Mellian v. Hartford Life and Accident Insurance Company

Filing 24

OPINION and ORDER Regarding Cross 18 , 19 Motions to Affirm or Reverse the Decision of the Plan Administrator. Signed by District Judge Gerald E. Rosen. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TERI LYNN MELLIAN,
Plaintiff,
Case No. 14-10867
Hon. Gerald E. Rosen

v.
HARTFORD LIFE AND ACCIDENT
INSURANCE COMPANY,
Defendant.
_________________________________/

OPINION AND ORDER REGARDING
CROSS-MOTIONS TO AFFIRM OR REVERSE
THE DECISION OF THE PLAN ADMINISTRATOR
At a session of said Court, held in
the U.S. Courthouse, Detroit, Michigan
on
February 12, 2016
PRESENT:

Honorable Gerald E. Rosen
United States District Judge

I. INTRODUCTION
In the present suit, Plaintiff Teri Lynn Mellian challenges the decision by
Defendant Hartford Life and Accident Insurance Company to deny her claim for
continued benefits under a group long term disability policy (the “Policy”) issued
by Defendant to Plaintiff’s employer, Atkore International. This Court’s subject
matter jurisdiction over this case rests upon Plaintiff’s claim for benefits under an

employee welfare benefit plan governed by the Employee Retirement Income
Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq.
Presently before the Court are Plaintiff’s and Defendant’s cross-motions to
reverse or affirm, respectively, the Defendant insurer’s determination that as of
March 1, 2013, Plaintiff was no longer eligible for long term disability benefits
under the Policy. In support of her motion to reverse this decision, Plaintiff argues
(i) that the Court should review the Defendant insurer’s decision de novo, and (ii)
that, regardless of the governing standard of review, Defendant’s decision
impermissibly rests on a file review by non-examining medical consultants who
unduly discounted or, in some instances, wholly failed to consider the opinions and
findings of Plaintiff’s treating physicians. For its part, Defendant contends (i) that
the more deferential “arbitrary and capricious” standard governs this Court’s
review, and (ii) that its denial of Plaintiff’s claim for long term disability benefits is
properly supported by the findings of two board-certified independent medical
consultants that as of March 1, 2013, Plaintiff was capable of performing the
essential duties of her position as an accounting specialist.
The parties’ cross-motions have been fully briefed and are ready for
decision. Upon reviewing the parties’ submissions, the pleadings, and the
administrative record, the Court finds that the relevant allegations, facts, and legal
2

arguments are adequately presented in these materials, and that oral argument
would not significantly aid the decisional process. Accordingly, the Court will
decide the parties’ motions “on the briefs,” see Local Rule 7.1(f)(2), U.S. District
Court, Eastern District of Michigan, in accordance with the guidelines articulated
by the Sixth Circuit in Wilkins v. Baptist Healthcare System, Inc., 150 F.3d 609,
619 (6th Cir. 1998).1 This opinion and order sets forth the Court’s findings of fact
and conclusions of law. To the extent that any findings of fact constitute
conclusions of law, they are adopted as such. To the extent that any conclusions of
law constitute findings of fact, they are so adopted.
II. FINDINGS OF FACT
A.

The Parties
Plaintiff Teri Lynn Mellian began her employment with Atkore International

in November of 2000, working in the company’s Unistrut International Division in
Wayne, Michigan. As an Atkore employee, Plaintiff was eligible for short and
long term disability benefits. The particular long term disability policy that
governs here (the “Policy”) was issued to Atkore in June of 2011 by Defendant

1

Specifically, Wilkins holds that neither a summary judgment ruling nor a bench
trial is an appropriate procedural mechanism for resolving an ERISA claim to recover
benefits. Rather, the Sixth Circuit stated that district courts generally should review
challenged benefit denials “based solely upon the administrative record, and [should]
render findings of fact and conclusions of law accordingly.” Wilkins, 150 F.3d at 619.
3

Hartford Life and Accident Insurance Company. (See Administrative Record
(“AR”) at 5.)
B.

The Relevant Terms of the Policy
This case arises from Plaintiff’s request for long term disability benefits

under the Policy. In order to be considered “disabled” under the Policy, a claimant
must be “prevented from performing one or more of the Essential Duties of” her
own occupation during a 180-day “Elimination Period” and for the first 24 months
following this elimination period, and must have current monthly earnings that are
less than 60 percent of her pre-disability earnings. (Id. at 7, 19.)2 The claimant’s
own “Occupation” is defined in the Policy as the occupation “as it is recognized in
the general workplace,” and not the “specific job” that the claimant has performed
“for a specific employer or at a specific location.” (Id. at 22.) In addition, an
“Essential Duty” of a job is defined as a duty that is a “substantial, not incidental”
part of the job, is “fundamental or inherent to the occupation,” and “cannot be
reasonably omitted or changed.” (Id. at 20.)
The Policy confers upon the Defendant insurer the “full discretion and
authority to determine eligibility for benefits and to construe and interpret all terms

2

Beyond this elimination period and the initial 24 months thereafter, a claimant is
deemed “disabled” under the Policy only if she cannot perform one or more of the
“Essential Duties” of “Any Occupation.” (Id. at 19.)
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and provisions of the Policy.” (Id. at 31.) In addition, the Policy grants Defendant
the power to determine whether the proof submitted in support of a claim for
benefits is “satisfactory” to establish the claimant’s disability. (Id. at 16.)
C.

Plaintiff’s Relevant Medical History
On November 1, 2010, Plaintiff underwent back fusion surgery to address

the effects of a motor vehicle accident that occurred in 2007. The surgery was
performed by Dr. Brady T. Vibert, an orthopedic specialist. Plaintiff was off work
and drew short term disability benefits from November of 2010 until early
February of 2011. Upon her return to work, Plaintiff was placed in an accounting
position that entailed a significant amount of sitting and computer use, along with
document filing and retrieval, making copies of and scanning documents, and
putting together binders. (See id. at 90.)
When the lengthy sitting involved in her accounting position aggravated her
back pain, Plaintiff work station was changed to a standing desk. (See id. at 89.)
This adjustment, in turn, led to pain in Plaintiff’s feet. On June 7, 2012, an
orthopedic surgeon, Dr. Allan M. Grant, performed surgery on Plaintiff’s right foot
to remove a “significant” bunion and correct a bone/toe condition, and screws were
placed in Plaintiff’s foot in the course of this procedure. (Id. at 309-10.) Plaintiff
was approved for short term disability benefits from the date of this surgery until
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December 5, 2012.
In the course of several follow-up visits to Dr. Grant’s office, X-rays
indicated that Plaintiff’s foot was healing well after her surgery, but she
complained of continued pain and swelling at the surgical site. (See id. at 166-71.)
At an October 31, 2012 office visit, Dr. Grant noted that Plaintiff’s “bunion pain is
gone,” but opined that Plaintiff’s continued pain in her foot was likely due to a
reaction to the hardware inserted into her foot during surgery, and he
recommended that this hardware be removed. (Id. at 166.) Following this
procedure, an X-ray showed successful removal of the hardware and “minimal
swelling” in Plaintiff’s right foot. (Id. at 165.) At an office visit on December 12,
2012, Plaintiff was instructed to “weight-bear as tolerated” with her right foot and
to “return as needed,” (id.), and she was given a note stating that she could return
to work on January 14, 2013 with the restriction that she be permitted to sit or
stand “[a]s [t]olerated,” (id. at 282).
During this same time period, Plaintiff also was seen by the physician who
performed her 2010 back surgery, Dr. Vibert. At a November 20, 2012 office visit,
Plaintiff reported lower back pain and “left lower extremity numbness[,] aching
and burning,” and she stated that these symptoms were “improved with lying down
and worse with sitting, standing, walking and lifting.” (Id. at 312.) Dr. Vibert
6

