Davis v. U.S. Bank et al (TV2)
Filing
31
MEMORANDUM OPINION in support of the following Order. Signed by Chief District Judge Thomas A Varlan on 1/6/14. (ADA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
GLINDA DAVIS,
Plaintiff,
v.
U.S. BANK and THE HARTFORD,
Defendants.
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No.: 3:12-CV-441-TAV-HBG
MEMORANDUM OPINION
This civil action is before the Court on Hartford’s1 Motion for Judgment on the
Record [Doc. 20], U.S. Bank’s Motion for Judgment on the Record [Doc. 23], and
plaintiff’s Motion for Judgement [sic] on the Administrative Record [Doc. 26].
Defendants have filed responses in opposition to plaintiff’s motion [Docs. 28, 29].
Plaintiff did not respond to defendants’ motions or reply to defendants’ responses, and
the time for doing so has passed. See E.D. Tenn. L.R. 7.1(a), 7.2. Therefore, all of the
motions are now ripe for determination.
The Court has carefully considered the parties’ filings in light of the administrative
record and the applicable law. For the reasons that follow, plaintiff’s motion will be
denied, defendants’ motions will be granted, and the case will be dismissed.
1
Hartford indicates that its proper name is “Hartford Life and Accident Insurance
Company,” not “The Hartford” [Doc. 20]. For purposes of this opinion, this defendant will
simply be referred to as “Hartford.”
I.
Standard of Review
It is undisputed that plaintiff’s claim to recover benefits under the terms of a short-
term disability plan (the “STD Plan”) funded by her former employer, U.S. Bank, is
governed by the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §
1001, et seq. [Docs. 25 p. 2, 27 p. 1]. Because this is an ERISA case, “the summary
judgment procedures set forth in [Federal] Rule [of Civil Procedure] 56 are inapposite to
ERISA actions and thus should not be utilized in their disposition.” Wilkins v. Baptist
Healthcare Sys., 150 F.3d 609, 619 (6th Cir. 1998) (Gilman, J., concurring in the
judgment and delivering the opinion of the Court on the summary judgment issue); see
also Buchanan v. Aetna Life Ins. Co., 179 F. App’x 304, 306 (6th Cir. 2006) (“Traditional
summary judgment concepts are inapposite to the adjudication of an ERISA action for
benefits . . . because the district court is limited to the evidence before the plan
administrator at the time of its decision . . . .”). Rather, the Court must review the
administrative record and make findings of fact and conclusions of law. Wilkins, 150
F.3d at 619 (Gilman, J., concurring).
More particularly, this is an ERISA denial of benefits case. In Firestone Tire and
Rubber Co. v. Bruch, 489 U.S. 101, 115, (1989), the Supreme Court held that a challenge
to the denial of benefits under ERISA should “be reviewed under a de novo standard
unless the benefit plan gives the administrator or fiduciary discretionary authority to
determine eligibility for benefits or to construe the terms of the plan.” Where the plan
administrator exercises discretion, a deferential, abuse of discretion—or arbitrary and
2
capricious—standard of review applies. Id. at 111. Plaintiff does not dispute that the
“arbitrary and capricious standard” applies to the present matter based upon the terms of
the STD Plan, and the Court agrees [Doc. 27 p. 1].2 This Court may therefore disturb the
benefits determination in this case only if it finds the basis of the determination to be
arbitrary and capricious.
An administrator’s decision on eligibility for benefits is not arbitrary and
capricious if it is “‘rational in light of the plan’s provisions.’” Miller v. Metropolitan Life
Ins. Co., 925 F.2d 979, 984 (6th Cir. 1991) (quoting Daniel v. Eaton Corp., 839 F.2d 263,
267 (6th Cir. 1988)). “This standard is the least demanding form of judicial review of
administrative action. When it is possible to offer a reasoned explanation, based on the
evidence, for a particular outcome, that outcome is not arbitrary or capricious.” Killian v.
Healthsource Provident Adm’rs, Inc., 152 F.3d 514, 520 (6th Cir. 1998) (citations and
internal quotation marks omitted). Applying this standard of review requires that the
“decision be upheld if it is the result of a deliberate, principled reasoning process and if it
is supported by substantial evidence.” Baker v. United Mine Workers of Am. Health and
Ret. Funds, 929 F.2d 1140, 1144 (6th Cir. 1991). Yet, “‘merely because [the Court’s]
review must be deferential does not mean [the Court’s] review must also be
inconsequential. . . . [F]ederal courts do not sit in review of the administrator’s decisions
only for the purpose of rubber stamping those decisions.’” Houston v. UNUM Life Ins.
2
Under the terms of the STD Plan, U.S. Bank “will have the sole authority, discretion
and responsibility to interpret and apply the terms of the plans and to determine all factual and
legal questions under the plans, including eligibility and entitlement to benefits” [AR p. 388].
3
Co. of Am., 246 F. App’x 293, 299 (6th Cir. 2007) (alterations and omissions in original)
(quoting Moon v. Unum Provident Corp., 405 F.3d 373, 379 (6th Cir. 2005)).
II.
Relevant Findings of Fact
The STD Plan provides benefits to eligible employees of U.S. Bank and is
sponsored and funded by U.S. Bank, who is the “Plan Administrator and Plan Sponsor”
and maintains ultimate authority over whether an employee is entitled to benefits [AR p.
388]. Hartford is a “Claims Administrator” for the STD Plan, which means that U.S.
