Bennetts v. AT&T Integrated Disability Service Center

Filing 26

ORDER Overruling Objections, Adopting 21 Report and Recommendation, Denying Plaintiff's 19 Motion for Judgment on the Administrative Record, and Granting Defendant's 18 Motion for Judgment on the Administrative Record. Signed by District Judge Thomas L. Ludington. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
SCOTT M. BENNETTS,
Plaintiff,
v.

Case No. 15-cv-10087
Honorable Thomas L. Ludington
Magistrate Judge Patricia T. Morris

AT & T UMBRELLA PLAN NO. 1,
Defendant.
_______________________________________/
ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND
RECOMMENDATION, DENYING PLAINTIFF’S MOTION FOR
JUDGMENT ON THE ADMINISTRATIVE RECORD, AND GRANTING
DEFENDANT’S MOTION FOR JUDGMENT ON THE ADMINISTRATIVE
RECORD
On October 19, 2012, Plaintiff Scott M. Bennetts filed a complaint alleging
that he was denied disability benefits in violation of § 502 of the Employee
Retirement Income Security Act of 1974, 29 U.S.C. § 1132. Bennetts v. AT & T
Integrated Disability Serv. Ctr., No. 12-cv-14640 (Bennetts I), ECF No. 1. On June
11, 2014, this Court found that AT & T’s denial of Long Term Disability Benefits
to Bennetts was arbitrary and capricious. ECF No. 26. Accordingly, the case was
remanded to the plan administrator for further proceedings. Id. AT & T again
denied Bennetts’s request for Long Term Disability Benefits. On January 9, 2015,
Bennetts filed the complaint which forms the basis for this action, Bennetts v. AT

& T Integrated Disability Serv. Ctr., No. 15-cv-10087 (Bennetts II), ECF No. 1.
The parties filed cross motions for judgment on the administrative record, ECF
Nos. 18, 19, and the Magistrate Judge filed a Report and Recommendation on May
3, 2016 recommending that Defendant’s motion for judgment be granted. Bennetts
has timely filed objections. ECF No. 22.
Pursuant to a de novo review of the record, Bennetts’s objections will be
overruled and the report and recommendation will be adopted. Accordingly,
Plaintiff’s motion for judgment on the administrative record will be denied,
Defendant’s motion for judgment on the administrative record will be granted, and
Plaintiff’s claim will be dismissed with prejudice.
I.
Neither party has objected to the summary of facts contained in the
Magistrate Judge’s report and recommendation. Accordingly, they will be adopted
as if fully restated herein. Additionally, all of the pertinent facts in this case appear
in the administrative record.

Under Wilkins Baptist Healthcare System, “the

district court [is] confined to the record that was before the Plan Administrator.”
150 F.3d 609, 615 (6th Cir. 1998).
II.
A.

-2-

Pursuant to Federal Rule of Civil Procedure 72, a party may object to and
seek review of a Magistrate Judge’s report and recommendation. See Fed. R. Civ.
P. 72(b)(2). Objections must be stated with specificity. Thomas v. Arn, 474 U.S.
140, 151 (1985) (citation omitted). If objections are made, “[t]he district judge
must determine de novo any part of the magistrate judge’s disposition that has been
properly objected to.” Fed. R. Civ. P. 72(b)(3). De novo review requires at least a
review of the evidence before the Magistrate Judge; the Court may not act solely
on the basis of a Magistrate Judge’s report and recommendation. See Hill v.
Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981). After reviewing the evidence,
the Court is free to accept, reject, or modify the findings or recommendations of
the Magistrate Judge. See Lardie v. Birkett, 221 F. Supp. 2d 806, 807 (E.D. Mich.
2002).
Only those objections that are specific are entitled to a de novo review under
the statute. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). “The parties have
the duty to pinpoint those portions of the magistrate’s report that the district court
must specially consider.” Id. (internal quotation marks and citation omitted). A
general objection, or one that merely restates the arguments previously presented,
does not sufficiently identify alleged errors on the part of the magistrate judge. See
VanDiver v. Martin, 304 F.Supp.2d 934, 937 (E.D.Mich.2004). An “objection” that
does nothing more than disagree with a magistrate judge’s determination, “without
-3-

explaining the source of the error,” is not considered a valid objection. Howard v.
Sec’y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). Without
specific objections, “[t]he functions of the district court are effectively duplicated
as both the magistrate and the district court perform identical tasks. This
duplication of time and effort wastes judicial resources rather than saving them,
and runs contrary to the purposes of the Magistrate’s Act.” Id.
B.
Although the Court’s review of objections to the Magistrate Judge’s
recommendation will be de novo, a distinct standard of review exists for the
Court’s analysis of the Defendant’s denial of benefits. Generally, a denial of
benefits is reviewed de novo by this Court “unless the benefit plan gives the
administrator or fiduciary discretionary authority to determine eligibility benefits
or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489
U.S. 101, 115 (1989). Here, the Plan’s terms indicate that that the administrator
has discretionary authority: “[a]ny determination made by the Plan administrator or
any delegated third party will not be overturned unless it is arbitrary and
capricious.”

