Schofield v. Nationwide Insurance Companies and Affiliates Plan for Your Time and Disability Income Benefits Plan

Filing 15

OPINION AND ORDER denying 7 Motion for Summary Judgment; granting 8 Motion for Summary Judgment. Signed by Judge James L. Graham on 2/14/2017. (ds)

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

Case No. 2:16-cv-371

Nationwide Insurance Companies
and Affiliates Plan for Your
Time and Disability Income
Benefits,
Defendant.
OPINION AND ORDER
This is an action filed by Angela Schofield, a former employee
of Nationwide Mutual Insurance Company (“Nationwide”), 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 Nationwide
Insurance

Companies

and

Affiliates

Plan

for

Your

Time

and

Disability Income Benefits (“the Plan”). Nationwide is the sponsor
of the Plan.

Administrative Record (“AR”) 343, Plan §1.55.

The

Plan administrator is the Benefits Administrative Committee (“the
Committee”).

AR 343,

Plan §1.54.

The members of the Committee

are appointed by Nationwide’s board of directors.
§1.12.

Aetna is the claims administrator.

AR 338, Plan

This matter is now

before the court on the cross-motions of the parties for judgment
on the administrative record.
I. History of the Case
A. Plan Provisions Regarding LTD Benefits
The Plan provides for both short-term and long-term disability
benefits.

In regard to long-term disability (“LTD”) benefits,

§4.03.02 of the Plan provides:
(a)

To commence Basic LTD Income Benefits, an Active
Associate must present evidence to the satisfaction of the Plan A

(1)

that the Active Associate’s LTD Disability is the
direct and proximate result of an Illness or
Injury;

(2)

that, as of the Active Associate’s Date of
Disability, there is a demonstrated, substantial
change in medical or physical condition as the
result of a specific physical injury or the
specific onset of a physical or mental illness,
demonstrated by new, significantly increased
physical
or
mental
impairments
such
as
a
significant loss of physical functional capacity;
and

(3)

that her LTD Disability is an Eligible Disability.

AR 362, Plan §4.03.02.

The Plan, §1.39, further provides:

“LTD Disability” or “LTD Disabled” means a disability or
disablement that results from a substantial change in
medical or physical condition as a result of Injury or
Illness and that prevents an Active Associate from
engaging in Substantial Gainful Employment for which she
is, or may become, qualified.... A substantial change in
medical or physical condition may be evidenced by the
change or loss of at least one of the Activities of Daily
Living.
AR 342-43, Plan §1.39.

“‘Activities of Daily Living’ means normal

daily activities including, but not limited to, bathing, dressing,
eating and

using the toilet.”

AR 337, Plan §1.03.

“‘Substantial

Gainful Employment’ means: For Active Associates, any occupation or
employment from which an individual may receive an income equal to
or greater than one-half of such individual’s Covered Compensation
as of her Date of Disability.”

AR 344, Plan §1.63.

It is the

responsibility of the employee to provide the claims administrator
with documentation supporting a claim for LTD benefits.
2

AR 375,

Plan §8.02.02(b).
The Plan provides for two levels of appeal from the claim
administrator’s denial of a claim for LTD benefits.
§8.02.05(a).

The

administrator.

first

AR

level

377-78,

of

Plan

appeal

is

§8.02.05.01.

to

AR 377, Plan
the

claims

The

appeal

determination is made by an individual who did not make the initial
adverse benefit determination, and no deference is accorded the
initial determination.

Plan §8.02.05.01 (f).

When the appeal is

based in whole or in part on a medical judgment, the claims
administrator handling the appeal “shall consult with a health care
professional who has appropriate training and experience in the
field of medicine involved in the medical judgment” and who was not
consulted in connection with the initial adverse determination.
Plan §8.02.05.01(g) and (I).
The second level of appeal is to the plan administrator (the
Committee).

AR 378, Plan §8.02.05.02.

The Plan provides:

If the appeal is related to clinical matters, the review
will be done in consultation with a health care
professional with appropriate expertise in the medical
field and who was not involved in the prior
determination. The Plan Administrator may consult with
or seek the participation of medical experts as part of
the appeal resolution process.
Plan §8.02.05.02(a).
B. Plaintiff’s Application for LTD Benefits
Plaintiff was previously employed by Nationwide as an IT
Specialist.

Plaintiff’s last day of work was July 14, 2014.

Plaintiff took a medical leave of absence due to pain in her left
arm, which was attributed to the removal of veins from that arm for
grafting during a 2012 coronary artery bypass surgery.

After

receiving short-term disability benefits, plaintiff applied for LTD
3

benefits.
In considering plaintiff’s claim, Aetna reviewed the records
of plaintiff’s primary care physician, Dr. Nancy Graesser, D.O.,
and Dr. Brandon Thompson, M.D., a specialist in physical medicine
and rehabilitation.

Aetna also obtained a review of plaintiff’s

medical records by an independent medical examiner, Dr. Elena
Antonelli,

M.D.,

who

occupational medicine.

is

board

certified

in

preventive

and

Dr. Antonelli provided a report dated

February 10, 2015, expressing the opinion that plaintiff’s medical
records did not support a finding of impairment or functional
restrictions which would preclude plaintiff from engaging in any
occupation.

