Griffin v. Hartford Life & Accident Insurance Company

Filing 97

MEMORANDUM OPINION. Signed by Judge Norman K. Moon on January 25, 2017. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
LYNCHBURG DIVISION

SCOTT GRIFFIN,

CASE NO. 6:16-CV-00024
Plaintiff,
v.

MEMORANDUM OPINION

HARTFORD LIFE & ACCIDENT INSURANCE
COMPANY,
JUDGE NORMAN K. MOON
Defendant.
This matter is before the Court upon cross motions for summary judgment. (Dkts. 78 &
79). The controversy in this case revolves around Defendant’s decision to cease providing
Plaintiff with disability benefits under a plan governed by the Employee Retirement Income
Security Act of 1974 (“ERISA”). Defendant had provided Plaintiff with Long Term Disability
(“LTD”) benefits, as well as a Life Insurance Waiver of Premium (“LWOP”) that exempted him
from having to pay his life insurance premium while disabled. Defendant had previously
determined that Plaintiff was disabled due primarily to spinal ailments. However, Defendant later
decided that Plaintiff was no longer disabled and ceased providing either type of benefit. In
accordance with the following reasoning, the Court will hold that Defendant’s termination of
benefits decision was proper. Thus, Defendant’s motion for summary judgment will be granted,
while Plaintiff’s will be denied.
I.

Statement of Undisputed Facts1
a. The Benefits Plan

1

All facts in this memorandum are derived from the Administrative Record (“AR”),
Docket Nos. 11-1 and 11-2. Citations to the administrative record are in the form of: (AR [page
number]).
1

Plaintiff was employed at MedQuist Transcripts, Ltd. (“Medquist”) from 2010 to 2012.
(AR 185, 206). Defendant provided policies (the “Policies”) for life insurance and disability
benefits that Medquist offered to employees such as Plaintiff under the terms of its employee
welfare benefit plan. (See AR 38–61). The Policies vested Defendant with full discretionary
authority to interpret their provisions and provide benefits accordingly. (AR 51). The Policies
initially contained different definitions of “disabled” under for LTD and LWOP. The LTD policy
employed the “own occupation” definition, while the LWOP interpreted disability to mean being
prevented from doing “any occupation.” (AR 52; AR 72). Later, the definition for disability
under the LTD policy changed to “any occupation” as well. (AR 257). Additionally, the Policies
contained several provisions which Defendant claims indicate that the beneficiary had the
obligation of establishing his own disability if he wished to receive benefits.2
b. Timeline of Events
Plaintiff’s medical problems forced him to stop working in September of 2011. (AR
1020). These problems included atrial fibrillation (heart), degenerations at the C5-6 and C6-7
vertebrae (neck), carpal tunnel syndrome and tennis elbow (arm), and degenerations at L3-4, 4-5,
and L5-S1 vertebrae (lower back). (AR 197, 532; AR 189–90, 752; AR 125; AR 672). Plaintiff
2

See AR 45:
Termination of Payment: When will my benefit payments end?
Benefit payments will stop on the earliest of:
1) the date You are no longer Disabled;
2) the date You fail to furnish Proof of Loss;
3) the date You are no longer under the Regular Care of a Physician.
See also AR at 72:
To qualify for Waiver of Premium You must:
1) be covered under the Policy and be under age 60 when You become
Disabled;
2) be Disabled and provide Proof of Loss that You have been Disabled for 9
Consecutive month(s), starting on the date You were last Actively at Work;
and
3) provide such proof within one year of Your last day of work as an Active
Employee.
2

