Potter v. SABIC Innovative Plastics US LLC
Filing
22
OPINION and ORDER: The Court grants Plaintiff's 17 Motion for Judgment on the Adminstrative Record and denies Defendant's 18 Motion for Summary Judgment. The administrative decision denying Mr. Potter's claim for long-term disability benefits is reversed, and this case is remanded to the plan administrator for further proceedings in accordance with this Opinion and Order. Signed by Magistrate Judge Terence P Kemp on 6/6/2011. (er1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Mark A. Potter,
:
Plaintiff,
v.
:
:
Case No. 2:10-cv-696
SABIC Innovative Plastics US, :
LLC,
:
Defendant.
MAGISTRATE JUDGE KEMP
OPINION AND ORDER
Plaintiff, Mark A. Potter, a former employee of SABIC
Innovative Plastics (and, before that, the General Electric
Company) stopped working in 2008 after thirty-six years of
employment.
In 2009, he filed an application for benefits with
his employer-sponsored long-term disability plan, claiming that
he had become disabled due to a tremor condition.
His claim was
denied initially and again after he appealed the first denial.
Having exhausted his administrative remedies, he filed this civil
action in the Court of Common Pleas of Washington County, Ohio,
on June 30, 2010.
Because the plan which insures Mr. Potter is
an ERISA plan, SABIC removed the case to this Court on federal
question grounds.
See 28 U.S.C. §§1331 & 1441(a).
The Court conducted the initial pretrial conference on
October 5, 2010.
Prior to the conference, the parties consented
to the Magistrate Judge’s jurisdiction over the entire case and
Judge Holschuh referred the case to me.
The parties agreed on a
briefing schedule and, pursuant to that schedule, have filed the
administrative record and competing motions for judgment on the
record.
This Opinion and Order represents the Court’s decision
on those motions.
I.
As an introductory matter, the Court notes that the parties’
memoranda are not consistent on the way in which portions of the
administrative record are identified.
Additionally, the Court
cannot find page numbers on much of the record other than the
markings which appear at the top of each page and which were
generated by the Court’s electronic filing system.
This Opinion
and Order will therefore refer to the record by the document
number and page number which appear in blue at the top of each
page.
Some uniform and legible numbering system for a record
this extensive would have been helpful, however.
These are the basic uncontested facts.
Mr. Potter has, for
years, suffered from a tremor disorder that causes his hands and
arms to shake.
In May, 2008 he was employed by SABIC as a
landfill truck driver and equipment operator.
He was covered by
a group disability plan sponsored by SABIC and administered by
Sedgwick Claims Management.
He stopped working on May 8, 2008,
and has not worked since.
In November, 2009, Mr. Potter applied for long-term
disability benefits under the SABIC plan.
His application was
supported by a statement from his treating doctor, Dr. Hanna, who
expressed the opinion that Mr. Potter could not work due to his
severe involuntary tremors.
In a letter dated January 8, 2010, written by a Sedgwick
claims examiner, Mr. Potter’s application was denied.
The key
paragraph of that letter (Doc. #15-1, at 10) reads:
The objective clinical information received from
your Physician (sic), Dr. Hanna and Dr. Kennel, does
not document a severity of your condition(s) that
supports your inability to perform the duties of any
job in which you qualify based on Training, Education
and Experience. An independent review was completed
and found that your impairments may limit your working
ability, but are not permanently disabling from any and
all jobs in which you may qualify. As a result, your
claim for Disability Pension benefits is denied.
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As was his right, Mr. Potter appealed that denial.
In a
lengthy letter written by counsel dated April 30, 2010, he argued
that, based on additional opinions of his family doctor and his
neurologist, and also on disability awards made by another
insurer and by the Social Security Administration, he met the
plan’s criteria for total disability.
He also pointed to a work
evaluation which concluded that he could not do any fine
manipulation, arguing that this restriction would prevent him
from obtaining a job which paid at least 80% of the earnings of
his job with SABIC.