Bank has delegated to Hartford the authority “to interpret and construe the terms of the
[STD Plan] and to determine all factual and legal questions under the [STD Plan] with
respect to all initial claims for benefits and requests for review of adverse benefit
determinations” [Id. at 390]. Hartford is only responsible for making the initial claims
determinations and “first level appeals decisions,” and the “U.S. Bank Disability Benefit
Subcommittee” (the “Committee”) “is charged with making final claims determinations”
[Doc. 24 ¶¶ 2–3].
Pursuant to the STD Plan, to be eligible for benefits, one must either be totally
disabled or partially disabled and:
be covered under the STD plan;
have satisfied the eligibility requirement for coverage;
be under the regular care of a qualified doctor;
be following a recommended course of treatment for [her]
disabling condition; and
provide upon request: proof of eligibility for benefits, including
proof of continued disability; proof of the receipt or application
for other income benefits such as social security benefits or
Workers’ Compensation; proof of examination by a doctor or, if
4
requested, by an independent medical examiner; any other
information requested to approve or continue your benefits.
[AR p. 375]. Here, plaintiff seeks total disability benefits, which requires a showing that
she is “being treated for an illness, injury or pregnancy” and a finding by Hartford that
she is “unable to perform the essential functions of [her] regular occupation, with
reasonable accommodations, and, as a result, [her] current weekly earnings are less than
20% of [her] pre-disability earnings” [Id.].
Plaintiff was employed by U.S. Bank as a “Human Resources Generalist,” which
is a sedentary occupation, before she took a leave of absence on March 5, 2010, due to
symptoms of depression [Id. at 367; Doc. 25 p. 5]. A March 5 medical record prepared
by Dr. Robert Shutt (“Dr. Shutt”), plaintiff’s family practice physician, reported that
plaintiff had “some increased sadness, some anhedonia[,] as well as increased anxiety[,]”
and had recently suffered “palpatations, some anxiety and some sweating” at work [AR
p. 169]. Based upon these symptoms, Dr. Shutt “cleared [plaintiff] not to work for the
next two weeks” [Id.].
Plaintiff had a history of depression and anxiety, but prior to March 2010, her
condition was “well-controlled” by medication [Id. at 162; Doc. 25 pp. 5–6]. On March
8, 2010, Dr. Shutt executed an “Attending Physician Statement of Continued Disability
for Mental Health” (an “APS”) reporting that plaintiff’s psychomotor activity was at a
level of “retardation” [AR p. 210]. Moreover, Dr. Shutt noted that plaintiff had no ability
to direct, control, or plan the activities of others, influence others, or perform effectively
5
under stress, and that her symptoms became “severe enough to preclude
social/occupational functioning” on March 5, 2010 [Id. at 211].
On March 11, 2010, plaintiff received notice from Hartford that her claim for
short-term disability benefits had been approved from March 5, 2010, through March 21,
2010, as Dr. Shutt had designated March 22, 2010, as plaintiff’s anticipated return-towork date [Id. at 43; Doc. 27 p. 2]. This notice from Hartford further states: “If you are
unable to return to work on 3/22/10, please have your physician’s office contact us to
provide a complete medical update. Upon receipt of this information, we will review
your file for additional benefits” [AR p. 43].
Based on plaintiff’s March 19, 2010, visit, on March 25, 2010, Dr. Shutt executed
an APS, reporting that plaintiff was suffering from “sadness; . . . sleep disturbance; [and]
anxiety” [Id. at 209]. In this APS, Dr. Shutt stated that plaintiff “tells me the symptoms
are bad [enough] that she can’t work” and checked the “no” box in response to the
question: “[i]s your patient able to return to work with accommodations?” [Id.]. Dr.
Shutt also noted that plaintiff had been referred to a psychiatrist [Id.]. Accordingly, on
March 29 and 31, 2010, Hartford faxed APS forms to Kellye Hudson (“Hudson”), a
psychiatric mental health nurse practitioner, and David Maxey (“Maxey”), a licensed
clinical social worker, who were reportedly treating plaintiff [Doc. 25 p. 7].
When Hartford had not received any additional information on plaintiff’s health
condition by April 2, 2010, it advised plaintiff that the March 25 APS from Dr. Shutt
“was missing information needed to consider an extension of benefits” and that Hartford
6
had called the office of Hudson and Maxey and faxed APS forms to each, but had not
received a response [AR p. 41]. More specifically, Hartford stated in this letter that the
following information was necessary to determine whether plaintiff was disabled within
the meaning of the STD Plan after March 21, 2010: “medical documentation from
[plaintiff’s] last office visits with Dr. Hudson and Mr. David Maxey including
[plaintiff’s] symptoms, treatment plan, treatment frequency, limitations, level of
functionality and return to work plan” [Id.]. Because Hartford had not received this
information, the letter relayed that plaintiff’s claim had been closed [Id.]. Finally, the
letter advised plaintiff that she could perfect her claim by submitting the required
information, or appeal Hartford’s determination without providing additional information
[Id. at 41–42].
On or about April 7, 2010, Hartford received an APS completed by Maxey that
stated that he examined plaintiff on March 23, 2010, and diagnosed her with major
depressive disorder, recurrent, severe and generalized anxiety, and a GAF score of 50 [Id.
at 206].