had previously undergone surgery on his lower back vertebrae, but was told no further surgery
could be done until the degeneration prevented him from walking. (AR 528). In October of 2011,
Plaintiff was granted Short Term Disability (“STD”) benefits under the Policies. (AR 1086,
1092). Plaintiff was terminated from his position at Medquist on April 3, 2012, and was
approved for LTD benefits on May 3, 2012, on the basis of his cervical and lumbar issues. (AR
325; AR 203, 710, 859). At the end of May, 2012, Plaintiff underwent surgery with Dr. Matthew
Sackett to correct his atrial fibrillation. (AR 196, 532). Plaintiff was approved for LWOP
benefits on June 17, 2012. (AR 1035).
In March 2013, Dr. Jonathan Carmouche performed neck surgery to treat plaintiff’s neck
and arm pain. (AR 179). The surgery was largely successful, although there were some lingering
symptoms. (AR 179). In June 2013, Defendant began to inquire into Plaintiff’s disability claim
because it was unclear whether his surgeries had resolved his symptoms, and Dr. Carmouche
would not perform a Physical Capacity Evaluation (“PCE”) to resolve the question. (AR 178).
The investigation was also spurred by the fact that Defendant had noted statements by Plaintiff
inconsistent with his disability. (AR 176–77). Namely, Plaintiff had stated that he drove 1.5
hours each way to see Dr. Carmouche and that he continued to aspire to be a musician, even
though his condition purportedly prevented him from sitting or playing guitar for prolonged
periods of time. (AR 176–77). These inconsistencies were mitigated, however, by the fact that
Plaintiff took a rest stop in the middle of the drive and had voice-to-text software to enable him
to do songwriting without typing. (AR 176-77).
Pursuant to this inquiry, Defendant employed Nurse Ruth Weddermann to conduct an
internal Medical Case Manager (“MCM”) review of Plaintiff’s medical records. (AR 173–75). In
July of 2013, Weddermann ultimately recommended updating Plaintiff’s records because it was

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not apparent whether Plaintiff’s neck surgery had resolved his medical issues. (AR 175). In
response, Defendant sought records from Dr. Carmouche and Dr. Bravo (who had begun treating
Plaintiff for tendonitis in his arm) but was ultimately unsuccessful in getting either doctor to
definitively opine on Plaintiff’s disability or agree to do a PCE. (AR 170; AR 165–69). Dr.
Carmouche did, however, provide some evidence that Plaintiff had ongoing medical issues. (See
AR 169 (“Rcvd MRs from Dr. Carmouche confirming [Plaintiff’s] statements.”); AR 672
(“Severe degeneration at L3-4, 4-5. Degeneration L5-S1.”)).
Failing to obtain a definitive statement from his current treating doctors, Defendant
utilized another physician, Dr. Teichman, to review Plaintiff’s existing medical records and
determine whether he was still disabled. (AR 596–600). On February 28, 2014, Dr. Teichman
completed his report and concluded that he would have to defer to the treating physicians
because there was insufficient information on which he could make his own conclusion. (AR
596–600). Dr. Teichman also noted Dr. Carmouche’s statement that “patient reported being
unable to sit for more than 10 minutes at a time” and concluded that such a restriction, if it
existed, “is not compatible with functionality in a work environment, even at a sedentary level.”
(AR 592).
On March 12, 2014, Defendant changed its definition of disability for LTD from
disability preventing a person from working at their “own occupation” to working at “any
occupation,” but informed Plaintiff that he still qualified under the new definition. (AR 257).
Plaintiff’s claim was later referred to a special investigations unit within Defendant’s
organization. (AR 138). The investigators conducted surveillance on Plaintiff in March 2014 and
conducted an interview with him in May. (AR 133; AR 525). Plaintiff’s Social Security
Disability claims appeal was also denied in May of 2014. (AR 137). In June and August of 2014,

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Defendant sent the surveillance video to Plaintiff’s treating physicians, and asked whether they
were restricting Plaintiff’s activities. (AR 129, 131, 245–48). None responded affirmatively,
although Dr. Larry McGlothlin did indicate that Plaintiff had some physical limitations and was
“very likely to have some disability.” (AR 122, 512, 503; AR 443).
On September 5, 2014, Defendant informed Plaintiff that he was no longer considered
disabled and would cease receiving disability benefits. (AR 227–33). On September 8th,
Defendant informed Plaintiff that his LWOP benefits were also being terminated. (AR 1029–
34). Plaintiff appealed the benefits termination on September 30th, but the appeal was denied on
November 4, 2014. (AR 441–43; AR 108).
II.

Standard of Review
a. Summary Judgment
Federal Rule of Civil Procedure 56(a) provides that a court should grant summary

judgment “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” “As to materiality . . . [o]nly disputes over
facts that might affect the outcome of the suit under the governing law will properly preclude the
entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
order to preclude summary judgment, the dispute about a material fact must be “‘genuine,’ that
is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Id.; see also JKC Holding Co. v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir.
2001). If, however, the evidence of a genuine issue of material fact “is merely colorable or is not
significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 250. In
considering a motion for summary judgment under Rule 56, a court must view the record as a
whole and draw all reasonable inferences in the light most favorable to the nonmoving party.