Admin. Rec. at SB0666, ECF No. 17.

Moreover, the parties

stipulated in Bennetts I that AT & T’s Plan grants the administrator discretionary
authority to determine eligibility for benefits or construe the terms of the Plan and,
thus, the Court will review the determination under the arbitrary and capricious
-4-

standard of review. See Bennetts v. AT & T Integrated Disability Serv. Ctr., 25 F.
Supp 3d. 1018, 1027 (E.D. Mich. 2014).
“The arbitrary and capricious standard is the least demanding form of
judicial review of an administrative action.” Smith v. Continental Cas. Co., 459
F.3d 253, 259 (6th Cir. 2006). The plan administrator’s decision will be upheld if
it is the result of a deliberate, principled reasoning process and is rational in light
of the plan’s provisions. Cooper v. Life Ins. Co. of N. Am., 486 F.3d 157, 165 (6th
Cir. 2007). “But the arbitrary-and-capricious standard of review is not a ‘rubber
stamp [of] the administrator’s decision.’” Cooper, 486 F.3d at 165 (quoting Jones,
385 F.3d at 661). “Rather, this standard requires us to review the quality and
quantity of the medical evidence and the opinions on both sides of the issues.”
Cooper, 486 F.3d at 165. The administrator must consider the entire record, not
selected portions. Spangler v. Lockheed Martin Energy Sys., 313 F.3d 356, 359-62
(6th Cir. 2002).
III.
Bennetts raises four objections to the Magistrate Judge’s report and
recommendation. First, he argues the Magistrate Judge erred in finding that the
Defendant properly denied benefits because there was not sufficient objective
medical documentation of disability. Second, Bennetts argues that the Defendant’s
decision to not physically examine Bennetts made Defendant’s denial of his claim
-5-

arbitrary and capricious. Third, Bennetts argues that the Magistrate Judge erred in
concluding that Dr. Adams’s findings were inconsistent. Fourth, Bennetts argues
that the Magistrate Judge wrongly concluded that the vocational assessment made
by Ms. Harris was not arbitrary or capricious.
A.
In his first objection, Bennetts argues that the Magistrate Judge improperly
found that there was not sufficient objective evidence of disability for Defendant’s
conclusion that Bennetts was not disabled to be arbitrary and capricious. Bennetts
admits that the he bears the burden of producing objective medical evidence of an
illness or injury in order to receive Long Term Disability Benefits. See Pl. Objs. at
2, ECF No. 22. Under the benefits plan, Bennetts is entitled to receive Long Term
Disability Benefits only if his injury is supported by objective medical evidence
and prevents him from engaging in any occupation or employment for which he is
qualified. Admin. Rec. at SB0652.
Bennetts asserts that this Court found in Bennetts I that Bennetts’s surgeries,
by themselves, presented objective medical evidence. See Bennetts v. AT & T
Integrated Disability Serv. Ctr., 25 F. Supp. 3d 1018, 1034 (E.D. Mich. 2014)
(“Given that Bennetts underwent a major surgical operation that could result in
severe pain and functional limitations and the myriad of questions remaining
concerning the medical evidence in the record, Dr. Tran’s summary conclusion that
-6-

there was no objective medical evidence of disability was arbitrary and
capricious.”). Indeed, the mere fact of surgery has been held to provide some
objective medical evidence of pain. See Ebert v. Reliance Standard Life Ins. Co.,
171 F. Supp. 2d 726, 740 (S.D. Ohio 2001). However, this Court simply found in
Bennetts I that “Dr. Tran’s summary conclusion that there was no objective
medical evidence on the record was arbitrary and capricious. He did not address
specific findings by Bennetts’s physicians that he was disabled or explain how his
conclusion was consistent with the ‘quality and quantity of the medical evidence’
on the record.” 25 F. Supp. 3d at 1034. Accordingly, Bennetts’s previous suit was
remanded not because this Court conclusively determined that the medical
evidence showed Bennetts was disabled, but because the Defendant’s reviewing
doctor made a summary and arbitrary conclusion that there was not sufficient
objective medical evidence of disability.
Upon remand, Defendant retained Dr. Levy, a neurosurgeon, and Dr. Lewis,
a pain medicine specialist, to review Bennetts’s medical records. Admin. Rec. at
SB0685–93. Both Dr. Levy and Dr. Lewis found, after a review of Bennetts’s
medical records, that there was insufficient objective evidence of disability to
justify Long Term Disability Benefits. Id. at SB0685–708.
In her first report, Dr. Lewis explained that Bennetts would have some
“functional impairments” but “would not be disabled.” Id. at SB0691. She then
-7-

