Leppert v. Liberty Life Assurance Company of Boston

Filing 18

OPINION AND ORDER granting 14 Motion for Summary Judgment; denying 15 Motion for Judgment as a Matter of Law. Signed by Judge James L. Graham on 3/24/2016. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Dana Leppert,
Plaintiff,
v.

Case No. 2:14-cv-1207

Liberty Life Assurance
Company of Boston,
Defendant.
OPINION AND ORDER
This is an action filed by Dana Leppert, a former employee of
Triumph Aerospace Systems, an affiliate of Triumph Group, Inc.,
pursuant to the Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. §1132(a)(1)(b).

Plaintiff seeks payment of

long-term disability (“LTD”) benefits under the terms of the
Triumph Group, Inc., employee benefit plan, which is funded by an
insurance policy issued by defendant Liberty Life Assurance Company
of Boston (“Liberty”). Under the terms of the Triumph Group, Inc.,
Group Disability Income Policy (“the Policy”), Triumph Group, Inc.,
is the plan sponsor, and Liberty is the claims administrator.
Under the terms of the Policy, a participant is eligible to
receive LTD benefits for up to a 24-month period if the participant
is “Disabled,” that is, that the participant “as a result of Injury
or Sickness, is unable to perform the Material and Substantial
Duties of his Own Occupation.”
Covered

Person’s

occupation

AR 9.
that

“‘Own Occupation’ means the

he

was

performing

when

his

Disability or Partial Disability began ... as it is normally
performed in the national economy.”

AR 11.

Subsequent to the 24-

month period, a participant is eligible for LTD disability benefits
only if “thereafter, the Covered Person is unable to perform, with

reasonable continuity, the Material and Substantial Duties of Any
Occupation.”

AR 9.

“‘Any Occupation’ means any occupation that

the Covered Person is or becomes reasonably fitted by training,
education, experience, age, [and] physical and mental capacity.”
AR

8.

The

term

“Material

and

substantial

Duties”

means

“responsibilities that are normally required to perform the Covered
Person’s Own Occupation, or any other occupation, and cannot be
reasonably eliminated or modified.”

AR 11.

The Policy requires

that the participant submit proof of disability, including a claim
form, an attending physician’s statement, and other supporting
medical records.

AR 17-18.

Plaintiff, who is now fifty-nine years of age, was employed by
Triumph Aerospace Systems repairing aircraft windows.
suffers from osteoarthritis and joint problems.

Plaintiff

He filed a claim

for LTD disability benefits on May 2, 2011, and began to receive
LTD benefits on October 29, 2011, based on Liberty’s finding that
plaintiff was physically unable to perform his own occupation.
Plaintiff also applied for and received monthly disability benefits
from

the

Social

Security

Administration,

which

found

that

plaintiff’s first month of entitlement to benefits was October,
2011.
On May 3, 2012, Liberty obtained a review of plaintiff’s
medical records by Dr. Gale G. Brown, Jr., M.D., a board-certified
specialist in physical medicine and rehabilitation.

A vocational

rehabilitation assessment was begun by Lori Ashworth, a vocational
rehabilitation counselor, on May 22, 2012, but was not completed.
In a report dated February 18, 2013, Dr. Brown reported on an
additional review of plaintiff’s medical records and completed a

2

transferable skills analysis. Another transferable skills analysis
was completed on March 8, 2013, by Michelle Reddinger, a certified
rehabilitation counselor.

By letter dated June 5, 2013, Liberty

asked plaintiff to provide additional medical records in support of
his eligibility for continued benefits.

By report dated July 23,

2013, Liberty obtained an independent peer review of plaintiff’s
records by Dr. Martin Kanner, M.D., a board certified specialist in
physical medicine and rehabilitation.
By letter dated September 26, 2013, Liberty advised plaintiff
that his LTD benefits would not be paid beyond October 28, 2013,
due to his failure to meet the “any occupation” standard which
applied after the first twenty-four months of LTD benefits.

Based

upon the medical and vocational reviews Liberty received, Liberty
determined that plaintiff’s symptoms and physical impairments would
not

preclude

demanding,

him

full

from
time

performing

alternate,

occupational

duties,

less
and

physically

specifically

identified four occupations which plaintiff could perform.
By letter dated March 29, 2014, plaintiff advised Liberty that
he was pursuing an appeal from the denial of benefits.

