Burmania v. Hartford Life and Accident Insurance Company, The
OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
File No. 1:12-CV-1244
HON. ROBERT HOLMES BELL
In this action under the Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. § 1001 et seq., Plaintiff challenges Defendant’s denial of Plaintiff’s
claim for long-term disability benefits. This matter is currently before the Court on the
parties’ cross-motions for entry of judgment on the administrative record. For the reasons
that follow, the Court will affirm the administrator’s decision to deny benefits.
Plaintiff David Burmania, was employed by YRC Worldwide, Inc. (“YRC”) from
March 1998 to December 2009 as an Outbound Supervisor and Operations Supervisor. (AR
16-5, pp. 26.)1 As an employee of YRC, Plaintiff was eligible for coverage under the YRC
Group Long Term Disability Plan. The Plan was insured by a group disability insurance
References to “AR” are to the Administrative Record. (Dkt. Nos. 16-1 – 16-5, and
17-1 & 17-2.)
policy (the “Policy”) issued by Defendant Hartford Life and Accident Insurance Company2
The Policy provides for both short term disability (“STD”) benefits and for long term
disability (“LTD”) benefits. During the term of STD benefits and for 24 months thereafter,
the ERISA Plan defines “Disability” as the inability to perform one’s “own” occupation.
Thereafter, “disability” is defined as the inability to perform “any occupation.” 3
Plaintiff has a history of atrial fibrillation, hypertension, type 2 diabetes mellitus with
polyneuropathy, depression, nephrolithiasis, and a history of smoking. (AR 17-2, p. 89.) In
July 2009, Plaintiff went on disability leave due to worsening low back and leg pain,
difficulty negotiating steps, and increased falling. (AR 17-2, p. 91.) At that time Plaintiff
was 58 years old. Plaintiff was approved for Short Term Disability (“STD”) benefits from
Defendant is identified on the complaint as “The Hartford.”
The ERISA Plan provides:
Disability or Disabled means You are prevented from performing one or more
of the Essential Duties of
1) Your Occupation during the Elimination Period;
2) Your Occupation, for the 24 month(s) following the Elimination Period, and
as a result Your Current Monthly Earnings are less than 80% of Your Indexed
Pre-disability Earnings; and
3) after that, Any Occupation.
(AR 16-1, p. 32.) “Any Occupation” is defined as “any occupation for which You are
qualified by education, training or experience that has an earning potential of greater than the
lesser of: (1) 50% of Your Indexed Pre-disability Earnings and the benefit Percentage; or
(2) the Maximum Monthly Benefit.” (AR 16-2, p. 32.)
Hartford beginning in July 2009. (AR 17-1, p. 17.) In October 2009, Plaintiff applied for
LTD benefits. (AR 16-2, 82; AR 17-2, pp. 54-56.) He reported that he his job only allowed
him to sit 75% of the time and required going up and down stairs on a regular basis. (AR 162, p. 180). Plaintiff was approved for Long Term Disability (“LTD”) benefits commencing
January 1, 2010, under the “own occupation” definition of disability. (AR 16-4, p. 4; AR 172, pp. 43-46.) Plaintiff was also awarded Social Security disability benefits beginning
January 2010. (AR 17-2, p. 38.)
On January 1, 2012, after Plaintiff had been receiving LTD benefits for two years,
Plaintiff’s own occupation period ended, and the Plan required Plaintiff to satisfy the “any
occupation” definition of disability in order to remain eligible for benefits. (AR 16-3, p. 5.)
Defendant began the review process in July 2011. (AR 16-3, p. 14.) When Defendant
contacted Dr. Murphy, Plaintiff’s treating doctor, regarding Plaintiff’s limitations and
restrictions, on July 11, 2011, Dr. Murphy stated that he could not assess Plaintiff’s
functional capacity and that it should be done by a physical therapist. (AR 16-2, p. 55; AR
16-3, p. 18.) However, on October 14, 2011, Dr. Murphy did return a form provided by
Defendant on which he checked the box indicating that he did not believe Plaintiff was
capable of engaging in full-time sedentary work. (AR 16-5, p.73-74.)
Defendant scheduled Plaintiff for a functional capacity evaluation (“FCE”) with an
occupational therapist on November 8, 2011. (AR 16-5, p. 75.) Plaintiff appeared for his
scheduled FCE, but was unable to be evaluated because his blood pressure was elevated.
