Turner v. Hartford Life & Accident Insurance Company

Filing 45

MEMORANDUM OPINION AND ORDER denying as moot 32 Motion to Strike ; granting 24 Motion for Summary Judgment; denying 27 Motion for Summary Judgment. Signed by District Judge Debra M. Brown on 3/10/17. (tab)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
TIMOTHY L. TURNER

PLAINTIFF

V.

NO. 4:15-CV-81-DMB-JMV

HARTFORD LIFE & ACCIDENT
INSURANCE COMPANY

DEFENDANT

MEMORANDUM OPINION AND ORDER
Hartford Life & Accident Insurance Company terminated Timothy L. Turner’s long
term disability benefits based on its determination that Turner was able to perform a job with
comparable pay commiserate with his functional capabilities. Following an unsuccessful appeal
to Hartford, Turner initiated this suit against Hartford, alleging a wrongful denial of benefits
under the Employee Retirement Income Security Act. Turner and Hartford have filed crossmotions for summary judgment, both of which, at the parties’ request, this Court interprets as
motions for judgment on the record. Because the Court finds Hartford’s termination of Turner’s
benefits supported by substantial evidence and not arbitrary and capricious, the Court may not
overturn Hartford’s decision to terminate Turner’s disability benefits.
I
Procedural History
On June 26, 2015, Timothy L. Turner filed a complaint in this Court against Hartford
Life & Accident Insurance Company (“Hartford”), asserting three claims under the Employee
Retirement Income Security Act (“ERISA”): (1) wrongful denial of benefits; (2) breach of
fiduciary duty; and (3) intentional interference with ERISA rights. Doc. #1. On July 28, 2015,
Turner amended his complaint as of right. Doc. #6. The amended complaint asserts only a
single ERISA claim – wrongful denial of benefits. Id.

On April 12, 2016, Hartford moved for summary judgment on Turner’s remaining claim.
Doc. #24. The same day, Turner filed a cross-motion for summary judgment. Doc. #27. On
April 22, 2016, Turner filed an unopposed motion seeking an extension of the deadline to
respond to Hartford’s summary judgment motion. Doc. #29.
On April 26, 2016, Hartford responded in opposition to Turner’s summary judgment
motion and filed a motion to strike certain exhibits attached to it. Doc. #30; Doc. #32. Two days
later, this Court denied Turner’s motion for an extension.1 Doc. #33. Turner responded in
opposition to Hartford’s summary judgment motion on May 2, 2016,2 Doc. #35, but did not
respond to the motion to strike. Hartford replied in support of its summary judgment motion on
May 9, 2016. Doc. #39.
On August 11, 2016, the parties, after consultation with United States Magistrate Judge
Jane M. Virden, submitted to the Court a proposed pretrial order which waives the right to trial
and asks the Court to convert the cross-motions for summary judgment to motions for judgment
on the record. See Doc. #43. The Court approved and entered the pretrial order on March 10,
2017. Doc. #44.
II
Motions for Judgment on the Record
The parties have asked the Court to treat the cross-motions for summary judgment as
motions for judgment on the administrative record.

1

A “motion for judgment on the

The Court found Turner failed to meet the standard of Federal Rule of Civil Procedure 6(b).

2

Turner filed his response three days after the deadline, without at any point renewing his motion for an extension.
Nevertheless, insofar as Hartford replied to the brief, and because the submission of this case on the motion papers
equates to a bench trial, the Court will, in the interests of deciding the issues on their merits, consider the untimely
brief. See Miller v. Am. Int’l Grp., Inc., No. 3:04-cv-1417, 2006 WL 740936, at *1 n.1 (N.D. Tex. Mar. 14, 2006)
(“While Plaintiff’s Brief is untimely, the Court will consider it in the interests of deciding the Motions on the merits.
Defendants filed a Reply on January 3, 2006.”); see also S. Snow Mfg. Co., Inc. v. SnoWizard Holdings, Inc., 921
F.Supp.2d 548, 563 (E.D. La. 2013) (considering untimely motion for summary judgment because “a minor delay
should not be dispositive of the motion, especially where the Court will ... have to decide the issues presented on
virtually the same record as that presented here”).
2

administrative record” is “a motion that does not appear to be authorized in the Federal Rules of
Civil Procedure.” Muller v. First Unum Life Ins. Co., 341 F.3d 119, 124 (2d Cir. 2003) (internal
quotation marks omitted). However, “it may be appropriate for the district court to treat such a
motion as requesting essentially a bench trial on the papers with the District Court acting as the
finder of fact. In that scenario, the district court may make factual findings, but it must be clear
that the parties consent to a bench trial on the parties’ submissions.” O’Hara v. Nat’l Union Fire
Ins. Co. of Pitt., 642 F.3d 110, 116 (2d Cir. 2011) (internal quotation marks and citations
omitted).
It is clear the parties here have consented to a bench trial on their submissions based on
the pretrial order submitted. Accordingly, the Court will treat the parties’ motions for summary
judgment as motions for judgment on the record and will decide them as the finder of fact.
III
Factual Background
A. The Group Long-Term Disability Policy
Turner is an approximately 48-year old male who was employed in the security and
alarms business from 1994 until 2011. AR-308, 743.3 During the time period relevant to this
suit, Tyco International Management Company maintained a Group Long-Term Disability
Policy (“Policy”) through Hartford applicable to Turner. Id. at 001.
Under the terms of the Policy, Hartford had “full discretion and authority to make an
initial determination and interpretation of the terms and provisions of The Policy.” Id. at 030.
Of relevance here, the Policy includes the following provisions:
Disability Benefit: What are my Disability Benefits under the Policy?
3

Citations to “AR” refer to the administrative record, followed by a page number, such that “AR-001” refers to the
first page of the administrative record. The page numbers referenced are the bates numbers printed on each page
preceded by the prefix “Hartford/Turner.” The entirety of the administrative record was filed in two parts as
exhibits to Hartford’s summary judgment motion. See Doc. #24-2; Doc. #24-3.
3

We will pay You a Monthly Benefit if You:
1) become Disabled while insured under The Policy;
2) are Disabled throughout the Elimination Period;
3) remain Disabled beyond the Elimination Period; and
4) submit Proof of Loss to Us.
***
Termination of Payment: When will my benefit payments end?
Benefit payments will stop on the earliest of:
1) the date You are no longer Disabled;
2) the date You fail to furnish Proof of Loss;
3) the date You are no longer under the Regular Care of a Physician;
***
Any Occupation means any occupation for which You are qualified by education,
training or experience, and that has an earnings potential greater than the lesser of:
1) the product of Your Indexed Pre-disability Earnings and the Benefit Percentage; or
2) the Maximum Monthly Benefit.
***
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 Predisability Earnings; and
3) after that, Any Occupation.
***
Essential Duty means a duty that:
1) is substantial, not incidental;
2) is fundamental or inherent to the occupation; and
3) cannot be reasonably omitted or changed.
Your ability to work the number of hours in Your regularly scheduled work week
is an Essential Duty.
***
Your Occupation means Your Occupation as it is recognized in the general
workplace. Your Occupation does not mean the specific job You are performing
for a specific employer or at a specific location.

4

Id. at 022, 024, 030–031, 034.
B. Turner’s Initial Health Problems
In May 2005, Turner underwent cervical spine surgery. Id. at 360. Following surgery,
Turner developed moderate paresis of the right true vocal cord. Id. On June 9, 2006, Turner was
seen by John Schweinfurth, M.D., for a follow-up of the right true vocal cord paresis. Id.
Schweinfurth observed that the vocal cord paresis had resolved but noted that Turner had
“problems with inflammation of both vocal cords.” Id. at 361. At a follow-up appointment three
weeks later, Schweinfurth diagnosed Turner with dysphonia, “likely secondary to right vocal
strain and synkinesis.” Id. at 362. Approximately one month later, on July 25, 2006, Turner
returned to Schweinfurth. Id. at 365. Schweinfurth found that Turner “seems to be doing well at
this point and progressing well. We will have him follow up in our clinic on as needed basis.”
Id.
On February 22, 2008, Turner was evaluated by Rahul Vohra, MD, based on “complaints
of back pain and intermittent bilateral leg tingling.”