Doc. #15-1, pp. 35-46.
SABIC’s final denial of Mr. Potter’s claim came on June 18,
2010.
The grounds for that decision were fairly narrow.
SABIC
did not dispute that Mr. Potter had the condition of
“familial/essential tremor” or that it prevented him from doing
his usual work.
However, because a beneficiary of the SABIC plan
is entitled to receive long-term disability benefits only if the
beneficiary is unable to perform any position for which the
beneficiary has the training, education or experience to perform,
and because SABIC concluded that Mr. Potter could do jobs meeting
that description despite his tremor, his claim was denied.
#15-3, at 98-99.
Doc.
The denial was based primarily upon a review
conducted at Sedgwick’s request by Dr. Petrie, who was critical
of Mr. Potter for not following up with his neurologist for
almost four years, noting that he also did not follow
recommendations from the neurologist concerning non-pharmalogical
treatment, and who observed that Mr. Potter’s decision to
continue to drive supported the finding that he could do jobs not
requiring fine manipulation with his upper extremities.
Id.
was shortly after that denial that Mr. Potter filed suit.
II.
In moving for judgment on the administrative record, Mr.
Potter makes the following arguments.
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First, he contends that
It
SABIC (or Sedgwick) did not take into account videos he submitted
which showed the difficulty he had with such activities as
buttoning a shirt, pouring a bowl of cereal or a glass of water,
using a screwdriver, or typing on a computer.
Second, he argues
that SABIC ignored a favorable decision rendered by the Social
Security Administration on his claim for social security
disability benefits and similarly ignored a decision by another
insurer, MetLife, which granted him long-term disability
benefits.
Next, he raises a series of claims about the way in
which SABIC dealt with the opinions of his treating physicians, a
functional capacity assessment done by a therapist, and the views
of its own experts.
He also takes issue with the fact that SABIC
did not request that he be examined by its physicians and that it
did not have before it evidence that he could do other jobs.
III.
The starting point in any case involving a claim for
benefits under an ERISA plan is identifying the standard under
which the Court reviews the administrative decision.
That is
generally determined by the language of the plan itself, and
depends upon the level of discretion afforded to the
administrator in making benefits decisions.
Here, the applicable plan language is found in Section XX of
the plan, entitled “Administration.”
Paragraph XX(6), Committee
Decisions, provides that any decision of a “Named Fiduciary ...
shall lie within the absolute discretion of such entity ....”
Doc. #15-4, at 74.
Mr. Potter concedes that the plan
administrator, who is a “Named Fiduciary,” is granted enough
discretion by this language to trigger the “arbitrary and
capricious” standard of review.
Under this standard, the Court
is required to uphold the decision of a plan administrator if “it
is possible to offer a reasoned explanation, based on the
evidence, for [that] outcome.”
Davis v. Ky. Fin. Cos. Ret.
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Plan, 887 F.2d 689, 693 (6th Cir.1989).
This is the least
demanding standard under which a court reviews administrative
decisions.
See Haus v. Bechtel Jacobs Co., LLC, 491 F.3d 557,
561-62 (6th Cir. 2007).
Nevertheless, it still requires the
Court to undertake a detailed review of the record and to
consider the evidence before the administrator, as well as a
variety of other factors, in determining if the plan’s denial of
benefits is sufficiently tied to that evidence and can be
supported by a reasonable explanation for the decision.
See
Jones v. Metro. Life Ins. Co., 385 F.3d 654, 661 (6th Cir. 2004).
IV.
The important evidence which was before the plan
administrator can be summarized as follows.
It consists
primarily of medical records and reviews of those records, but
also contains the decision from the Social Security
Administration.
Because the focus of this case is Mr. Potter’s
physical capabilities, the Court’s summary of the records
reflects a similar focus, and records pertaining to his anxiety
and depression will be cited only as necessary to provide a
complete picture of his condition.
A.
Reports from Treating or Examining Sources
Dr. Kennell, a psychologist, interviewed Mr. Potter in
August, 2008.