Plaintiff

also provided Liberty with his social security disability file. In
addition to considering these records, Liberty obtained a review of
plaintiff’s records by Dr. Francesca Litow, M.D., a board-certified
specialist in occupational medicine, who provided Liberty with a
report on June 4, 2014.

By letter dated June 6, 2014, plaintiff

was advised that his appeal was denied.

Plaintiff then filed the

instant action seeking to recover benefits under the Policy.
I. Standard of Review
A plan administrator’s denial of benefits is reviewed de novo

3

unless the benefit plan specifically gives the plan administrator
discretionary authority to determine eligibility for benefits or to
construe the terms of the plan.

Morrison v. Marsh & McLennan

Companies, Inc., 439 F.3d 295, 300 (6th Cir. 2006). Where an ERISA
plan gives the plan administrator such discretionary authority, the
administrator’s

decision

capricious standard.

is

reviewed

under

the

arbitrary

and

Firestone Tire & Rubber Co. v. Bruch, 489

U.S. 101, 111 (1989).
The Policy provides:
Liberty shall possess the authority, at its sole
discretion, to construe the terms of this policy and to
determine benefit eligibility hereunder.
Liberty’s
decisions regarding construction of the terms of this
policy and benefit eligibility shall be conclusive and
binding.
Doc 11, p. 38.
The court finds that the arbitrary and capricious standard of
review applies in this case.

In applying the arbitrary and

capricious standard, a court will weigh as a factor whether a
conflict of interest existed on the part of the decision-maker in
determining whether there was an abuse of discretion. Metropolitan
Life Ins. Co. v. Glenn, 554 U.S. 105, 115 (2008); Bennett v. Kemper
Nat’l Servs., Inc., 514 F.3d 547, 552-53 (6th Cir. 2008). However,
“mere allegations of the existence of a structural conflict of
interest are not enough to show that the denial of a claim was
arbitrary; there must be some evidence that the alleged conflict of
interest

affected

benefits.”
Cir. 1998).

the

plan

administrator’s

decision

to

deny

Peruzzi v. Summa Medical Plan, 137 F.3d 431, 433 (6th
There is no specific evidence in this case that

Liberty’s status as an insurer impacted the benefits decision in

4

this case.
shown.

No history of biased claims administration has been

In fact, Liberty granted plaintiff’s initial claim for LTD

benefits

under

the

broader

applicable to that claim.

definition

of

total

disability

The circumstances of this case and the

lack of evidence of bias weigh against a finding of any conflict of
interest on the part of Liberty.
II. Denial of Continued LTD Benefits
In

reviewing

Liberty’s

decision

to

deny

plaintiff’s

application for continued LTD benefits, this court applies the
arbitrary and capricious standard of review.

Review under the

arbitrary and capricious standard is “extremely deferential.”
McClain v. Eaton Corp. Disability Plan, 740 F.3d 1059, 1064 (6th
Cir. 2014). “Review under the arbitrary and capricious standard is
the least demanding form of judicial review of an administrative
action; it requires only an explanation based on substantial
evidence that results from a deliberate and principled reasoning
process.” Morrison, 439 F.3d at 300; see also

Shields v. Reader’s

Digest Ass’n, Inc., 331 F.3d 536, 541 (6th Cir. 2003)(“When it is
possible to offer a reasoned explanation, based on the evidence,
for

a

particular

outcome,

that

outcome

is

not

arbitrary

or

capricious.”); Williams v. International Paper Co., 227 F.3d 706,
712 (6th Cir. 2000)(if there is a reasonable explanation for the
administrator’s decision denying benefits in light of the plan’s
provisions, then the decision is neither arbitrary nor capricious).
This

is

true

regardless

of

whether

an

equally

interpretation is offered by the plan participant.

rational

Gismondi v.

United Techs. Corp., 408 F.3d 295, 298 (6th Cir. 2005).