Id. at 645–46.

Turner saw Vohra

throughout 2008 and, sometime between October 31, 2008, and January 15, 2009, underwent
surgery and decompression on his back. Id. at 638–646. On January 15, 2009, Vohra observed
that Turner “is doing significantly better from a radicular perspective status post lumbar
decompression.” Id. at 638. Throughout 2009 and into 2010, Turner returned to Vohra with a
variety of complaints, including neck pain, back pain, leg pain, and depression. Id. at 631–38.
C. Long Term Disability Approval
In 2010, Turner held the position of a Rep-Core Account Executive with Tyco. AR- 861.
On April 6, 2010, Turner presented to Vohra with “increasing neck and back pain.” Id. at 631.
Turner reported to Vohra that “[h]e drives a great deal at work and … has had significant

5

difficulty with this.” Id. Turner told Vohra that “[h]e stopped working about two weeks ago.”
Id.
On June 18, 2010, Turner returned to Vohra complaining “of neck pain as well as low
back pain.” Id. at 865. A month later, on July 16, 2010, he presented to Vohra with “axial
cervical pain, lumbar pain, and rare tingling in both feet.”

Id. at 863.

Vohra observed

diminished lumbar range and reflexes, and completed a “Release to Return to Work Status: Short
Term Disability” form stating that Turner was not released to return to full duty or light duty. Id.
at 864. Sometime later, Turner began receiving short term disability benefits. Id. at 242.
In August 2010, Turner contacted Hartford about obtaining long term disability (“LTD”)
benefits. Id. at 150. However, on October 4, 2010, Turner informed Hartford that he had been
cleared to return to work with no formal restrictions or limitations. Id. at 148. The same day,
Hartford denied Turner’s application for long term disability. Id. at 236–38.
On October 7, 2010, Turner reopened his long term disability claim. Id. at 141. Hartford
approved the claim on December 9, 2010. Id. at 232–34. The approval lists a disability date of
April 7, 2010, and an effective date of October 30, 2010. Id. at 235.
D. First Functional Evaluation and Award of Social Security Benefits
On August 5, 2011, Vohra, at Hartford’s request, completed an “Attending Physician’s
Statement of Functionality” (“APS”) for Turner. AR-718. In the APS, Vohra noted that Turner:
(1) could “rarely” lift/carry up to ten pounds; (2) could never lift or carry anything heavier than
ten pounds; (3) could never bend at the waist, kneel, or crouch; (4) could occasionally drive; (5)
could never reach above the shoulder or below the waist; and (6) could occasionally (defined as
1–33%) finger/handle.

Id. at 717.

The APS reported that Turner did not suffer from a

psychiatric/cognitive impairment. Id. at 716.

6

On November 10, 2011, Turner attended a follow-up appointment with Vohra, during
which Vohra observed that Turner “continues to have moderate cervical paraspinal spasm with
diminished cervical range of motion.” Id. at 586. Vohra noted that Turner reported increasing
pain with the change in weather but an improvement in his depression symptoms, which he
believed to be due to counseling.

Id.

Turner informed Vohra that he was attending his

children’s ballgames and was “going for a walk everyday.” Id.
On January 31, 2012, the Social Security Administration found Turner to be entitled to
monthly disability benefits based on a disability which began April 3, 2010. Id. at 677.
On March 1, 2012, Turner returned to Vohra. Id. at 585. Turner reported attending
counseling and taking hydrocodone and Zoloft. Id. Vohra noted that Turner’s “functional level
is very good” but that “occasionally, … [Turner] will have to significantly limit his activities
secondary to neck pain.” Id. Turner informed Vohra that “[d]riving still consistently causes
significant pain.” Id. Vohra concluded that Turner was “stable” and was “doing well from the
standpoint of his depression with the Zoloft and his pain is well controlled with the
hydrocodone.” Id.
On March 12, 2012, Vohra submitted to Hartford an “Attending Physician’s Statement of
Continued Disability.” Id. at 662–63. The statement contains the same restrictions set forth in
Vohra’s August 5, 2011, assessment, including the conclusion that Turner does not suffer from a
cognitive or psychiatric impairment. Id. On March 27, 2012, Hartford wrote to Vohra to ask
him to “explain the medical reasoning that [Turner] is only able to reach occasionally at
waist/desk level and do occasional fingering and handling.” Id. at 659. Vohra responded,
“[Turner] has had a 2 level fusion & anterior ... plate lumbar discectomy.” Id.

7

On March 21, 2012, Turner, who was complaining of left knee pain, was examined by
Michael G. Holman, MD. Id. at 566–68. Holman found that Turner had “[f]ull range of motion
bilaterally but ... limited flexion,” and noted that the symptoms were “highly suggestive of
meniscus tear or a loose body in the knee.” Id. at 567. Holman prescribed an NSAID and use of
a brace. Id.
E. May 3, 2012, Letter and Subsequent Review
On May 3, 2012, Hartford sent Turner a letter stating, in relevant part:
Your LTD benefits became effective on 10/30/2010. Effective 10/30/2012 you
must be considered Disabled as outlined in the second portion of the above
definition in order to continue to be eligible for LTD benefits.
Please be advised that this office has initiated a review to determine if you will
qualify for benefits on and after 10/30/2012. When we have completed our
review, we will notify you regarding our determination.
AR-217.
Later that month, on May 30, 2012, Turner underwent an MRI on his right knee. Id. at
570. The MRI revealed a “[t]ear of the posterior horn of the medial minisicus” and “[s]ignificant
degenerative changes of the patellofemoral joint with joint space narrowing, cartilage loss, and
osteophyte formation.” Id.
On July 20, 2012, Turner presented to Holman with “[p]ainful triggering in the right
thumb,” which Holman attributed to tendonitis. Id. at 557. Holman performed an injection on
Turner’s thumb and made an appointment for Turner to undergo surgery. Id. at 558.
On September 28, 2012, Hartford sent Turner a letter stating, in relevant part, that he was
determined to have met “the policy definition of Disability and that you will continue to qualify
for benefits on and after 10/30/2012.” Id. at 210.

8

F. 2013 Voice Problems
On January 18, 2013, Turner returned to Schweinfurth complaining of “persistent
hoarseness.” AR-534.

Schweinfurth performed a flexible laryngoscopy and observed that

Turner’s “left true cord was severely paretic although it did have some movement. Glottic
closure was incomplete. The immediate trachea and subglottis were widely patent. There were
no masses or suspicious lesions seen.” Id. at 535. The notes from the visit reflect an assessment
of “iatrogenic left TVC paresis.” Id. Schweinfurth developed a plan for Turner to receive an
“injection to improve voice” and noted that Turner, who was a smoker, would “need speech
therapy postop for improvement in voice overall.” Id. at 534–35.
On January 29, 2013, Turner returned to Vohra complaining of “neck and back pain.” Id.
at 548. Vohra noted that Turner, who had recently discontinued his hydrocodone, “continues to
have cervical and lumbar paraspinal spasm. He has fairly good cervical range. Lumber range is
diminished 25 percent in lateral flexion and extension.” Id. Vohra found that, because Turner
was “doing well off of his pain medications,” he would “not reinitiate his hydrocodone.” Id.
However, Vohra deemed it appropriate to direct Turner to “follow up with his family physician
for refills on the Zoloft.” Id. Vohra noted that “[f]rom a pain perspective, I will see him back on
an as needed basis.” Id.
On February 4, 2013, Turner underwent a microdirect laryngoscopy of the left true vocal
cord, and an injection with Cymetra. Id. at 463. During the procedure, the surgeon noted a
“slight atrophy of the left true vocal cord.” Id. At a follow-up appointment on March 1, 2013,
Turner reported “that his swallow has improved [but that] he still has a significantly hoarse voice
[and] feels as if he is running out of breath when speaking.” Id. at 539. Turner underwent
another larygoscopy which revealed “continued ... evidence of left true vocal cord paresis with