He administered a number of tests and also did a
clinical interview.
Dr. Kennell diagnosed generalized anxiety
which became more specific when Mr. Potter was asked to do fine
motor activities.
He was uncertain if Mr. Potter had Attention
Deficit Disorder.
He concluded that the anxiety worsened the
tremor and that he could not “fully engage in his job anymore”
for that reason.
(Doc. #15-2, 86-94).
On November 12, 2009, Dr. Hanna completed a physical
capacities assessment form.
On it, he indicated that Mr. Potter
could lift, carry, push or pull ten pounds occasionally, and also
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could occasionally bend, stoop, crouch, twist, reach at or above
shoulder level, and flex and extend his neck, but he could never
balance, use vibrating tools or equipment, or use his hands
repetitively.
permanent.
He described all of these limitations as
(Doc. #15-2, 3).
Dr. Hanna reported on March 22, 2010, that Mr. Potter had
been diagnosed with his tremor many years before and that various
medications had been tried in order to control it, but these
medications were largely ineffectual.
Dr. Hanna described the
tremor as “one of the most severe that I have seen” and noted
that it precluded Mr. Potter from performing both gross and fine
motor skills and functions.
Because his current job required
typing, writing, and operating machinery, and he could not do any
of these things, Dr. Hanna believed him to be disabled.
(Doc.
#15-1, 59).
Dr. Hanna was contacted by Dr. Petrie, a medical reviewer,
on May 13, 2010.
He reiterated his belief that due to the
problems with his upper extremities, Mr. Potter was disabled.
He
acknowledged that Mr. Potter had only gone to the Cleveland
Clinic once for evaluation and not returned, and he believed that
Mr. Potter drove himself to his office appointments.
Dr. Petrie
also contacted Dr. Sole, who confirmed that the tremor was
limited to the upper extremities and that it did not occur at
rest.
He did believe that medications for ADHD would worsen the
tremor.
(Doc. #15-3, 90-94).
Dr. Sole, who practices with Parkersburg Neurological
Associates, wrote a letter on March 1, 2010, stating that Mr.
Potter had been receiving treatment from that practice group
since 2001, and that he had been last seen on February 5, 2010.
Dr. Sole reported that Mr. Potter was “unable to work secondary
to the tremor” and that he could not write, nor could he perform
either fine or gross movements without experiencing severe
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tremor.
Dr. Sole believed that if Mr. Potter attempted to work
he “would put himself as well as others at risk secondary to the
severe tremor.”
(Doc. #15-2, 27).
The notes of the February 5,
2010 visit reflect a similar opinion concerning Mr. Potter’s
ability to work.
(Doc. #15-2, 29-30).
A therapist at the Marietta Memorial Hospital did a
functional capacity evaluation of Mr. Potter on February 3, 2010.
The specific test performed was described as an “Upper
Extremity/Hand PCE.”
Mr. Potter’s effort was maximal.
His
tremor was noted and was more pronounced when he was not putting
a load on his muscles.
He was unable to complete a test
involving putting pegs, washers and sleeves on a board.
It was
noted that he was “unremarkable during gross motor activities.”
His restrictions were in the area of “work that require (sic)
upper extremity fine motor dexterity and coordination” including
“writing, typing, and manipulation of small objects, tools and
pieces.”
(Doc. #15-2, 50-59).
B.
Physician Reviews
Dr. Ahmed, a neurologist, was asked by Sedgwick to review
Mr. Potter’s medical records.
In a report dated December 29,
2009, he noted that Mr. Potter had been treated for his tremor
since 1993 (and had been treated for other conditions as well,
including anxiety and depression).
First, he obtained treatment
from the Cleveland Clinic, then from Parkersburg Neurological
Associates, and finally from his current treating physician, Dr.
Hanna.
By October, 2008, Dr. Hanna had concluded that Mr. Potter
could no longer work.
Dr. Ahmed tried to contact Dr. Hanna but
the two traded telephone messages and, at least prior to this
report, never spoke.