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See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322–24 (1986); Shaw v. Stroud, 13 F.3d 791,
798 (4th Cir. 1994).
b. Determination of Benefits – Abuse of Discretion vs. De Novo
The parties contest whether this Court should review Defendant’s benefits determination
decision under an abuse of discretion or de novo standard. The crux of the disagreement is
whether the employees who made the decision as to the termination of benefits were working on
behalf of the Defendant, Hartford Life & Accident Insurance Company (“HLAIC”), or whether
they were actually agents of Hartford Fire Insurance Company (“HFIC”). Only HLAIC (and its
agents) receives abuse of discretion review for its benefits determinations because only HLAIC
was delegated full discretionary authority to interpret the Plan.
Generally, “[p]rinciples of trust law require courts to review a denial of plan benefits
under a de novo standard unless the plan provides to the contrary.” Metro. Life Ins. Co. v. Glenn,
554 U.S. 105, 111 (2008) (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115
(1989)). However, “[w]here the plan provides to the contrary by granting the administrator or
fiduciary discretionary authority to determine eligibility for benefits, [t]rust principles make a
deferential standard of review appropriate.” Id. (internal quotation marks and citations omitted)
(emphasis in original). The parties here do not contest that HLAIC was granted discretionary
authority and that its decision would be subject to the abuse of discretion standard. The issue,
however, is whether the termination decision was actually made by HLAIC, because the
employees who made the decision were paid by and technically employees of HFIC.
Several courts have addressed whether decisions made by individuals who are not
employees of the entity vested with discretionary authority may still receive deferential review.
Plaintiff relies heavily on Anderson v. Unum Life Ins. Co. of Am., 414 F. Supp. 2d 1079 (M.D.

6

Ala. 2006), in which the Court held that a de novo review standard applied when the benefits
decision had been made by a separate corporate entity from the one vested with discretionary
authority, even though both corporations were affiliates.3 See Anderson, 414 F. Supp. 2d at 1100.
In Anderson, the corporation vested with discretionary authority assigned benefits determinations
to its parent company under a General Services Agreement. Id. at 1098. Crucially, that
Agreement stated that the parent corporation “is engaged in an independent business and will
perform its obligations under this Agreement as an independent contractor and not as the
employee, partner or agent” of the subsidiary. Id. at 1097. Thus, the Anderson court found that
the parent company could not have been acting as an agent of the subsidiary primarily because of
the express language found in the Agreement. Id. at 1099.
However, Anderson has been ably differentiated in several cases highly analogous to the
instant case. In Campbell v. United of Omaha Life Ins. Co., No. 2:14-CV-00623-JEO, 2015 WL
5818040, at *9 (N.D. Ala. Oct. 6, 2015), appeal dismissed (11th Cir. 15-14942, 15-15206) (Jan.
15, 2016), the Court found that “[t]he facts of Anderson . . . are readily distinguishable” because
of the express non-agency language in the Agreement and the fact that employees in Anderson
had held themselves out as representatives of the parent company rather than the subsidiary. In
3

Plaintiff also cites several other cases for the same point. See Samaritan Health Ctr. v.
Simplicity Health Care Plan, 516 F. Supp. 2d 939, 950 (E.D. Wis. 2007) (“Although discretion
regarding benefits may be conferred by the plan on a certain administrator, such that the
administrator’s decisions are reviewed deferentially, a decision by an unauthorized party is not
entitled to such deference . . . .”); Dubaich v. Conn. Gen. Life Ins. Co., 2013 U.S. Dist. LEXIS
108446, *21 (C.D. Cal. July 31, 2013) (“CIGNA bears the burden to prove that the entity which
actually denied Dubaich's claim was delegated or granted discretionary authority by the Plan”);
Lucas v. Liberty Life Assur. Co., 2014 U.S. Dist. LEXIS 184860, *21 (E.D. Pa. Mar. 28, 2014)
(“Liberty Life has the burden of demonstrating that it was the party that actually made the
decision to deny a claim for benefit . . . .”). In essence, these cases stand for the proposition that
the entity not vested with discretionary authority gets de novo review unless it was properly
delegated authority. The Court does not disagree with this proposition. Rather, it finds that the
entity vested with discretionary authority, HLAIC, was the same one that made the decision to
terminate Plaintiff’s benefits.
7

