Schofield v. Nationwide Insurance Companies and Affiliates Plan for Your Time and Disability Income Benefits Plan
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
Case No. 2:16-cv-371
Nationwide Insurance Companies
and Affiliates Plan for Your
Time and Disability Income
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
disability (“LTD”) benefits under the terms of the Nationwide
Disability Income Benefits (“the Plan”). Nationwide is the sponsor
of the Plan.
Administrative Record (“AR”) 343, Plan §1.55.
Plan administrator is the Benefits Administrative Committee (“the
The members of the Committee
are appointed by Nationwide’s board of directors.
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
In regard to long-term disability (“LTD”) benefits,
§4.03.02 of the Plan provides:
To commence Basic LTD Income Benefits, an Active
Associate must present evidence to the satisfaction of the Plan A
that the Active Associate’s LTD Disability is the
direct and proximate result of an Illness or
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
significant loss of physical functional capacity;
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
AR 342-43, Plan §1.39.
“‘Activities of Daily Living’ means normal
daily activities including, but not limited to, bathing, dressing,
using the toilet.”
AR 337, Plan §1.03.
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.
The Plan provides for two levels of appeal from the claim
administrator’s denial of a claim for LTD benefits.
AR 377, Plan
determination is made by an individual who did not make the initial
adverse benefit determination, and no deference is accorded the
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
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.
B. Plaintiff’s Application for LTD Benefits
Plaintiff was previously employed by Nationwide as an IT
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.
receiving short-term disability benefits, plaintiff applied for LTD
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
Aetna also obtained a review of plaintiff’s
medical records by an independent medical examiner, Dr. Elena
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
discussion with Dr. Graesser, who indicated that plaintiff was
unable to perform her IT job due to the pain in her arm, which
(Gabapentin) makes her very drowsy.
supplemental report on March 11, 2015.
Dr. Antonelli issued a
concluded that the additional information from Dr. Graesser did not
change her opinion.
In a letter dated March 18, 2015, Aetna notified plaintiff
that her claim for disability benefits was denied.
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
provided was not sufficient to support plaintiff’s impairment from
any reasonable occupation.
C. First Level Appeal
Following the denial of benefits, plaintiff retained counsel,
who sent an appeal letter to Aetna dated April 16, 2015.
During the appeal, Aetna reviewed treatment records from Dr.
Graesser and Dr. Thompson, as well as records from Dr. Carolyn
completed by Laura Miller, a physical therapist.
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.
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
characteristic of CRPS were not reported by plaintiff’s treating
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).
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.
By letter dated July 30, 2015, Aetna advised plaintiff’s
counsel that plaintiff’s appeal was denied.
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.
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.”
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,
that of project director, Dictionary of Occupational Titles number
189.117-030, which would provide plaintiff access to substantial
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.
During the appeal, the
Committee reviewed the appeal letter and Aetna’s claim file.
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
Dr. Wunder found that plaintiff did not meet
the criteria for the previous diagnoses of CRPS/RSD.
also concluded that there was “no evidence of contraindication to
working eight hours a day, five to seven days a week.”
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
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
plan gives the plan administrator such discretionary authority, the
Firestone Tire & Rubber Co. v. Bruch, 489
U.S. 101, 111 (1989).
The Plan, at §9.02, provides:
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.
determination will be conclusive and binding upon
all persons having an interest in or under the
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
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[.]”
Summa Medical Plan, 137 F.3d 431, 433 (6th Cir. 1998).
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
Plaintiff argues that a structural conflict of interest
exists because Nationwide is the Plan administrator and is the
Nationwide is the Plan sponsor, not the Plan administrator.
343, Plan §§1.54 and 1.55.
The Plan is financed primarily by
contributions to the Plan when there is a shortfall of funds
necessary to pay benefits.
AR 388, Plan §§12.01, 12.03.
lessens the potential for any conflict of interest due to any
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.
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.
members receive no compensation for their services.
AR 380, Plan
There is no evidence that they have any financial
incentive to deny benefits.
The record contains no evidence of a Plan history of biased
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
claims process was tainted by any predisposition to deny the claim.
AR 377-78, Plan §§8.02.05.01 and 8.02.05.02.