Dr. Ahmed concluded that Mr. Potter
suffered from a severe tremor exacerbated by anxiety and that it
affected his fine motor skills.
However, because Mr. Potter was
still driving a car, Dr. Ahmed believed he could also drive a
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truck, which was part of his job with SABIC.
Nevertheless, he
recommended that an occupational therapist or physician see Mr.
Potter to determine if he could actually do all of the activities
required by his job.
(Doc. #15-1, 1-6).
Dr. Suvalsky, a psychiatrist, wrote a report three weeks
earlier in which she commented on Mr. Potter’s depression and
anxiety.
She had also written a number of prior reports about
his psychological conditions.
She had recently spoken to Dr.
Hanna about these disorders and concluded that, other than
restricting Mr. Potter from doing fine manipulation because that
increased his anxiety level which, in turn, exacerbated his
tremor, he did not have any work-related limitations from either
anxiety or depression.
(Doc. #15-2, 10-14).
Shortly after Sedgwick wrote its letter of January 8, 2010
initially denying Mr. Potter’s claim, Dr. Ahmed submitted a
revised report.
In that report, dated January 20, 2010, Dr.
Ahmed indicated that he had been able to speak to Dr. Hanna, and
that Dr. Hanna had told him that certain medications had been
tried (including medications referred to in Dr. Ahmed’s earlier
report) but that Mr. Potter could not tolerate them.
Dr. Ahmed’s
assessment of Mr. Potter’s condition did not change, and he
reiterated that Mr. Potter could probably do his job at the
landfill, but he admitted that he was “not sure how much of his
fine motor skills are needed to carry out his job.”
Doc. #15-1,
14-19.
Sedgwick relied extensively on Dr. Petrie’s evaluation of
May 17, 2010 when denying Mr. Potter’s claim.
appears at pages 90-94 of Doc. #15-3.
That evaluation
The Court will summarize
it in some detail because it is one of the key documents in the
case.
Dr. Petrie reviewed records from Dr. Sole, Dr. Sweeney, Dr.
Hanna, and Dr. Kennell, among others.
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He also spoke with Dr.
Hanna and Dr. Sole.
Dr. Petrie concluded that Mr. Potter
suffered from a familial/essential tremor affecting his
coordination and use of his upper extremities to the extent that
he could not perform fine manipulative activities.
This would
disable him from occupations requiring driving and, in fact,
disabled him from his previous occupation as a truck driver.
that extent, the disability was not likely to improve.
To
Mr.
Potter also had a comorbid anxiety disorder and suspected ADD.
Dr. Petrie noted that although he believed that Mr. Potter could
do jobs not requiring fine manipulation, “[w]hether such jobs
exist in the employee’s community, and whether they are within
his sphere of education, training, or experience, is a question
to be answered through a vocational assessment.”
Nevertheless,
Dr. Petrie indicated that Mr. Potter was not disabled from “any
occupation for which he is suited based on education, training or
experience.”
C.
The Claim Denial Letters
The first claim denial letter, dated January 8, 2010, does
not say so specifically, but it appears to have relied on the
evaluations done by Drs. Ahmed and Suvalsky.
It stated, briefly,
that the objective clinical evidence from Drs. Hanna and Kennel
did not document a condition that would prevent Mr. Potter from
doing some jobs for which he was qualified.
It did not conclude,
one way or the other, if he could still do his regular job, nor
did it identify any specific job which he could perform.
Doc.
#15-1, 10.
SABIC’s final claim denial letter is dated June 18, 2010,
and is found at Doc. #15-3, pp. 98-99.
It contains little
analysis that is independent of Dr. Petrie’s report, quoting from
that report extensively and adopting the conclusion that Mr.
Potter does not meet the plan definition of disability because he
is not disabled from occupations for which his education,
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training or experience make him a suitable employee.
The letter
makes no mention of the other disability awards and no mention of
Dr. Petrie’s comment about a vocational assessment being
necessary to determine if, in fact, there are jobs which Mr.