AR

51.

Dr.

Antonelli

then

had

a

peer

review

discussion with Dr. Graesser, who indicated that plaintiff was
unable to perform her IT job due to the pain in her arm, which
would

preclude

her

from

typing,

and

(Gabapentin) makes her very drowsy.
supplemental report on March 11, 2015.

because

her

medication

Dr. Antonelli issued a
AR 67.

Dr. Antonelli

concluded that the additional information from Dr. Graesser did not
change her opinion.

AR 68.

In a letter dated March 18, 2015, Aetna notified plaintiff
that her claim for disability benefits was denied.

AR 128.

The

letter summarized the medical records received from Dr. Graesser
and Dr. Thompson.

The letter also addressed the peer review

conference of Dr. Graesser and Dr. Antonelli. Aetna noted that Dr.
Graesser addressed plaintiff’s ability to perform her current IT
job, but that the issue being determined was not plaintiff’s
ability to perform that job, but rather her ability to perform the
duties of any occupation.

Aetna concluded that the information

4

provided was not sufficient to support plaintiff’s impairment from
any reasonable occupation.

AR 129.

C. First Level Appeal
Following the denial of benefits, plaintiff retained counsel,
who sent an appeal letter to Aetna dated April 16, 2015.

AR 138.

During the appeal, Aetna reviewed treatment records from Dr.
Graesser and Dr. Thompson, as well as records from Dr. Carolyn
Neltner,

a

neurosurgeon,

and

a

physical

capacity

completed by Laura Miller, a physical therapist.

evaluation
Aetna also

obtained a review of plaintiff’s medical records by an independent
consultant, Dr. Malcolm McPhee, M.D., who is board certified in
physical medicine and rehabilitation.

In a report dated June 24,

2015, Dr. McPhee summarized the medical records, including Dr.
Graesser’s diagnosis of reflex sympathetic dystrophy (“RSD”)1, and
described his peer review conferences with Dr. Graesser and Dr.
Thompson.

AR

159-164.

Dr.

McPhee

noted

that

Dr.

Thompson

suggested complex regional pain syndrome (“CRPS”) as a possible
diagnosis for plaintiff’s condition.

However, Dr. McPhee observed

that no tests typically used to confirm a diagnosis of CRPS were
performed,

and

that

a

majority

of

the

symptoms

and

signs

characteristic of CRPS were not reported by plaintiff’s treating

1

RSD, also known as “complex regional pain syndrome,” is a
neurological condition that “typically follows an injury,” and is
characterized by various degrees of burning pain, excessive
sweating, swelling, and sensitivity to touch. The Merck Manual of
Diagnosis and Therapy 1633-34 (Robert S. Porter et al. eds., 19th
ed. 2011); see also Ross v. American Red Cross, 567 F. App’x 296,
300 n. 4 (6th Cir. 2014)(complex regional pain syndrome is an
uncommon form of chronic pain that usually affects an arm or leg;
it can develop after an injury or surgery, but the pain is out of
proportion to the severity of the initial injury).
5

physicians.

AR 164.

Dr. McPhee also noted that Dr. Thompson

indicated that if drowsiness was reported as a side effect of using
Gabapentin, the next step would be to adjust the doses given and to
consider alternative medication.

Dr. McPhee reported that the

physical capacity study showed no abnormality of the dominant right
upper extremity, and that, although there was some self-limited
left hand function due to pain, this was not severe enough to
preclude work activity with restrictions.

AR 165.

By letter dated July 30, 2015, Aetna advised plaintiff’s
counsel that plaintiff’s appeal was denied.

AR 169-172.

The

letter included a detailed summary of plaintiff’s medical records.
It was noted that tests were not performed to substantiate a
diagnosis of CRPS and that there was no evidence to support a total
lack of functional capacity.

AR 171.

Aetna further observed that

although Laura Miller, the physical therapist, indicated in her
physical capacity evaluation, AR 131-135, that plaintiff could only
function at less-than-sedentary strength levels for one hour at a
time, she offered no opinion concerning plaintiff’s level of
impairment while taking medication (plaintiff did not take her pain
medication the day of the evaluation). Dr. Graesser’s opinion that
plaintiff was unable to work was rejected as not being supported by
the examination findings of plaintiff’s other treating physicians.
AR 171. Aetna concluded that although plaintiff had limited use of
her left upper extremity, “we do not find that she is incapable of
engaging in substantial gainful employment.”

AR 171-72.

The

letter also noted that a vocational assessment was completed to
review plaintiff’s work and education history and her transferable
skills, and the assessment identified an alternative occupation,

6

that of project director, Dictionary of Occupational Titles number
189.117-030, which would provide plaintiff access to substantial
gainful employment.

AR 172.

D. Second Level Appeal
By letter dated August 3, 2015, plaintiff’s counsel notified
Aetna Nationwide Appeals of plaintiff’s intent to appeal the
decision to the Committee.

AR 174-75.