9

evidence of recent cymetra injection. Glottic closure was complete. The immediate trachea and
subglottis were widely patent.” Id. Schweinfurth informed Turner that he felt “the strain and
breathy quality to his voice ... is due to overcompensation with the recent cymetra injection and
we feel that this will even out.” Id. at 540.
G. Recurrent Problems
On April 17, 2013, Turner attended a follow-up appointment with Holman, at which
Turner complained that he had been suffering “severe left arm pain radiating down from his
neck” for approximately two and a half weeks. AR-440. Turner reported that he had been off
narcotics for three months and that it “hurts the same now as before.” Id. Holman diagnosed
Turner with cervical radiculopathy and ordered an MRI. Id. at 441. The MRI was performed on
April 22, 2013, and revealed “mild diffuse disc bulge at the C3-C4 and C4-C5 disc level with
bilateral foraminal narrowing.” Id. at 450. The following day, Holman reviewed the MRI
results with Turner, during which Turner complained that the pain was “about to drive him
crazy.” Id. at 439. Holman suggested Turner reinitiate his narcotic pain regime and, to this end,
prescribed Turner hydrocodone. Id.
On April 19, 2013, Turner presented to Catherine Cheney, FNP, for a follow-up
regarding his left vocal cord paresis. Id. at 541. Turner reported that he had a “significantly
hoarse voice” but that he was “not having any difficulties in breathing or swallowing.” Id.
Cheney observed continued evidence of left true vocal cord paresis but noted, “We feel that his
voice may improve with the vocal exercise, however we recommend that he does not do the
exercises until he is medically cleared by his PCP to resume strenuous activities that involve his
neck and left side of his arm.” Id. at 542. Cheney also noted that she believed Turner would

10

“benefit from using a voice amplifier in the interim to decrease the straining that he is
encountering.” Id.
During a May 17, 2013, telephone call with Hartford, Turner stated that, following his
throat procedure, his “[t]hroat is not doing better” but that he had his voice back. Id. at 080.
Turner further advised that he “was having difficulty with the stretches and movement” of his
voice therapy so ceased the therapy. Id. Turner said that his neck and lower back issues are the
“primary conditions impacting his ability to work.” Id. Finally, Turner stated that: (1) he is able
to drive most days but tries to do so as little as possible because driving aggravates his lower
back; (2) he smokes; and (3) “his day is mostly spent at home unless he goes to kids school for
school event.” Id. at 080–81.
H. 2013 Pain Treatment
Holman completed an APS for Turner on June 13, 2013. AR 545–46. The APS states
that Turner: (1) can sit for six hours a day, stand for one hour a day, and walk for one hour a
day; (2) can lift/carry 1 to 10 pounds with no restriction; (3) can lift/carry 11 to 20 pounds
occasionally; (4) can never lift/carry anything heavier than twenty pounds; (5) can occasionally
bend at the waist; (6) can never kneel/crouch; (7) can occasionally drive; (8) can never reach
above the shoulder; (9) can frequently reach at waist level; (10) can occasionally reach below
waist level; and (11) can finger/handle without restriction. Id. at 546. The report noted that
Turner did not “have a psychiatric/cognitive impairment.” Id.
On June 20, 2013, Turner underwent a cervical epidural steroid injection performed by
Jeff Summers, MD, at NewSouth NeuroSpine Pain Center. Id. at 422. Summers performed a
second injection on July 29, 2013. Id. at 420. Also in July 2013, Turner underwent physical
therapy at NewSouth. Id. at 412.

11

On July 29, 2013, Turner returned to Vohra complaining of “an increase in neck pain, left
perispacular pain, and left arm pain.” Id. at 415. Vohra noted that, “[u]pon palpation, he has
mild to moderate left cervical paraspinal spasm. He has positive Spurling’s on the left.” Id.
Vohra observed that Turner’s “complaints seemed to be a bit more posterior than one would
expect for C5.” Id. Vohra’s notes include the statement: “I am ... going to place him in physical
therapy. Hopefully he will improve with treatment. If he does not, we may need to consider a
myelogram and EMG.” Id.
On September 10, 2013, Turner was seen at NewSouth by Alice Messer, FNP-BC. Id.
Turner reported that, following the July 2013 visit to NewSouth, he had “excellent relief, but
then ... felt like it caused some of his headache complaints [so he] discontinued physical
therapy.” Id. Turner complained of “mid back pain” and “a new issue with pain radiating
around the right side of his abdomen.” Id. Turner reported discontinuing Effexor because “he
did not feel as though he was depressed.” Id. Messer encouraged Turner to continue on Effexor
but Turner responded he no longer “wished to pursue psychiatric management for his
depression.” Id. Messer further recommended an MRI on Turner’s spine. Id.
Turner underwent an MRI on September 12, 2013, which revealed “severe ligamentum
flavum, hypertrophy and facet atropathy at the T-10-11 disc level resulting in 50% narrowing of
the area of the spinal canal.” Id. at 409. Additionally, the reviewing physician, Ron Christian,
M.D., observed “[n]o evidence of disc herniation.” Id.
On October 30, 2013, Turner spoke with a Hartford representative and stated his lower
back was causing “problems moving around, standing up straight and sitting up in a chair for
more than 30 minutes.” Id. at 069. Turner also reported he was “[u]nable to walk more than 100
yards without being in pain afterwards,” that he had limited range of motion in his neck, and that

12

if he moved his neck too much he developed pain in his left arm. Id. Turner stated that three
times a week he picks his kids up from a bus stop approximately a quarter of a mile away. Id. at
070. He also reported that once a month he visited his mother, who lived approximately thirty
miles away. Id.
I. December 5, 2013, Evaluation and Termination of Benefits
On December 5, 2013, Vohra responded to a questionnaire provided by Hartford
regarding Turner’s condition. AR-408. Vohra’s response stated that Turner would be able to
perform “full time work that is primarily seated with the ability to change positions as needed
with minimal and/or lifting up to 10 lbs” so long as the lifting was required “rarely.” Id.
On December 13, 2013, Summit Investigations, Inc., at Hartford’s direction, conducted
video surveillance on Turner. Id. at 900–01. During the surveillance, the investigator observed
Turner drive approximately fifteen minutes from his home to a Burger King drive-through. Id. at
904. After going through the drive-through, and approximately twenty-three minutes after
leaving home, Turner pulled into a gas station, exited his vehicle, and entered the store. Id. at
904–05. Turner spent approximately four minutes in the store and then exited carrying two
plastic bags in his left hand. Id. at 905. Turner then drove approximately thirteen minutes home.
Id. A report of the surveillance and a corresponding video were provided to Hartford on
December 18, 2013. Id. at 906.
On January 8, 2014, Hartford completed an “Employability Analysis Report” (“EAR”)
on Turner “for the purpose of determining his current employability.” Id. at 396. The EAR
stated:
The functional capabilities used in this analysis are based on the medical
statement dated 12/3/13 completed by Dr. Vohra advising Mr. Turner is capable
of full time sedentary work function; with the ability to lift up to 10lbs rarely, and

13

should never bend or kneel.
permanent.
Id.

Dr. Turner [sic] is advising these abilities are

Based on Turner’s work history and the capabilities identified by Vohra, the EAR,

employing the Occupation Access System (“OASYS”),4 identified the occupation of “skip
tracer” as a profession for which “it is very reasonable Mr. Turner possesses the functional
capabilities, skills and education to perform ….” Id. at 397. The report also noted such
profession exceeded the required earnings potential for Turner. Id.
On January 14, 2014, Turner presented to Vohra with continued back pain. Id. at 331.
Turner informed Vohra that his physical activity had recently increased because his wife was
away from home and that he had experienced “severe stiffness” in his back.

Id.