Potter could do notwithstanding his limitations.
It also makes
no reference to any earlier reports from medical reviewers,
including Drs. Ahmed and Suvalsky.
V.
A number of the issues raised by Mr. Potter do not merit
reversal of the administrative decision.
However, at least one,
and perhaps two, of his claims persuade the Court that he is
entitled to have SABIC investigate his claim further because its
current decision fails to satisfy even the “arbitrary and
capricious” standard of review that applies here - which, as the
Court of Appeals has held, does not require the federal courts to
“rubber-stamp” any and all administrative decisions made under an
ERISA plan.
See Moon v. Unum Provident Corp., 405 F.3d 373, 379
(6th Cir. 2005).
A.
The Absence of Vocational Evidence
According to the summary plan description, there are two
bases on which SABIC could legitimately deny a claim for longterm disability benefits: either (1) the claimant is still able
to perform his or her present job despite a “medically
determinable, permanent physical or mental impairment”; or (2)
the claimant is able to earn at least 80% of his or her predisability earnings either doing his or her regular occupation,
or by working for “[a]ny other available employer or job in your
local economy for which you are reasonably fitted by your
remaining capacities and by your education, training, or
experience.”
See Doc. 15-7, at 63.
The local economy is defined
to include the area “60 miles from your residence at the time of
disability.”
Id.
This is essentially a restatement of the same
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definition of disability that appears in the Plan itself. See
Doc. #15-4, 88.
Although SABIC’s memoranda imply that Mr. Potter might still
be able to work as a truck driver, citing to Dr. Ahmed’s report,
as supported, that was not the basis of the final denial of his
claim.
In the last denial letter, Mr. Potter was determined to
be disabled from his job with SABIC, and the basis of the denial
was Dr. Petrie’s statement that he was not disabled from
performing other, unspecified jobs for which he was suited by his
experience, education and training.
The flaw with this decision
is that the record contains absolutely no evidence of what types
of jobs Mr. Potter might be suited for based on whatever level of
experience, education and training he might have; no evidence of
whether any such jobs actually exist within sixty miles of his
residence; and no evidence of whether these jobs pay at least 80%
of his pre-disability earnings.
In McDonald v. Western-Southern Life Ins. Co., 347 F.3d 161
(6th Cir. 2003), the Court of Appeals also reviewed a decision of
a plan administrator under an arbitrary and capricious standard
of review.
There, the plan entitled an employee to disability
benefits only if he or she was unable to perform “any and every
occupation, business or employment for wages, compensation, or
profit.”
Id. at 163.
The administrator terminated benefits
based on the opinion of a reviewing psychiatrist that the
claimant could return to work.
In reversing the decision, the
Court of Appeals concluded, among other things, that such a
decision could not be made without some evidence of what jobs the
claimant could perform.
The holding of McDonald has been
specifically applied to a plan with language similar to the SABIC
plan concerning the ability to earn at least 80% of predisability earnings.
In Crider v. Highmark Life Ins. Co., 458
F.Supp. 2d 487, 507 (W.D. Mich. 2006), the court stated that
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“[t]he Sixth Circuit has consistently held that a plan
administrator responsible for terminating benefits under this
type of long-term disability policy must (1) identify the type of
jobs that the administrator believes plaintiff is capable of
performing; and (2) make a sufficient inquiry into whether the
jobs it has identified are jobs the claimant can reasonably
perform in light of the claimant's specific functional
limitations.”
It may not be strictly necessary that in every such case,
the plan administrator retain the services of a vocational
expert.
See, e.g., Douglas v. General Dynamics Long Term
Disability Plan, 43 Fed. Appx. 864 (6th Cir. August 7, 2002); see
also Caldwell v. Life Ins. Co. of North America, 287 F.3d 1276
(10th Cir. 2002).