Regarding plaintiff’s observable symptoms, Maxey recorded: “flat affect,
anxious, pressured speech, watchful, [and] tearful throughout sessions” [Id.]. Maxey
noted that plaintiff reported feeling “completely overwhelmed in her professional duties”
and that she received minimal training before starting as a Human Resources Generalist
[Id. at 207]. Though Maxey’s report indicated that plaintiff had a minimal ability to
direct or control others, perform effectively under stress, deal with other people, and
make judgments and decisions, Maxey also noted that plaintiff was well-groomed,
7
cooperative, and that her thought process was logical and coherent [Id. at 206–07].
Finally, Maxey submitted that plaintiff’s “[p]sychomotor activity” was at a level of
“[r]etardation” [Id. at 206].
On or about April 9, 2010, Hartford received an APS completed by Hudson that
diagnosed plaintiff with major depressive disorder and generalized anxiety disorder [Id.
at 203]. Of note, Hudson stated that plaintiff reported having a “break” and charted
plaintiff’s symptoms as “depressed mood” and fear of failure, awarding a GAF score of
50 [Id.]. Further, Hudson reported that plaintiff complained during a March 29, 2010,
evaluation of symptoms such as “shaking, inability to process information, feelings of
dread, increased anxiety, depressed mood, isolating behavior, fatigue, and increased
difficulty concentrating” [Doc. 27 p. 12]. Yet, Hudson noted, “no psychosis [was]
observed” [AR p. 203], despite plaintiff’s observed symptoms including “depressed
mood, tearful[ness] at times, worried about failing, . . . [and] concentration impaired”
[Id.].
Moreover, in charting plaintiff’s “Mental Status Examination” on March 29,
Hudson noted that plaintiff was nicely dressed and well-groomed, had “calm” motor
activity, was cooperative, and had above average intellectual functioning and good
concentration [Id. at 250]. Finally, Hudson reported on an APS regarding the March 29
examination that plaintiff’s symptoms were not of such severity so as to preclude plaintiff
from social or occupational functioning and that plaintiff had a psychomotor level within
normal limits [Id. at 203].
8
Due to this “conflicting information . . . from [plaintiff’s] providers” [Id. at 33],
Hartford referred plaintiff’s case to a behavioral health case manager, Kristen Piper
(“Piper”), on or about April 13, 2010, and Piper requested more information from Maxey
and Hudson [Id. at 342–43]. In response to a question inquiring whether plaintiff was
capable of full-time occupational functioning, Hudson stated that she was “not able to
answer this question” because she “met with [plaintiff] only once” and that plaintiff was
suffering from mild to moderate anxiety and “mood disturbances,” displaying symptoms
in the form of tearfulness and anxiousness [Id. at 271–72]. As for whether she believed
plaintiff could perform the duties of her occupation for a different employer, Hudson
stated that she “cannot answer [because] [she was] not aware of [plaintiff’s] specific job
duties with [U.S. Bank]” [Id. at 272].
Based on Hudson’s response, Piper concluded that the available information did
not substantially indicate functional impairments [Id. at 338]. Therefore, in a letter dated
April 21, 2010, Hartford notified plaintiff that she was not eligible for benefits beyond
March 21, 2010, because she had not submitted information showing that her symptoms
and impairments were so severe that they prevented her from working [Id. at 31–34].
This letter requested information from Maxey, who had not responded to the April 13
inquiry from Piper, and noted that plaintiff could alternatively appeal Hartford’s decision
[Id. at 34]. On April 28, 2010, Hartford spoke with plaintiff on the telephone and
encouraged her to submit the requested information so that Hartford could review her
case for a possible extension of benefits beyond March 21 [Id. at 330].
9
On May 11, 2010, Hartford received a response from Maxey dated April 16, 2010
[Id. at 261–62].
Maxey averred that plaintiff did not have full-time occupational
functioning because of her poor memory, anxiety, poor concentration, fatigue, and her
feeling that she is overwhelmed [Id. at 261]. Yet, Maxey stated that plaintiff would “be
able to perform to duties of her own occupation as a HR representative for a different
employer” and that he did not and would not “accept any implied responsibility for the
granting or denial of [plaintiff’s] benefits” [Id. at 262].
After receiving Maxey’s response, Hartford again denied plaintiff’s claim for
benefits beyond March 21, 2010, in a May 17, 2010, letter, stating that “there were no
noted objective or observable symptoms impacting [plaintiff’s] functionality” and
pointing out that Maxey indicated that plaintiff could perform her job duties for a
different employer [Id. at 28].
Accordingly, Hartford concluded that there was no
indication that plaintiff’s symptoms or impairments prevented her from working beyond
March 21.
Plaintiff notified Hartford of her intent to appeal the denial of benefits on May 20,
2010, and requested information pursuant to 29 C.F.R. § 2560.503 [Id. at 259]. On
November 19, 2010, plaintiff submitted additional information in support of her claim for
benefits [Id. at 237–51]. This information included witness statements averring that
plaintiff had shown signs of depression and anxiety, plaintiff’s representation that she
suffered from neuropathy and severe carpel tunnel syndrome, and plaintiff’s statement
that she was experiencing side effects from medication such as loss of appetite, weight
10
gain, thoughts of suicide, and fatigue, among other symptoms [Id. at 240]. Moreover,
plaintiff submitted documents memorializing an evaluation completed by Hudson on
March 29, 2010, which diagnosed her with “generalized anxiety disorder” and “major
depressive disorder” of the “simple, mild” variety and noted that plaintiff showed “no
psychosis” and had good concentration, above-average intellectual functioning, and
adequate judgment [Id. at 97].