“The

arbitrary and capricious standard requires courts to review the

5

plan provisions and the record evidence and determine if the
administrator’s decision was ‘rational.’” Schwalm v. Guardian Life
Ins. Co. of America, 626 F.3d 299, 308 (6th Cir. 2010).

In

reviewing the administrator’s decision, the court’s review is
limited to the administrative record which was before the plan
administrator at the time of the benefit determination.

Schwalm,

626 F.3d at 308.
In denying continued LTD benefits, Liberty relied on its
review of plaintiff’s medical records as well as several expert
opinions.

In his May 2, 2012, report concerning his review of

plaintiff’s medical records, Dr. Brown concluded plaintiff had
permanent partial physical impairment related to his bilateral
shoulder and knee diagnoses (rotator cuff tears and advanced
osteoarthritis). Doc. 11, p. 126. Dr. Brown stated that plaintiff
is restricted to sedentary-light physical work, and that the
prognosis for resumption of work at those levels “is considered
excellent.”

Doc. 11, p. 127.

Dr. Brown also noted, “There is no

evidence for functionally limiting comorbid diagnoses or medication
side effects.”
Joseph

Doc. 11, p. 127.

Dr. Brown also spoke with Dr.

Assenmacher, Jr., M.D., plaintiff’s treating orthopedist.

They both agreed that plaintiff was currently appropriate for
vocational rehabilitation, and that he could perform full-time work
with some physical limitations, including: occasional standing and
walking, 10 to 15 minutes per session; constant sitting, 45 minutes
per session, with allowance for brief position changes as needed;
no reaching or lifting above left shoulder level; occasional
lifting, carrying, pushing, and pulling up to 10 pounds, and no
climbing, squatting, crouching, kneeling, or crawling. Doc. 11, p.

6

113.

In his transferable skills analysis dated February 18, 2013,

Dr. Brown indicated that he had reviewed additional medical records
which

did

not

change

his

opinions

regarding

plaintiff’s

impairments, and that plaintiff remained capable of full-time,
sedentary-light physical work.

Doc. 11, pp. 483-484.

Liberty relied on a transferable skills analysis completed by
Michelle Reddinger, a certified rehabilitation counselor. Based on
the physical limitations opined by Dr. Brown and information
concerning plaintiff’s employment history, Ms. Reddinger identified
four

occupations

which

were

compatible:

assembler

of

small

products; electronic assembler; information clerk (e.g., mall,
airport or visitor’s center); and security guard (e.g., badge
checker).

Doc. 11, pp. 474-476.

Liberty also obtained an independent peer review by Dr.
Kanner, who reviewed plaintiff’s medical records.
402-405.

Doc. 11, pp.

Dr. Kanner concluded that plaintiff had partial physical

impairments due to bilateral shoulder rotator cuff tears with
repair and a left irreparable rotator cuff, and knee impairments
due

to

advanced

arthroplasty.

osteoarthritis

Doc. 11, p. 413.

requiring

right

total

Dr Kanner noted that the

knee

physical

restrictions identified by Dr. Brown were medically supported
limitations due to plaintiff’s orthopedic symptoms, and that these
restrictions would be available at a sedentary/light full time
occupation.

Doc. 11, p. 413.

As part of the appeal process, Liberty obtained an additional
records review by Dr. Litow.

In her June 4, 2014, report, Dr.

Litow found that plaintiff’s impairments included a reduced range
of motion and muscular strength in his shoulder joints due to

7

bilateral rotator cuff tears.

Doc. 11, pp. 99-100.

She concluded

that plaintiff’s restrictions should include: no reaching, lifting
or work over shoulder level; limit lifting to 10 pounds frequently
and 20 pounds occasionally with both upper extremities; and no
climbing ladders, squatting, crawling, kneeling, or crouching.
Doc. 11, p. 100.

These restrictions were compatible with the

limitations proposed by Dr. Brown.
Liberty also referred in its appeal decision to the December
13,

2011,

report

of

plaintiff’s

medical

application

for

Dr.