found on examination that Plaintiff had 5/5 strength in her bilateral lower
extremities and “no decreased sensation or reflexes,” but that she had “decreased
lumbar range of motion secondary to pain.” (Id.) Dr. Vibert advised Plaintiff to
“[c]ontinue with activities as tolerated” with “[n]o restrictions,” and he
recommended a bone scan for “possible pseudoarthrosis.” (Id.) If this study did
not “show any obvious pseudoarthrosis of the lumbar spine,” Dr. Vibert anticipated
that he would “recommend aggressive physical therapy” to address any
“deconditioning of [Plaintiff’s] lumbar muscles.” (Id.)
On December 20, 2012, Dr. Vibert reviewed the results of the bone scan and
found that it revealed “arthritis in the lumbar spine[,] particularly L3-L5,” but “not
obvious pseudoarthrosis at L4-L5.” (Id. at 232.) An examination disclosed “pain
with range of motion of the lumbar spine,” but intact “[s]ensation and motor
function . . . throughout the bilateral lower extremities.” (Id.) Dr. Vibert opined
that Plaintiff suffered from “[l]ikely persistent lumbar radiculopathy” following her
surgery, and that “although she is better compared to before surgery she still has
some persistent pain.” (Id.) He further stated that Plaintiff likely had achieved the
maximum possible improvement after her surgery and “should be on permanent
restrictions of no lifting more than 5-10 lbs at most, no repetitive bending, lifting,
stooping, squatting or twisting, [and no] sitting or standing for more than 30
7

minutes at a time.” (Id.) In addition, he sent Plaintiff for an MRI to “make sure
she does not have any recurrent stenosis.” (Id.)
Dr. Vibert reviewed the results of this MRI during a January 17, 2013 office
visit. Plaintiff reported at this visit that she “continue[d] to have quite a bit of pain
in her back and legs[,] especially if she sits for any length of time,” and that
“[w]hen she stands she gets a lot of pain in her bilateral feet.” (Id. at 229.) On
examination, Dr. Vibert found that Plaintiff’s “sensation and motor function [we]re
intact,” and his review of the MRI disclosed “no recurrent stenosis” and
“essentially no significant findings.” (Id.) In a “lengthy discussion” with Plaintiff,
Dr. Vibert stated his belief that Plaintiff had “further neuropathy” and suggested
“maybe trying Lyrica and Neurontin” for her pain, but Plaintiff responded that she
was “somewhat skeptical to take these [medications] due to the side effects.” (Id.)
Dr. Vibert concluded that Plaintiff should be placed “on permanent restrictions”
with “no lifting more than 5 lbs, no repetitive bending, lifting, stooping, squatting
or twisting,” and no “sitting or standing for more than 30 minutes at a time,” and
he requested that she return “in three months’ time for recheck.” (Id.)
D.

Plaintiff’s Claim for Long Term Disability Benefits
With her short term disability benefits set to expire in early December of

2012, Plaintiff applied for long term disability benefits under the Policy issued by
8

the Defendant insurer to her employer. This application was supported in part by
an attending physician’s statement (“APS”) completed by Dr. Grant on November
21, 2012, which disclosed a diagnosis of bilateral bunions and indicated that this
condition had improved since Plaintiff’s surgery in June. (See id. at 294.) Dr.
Grant opined that Plaintiff was totally disabled as of the date of his statement, but
noted that Plaintiff was scheduled to have the hardware removed from her foot
later in November and that she was expected to be able to return to work after the
first of the year pending her recovery from this procedure. (See id. at 295.)3
Plaintiff also submitted a November 29, 2012 APS from Dr. Vibert, indicating that
Plaintiff suffered from lumbar stenosis and recommending that she limit her sitting
and standing due to her reports of lower back pain and difficulty sitting or standing
for any length of time. (See id. at 277-78.)
In connection with Plaintiff’s application for long term disability benefits,
Plaintiff’s employer was asked to complete a “physical demands analysis” form for
the accounting specialist position that Plaintiff last held prior to her foot surgery.
(See id. at 262-63.) According to this analysis, the position entailed sitting for up

3

As noted earlier, in a December 12, 2012 work note issued after the hardware was
removed from Plaintiff’s foot, a physician’s assistant in Dr. Grant’s office, Frank
Nysowy, stated that Plaintiff was able to return to work on January 14, 2013 with the
limitation that she be permitted to sit or stand as tolerated. (See id. at 282.)
9

to half an hour at a time for a total of six hours per day, standing for no more than
half an hour per day, no walking, and alternating between sitting and standing as
needed. (See id. at 262.) This analysis further indicated that the position did not
involve any stooping, kneeling, crouching, crawling, climbing, reaching, or lifting.
(See id. at 263.) Finally, Plaintiff’s employer stated that the work station for the
position included an ergonomic chair, an adjustable foot rest, and an adjustable
computer monitor. (See id. at 262.)
In addition to this physical demands analysis provided by Plaintiff’s
employer, the Defendant insurer conducted an occupational analysis based on a
description of the essential duties of Plaintiff’s position as identified by her
employer, as well as a statement of the requirements of the “accounting clerk”
position as set forth in the Dictionary of Occupational Titles. (See id. at 70.) Upon
performing this analysis, Defendant characterized Plaintiff’s position as
“[s]edentary with frequent reaching, handling, [and] fingering,” and it concluded
that the position entailed sitting for half an hour at a time and for six hours total per
day. (Id.)
In the course of processing Plaintiff’s claim for long term disability benefits,
Defendant followed up with Plaintiff’s foot surgeon, Dr. Grant, regarding the
statement in a December 12, 2012 work note from his office indicating that
10

Plaintiff would be able to return to work on January 14, 2013. (See id. at 223-24.)
Dr. Grant responded to this inquiry on February 25, 2013, opining that Plaintiff
was capable of performing “[f]ull-time, primarily sedentary activities” so long as
she was “given the opportunity to alternate” between sitting and standing positions,
to “walk as needed for comfort,” and to only “occasional[ly] lift up to 10 lbs.”
(Id.)
On March 12, 2013, Defendant advised Plaintiff that her claim for long term
disability benefits was approved, but only for the period from December 6, 2012
until February 28, 2013. (See id. at 106-10.) In support of this decision,
Defendant explained that the limitations and restrictions identified by Plaintiff’s
physicians, Drs. Grant and Vibert, were consistent with the essential duties of
Plaintiff’s position as an accounting specialist, as this position was sedentary in
nature and afforded the opportunity to alternate between sitting and standing and to
walk as needed for comfort. (See id. at 109.) Accordingly, Defendant concluded
that Plaintiff was no longer disabled within the meaning of the Policy as of March
1, 2013. (See id.)
Plaintiff took an administrative appeal from this decision on June 25, 2013.
(See id. at 209-11.) In support of this appeal, Plaintiff submitted additional
materials from the offices of her two treating physicians, Drs. Grant and Vibert.
11