Plaintiff submitted a plethora of records in support of her appeal, including records
of her treatment with Maxey [Id. at 102–06]. These records indicated that plaintiff saw
Maxey once in March 2010, five times in April 2010, and once in May 2010 before
cancelling her May 18, 2010, appointment and ending her treatment with Maxey [Id. at
104–05]. A significant portion of the records from these meetings, which were composed
by Maxey, relates to plaintiff’s difficulty concerning the STD Plan benefits process [Id. at
105–06]. One excerpt, which summarizes a meeting on April 22, 2010, notes that
plaintiff and Maxey “discuss[ed] her need to begin looking for another company [with
which] to practice her profession” [Id. at 105].
Finally, a form restriction letter signed by Dr. Shutt on October 17, 2010, states
that plaintiff must be able to miss work at any time to combat her symptoms and must
avoid social contact with others [Id. at 80]. Further, this form states that plaintiff “could
not work at any employment beginning March 5, 2010, and cannot work at any
employment at this time. . . . [and] for the foreseeable future” due to the symptoms
stemming from her anxiety and depression [Id.].
11
Based upon a review of plaintiff’s claim file and the additional information
provided in support of plaintiff’s appeal, Hartford denied plaintiff’s initial appeal,
determining that “[t]here is no evidence to support disability from a physical perspective”
and that “the medical information does not support [the assertion that plaintiff] was
unable to perform the essential functions of her regular occupation, with reasonable
accommodations[,] beyond March 21, 2010” [Id. at 21]. In support, Hartford noted that
there were no records from Dr. Shutt after March 19, 2010, to buttress his conclusion of
October 17, 2010, which Hartford found was “not supported by the medical evidence in
the claim file,” and Hartford added that the medical records from Hudson and Maxey
were more recent and deserve more weight than Dr. Shutt’s opinion because Hudson and
Maxey specialize in assessing and treating mental health issues, while Dr. Shutt was
plaintiff’s family practice physician [Id. at 20–21]. Hartford also noted that plaintiff’s
“occupation” refers to “that in the general workplace and not for a specific employer” [Id.
at 21]. The letter informing plaintiff of Hartford’s denial of her initial appeal advised
plaintiff that she could appeal to U.S. Bank, who would make the final determination as
to her claim [Id. at 22].
Plaintiff gave notice of her intent to appeal Hartford’s decision on January 27,
2011, and her counsel submitted the following question to Hartford: “could you advise us
what particular tests or objective findings would support [plaintiff’s] complaints and
which would provide evidence of total disability?” [Id. at 72–73]. Defendants did not
respond with specificity to this particular request. In connection with plaintiff’s second
12
appeal to U.S. Bank, Hartford referred her claim to “Behavioral Medical Interventions,” a
third-party peer review entity, which hired Dr. Gregory Barclay (“Dr. Barclay”), a boardcertified psychiatrist, to review plaintiff’s records and provide his opinion [Id. at 62–63;
Doc. 25 p. 13]. Dr. Barclay did not personally examine plaintiff [AR p. 68], and on this
point, the STD Plan states that claimants may be required to undergo a physical
examination by a physician selected by Hartford, or Hartford may hire an independent
consultant to examine and review a claimant’s records [Id. at 376].
Dr. Barclay was unable to reach Hudson despite several attempts and received
only a returned voicemail from Maxey on April 19, 2011, in which Maxey stated that he
had no opinion as to plaintiff’s current ability to work and that “she seemed fine and not
impaired when he saw her last year” [Id. at 64–65]. In addition, Dr. Barclay discussed
plaintiff’s case with Dr. Shutt for fifteen minutes on April 19, 2011, reporting that Dr.
Shutt stated: “in his opinion, at no point in his contact with [plaintiff] did he believe her
psychiatric issues would have prevented her from working[,] and she did not exert
significant functional limitations in her ability to work” [Id. at 65]. Dr. Shutt also noted
in this conversation that plaintiff had begun treatment with a psychiatrist, Dr. Jayne,
which had purportedly improved her condition [Id.]. In terms of the records reviewed in
preparing his report, Dr. Barclay stated that he reviewed the APS forms submitted by
various medical providers, plaintiff’s medical records, a psychiatric evaluation completed
by Complete Counseling, a “Life Sync document,” lab and diagnostic documents,
internal and miscellaneous documents, and “[a]uthorizations” [Id. at 64].
13
After reviewing this information and receiving the aforementioned feedback from
plaintiff’s medical providers, Dr. Barclay noted that (1) neither plaintiff’s therapist nor
her nurse practitioner commented that she was “significantly impaired in her . . . ability to
work,” a view he submits was corroborated by Dr. Shutt in his reported conversation with
Dr. Barclay, (2) plaintiff’s medical providers did not document formal mental status
examination findings, rating scales, or other objective measures of symptom severity, and
(3) “there is no cognitive or psychological testing . . . to corroborate [plaintiff’s]
subjective complaints of impaired functioning” [Id. at 66–67]. Plaintiff submits that this
view is contradicted by the previous forms and reports submitted by Dr. Shutt, Hudson,
and Maxey, who reported bodily symptoms, GAF scores, plaintiff’s appearance, and
plaintiff’s psychomotor activity level.
Also, plaintiff contends that Hartford never
requested psychological testing despite the fact that U.S. Bank’s policy allowed such and
did not respond to plaintiff’s inquiry as to the kind of objective findings that would
support plaintiff’s claim [Doc. 27, pp. 11–12]. Dr. Barclay acknowledged that “[t]here is
consistency among the available medical records with regard to [plaintiff’s] subjective
complaints” [AR p. 67].