Elizabeth

records

social

in

security

Das,

M.D.,

connection

who

with

benefits.

reviewed

plaintiff’s

In

describing

plaintiff’s residual functional capacity, Dr. Das indicated that
plaintiff could: occasionally lift or carry up to 20 pounds;
frequently lift or carry up to 10 pounds; stand, walk or sit up to
6 hours; could push or pull; could occasionally climb ramps or
stairs, but could never climb ladders, ropes or scaffolds; could
frequently stoop and occasionally kneel, crouch, and crawl.
11, p. 205.
work.

Doc.

Dr. Das concluded that plaintiff was capable of light

Doc. 11, p. 207.
Based on the evidence in the record, Liberty concluded that

plaintiff failed to prove that he was not capable of engaging in
“any occupation” as the Policy required for continued LTD benefits.
Liberty noted that plaintiff’s medical condition “was not of a
nature and severity that would have precluded him continuously
beyond

October

28,

2013[,]

from

performing

the

material

and

substantial duties of the alternative occupations identified as
being within his functional capacity and vocational skills.”
11, p. 93.

8

Doc.

Plaintiff contends that this finding constituted an abuse of
discretion

in

light

of

his

documented

physical

conditions,

including bilateral shoulder rotator cuff and knee problems.
However, the fact that plaintiff has certain physical conditions
does not automatically mean that these conditions would constitute
functional impairments precluding him from engaging in sedentary or
light employment.

Liberty correctly notes that the physical

capacity assessments of Dr. Brown (which were approved by Dr.
Kanner) and Dr. Litow are not contradicted by any other expert
opinion in the record, with the exception of the earlier opinion of
Dr. Das, who proposed restrictions which were less severe than
those

proposed

by

Drs.

Brown

and

Litow.

Dr.

Assenmacher,

plaintiff’s treating orthopedist, agreed with Dr. Brown’s physical
capability determination.

Dr. Mark Issa, M.D., and Dr. Ravi

Adusumilli, M.D., plaintiff’s cardiologists, declined to complete
a restrictions form, leaving that task to plaintiff’s primary care
provider. Dr. Mark C. Nadaud, D.O., plaintiff’s primary physician,
also declined to offer an opinion regarding plaintiff’s work
capacity, indicating that a functional capacity evaluation would be
needed to answer those questions.

Doc. 11, p. 453.

Plaintiff

failed to provide “proof” in the form of “an attending Physician’s
statement” or other evidence that his physical conditions entailed
functional limitations which would preclude him from performing
“any occupation.”

See Doc. 11, p. 12.

Plaintiff argues that Liberty did not adequately consider his
complaints about left-hand numbness and the fact that he is lefthand dominant.

Plaintiff raised no issues concerning his hand

ailments in his appeal.

He alleges for the first time in his

9

motion that he has arthritis in his hands which would preclude him
from working.
There are few references in the medical records to any
complaint about plaintiff being unable to use his left hand.
Plaintiff
vocational

reported

hand

numbness

rehabilitation

to

assessment

Lori
and

Ashworth
claimed

appointment with Dr. Assenmacher on June 13, 2012.

during

he

a

had

an

As a result,

Ashworth recommended that the referral of plaintiff’s case to her
be put on hold until the results of the appointment were obtained.
Doc. 11, p. 109.

However, Dr. Assenmacher’s treatment notes for

June 13, 2012, make no reference to left hand numbness or problems.
Doc. 11, p. 499.

The April 8, 2013, examination report of Dr.

Nadaud, noted that plaintiff had some deformity of digits and
complained of pain in his hands, but offered no opinion as to
whether these conditions would result in functional limitations.
Doc. 11, p. 463. Dr. Litow referred specifically to this record in
her report, Doc. 11, pp. 97, yet found no work limitations based on
this information.

Dr. Das noted in her earlier report of December

12, 2011, that plaintiff’s handling, fingering and feeling were
unlimited.
There

is

no

medical

evidence

in

the

record

supporting

plaintiff’s claim that he suffers from an inability to use his left
hand which, alone or in combination with other impairments, would
preclude his ability to work at the level identified by Dr. Brown
and Dr. Litow.

Liberty was correct in noting in the appeal

decision that “no impairments, restrictions, or limitations have
been supported [regarding manual dexterity] on the medical reviews
documented on file.”

Doc. 11, p. 92.