First, Plaintiff provided progress notes from an April 9, 2013 office visit to Dr.
Vibert, reporting that Plaintiff continued to experience “quite a bit” of lower back
pain and “severe buttock pain, gluteal pain and pain down into her feet as well.”
(Id. at 213.) More generally, Dr. Vibert reported that Plaintiff was “absolutely
miserable,” as she could not “sit for any length of time” and also could not “stand
for any length of time because she develops foot pain.” (Id.) Upon examining
Plaintiff, Dr. Vibert found that she was physically “[s]table” and “neurologically
intact,” and he observed that Plaintiff had “no more compressive lesions in her
back that would necessitate surgery or suggest that surgery would help her.” (Id.)
Dr. Vibert diagnosed Plaintiff as suffering from “permanent nerve injury” as
disclosed in an electromyogram (“EMG”), as well as “chronic nerve pain,”
“persistent back and leg pain” following her back surgery, and “bilateral intrinsic
foot abnormalities.” (Id.) He reiterated the permanent restrictions imposed at a
prior visit — i.e., no lifting of more than five pounds, no “sitting or standing for
more than 30 minutes at a time,” and “no repetitive bending, lifting, stooping,
squatting or twisting” — and further opined that Plaintiff “required frequent
periods of lying down for back, buttock, [and] leg pain flareup.” (Id.) In light of
these restrictions “combined with [Plaintiff’s] bilateral foot issues,” Dr. Vibert
concluded that Plaintiff “should be permanently disabled from her job.” (Id.)
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Plaintiff’s other treating physician, Dr. Grant, provided an update of
Plaintiff’s condition in a March 27, 2013 letter:
This is a patient who is under my care for problems with her feet. She
had corrective surgery on one foot to correct a significantly
symptomatic bunion. She has a bunion also on the opposite foot. She
also has [a] significant lumbar problem which required surgery.
Because of her back problems she apparently is unable to sit for more
than 30 minutes at a time [and] because of a combination of back and
foot problems she is not able to stand for much more than 30 minutes
at a time. Alternating sitting and standing is not an option for her as
both of these cause her similar discomfort. It is my medical opinion
that this patient is unable to perform duties of her job because of the
inability to stand or sit for more than a very short period of time. It is
my opinion that she is medically disabled from her type of
employment. Also, most jobs require either sitting or standing [so]
she is not likely to be able to perform any other type of gainful
employment because of this problem. Surgical intervention to correct
her opposite bunion will not significantly improve her ability to stand
or walk.
(Id. at 212.) Dr. Grant’s office also issued a “clarification” concerning the
December 12, 2012 work note that had identified a January 14, 2013 return-towork date, explaining that this work note “was based on the immediate surgery of
hardware removal at that time” and did not “tak[e] into consideration the
patient[’]s other medical conditions.” (Id. at 215.)
Upon receiving this additional information in support of Plaintiff’s
administrative appeal, Defendant referred Plaintiff’s claim for review by a medical
consulting firm, MCMC, and this firm, in turn, designated two physicians to
13

examine the medical records of Plaintiff’s foot and back conditions. Dr. David
Rubinfeld, who is board certified in orthopedic surgery, stated in an August 19,
2013 report that “[t]he available documentation does not support any restrictions or
limitations related specifically to [Plaintiff’s] right foot surgery,” and he concluded
that Plaintiff “has the ability to perform primarily sedentary work activities.” (Id.
at 145.) In support of these findings, Dr. Rubinfeld stated that he had discussed
Plaintiff’s condition with Dr. Grant, who “agreed that the feet are not the cause of
this claimant’s ‘disability,’” and he further explained that “[t]he medical
documentation related specifically to [Plaintiff’s] right foot is quite limited” and
that “[a] physical examination of the foot is not documented pre[-] or postoperatively.” (Id. at 144.) Finally, Dr. Rubinfeld opined that “a return to work in
42 days is the best practice” for a patient, like Plaintiff, who had undergone bunion
surgery on her foot. (Id. at 145.)4
The medical records of Plaintiff’s back condition, in turn, were reviewed by
4

In an August 22, 2013 addendum to his initial report, Dr. Rubinfeld specifically
addressed Dr. Grant’s March 27, 2013 note in which he opined that Plaintiff was
disabled. In particular, while Dr. Grant stated in this March 27 note that Plaintiff was
unable to sit or stand for more than 30 minutes at a time, Dr. Rubinfeld pointed to the
absence of any record of a “foot exam that reflects a problem with sitting.” (Id. at 147.)
Dr. Rubinfeld acknowledged that Plaintiff suffered from a back problem that could affect
her ability to sit, but he observed that this condition was being “addressed by a coreviewer.” (Id.) Accordingly, he concluded that the additional information provided by
Dr. Grant “does not change my prior opinion” that Plaintiff was capable of sedentary
work. (Id.)
14

Dr. Steven Lobel, who is board certified in physical medicine and rehabilitation.
Dr. Lobel, like Dr. Rubinfeld, opined that Plaintiff “has the ability to perform
primarily sedentary level work activities,” explaining that the medical record
disclosed only “uncomplicated spine and foot surgery,” that the “examinations by
the providers [we]re normal” and the imaging of Plaintiff’s spine likewise was
“normal,” and that “there [wa]s no care provided other than follow-up visits,”
including “no therapy, medications, or referrals.” (Id. at 156-57.) In Dr. Lobel’s
view, the medical record lacked “evidence to demonstrate any physical or
functional deficits” that would support the physical restrictions and limitations
imposed by Plaintiff’s physicians, leaving only “self reported pain complaints” that
were insufficient, standing alone, to preclude sedentary work. (Id. at 157.)5
On August 28, 2013, Defendant notified Plaintiff that it was upholding its
initial decision to deny long term disability benefits after February 28, 2013. (See
id. at 93-96.) After summarizing the arguments made by Plaintiff in support of her
administrative appeal, the supplemental materials accompanying this appeal, and
the findings of the two MCMC physicians who reviewed Plaintiff’s medical

5

Dr. Lobel stated in his report that he repeatedly attempted to contact Dr. Vibert,
calling his office on three separate occasions and then faxing him a set of questions as
requested by someone in his office. (Id. at 156.) When Dr. Lobel “did not receive a
response back [from Dr. Vibert] by the due date requested,” he “was instructed to proceed
with the case.” (Id.)
15

records, Defendant stated:
. . . We acknowledge the presence of Ms. Mellian’s medical
conditions and reported symptoms that may require ongoing
treatment. However, the presence of a medical condition, reported
symptom or treatment for such does not determine an ongoing
Disability. At the conclusion of the appeal process, we find that the
weight of the evidence does not substantiate that Ms. Mellian was
Disabled and prevented from performing one or more of the Essential
Duties of her occupation after 02/28/13; as is required by the Atkore
International, Inc. policy for LTD benefits to continue beyond that
date.
Although Ms. Mellian states she is not able to return to work due to
the combination of back and foot symptoms, our position remains that
the medical findings do not substantiate this level of impairment.
Providers Dr. Grant and Mr. Nysowy opine that your client is not
restricted from sedentary level work due to her foot condition. Two
Independent Medical Consultants opine that Ms. Mellian’s medical
conditions would not preclude sedentary level work activities.
Teri Mellian had back surgery in 2010 and was capable of resuming
work activities. Dr. Vibert and Dr. Grant are now supporting Ms.
Mellian’s claim of total disability based on her back condition.
However, Dr. Vi[]bert’s 04/09/13 office visit note documents that
your client’s back condition does not require additional surgery and
that she is neurologically intact. Ms. Mellian was not referred to a
pain management specialist for severe or uncontrolled pain. Notably,
the medication listing at this appointment also does not include
prescription medications for pain. While we are not disputing Ms.
Mellian’s complaints of pain, we find that the evidence presented does
not support the presence of disabling levels of pain or an inability to
perform work activities due to her back condition, foot condition or a
combination thereof.
(Id. at 95-96.) Through the present suit, Plaintiff seeks to overturn this decision
denying her application for long term disability benefits.
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III. CONCLUSIONS OF LAW
A.