During the appeal, the

Committee reviewed the appeal letter and Aetna’s claim file.

The

Committee also arranged for an independent medical exam, which was
completed by Dr. Steven S. Wunder, M.D., who is board certified in
physical medicine and rehabilitation.

In a report dated March 5,

2016, Dr. Wunder summarized the results of his physical examination
of plaintiff, and also described the medical records which he
reviewed.

AR 5-9.

Dr. Wunder found that plaintiff did not meet

the criteria for the previous diagnoses of CRPS/RSD.

AR 9.

He

also concluded that there was “no evidence of contraindication to
working eight hours a day, five to seven days a week.”

AR 9.

By

letter dated March 24, 2016, plaintiff’s counsel was advised that,
after reviewing and considering all of the information in the
administrative record, the Committee affirmed the denial of LTD
benefits.

AR 1-3.

Plaintiff then filed the instant action.

II. Standard of Review
A. Applicable Standard of Review
A plan administrator’s denial of benefits is reviewed de novo
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

7

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 Plan, at §9.02, provides:
(a)

The Plan Administrator has the authority, power,
and discretion to construe and interpret the
provisions of the Plan and to decide all questions
as to eligibility to participate.
Any such
determination will be conclusive and binding upon
all persons having an interest in or under the
Plan;

(b)

The Plan Administrator has the authority to
determine the Payment of Plan benefits. The Plan
Administrator will pay Plan benefits only if it
decides in its discretion that the Claimant is
entitled to the benefits[.]

AR 380, Plan §9.02(a) and (b).

The court finds that the arbitrary

and capricious standard of review applies in this case.
B. Conflict of Interest
Plaintiff contends that a conflict of interest exists in this
case

which

benefits.

should

be

considered

in

reviewing

the

denial

of

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[.]”

Peruzzi v.

Summa Medical Plan, 137 F.3d 431, 433 (6th Cir. 1998).
Circuit

caselaw

“requires

a

plaintiff
8

not

only

to

Sixth

show

the

purported existence of a conflict of interest, but also to provide
‘significant evidence’ that the conflict actually affected or
motivated the decision at issue.”

Cooper v. Life ins. Co. of N.

Am., 486 F.3d 157, 165 (6th Cir. 2007)(quoting Peruzzi, 137 F.3d at
433).
Plaintiff argues that a structural conflict of interest
exists because Nationwide is the Plan administrator and is the
payor

of

benefits.

However,

under

the

terms

of

the

Plan,

Nationwide is the Plan sponsor, not the Plan administrator.
343, Plan §§1.54 and 1.55.
employee

contributions;

AR

The Plan is financed primarily by

Nationwide

is

only

required

to

make

contributions to the Plan when there is a shortfall of funds
necessary to pay benefits.

AR 388, Plan §§12.01, 12.03.

This

lessens the potential for any conflict of interest due to any
motivation
benefits.

on

Nationwide’s

part

to

restrict

the

payment

of

In addition, Nationwide is removed from the decision-

making process, because it is the Committee, as Plan administrator,
which has the ultimate say at the second appeal level as to whether
benefits will be awarded.
§8.02.05.02.

See AR 343, Plan §1.54; AR 378, Plan

There is no evidence that Nationwide exerted any

pressure on the Committee members to deny benefits.

The Committee

members receive no compensation for their services.

AR 380, Plan

§9.01(d).

There is no evidence that they have any financial

incentive to deny benefits.
The record contains no evidence of a Plan history of biased
claims administration.

The Plan’s two levels of appeal, each

featuring review by an individual who did not make the initial
adverse benefit determination, militate against a finding that the

9

claims process was tainted by any predisposition to deny the claim.
See

AR 377-78, Plan §§8.02.05.01 and 8.02.05.02.

The Plan’s

consultation with three independent medical experts, as well as the
fact that an independent medical exam was obtained, are additional
factors which suggest that no conflict of interest affected or
motivated the benefits decision in this case. 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 Aetna, the Committee, or
Nationwide.
III. Denial of Continued LTD Benefits
A. Arbitrary and Capricious Standard of Review
In reviewing the 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).

10

This is true

regardless of whether an equally rational interpretation is offered
by the plan participant. Gismondi v. United Techs. Corp., 408 F.3d
295, 298 (6th Cir. 2005).

“The arbitrary and capricious standard

requires courts to review the plan provisions and the record
evidence

and

‘rational.’”

determine

if

the

administrator’s

decision

was

Schwalm v. Guardian Life Ins. Co. of America, 626

F.3d 299, 308 (6th Cir. 2010).
B. Decision to Deny Benefits
The Plan argues that the decision to deny plaintiff’s claim
for LTD benefits was not arbitrary and capricious, particularly
because the Plan relied on the medical analysis and opinions of
three independent experts and the results of an independent medical
examination in concluding that the record did not support a finding
that plaintiff was disabled from engaging in substantial gainful
employment.
In considering plaintiff’s claim for LTD benefits, Aetna, the
Plan claims administrator, obtained a review of plaintiff’s medical
records by Dr. Elena Antonelli, an independent medical examiner
specializing in preventive and occupational medicine.