Vohra

conducted a physical examination during which he found “mild cervical paraspinal spasm” and
diminished thoracic and lumbar range. Id.
On January 17, 2014, Hartford informed Turner by letter that he was no longer entitled to
LTD benefits because he was qualified and able to perform the occupation of skip tracer and was
not, therefore, disabled from performing “Any Occupation” as required by the Policy. Id. at
168–172.
J. Post-Denial Treatment and Appeal
On February 27, 2014, Turner was re-evaluated by Summers. AR-344. Summers noted
that Turner reported a current pain level of 6/10, and complained of “worse pain fluctuat[ing]
between his between his neck and his low back.” Id. Summers recommended an MRI of
Turner’s lower spine. Id.

4

OASYS “is a computerized job matching system that cross references an individual’s qualifications profile with
12,741 occupations classified by the U.S. Department of Labor in the 1991 Dictionary of Occupational Titles ….”
AR-396.
14

On March 17, 2014, Turner presented to Vohra with “ongoing numerous orthopedic
complaints,” including “thoracic pain with intermitted radiating pain,” “significant right shoulder
pain,” and “back pain [with] intermittent bilateral lower extremity radiating pain.” Id. at 328.
The physical examination revealed “right mid-lower thoracic paraspinal spasm as well as
bilateral lower lumbar spasm of moderate severity[, and] a poor thoracic segmental motion and
poor lumbar range of motion.” Id. However, Vohra observed “[s]trength is normal throughout
as is sensory exam.” Id. The same day, Vohra issued a note stating “Mr. Turner is disabled from
any employment. This is permanent.” Id. at 307.
Turner underwent a lumbar spine MRI on March 20, 2014. Id. at 319. In evaluating the
MRI, Richard McCarthy, the reporting physician, noted:
Postsurgical changes at L4-5 with mild bilateral foraminal stenosis due to diffuse
disc bulge. Mild bilateral foraminal stenosis at L5-S1 due to diffuse disc bulge.
Mild to moderate spinal and foraminal stenosis at the L3-4 which appears to be
slightly more severe than on the last exam.
Id.
On March 25, 2014, Turner was re-evaluated by Schweinfurth.

Id. at 392.

Schweinfurth’s report reflects that Turner was “[b]reathing comfortably without stridor. Voice is
slightly hoarse, yet audible, with improved volume and strength.” Id. Schweinfurth performed a
laryngoscopy and observed “continued ... evidence of left true vocal cord paresis with
medialization s/p cymetra injection, and scarring from prior intubations.”

Id. Turner was

diagnosed with vocal cord paralysis, unilateral partial Dysphonia; however, the notes reflect that
“[i]t was discussed that we are pleased that he has done well ….” Id.
A March 27, 2014, MRI on Turner’s left knee revealed: (1) a “[s]ignificant abnormality
of the articular surface cartilage of the patella;” (2) a “[c]omplex tear of the posterior horn of the

15

medial meniscus;” and (3) “[s]light loss of articular surface cartilage with no significant
subchondral changes.” Id. at 323.
On July 8, 2014, Turner appealed Hartford’s January 2014 decision that he was no longer
entitled to LTD benefits. Id. at 293. In support of his appeal, Turner relied on: (1) the
December 11, 2013, letter from the Social Security Administration stating that Turner’s
“disability is continuing,” [AR-300]; (2) Vohra’s December 5, 2013, response to Hartford’s
questionnaire; (3) the March 17, 2014, note from Vohra stating that “Mr. Turner is disabled from
any employment. This is permanent;” (4) various medical records from Vohra and Summers; (5)
various MRI results; and (6) medical records related to his vocal chords. Id. at 293–94. In his
appeal letter, Turner noted that Vohra issued his March 17, 2014, note after Turner “discuss[ed
Hartford’s] decision with him.” Id. at 293.
On July 25, 2014, Turner returned to NewSouth and underwent an evaluation by Messer.
Id. at 283–84. At the appointment, Turner complained of “severe thoracic spine pain as well as
low back pain.” Id. at 283. Messer noted that Turner’s “[p]revious MRI of the lumbar spine
showed mild disc protrusions with mild stenosis at L4-L5.” Id. Messer’s physical examination
revealed “some thoracic tenderness” and “pain over the right SI and right buttock. Lumbar range
of motion is guarded but fair. DTRs in the lower extremities are 1/4. Strength is 5/5 in all muscle
groups.” Id.
K. Consultant Report
On September 17, 2014, Hartford completed a “Medical Consultant – Referral Form”
requesting information on Turner’s alleged disability. AR-280. The form listed Vohra as
Turner’s primary attending physician, included a request for “all medical records received as of

16

the date of this referral,” and asked for an “independent opinion” of Turner’s functionality. Id. at
280–81.
On October 9, 2014, Ben Hur P. Mobo, a physician licensed in Internal Medicine and
Preventive Medicine/Occupational Medicine, submitted to Hartford a report on Turner’s
disabilities. Id. at 270–75. Mobo’s report reflects that he reviewed Turner’s medical records but
“was unable to speak with Dr. Vohra after three attempts.” Id. at 272–73. Based on his review
of Turner’s medical records, Mobo concluded:
[T]he clinically reasonable restrictions [for Turner] from 01/18/2014 include:








Sitting is unrestricted
Walking and standing combined up to 30 minutes at a time and up to a combined
two hours total in a workday due to the left knee findings noted above.
The claimant can crouch, kneel, crawl, and squat occasionally.
Bending and climbing stairs/ladders are unrestricted.
Reaching overhead, at waist level and below waist level are unrestricted.
Unrestricted fingering, handling and keyboarding.
Lifting and carrying up to 25 pounds occasionally and frequently up to 15 pounds.

From 01/18/2014 to the present the claimant’s condition has not changed significantly.
Id. at 273–74. Regarding Turner’s ability to speak, Mobo found:
Based on review of the medical information as of 01/18/2014 the claimant does
not have any restrictions/limitations regarding his vocal cords. The claimant was
initially seen for issues concerning his vocal cords in 07/2005. In 07/2006 he was
instructed to return to ENT for this issue on as-needed basis. He was not seen
again for this until 01/18/2013. The 01/18/2013 notes reported his left vocal cord
paresis was deemed iatrogenic. The lack of left-sided findings in 2005 and 2006
does not support impairment from 01/18/2014 through the present. There are no
records regarding his vocal chords past 01/18/2014 and thus no supporting
evidence of impairment ....
Id. at 274. At the conclusion of his report, Mobo certified, among other things:
* I have no material professional, familial, financial or other affiliation,
relationship or conflict of interest with or related to the subject matter that is being
recommended and which I have reviewed ....
* My compensation for performing the subject review is not dependent, in any
way, on the outcome of the case[.]
17

* I have current, relevant experience and/or knowledge to render a determination
for cases under review[.]
* I have a scope of licensure or certification that typically manages the medical
condition, procedure, treatment or issue under review[.]
Id.
L. Final Termination of Benefits
Hartford affirmed its termination of Turner’s benefits on October 13, 2014, citing its
“independent review of the medical records received to date, your self-reported symptoms, the
report from Dr. Mobo, … review by the Rehabilitation Case Manager and the policy provisions.”
AR-158–61. In affirming the termination, Hartford noted that “in the Independent Medical
Review report Dr. Mobo opined that you were capable of working with restrictions and
limitations and the Rehabilitation Case Manager has identified an occupation that you would be
capable of performing.” Id. at 160. Hartford further wrote that it had considered Turner’s SSA
determination as “one piece of relevant evidence” but that the evidence was not determinative
because “[t]he standards governing receipt of these public and private benefits are different in
critical ways.” Id. Specifically, Hartford noted “the SSA does not conduct an analysis of skills
that may be transferrable to other occupations. The Hartford does a transferrable skills analysis
to determine whether an individual’s prior experience and skill would allow him/her to perform
an occupation with minimal on-the-job training.” Id.
On November 5, 2014, Vohra responded to a questionnaire sent to him by Mobo, which
was dated October 7, 2014. Id. at 258. Vohra’s response states that, as of January 18, 2014,
Turner had the following work capacity: (1) “no prolonged sitting – requires frequent position
changes every 30 minutes;” (2) “no prolonged walking;” (3) “no prolonged standing;” (4)
“avoid” bending, crouching, kneeling, and overhead reaching; (5) occasional reaching at and