The Standards Governing the Parties’ Cross-Motions
A participant in or beneficiary of a plan governed by ERISA may bring suit

in federal district court to recover benefits due under the terms of the plan. 29
U.S.C. § 1132(a)(1)(B). Courts review de novo a denial of benefits challenged
under this provision, unless the benefit plan confers upon the administrator the
discretionary authority to determine eligibility for benefits or to construe the terms
of the plan, in which case a more deferential “arbitrary and capricious” standard
applies. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S. Ct.
948, 956-57 (1989); Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376, 380
(6th Cir. 1996).
In this case, Defendant argues that two separate provisions of the Policy
trigger the more deferential “arbitrary and capricious” standard of review. First,
the Policy includes language that expressly confers upon Defendant the “full
discretion and authority to determine eligibility for benefits and to construe and
interpret all terms and provisions of this Policy.” (Admin. Record at 29; see also
id. at 31.) Next, the Policy elsewhere states that the proof of loss submitted in
support of a claim for benefits “must be satisfactory” to Defendant. (Id. at 16.) As
Defendant observes, the Sixth Circuit has recognized that plan language of this sort
17

confers sufficient discretionary authority to warrant judicial review under the
“arbitrary and capricious” standard. See Frazier v. Life Insurance Co. of North
America, 725 F.3d 560, 567 (6th Cir. 2013) (“This Court has found ‘satisfactory
proof,’ and similar phrases, sufficiently clear to grant discretion to administrators
and fiduciaries.”); Calvert v. Firstar Finance, Inc., 409 F.3d 286, 292 (6th Cir.
2005) (holding that plan language granting the plan administrator the “sole
discretion” to “construe the terms of” a long term disability policy and “to
determine eligibility” under the policy triggered arbitrary and capricious review).
In response, Plaintiff does not dispute that this Policy language, standing
alone, would support arbitrary and capricious review of Defendant’s decision to
deny her claim for long term disability benefits. (See Plaintiff’s Motion, Br. in
Support at 13.) Nonetheless, she points out that the inquiry is complicated by
Michigan’s adoption in 2007 of an insurance regulation stating that “a
discretionary clause issued or delivered to any person in this state in a policy,
contract, rider, indorsement, certificate, or similar contract document is void and of
no effect.” Mich. Admin. Code R. 500.2202(c). The Sixth Circuit has held that
ERISA does not preempt this state insurance rule, see American Council of Life
Insurers v. Ross, 558 F.3d 600, 608-09 (6th Cir. 2009), and courts in this District
have found that this Michigan regulation, where it applies, operates to override a
18

clause in an insurance policy that otherwise would confer discretionary authority
on an ERISA plan administrator and thereby trigger arbitrary and capricious
review, see, e.g., Gray v. Mutual of Omaha Life Insurance Co., No. 11-15016,
2012 WL 2995469, at *3-*4 (E.D. Mich. July 23, 2012).
The Court agrees with Defendant, however, that this state insurance rule is
not applicable here. By its terms, Rule 500.2202(c) applies only to a “policy,
contract, rider, indorsement, certificate, or similar [insurance] contract document”
that is “issued or delivered to” a person in Michigan. Mich. Admin. Code R.
500.2202(c) (emphasis added). The Policy in this case expressly states that it was
issued by Defendant to Plaintiff’s employer, Atkore International, and that a copy
of the Policy is available for review in Atkore’s office located in Harvey, Illinois.
(See Admin. Record at 5, 29; see also id. at 36 (identifying the Policy’s place of
delivery as Illinois).) Under this record, it cannot be said that the Policy was
issued in Michigan, nor is there any evidence that it was delivered to any
individual in Michigan. It seemingly follows, then, that the Michigan insurance
rule cited by Plaintiff does not override the Policy’s express grant of discretionary
authority to Defendant. See, e.g., Tikkanen v. Liberty Life Assurance Co., 31 F.
Supp.3d 913, 920-22 (E.D. Mich. 2014) (finding no basis to apply Rule
500.2202(c) to void a discretionary clause in a long term disability insurance
19

policy, where the policy was issued in Georgia and there was no evidence that any
relevant insurance document was delivered to anyone in Michigan); Rice v. Sun
Life & Health Insurance Co., No. 1:12-cv-1362, 2014 WL 24046, at *5 (W.D.
Mich. Jan. 2, 2014) (likewise declining to apply the state insurance rule because
the long term disability policy in that case “state[d] that it was issued in Rhode
Island and [wa]s governed by the laws of that state”).
Plaintiff’s efforts to avoid this conclusion are not persuasive. First, she
observes that the Policy in this case lacks a choice of law provision, and thus does
not expressly disclaim the application of Michigan’s laws and insurance
regulations in favor of the laws of another state. As Plaintiff points out, the courts
in at least some cases have cited a policy’s affirmative choice of another state’s law
as a basis for concluding that Rule 500.2202(c) did not operate to void a
discretionary clause in the policy. See Rice, 2014 WL 24046, at *5 (pointing to
language in the policy providing that it was governed by the laws of Rhode Island);
Foorman v. Liberty Life Assurance Co., No. 1:12-cv-927, 2013 WL 1874738, at
*1, *3 (W.D. Mich. May 3, 2013) (citing a provision stating that the policy was
subject to the laws of Pennsylvania). Yet, the lack of a choice of law provision in
the Policy is unhelpful to Plaintiff here, because the Court would be quite prepared
to consider the application of Michigan’s Rule 500.2202(c) in this case, but for the
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absence of evidence that would satisfy the Rule’s own requirement of an insurance
contract document that was “issued or delivered to” a person in Michigan. The
inapplicability of Rule 500.2202(c) to the Policy is not due to language in the
Policy steering the Court toward another state’s law, nor does it reflect the Court’s
generalized reluctance to apply the laws and insurance regulations of Michigan
versus some other state. Rather, Rule 500.2202(c) is inapplicable because the
conditions set forth in the Rule itself have not been satisfied.
Plaintiff next points to language in the Policy itself that appears to
contemplate the issuance or delivery of a certificate of insurance to her and other
individual Atkore employees covered by the Policy. Specifically, Plaintiff cites the
Policy’s definition of “You or Your” as “the person to whom this certificate is
issued,” (Admin. Record at 22), and she surmises that since she resided in
Michigan when the Policy was issued in 2011, a certificate of insurance must have
been delivered or issued to her in Michigan at that time.
Judge Lawson addressed (and rejected) precisely this argument in Tikkanen,
31 F. Supp.3d at 921-22. The insurance policy at issue in Tikkanen called for the
defendant insurer to “provide a certificate to” the plan sponsor “for delivery to
Covered Persons.” 31 F. Supp.3d at 921. Despite this language contemplating
delivery of an insurance certificate to employees covered by the policy, the court
21