(AR 16-5, p. 84.) Because the FCE was cancelled, Defendant referred Plaintiff for an
Independent Medical Examination (“IME”) by Dr. Amanda Huver, a doctor of internal
medicine. (AR 16-5, p. 101.) After reviewing Plaintiff’s medical records, and conducting
a physical examination of Plaintiff on December 5, 2011, Dr. Huver opined that Plaintiff
could sit for one hour at a time with one-minute breaks every hour to stand and stretch in an
eight-hour workday, stand for 10 minutes once in an eight-hour work day, and walk with a
cane one minute at a time up to ten times in an eight-hour work day. (AR 16-5, pp. 10-11.)
A vocational rehabilitation clinical case manager completed an Employability Analysis based
on the functional capabilities identified by Dr. Huver, and concluded that Plaintiff could
perform certain occupations that involved mostly administrative and clerical work that exist
in reasonable numbers in the national economy. (AR 16-4, pp. 88-91.) On December 27,
2011, after reviewing all of these records, Defendant sent Plaintiff a letter denying Plaintiff’s
claim for continued LTD benefits. (AR 16-3, pp. 25-29.) Defendant advised that Plaintiff
did not meet the policy definition of Disability beyond January 1, 2012, because Plaintiff was
not prevented from performing the essential duties of “any occupation.” (Id.)
Plaintiff filed an administrative appeal of the denial of LTD benefits on February 27,
2012. (AR 16-4, pp. 83-87.) Although Plaintiff expressed disagreement with Dr. Huver’s
assessment of his functional capacity, Plaintiff did not submit any additional documentation
in connection with the appeal. (AR 16-4, pp. 16-18.)
In conjunction with the appeal process, Defendant obtained updated records from Dr.
Murphy and new records from Dr. Cronin, a cardiologist, and Dr. Kraker, a pulmonologist.
Defendant submitted the medical records to Tanisha K. Taylor, MD for an independent
medical review. Dr. Taylor is certified not only in internal medicine, but also in occupational
and preventative medicine. (AR 16-4, p. 15.) On April 20, 2012, after reviewing Plaintiff’s
medical records and conducting interviews with each of Plaintiff’s treating physicians, Dr.
Taylor completed a comprehensive report for Defendant. (AR 16-4, pp. 7-15.) Dr. Taylor
determined that the medical records supported the treating physicians’ diagnoses that
Plaintiff suffered from multiple medical conditions including diabetes, hypertension, high
cholesterol, obstructive sleep apnea, moderate chronic obstructive pulmonary disease,
coronary artery disease, and chronic back pain, but disagreed with their assertions that he was
disabled from performing “any occupation.” (AR 16-4, pp. 7-15.) Dr. Taylor concluded that
Plaintiff could sit for up to one hour at a time, for up to six hours, with the ability to
reposition as needed for comfort, and that he could stand or walk for up to 30 minutes at a
time, for up to four hours with an assistive device. (AR 16-4, p. 13.) She found that the
medical evidence did not support any impairment, restrictions, or limitations related to
Plaintiff’s medications. Dr. Taylor concluded that Plaintiff was able to sustain a regular
work schedule of eight hours per day for five days a week within the restrictions and
limitations she outlined. (AR 16-4, p. 13.) By letter dated April 30, 2012, Defendant upheld
the termination of Plaintiff’s LTD benefits. (AR 16-3, pp. 37-42.) Plaintiff then filed this
action pursuant to Section 502(a) of ERISA.
A denial of ERISA benefits is “reviewed under a de novo standard unless the benefit
plan gives the administrator or fiduciary discretionary authority to determine eligibility for
benefits or to construe the terms of the plan.” Frazier v. Life Ins. Co. of N. Am., 725 F.3d
560, 566 (6th Cir. 2013) (quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115
(1989)). “If the administrator or fiduciary can show it has such discretionary authority, a
benefits denial is reviewed under the arbitrary and capricious standard.” Id. (citing Haus v.
Bechtel Jacobs Co., 491 F.3d 557, 561-62 (6th Cir. 2007))
The ERISA plan at issue in this case gives the plan administrator discretion in
interpreting the terms of the plan and in making benefits determinations. (AR 16-1, p. 43
(“The Plan has granted the Insurance company full discretion and authority to determine
eligibility for benefits and to construe and interpret tall terms and provisions of the Policy.”)).