18

below the waist; and (6) “frequent” fingering, handling, and keyboarding. Id. at 258–59. In
addition to asking for Turner’s physical limitations, the questionnaire included the inquiry:
Mr. Turner reports vocal cord injury from surgery in 5/2005. What was the
impairment or specific injury? Does he continue to have impairment from the
5/2005 injury – if any – as of 1/18/14? If so, what would have [sic] any
restrictions and/or limitations regarding his vocal chords
Id. at 259. Vohra responded by stating, “recent vocal cord surgery – UMC.” Id. Vohra stated
that the identified restrictions were based on a history of C4-C7 fusion, thoracic stenosis, “vocal
cord injury” and “unable to tolerate employment – disabled.” Id.
On November 10, 2014, Mobo issued an addendum to his report, stating that “Dr.
Vohra’s responses do not alter my prior assessment as there is no new compelling information in
Dr. Vohra’s responses that would alter my initial opinion and the restrictions/limitations I
outlined in my initial report.” Id. at 248.
On March 19, 2015, Hartford issued a letter to Turner’s then-attorney, stating that it had
considered Vohra’s response and Mobo’s addendum. Id. at 154–55. The letter states that “[t]he
additional information received for review from Dr. Vohra did not alter our decision of
10/13/14.” Id. at 155.
IV
ERISA Standard of Review
In enacting ERISA, Congress sought:
to protect interstate commerce and the interests of participants in employee
benefit plans and their beneficiaries, by requiring the disclosure and reporting to
participants and beneficiaries of financial and other information with respect
thereto, by establishing standards of conduct, responsibility, and obligation for
fiduciaries of employee benefit plans, and by providing for appropriate remedies,
sanctions, and ready access to the Federal courts.
29 U.S.C. § 1001(b). To this end, “ERISA comprehensively regulates, among other things,
employee welfare benefit plans that, ‘through the purchase of insurance or otherwise,’ provide
19

medical, surgical, or hospital care, or benefits in the event of sickness, accident, disability, or
death.” Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 44 (1987) (quoting 29 U.S.C. § 1002(1)).
Under ERISA, a participant or beneficiary in a regulated plan may bring a civil action “to
recover benefits due to him under the terms of his plan, to enforce his rights under the terms of
the plan, or to clarify his rights to future benefits under the terms of the plan.” 29 U.S.C. §
1132(a)(1)(B). “[D]istrict courts hearing complaints from disappointed ERISA plan members or
their beneficiaries for the administrative denial of benefits are not sitting, as they usually are, as
courts of first impression. Rather, they are serving in an appellate role.” McCorkle v. Metro. Life
Ins. Co., 757 F.3d 452, 456 (5th Cir. 2014). In this role, a district court’s review “is very
narrowly restricted by ERISA and its regulations, as interpreted by the courts of appeals, and the
Supreme Court ….” Id. at 457.
“When, as here, the ERISA plan grants the administrator the discretion to interpret the
meaning of the plan, [a court should] reverse an administrator’s decision only for an abuse of
discretion.” Porter v. Lowe’s Cos., Inc.’s Bus. Travel Acc. Ins. Plan, 731 F.3d 360, 363 (5th Cir.
2013). “A plan administrator abuses its discretion where the decision is not based on evidence,
even if disputable, that clearly supports the basis for its denial.” Singletary v. United Parcel
Serv., Inc., 828 F.3d 342, 347 (5th Cir. 2016). Thus, “[i]f the plan fiduciary’s decision is
supported by substantial evidence and is not arbitrary and capricious, it must prevail.” Killen v.
Reliance Standard Life Ins. Co., 776 F.3d 303, 307 (5th Cir. 2015).
“An ERISA claimant bears the burden to show that the administrator abused its
discretion.” George v. Reliance Standard Life Ins. Co., 776 F.3d 349, 352 (5th Cir. 2015). “The
burden of proof and the standard of review is the same whether the decision is an initial decision
or a decision to terminate previously granted benefits.” Adams v. UNUM Life Ins Co. of Am.,

20

No. H-04-2179, 2005 WL 2030840, at *32 (S.D. Tex. Aug. 23, 2005) (citing Ellis v. Liberty Life
Assurance Co., 394 F.3d 262, 273 (5th Cir. 2004)); see Braddock v. Baker Hughes Inc. Long
Term Disability Plan, 461 F.Supp.2d 490, 500 (S.D. Miss. 2006) (“Plaintiff has the burden of
proving that Hartford’s decision to terminate his long-term disability benefits constituted an
abuse of discretion.”).
V
Motion to Strike
Before reviewing the propriety of Hartford’s decision to terminate Turner’s LTD
benefits, the Court must first address Hartford’s motion to strike. Hartford seeks to strike from
Turner’s motion for summary judgment “references and arguments based on medical records that
were never submitted to Hartford or otherwise included as part of the Administrative Record
….” Doc. #32 at 3. These references and/or arguments are:


“Dr. Davis noted in July of 2013 that Mr. Turner was the only recurrent
laryngeal nerve palsy that Dr. Davis had treatment in over 2,000 cases that
was as permanent and persistent as Mr. Turners’.” (Doc. 28 at p. 12).



“Mr. Turner . . . underwent arthroscopic knee surgery with Dr. Kennedy in
February of 2015.” (Id.)



Plaintiff “continues to treat with Dr. Angela Koestler for chronic pain and
depression.” (Id.)

Id. As mentioned above, Turner did not respond to the motion to strike.
“When conducting abuse of discretion review of a denial of benefits based on an
administrative record, [the Fifth Circuit has] generally require[d] that the scope of review be
limited to facts known to the plan administrator at the time of the benefits decision.”5 McDonald
v. Hartford Life Grp. Ins. Co., 361 F. App’x 599, 606 (5th Cir. 2010) (citing S. Farm Bureau Life
5

However, a district court may consider “evidence ... that assists the district court in understanding the medical
terminology ... related to a claim.” Estate of Bratton v. Nat’l Union Fire Ins. Co. of Pitt., 215 F.3d 516, 521 (5th
Cir. 2000).
21

Ins. Co. v. Moore, 992 F.2d 98, 102 (5th Cir. 1993)). This Court agrees that Turner may not rely
on medical records outside the administrative record. However, “it is more appropriate to
disregard, rather than to strike,” improper arguments. Owen v. Young, No. 4:15-cv-4087, 2016
WL 915065, at *2 (D.S.D. Mar. 10, 2016); see In re Tomahawk Oil, No. 14-155055, 2016 WL
4435609, at *1 (W.D. Okla. Aug 19, 2016) (“Rather than file a motion to strike, Trustee should
have incorporated these arguments in his objection to Mustang’s motion for summary judgment
and in his reply to Mustang's objection to his motion for summary judgment as the Court has the
ability to disregard inadmissible portions of any affidavit submitted in connection with summary
judgment.”). Accordingly, rather than strike individual sentences from Turner’s motion, the
Court will simply disregard those portions of Turner’s motion which are the subject of Hartford’s
motion to strike. See generally Jefferson v. Christus St. Joseph Hosp., 374 F. App’x 485, 489
(5th Cir. 2010) (“[W]e find no abuse of discretion in the district court’s decision to disregard
rather than strike the EEOC determination letter ....”). Hartford’s motion to strike, therefore, will
be denied as moot.
VI
Analysis
The evaluation of an ERISA claim decision is ordinarily resolved in two steps. Porter,
731 F.3d at 364. First, the Court asks whether the decision was legally correct. Id. Second, the
Court asks whether the administrator abused its discretion. Id. A court may, however, skip the
first step if it “can determine the decision was not an abuse of discretion,” High v. E-Sys., Inc.,
459 F.3d 573, 577 (5th Cir. 2006); or if “the case does not turn on sophisticated [p]lan
interpretation issues,” Kolodzaike v. Occidental Chem. Corp., 88 F.Supp.2d 745, 748 (S.D. Tex.
2000). Because this case does not turn on sophisticated plan interpretation issues, the Court first
reviews whether Hartford abused its discretion in terminating Turner’s benefits.
22