In her

report, Dr. Antonelli noted the statement of Dr. Nancy Graesser,
plaintiff’s primary care physician, that plaintiff has cervical
spinal stenosis and coronary artery disease, and that she was
unable to work due to persistent pain with any movement of her left
arm.2

AR 54.

Dr. Antonelli reviewed plaintiff’s medical records

2

The record includes records concerning plaintiff’s bypass
surgery in 2012. See AR 53. However, there is no evidence in the
administrative record that plaintiff is unable to work due to
coronary artery disease.
Dr. Antonelli also reviewed letters
regarding plaintiff’s consultations in January, 2014, with Dr.
Carolyn Neltner, a neurologist who reviewed the results of a
11

and opined that the records did not support plaintiff’s impairment
from any occupation.

AR 53-55.

She adhered to her original

opinion after a peer review consultation with Dr. Graesser. AR 68.
In the March 18, 2015, letter denying plaintiff’s claim, Aetna
referred to the medical records submitted by plaintiff as well as
Dr. Antonelli’s report.

AR 128-129.

Aetna concluded that the

medical records, including the records of plaintiff’s physicians,
Dr. Graesser and Dr. Brandon Thompson, did not provide sufficient
information

“to support any type of impairment that would prevent

[plaintiff] from performing the duties of any reasonable occupation
from a physical perspective.”

AR 129.

In considering plaintiff’s appeal, Aetna arranged for a review
of the file by an independent expert, Dr. Malcolm McPhee, M.D., a
specialist in physical medicine and rehabilitation.

In his June

24, 2015, report, Dr. McPhee summarized the medical records in
detail, and conducted peer review conversations with Drs. Graesser
and Thompson.

AR 159-164.

Dr. McPhee indicated that plaintiff’s

history of coronary artery disease would not preclude work activity
at a sedentary level.

AR 164.

Dr. McPhee disagreed with Dr.

Thompson’s diagnosis of CRPS as a possible cause of plaintiff’s
condition, noting that no tests typically used to confirm a
diagnosis of CRPS were performed, and that a majority of the
symptoms and signs characteristic of CRPS were not reported by

November, 2013, MRI exam of plaintiff’s cervical spine to determine
if there were any problems there which could be contributing to
plaintiff’s left arm pain.
AR 53.
Dr. Neltner noted that
plaintiff’s “cervical pathology is relatively minor and I do not
feel that it warrants any neurosurgical intervention. I also do
not feel that it is the etiology of her left arm symptoms.” AR
125.
12

plaintiff’s treating physicians.

AR 164.

He concluded that the

minimal findings and lack of chronic features would be insufficient
to expect severe pain attributable to CRPS.

AR 165.

Dr. McPhee

also concluded that the March 24, 2015, physical capacity exam
completed by Laura Miller, a physical therapist, see AR 131-135,
showed no abnormality of the dominant right upper extremities and
“some self-limited left hand function due to pain report although
not severe enough to preclude work activity with restrictions.” AR
165.

Dr.

McPhee

concluded

that

reasonable

restrictions

in

plaintiff’s case would be:
lift/carry 10 pounds occasionally and less than 10 pounds
frequently, stand/walk could be performed occasionally,
sitting would be unrestricted with change of position for
5 minutes every hour in addition to usual rest breaks,
crouch/squat could be on an occasional basis and right
hand use would be unrestricted. The left hand activities
would be restricted to less than 10 pounds grip and
assist the right hand primarily when two[-]handed
activities needed.
AR 165.
In the July 30, 2015, letter denying plaintiff’s appeal, Aetna
summarized plaintiff’s medical records in detail.
Aetna

also

concerning

referred
his

to

information

disagreement

with

from

the

Dr.

CRPS

AR 169-171.

McPhee’s

diagnosis

conclusions regarding plaintiff’s level of functioning.

report

and

his

Aetna

concluded that Dr. Graesser’s opinion that plaintiff is unable to
work “is not supported by the examination findings of her other
treating physicians.” AR 171. The decision letter further stated:
“Although we agree with Dr. Graesser that Ms. Schofield has limited
use of her left upper extremity, we do not find that she is
incapable of engaging in substantial gainful employment.”

13

AR 171-

172.

The letter also referred to a vocational assessment which

identified the occupation of Project Director as being a job which
plaintiff could perform.

AR 172.

In considering plaintiff’s second level appeal, the Committee
reviewed Aetna’s file and obtained a records review and independent
medical examination by Dr. Steven Wunder, M.D., a specialist in
physical medicine and rehabilitation.
2016,

Dr.

Wunder

described

the

In a report dated March 5,

observations

he

made

during

plaintiff’s physical exam and also summarized the medical records
he reviewed.

AR 105-109.