Plaintiff conceded in the joint status report that the standard of review is arbitrary and
capricious. (Dkt. No. 14, Jt. Status Rpt. ¶ 14.) However, notwithstanding the discretionary
language of the Plan and Plaintiff’s prior concession that the case would be decided under
the arbitrary and capricious standard of review, Plaintiff now contends that the de novo
standard of review applies because the policy was issued after the Michigan Office of
Financial and Insurance Services (“OFIS”) promulgated rules prohibiting an insurer from
issuing any policy that contains a discretionary clause. Mich. Admin. Code Rules 500.2201-
500.2202.4 Plaintiff contends that because the insurance contract was issued after the rules
took effect, the discretionary language in the policy is void and of no effect, and the Court
should accordingly apply the de novo standard of review.
In American Council of Life Insurers v. Ross, 558 F.3d 600 (6th Cir. 2009), the Sixth
Circuit held that ERISA does not preempt state administrative rules that prohibit
discretionary clauses, and that ERISA plans in Michigan are accordingly subject to
Michigan’s rules regarding discretionary clauses. Id. at 609. “Therefore, any ERISA plans
issued or amended after July 1, 2007 require ‘de novo review of denials of ERISA benefits
within Michigan.’” Rice-Peterson v. Unum Life Ins. Co. of Am., No. 11-14565, 2013 WL
1250457, at *8 ( E.D. Mich. Mar. 26, 2013) (quoting Gray v. Mut. of Omaha Life Ins. Co.,
The Rules provide in pertinent part:
(b) On and after the first day of the first month following the effective date of
these rules, an insurer shall not issue, advertise, or deliver to any person in this
state a policy, contract, rider, indorsement, certificate, or similar contract
document that contains a discretionary clause. This does not apply to a contract
document in use before that date, but does apply to any such document revised
in any respect on or after that date.
(c) On and after the first day of the first month following the effective date of
these rules, 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. This does not apply to contract documents
in use before that date, but does apply to any such document revised in any
respect on or after that date.
Mich. Admin. Code Rule 500.2202. The rules took effect June 1, 2007. Am. Council of Life
Insurers v. Ross, 558 F.3d 600, 603 (6th Cir. 2009)
No. 11-15016, 2012 WL 2995469, at *3 (E.D. Mich. July 23, 2012)).
Defendant contends that the Michigan rules prohibiting discretionary clauses do not
apply in this case because the Policy was not issued or delivered in Michigan and is not a
“transaction of insurance” that is subject to the Michigan Insurance Code. See Mich. Comp.
Laws § 500.402b(d) (excluding transactions of group insurance in which a master policy was
lawfully issued to an employer located in another state for the benefit of employees residing
in this state from the requirements of the Michigan insurance code).
The Court agrees. By their terms, the rules prohibiting discretionary clauses only
apply to policies issued or delivered to “any person in this state.” See Mich. Admin. Code
Rule 500.2202(b), (c). The Disability Policy at issue in this case was not issued to Plaintiff,
but to YRC Worldwide, Inc., a corporation with its principal place of business in Kansas.
(AR 16-1, pp. 41-42.) The contract was delivered in Kansas (AR 16-1, p.1), and covers
YRC’s employees throughout the nation, not only in Michigan (AR 16-1, p. 20). See
Foorman v. Liberty Life Assur. Co. of Boston, 1:12-CV-927, 2013 WL 1874738, at *3 (W.D.
Mich. May 3, 2013) (Neff, J.) (declining to apply Michigan law to a group insurance contract
with Comcast, an employer located in Pennsylvania). Because the Policy was not issued or
delivered in Michigan and is not governed by Michigan law, the Michigan administrative
rules prohibiting discretionary clauses do not apply.
Because the Policy contains the requisite grant of discretionary authority to the plan
administrator, the plan administrator’s decision to deny benefits will be reviewed under the
arbitrary and capricious standard. The “highly deferential” arbitrary and capricious standard
is the “least demanding” standard of judicial review of administrative action. Judge v.
Metro. Life Ins. Co., 710 F.3d 651, 657-58 (6th Cir. 2013). Under this standard, the court
will uphold a benefits determination if it is “rational in light of the plan’s provisions.” Id.
