Whitfield v. Jefferson Pilot Financial Insurance Company

Filing 30

OPINION AND ORDER by Judge James H Payne (pll, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
GREGG D. WHITFIELD,
Plaintiff,
v.
LINCOLN NATIONAL LIFE INSURANCE
COMPANY, formerly JEFFERSON PILOT
FINANCIAL INSURANCE COMPANY,
Defendant.

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Case No. 10-CV-096-JHP-FHM

OPINION AND ORDER
Before the court in this ERISA1 case are Plaintiff Gregg D. Whitfield’s Opening and Response
Briefs (Docket Nos. 20, 25), and Defendant Lincoln National Life Insurance Company’s opening2 and
Response Briefs (Docket Nos. 21, 26). For the reasons cited herein, Lincoln National’s denial of
Whitfield’s long-term disability claim is affirmed.
BACKGROUND
I.

Policy Coverage and Provisions
Until June 9, 2006, Plaintiff Gregg Whitfield worked at the Christian Family Service

Management Corporation as a “Case Manager/Therapist.”3 Admin. Rec. at 447, Docket Nos. 18, 19
(hereinafter “Admin. Rec.”). As a result of this employment, Plaintiff had certain long term disability
benefits through a policy issued by Defendant, Lincoln National.4 This long-term disability policy

1

 The parties have stipulated that “[t]his case is governed by ERISA.” See Joint Status Report at 3, Docket No. 14. 
 Though termed a “Motion for Judgment on the Administrative Record” by Defendant, this document discusses the
merits of the case and will be construed as an “Opening Brief” in accordance with the schedule entered for this case
on July 26, 2010. See Minute Sheet re: Scheduling Conference, Docket No. 17. 
3
 The Job Description provided by Plaintiff’s employer and signed by Plaintiff summarizes Plaintiff’s job as follows:
Manages a caseload of foster children, acting as a resource to the child and foster family and
serving as a liaison among the biological family, the referring agency and the child. Facilitates the
provision of safe, secure and nurturing living experiences in accordance with The Blair
Foundation’s mission.
See Admin. Rec. at 499. 
4
 At the time of Plaintiff’s employment the long term disability policy was issued by Jefferson Pilot Financial
Insurance Corporation. During the administrative review of this case, Jefferson Pilot merged with Defendant
Lincoln National Life Insurance Company. See Amended Complaint ¶ III, Docket No. 4; Answer ¶ 3, Docket No.
11. 
2

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provides a Total Disability Monthly Benefit if the employee is (a) totally disabled, (b) under the regular
care of a physician, and (c) submits proof of continued “total disability” and “physician’s care” to the
insurer upon request. Id. at 59. The long-term benefits provided by the plan are divided into two general
time periods: (a) the “Own Occupation” period, which begins after the initial 180-day elimination period
and lasts through the following twenty-four months, and (b) all the time thereafter.5 See id. at 42, 46, 59.
The terms “total disability” or “totally disabled” are defined separately during these two time periods.
During the “Own Occupation Period,” total disability “means that due to a Disability the Insured
Employee is unable to perform all of the material and substantial duties of his or her own occupation.”
Id. at 59. To elaborate on this definition, “own occupation” is defined as
the occupation, trade or profession:
1. in which the Insured Employee was employed with the Employer prior to
Disability; and
2. which was his or her primary source of earned income prior to Disability.
It includes any work in the same occupation for pay or profit; whether such work is with
the Employer, with some other firm or on a self-employed basis. It includes the main
duties of that occupation as performed in the national workforce; not as performed for a
certain firm or at a certain work site.
Id. at 47. Once the “Own Occupation Period” passes, “total disability” occurs when “due to a Disability
the Insured Employee is unable to perform all of the material and substantial duties of his or her own or
any other gainful occupation which his or her training, education, experience or physical or mental
capacity will reasonably allow.” Id. at 59.
Additionally, the Policy states that
the Company has sole authority to manage this Policy, to administer claims, to interpret
Policy provisions, and to resolve questions arising under the Policy. The Company’s
authority includes (but is not limited to) the right to:
1. establish and enforce procedures for administering this Policy and claims under
it;
2. determine Employees’ eligibility for insurance and entitlement to benefits;
3. determine what information the Company reasonably requires to make such
decisions; and
4. resolve all matters when a claim review is requested.