10

Plaintiff also argues that Liberty acted arbitrarily and
capriciously in relying on Reddinger’s transferable skills analysis
and vocational review.

In support of his appeal, plaintiff

presented printouts from the Occupational Information Network
(O*NET) and the Dictionary of Occupational Titles (DOT) concerning
the positions identified by Reddinger, and argued that his physical
limitations

would

preclude

him

from

performing

those

jobs.

Plaintiff offered no evidence from a vocational counselor or
physician

in

support

of

his

arguments.

Liberty

rejected

plaintiff’s arguments and accepted the opinion of Reddinger, a
certified rehabilitation counselor, that plaintiff would be able to
perform the sedentary duty occupations she identified. Liberty did
not abuse its discretion in doing so.
Under the terms of the Policy, plaintiff was required to give
Liberty proof of continued disability, that is, that he was “unable
to

perform,

with

reasonable

continuity,

Substantial Duties of Any Occupation.”

the

Material

and

Doc. 11, pp. 9, 18, 30.

“Proof” is defined as “evidence in support of a claim for benefits
and includes, but is not limited to, ... an attending Physician’s
statement[,] ... the provision by the attending Physician of
standard diagnosis, lab findings, test results, ... and/or other
forms of objective medical evidence [.]”
In addition, the Policy terms do not require Liberty to
identify a particular position that a claimant might fill before it
determines that the claimant is not disabled.

Likewise, Liberty

was not obligated to demonstrate that a suitable position at a
particular

wage

existed

in

a

given

geographic

available for plaintiff’s immediate hire.

11

area

and

was

The Policy states that

in determining disability, “Liberty will not consider employment
factors including, but not limited to, interpersonal conflict in
the workplace, recession, job obsolescence, paycuts, job sharing
and

loss

of

certification.”

a

professional
Doc. 11, p. 18.

or

occupational

license

or

Because the Policy does not

require the identification of a specific job currently available
within plaintiff’s geographical area, Liberty’s failure to do so
does not render its decision arbitrary or capricious, where it
obtained through proper sources a determination that plaintiff
could perform a broad range of sedentary jobs, and the specific
jobs listed were merely illustrations of what plaintiff could
perform.

See Curry v. Eaton Corp., 400 F.App’x 51, 70 (6th Cir.

2010). Rather, it was plaintiff’s burden under the policy to prove
that he was unable to perform the duties of “any occupation” for
which he “is or becomes reasonably fitted by training, education,
experience, age, physical and mental capacity.”
The

record

indicates

that

security disability benefits.

plaintiff

Doc. 11, p. 8.

was

awarded

social

An ERISA plan is not bound by the

SSA’s decision that a participant was disabled.

Combs v. Reliance

Standard Life Ins. Co., 511 F.App’x 468, 472 (6th Cir. 2013);
Calvert v. Firstar Fin., Inc., 409 F.3d 286, 294 (6th Cir. 2005).
A plan administrator’s failure to address the finding of the SSA
can render the denial of further LTD benefits arbitrary and
capricious.

Calvert, 409 F.3d at 295.

In this case, Liberty stated in its appeal letter that it had
considered the fact that plaintiff had been awarded social security
disability

income.

Liberty

noted

that

this

award

was

not

determinative of plaintiff’s entitlement to benefits under the

12

Policy, and that Liberty had considered additional medical and
vocational reviews, as well as more current medical records, that
were not considered by the Social Security Administration.

This

court notes that the social security records presented do not
clearly identify what type of social security benefits were awarded
or whether they were based on plaintiff’s inability to perform his
prior job of airplane window installer or any job.

In her social

security review of plaintiff’s records, Dr. Das concluded that
plaintiff was no longer capable of performing his prior job as an
airplane window installer, but that he was capable of performing
light work.

Dr. Das’s opinion is consistent with the medical and

vocational findings of Drs. Brown, Assenmacher, Kanner and Litow,
and with Reddinger’s vocational assessment.