“Abuse of discretion factors include: (1) the internal consistency of the plan under the
administrator’s interpretation, (2) any relevant regulations formulated by the appropriate
administrative agencies, and (3) the factual background of the determination and any inferences
of lack of good faith.” LifeCare Mgmt. Servs. LLC v. Ins. Mgmt. Arm’rs Inc., 703 F.3d 835, 841
(5th Cir. 2013) (internal quotation marks omitted). A court should also consider whether the
administrator had a conflict of interest. N. Cypress Med. Ctr. Operating Co., Ltd. v. Cigna
Healthcare, 781 F.3d 182, 196 (5th Cir. 2015).
A. Internal Consistency of Interpretation
Turner argues that Hartford “interpreted its policy definition of ‘disability’ to require Mr.
Turner to have proven, to Hartford’s satisfaction, that he could do no job, of any type, anywhere,
in order to continue eligibility for his benefits.” Doc. #36 at 2. Turner contends:
The problem with Hartford’s position is that the policy definition of disability
does not place such a burden on Mr. Turner. No insured could ever meet a burden
of proof if Hartford 1) does not have to credit to the opinions of the treating
physicians confirming that the insured is permanently disabled from all
employment; 2) Hartford can change the definition of disability to suit its
purpose; 3) Hartford can ignore determinations of disability it forces the insured
to pursue through the Social Security Administration, and, 4) Hartford can hire
medical “reviewers” to determine that the insured should be able to do some type
of work somewhere.
Id. Although it is less than clear, it appears Turner argues that Hartford improperly narrowed the
Policy’s definition of “Disability” to include all potential occupations, and contends that the
Policy: (1) required Hartford to credit Turner’s treating physicians; (2) required Hartford to
credit the Social Security Administration’s determination of disability; and (3) prohibited
Hartford from retaining an independent reviewer. Hartford replies that “it is abundantly clear
that Hartford utilizes the correct ‘Any Occupation’ definition in adjudicating Plaintiff’s claim.”
Doc. #39 at 2.

23

As an initial matter, nothing in the record suggests that Hartford altered the definition of
disability. As explained above, the Policy clearly conditioned the receipt of LTD benefits on a
showing that Turner was unable to perform an occupation for which he was qualified and which
had a satisfactory earnings potential. See AR-030. In terminating Turner’s benefits, Hartford
based its decision on the existence of a profession, skip tracer, for which it found Turner to be
qualified and which met the requisite earnings potential. Furthermore, Turner points to nothing
in the Policy (which explicitly granted Hartford discretion to interpret the relevant terms) which
would have prohibited Hartford from crediting the opinions of the varying physicians and
evidence in the manner it did.
In short, the Policy gave Hartford the right to terminate benefits upon a determination
that Turner was able to perform an occupation which met a baseline salary requirement.
Hartford terminated Turner’s benefits after determining that Turner was able to perform such an
occupation. Under these circumstances, the Court concludes that Hartford’s interpretation of the
Policy was internally consistent.
B. Relevant Regulations
Neither party has introduced evidence or argument related to relevant regulations.
Accordingly, the Court deems this factor neutral.
C. Factual Background of the Determination
“With respect to the third factor, to find an abuse of discretion, this court must scour the
record and the pleadings for any legal basis upon which the administrator could have based its
interpretation.”

Lain v. UNUM Life Ins. Co. of Am., 279 F.3d 337, 346 (5th Cir. 2002),

overruled on other grounds by Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 115–19 (2008)
(internal quotation marks and alterations omitted); see Kennedy v. Elecs. Pension Plan, IBEW

24

No. 995, 954 F.2d 1116, 1124 (5th Cir. 1992)). Here, Hartford terminated Turner’s benefits
because it found that Turner was capable of performing the essential duties of a skip tracer and
was not, therefore, unable to perform Any Occupation, as that term is defined in the Policy. In
attacking the factual background of the determination, Turner argues that:

(1) Hartford

improperly relied on Vohra’s December 5, 2013, opinion; (2) Hartford discredited the opinions
of his treating physicians without reason; (3) the record evidence did not support a finding that
Turner could perform all the essential duties of skip tracer; (4) Hartford wrongfully disregarded
the Social Security Administration’s determination of disability; and (5) Hartford failed to
include restrictions arising from Turner’s depression and vocal cord condition. Doc. #36.
1. The Questionnaire
Turner first argues that the questionnaire sent to Vohra, which was completed on
December 5, 2013, was “calculated to give Hartford an opportunity to manipulate its own
interpretation of Dr. Vohra’s opinion.” Doc. #28 at 11. Turner also states that the EAR’s
consideration of his restrictions “was obviously a gross over-read of the questionnaire ….” Id.
The use of misleading or leading questions may render an opinion of lesser value or
suggest that the administrator was not acting in good faith. See Lain, 279 F.3d at 347 (question
“[e]quating ... disparate activities reflects plain lack of objectivity and an abuse of discretion by
UNUM”); Meyer v. UNUM Life Ins. Co. of Am., 96 F.Supp.3d 1234, 1252 (D. Kan. 2015)
(finding abuse of discretion where administrator “relied on an opinion by Lambrew, a tainted,
highly paid Unum contractor who rendered his opinion in response to leading questions and
discounted physical test results”).
The questionnaire Hartford provided to Vohra included six questions:

25

1) Please provide office notes for the period of 6/2013 to present to include any
diagnostic test results, consultation reports, laboratory test results and any
other information you feel is pertinent to the processing of this claim.
2) Do you feel your patient is capable of performing full time work that is
primarily seated with the ability to change positions as needed with minimal
and/or lifting up to 10lbs? If yes, when? ______ If no, please explain
3) What are your patient’s current restrictions and limitations?
4) What is the maximum amount of weight your patient can lift/carry?
5) What is the current ICD-9 code?
6) From a functional standpoint, do you expect a fundamental or marked change
in the future? If yes, when? If no, please explain.
AR-408. The Court finds these questions, which are largely open-ended, stand in stark contrast
to the leading question in Meyer, which asked: “What is the medical relationship between the
pre-ex illness/injury and the claimed disabling illness/injury? Please explain how and why this
claimant’s pre-ex illness/injury is a risk factor that led to the claimed disabling illness/injury.”
96 F.Supp.3d at 1239. Unlike the question in Meyer, the questions presented to Vohra did not
improperly suggest a desired conclusion.
Additionally, the questions are not misleading like the question in Lain. In Lain, the
relevant question asked: “Lain, [an attorney], has indicated that she spends quite a bit of time at
home doing research pertaining to her diagnosis. If she is able to do this research, what is it that
is preventing her from performing the duties of her regular occupation?” 279 F.3d at 346. The
Fifth Circuit held that “[t]his question unfairly equates amateur research conducted by a severely
ill individual trying to find answers about her painful and incurable sickness with the kind of
daily performance required of an attorney specializing in major sophisticated real estate and
financial transactions.”

Id.

The questions to Vohra contain no similar false equivalence.

Accordingly, the Court does not believe that the questionnaire sent to Vohra was improperly
tainted by leading questions.