5

 The policy provides that if the onset of the disability occurs when the insured is under the age of 60, the benefits
last until age 65. Admin Rec. at 42. Thus, because plaintiff was less than 40 years old when the disability began he
is potentially eligible for monthly benefits for over 25 years. See id. at 447 (listing Plaintiff’s date of birth as August
3, 1969; stating that Plaintiff’s last day of work was June 9, 2006). 

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Any decision the Company makes in the exercise of its authority shall be conclusive and
binding.
Id. at 49.
II.

Administrative Adjudication of Plaintiff’s Claim
Plaintiff first submitted his claim for long-term disability benefits under the Policy in 2006. On

December 21, 2006, Plaintiff’s employer submitted an Employer’s Statement to Defendant, stating that
Plaintiff’s position was “Case Manager/Therapist” and that Plaintiff had last worked on June 9, 2006. Id.
at 447. Plaintiff submitted an Employee Statement on January 5, 2007 in which he stated he was unable
to “function normally due to limited mobility & pain” and that he had “difficulty driving, typing and
sitting for long periods.” Id. at 431-32. Plaintiff also listed his treating physicians on this form. Id. at
432. Dr. Main, a neurosurgeon, submitted a Physician’s Statement in which he found that Plaintiff
suffered cervical radiculopathy and had undergone an “anterior cervical discectomy fusion.” Id. at 433.
Dr. Main further stated that Plaintiff had “moderate limitations – capable of doing clerical work” and that
he was “unable to drive long distances and [was] currently on meds which may alter mental status
slightly.” Id. at 434. Other medical records gathered by Defendant in January 2007 (see id. at 418-424)
demonstrate that Plaintiff had been diagnosed with degenerative disc disease and a herniated disc in his
neck (id. at 387) and had undergone cervical fusion surgery to correct the herniated disc (id. at 407).
Plaintiff’s initial claim for long-term disability benefits was approved via letter from Defendant
dated February 7, 2007. Id. at 349-52. The letter described important policy provisions and instructed the
Plaintiff to promptly reply to any requests made by the insurer during coverage. Id. The letter did not
guarantee benefits for any period of time, stating that Plaintiff would receive monthly benefits “as long as
[he] remain[ed] eligible by the terms of this policy.” Id. at 349.
Three months later, Defendant obtained updated records from Dr. Main, which indicated that in
April 2007, Plaintiff reported that his neck pain was constant yet bearable with medications. Id. at 326.
At that time, Dr. Main instructed Plaintiff to continue on his medications and that surgery would be