(quoting Jones v. Metro. Life Ins. Co., 385 F.3d 654, 661 (6th Cir. 2004)). Application of
this standard, however, does not require the court merely to rubber stamp the administrator’s
decision. Jones, 385 F.3d at 660-61. The administrator’s decision will be upheld only “‘if
it is the result of a deliberate, principled reasoning process and if it is supported by
substantial evidence.’” Helfman v. GE Grp. Life Assur. Co., 573 F.3d 383, 392 (6th Cir.
2009) (quoting Bennett v. Kemper Nat’l Servs., Inc., 514 F.3d 547, 552 (6th Cir. 2008)).
Plaintiff contends that the denial of his claim for long term disability benefits was
arbitrary and capricious because Defendant did not have any rational basis for ignoring the
opinions of his treating physicians, Dr. Forsch, Dr. Murphy, and Dr. Kraker, in favor of the
flawed opinions of non-treating physicians, Dr. Huver and Dr. Taylor.
There is no dispute that Plaintiff suffers from multiple objectively verified medical
conditions including radiculopathy, diabetic polyneuropathy, COPD, and cardiac impairment.
Neither is there any dispute that his conditions cause him pain and limit his ability to walk,
stand, squat, and bend. The only issue presented in this appeal is whether Defendant’s
conclusion that those medical problems do not prevent Plaintiff from performing sedentary
work was arbitrary and capricious.
Under the Policy, after the first twenty four months on LTD, Plaintiff was not
“disabled” if he could perform the essential duties of “any occupation” for which he was
reasonably qualified. Plaintiff bore the burden of presenting evidence that he was disabled
under the “any occupation” definition of disability. Plaintiff presented the opinions of three
of his treating physicians regarding his ability to work.
In July 2009, Dr. Forsch reported to Defendant on the Attending Physician’s
Statement of Functionality form that Plaintiff could sit for a half hour at a time for up to six
hours a day, stand for a half hour at a time for up to four hours a day, and walk for a tenth
of an hour at a time for up to one hour a day. (AR 17-2, pp. 102-03.) On October 8, Dr.
Forsch revised his assessment of Plaintiff’s functional capacity, indicating that Plaintiff could
sit for a half hour at a time for up to six hours a day, stand for a half hour at a time for only
1 hour a day, and that he could not walk, bend, or lift. (AR 17-2, p. 67.) Dr. Forsch gave
no explanation on the form for the change in Plaintiff’s functionality with respect to standing
and walking. Neither do his notes suggest a basis for the change. Dr. Forsch indicated in his
notes from Plaintiff’s September 3, 2009, visit that Plaintiff had “some obvious pain on
movement,” but that he was “in no acute distress,” and his “back and leg pain are unchanged
since his last visit.” (AR 17-2, p. 19.) He indicated that Plaintiff had reported several recent
incidents when his legs gave way unexpectedly leading to falls, but that he thought the falls
could be avoided if Plaintiff used his cane more consistently. (Id.) Dr. Forsch indicated in
his notes from Plaintiff’s following visit on October 8, 2009, that Plaintiff had “no new
complaints.” (AR 17-2, p. 21.) He did note, however, that Plaintiff was working on
obtaining permanent disability benefits from Defendant and had presented a form for Dr.
Forsch to complete and return to Defendant. (Id.) In December 2009, Dr. Forsch advised
Defendant that Plaintiff’s back condition impaired Plaintiff’s ability to work, that it was
expected to last his lifetime, that he was unable to return to work, and that his back problem
would not resolve to allow him to walk. (AR 17-2, p. 48.) At the time Dr. Forsch certified
that Plaintiff was unable to return to work, Plaintiff’s disability status was being evaluated
under the “own occupation” definition of disability. Defendant did not disagree with Dr.
Forsch’s assessment that Plaintiff was unable to return to his own occupation, and provided
Plaintiff with two years of long term disability benefits under the “own occupation”
definition of disability.