observed that the plaintiff had “offered no proof that any certificate or other policy
document actually was delivered to him or any other ‘person’ in Michigan.” 31 F.
Supp.3d at 921. In the absence of such evidence, the court concluded that the
plaintiff had failed to establish that an insurance document with a discretionary
clause had been delivered to an individual in Michigan, such that Rule 500.2202(c)
would operate to void this clause. 31 F. Supp.3d at 922. This Court finds the
reasoning of Tikkanen persuasive, and likewise concludes that Plaintiff here cannot
invoke Rule 500.2202(c) to void any discretionary clause in the Policy, absent
evidence that an insurance certificate or some other policy document was actually
issued or delivered to her or some other individual in Michigan.
Finally, and most promisingly, Plaintiff points to an amendatory rider to the
Policy that is deemed to be “attached to all certificates given in connection with
[t]he Policy,” and which states in pertinent part that “[f]or Michigan residents, the
Policy Interpretation provision [of the Policy] is deleted in its entirety.” (Admin.
Record at 23-24.) While this rider does not specify what is meant by the “Policy
Interpretation provision” of the Policy, and the Court’s inspection of the Policy
fails to disclose any provision bearing that exact label, Plaintiff evidently views the
rider as implicitly adopting Rule 500.2202(c) by deleting the language in the
Policy that grants Defendant the “full discretion and authority . . . to construe and
22

interpret all terms and provisions of this Policy.” (Id. at 29.) Regardless, then, of
whether Rule 500.2202(c) expressly applies under the circumstances presented
here, Plaintiff argues that Defendant voluntarily agreed to abide by this Rule when
it amended the Policy to remove the discretionary interpretation clause that is
prohibited under the Rule.
This argument, even if accepted, does not get Plaintiff all the way to the
desired de novo review of Defendant’s denial of her claim for benefits. The Policy
amendment cited by Plaintiff, if construed in the manner she suggests, would
effectively remove the clause in the Policy that confers upon Defendant the “full
discretion and authority to determine eligibility for benefits and to construe and
interpret all terms and provisions of the Policy.” (Id.) Nonetheless, a separate
Policy provision dictates that the proof of loss submitted in support of a claim for
benefits “must be satisfactory” to Defendant. (Id. at 16.) As explained earlier, this
language alone suffices to trigger judicial review under the more deferential
“arbitrary and capricious” standard, see Frazier, 725 F.3d at 567, even without the
additional Policy provision granting Defendant the discretion to interpret the terms
of the Policy.6

6

It also is worth noting that Plaintiff’s challenge to the Defendant insurer’s
decision in this case does not turn upon any particular construction of the language of the
Policy, but instead rests upon Defendant’s determination that the medical evidence
23

Accordingly, the Court will apply the “arbitrary and capricious” standard in
reviewing Defendant’s denial of Plaintiff’s claim for long term disability benefits.
This is the “least demanding form of judicial review,” under which the Court must
uphold a denial of benefits if it is “rational in light of the plan’s provisions.”
Monks v. Keystone Powdered Metal Co., 78 F. Supp.2d 647, 657 (E.D. Mich.
2000) (internal quotation marks and citations omitted), aff’d, 2001 WL 493367
(6th Cir. May 3, 2001). “When it is possible to offer a reasoned explanation, based
on the evidence, for a particular outcome, that outcome is not arbitrary or
capricious.” Davis v. Kentucky Finance Cos. Retirement Plan, 887 F.2d 689, 693
(6th Cir. 1989) (internal quotations and citations omitted). Thus, “[b]efore
concluding that a decision was arbitrary and capricious, a court must be confident
that the decisionmaker overlooked something important or seriously erred in
appreciating the significance of evidence.” Marchetti v. Sun Life Assurance Co., 30
F. Supp.2d 1001, 1008 (M.D. Tenn. 1998). Even where “the evidence may be
sufficient to support a finding of disability, if there is a reasonable explanation for
the administrator’s decision denying benefits in light of the plan’s provisions, then

produced by Plaintiff was insufficient to establish that she was unable to perform one or
more of the essential duties of her own occupation. This question whether Plaintiff has
produced satisfactory evidence of a disability is expressly committed to Defendant’s
discretion under the Policy, through a provision wholly separate from the discretionary
interpretation clause that was deleted from the Policy as it applies to Michigan residents.
24

the decision is neither arbitrary nor capricious.” Schwalm v. Guardian Life
Insurance Co., 626 F.3d 299, 308 (6th Cir. 2010).
In reviewing Defendant’s decision to deny benefits, the Court is “confined to
the record that was before the Plan Administrator,” and “may not admit or consider
any evidence not presented to the administrator.” Wilkins, 150 F.3d at 615, 619.
The pertinent record, however, encompasses all materials considered during any
phase of the administrative review process, whether in connection with
Defendant’s initial decision or its determination to affirm this decision on
administrative appeal. Miller v. Metropolitan Life Ins. Co., 925 F.2d 979, 986 (6th
Cir. 1991). Finally, Plaintiff correctly points to the “inherent conflict of interest”
in Defendant’s consideration of her request for disability benefits, in light of
Defendant’s dual role as “the payor of any long-term disability benefits and the
administrator vested with discretion to determine [Plaintiff’s] eligibility for those
benefits.” Schwalm, 626 F.3d at 311. While this conflict of interest does not
dictate the outright displacement of the arbitrary and capricious standard of review,
it is a factor that the Court must consider, among others, in determining whether
Defendant’s decision to deny benefits should be reversed or affirmed. See
Schwalm, 626 F.3d at 311-12.
B.

Defendant’s Denial of Plaintiff’s Claim for Long Term Disability
Benefits Was Not Arbitrary or Capricious, But Instead Was Supported
25

by Substantial Evidence.
With these standards in mind, the Court turns to a review of Defendant’s
decision that Plaintiff was not eligible for continued long term disability benefits
after February 28, 2013. In seeking the reversal of this decision, Plaintiff argues
that it suffers from two fundamental defects: (i) a failure to give sufficient weight
to the opinions of Plaintiff’s treating physicians, and (ii) the failure of the two
independent medical consultants retained by Defendant to thoroughly consider the
entirety of the medical record in reaching their conclusions that Plaintiff remained
capable of performing primarily sedentary work. The Court addresses each of
these two challenges in turn.
In Plaintiff’s view, the opinions and findings of her two treating physicians,
Drs. Grant and Vibert, establish that she was unable to perform at least one of the
essential duties of her job as an accounting specialist — namely, sitting. (See
Plaintiff’s Motion, Br. in Support at 19.) The physical demands analysis for this
position, as conducted by Plaintiff’s employer, stated that this job entailed sitting
for up to half an hour at a time for a total of six hours per day, standing for no more
than half an hour per day, no walking, and alternating between sitting and standing

26

as needed. (See Admin. Record at 262.)7 In response to an inquiry made by
Defendant as it processed Plaintiff’s claim for benefits, Dr. Grant indicated on
February 25, 2013 that Plaintiff was capable of performing “[f]ull-time, primarily
sedentary activities” so long as she was “given the opportunity to alternate”
between sitting and standing and to “walk as needed for comfort.” (Id. at 223-24.)
In addition, a December 12, 2012 work note issued by Dr. Grant’s office stated that
Plaintiff would be able to return to work on January 14, 2013, provided that she
was allowed to sit or stand “[a]s [t]olerated.” (Id. at 282.) Dr. Vibert, in turn,
stated in an December 12, 2012 office note that Plaintiff was limited to “sitting or
standing for [no] more than 30 minutes at a time,” (id. at 232), and he reiterated
these same restrictions at a subsequent January 17, 2013 office visit, (see id. at
229).
Thus, as Defendant explained in its initial March 12, 2013 decision finding
that Plaintiff was eligible for long term disability benefits only through February
28, 2013, the limitations and restrictions imposed by Plaintiff’s two treating
physicians were fully consistent with the essential duties of her job as an