3

considered if symptoms worsen. Id. The Administrative Record reflects no further treatment of Plaintiff
by Dr. Main after April 2007. Id. at 264, 297-98.
On October 4, 2007 Defendant sent a letter to Plaintiff requesting that he provide Defendant with
a list of his “current treating medical providers.” Id. at 296. Having received no response to this request
by Plaintiff, on November 5, 2007 Defendant sent Plaintiff a letter stating that his disability benefits
“beyond November 9, 2007 have been suspended” due to Plaintiff’s noncompliance with the Defendant’s
request for information regarding current treating physicians, in accordance with the Policy. Id. at 295;
see id. at 50 (Policy language: “Proof of continued Disability, regular care of a Physician, and any other
income benefits affecting the claim must be given to the Company. This must be supplied within 45 days
after the Company requests it. If it is not, benefits may be denied or suspended.”). Subsequently, on
November 8, 2007, Plaintiff identified two current treating physicians: Dr. Main, his neurosurgeon, and
Dr. Sorensen, a pain management specialist. Id. at 293.
Medical records show that Plaintiff saw Dr. Sorensen four times between October 21, 2007 and
November 27, 2007. Id. at 286-89. In his initial visit with Dr. Sorensen, Plaintiff complained of neck and
left arm pain, sudden onset of pain in neck and left shoulder, decreased sensitivity and motion in the left
arm, and migraines. Id. at 289. On November 27, 2007 Plaintiff visited Dr. Sorensen with complaints of
decreased ability to concentrate and focus, insomnia, nausea, and constipation. The medical record for
this visit states Plaintiff was “doing better pain-wise.” Id. at 286. In January 2008, Defendant sent Dr.
Sorensen an occupational description for “Case Worker” and requested Dr. Sorensen’s opinion of whether
Plaintiff could return to “light occupation” work. See id. at 272-78. Defendant sent a copy of this letter
to Defendant, requesting his assistance in the submission of Dr. Sorensen’s opinion. Id. at 271. Dr.
Sorensen did not respond to this request. See id. at 268. Defendant then contacted Plaintiff to notify him
of this situation and again requested his assistance in the collection of medical records from his treating
physician. See id. at 264. On April 7, 2008, Defendant faxed additional medical records demonstrating
that Dr. Sorensen continued to treat Plaintiff between December 26, 2007 and March 27, 2008. Id. at
255-59.
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A internal medical review of Dr. Sorensen’s medical records was completed by registered nurse
Linda Brandenburg on April 16, 2011. See id. at 16-17. Brandenburg stated that the pain management
care provided by Dr. Sorensen appeared to be conservative in nature. Id. at 17. She further noted that
from the medical records available, Plaintiff should not be precluded from working “in a light occupation
from [April 9, 2008] forward, with the exception of no repetitive overhead lifting.” Id. Subsequently, on
April 21, 2008, Defendant denied Plaintiff’s claim for long-term disability and notified Plaintiff via letter.
The letter delineated the records and documents reviewed, described Defendant’s reasoning for the denial,
and instructed Plaintiff of his right to appeal and the procedure for appeal. Id. at 239. Though Defendant
had determined that Plaintiff was not “totally disabled” according to the Policy and was therefore
ineligible for disability benefits on April 21, 2008, Defendant extended one additional monthly benefit to
assist Defendant in his return to work. See id. at 3-4.
On June 17, 2008, Plaintiff wrote to Defendant requesting information in anticipation of making
an appeal. Id. at 236. Defendants responded on July 2, 2008 with copies of documents used in the
consideration of Plaintiff’s claim, including the claim file, Policy, job description provided by Plaintiff’s
employer, the occupational definition from the Department of Labor’s Dictionary of Occupational Titles
(DOT), all doctors’ medical records and medical information, and medical and vocational reviews. See
id. at 234-35. After further communication between the parties (see id. at 221-29), Plaintiff submitted his
first appeal on October 24, 2008, which included, among other things, argument in response to
Defendant’s initial denial of his claim (see id. 193-200), a personal statement of how his disability has
affected his ability to work (see id. at 202-04), and additional medical records from Dr. Sorensen and
letters from Dr. Sorensen and Dr. Gonzalez (see id. at 211-20).
The medical records from Dr. Sorensen demonstrated that Plaintiff continued monthly visits
between March 27, 2008 and September 23, 2008. Id. at 211-17. The letters from Dr. Sorensen states
that, “Gregg Whitfield is unable to work full time,” and “[h]is inability to work is due to chronic pain,
headaches, and difficulty with movement,” and he is “experiencing some problems with the sedative
effects of his medication.” See id. at 218-19. Dr. Gonzalez stated that Plaintiff was under his care for
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neck pain, cervical spondylosis and stenosis subsequent to his fusion surgery in 2006, and that Plaintiff
was experiencing increasing left upper extremity pain. See id. at 220.
Defendant acknowledged receipt of Plaintiff’s first appeal by letter dated October 29, 2008. Id. at
161. In response to the appeal, Defendant sought a complete occupational analysis report and an
independent medical evaluation/peer review. See id. at 3. The independent medical review was
completed by Dr. Jonathan Sands, board certified in Internal Medicine, Psychiatry and Neurology. Id. at
159. After reviewing the medical records, Dr. Sands noted that the record contained “no recent
musculoskeletal or neurologic examinations” and stated that “the restrictions and limitations placed upon
the claimant’s work activities by the attending physician(s) are not reasonable and consistent with medical
findings” because they are “not supported by . . . objective documentation of a loss of range of motion of
any joint, or any objective documentation of a neurologic impairment.” Id. at 156-57. Dr. Sands found
that there was no documentation of any condition, deficit, or limitation that would prohibit Plaintiff’s
performance of light or sedentary work, and concluded: “Given the radiographically documented cervical
spondylosis it is reasonable that the claimant has cervical pain and restriction of motion without any
objective neurologic deficits present. He could safely perform full time light duty work.” Id. at 158-59.
On December6 18, 2008, Defendant sent Plaintiff a letter informing him that after review of his
appeal, Defendant was still “unable to approve benefits.” Id. at 140. While recognizing that Plaintiff’s
appeal claimed his job required “medium to heavy” duty, Defendant highlighted the fact that the “Own
Occupation” term was defined by how that occupation was performed in the “national workforce; not as
performed for a certain firm or at a certain work site.” See id. at 141. Defendant went on to emphasize
that the job description provided by Plaintiff’s employer and signed by Plaintiff described functions that
amounted to “light work,” which is defined as “standing or walking for six hours out of an eight-hour
day, lifting no more than 20lbs occasionally . . . and possible frequent lifting of small objects weighing
less than 10 lbs.” See id. Defendant also noted, “the primary duty of the case manager is social work and