In sum, however, Dr. Barclay concluded that “[t]here is
insufficient medical evidence to support impairment for the time frame in question” and
“a lack of support for impairment from a psychiatric disorder,” lamenting the lack of
testing to corroborate plaintiff’s subjective complaints or objectively measure symptom
severity [Id. at 67–68].
14
At this point, Hartford forwarded plaintiff’s file and information to U.S. Bank,
along with its recommendation that U.S. Bank uphold the denial of disability benefits
beyond March 21, 2010 [Id. at 6–7]. In a letter dated July 14, 2011, the Committee
informed plaintiff that it was upholding the denial of STD Plan benefits beyond March
21, 2010, because it found that “the medical information is insufficient to support that
[plaintiff] was experiencing symptoms of a psychiatric nature to such a severity that it
precluded her from performing the essential duties of her own occupation for the period
beyond March 21, 2010” [Id. at 3]. Thus, the decision to terminate benefits on that date
was “appropriate” because the evidence is insufficient to support the conclusion that
plaintiff continued to be totally disabled [Id. at 3]. Plaintiff filed her complaint against
defendants in the General Sessions Court for Knox County, Tennessee, on September 13,
2011, and defendant filed a notice of removal on August 22, 2012 [Doc. 1 ¶ 1].
III.
Conclusions of Law
While Hartford has asserted that it cannot be held liable because, pursuant to the
terms of the STD Plan [Doc. 22 p. 7], it neither had the authority over the final decision
to deny benefits nor is liable for any benefit payments, the Court need not address this
argument in light of its finding that neither defendant acted in an arbitrary and capricious
manner in relation to plaintiff’s claim. U.S. Bank has moved for judgment on the record
on the grounds that (1) plaintiff did not meet her burden of establishing that she was
entitled to benefits beyond March 21, 2010, under the STD Plan, and (2) U.S. Bank’s
decision was based on the totality of the evidence after a fair and reasonable
15
investigation. Thus, U.S. Bank submits, its decision was not arbitrary and capricious and
therefore cannot be disturbed.
Plaintiff has also moved for judgment on the record on the grounds that (1) she
was denied a full and fair review of her claim, and (2) Hartford’s demand for objective
evidence was unreasonable given the terms of the STD Plan. More specifically, plaintiff
submits that she was denied a full and fair review of her claim because (1) defendants
ignored portions of the information from her medical providers, (2) did not respond to her
inquiry as to which tests would substantiate her claim, and (3) failed to conduct a
physical examination of plaintiff, instead relying on a record review that amounted to a
credibility judgment.
In addition, plaintiff alleges that Dr. Barclay’s analytical
framework had numerous factual errors, misunderstandings, and omissions. Finally,
plaintiff alleges that Hartford’s demand for objective evidence of plaintiff’s disability, its
refusal to tell plaintiff the objective evidence needed to prove she was entitled to benefits,
and its failure to disclose Dr. Barclay’s report until after the final denial of benefits were
unreasonable, arbitrary, and capricious. Defendants responded in opposition to plaintiff’s
motion.
The record reveals that plaintiff was treated for psychiatric or psychological issues
beginning around March 5, 2010, and received STD Plan benefits from U.S. Bank
through March 21, 2010. Though defendants acknowledge that plaintiff consistently
reported symptoms of depression and anxiety, they denied plaintiff’s request for benefits
beyond this date based upon their conclusion that plaintiff failed to provide sufficient
16
objective, medical evidence that her symptoms and impairments were of such a severity
to render her unable to perform the essential functions of her job, viewed as a general
occupation rather than her specific position with U.S. Bank.
U.S. Bank correctly states that plaintiff bears the “burden of producing evidence
that she was disabled under the terms of the policy.” Rose v. Hartford Fin. Servs. Grp.,
Inc., 268 F. App’x 444, 452 (6th Cir. 2008).
Moreover, plaintiff must show that
defendants’ denial of benefits was arbitrary and capricious. The record in this case
contains evaluations and representations by various medical providers that often conflict
both with the evaluations of the other providers, and previous or subsequent evaluations
by the same provider.
For example, Hudson averred in an APS form that based on her March 29, 2010,
examination of plaintiff, she did not believe plaintiff’s symptoms were severe enough to
preclude her from occupational functioning. Later, she stated that she could not opine as
to whether plaintiff was capable of full-time occupational functioning because she only
met plaintiff once and was unaware of plaintiff’s job duties.
In addition, Maxey stated in an APS form that based on his meeting with plaintiff
in late March 2010, plaintiff’s symptoms were severe enough to preclude occupational
functioning. Yet, when Hartford sought more information from Maxey in April 2010, he
stated that plaintiff could perform the duties of her occupation with U.S. Bank for another
employer, and records of his meetings with plaintiff reveal that he told plaintiff she
needed to begin looking for a new job in which to practice her profession. These
17
observations bely Maxey’s previous representation that plaintiff was unable to perform
the essential functions of her job. When Dr. Barclay attempted to contact Maxey, Maxey
replied with a voicemail stating that he had no opinion as to plaintiff’s ability to work and
that she did not seem impaired when he last saw her.