26

Next, Turner does not specify how the functional capabilities in the EAR amounted to a
“gross over-read” of the December 5, 2013, questionnaire. Vohra’s completed questionnaire
stated that Turner was “capable of performing full time work that is primarily seated with the
ability to change positions as needed with minimal and/or lifting up to 10lbs” but that Turner
could “lift/carry up to 10 lbs [only] rarely, [and could] never bend/kneel[] ….” AR-408. The
EAR listed Turner’s capabilities as “full time sedentary work function; with the ability to lift up
to 10lbs rarely, and should never bend or kneel.” Id. at 396. Given the similar content of the
descriptions, the Court concludes that the restrictions in the EAR accurately reflect the
restrictions in the questionnaire.
2. Weight Afforded to Treating Physicians’ Opinions
Turner argues that it was improper for Hartford:
to disregard the opinions of the treating physicians – the same opinions that
Hartford relied upon to determine disability in the first place and which were
relied upon by the Social Security Administration to determine disability – in
favor of a report Hartford paid to be prepared by an internal medicine doctor, not
licensed in Mississippi with no expertise in neurosurgery, orthopaedics [sic], or
ENT issues.
Doc. #28 at 9. Although Turner references “opinions of the treating physicians,” he essentially
bases his argument on Vohra’s March 2014 statement that Turner is completely disabled.
Hartford responds that, contrary to Turner’s contention, it properly considered the opinions of
Turner’s treating physicians insofar as it relied on Vohra’s December 5, 2013, opinion. Hartford
further contends that its conclusions were consistent with the opinions of Holman.
In reaching a determination, “[p]lan administrators … may not arbitrarily refuse to credit
a claimant’s reliable evidence, including the opinions of a treating physician.” Black & Decker
Disability Plan v. Nord, 538 U.S. 822, 834 (2003). However, “ERISA does not require the
opinions of treating physicians to be preferred over those of other physicians reviewing a file;
27

ERISA merely requires that the opinions of treating physicians, as with all evidence submitted
by the claimant, actually be taken in account in an administrator’s determination.” Love v. Dell,
Inc., 551 F.3d 333, 337 (5th Cir. 2008). An “administrator, under the established standard of
review that restricts the courts, [is] not obliged to accept the opinion of [treating] physicians. In
this ‘battle of the experts’ the administrator is vested with discretion to choose one side over the
other.” Anderson v. Cytec Indus., Inc., 619 F.3d 505, 513 (5th Cir. 2010).
In terminating Turner’s benefits, it is clear Hartford did not discard the opinions of
Turner’s treating physicians.

To the contrary, the EAR, which formed the basis of the

termination, was expressly based on the restrictions set forth in Vohra’s December 5, 2013,
correspondence. The termination letter itself expressly cites Vohra’s December 5, 2013, letter.
AR-170.
While it is true that Vohra issued a second opinion, an administrator does not abuse its
discretion when it refuses to credit a treating physician’s retraction of an opinion when such
retraction occurs after the physician learned of a denial of benefits. See Pylant v. Hartford Life
and Acc. Ins. Co., 497 F.3d 536, 540–41 (5th Cir. 2007) (“It is true that one of the treating
physicians later retracted his statement ... but he only did so during the appeals process, after
meeting with Pylant’s attorney.”) (emphasis omitted); Barnes v. BellSouth Corp., No. 1:03-cv16, 2003 WL 22231261, at *16 (W.D.N.C. Aug. 14, 2003) (“There is certainly nothing wrong
with a physician assisting a disabled individual in obtaining benefits, but the change in tone in
Dr. Burke’s description of Plaintiff's impairments between October of 2001 and January of 2002
could appropriately be considered by Dr. Cohan and, by extension, Kemper in assessing the
credibility of her opinions.”). Additionally, so long as the medical opinion of a consulting
physician is “arguably supported by the medical record,” an administrator does not abuse its

28

discretion when it relies on such an opinion, even if it “conflicts with the claimant’s treating
physician. This is so even if the consulting physician only reviews medical records and never
physically examines the claimant, taxing to credibility though it may be.” Gothard v. Metro. Life
Ins. Co., 491 F.3d 246, 249 (5th Cir. 2007).
The record here is clear that Hartford rejected Vohra’s March 2014 opinion in favor of
Vohra’s December 2013 opinion and Mobo’s report and addendum. Insofar as Vohra’s March
opinion was issued after Turner spoke with Vohra about his denial of benefits, Hartford was
within its discretion to give the later opinion less weight.

Additionally, Mobo’s opinion

regarding Turner’s restrictions was arguably supported by the medical record—specifically, as
Mobo observed, the fact that “the examinations since 06/2013 indicate: 5/5 upper and lower
extremity strength with normal bilateral grip strength, no thoracic disc herniation, negative
straight leg raising, no give-away weakness in his thoracic or lumbar muscle groups, intermittent
thoracic and lumbar spasm, and right-sided SI joint area tenderness.” AR-273. Under these
circumstances, Hartford did not improperly discard Vohra’s March 2014 opinion or the opinion
of any treating physician.6
6

The Court rejects Turner’s comparison of the facts of this case to those in Pettway v. Prudential Ins. Co. of Am.,
No. 5:08-cv-283, 2009 WL 2973393 (S.D. Miss. Sep. 11, 2009). In Pettway, the district court found an abuse of
discretion where an administrator:
totally ignored the unrefuted evidence from the plaintiff's treating physicians and from the original
doctor to whom they sent the plaintiff for an IME. They chose, instead, to rely on the report of an
IME doctor, Dr. Polk, who saw the plaintiff on one occasion for less than an hour who herself
relied on a video surveillance more than two years old to support her findings. Additionally,
Prudential's occupational review or employment assessment and independent peer review relied on
Dr. Polk’s analysis almost exclusively, giving no credence to the treating physicians. Prudential
never informed any of these doctors that they had attempted to conduct surveillance on the
plaintiff on more than twenty occasions and only were successful in securing observations of the
minuscule activities described above. None of the activities observed equate to the requirements of
the vocational employment assessment performed by Prudential nor the training and education of
the plaintiff in securing viable employment. Terminating the plaintiff's LTD benefits on the record
before this court was arbitrary and capricious.
2009 WL 2973393, at *8. Unlike in Pettway, Hartford relied on the opinion of one of Turner’s treating physicians
in formulating its EAR, not on a consulting physician. Furthermore, Hartford only attempted a single surveillance,
which was not provided to the consulting physician.
29

3. Qualification to Perform Skip Tracer
Turner argues that “Harford completely fails to demonstrate that [he] is not prevented
from performing one or more of the Essential Duties of even a skip tracer position. Hartford just
assumes that the Court will somehow determine the Essential Duties of a skip tracer position and
then somehow determine that Mr. Turner is not prevented from performing one or more of the
essential duties of that job.” Doc. #36 at 6. In this regard, Turner notes that “Mobo did not tell
Hartford that Mr. Turner could perform all of the essential duties of a skip tracer position. Dr.
Mobo never reviewed any aspect of a skip tracer position or any other alleged occupation.” Id.
at 9.
As explained above, Hartford based its conclusion regarding Turner’s ability to perform
the essential duties of the skip tracer analysis on the EAR, based on OASYS, which concluded
that “it is very reasonable Mr. Turner possesses the functional capabilities, skills and education
to perform th[e] occupation ....” AR-397. Courts have routinely held that “reliance upon an
EAR and a system like OASYS is an acceptable and reasonable procedure for applying Policy
definitions to a particular record.” Tortora v. Hartford Life & Acc. Ins. Co., 162 F.Supp.3d 520,
525–26 (D.S.C. 2016) (collecting cases).

While the EAR did not explicitly delineate the

essential duties of a skip tracer, it clearly stated that Turner possessed the capabilities, skills, and
education to perform the job. It was more than reasonable then for Hartford to conclude, based
on this statement, that Turner was capable of performing the essential duties of the skip tracer
occupation.
4. Impact of Social Security Determination
Turner argues that Hartford “completely ignored” the SSA determination of disability
and that such an action “can, itself, render the decision arbitrary and capricious.” Doc. #28 at 14.

30

“[B]ecause the eligibility criteria for SSA disability benefits differs from that of ERISA plans,
while an ERISA plan administrator should consider a SSA determination, it is not bound by it.”
Hamilton v. Standard Ins. Co., 404 F. App’x 895, 898 (5th Cir. 2010).

So long as the

administrator provides a satisfactory reason for discarding the SSA disability determination,
there is no abuse of discretion in failing to credit such determination. Id. The threshold for
providing a satisfactory reason is very low. See Schexnayder v. Hartford Life & Acc. Ins. Co.,
600 F.3d 465, 471 n.3 (5th Cir. 2010) (“We do not require Hartford to give any particular weight
to the contrary findings; indeed, Hartford could have simply acknowledged the award and
concluded that, based on the medical evidence before it, the evidence supporting denial was
more credible.”).
In this case, Hartford deemed the SSA determination to be “relevant evidence” but
ultimately determined that the record evidence supported a finding of no disability under the
terms of the Policy.