In 2010, Plaintiff transferred his primary care from Dr. Forsch to Dr. Murphy. On
January 27, 2011, Dr Murphy advised Defendant that Plaintiff remained disabled and could
not return to work. Dr. Murphy opined that in the general workplace environment Plaintiff
was capable of sitting for 30 minutes at a time for 4 to 8 hours day, but that Plaintiff could
not stand or walk at all. (AR 16-5, p. 39.) On July 11, 2011, in response to an inquiry from
Defendant, Dr. Murphy advised that he could not complete a functional capacity examination
of Plaintiff. It would have to be done by a physical therapist, and Plaintiff was not seeing
one. (AR 16-2, p. 55.) On October 13, 2011, Dr. Murphy indicated in his notes that he
discussed the Hartford disability form, that Plaintiff “does not believe he is capable of doing
the performance so stated in that document,” and that he had “no reason to believe that
patient is being dishonest with me.” (AR 16-4, p. 53.) The following day, Dr. Murphy
checked “no” in response to Defendant’s inquiry as to whether Plaintiff was capable of
engaging in sedentary type activity which involved sitting most of the time with occasional
walking or standing for brief periods during an 8 hour day. (AR 16-5, pp. 72-73.) Dr.
Murphy did not provide any explanation for his response. (Id.)
On January 27, 2012, Dr. Murphy indicated on a functional capacity evaluation form
that Plaintiff can sit for 30 minutes at a time for a total of four hours, that he had no noted
restrictions regarding lifting up to ten pounds, that he is not to bend at the waist due to his
back pain, that he is not to kneel or crouch, that he can drive up to 45 minutes, that he is
never to reach above his shoulder, that he can reach at the waist/desk level frequently, that
he can reach below the waist/desk level occasionally, and that he can occasionally finger and
handle. (AR 16-4, p. 9.) However, when Dr. Taylor spoke with Dr. Murphy on April 5,
2012, Dr. Murphy stated that he did “not think that he is necessarily qualified to assert the
claimant’s capabilities in terms of how many hours he could sit, stand or walk,” and that a
“functional capacity evaluation may help to clarify the claimant’s abilities.” (AR 16-4, p.
11.) Dr. Murphy felt that his role was more to keep Plaintiff healthy. (Id.)
Dr. Huver and Dr. Taylor concluded, in contrast to Plaintiff’s treating physicians, that
Plaintiff was capable of sedentary work. Defendant relied on the opinions of Dr. Huver and
Dr. Taylor when it terminated Plaintiff’s benefits. Plaintiff contends that the Court should
view the opinions of Dr. Huver and Dr. Taylor with some skepticism because they were paid
by Defendant to review Plaintiff’s claim for disability benefits.
Under ERISA, there is no deference accorded to treating physicians. Evans v. UNUM
Provident Corp., 434 F.3d 866, 877 (6th Cir. 2006). Although a plan may not summarily
reject the opinions of a treating physician, it may adopt an alternative opinion as long as it
gives reasons for doing so. Elliott v. Metro. Life Ins. co., 473 F.3d 613, 620 (6th Cir. 2006)
Courts have recognized that when a Plan Administrator’s explanation is based on the work
of a doctor in its employ, the court should view the explanation with some skepticism. Moon
v. Unum Provident Corp., 405 F.3d 373, 381-82 (6th Cir. 2005). Even if the reviewing
doctors are independent, if they are repeatedly retained by the benefit plan, they may have
an incentive to make a finding of “not disabled” in order to preserve their consulting
arrangements. Black & Decker Disability Plan v. Nord, 538 U.S. 822, 832 (2003). Because
of the possibility of a conflict, this Court may consider whether an independent physician
retained by Defendant had an incentive to make a finding of “not disabled” as a factor in
determining whether Defendant acted arbitrarily and capriciously in deciding to credit the
opinion of its paid, consulting physician. Kalish v. Liberty Mut., 419 F.3d 502, 508 (6th Cir.
In addition, where, as here, “a plan authorizes an administrator ‘both to decide
whether an employee is eligible for benefits and to pay those benefits,’ it creates ‘an apparent
conflict of interest.’” Cooper v. Life Ins. Co. of N. Am., 486 F.3d 157, 165 (6th Cir. 2007)
(quoting Glenn v. MetLife, 461 F.3d 660, 666 (6th Cir. 2006)). In light of the potential
conflict, the reviewing court should look “to see if there is evidence that the conflict in any
way influenced the plan administrator’s decision.” Evans v. UnumProvident Corp., 434 F.3d
866, 876 (6th Cir. 2006).
An alleged conflict of interest is a relevant factor that the court must take into
consideration in determining whether Defendant’s decision was arbitrary and capricious.
Cooper, 486 F.3d at 165. However, “Sixth Circuit caselaw requires a plaintiff not only to
show the purported existence of a conflict of interest, but also to provide ‘significant
evidence’ that the conflict actually affected or motivated the decision at issue.” Id.