Liberty adequately

explained why it was not giving significant weight to the SSA’s
award of social security disability benefits, and did not act
arbitrarily and capriciously in arriving at a different decision
under the terms of the Policy. See O’Bryan v. Consol Energy, Inc.,
477 F.App’x 306, 308 (6th Cir. 2012)(plaintiff did not demonstrate
that plan administrators acted arbitrarily and capricious where
they explained how they distinguished the decision to award social
security benefits).
The court’s review of the administrative record establishes
that

Liberty

did

not

act

arbitrarily

and

capriciously

in

determining that plaintiff had failed to prove that he was totally
disabled, as required under the Policy for the continuation of LTD
benefits.
III. Improper Calculation of Benefits
Plaintiff’s complaint includes a claim in Count II based on

13

Liberty’s alleged failure to pay the correct amount of LTD benefits
during the twenty-four months that such benefits were paid.
Liberty argues that it is entitled to judgment on this claim
because plaintiff failed to exhaust his administrative remedies
under

the

Policy.

ERISA’s

administrative

scheme

requires

a

participant to exhaust his or her administrative remedies prior to
commencing suit in federal court. Miller v. Metropolitan Life Ins.
Co., 925 F.2d 979, 986 (6th Cir. 1991).

The decision whether to

apply the exhaustion requirement is committed to the discretion of
the district court. Costantino v. TRW, Inc., 13 F.3d 969, 974 (6th
Cir. 1994).

Exhaustion and review by plan administrators allows

plan fiduciaries to efficiently manage their funds, to correct
their errors, to interpret plan provisions, and to assemble a
factual record which will assist the court in reviewing the
fiduciaries’ actions. Ravencraft v. UNUM Life Ins. Co. of America,
212 F.3d 341, 343 (6th Cir. 2000)(citing Makar v. Health Care Corp.
of Mid-Atlantic, 872 F.2d 80, 83 (4th Cir. 1989)).
Plaintiff was advised of his right to appeal in Liberty’s
decision letter of September 26, 2013.

The letter informed

plaintiff that his written request for review “must be sent within
180 days of the receipt of this letter and state the reasons why
you feel your claim should not have been closed.” Doc. 11, p. 400.
The letter further advised that if plaintiff failed to request
review, “our claim decision will be final, your file will remain
closed, and

no further review of your claim will be conducted.”

Doc. 11, p. 400. Plaintiff’s appeal letter of March 29, 2014, made
no reference to any miscalculation of benefits previously paid.
Doc. 11, pp. 120-123.

Likewise, neither the September 26, 2013,

14

denial letter nor the June 6, 2014, appeal decision addressed any
error in the calculation of paid benefits.1

Plaintiff did not

exhaust his administrative remedies on this claim, and it is not
properly before this court.
IV. Conclusion
The court concludes that Liberty did not act arbitrarily and
capriciously in determining that the plaintiff was no longer
entitled to disability benefits under the Policy, and Liberty is
entitled to summary judgment on Count I.

Count II is dismissed

without prejudice for failure to exhaust administrative remedies.
In accordance with the foregoing, plaintiff’s motion for judgment
on the administrative record (Doc. 15) is denied.

Defendant’s

motion for summary judgment (Doc. 14) is granted.

Date: March 24, 2016

s/James L. Graham
James L. Graham
United States District Judge

1

The only discussion of the amount of plaintiff’s benefits in
the administrative record occurs following letters to plaintiff
dated September 20, 2011, and September 22, 2011, in which Liberty
advised plaintiff of an overpayment of his weekly short term
disability benefits (paid prior to his eligibility for LTD
benefits) which would be recouped by reducing the amount of
plaintiff’s LTD checks. Doc. 11, pp. 378, 381. After plaintiff
disputed Liberty’s calculations by e-mail, see Doc. 11, pp. 368369, 412, a series of internal e-mails at Liberty ensued. In a
final e-mail dated October 27, 2011, Benefits Manager Peggy A.
Gorman stated, “Per our conversation this confirms that Liberty
should waive the $3,266.72 overpayment and use the [$]76,555.23 as
[a] base for LTD payments.”
Doc. 11, p. 367.
The $76,555.23
figure is the same taxable income figure which plaintiff claimed
should be the basis for his benefits calculations. Doc. 11, p.
368. The administrative record includes no evidence that Liberty
ever reduced plaintiff’s disability checks to recoup any
overpayment.
15