AR-160.

This conclusion was within Hartford’s discretion.

See

Schexnayder, 600 F.3d at 471 n.3.
5. Voice and Depression Restrictions
Turner also contends that “the Record is ... clear that he has additional disability
associated with his permanent vocal cord injury orthopedic injuries and depression.” Doc. #28 at
12; Doc. #36 at 10–12. Hartford responds that the administrative record does not support
Turner’s claim. Doc. #39 at 7–8.
While the record reveals Turner suffered from depression symptoms, the record also
reveals that the condition was effectively treated by anti-depressants, which Turner voluntarily
discontinued. More important, no physician ever opined that the depression restricted Turner’s
ability to work. To the contrary, Holman and Vohra (on two separate occasions) reported that

31

Turner did not suffer from a cognitive or psychiatric impairment. AR-546, 663, 717. Under
these circumstances, the Court concludes that the record does not support a finding that Turner is
subject to a work restriction due to his depression. See generally Ecklund v. Continental Cas.
Co., 415 F.Supp.2d 1353, 1369 (N.D. Ala. 2005) (“The issue is not whether plaintiff suffers from
any certain condition; instead, the court must determine whether plaintiff satisfied the definition
of ‘disability’ under the CSC plan.”).
As for Turner’s voice condition, Hartford, in denying Turner’s appeal, relied on its
independent review of the medical records and on Mobo’s conclusion that Turner did “not have
any restrictions/limitations regarding his vocal chords.”
supports this conclusion.

AR-159.

The medical evidence

Although Turner suffers from a left vocal cord paresis and has

complained of a hoarse voice and throat pain following surgery, no physician has ever identified
a specific related restriction arising from these conditions.7 To the contrary, Turner’s ENT
opined that he expected Turner’s voice problems to “even out” following the cymetra injection.
Id. at 540. The record reveals that Turner’s condition did, in fact, even out, approximately two
months later when Turner informed Hartford that he had his voice back. Id. at 080. While
Turner contemporaneously complained of problems with his throat, there is nothing in the record
which suggests what these problems were, or how they impacted his work. Accordingly, the
Court concludes that there is no evidence Turner suffered from a disability related to his vocal
cord paresis.
6. Summary
Hartford terminated Turner’s benefits because it determined that he was able to perform
the essential duties of the occupation of skip tracer. Hartford based this conclusion on an EAR

7

In response to Mobo’s questionnaire, Vohra listed Turner’s vocal cord paresis as a condition contributing to
Turner’s alleged disability. However, Vohra did not specifically identify a restriction arising from the paresis.
32

report which utilized restrictions provided by Turner’s treating physician.

While Turner’s

treating physician subsequently updated the opinion underlying the EAR, Hartford was entitled
to, and did, reject the update based on the report and an addendum of an independent consulting
physician which set forth work capabilities less restrictive than those used in the EAR. The
consulting physician’s opinion was arguably supported by the medical record. Under these
circumstances, the Court concludes that the factual background of Hartford’s determination
weighs against a finding of abuse of discretion.
D. Conflict of Interest
If the administrator has a conflict of interest, the court must “weigh the conflict of interest
as a factor in determining whether there is an abuse of discretion in the benefits denial ….”
Holland v. Int’l Paper Co. Retirement Plan, 576 F.3d 240, 247 (5th Cir. 2009). However, this
factor is not treated as significant if the claimant offers “no evidence to suggest that it affected
the benefits decision, such as a history of biased claims administration.” White v. Aetna Life Ins.
Co. of Hartford Conn., 559 F. App’x 418, 420 (5th Cir. 2014).
Turner argues that Hartford has a structural conflict of interest in administering the plan
because it both evaluates claims and pays benefits. Doc. #36 at 12–15. Hartford does not
dispute that a conflict of interest exists but contends that the conflict, standing alone, does not
justify upsetting its decision. Doc. #39 at 7–8.
“Where ... the employer who funds the plan also determines eligibility for benefits, a
structural conflict of interest exists.” Holland, 576 F.3d at 248. Where such a conflict exists,
“the specific facts of the conflict will dictate its importance.” Id.
The conflict of interest ... should prove more important (perhaps of great
importance) where circumstances suggest a higher likelihood that it affected the
benefits decision, including, but not limited to, cases where an insurance company
administrator has a history of biased claims administration. It should prove less
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important (perhaps to the vanishing point) where the administrator has taken
active steps to reduce potential bias and to promote accuracy, for example, by
walling off claims administrators from those interested in firm finances, or by
imposing management checks that penalize inaccurate decisionmaking
irrespective of whom the inaccuracy benefits.
Id. at 248–49 (quoting Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 117 (2008)). In addition to
the steps outlined above, an administrator desiring to reduce potential bias may “submit
applicants’ records to independent medical professionals who have affirmed that they have no
conflict of interest and that their compensation is not dependent in any way on the outcome of
the case.” Id. at 249 (internal quotation marks omitted). Conversely, where the administrator
takes steps that are procedurally unreasonable, the conflict of interest factor should be given
greater weight. Schexnayder, 600 F.3d at 471.
In this case, Turner contends the structural conflict of interest should be given greater
weight because Hartford’s “bizarre refusal to recognize Dr. Vohra’s affirmative statement of
disability (which Hartford calls a ‘change of heart’) as well as the determination of the Social
Security Administration in favor of Dr. Mobo’s report ... demonstrate[s] an obvious conflict of
interest.” Doc. #36 at 13–14.
For the reasons above, the Court concludes that Hartford’s decision to disregard Vohra’s
March 2014 “affirmative statement of disability” was not “bizarre” but rather a proper exercise
of Hartford’s discretion. And, while an administrator’s “failure to address” a SSA determination
may justify giving the conflict of interest factor extra weight, Schexnayder, 600 F.3d at 471; this
rule does not apply when, as here, the administrator gives “express consideration to the decision
of the SSA,” Mattson v. Aetna Life Ins. Co., 928 F.Supp.2d 905, 917 (S.D. Tex. 2013).
Accordingly, because Turner has offered no evidence which shows that the conflict of interest

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affected the claims decision, the conflict of interest is only entitled to little weight. White, 559 F.
App’x at 420.
E. Summary
As explained earlier, “[i]f the plan fiduciary’s decision is supported by substantial
evidence and is not arbitrary and capricious, it must prevail.” Killen, 776 F.3d at 307 (citation
omitted). “Substantial evidence is more than a scintilla, less than a preponderance, and is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.
(internal quotation marks omitted) “A decision is arbitrary and capricious only if it is made
without a rational connection between the known facts and the decision or between the found
facts and the decision.” Truitt v. Unum Life Ins. Co. of Am., 729 F.3d 497, 508 (5th Cir. 2013)
(internal quotation marks omitted).
For the reasons above, and upon consideration of the relevant factors and the parties’
arguments, the Court concludes that Hartford’s termination of benefits was supported by
substantial evidence and was not arbitrary and capricious.

Mobo’s report and addendum;

Vohra’s December 5, 2013, opinion; and the EAR; constitute such relevant evidence as a
reasonable mind might accept as adequate to support the conclusion that Turner could perform
all the essential duties of a skip tracer. Similarly, the Court finds that this conclusion has a
rational connection to the known facts and to the facts found in Hartford’s decision.
Accordingly, Hartford’s decision was not an abuse of discretion. Having found no abuse of
discretion, the Court need not consider whether Hartford’s decision was legally correct. High,
459 F.3d at 577. Hartford’s decision to terminate Turner’s benefits must be affirmed.

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VII
Conclusion
It is ORDERED:
1.

Hartford’s motion to strike [32] is DENIED as moot.

2.

Hartford’s motion for summary judgment [24], which this Court construes as a
motion for judgment on the administrative record, is GRANTED.

3.

Turner’s motion for summary judgment [27], which this Court construes as a
motion for judgment on the administrative record, is DENIED.

4.

A final judgment consistent with this opinion will be issued separately.

SO ORDERED, this 10th day of March, 2017.

/s/ Debra M. Brown
UNITED STATES DISTRICT JUDGE

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