The history he took from plaintiff is as

follows:
Currently she reported after nearly four years she feels
about the same. Her pain symptoms are constant. With
medication she rates it as a 3-4. Without medicine it is
an 8. The only thing that has helped is the medication.
She feels worse with activity or use.
She has no
restrictions at all with the right upper extremity,
either lower extremity, back or neck.
She can sit,
stand, and walk without any restrictions. She only feels
worse with activity or use of the left arm such as
lifting. She indicated they told her she could use her
arm as tolerated and she could use it for cleaning, etc.
She is independent with activities of daily living such
as bathing, dressing, and personal hygiene. If she uses
both upper extremities, she thinks she can only lift 10
lb. Her daily activities consist of light housework.
She is able to load the dishwasher. She showers every
other day, because the water hitting her arm can cause
increased pain. She takes a nap due to the [G]abapentin.
She reads a lot. She is able to drive.
Her job was primarily clerical and desk work. She was an
IT specialist project manager. She last worked on July
6, 2014.
She indicates she did timekeeping, work
distribution, and managed projects.
There was some
typing. She did carry a laptop.
AR 5-6.
As to his physical examination of plaintiff, Dr. Wunder noted:
14

She ambulated normally.

There is no antalgia.

She had no tenderness to palpation in the lower back.
She had mildly restricted
complaints of pain with it.

lumbar

mobility

but

no

Her lower extremity motor, sensory and reflex exam was
normal.
Straight leg raise and sciatic stretch movements were
normal.
Range of motion of the hips, knees, and ankles was
normal. She had mild complaint of pain with range of
motion of the left ankle and indicated she has had
several sprains. There is no instability. There is no
atrophy.
Inspection of the cervical spine revealed no abnormal
postural curves. She had full range of motion of the
cervical spine, and there is no pain with it.
She
reported to me that they told her she had a disc
herniation in her neck, and occasionally she will get a
headache but does not report any radicular symptoms.
Range of motion of the shoulders, elbows, wrists, and
small digits was normal.
In her left shoulder, she
complained of mild pain with range of motion.
Impingement testing was mildly positive. Drop-arm test
was negative.
Speed test was negative.
O’Brien
compression test was negative.
Her upper extremity reflexes were 2+. Her motor strength
is normal. Sensation was normal on the right side. On
the left side, she had some hypersensitivity in a
superficial radial distribution. There is no numbness.
She had a 20-cm scar over the flexor surface of the
forearm. She complained of some tenderness along the
incisional area.
She had no vasomotor changes. The skin was not mottled
or cyanotic. The skin temperature was not cool. There
was no edema. The skin appeared normal, and it was not
overly dry or overly moist. Skin texture was normal.
There was no soft tissue atrophy.
There is no joint
stiffness or diminished passive motion. There are no
15

nail changes or hair growth changes.
There were no volumetric changes. Wrist circumferences
were equal and symmetric at 14.5 cm, and forearm
circumferences were 25 cm.
She reported she was right-hand dominant.
She lifts 40 lb, 25 lb, and 30 lb on the right and 10 lb,
25 lb, and 5 lb on the left.
She failed evaluation
criteria on the left side.
AR 6-7.
Dr. Wunder completed a capabilities and limitations form
indicating

that

plaintiff

had

no

restrictions

category of heavy weight lifting.

AR 4.

except

in

the

He concluded that

plaintiff was capable of working eight hours a day, five to seven
days

a

week.

AR

9.

Dr.

Wunder

reported

that

plaintiff’s

subjective complaints were not supported by objective findings,
that there were no objective abnormalities present on exam, and
that, although plaintiff may have some mild localized neuropathic
pain from an incomplete radial sensory neuropathy, she did not meet
the criteria for a diagnosis of CRPS/RSD.
In

the

March

24,

2016,

decision

AR 9.
letter,

the

Committee

indicated that it had reviewed all of the information in the
administrative record and referred specifically to Dr. Wunder’s
report.

AR 2-3.

The Committee determined that plaintiff did not

meet the definition of LTD Disabled and upheld Aetna’s denial of
benefits as being supported by the administrative record.

AR 3.

C. Plaintiff’s Arguments
1. Consideration of Plaintiff’s Pain and Drowsiness
Plaintiff argues that the independent expert opinions and the
Plan’s decisions ignored plaintiff’s pain and the high doses of

16

Gabapentin she takes, which causes drowsiness.
record reveals otherwise.

The administrative

See Report of Dr. Antonelli, AR 52-54

(noting plaintiff’s complaints of pain and drowsiness to Drs.
Graesser and Thompson); Aetna March 18,

2015, Letter, AR 128-129

(noting review of treatment notes from Drs. Graesser and Thompson
documenting complaints of persistent left arm pain and side effects
of medication); Report of Dr. McPhee, AR 161-163 (summarizing
medical

records

from

Drs.

Graesser,

Thompson,

and

Neltner,

documenting plaintiff’s complaints of left arm pain and drowsiness
with medication); Aetna July 30, 2015, Letter, AR 170-171 (noting
medical records reporting complaints of persistent pain and side
effects of medication); Report of Dr. Wunder, AR 5-8 (discussing
plaintiff’s reports of complaints of constant pain in her left arm
and the need to take a nap due to taking Gabapentin, as well as
references to pain in her medical records, but concluding that
although plaintiff “may have some mild localized neuropathic pain
from an incomplete radial sensory neuropathy ... she does not meet
[the] criteria for the diagnosis of CRPS/RSD”).