Further, Dr. Shutt indicated in an APS form completed on March 25, 2010, that
plaintiff could not return to work, but this finding was based on his examination of
plaintiff on March 19, 2010, when she was still receiving STD Plan benefits. On October
17, 2010, Dr. Shutt signed a form stating that plaintiff had been unable to work since
March 5. Yet, Dr. Barclay spoke with Dr. Shutt about plaintiff’s condition on April 19,
2011, and reported that Dr. Shutt stated that at no point did he believe plaintiff’s
symptoms would have prevented her from working and that she did not exert significant
limitations in her ability to work.
Based on the inconsistencies in plaintiff’s evidence, as well as defendants’
consideration of the totality of the record in deciding to deny plaintiff’s requested
benefits, the Court finds that this decision was not arbitrary, capricious, or unreasonable.
Though defendants acknowledge that plaintiff was diagnosed with depression and
anxiety-related disorders, from which she had suffered since at least 2003, there is
insufficient evidence in the record that the symptoms from these ailments rendered her
unable to perform the essential functions of her job beyond March 21, 2010. In fact,
some medical evaluations indicated that she was not unable to perform her occupational
functions.
18
Moreover, defendants relied, at least in part, on the independent peer review
conducted by Dr. Barclay in arriving at its decision to deny plaintiff’s claim for benefits.
After reviewing the applicable record and speaking, or attempting to speak, with Dr.
Shutt, Hudson, and Maxey, Dr. Barclay concluded that while plaintiff’s subjective
symptoms were consistent, plaintiff had not presented sufficient objective, medical
evidence indicating that her symptoms were so severe that she was unable to work.
Given the record and the comprehensive investigation and analysis performed by U.S.
Bank, and Hartford on its behalf, the Court finds that this explanation is rational and
reasonable, and neither arbitrary nor capricious, under the circumstances.
1.
Plaintiff’s Claim That She Was Not Afforded a Full and Fair
Review
Plaintiff contends that she did not receive a full and fair review of her claim,
which includes the right to review all relevant documents and records and contemplates
communication between the parties. See Booton v. Lockheed Med. Ben. Plan, 110 F.3d
1461, 1463 (9th Cir. 1997) (“If benefits are denied in whole or in part, the reason for the
denial must be stated in reasonably clear language, with specific reference to the plan
provisions that form the basis for the denial; if the plan administrators believe that more
information is needed to make a reasoned decision, they must ask for it.”). Plaintiff
claims that defendants ignored Dr. Shutt and Maxey’s findings that she could not return
to work and Hudson’s finding that plaintiff was incompetent to sign checks or manage
her funds. But as already noted, at other times, Dr. Shutt and Maxey stated otherwise or
19
averred that they could not opine as to whether plaintiff was capable of performing her
essential job functions.
To this end, Hudson noted that “no psychosis [was] observed” on March 29, 2010,
that plaintiff had above average intellectual functioning and good concentration, that
plaintiff’s symptoms were not of such severity so as to preclude plaintiff from social or
occupational functioning, and that plaintiff had a psychomotor level within normal limits
[AR pp. 203, 250].
Later, when asked whether plaintiff was capable of full-time
occupational functioning, Hudson stated that she was “not able to answer this question”
because she “met with [plaintiff] only once,” and as for whether she believed plaintiff
could perform the duties of her occupation for a different employer, Hudson stated that
she “cannot answer [because] [she was] not aware of [plaintiff’s] specific job duties with
[U.S. Bank]” [Id. at 271–72].
Moreover, Maxey averred in a document completed on April 16, 2010, that
although plaintiff did not have full-time occupational functioning because of her poor
memory, anxiety, poor concentration, fatigue, and her feeling that she was overwhelmed,
plaintiff would “be able to perform to duties of her own occupation as a HR
representative for a different employer” and that he did not and would not “accept any
implied responsibility for the granting or denial of [plaintiff’s] benefits” [Id. at 261–62].
In a meeting on April 22, 2010, Maxey noted that he and plaintiff “discuss[ed] her need
to begin looking for another company [with which] to practice her profession” [Id. at
105]. Further, Maxey told Dr. Barclay in April 2011 that he had no opinion as to
20
plaintiff’s current ability to work and that “she seemed fine and not impaired when he
saw her last year” [Id. at 64–65].
Such contradictions underscore the weakness of plaintiff’s claim—she had the
burden of proof as to her claim, and this Court may only overturn defendants’ decision if
it determines that the decision was arbitrary and capricious.
Plaintiff also takes issue with Dr. Barclay’s finding that plaintiff had not supplied
sufficient evidence of the severity of her symptoms, especially considering that plaintiff
inquired, after her first appeal had been decided in January 2011, as to the tests or
objective findings needed to support her claim, to which she apparently received no
response from defendants.
Yet, as U.S. Bank points out, it and Hartford provided
detailed information as to the records considered in rendering their decisions and
continually stated that plaintiff had not provided sufficient objective evidence regarding
the severity of her symptoms.
Concerning plaintiff’s argument that defendants did not comply with the
communication mandates because they ignored her January 2011 inquiry as to what
information or test results would support her appeal, the Court finds it is unsupported by
the record. Letters sent to plaintiff on April 2, 2010 [Doc. 41], and January 13, 2011
[Docs. 19–21], denying her claim, as well as Dr. Barclay’s report on April 27, 2011 [Doc.
64–68], consistently detail the items reviewed in arriving at the decision, the specific
basis for the decision, and the type of information needed to perfect the claim. Moreover,
as U.S. Bank notes, “[t]he administrator [must] describe what is required to ‘perfect the
21
claim,’ and that is not synonymous with ‘win the appeal.’” Dutton v. Unum Provident
Corp./Paul Revere Co., 170 F. Supp. 2d 754, 760 (W.D. Mich. 2001) (quoting Terry v.