However, there must be at least some evidence
from a qualified source addressing the issue of the claimant’s
ability to work - and, if the plan specifies matters such as an
amount of earnings and a particular geographic area in which work
must be available, evidence on those issues as well.
As the
Caldwell court observed, plan language like that involved in this
case “requires a complicated evaluation of a claimant’s
abilities, skills and education as well as an assessment of the
labor market in a claimant’s geographic region.”
Id. at 1289.
Although Caldwell declined to adopt a categorical rule in favor
of vocational expert testimony in all such cases, it held that
the determination of whether the absence of such evidence
rendered the plan administrator’s decision flawed is to be made
on a case-by-case basis, and that it is only when “a claims
administrator can garner substantial evidence to demonstrate that
a claimant is, in fact, able to perform other occupations (within
the definition set out by the insurer) in the open labor market”
that “consideration of vocational expert evidence is
unnecessary.” Id.
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Here, Dr. Petrie, upon whose report SABIC relied to
determine that Mr. Potter could do other jobs, admitted that he
could not answer these types of questions and that a vocational
assessment would be needed to do so.
was ever obtained.
However, no such assessment
Dr. Ahmed’s report did not address this
issue, either, because he believed that Mr. Potter could return
to his work at SABIC, but that is not the conclusion reached in
the final denial letter.
Without this type of evidence in the
record from any source, the decision that Mr. Potter could not
continue in his present job due to his impairments, but that he
did not meet the plan definition of “disabled,” is necessarily
arbitrary and capricious because the decision was made without
any factual basis.
The Court notes that, throughout its memoranda, SABIC argues
that the keystone of the “arbitrary and capricious” standard of
review is the process followed by the claims administrator,
rather than the end result.
Certainly, process issues weigh
heavily in the Court’s decision-making, but just because a
claimant was afforded a thorough review process, it does not
necessarily follow that the decision reached at the end of that
process is immune from judicial scrutiny.
As the Court of
Appeals observed in Baker v. United Mine Workers of America
Health and Retirement Funds, 929 F.2d 1140, 1144 (6th Cir. 1991),
“[a]pplying the abuse of discretion standard in this context
requires that the Trustees' decision be upheld if it is the
result of a deliberate, principled reasoning process and if it is
supported by substantial evidence.”
The Court of Appeals has
consistently reaffirmed this formulation.
See, e.g., Schwalm v.
Guardian Life Ins. Co. Of America, 626 F.3d 299, 308 (6th Cir.
2010).
Clearly, the second prong of this test - whether the
decision is supported by substantial evidence - requires the
Court to focus on the evidentiary support for the administrative
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decision and not just the process.
And when that support is
lacking, the administrator cannot make the kind of “reasoned
judgment” that is required even under the arbitrary and
capricious standard.
See, e.g., Elliott v. Metropolitan Life
Ins. Co., 473 F.3d 613, 618 (6th Cir. 2006)(a plan administrator
“could have made a reasoned judgment only if it relied on ...
evidence ...”).
In this case, the effect of SABIC’s failure to obtain any
type of vocational evidence is especially significant.
SABIC,
through Sedgwick, ultimately accepted the proposition that Mr.
Potter could not do fine manipulation with his hands or arms which, by the way, basically eliminates any issue about the video
he submitted, since it simply confirms that finding.
But it
assumed, without evidence, that there are jobs within a sixtymile radius of Mr. Potter’s home that can be performed, from a
physical standpoint, by someone who was not limited in the use of
his lower extremities but who could perform only gross
manipulations or movements with his hands and arms.
Such jobs
may exist somewhere; in fact, they may even exist within the
relevant geographic area, but there is nothing in the record to
support that conclusion, nor the conclusion that Mr. Potter’s
specific education, training and experience level would qualify
him for these jobs, nor, finally, the conclusion that any of
these jobs pay at least 80% of his pre-disability earnings.
Because, under the language of the plan itself, all of these
findings have to be made by the plan administrator once the
claimant demonstrates an inability to perform his or her usual
job, evidence on these factual issues is critical to a reasoned
determination of the case.