The Plan and the

independent experts did not ignore plaintiff’s complaints of pain.
Rather, they considered this evidence but concluded that it was not
sufficient to support a finding of LTD disability.

The fact that

the Plan accepted the opinions of the three independent medical
consultants instead of the opinions of plaintiff’s physicians,
particularly Dr. Graesser, on the issue of whether plaintiff’s pain
is debilitating was not arbitrary and capricious.

See McDonald v.

Western-Southern Life Ins. Co., 347 F.3d 161, 169 (6th Cir.
2003)(decision to deny benefits is not arbitrary and capricious
because the plan relied on the opinion of one doctor over the
opinion of another).
17

2. Consideration Treating Physician Opinions
Plaintiff further argues that the Plan acted arbitrarily and
capriciously in rejecting the opinion of her treating physician,
Dr. Graesser, that she was unable to work, without offering any
explanations for discounting her allegedly disabling pain.

In

Black and Decker Disability Plan v. Nord, 538 U.S. 822 (2003), the
Supreme Court noted that neither ERISA’s statutory provisions nor
the ERISA regulations promulgated by the Secretary of Labor adopted
a treating physician rule.
may

not

arbitrarily

Id. at 831-832.

refuse

to

credit

a

A plan administrator
claimant’s

evidence, including the opinions of a treating physician.
834.

reliable
Id. at

However, the Court held that “courts have no warrant to

require administrators automatically to accord special weight to
the opinions of a claimant’s physician; nor may courts impose on
plan administrators a discrete burden of explanation when they
credit reliable evidence that conflicts with a treating physician’s
evaluation.”

Id.

at

834.

Reliance

on

other

physicians

is

reasonable so long as the administrator does not totally ignore the
treating physician’s opinions.

Balmert v. Reliance Standard Life

Ins. Co., 601 F.3d 497, 504 (6th Cir. 2010).
Plaintiff relies on Evans v. UnumProvident Corp., 434 F.3d
866, 879-80 (6th Cir. 2006). In that case, the Sixth Circuit found
that the denial of benefits was arbitrary and capricious where the
plan ignored the reliable opinion of the claimant’s treating
neurologist that claimant’s high-stress position as a nursing home
administrator exacerbated her seizure condition, as well as other
evidence which established the high-stress nature of her job.
Cases cited in Evans describe other scenarios which were held to
constitute arbitrary and capricious decisions.
18

In McDonald, 347 F.3d at 170-71, the court reversed the plan
administrator’s

decision

where

claimant’s

treating

physicians

opined that he was unable to return to work, two independent
medical examiners questioned his ability to return to work, and a
psychiatrist’s supplement report which indicated that claimant was
malingering differed significantly from his initial report.

In

Moon v. Unum Provident Corp., 405 F.3d 373, 381-82 (6th Cir. 2005),
the administrator’s denial of benefits was arbitrary and capricious
where

plaintiff’s

primary

physician

carefully

documented

plaintiff’s condition and stated she was unable to return to work,
and the only contrary opinion came from defendant’s in-house staff
physician based only his selective records review.

In Calvert v.

Firstar Fin., Inc., 409 F.3d 286, 296-97 (6th Cir. 2005), the court
found that a neurosurgeon’s file review was inadequate compared to
objective data from claimant’s x-rays and CT scans and objectively
verifiable

disability

determinations

by

the

Social

Administration and claimant’s treating physician.

Security

In Kalish v.

Liberty Mut./Liberty Life Assur. Co. of Boston, 419 F.3d 501- 50910 (6th Cir. 2005), the plan administrator relied exclusively on an
expert who only reviewed the claim file, and who failed to rebut
contrary medical conclusions by a treating physician and the
observations of the plan’s own field investigator.
The

circumstances

distinguished.
addressed

the

Here,
records

in
the
of

the
Plan

instant
and

plaintiff’s

the

case

are

easily

independent

experts

treating

physicians

and

considered their opinions. Although specific explanations were not
required

under

Nord,

the

independent

experts

and

Aetna

also

provided sufficient reasons why they did not agree with the
opinions of plaintiff’s treating physicians.
19

Dr. Antonelli noted

that “Dr. Graesser has not provided any clinical information as to
the claimant’s inability to work based on clinical findings and
these limitations appear to be based primarily on her history of
several medical conditions.”

AR 55.

Dr. Antonelli also observed

that when plaintiff saw Dr. Thompson on September 30, 2014, she
stated that she was much better, that her pain averaged 3-4/10, and
that the Gabapentin dose was adjusted.

AR 54-55.

Following her

peer review consultation with Dr. Graesser, Dr. Antonelli noted
that Dr. Graesser stated that plaintiff could not perform her
current IT job due to arm pain and drowsiness from Gabapentin, but
that Dr. Graesser did not provide any clinical information as to
the

claimant’s

inability

Supplemental Report.

to

work.

AR

68,

March

11,

2015,

Aetna later noted in the denial letter that

the relevant issue was plaintiff’s ability to perform the duties of
any occupation, not the duties of plaintiff’s IT job.