6

 The original letter was misdated as November 18, 2008. Admin. Rec. at 140. Review of Defendant’s internal
notes on the Long-Term Disability Claim Profile demonstrate that the first appeal was actually disposed of in
December, 2008. Id. at 3. 

6

program evaluation, not driving.” See id. Finally, the letter cited Dr. Sands’ independent medical
evaluation as basis for Defendant’s finding that Plaintiff’s condition did not “meet the policy provision of
totally disabled.” See id. at 143.
By letter on January 16, 2009, Plaintiff requested additional information from Defendant in order
to prepare a second and final administrative appeal. See generally id. at 137-39. Defendant responded in
writing on February 19, 2009 and provided a complete copy of Plaintiff’s claim file including copies of
all phone notes, requested curriculum vitas, medical and vocational reviews, and the Policy. See id. at
134-36. On February 28, 20097 Plaintiff filed his second and final appeal with Defendant. See id. at 11133. Notably, attached to the Plaintiff’s second appeal is a Medical Source Statement regarding Plaintiff’s
physical capabilities completed by Dr. Sorensen on February 22, 2009. See id. at 128-33. In the
Statement, Dr. Sorensen indicates that Plaintiff’s symptoms include neck and shoulder pain, migraine
headaches and fatigue, among other things. See id. at 128. Dr. Sorensen noted that the “positive
objective signs” of Plaintiff’s pain were a reduced range of motion in the cervical spine and shoulders,
reduced grip strength, sensory and reflex changes, impaired sleep, weight change, tenderness, trigger
points, swelling, muscle spasm, and muscle weakness. See id. Depression and anxiety were recognized
as psychological conditions affecting Plaintiff’s pain. See id. at 129. Dr. Sorensen concluded that
Plaintiff was severely limited in his ability to deal with work stress, could not stand or sit for more than
fifteen minutes without changing position, was limited to one hour each of sitting and standing per eighthour work day, needed to elevate legs to relieve pain, and that Plaintiff would need to lie down or recline
in a supine position in excess of six hours during an eight-hour work day. See id. at 130-31.
To evaluate Plaintiff’s final appeal, Defendant ordered both an occupational analysis from a
vocational expert and a second independent medical evaluation. The occupational analysis was
completed on April 2, 2009 by Debora Frazee. See id. at 2, 455-56. The occupational analysis highlighted
the distinction between “occupation” on the national scale and job-specific requirements, noting that

7

 Plaintiff’s second appeal is inaccurately dated February 28, 2008; it was actually submitted on February 28, 2009,
as demonstrated by Defendant having received the document on March 4, 2009. See id. at 86, 111. 