Dr. Huver and Dr. Taylor are independent physician consultants and are not in-house
reviewing physicians. The only evidence Plaintiff has produced to show their bias is that
they were employed by Defendant and gave opinions that benefitted Defendant. This is not
a sufficient basis for suggesting that their professional opinions were motivated by a conflict
of interest. There is no evidence that Dr. Huver or Dr. Taylor was repeatedly hired by
Defendant, that either one of them gave opinions that were not medically supportable, or that
Defendant attempted to tamper with or inappropriately influence their evaluations. The
Court finds nothing in the record that would lead it to conclude that Defendant acted
arbitrarily and capriciously in relying upon Dr. Huver and Dr. Taylor’s opinions.
Even if the reviewing doctors did not have a conflict of interest, Plaintiff contends
Defendant’s reliance on Dr. Huver’s opinion regarding his functional capacity was arbitrary
and capricious because Dr. Huver was a doctor of internal medicine, not an occupational
therapist, orthopedist, cardiologist, or pulmonologist.
Defendant attempted to have Plaintiff undergo a functional capacity examination by
an occupational therapist (AR 16-5, p. 100), but was unable to do so because of Plaintiff’s
elevated blood pressure on that date.5 It was only when Plaintiff was unable to complete the
FCE that Defendant referred Plaintiff to Dr. Huver. Defendant’s reliance on Dr. Huver was
not arbitrary and capricious because she shared the same specialty as Dr. Murphy, the
primary care physician Plaintiff was relying on to establish that he was unable to perform a
Plaintiff also contends that Dr. Huver’s opinion was flawed because she determined
that his respiratory function was “normal” and that his cardiovascular function was
“essentially normal.” (AR 16-4, pp. 19-22.) Plaintiff faults Dr. Huver for “second-guessing”
the findings of his specialist who determined that he had complete blockage of one artery and
60% blockage of the other, and COPD. (Dkt. No. 19, Pl.’s Br. 4, 15 (citing AR 16-4, p. 34,
Dr. Murphy’s Progress Notes of 02/29/12).)
Contrary to Plaintiff’s assertions, Dr. Huver did not ignore or second-guess Plaintiff’s
treating specialists. The Progress Notes that Plaintiff relies on concern a February 29, 2012,
Plaintiff’s blood pressure was not always elevated. Dr. Murphy noted during
subsequent office visits that Plaintiff’s blood pressure was in normal ranges and well
controlled (AR 16-4, pp. 34, 35, 45; AR 16-5, p. 10.)
appointment that had not yet occurred when Dr. Huver made her findings. At the time Dr.
Huver met with Plaintiff and made her findings, Plaintiff had not yet been referred to or
evaluated by either Dr. Kraker, the pulmonolgist, or by Dr. Cronin, the cardiologist. Plaintiff
did not see these specialists until he began the process of appealing Defendant’s denial of
benefits. Moreover, Dr. Huver’s findings are consistent Plaintiff’s January 25, 2012,
echocardiogram which indicated that Plaintiff’s ejection fraction in his left and right
ventricular systolic functions were within normal limits. (AR 16-4, p. 80.) They are also
consistent with Dr. Murphy’s finding on January 19, 2012, that Plaintiff’s lungs were clear
to auscultation bilaterally, with good air exchange. (AR 16-4, p. 35.)
Finally, Plaintiff contends that Dr. Huver’s opinion is flawed because she made
unsupported assumptions that he could sit for an hour at a time. Dr. Huver noted in her
report that although Plaintiff claimed to be able to sit only 20 to 30 minutes at a time, he
spent 45 minutes sitting in the waiting room filling out forms, he sat for one-and-a-half hours
in the examination room, he had driven himself to the appointment – an hour trip – without
stopping, and he reported that he had recently been able to watch a two-hour football game.