Campbell, by contrast, there was no express delegation of decisionmaking, and all
communications purported to be on behalf of the corporation vested with discretionary authority.
See Campbell, 2015 WL 5818040, at *9. Similarly, the court in Zurndorfer v. Unum Life Ins. Co.
of Am., 543 F. Supp. 2d 242, 256 (S.D.N.Y. 2008) addressed “whether a corporation named as a
fiduciary in a disability plan governed by ERISA may discharge its duties through the actions of
authorized agents who are employed by or otherwise affiliated with the fiduciary’s parent
corporation.” It answered the question in the affirmative, reasoning that a corporation “can only
act through its agents,” and that the employees in the case were acting on behalf of the fiduciary
corporation, even though their salaries derived from another. Zurndorfer, 543 F. Supp. 2d at
257. Finally, the court in MacDonald v. Anthem Life Ins. Co., No. 8:12-CV-2473-T-17TBM,
2014 WL 4809534, at *13–14 (M.D. Fla. Sept. 26, 2014), acknowledged Anderson while holding
that a benefits decision should receive deferential review even when the employees making the
decision were paid by a parent company instead of the company given discretionary authority.
Distilling the holdings of these cases, several principles emerge. The fact that an
employee derives their salary from one corporation does not necessarily prevent them from
exercising the discretionary authority of another. Thus, the dispositive question becomes whether
the employee-decisionmaker was acting as an agent for the company vested with discretionary
authority, governed by the normal principles of agency. In determining whether such an agency
relationship existed, courts have looked to factors such as the letterhead for correspondences and
the entity to which responses were directed. In Anderson, for example, there were overt
expressions that the employees were acting as agents of the parent company rather than the
subsidiary that would have received deferential review. In Campbell, by contrast, “all of the
letters to Campbell and his counsel communicating the status and resolution of his benefits

8

claims were from United of Omaha and written on United of Omaha letterhead with a United of
Omaha address.” 2015 WL 5818040 at *9.
Here, the facts indicate that all relevant employees were paid by HFIC and listed as its
employee on their W-2’s. (See dkt. 81-1 at 5). However, HFIC is simply a holding company that
does no business of its own and pays the salaries of all employees in the “Hartford family.” (See
dkt. 80-1 ¶¶ 2, 5, 6). Furthermore, all letters addressed to Plaintiff had the “The Hartford”
letterhead, which also appeared directly above “Hartford Life and Accident Insurance Co.” on
the first page of the Plan. (AR 1, 38, 219, 227, 257, 323). Most convincingly, the signature block
of each employee indicated that the correspondence was on behalf of HLAIC. (AR 222, 233,
259, 324). There was no indication to Plaintiff at the time that the employees were acting on
behalf of HFIC, and Plaintiff only later became aware of their affiliation through discovery in
this litigation. All of the evidence indicates that the employees evaluating Plaintiff’s claim were
agents of HLAIC, which was given discretionary authority to interpret the Plan. Thus, the abuse
of discretion standard of review will apply.
“At its immovable core, the abuse of discretion standard requires a reviewing court to
show enough deference to a primary decision-maker’s judgment that the court does not reverse
merely because it would have come to a different result in the first instance.” Evans v. Eaton
Corp. Long Term Disability Plan, 514 F.3d 315, 321 (4th Cir. 2008). “To be held reasonable, the
administrator’s decision must result from a ‘deliberate, principled reasoning process’ and be
supported by substantial evidence.” Williams v. Metro. Life Ins. Co., 609 F.3d 622, 630 (4th Cir.
2010) (quoting Guthrie v. Nat'l Rural Elec. Coop. Assoc. Long Term Disability Plan, 509 F.3d
644, 651 (4th Cir.2007)). “Substantial evidence consists of less than a preponderance but more
than a scintilla of relevant evidence that ‘a reasoning mind would accept as sufficient to support