7

under the language of the Policy it is one’s total disability from the “occupation in the national economy”
that is relevant, not disability from job-specific conditions. See id. at 456. Further, “[t]ravel in and of
itself does not add physical requirement to the work and may be considered job specific.” Id. Ms. Frazee
specifically noted that in the instant case, driving “could be performed by an alternate driver . . . .” Id.
Ms. Frazee concluded that “Based upon the available information, it would appear that Mr. Whitfield’s
job is that of a case worker (social service worker), listed in the DOT as # 195.107-010. This occupation
is sedentary physical requirement by U.S. Department of Labor Standards.” See id. at 455 (emphasis
original). This conclusion differs from Defendant’s original assertion that Plaintiff’s work involved “light
duty.” See, e.g. id. at 141, 241.
The independent medical evaluation was completed by Dr. Vicki Kalen, board certified in
Orthopedic Surgery on April 28, 2009. See generally id. at 80-84. After a thorough review of Plaintiff’s
medical records (see id. at 80-82), Dr. Kalen reached the conclusion that the restrictions placed on
Plaintiff by Dr. Sorensen were not accurate or appropriately tailored to his diagnoses:
[T]he restrictions and limitations placed upon the claimant’s work activities by the
attending physician(s) are not reasonable and consistent with the medical findings. The
restrictions outlined by Dr. Sorensen on his Medical Source Statement of 02/20/2009 are
not consistent with neck pain and/or cervical radiculopathy and degenerative disease.
With the diagnoses Dr. Sorensen has given the claimant, there is still no explanation for
restrictions in sitting, standing, needing to elevate legs to relieve pain, and having to lie
down for one hour after standing for less than fifteen minutes. These are restrictions that
have nothing to do with cervical pathology. In fact, the only mention of a restriction that
would be consistent with cervical radiculopathy and degenerative disease is regarding
neck motion. Dr. Sorensen said that the claimant could occasional [sic] flex and rotate
his neck which is less of a restriction than Dr. Sorensen gave the claimant in all other
activities. This is inexplicable and counter to the diagnoses the claimant was given.
...
The findings reported in the Medical Source Statement on 02/20/2009 by Dr. Sorensen
are not documented in Dr. Sorensen’s office notes and are entirely vague giving no
details or specific nerve root involvement. There is no objective documentation on either
physical examination, imaging, or electrodiagnostic testing to support any restrictions or
limitations in this claimant beyond the date of 05/09/2008.
(see id. at 83-84).
By letter dated May 19, 2009, Defendant provided Dr. Kalen’s evaluation to Plaintiff in order to
provide Plaintiff “the opportunity to provide this assessment to your treating physician for further

8

review.” Id. at 73. Defendant instructed Plaintiff that “[i]f your physician should disagree with the
assessment then we would appreciate any information that he or she could provide to us that would
dispute [Dr. Kalen’s] findings.” Id. The letter also informed Plaintiff that if no response was received by
June 9, 2009, Defendant would continue the requested review and render a final decision on the claim.
See id. After receiving no response from Plaintiff, Defendant proceeded with its final review of
Plaintiff’s long-term disability claim on June 12, 2009. See id. at 2. Defendant completed its review on
June 25, 2009 and informed Plaintiff of its decision upholding the denial of long-term disability benefits
by letter. See generally id. at 67-72. The letter discussed the most recent occupational analysis,
summarized and responded to Plaintiff’s arguments in his first and second appeals, cited Dr. Kalen’s
findings that the medical records did not support Dr. Sorensen’s stated restrictions, and concluded that
“[t]here is insufficient medical documentation in the file to support that you would have restrictions and
limitations from performing your own occupation.” See id. at 68-72. The letter concluded by advising
Plaintiff that his administrative appeal was exhausted and he had the right to pursue litigation. Id. at 72.
III.

Procedural History
Plaintiff chose to pursue litigation by filing a Complaint against Jefferson Pilot Financial

Insurance Company on February 17, 2010. The Complaint requested a declaratory judgment stating that
Plaintiff is entitled to long-term disability benefits under the policy. Docket No. 2. The Complaint was
amended on March 10, 2010 to replace defendant Jefferson Pilot with current defendant Lincoln National
Life Insurance Company, as a result of the companies having merged during the pendency of Plaintiff’s
administrative claim. Docket No. 4; see supra note 4. The case was fully briefed pursuant to an ERISA
schedule. See Docket Nos. 17, 20, 21, 25, 26, 29.
DISCUSSION
I.