(AR 16-5, pp. 10-11.) Plaintiff contends that Dr. Huver simply assumed that he had been
sitting the entire time during each of these activities when in fact she did not know how often
he got up while in the waiting room and while watching the football game. He also notes that
Dr. Huver failed to report that she did not require him to sit for the entire duration of his
Dr. Huver’s conclusion that Plaintiff could sit for an hour at a time was based on a
variety of reports and observations. Her conclusion was supported by greater detail and
explanation than the contrary opinion of Dr. Murphy. Under these circumstances, the Court
cannot say that Defendant’s reliance on Dr. Huver’s findings was arbitrary and capricious
Contrary to Plaintiff’s assertions, Dr. Taylor did not simply rubber stamp Dr. Huver’s
opinion. Dr. Taylor obtained additional reports from Plaintiff’s treating physicians and
personally contacted them to discuss Plaintiff’s condition. Whereas Dr. Huver concluded
that Plaintiff could sit for up to eight hours with a one-minute break every hour, Dr. Taylor
concluded that Plaintiff had the ability to sit for one hour at a time for up to six hours in an
eight-hour day (AR 16-4, p. 13.) Contrary to Plaintiff’s assertions, Dr. Taylor did not ignore
or second-guess Plaintiff’s cardiac and pulmonary specialists. Plaintiff’s pulmonologist, Dr.
Kraker, determined in February 2012, that Plaintiff suffered moderate chronic obstructive
pulmonary disease (“COPD”), and suspected sleep apnea. (AR 16-4, pp. 65-70.) However,
he advised Dr. Taylor that “from a strictly pulmonary standpoint, the claimant is probably not
impaired, and could work purely at the sedentary duty level.” He cautioned, however, that
“with the claimant’s multiple health issues, including the cardiac issues, he doubted that the
claimant could return to work without first being stabilized.” (AR 16-4, pp. 11-12.)
Dr. Taylor checked with Dr. Cronin, Plaintiff’s cardiologist, but Dr. Cronin’s report
did not support a finding that Plaintiff was prevented from sedentary employment. Dr.
Cronin advised that she had only seen Plaintiff on one occasion.
catheterization demonstrated an occlusion of the right coronary artery, but his ejection
fraction was normal. Dr. Cronin advised that she had not seen Plaintiff in follow-up as was
recommended. (AR 16-4, p. 11.)
Finally, Plaintiff contends that Defendant’s denial of long term disability benefits was
arbitrary and capricious because it was contrary to the Social Security Administration’s
determination of disability.
An SSA determination of disability is not binding, but some weight is to be given to
an SSA determination that an applicant is disabled and unable to work. Tracy v. Pharmacia
& Upjohn Absence Payment Plan, 195 F. App’x 511, 518 (6th Cir. 2006).
T]he SSA’s disability determination does not, standing alone, require the
conclusion that [the insurer’s] denial of benefits was arbitrary and capricious.
The SSA determination to award benefits . . . is, instead, just one factor the
Court should consider, in the context of the record as a whole, in determining
whether [the insurer’s] contrary decision was arbitrary and capricious
Calvert v. Firstar Fin., Inc., 409 F.3d 286, 295 (6th Cir. 2005). As noted by the Supreme
Court, there are critical differences between the Social Security disability program and
ERISA benefit plans. Black & Decker Disability Plan v. Nord, 538 U.S. 822, 832 (2003).
For example, while the SSA accords “special deference” to the opinions of treating
physicians and measures the claimant’s condition against a uniform set of federal criteria, the
same is not true of ERISA plans. Id. at 833. Moreover, the burden of proof differs. In an
SSA proceeding, the burden is on the government to show that the applicant can work,
whereas under the Policy the applicant bears the burden of proving that he cannot work.
Tracy, 195 F. App’x at 518; see also AR 16-1, pp. 28-29 (requiring applicant to provide
proof of loss). Finally, as Defendant noted in its letter upholding its decision on appeal, in
contrast to Social Security, the Policy does not treat advancing age as a limiting factor in the
definition of Disability and does consider the transferability of one’s skills to other
occupations. (AR 16-3, p. 41.)
Defendant’s decision to credit the opinions of Dr. Huver and Dr. Taylor over Dr.
Murphy regarding Plaintiff’s functional capacity is not unreasonable in light of Dr. Murphy’s
admitted reluctance to assess Plaintiff’s functional capacity and his lack of any objective
evidence or explanation supporting his findings regarding Plaintiff’s ability to sit, stand or
The Court is satisfied that Defendant provided a reasoned explanation for its
termination of long term disability benefits and that its determination that Plaintiff was not
prevented from performing one or more of the essential duties of “any occupation” was not
arbitrary or capricious. Accordingly, Defendant’s decision to terminate Plaintiff’s long term
disability benefits will be affirmed.
An order and judgment consistent with this opinion will be entered.
Dated: December 12, 2013
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?