7

Defendant likewise conducted its own occupational analysis of Plaintiff’s job
based on her employer’s description of the essential duties of this position, and it
concluded that this job was properly characterized as “[s]edentary” with the need to sit for
half an hour at a time and for a total of six hours per day. (Id. at 70.)
27

accounting specialist. Under this record, the Court fails to see how Defendant
could be faulted for giving insufficient weight to the opinions and findings of
Plaintiff’s physicians, much less how Defendant’s treatment of these opinions and
findings could be deemed arbitrary and capricious. To the contrary, Defendant’s
initial decision, at least, fully incorporated and appropriately relied upon the
medical records and findings of Plaintiff’s treating physicians, and Plaintiff has
failed to suggest otherwise. Instead, she points to portions of the medical record
disclosing such serious medical conditions as neuropathy, permanent nerve injury,
and complications following bunion surgery. The bare existence of such
conditions, however, does not equate to disability within the meaning of the Policy,
and Plaintiff has not pointed to any findings or opinions of her physicians prior to
Defendant’s initial decision that were unaccounted for in, or inconsistent with,
Defendant’s determination that Plaintiff did not meet this standard of disability.
To be sure, Plaintiff obtained additional records and opinions from her
treating physicians in support of her appeal of Defendant’s initial decision, and
these later materials were indicative of greater limitations in Plaintiff’s ability to
engage in work activities. In particular, Dr. Vibert concluded following an April 9,
2013 office visit that in addition to the restrictions he had previously imposed,
including no sitting or standing for more than 30 minutes at a time, Plaintiff
28

“required frequent periods of lying down for back, buttock, [and] leg pain flareup.”
(Admin. Record at 213.) In light of these restrictions “combined with [Plaintiff’s]
bilateral foot issues,” Dr. Vibert opined that Plaintiff “should be permanently
disabled from her job.” (Id.) Likewise, Dr. Grant stated in a March 27, 2013 letter
that Plaintiff “apparently is unable to sit for more than 30 minutes at a time” due to
back problems, and that a “combination of back and foot problems” left her unable
to “stand for much more than 30 minutes at time.” (Id. at 212.) Dr. Grant added
that “[a]lternating sitting and standing is not an option for [Plaintiff] as both of
these cause her similar discomfort,” and he concluded that she was “unable to
perform duties of her job because of the inability to stand or sit for more than a
very short period of time.” (Id.)
Although these more recent opinions offered by Drs. Vibert and Grant
certainly would support a finding of disability, it is well established that an insurer
such as Defendant need not give special deference or weight to the opinions of a
claimant’s treating physicians when evaluating a claim for disability benefits. See
Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834 123 S. Ct. 1965, 1972
(2003); Balmert v. Reliance Standard Life Insurance Co., 601 F.3d 497, 504 (6th
Cir. 2010). In declining to accept the opinions of Plaintiff’s treating physicians
that Plaintiff could not perform the duties of her job and thus was disabled,
29

Defendant pointed to (i) the lack of medical findings that would “substantiate this
level of impairment,” and (ii) the opinions of two consulting physicians, Drs.
Rubinfeld and Lobel, that Plaintiff remained capable of performing primarily
sedentary work activities. (See Admin. Record at 95-96.)
Both of these grounds for discounting the opinions of Plaintiff’s treating
physicians are recognized in the case law as sufficient to pass muster under
“arbitrary and capricious” review. First, the courts have confirmed that a plan
administrator does not act arbitrarily or capriciously by declining to credit the
opinion of a physician, treating or otherwise, that lacks support in the medical
record. See Boone v. Liberty Life Assurance Co., No. 05-1090, 161 F. App’x 469,
473 (6th Cir. Dec. 20, 2005); White v. Standard Insurance Co., 895 F. Supp.2d
817, 848 (E.D. Mich. 2012). In this case, the physician treating Plaintiff for her
foot condition, Dr. Grant, opined in both December of 2012 and February of 2013
that Plaintiff was capable of performing the duties of a primarily sedentary
occupation so long as she was permitted to alternate between sitting and standing
as needed for comfort. (See Admin. Record at 223-24, 282.) Though Dr. Grant
revised this opinion in a March 27, 2013 letter, stating his view that Plaintiff was
“unable to perform [the] duties of her job because of the inability to stand or sit for
more than a very short period of time,” (id. at 212), the record discloses only one
30

office visit in March of 2013 that could supply medical findings in support of this
changed opinion. Yet, Dr. Grant’s examination during this March 2013 office visit
revealed that Plaintiff’s right foot was “in relatively good condition” following her
bunion surgery in June of 2012, and x-rays showed that this foot had “healed”
since this surgery. (Id. at 164.) In addition, Plaintiff reported to Dr. Grant that her
right foot was “doing well,” and that she was not experiencing any “specific pain”
over the bunion that remained in her left foot. (Id.)
Notably, when Dr. Grant opined in the wake of this March 2013 office visit
that Plaintiff was “medically disabled from her type of employment,” he cited her
“back problems” as the basis for his conclusion that she “apparently [wa]s unable
to sit for more than 30 minutes at a time.” (Id. at 212; see also id. at 164 (noting at
Plaintiff’s March 27, 2013 office visit that Plaintiff reported difficulty in “sit[ting]
for any period of time” because of “her back issue,” and concluding that it was
“very difficult for [Plaintiff] either to stand or sit for any period of time” due to a
“combination of back and foot pathology”).) Similarly, when one of the physician
consultants retained by Defendant, Dr. Rubinfeld, contacted Dr. Grant to discuss
Plaintiff’s condition, Dr. Grant reportedly “agreed that the feet are not the cause
of” Plaintiff’s disability. (Id. at 144.) In light of this record, which discloses no
evidence of further worsening in Plaintiff’s foot condition that could account for
31

the change in Dr. Grant’s opinion, and which indicates that the additional
restrictions imposed in Dr. Grant’s later opinion were attributable in significant
part to a back condition that he was not treating, the Court cannot say that
Defendant acted arbitrarily or capriciously in declining to adopt Dr. Grant’s
opinion that Plaintiff was unable to perform the duties of her job.8
Likewise, it was appropriate for Defendant to discount the changed opinion
of Plaintiff’s other treating physician, Dr. Vibert, as lacking a basis in the medical
record. Again, while Dr. Vibert stated in December 20, 2012 and January 17, 2013
office notes that Plaintiff’s condition could be accommodated through a restriction
to sitting or standing for no more than 30 minutes at a time, (see id. at 229, 232), he
then concluded following an April 9, 2013 office visit that Plaintiff “required
frequent periods of lying down for back, buttock, [and] leg pain flareup,” and that
she therefore was “permanently disabled from her job,” (id. at 213). Yet, Dr.
Vibert’s examination of Plaintiff at this office visit revealed that she was physically
“[s]table” and “neurologically intact,” and that she had “no more compressive
8