Standard of Review and Conflict of Interest
When the governing ERISA plan or policy gives the plan administrator or fiduciary discretionary

authority to determine eligibility for benefits or to construe the terms of the plan, a challenge to the the
administrator’s decision is to be reviewed under an arbitrary and capricious standard. Firestone Tire &
9

Life Ins. Co. v. Bruch, 489 U.S. 101, 155 (1989); Fought v. Unum Life Ins. Co. of Am., 379 F.3d 997,
1002-03 (10th Cir. 2004) (quoting Firestone, 489 U.S. at 115). However, if the plan administrator or
fiduciary operates under a conflict of interest, such conflict may provide reason for the court to give the
administrator’s decision less deference under the arbitrary and capricious standard. See Fought, 379 F.3d
at 1005 (quoting Ladd v. ITT Corp., 148 F.3d 753, 754 (7th Cir. 1998) (adopting “sliding scale” analysis
for ERISA conflict of interest analysis, wherein “the court will always apply an arbitrary and capricious
standard, but the court must decrease the level of deference given to the conflicted administrator’s
decision in proportion to the seriousness of the conflict.”). Courts are instructed to weigh any conflict of
interest as a factor, in combination with other case-specific factors, to reach a determination as to whether
the administrator’s decision was arbitrary and capricious. Holcomb v. Unum Life Ins. Co. of Am., 578
F.3d 1187 (10th Cir. 2009) (citing Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 117 (2008)). The Supreme
Court gave an example of this sliding-scale deference in Metropolitan Life Insurance Co. v. Glenn by
stating that a conflict of interest “should prove more important (perhaps of great importance) where
circumstances suggest a higher likelihood that it affected the benefits decision . . . . It should prove less
important (perhaps to the vanishing point) where the administrator has taken active steps to reduce
potential bias and to promote accuracy . . . .” 554 U.S. at 117.
In the instant case, the Policy clearly gives Defendant Lincoln National discretionary authority
over the administration of the ERISA policy, therefore Defendant’s decision is subject to the arbitrary and
capricious standard of review pursuant to Firestone. See Admin. Rec. at 49 (language of policy: “the
Company has sole authority to manage this Policy, to administer claims, to interpret Policy provisions,
and to resolve questions arising under the Policy”); see also supra BACKGROUND part I. Defendant
does not appear to contest Plaintiff’s allegation that Lincoln National operates under an inherent conflict
of interest because it operates as both the insurer and the administrator of the Policy under which Plaintiff
was insured. See Response at 6-7, Docket No. 26; see also Fought, 379 F.3d at 1006. Defendant does,
however, contest Plaintiff’s argument that Defendant’s inherent conflict of interest should be given
substantial weight. See id. Plaintiff’s argument in favor of giving the conflict of interest substantial
10

weight turns on its assertion that the value of long-term disability benefits for Plaintiff surpassed
$800,000.00,8 a large quantity of money that Defendant would not want to lose. See Plaintiff’s Opening
Brief at 2, 5, Docket No. 20. While Glenn recognizes that a conflict should be given more weight when it
is more likely to affect the benefits decision—and it could certainly be argued that a substantial monetary
loss would affect and administrator’s decision—Glenn also recognizes that a conflict is “less important . .
. where the administrator has taken active steps to reduce potential bias and to promote accuracy.” 554
U.S. at 117.
In this case, Defendant has in fact taken steps to reduce bias and promote accuracy. The Tenth
Circuit stated in Holcomb v. Unum Life Insurance Co. of America that the insurer-defendant in that case,
Unum, “took steps to reduce its inherent bias by hiring two independent physicians . . . . Unum did not
rely solely on the evaluations and medical opinions of its own on-site physicians and nurses.” 578 F.3d
1187, 1193 (10th Cir. 2009) (emphasis supplied). Like the defendant in Holcomb, Defendant herein hired
two independent physicians to review the records: Dr. Sands reviewed the records for the first
administrative appeal, and Dr. Kalen reviewed the records for the second administrative appeal.
The Tenth Circuit also noted in Holcomb that the defendant “diligently endeavored to discover
the nature of [Plaintiff’s] ailments [by] routinely request[ing] [Plaintiff’s] updated medical records . . .
conduct[ing] its own clinical reviews of these records . . . solicit[ing] expert evaluations . . . and . . .
perform[ing] both vocational assessments and occupational analyses.” Id. This diligent review served as
evidence supporting the court’s conclusion that the insurer-defendant’s conflict of interest was minimal
and deserved little weight. See id. Defendant Lincoln National has completed the same type of diligent
review. Defendant repeatedly requested medical records from the Plaintiff and his treating physicians
beginning soon after Plaintiff’s initial claim in December 2006. Defendant even allowed Plaintiff’s
physician, Dr. Sorensen, the opportunity to respond to Dr. Kalen’s report, which strongly disagreed with
Dr. Sorensen’s opinion of Plaintiff’s restrictions. One in-house registered nurse reviewed the claim file,