recommended Bennetts “be restricted to lifting, carrying, pushing, and pulling 30
pounds occasionally, 15 pounds frequently, reaching overhead, and repetitive
bending and twisting at the neck. He would have no other restrictions.” Id. at
SB0692. Bennetts had “no ongoing neurological deficits,” but his “subjective
complaints [of pain] would impact his ability to function in a heavy physical
demand occupation given alteration of spinal kinesiology.” Id. After being asked
for clarification of her findings, Dr. Lewis said that despite the “post-surgical
changes of the cervical spine,” “mild compression of thecal sac,” and “narrowing
of the neuroformina,” Bennetts would be able to “function with restrictions.” Id. at
SB0710. Dr. Lewis admitted that Bennetts has “ongoing symptoms of neck pain”
but “no reported weakness, or sensory changes,” and no “reported neurological
findings.” Id. at SB0711.
Likewise, Dr. Levy also found that Bennetts was not disabled. Dr. Levy
explained that there “are no current imaging studies or neurological exams, which
document objective findings and would support an inability to function.” Id.at
SB0687. He further found that the “findings of diffuse 4/5 weakness throughout
the patient’s bilateral upper extremities is inconsistent with the patient’s prior
imaging studies.” Id. Accordingly, Dr. Levy found that Bennetts “is capable of
work with restrictions at the light and sedentary levels based upon his prior
cervical surgeries.” Id. Dr. Levy was also asked for clarification of his findings. He
-8-

explained that the mild spinal narrowing he saw did not “compress the exiting
nerve roots to a point that radicular pain would be likely.” Id. at SB0706. Thus, Dr.
Levy explained that Bennetts’s “ability to work would only be limited by
subjective reports of pain and weakness.” Id. at SB0707. He further explained that
“it is standard and reasonable to recommend certain restrictions simply due to the
history of cervical surgeries.” Id.
Unlike Dr. Tran, both Dr. Lewis and Dr. Levy made specific and clear
findings regarding the objective medical evidence that Bennetts was not disabled.
Instead of asserting summary conclusions, they explained how the medical records
did not indicate objective evidence of neurological damage such that Bennetts
would be unable to work at any job at all. Bennetts argues that Dr. Lewis and Dr.
Levy’s findings were arbitrary and capricious because Bennetts has undergone
several significant surgeries and thus it would be reasonable to conclude that he
experiences residual limitations. As the Magistrate Judge asserted, there is
evidence that Bennetts has ongoing functional limitations. But Dr. Levy and Dr.
Lewis both recognized that fact as well. They simply found that, notwithstanding
Bennetts’s functional limitations, he would be able to perform some work. Because
Dr. Levy and Dr. Lewis both admitted that Bennetts was likely suffering from pain
and residual functional limitations, but still explained why the MRIs did not
support a finding of total disability, they avoided Dr. Tran’s error of making a
-9-

summary conclusion. See Elliott v. Metro. Life Ins. Co., 473 F.3d 613, 620 (6th
Cir. 2006) (explaining that the treating physician’s opinion can be rejected in favor
of an examining physician’s opinion only if the opinion was reached through “a
deliberate, principled reasoning process”); Calvert v. Firstar Fin., Inc., 409 F.3d
286, 297 (6th Cir. 2005) (finding that the reviewing physician’s report was
inadequate because it did not address “head-on” the findings of the treating
physician). Defendant’s reliance on the findings of Dr. Levy and Dr. Lewis that
Bennetts was not totally disabled was not arbitrary or capricious.
B.
In his second objection, Bennetts further argues that Defendant’s denial of
benefits was arbitrary and capricious because Dr. Levy and Dr. Lewis made their
findings without performing a physical examination of Bennetts. Although the
decision to simply review the medical record rather than conduct a physical
examination is a factor to consider in determining whether the denial of benefits
was arbitrary and capricious, “there is ‘nothing inherently objectionable about a
file review by a qualified physician in the context of a benefits determination.’”
Rose v. Hartford Fin. Servs. Grp., Inc., 268 F. App’x 444, 450 (6th Cir. 2008)
(quoting Calvert, 409 F.3d at 296.) However, the decision to conduct only a file
review is troubling where, as in this case, the “right to [conduct an examination] is
specifically reserved in the plan.” Calvert, 409 F.3d at 295. Further, a decision to
- 10 -