Bayer Corp., 145 F.3d 28, 39 (1st Cir. 1998)).
The Court finds that defendants
consistently described the information needed to perfect plaintiff’s claim and the
information considered in rendering each decision, and therefore the Court declines to
find that plaintiff was not provided a full and fair review on this basis.
In addition, plaintiff argues that defendants acted in an arbitrary and capricious
fashion by failing to conduct a physical examination of plaintiff. The Sixth Circuit has
stated that there is “nothing inherently objectionable about a file review by a qualified
physician in the context of a benefits determination” and that the decision to conduct a
file review, as opposed to a physical examination, is just one factor for the Court to
consider. Calvert v. Firstar Finance, Inc., 409 F.3d 286, 295 (6th Cir. 2005). Still, “the
failure to conduct a physical examination—especially where the right to do so is
specifically reserved in the plan—may, in some cases, raise questions about the
thoroughness and accuracy of the benefits determination.” Id. at 295–96. The STD Plan
reserves such a right. In Calvert, the court found that the benefits determination had been
arbitrary and capricious because the reviewing physician’s conclusions indicated that he
had not reviewed the entire record. Id. at 296. In particular, the reviewing physician: did
not mention the surgical reports, x-rays, or CT scans in the record, did not address the
contrary conclusions of the two doctors that met or examined the claimant and the Social
Security Administration, and stated that no objective data supported plaintiff’s claim that
22
her activities were restricted, despite the x-rays and CT scans in the record. Id. at 296–
97.
Conversely, Dr. Barclay: chronicled in detail the items reviewed in composing his
report, attempted to speak, or did speak, with plaintiff’s medical providers concerning her
condition and ability to work, and acknowledged the medical facts or opinions supporting
plaintiff’s total disability claim. To this end, Dr. Barclay noted plaintiff’s history of
depression and anxiety and the consistency of the records as to plaintiff’s subjective
complaints, but ultimately concluded that insufficient evidence existed to show that
plaintiff’s symptoms were so severe as to prevent her from working. Consequently, the
present record is inapposite to Calvert, where the reviewing physician’s conclusions were
plainly contradicted by the record. On the contrary, there is no indication here that Dr.
Barclay did not consider all of plaintiff’s records or that he did not believe her symptoms.
Plaintiff further submits that because her ailment was psychiatric or psychological
in nature, Dr. Barclay should have conducted a physical, or in-person, examination,
relying upon Smith v. Bayer Corp. Long Term Disability Plan, 444 F. Supp. 2d 856, 873
(E.D. Tenn. 2006) (stating that courts often discount the opinions of psychiatrists who
have not seen the patient because, unlike many types of medicine, psychiatry is largely
dependent on interviewing and spending time with the patient). In Smith, the reviewing
physicians, who did not visit plaintiff, arrived at the opposite conclusion to the two
physicians who did, and the reviewing physicians’ reports contained statements that
“border[ed] on the absurd” and were contradicted by the record. Id. at 874–75. The
23
Sixth Circuit affirmed this portion of the opinion, finding errors and omissions in the
reviewing physicians’ analytical framework and noting that “[a]n examination could have
helped the plan administrator to better evaluate the severity of [plaintiff’s] symptoms.”
Smith v. Bayer Corp. Long Term Disability Plan, 275 F. App’x 495, 503–04, 508 (6th
Cir. 2008). Furthermore, in Smith, “the only evidence supporting the assertion that the
plaintiff was able to resume his prior position as a pharmaceutical-sales representative
was offered by individuals who never met personally with Smith, despite the difficulties
in diagnosing psychological illnesses from cold medical records.” Id. at 503–04.
Even if it would have been more prudent for Dr. Barclay to conduct a physical
examination, by itself, this factor is not enough to overcome the totality of the evidence
and the thorough, documented review by defendants, which led to a decision that was not
arbitrary or capricious. Additionally, unlike in Smith, Dr. Barclay’s conclusion did not
directly contradict the conclusions of the examining medical providers, and Dr. Barclay
consulted, or tried to consult, with the medical providers who treated plaintiff and
recounted what he learned in his report.
Moreover, as mentioned, Dr. Barclay’s report describes the portions of the record
he reviewed, the aspects of the record supporting and belying plaintiff’s claim, and the
basis for his decision, arriving at a reasoned conclusion consistent with that reached by
defendants throughout the claim process. Thus, the Court does not find that the analytical
framework employed by defendants contains the sort of errors, misunderstandings, and
omissions present in Calvert and Smith.
24
Finally, and perhaps most importantly, though the record contains evidence
supporting plaintiff’s claim that she was suffering from depression and anxiety, it also
contains evidence indicating that plaintiff could have performed the essential functions of
her occupation during the time frame in question, and thus, in contrast to Smith, the Court
does not find that the only evidence supporting Dr. Barclay’s conclusion came from
individuals who never met with plaintiff. Therefore, the Court finds that, by itself, the
fact that Dr. Barclay did not physically examine plaintiff does not render defendants’
denial of benefits arbitrary or capricious.
Along similar lines, plaintiff contends that “where an administrator exercises its
discretion to conduct a file review, credibility determinations made without the benefit of
a physical examination support a conclusion that the decision was arbitrary.” Helfman v.