As Defendant points out, when a plan administrator is weighing the opinion of a
treating physician, it is appropriate to consider the possibility that the physician might be
acting more as his patient’s “disability advocate” than as “a physician rendering objective
opinions.” White, 895 F. Supp.2d at 848; see also Nord, 538 U.S. at 832, 123 S. Ct. at
1971. Such caution appears particularly appropriate where, as here, a treating physician
offers a revised opinion imposing greater restrictions on the heels of an initial decision
explaining that the physician’s opinions and findings to that point did not support an
award of disability benefits.
32

lesions in her back that would necessitate surgery or suggest that surgery would
help her.” (Id.) In addition, Dr. Vibert cited Plaintiff’s “bilateral foot issues” as
contributing to his conclusion that Plaintiff was “permanently disabled from her
job.” (Id.) Against this backdrop, it was not arbitrary or capricious for Defendant
to discount Dr. Vibert’s more recent opinion as lacking the support of objective
medical findings, and as relying in part on a foot condition that Dr. Vibert neither
examined nor treated and that did not lie within his area of expertise.
Next, the case law recognizes that it is not necessarily arbitrary or capricious
for a plan administrator to prefer the opinion of a non-treating medical professional
over that of a claimant’s treating physician, even where the former rests upon a
review of the medical record rather than direct examination of the claimant. See
Balmert, 601 F.3d at 504; White, 895 F. Supp.2d at 848; Harris v. Kemper
Insurance Cos., 360 F. Supp.2d 844, 849 (E.D. Mich. 2005). Indeed, as a general
rule, “when a plan administrator chooses to rely upon the medical opinions of one
doctor over that of another in determining whether a claimant is entitled to ERISA
benefits, the plan administrator’s decision cannot be said to have been arbitrary and
capricious because it would be possible to offer a reasoned explanation, based
upon the evidence, for the plan administrator’s decision.” McDonald v. WesternSouthern Life Insurance Co., 347 F.3d 161, 169 (6th Cir. 2003). In this case, then,
33

so long as the opinions of the consulting physicians retained by Defendant, Drs.
Rubinfeld and Lobel, are “reasonable and based on the evidence,” Harris, 360 F.
Supp.2d at 849 — a point contested by Plaintiff, as discussed immediately below
— Defendant cannot be said to have acted arbitrarily and capriciously by electing
to give greater weight to the opinions of these two consulting physicians than to
the opinions of Plaintiff’s treating physicians.
Accordingly, the Court turns to Plaintiff’s contention that the opinions of the
consulting physicians retained by Defendant, Drs. Rubinfeld and Lobel, suffer
from various defects that preclude Defendant’s reliance on them as a proper basis
for denying Plaintiff’s claim for disability benefits. First, Plaintiff faults these
consulting physicians for purportedly ignoring the pertinent medical findings of
her treating physicians. She takes issue, for example, with a statement in Dr.
Lobel’s report that the “examinations by [Plaintiff’s] providers [we]re normal,”
(Admin. Record at 156), contending that this assertion is contradicted by (i)
statements in the office notes of Plaintiff’s treating physicians recounting her
reports of foot and back pain, (see, e.g., id. at 164, 229), (ii) the record of a
December 2012 “[a]bnormal” bone scan that reported “increased tracer activity” in
Plaintiff’s lower back and “focal intense tracer activity in [her] right midfoot”
following her foot surgery, (id. at 236), and (iii) a January 7, 2013 MRI that
34

revealed a “[m]ild posterior disc bulge at L3-4 result[ing] in mild central canal
stenosis,” (id. at 238). Yet, it is clear that Dr. Lobel’s report of “normal”
examinations was meant to refer only to the portions of Dr. Vibert’s and Dr.
Grant’s office notes in which they recounted their findings upon physically
examining Plaintiff during her office visits, and these findings are accurately
characterized as largely “normal” in nature. (See, e.g., id. at 165 (Dr. Grant
12/12/2012 office note reporting that following the removal of the hardware from
Plaintiff’s right foot, the “incision is clean and dry without erythema or drainage,”
“sensation is normal,” and Plaintiff was experiencing only “minimal swelling”); id.
at 229 (Dr. Vibert 1/17/2013 office note reporting that “[o]n examination,
sensation and motor function are intact”); id. at 232 (Dr. Vibert 12/20/2012 office
note reporting that “[o]n examination, there is pain with range of motion of the
lumbar spine,” but that “[s]ensation and motor function are intact throughout the
bilateral lower extremities”).)9 Plaintiff also complains that Dr. Rubinfeld
“ignored” the record of Plaintiff’s most recent office visit to Dr. Grant on March
9

Along the same lines, Plaintiff chides Dr. Lobel for “fail[ing] to read the [record]
carefully,” (Plaintiff’s Motion, Br. in Support at 23), in light of his reference to a “CT
scan” that “fail[ed] to show complication from surgery,” (Admin. Record at 155), when in
fact Plaintiff underwent a bone scan rather than a CT scan. As Plaintiff herself
recognizes, however, the bone scan in question entailed “low dose CT imaging,”
(Plaintiff’s Motion, Br. in Support at 23 (quoting Admin. Record at 236)), so it can hardly
be said that Dr. Lobel’s reference to a “CT scan” evidences an incomplete or careless
review of the record.
35

27, 2013, (Plaintiff’s Motion, Br. in Support at 24), but Dr. Rubinfeld expressly
addressed this office visit in an August 22, 2013 addendum to his initial report,
explaining that the record of this additional visit did not “change [his] prior
opinion” because “there is nothing about [Dr. Grant’s] foot exam that reflects a
problem with sitting,” (Admin. Record at 147).
Plaintiff next faults Dr. Lobel for an overly dismissive view of her reports of
pain to her treating physicians, and for concluding that these reports of pain did not
warrant additional restrictions or limitations on Plaintiff’s ability to perform
sedentary work activities. Dr. Lobel explained, however, that he reviewed the
record as disclosing only “uncomplicated spine and foot surgery,” as well as
“normal” examinations by Plaintiff’s treating physicians, “no care . . . other than
follow-up visits,” and “no therapy, medications, or referrals.” (Id. at 156.) Against
this backdrop, Dr. Lobel opined that “[t]here may be a greater affective than
nociceptive component of [Plaintiff’s] pain[,] making the pain appear more severe
than the imaging or examinations would typically account for,” and he concluded
that Plaintiff’s “pain does not add to impairment based on diagnosis or severity.”
(Id. at 157.) While Plaintiff might prefer a different reading of this record, and
while she points to evidence that supports this alternative reading — e.g., Dr.
Vibert’s suggestion at a January 17, 2013 office visit that she consider taking
36

Lyrica and Neurontin, and her response that she was reluctant to use these
medications due to their side effects, (see id. at 229) — it cannot be said that Dr.
Lobel’s assessment of Plaintiff’s subjective complaints of pain is unreasonable or
devoid of evidentiary support, such that it would be arbitrary or capricious for
Defendant to rely on Dr. Lobel’s opinion on this matter.
Next, Plaintiff points to the billing records of Drs. Rubinfeld and Lobel —
reflecting that each of these physicians spent only 1.5 hours reviewing Plaintiff’s
file and preparing his initial report — as suggestive of a cursory and superficial
review and analysis of Plaintiff’s medical records and conditions. Plaintiff fails to
explain, however, precisely how much additional time these physicians should
have devoted to their review in order to ensure that it was sufficiently thorough and
complete.10 Nor, more importantly, does Plaintiff identify any specific information
that these physicians overlooked in their purported haste to conclude their