AR 129.

Aetna concluded that the documents and medical records provided by
Drs.

Graesser

and

Thompson

were

not

sufficient

plaintiff’s impairment from any reasonable occupation.

to

support

AR 129.

At the first appeal level, Dr. McPhee discussed at length why
he disagreed with the diagnosis of CRPS, noting that the majority
of symptoms typical of this condition were not present, and that
tests typically used to confirm this diagnosis were not performed.
AR 164-165.

He also discussed the issue of drowsiness as a side

effect of Gabapentin with Dr. Thompson, who stated that adjustments
in the amount and timing of doses could be made, and alternative
medication could be considered.

AR 164-165.

In disagreeing with

a finding of disability, Dr. McPhee also relied on the physical
capacity study performed by Laura Miller, which he concluded showed
no abnormality of the dominant right upper extremities “and some
20

self-limited left hand function due to pain report although not
severe enough to preclude work activity with restrictions.”

AR

165.
Aetna relied on Dr. McPhee’s report in concluding that the
usual symptoms indicative of CRPS were not present in plaintiff’s
case.

AR

171.

Aetna

acknowledged

plaintiff’s

persistent

complaints of pain but found “no evidence to support a total lack
of functional capacity.”

AR 171.

Aetna also noted that Laura

Miller completed the physical capacity evaluation on a day when
plaintiff had not taken her pain medication, and that she offered
no opinion as to the levels of plaintiff’s impairment while taking
medication. AR 171. Aetna relied on Dr. Thompson’s statement that
the next step to take in the event of drowsiness was to adjust the
medication levels.

Aetna explained that Dr. Graesser’s opinion

that plaintiff is unable to perform gainful activity “is not
supported

by

physicians.”

the

examination

AR 171.

findings

of

her

other

treating

Aetna also stated that although it “agreed

with Dr. Graesser that Ms. Schofield has limited use of her left
upper extremity, we do not find that she is incapable of engaging
in substantial gainful employment.”

AR 171-172.

Dr. Wunder referred to Dr. Graesser’s records documenting
plaintiff’s complaints of pain, but noted that there were no
objective findings in those records.

AR 8.

Dr. Wunder commented

that the EMG and nerve conduction studies did not support a
diagnosis of cervical radiculopathy. AR 8. Dr. Wunder stated that
plaintiff’s subjective complaints were not supported by objective
findings, and that there were no objective abnormalities noted
during his examination of the plaintiff.

He also noted that

plaintiff did not meet the criteria for a diagnosis of CRPS/RSD.
21

AR 9.
The March 23, 2016, decision letter of the Committee stated
that the Committee had reviewed Aetna’s claim file and the results
of the independent medical examination.

AR 2.

The letter noted

that Dr. Wunder did not “find any evidence of contraindication to
working eight hours a day, five to seven days a week.

The letter

also noted that the Committee “upheld Aetna’s decision” as being
“supported by the administrative record.”

Although the letter did

not

in

specifically

discuss

the

documents

the

administrative

record, the Committee implicitly adopted the thorough reasoning
contained

in

Aetna’s

decision

letters

by

upholding

Aetna’s

decision.

The Plan provided adequate reasons for discounting the

disability opinions of plaintiff’s treating physicians, and did not
act arbitrarily and capriciously in doing so.
3. References to Lack of Objective Evidence
Plaintiff also argues that the Plan impermissibly required
only objective evidence as proof of disability, and that the
references by Aetna and the independent experts to the lack of
objective evidence imposed an additional burden on her, not found
in the Plan, to prove disability.

However, the Plan letters and

the reports of the independent experts indicate that all medical
documents in the administrative record were considered, including
those describing plaintiff’s subjective complaints of pain, and
that the Plan did not focus solely on objective evidence or the
lack thereof.
As to the references to the lack of objective or clinical
evidence, the Sixth Circuit has noted that “‘[r]equiring a claimant
to

provide

objective

medical

evidence

of

disability

is

not

irrational or unreasonable,’ even when such a requirement does not
22

appear among the plan terms.”

Hunt v. Metropolitan Life Ins. Co.,

587 F. App’x 860, 862 (6th Cir. 2014)(quoting Cooper, 486 F.3d at
166); Judge v. Metropolitan Life Ins. Co., 710 F.3d 651, 660-61
(6th Cir. 2013)(insurer’s conclusion that no objective evidence
supported physicians’ opinions was not arbitrary or capricious).
In this case, Dr. Antonelli stated that “Dr. Graesser has not
provided any clinical information as to the claimant’s inability to
work based on clinical findings and these limitations appear to be
based primarily on her history of several medical conditions.”
55.

AR

Aetna explained that Dr. Graesser’s opinion that plaintiff is

unable to perform gainful activity “is not supported by the
examination findings of her other treating physicians.”

AR 171.

Dr. Wunder referred to Dr. Graesser’s records of plaintiff’s
complaint of pain, but noted that there were no objective findings
in those records.

AR 8.

Dr. Wunder stated that plaintiff’s

subjective complaints were not supported by objective findings, and
that

there

were

no

objective

examination of the plaintiff.

abnormalities

noted

during

his

AR 9.