Without it, such a determination
simply cannot be made, and it was not made here.
B.
Other Issues
The only other issue which concerns the Court is the
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complete lack of acknowledgment of the Social Security
Administration’s award of benefits.
As SABIC correctly points
out, such failure, by itself, is not ordinarily a sufficient
basis to find that a decision is arbitrary and capricious, at
least where the administrator has not encouraged the claimant to
apply for social security benefits and the plan does not benefit
financially from an award of those benefits.
See, e.g., Calvert
v. Firstar Finance, Inc., 409 F.3d 286, 295 (6th Cir. 2005)(“the
SSA's disability determination does not, standing alone, require
the conclusion that Liberty's denial of benefits was arbitrary
and capricious”).
Nevertheless, the failure to discuss or even
mention such an award is some evidence of the arbitrariness of
the decision-making process because “a disability determination
by the Social Security Administration is relevant in an action to
determine the arbitrariness of a decision to terminate benefits
under an ERISA plan.”
Glenn v. MetLife, 461 F.3d 660 (6th Cir.
2006).
Again, under the facts of this case, such an award is
particularly relevant because under Social Security regulations,
a claimant who cannot perform the requirements of his or her past
job is deemed disabled only if the claimant cannot perform any
other work that exists in the local, regional, or national
economies which would be available to the claimant based on his
or her education, physical capabilities, and job skills.
That is
a much more stringent test than the one which is found in the
SABIC plan, which requires that the jobs be local and that they
pay at least 80% of pre-disability earnings.
The failure to
acknowledge the Social Security Administration’s decision, or to
offer some reasoned explanation why the plan administrator has
come to a different conclusion under what appears to be a more
lenient standard, is, on this record, further evidence of an
arbitrary and capricious decision.
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Beyond that, however, the balance of the decision-making
process appears to have been reasonable.
This is not a case
where an examination of Mr. Potter would likely have yielded any
results not already evident from the records submitted by his
treating doctors or from the physical capacities evaluation, and
the file reviewers spoke with both Dr. Hanna and Dr. Sole, so
they were thoroughly informed of the bases for those physicians’
opinions.
See Calvert, supra, at 295 (“reliance on a file review
does not, standing alone, require the conclusion that [a plan
administrator] acted improperly”).
Further, Dr. Petrie accepted
the fact that Mr. Potter could not do fine manipulation nor
perform his past job with SABIC; the key issue here is what else
he could do, and a physical examination of Mr. Potter would not
appear to have been particularly informative on that issue.
Thus, aside from the two issues which, in the Court’s view,
preclude affirmance of the plan administrator’s decision, there
is no additional basis upon which Mr. Potter could be afforded
relief.
VI.
Given that the plan administrator’s decision may not be
affirmed, the next question is what remedy the Court should
order.
Here, the problems giving rise to reversal are the lack
of factual development or consideration of issues relating to Mr.
Potter’s vocational profile and the jobs which might be available
to him in the specified geographic area and the failure to
consider or distinguish (if possible) the award of social
security benefits.
These issues can be cured by remanding the
case to the plan administrator for further development.
that is so, such a remand is the proper remedy.
When
Cf. Sowers v.
Sun Healthcare Group, Inc., 2008 WL 3285752 (S.D. Ohio August 8,
2008), citing Williams v. International Paper Co., 227 F.3d 706
(6th Cir. 2000)(an award of benefits by the District Court is
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proper if there are no factual issues remaining to be
determined).
Consequently, the Court will order a remand.
VII.
For the foregoing reasons, the Court grants plaintiff’s
motion for judgment on the administrative record (#17) and denies
defendant’s motion for summary judgment (#18).
The
administrative decision denying Mr. Potter’s claim for long-term
disability benefits is reversed, and this case is remanded to the
plan administrator for further proceedings in accordance with
this Opinion and Order.
The Clerk shall enter judgment
accordingly.
/s/ Terence P. Kemp
United States Magistrate Judge
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