10

Along the same lines, Plaintiff seems to suggest that Dr. Lobel made insufficient
efforts to contact Dr. Vibert during his review of Plaintiff’s medical records. In his
report, however, Dr. Lobel states that he called Dr. Vibert’s office on three separate
occasions, and that he then faxed a set of questions to Dr. Vibert as instructed by someone
in his office. (See id. at 156.) While Plaintiff protests that there is no evidence in the
record to confirm this fax transmission, she fails to suggest any reason to doubt Dr.
Lobel’s representation that his questions were “successfully faxed” to Dr. Vibert’s office
on August 13, 2013, but that no responses were received by the requested due date. (Id.)
More generally, Plaintiff fails to suggest how many more efforts Dr. Lobel should have
made to contact Dr. Vibert.
37

reviews.11 Accordingly, the Court cannot say that the length of time spent by Drs.
Rubinfeld and Lobel in conducting their reviews renders Defendant’s reliance on
their resulting reports arbitrary or capricious.
Finally, and more generally, Plaintiff faults both Dr. Lobel and Dr.
Rubinfeld for their “utter failure . . . to explain why the opinions and findings of
Drs. Vibert and Grant should be rejected.” (Plaintiff’s Motion, Br. in Support at
22-23.) Even a cursory reading of the reports of Drs. Lobel and Rubinfeld belies
this criticism. First and foremost, these consulting physicians cannot fairly be said
to have “rejected” the finding of Drs. Vibert and Grant, where their reports — and
especially the report of Dr. Lobel, (see Admin. Record at 155-56) — thoroughly
recount these findings. Instead, Drs. Rubinfeld and Lobel disagreed with the
conclusions of Drs. Vibert and Grant, at least to the extent that these treating
physicians opined that Plaintiff was incapable of performing the duties of her
primarily sedentary occupation.
More importantly, it is simply inaccurate to say that these consulting
physicians failed to explain the grounds for their disagreements with Drs. Vibert

11

Indeed, both Dr. Rubinfeld and Dr. Lobel observed that the medical records
produced by Plaintiff were fairly limited. (See id. at 144 (Dr. Rubinfeld states that “[t]he
medical documentation related specifically to the right foot is quite limited”); id. at 156
(Dr. Lobel notes the absence of any “care provided other than follow-up visits,” and
observes that there is no record of “therapy, medications, or referrals”).)
38

and Grant as to Plaintiff’s ability to perform sedentary work activities. Dr.
Rubinfeld stated that the normal period of recovery following bunion surgery is 42
days, and that the “quite limited” medical record pertaining to Plaintiff’s foot
condition did not support continued restrictions or limitations following Plaintiff’s
recovery from foot surgery, particularly in the absence of any documented pre- or
post-operative physical examination of Plaintiff’s foot that might have disclosed
the need for such continued restrictions. (See id. at 144-45.)12 Dr. Lobel, in turn,
stated that the medical record revealed “normal imaging of the spine” and
“normal” examinations by Plaintiff’s treating physicians,” and he further noted the
absence of “care provided other than follow-up visits,” such as “therapy,
medications, or referrals.” (Id. at 156-57.)
More generally, it bears emphasis that the reports of Drs. Rubinfeld and
Lobel are wholly consistent with the findings of Plaintiff’s treating physicians prior
to Defendant’s initial decision to deny Plaintiff’s claim for disability benefits. It
was only after this decision that Drs. Vibert and Grant issued revised opinions with
restrictions — such as a need for “frequent periods of lying down,” (id. at 213),
and the “inability to stand or sit for m ore than a very short period of time,” (id. at

12

Dr. Rubinfeld further stated that upon discussing Plaintiff’s condition with Dr.
Grant, “[i]t was agreed that the feet are not the cause of this claimant’s ‘disability.’” (Id.
at 144.)
39

212) — that would preclude Plaintiff from carrying out the essential duties of her
job. To the extent that Drs. Rubinfeld and Lobel can be said to have “rejected” the
findings of Plaintiff’s treating physicians, it was only these latter findings that they
declined to adopt, and the Court has already explained that Defendant was entitled
to disregard these opinions as lacking support in the medical record.
Consequently, the Court finds no basis under the applicable (and deferential)
“arbitrary and capricious” standard of review to overturn Defendant’s denial-ofbenefits decision for undue or improper reliance on the opinions of the consulting
physicians retained to review Plaintiff’s file.
Having resolved Plaintiff’s principal challenges to Defendant’s decision that
Plaintiff was ineligible for long term disability benefits after February 28, 2013,
the Court need only briefly address two additional points raised by Plaintiff in
passing in her motion seeking the reversal of Defendant’s decision. First, Plaintiff
notes that Defendant was authorized under the Policy to arrange for a physical
examination of Plaintiff, but instead opted for a file review by Drs. Rubinfeld and
Lobel. The Sixth Circuit has explained, however, that there is “nothing inherently
objectionable about a file review by a qualified physician in the context of a
benefits determination.” Calvert, 409 F.3d at 296. Rather, the court instead
observed that a plan administrator’s “failure to conduct a physical examination —
40

especially where the right to do so is specifically reserved in the plan — may, in
some cases, raise questions about the thoroughness and accuracy of the benefits
determination.” 409 F.3d at 295. As discussed, Plaintiff has not identified any
such deficiencies in the thoroughness or accuracy of Defendant’s benefits
determination in this case. Neither has she suggested how a physical examination
might have overcome any such shortfall in Defendant’s decisionmaking process.
To the contrary, Plaintiff produced the records of her treating physicians for both
of the conditions that contributed to her claimed disability, and the Court has
already explained that the consulting physicians retained by Defendant adequately
reviewed and accounted for the medical findings in these records in preparing their
reports and opining that Plaintiff remained capable of primarily sedentary work
activities. Thus, Defendant’s failure to pursue a physical examination of Plaintiff
did not render its benefits decision arbitrary or capricious.
Finally, Plaintiff notes that Defendant operated under a conflict of interest as
both the entity with the authority to decide her claim for disability benefits and the
payor of any benefits awarded to her under the Policy, and she points out that this
conflict must be considered as a factor in the Court’s review of Defendant’s
benefits determination. See Schwalm, 626 F.3d at 311. Upon reviewing the
record, however, the Court sees no evidence that Defendant’s conflict of interest
41

improperly factored into its decision that Plaintiff was no longer eligible for long
term disability benefits after February 28, 2013. Rather, the record shows that
Defendant and its consulting physicians sufficiently reviewed and considered all of
the medical evidence in determining that Plaintiff was capable of performing the
essential duties of her occupation, and that Defendant provided a reasoned
explanation of its decision, both initially and on administrative appeal.13
Accordingly, the existence of a conflict of interest does not alter the Court’s
conclusion that Defendant’s denial-of-benefits decision survives scrutiny under the
deferential “arbitrary and capricious” standard of review.14
IV. CONCLUSION
For the reasons set forth above,
NOW, THEREFORE, IT IS HEREBY ORDERED that Plaintiff’s February

13

In her present motion, Plaintiff reiterates her argument from an earlier motion
that she should have been given the opportunity to conduct discovery in order to further
explore the extent to which Defendant’s conflict of interest might have affected its
decision to deny her claim for benefits. The Court thoroughly addressed this issue in a
prior December 24, 2014 opinion and order, and sees no need to revisit the matter here.
14

While Defendant’s decision has been reviewed under the “arbitrary and
capricious” standard, the Court observes in closing that the result here would be no
different if Defendant’s decision were reviewed de novo. Most notably, the medical
findings of Plaintiff’s own treating physicians are wholly consistent with the conclusion
that she was capable by late February of 2013 of performing the essential duties of her
sedentary accounting specialist position, and the revised opinions of these physicians that
Plaintiff was disabled were not supported by new medical findings that would account for
the additional restrictions imposed by these physicians.
42

20, 2015 motion to reverse the decision of the plan administrator (docket # 19) is
DENIED, and that Defendant’s February 20, 2015 motion for entry of judgment
(docket #18) is GRANTED.

s/Gerald E. Rosen
United States District Judge
Dated: February 12, 2016
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on February 12, 2016, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager, [phone]

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