8

 Defendant believes the actual value of benefits to be closer to $525,000.00, but in any case argues the calculation
of benefits cannot be determined at this time and is irrelevant to whether its decision was arbitrary and capricious.
See Defendant’s Response Brief at 2, 6-7, Docket No. 26. 

11

followed by two independent physicians hired by Defendant, each analyzing a different level of appeal.
Defendant also undertook occupational analysis at each level of appeal. The facts in this case
demonstrate that, as the Tenth Circuit found in Holcomb, the conflict of interest factor deserves “limited
weight” in the evaluation of whether Defendant Lincoln National’s determination to deny long-term
disability benefits was an abuse of discretion. See id.
II.

Defendant Lincoln National’s Denial of Plaintiff Whitfield’s Claim
The court finds that Defendant Lincoln National’s decision to deny Plaintiff’s claim for long-term

disability benefits was not arbitrary or capricious. In fact, the determination that Plaintiff did not qualify
as “totally disabled” for his “own occupation” pursuant to the terms of the Policy is wholly supported by
the Administrative Record. Though Dr. Sorensen, Plaintiff’s pain management physician, essentially
concluded that Plaintiff was severely restricted by pain and limited mobility and was therefore unable to
work full time (see generally Admin. Rec. at 128-33, the Medical Source Statement), those conclusions
were drastically undermined by Dr. Kalen’s report which stated, among other things, that the restrictions
suggested by Dr. Sorensen had “no relationship to [Plaintiff’s] cervical impairment in any way” (see id. at
84). ERISA policy administrators are not required to give special weight to a treating physician’s
opinions; they may credit any reliable evidence appearing in the administrative record. See Black &
Decker Disability Plan v. 538 U.S. 822, 834 (2003) (holding 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 why the credit reliable evidence
that conflicts with a treating physician’s evaluation”).
For example, in Grosvenor v. Qwest Communications International, the Tenth Circuit held that it
was not an abuse of discretion for the administrator to consider, but not credit the opinions of treating
physicians when such opinions were “unsupported by ‘objective’ medical documentation that the Plan
requires and indeed, neither doctor explained why [Plaintiff’s disability] would preclude him from
performing any of his managerial responsibilities.” 191 F. App’x 658, 663 (10th Cir. 2006) (unpublished).
The court went on to note, “The Administrator’s decision concerning the weight to be given [the]
12