not make a physical examination is suspect when “the file reviewers make critical
credibility determinations.” Hunter v. Life Ins. Co. of N. Am., 437 F. App'x 372,
378 (6th Cir. 2011). In fact, this Court remanded for further proceedings in
Bennetts I in part because “Dr. Tran made a credibility determination without
performing an independent medical examination.” 25 F. Supp. 3d. at 1031.
Although it would have been a best practice for Dr. Levy and Dr. Lewis to perform
a physical examination of Bennetts, the decision to review only the file does not
necessarily make the denial of benefits arbitrary and capricious. Rather, the review
need only “follow reasonable procedures,” which means “that the file reviewer
[must] perform a comprehensive, rather than selective, review of the records when
rejecting claimant’s self-reported symptoms.” Id. (citing Ebert v. Reliance
Standard Life Ins. Co., 171 F. Supp. 2d 726, 740 (S.D.Ohio 2001)).
In Bennetts I, this Court found that Dr. Tran did not use reasonable
procedures because, without conducting a physical examination, he summarily
rejected Dr. Adams’s conclusion that there was objective evidence of functional
limitations and likewise dismissed Bennetts’s complaints of pain. 25 F. Supp. 3d at
1031. However, both Dr. Levy and Dr. Lewis found that Bennetts was likely
suffering functional limitations and experiencing pain. See Admin. Rec. at
SB0690–92, 706–07, 710–11. Unlike Dr. Tran, Dr. Levy and Dr. Lewis did not
summarily reject Bennetts’s complaints of functional limitations and pain. Rather,
- 11 -

they found that, despite those limitations, there was not objective medical evidence
sufficient to support a finding that Bennetts was unable to perform any job at all.
As already discussed, both Dr. Levy and Dr. Lewis were deliberate and reasoned in
their rejection of Dr. Adams’s conclusions. Accordingly, they followed reasonable
procedures, despite their decision to not physically examine Bennetts, and
Defendant’s reliance on their determinations was not arbitrary or capricious.
C.
Third, Bennetts argues that the Magistrate Judge improperly found that Dr.
Adams’s findings were inconsistent. The Magistrate Judge explained that Dr.
Adams found in November 2011 that Bennetts could not lift more than five
pounds, but then found in February 2012 that Bennetts could lift up to ten or
fifteen pounds. Rep. & Rec. at 29 (citing Admin. Rec. at SB0291, SBO0132).
Regardless of whether, as the parties dispute, Dr. Adams conducted a physical
examination between those two findings, it would not be inconsistent for Dr.
Adams to find that Bennetts’s ability to lift weight increased as he recovered from
surgery. Accordingly, the disparity in Dr. Adams’s recommendations is not a
reason to doubt his finding of disability. However, even though Dr. Adams’s
findings were not inconsistent, Dr. Levy and Dr. Lewis both provided deliberate,
reasoned explanations for their determination that Bennetts was not disabled. As
already addressed, Dr. Levy’s and Dr. Lewis’s reasoned opinions were sufficient to
- 12 -

provide a nonarbitrary basis for the Defendant to reject Bennetts’s claim for
benefits. Thus, even though Dr. Adams’s findings were not inconsistent with each
other, Defendant’s decision to rely on Dr. Levy’s and Dr. Lewis’s findings was not
arbitrary and capricious.
D.
Finally, Bennetts argues that Ms. Harris’s vocational assessment was
arbitrary and capricious because it did not consider Dr. Levy’s finding that
Bennetts was capable of performing only sedentary or light duty positions.
However, the three positions that Ms. Harris found that Bennetts was capable of
performing were all classified as “sedentary.” Admin Rec. at SB0278.
Accordingly, Dr. Levy’s findings would not have changed Ms. Harris’s analysis.
IV.
Accordingly, it is ORDERED that Plaintiff Bennetts’s objections, ECF No.
22, are OVERRULED.
It is further ORDERED that the report and recommendation, ECF No. 21, is
ADOPTED.
It is further ORDERED that Defendant AT & T’s motion for judgment on
the administrative record, ECF No. 18, is GRANTED.
It is further ORDERED that Plaintiff Bennetts’s motion for judgment on the
administrative record, ECF No. 19, is DENIED.
- 13 -

It is further ORDERED that Plaintiff Bennetts’s complaint, ECF No. 1, is
dismissed with prejudice.

Dated: September 13, 2016

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on September 13, 2016.
s/Michael A. Sian
MICHAEL A. SIAN

- 14 -