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
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
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 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
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
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.
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
Dr. Antonelli reviewed plaintiff’s medical records
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
and opined that the records did not support plaintiff’s impairment
from any occupation.
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.
Aetna concluded that the
medical records, including the records of plaintiff’s physicians,
Dr. Graesser and Dr. Brandon Thompson, did not provide sufficient
“to support any type of impairment that would prevent
[plaintiff] from performing the duties of any reasonable occupation
from a physical perspective.”
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
Dr. McPhee indicated that plaintiff’s
history of coronary artery disease would not preclude work activity
at a sedentary level.
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.
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
plaintiff’s treating physicians.
He concluded that the
minimal findings and lack of chronic features would be insufficient
to expect severe pain attributable to CRPS.
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
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
In the July 30, 2015, letter denying plaintiff’s appeal, Aetna
summarized plaintiff’s medical records in detail.
conclusions regarding plaintiff’s level of functioning.
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.”
The letter also referred to a vocational assessment which
identified the occupation of Project Director as being a job which
plaintiff could perform.
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.
In a report dated March 5,
plaintiff’s physical exam and also summarized the medical records
The history he took from plaintiff is as
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
She indicates she did timekeeping, work
distribution, and managed projects.
There was some
typing. She did carry a laptop.
As to his physical examination of plaintiff, Dr. Wunder noted:
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.
Her lower extremity motor, sensory and reflex exam was
Straight leg raise and sciatic stretch movements were
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
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.
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
Speed test was negative.
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
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
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.
Dr. Wunder completed a capabilities and limitations form
category of heavy weight lifting.
He concluded that
plaintiff was capable of working eight hours a day, five to seven
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.
indicated that it had reviewed all of the information in the
administrative record and referred specifically to Dr. Wunder’s
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.
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
Gabapentin she takes, which causes drowsiness.
record reveals otherwise.
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
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).
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.
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.
Id. at 831-832.
A plan administrator
evidence, including the opinions of a treating physician.
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
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.
In McDonald, 347 F.3d at 170-71, the court reversed the plan
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.
Moon v. Unum Provident Corp., 405 F.3d 373, 381-82 (6th Cir. 2005),
the administrator’s denial of benefits was arbitrary and capricious
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
Administration and claimant’s treating physician.
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.
considered their opinions. Although specific explanations were not
provided sufficient reasons why they did not agree with the
opinions of plaintiff’s treating physicians.
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.”
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.
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
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.
Aetna concluded that the documents and medical records provided by
plaintiff’s impairment from any reasonable occupation.
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.
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.
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
self-limited left hand function due to pain report although not
severe enough to preclude work activity with restrictions.”
Aetna relied on Dr. McPhee’s report in concluding that the
usual symptoms indicative of CRPS were not present in plaintiff’s
complaints of pain but found “no evidence to support a total lack
of functional capacity.”
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
Aetna explained that Dr. Graesser’s opinion
that plaintiff is unable to perform gainful activity “is not
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.”
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.
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.
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.
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.
also noted that the Committee “upheld Aetna’s decision” as being
“supported by the administrative record.”
Although the letter did
record, the Committee implicitly adopted the thorough reasoning
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
As to the references to the lack of objective or clinical
evidence, the Sixth Circuit has noted that “‘[r]equiring a claimant
irrational or unreasonable,’ even when such a requirement does not
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.”
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.”
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.
Dr. Wunder stated that plaintiff’s
subjective complaints were not supported by objective findings, and
examination of the plaintiff.
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
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
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.
2007)(denial of total disability benefits was not arbitrary and
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
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
examination report provided no evidence regarding plaintiff’s
abilities when taking pain medication.
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.
Plaintiff also complains about
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,
despite having taken no pain medication since the night before. AR
Plaintiff also told Dr. Wunder on March 5, 2016, that
she rated her pain with medication as 3-4.
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.
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
The Plan provided plaintiff with a fair review procedure. The
Plan provided for not one, but two levels of appeal.
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
§§2560.503-1(h)(3)(iii) and (h)(4), by arranging for an independent
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.
The ultimate issue in an ERISA denial of benefits case is not
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.
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
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
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