These were valid observations which could be considered by the
Committee in determining the weight to be assigned to the opinions
of plaintiff’s treating physicians, particularly since the Plan in
this case places the burden on plaintiff as the claimant to prove
LTD disability.

See AR 362, Plan §4.03.02(a) and (c)(“an Active

Associate must present evidence to the satisfaction of the Plan
Administrator of ... significantly increased physical or mental
impairments such as a significant loss of physical functional
capacity”).

The Plan’s consideration of the lack of objective

evidence was not arbitrary and capricious.

See Oody v. Kimberly-

Clark Corp. Pension Plan, 215 F.App’x 447, 452-53 (6th Cir.
23

2007)(denial of total disability benefits was not arbitrary and
capricious

where

committee

reasonably

found

that

the

medical

evidence submitted by claimant was not supported by objective
evidence and was therefore insufficient to demonstrate he was
permanently disabled within the meaning of the plan).
4. “Cherry-Picking” of Medical Evidence
Plaintiff further contends that the Plan engaged in “cherrypicking” the medical evidence, thereby denying her a fair review of
her claim. “Cherry-picking” occurs where a plan focuses on certain
parts of an administrative record while disregarding other reliable
evidence.

That did not occur here.

A plan does not engage in

“cherry-picking” where, as here, the Plan gave due consideration to
the opinions of the claimant’s doctors, and where the expert
findings rejecting those opinions were reasonable in light of the
bulk of the administrative record.

See McClain, 740 F.3d at 1066.

Plaintiff argues that the Plan acted improperly by focusing in
the

July

30,

examination

2015,

denial

performed

by

letter

Laura

on

Miller

the
by

physical
noting

capacity
that

the

examination report provided no evidence regarding plaintiff’s
abilities when taking pain medication.
“cherry-picking.”

See AR 171.

This was not

The fact that the evaluation was performed on a

day when plaintiff had not taken any pain medication was relevant
to the findings in the report.
Aetna’s

reference

Thompson,

stating

averaged 3-4/10.

to

the

that

Plaintiff also complains about

September

plaintiff’s

AR 170-171.

30,
pain

2014,
was

record

much

of

Dr.

better

and

However, the Plan did not thereby

focus on an isolated occasion where plaintiff was experiencing pain
at that level.

Plaintiff also rated her pain level at the start of

the physical capacity examination on March 24, 2015, as being 4/10,
24

despite having taken no pain medication since the night before. AR
131, 134.

Plaintiff also told Dr. Wunder on March 5, 2016, that

she rated her pain with medication as 3-4.

AR 5.

Plaintiff

further contends that Dr. Wunder engaged in “cherry-picking” by
allegedly ignoring the opinions of Drs. Graesser and Thompson about
her severe pain.

As noted above, Dr. Wunder did not ignore the

records of these doctors; he summarized them in his report.
9.

AR 7-

His opinion was based on his review of all the medical reports

in the administrative record and his own observations during his
medical examination of the plaintiff.

The fact that Dr. Wunder

ultimately disagreed with the conclusions of plaintiff’s treating
physicians regarding the allegedly disabling nature of her pain is
not sufficient to show that he or the Plan “cherry-picked” the
records.
The Plan provided plaintiff with a fair review procedure. The
Plan provided for not one, but two levels of appeal.

Plaintiff’s

records were reviewed by three independent experts in occupational
or rehabilitative medicine.

The Committee even went a step beyond

the requirement that it “consult with a health care professional
who has appropriate training and experience in the field of
medicine

involved

in

the

medical

judgment,”

see

29

C.F.R.

§§2560.503-1(h)(3)(iii) and (h)(4), by arranging for an independent
medical

examination

of

the

plaintiff

by

Dr.

Wunder.

The

independent experts acknowledged the opinions of Drs. Graesser and
Thompson and their treatment of plaintiff for chronic pain, but
reasonably concluded that the diagnoses of a disabling condition
and CRPS/RSD were not supported by clinical or objective evidence.
IV. Conclusion
The ultimate issue in an ERISA denial of benefits case is not
25

whether discrete acts by the plan administrator are arbitrary and
capricious, but whether its ultimate decision denying benefits was
arbitrary and capricious, as determined from a review of the whole
of the administrative record.

McClain, 740 F.3d at 1066.

After

reviewing the administrative record, the court concludes that the
Plan did not act arbitrarily and capriciously in determining that
the plaintiff was not “LTD Disabled” and that she did not qualify
for LTD benefits under the Plan.

The Plan provided a rational and

reasonable explanation for that decision, which resulted from a
deliberate and principled reasoning process and which was based on
substantial evidence.

See Schwalm, 626 F.3d 299 at 308; Morrison,

439 F.3d at 300; Williams, 227 F.3d at 712.

In accordance with the

foregoing, plaintiff’s motion for judgment on the administrative
record (Doc. 7) is denied.

Defendant’s motion for judgment on the

administrative record (Doc. 8) is granted.

The clerk shall enter

judgment in favor of defendant.

Date: February 14, 2017

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

26