GE Grp. Life Assur. Co., 573 F.3d 383, 395–96 (6th Cir. 2009). Here, plaintiff submits,
defendants made such credibility determinations because they “did not believe [plaintiff]
when she asserted that she could not work because of her depression and anxiety,”
rendering the denial of benefits arbitrary [Doc. 27 p. 17]. U.S. Bank argues that this
language is inapplicable because Dr. Barclay did not determine that plaintiff was not
credible—he readily acknowledged her history of depression and anxiety and the
consistency of her subjective symptoms. Instead, he merely concluded that she did not
provide sufficient evidence as to the severity of her symptoms. This does not amount to a
credibility judgment that renders Dr. Barclay’s findings, or those of defendants based on
the totality of the record, arbitrary or capricious.
25
As a general matter, with regard to defendants’ use of Dr. Barclay’s review as
support for their decisions, “plan administrators are not required to accord special
deference to the opinions of treating physicians.” Balmert v. Reliance Standard Life Ins.
Co., 601 F.3d 497, 504 (6th Cir. 2010).
And, “[r]eliance on other physicians is
reasonable so long as the administrator does not totally ignore the treating physician’s
opinions.”
Id.
Dr. Barclay and defendants expressly noted that they considered
plaintiff’s medical records and evaluations and acknowledged plaintiff’s symptoms. Dr.
Barclay consulted, or tried to consult, with plaintiff’s medical providers to gather their
opinions on plaintiff’s condition and reviewed plaintiff’s medical records, reports, and
evaluations. Thus, it cannot be said that the opinions of plaintiff’s treating medical
providers were ignored.
The Court has found that none of the particularized concerns with using a nontreating physician’s opinion, considered individually or collectively, overcome the
deferential review standard and support in the record for the decision to deny plaintiff’s
claim for benefits. In addition, the Court does not find that Dr. Barclay’s opinion, or
defendants’ reliance upon it, was unsupported by the record. Summarily, the Court finds
that plaintiff received a full and fair review of her claim and that defendants did not act
arbitrarily or capriciously in denying her claim.
2.
Plaintiff’s Claim That Hartford’s Demand for Objective
Evidence Was Unreasonable
Finally, plaintiff argues that defendants unreasonably “employed a game of
‘hiding the ball’” by focusing on and requiring objective proof that plaintiff was unable to
26
perform the essential functions of her occupation when the STD Plan does not expressly
require such and ignoring plaintiff’s aforementioned request for the test results or
information needed to support plaintiff’s claim on her second appeal [Doc. 27 p. 18].
The latter argument has already been addressed, and as to the former, U.S. Bank correctly
notes that “[r]equiring a claimant to provide objective medical evidence of disability is
not irrational or unreasonable.” Cooper v. Life Ins. Co. of N. Am., 486 F.3d 157, 166 (6th
Cir. 2007); see also Richards v. Johnson & Johnson, 688 F. Supp. 2d 754, 787 (E.D.
Tenn. 2010) (holding that “Defendant is entitled to request objective evidence of a
claimant’s subjective complaints and medical opinions based on those subjective
complaints”).
Requesting objective evidence had a clear purpose in this case—determining
whether plaintiff was capable of performing the essential functions of her occupation. In
addition, a “plan administrator [can] require objective evidence of a disability, . . . so long
as the administrator notified the claimant that her file lacked the required objective
evidence.” Huffaker v. Metro. Life Ins. Co., 271 F. App’x 493, 500 (6th Cir. 2008)
(citation and internal quotation marks omitted). Communications from defendants to
plaintiff are replete with such notifications in this case.
Defendants were not
unreasonable in requesting objective evidence, and their conclusion that plaintiff did not
provide sufficient objective evidence that she was unable to perform the essential
functions of her occupation was not arbitrary or capricious.
27
Plaintiff also submits that defendants acted unreasonably because the questions to
which Dr. Barclay responded in his report were different than those sent to plaintiff’s
medical providers, and Dr. Barclay’s report was not disclosed to plaintiff or her medical
providers until after U.S. Bank’s final denial of plaintiff’s claim for benefits. As for the
difference between the questions provided to treating medical providers at the factgathering stage of the claim and the questions provided to a reviewing physician after an
initial determination and appeal, the Court finds that such a difference does not render the
decision-making process arbitrary or capricious.
Moreover, concerning the disclosure of Dr. Barclay’s report, U.S. Bank responds
that plaintiff was notified of his review as it was ongoing and asked to assist in
facilitating communication between Dr. Barclay and plaintiff’s medical providers. Also,
plaintiff did not request a copy of the report. The Sixth Circuit has stated that it is
doubtful that plaintiffs have the right to discover documents generated within a pending
administrative review, and even if such a right exists, the plaintiff must request a copy of
the documents. Balmert, 601 F.3d at 503. There is no evidence that plaintiff made such
a request. Accordingly, the Court finds that defendants did not act unreasonably in these
respects and that plaintiff’s arguments are without merit.
IV.
Conclusion
In light of all the evidence in the record, defendants have demonstrated a rational,
reasoned explanation for their decision, and thus the Court finds that their denial of
plaintiff’s claim for STD Plan benefits was supported by evidence in the record and was
28
not arbitrary or capricious. Therefore, plaintiff’s Motion for Judgement [sic] on the
Administrative Record [Doc. 26] will be DENIED, U.S. Bank’s Motion for Judgment on
the Record [Doc. 23] will be GRANTED, and Hartford’s Motion for Judgment on the
Record [Doc. 20] will be GRANTED. Accordingly, this case will be closed.
ORDER ACCORDINGLY.
s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE
29
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