opinions [of treating physicians] after considering the underlying evidence or lack thereof differs from
ignoring them.” Id. It is within reason for a plan administrator to reject a physician’s report “when there
was no accompanying data to support that conclusion.” Id. (citing Kimber v. Thiokol Corp., 196 F.3d
1092, 1099 (10th Cir. 1999). In the instant case, the Administrative Record demonstrates that Defendant
considered the opinions of the treating physicians—it even solicited the opinion of Dr. Sorensen on more
than one occasion (see Admin. Rec. at 73, 266-67)—though in the end Defendant decided not to credit the
opinions of the treating physicians. One obvious reason for its decision to discredit the treating
physicians’ opinions was that both independent physicians reviewing the Plaintiff’s records noted that
there was no objective data supporting those opinions (see id. at 82-84 (Dr. Kalen), 156-58 (Dr. Sands)).
Additionally, Dr. Kalen’s report stated that “[t]he restrictions and limitations given [Plaintiff by Dr.
Sorensen] have no objective foundation and are not even consistent with the diagnoses the claimant has
been given.” See id. at 83. Plaintiff failed to rebut Dr. Kalen’s report, despite being given the opportunity
to do so. Thus, under the circumstances, it was reasonable for Defendant to credit the findings of the
independent physicians and doing so was neither arbitrary nor capricious.
Plaintiff makes at least one argument that merits consideration. Plaintiff argues that Defendant
should have ordered him to undergo a functional capacity examination, which he alleges would have
definitively shown whether he was capable of performing work duties in his occupation. See Plaintiff’s
Opening Brief at 5-8, Docket No. 20. This argument is unpersuasive. At the outset, the court notes that
under the terms of the Policy the claimant bears the burden of submitting proof of continuing disability
(see Admin. Rec. at 50) and Plaintiff could have supplied a functional capacity examination at any point
during the administrative process. Moreover, caselaw cited by Plaintiff to support this argument is either
unpersuasive or distinguishable. For example, Plaintiff correctly cites Hightshue v. AIG Life Insurance
Co. for the proposition that “when it is ‘possible to question the fiduciaries’ loyalty, they are obliged at a
minimum to engage in an intensive and scrupulous independent investigation of their options to insure
that they act in the best interests of the plan beneficiaries.’” 135 F.3d 1144, 1148 (7th Cir. 1998) (citing
Leigh v. Engle, 727 F.2d 113, 125-26 (7th Cir. 1984)) (emphasis supplied); see Plaintiff’s Opening Brief
13

at 5, Docket No. 20. This quotation is indeed correct, however Defendants have not failed to “engage in
an intensive and scrupulous independent investigation” simply because they did not compel a functional
capacity examination. In affirming the denial of benefits, the Hightshue court found that the “intensive
and scrupulous independent investigation” standard was fulfilled by the defendant’s regular collection of
the claimant’s medical records, submission of those records to an independent and qualified medical
expert, and providing that expert with complete and accurate information. See Hightshue, 135 F3d at
1148. Defendant has done nothing less in this case, and in fact it has done more by submitting Plaintiff’s
claim file for review by two independent physicians who were board certified in relevant areas of
medicine. The additional cases cited by Plaintiff in support of this argument are similarly unpersuasive.9
Defendant’s failure to order a functional capacity evaluation does not render its final determination on the
merits arbitrary and capricious.
In conclusion, the court finds that Defendant Lincoln National’s denial of Plaintiff’s claim for
long-term disability benefits was not arbitrary and capricious. On the contrary, Defendant’s
determination was reasonable. The court can find no evidence of bias resulting from the inherent conflict
of interest in the Administrative Record. Defendant diligently collected and updated Plaintiff’s medical
records throughout the appeal, twice provided complete medical records to independent physicians who
performed medical evaluations based on their relevant expertise, and even provided Plaintiff and his
treating physician the opportunity to respond to one independent physician’s negative review. Plaintiff
was given every opportunity to put forth his best argument and evidence in support of his claim, and after
he failed to respond to Defendant’s final request, the appeal was denied based on credible evidence.
CONCLUSION

9

 Plaintiff additionally cites Toland v. McCarthy, 499 F. Supp. 1183 (D. Mass. 1980) and Gaither v. Aetna Life Ins.
Co., 394 F.3d 792, 804-08 (10th Cir. 2004). The court finds Toland unpersuasive for substantially the same reasons
set forth in Defendant’s Response Brief at 9, Docket No. 26. In Gaither, the Tenth Circuit held, “fiduciaries cannot
shut their eyes to readily available information when the evidence in the record suggests that the information might
confirm the beneficiary’s theory of entitlement and when they have little or no evidence in the record to refute that
theory.” 394 F.3d at 807 (emphasis supplied). The court finds that Gaither is distinguishable because (a) the
potential that a functional capacity evaluation could be completed is not the equivalent of “readily available
information,” and (b) Defendant Lincoln National did in fact have significant evidence to refute Plaintiff’s theory of
entitlement, including the independent medical evaluations, among other things. 

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For the reasons cited herein, Defendant Lincoln National’s denial of Plaintiff Whitfield’s longterm disability claim is hereby AFFIRMED. A separate Judgment is filed herewith.

IT IS SO ORDERED this 30th day of September, 2011.

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