertaking an
independent medical examination. It!. Neither allegation is supported by thc Plan.

29

First. Unum's procedures provide that if Unum has "reason to qucstion the information or
opinion" of a claimant's attcnding physician. Unum must attcmpt to contact thc physician. LTD
3064. "If an agrecmcnt cannot be reached after this contact. Unum has an obligation to obtain a
second view of the medical information. This can be done in-house by a DMO or by an extcrnal
examiner or records review. but wc should always consider whether an indcpendent cxam is or is
not necessary. A claimant can request an [Independent Medical Examination] at any time and we
must notify the claimant of this right" Id There is no dispute that Unum attempted to contact
Price's physicians. specilically Macedo. Moss. and Parcnte. and the record shows that on May
21,2015, Unum advised Price of his right to rcquest an independent medical examination as a
result. LTD 266.
Second. Unum's procedures do not prohibit it from paying bene tits under a reservation of
rights while further reviews are pending. According to thc procedures. payment under a
rcscrvation of rights is not limited to when thc results of an independent medical examination are
pending; rathcr, it can be used while Unum waits for thc conclusions of an "Independent
Assessment:'

which can be eirher an independent mcdical cxamination or an indcpendcnt

paper/medical revicw. LTD 3067 ("When you agrce to obtain an IA [Independent Assessmcnt]
in rcsponsc to a claimant's request. the timing ofthc rcqucst gcncrally determines whether
bcnetits will bc paid pending the results of the IA,"). Thcrcforc. Pricc' s arguments that Unum
failed to loliow its intcrnal proccdures have no merit.20

In response to Unum's reply brief. Price notes that "Unum's claim manual provision profTered concerning
'independent medical examinations' was not produced to this COUI1 as part urthe administrative record. This
demonstrates both Unum's refusal to produce required documentation. follow its own procedures. and engage ill
post-hoc rationalization:' ECF No. 28 at 2. HO\\!cver. Unum's reply brief cites to the same claims manual provisions
\vithin the administrative record that Plaintiff initially raised in its Cross Motion for Summary Judgment. ECF No.
25 a144.
20

30

F. Prior Unum Disahilit),

Determinations

I'inally. Pricc devotes much of his Cross Motion fi)r Summary Judgment to contending
that Unum has a "sordid history" tor unfair claim reviews. ECF No. 25 at 26-32. Price
refcrences testimony from former or current Unum cmployees or contractors to argue that Unum
is unable to conduct objective claim reviews because it sets financial targets tor claim closures.
pressures employees to deny claims. and compensatcs employees based on Unum's corporatewide perfonnancc.21

!d Price also notes that Unum was fined $15 million in 2004 as a result of a

"Targeted Multistate Market Conduct"" investigation and, as a result. its poor financial
performance places further pressure on employees to deny claims. It!. at 29. Howevcr, Price fails
to make any specific connections betwecn thcse allegations and thc actual process undertakcn by
Unum when reviewing Price's claim.

22

Without morc, Pricc cssentially argues that Unum, as a wholc, is incapable of rcndcring a
fair dccision-a

generalizcd argument thal he could assert in disputing any claim denial by

Unum over the last ten years. Similar to Price's arguments attacking the credibility of Unum's
medical reviewers. the Court weighs Unum's actual decision-making process as set fOl1hin the
administrative record in this case over general criticisms levcled against Unum or its affiliates.
See Kamerer \'. Unum LiFe Insurance Compan)' a/America, 251 F. Supp. 349, 352 (D. Mass
2017) ("This court will not assume Unum is biased every time it denies a claim simply because it
employed unfair claims practices more than a decade ago, particularly in light of changes to
claims processing it has since made:') (intemal citations omitted). While the Court is mindful of
Unum's structural conflict of interest. Price's insinuation that Unum's medical reviewers were

21

Notably. none of these individuals were involved in evaluating Price's disability claim.

22 Contrary

to Price"s assertions. Unum's willingness to award Price long

terlll

disability benefits while his claim

was pending suggests that Unum was not inherently biased in reviewing Pricc"s claim. See Williams, 609 F.3d at
632.

31

motivated by the desire to deny claims in order to boost profits is not supported by the record.
See Durako1'ic

1'.

Building Sen'. 32 BJ Pension Fund. 609 F.3d 133. 138 (2d Cir. 2010) ("[ n]o

weight is given to a conflict in the absence of any evidence that the conflict actually affected the
administrator's decision"). Rather. the record shows that Unum has considered all of the medical
evidence provided in Price's claim file and set forth a reasoned decision denying Price's claim.
and the Court is not persuaded by generic arguments suggesting that Unum has a vested interest
in denying disability claims as a matter of course. As such. Unum's denial of Price' s long term
disability claim was not an abuse of discretion.
IV.

CONCLUSION
For the foregoing reasons. Defendants' Motion for Summary Judgment, ECF No. 23.

shall be granted. and Plaintiffs Cross Motion for Summary Judgment, ECF No. 25. shall be
denied.

D~ted: Maretlr

&iL,

.2018

United States District Judge

32