9

a particular conclusion.’” Whitley v. Hartford Life & Acc. Ins. Co., 262 F. App’x 546, 551 (4th
Cir. 2008). The Fourth Circuit has created eight nonexclusive “Booth factors” for a Court to
consider in determining whether an entity abused its discretion in ERISA cases such as this:
(1) the language of the plan; (2) the purposes and goals of the plan; (3) the adequacy
of the materials considered to make the decision and the degree to which they support
it; (4) whether the fiduciary’s interpretation was consistent with other provisions in
the plan and with earlier interpretations of the plan; (5) whether the decisionmaking
process was reasoned and principled; (6) whether the decision was consistent with the
procedural and substantive requirements of ERISA; (7) any external standard relevant
to the exercise of discretion; and (8) the fiduciary’s motives and any conflict of
interest it may have.
Williams, 609 F.3d at 630 (quoting Booth v. Wal-Mart Stores, Inc. Assocs. Health & Welfare Plan,
201 F.3d 335, 342–43 (4th Cir. 2000)). This Court will apply the abuse of discretion standard to
Defendant’s decision, employing the Booth factors listed above.

III.

Discussion
In a routine benefits denial case such as this, only these three Booth factors are relevant:

(1) whether the decisionmaking process was reasoned and principled, (2) the adequacy of
material considered to make a decision and degree to which they support it, and (3) the
fiduciary’s motives and any conflict of interest it may have. Considering these factors, the Court
concludes that no reasonable jury would find that Defendant’s decision was an abuse of
discretion.
a. Reasonable Process
Defendant argues that its decisionmaking process was reasonable because it attempted to
obtain information about Plaintiff’s condition through a wide variety of means and received
input from many, often independent, actors. For example, Defendant attempted to hire a
contractor to perform a physical examination on Plaintiff, had Nurse Wedderman complete an
MCM, tasked Dr. Teichman with conducting an independent review, conducted surveillance on

10

Plaintiff, interviewed Plaintiff, contacted his physicians at multiple points, and followed the
progress of his Social Security Disability benefits appeal. Only after expending substantial time
and effort and gathering valuable data over a period of years did Defendant make the decision to
terminate Plaintiff’s benefits.
Plaintiff presents four primary arguments against the reasonableness of Defendant’s
decisionmaking process. First, Plaintiff argues that the denial was inherently arbitrary because
Defendant denied benefits even though they had no evidence that Plaintiff’s condition had
changed from the time they had decided to grant him benefits years earlier. Second, he claims the
analysis was flawed because Defendant could have definitively resolved the issue by having him
physically examined by a doctor of their choice, but they elected not to. The parties agree that
Defendant had a right to force Plaintiff to undergo an examination, and Plaintiff also alleges that
such an examination was required and would have been less costly than the alternatives
Defendant pursued instead. Third, Defendant asserts that the termination relied on a flawed
employment analysis. Specifically, he argues the analysis incorrectly described Plaintiff’s
physical restrictions and assumed he could work at jobs for which he was not qualified. Fourth,
Plaintiff claims Defendant’s decision was contrary to the advice of several medical professionals,
including Defendant’s own reviewer, Dr. Teichman, who recommended that he continue to
receive disability benefits. As further described below, however, the Court finds that none of
Plaintiff’s objections are persuasive.
i. Change in Disability Status After Several Years
Plaintiff’s first argument — that Defendant arbitrarily changed his disability status — is
largely without merit. Defendant’s decision was not arbitrary; it was based on various sources of
evidence that were gathered over a period of years, and that were discussed by Plaintiff in depth

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in his filings with this Court. Defendant did not suddenly decide to stop providing benefits in
September 2014. Rather, the decision was the culmination of an investigation to determine
Plaintiff’s disability status that spanned much of the period that Plaintiff received LTD benefits.
That Defendant continued to provide Plaintiff with disability benefits for years while it was
investigating the merits of his claim demonstrates Defendant’s good faith rather than its careless
decisionmaking. The fact that Defendant denied benefits despite providing them for several years
does not indicate that Defendant made an arbitrary decision. See Hensley v. Int’l Bus. Machines
Corp., 123 F. App’x 534, 538 (4th Cir. 2004) (reasoning that “the fact that MetLife initially
awarded benefits to Hensley does not mean that its subsequent termination of those benefits was
the result of unprincipled reasoning” because “[t]he termination of benefits was based on further
investigation and review”).
Further, Plaintiff is simply factually incorrect that Defendant had no evidence of changes
in his condition. Defendant granted Plaintiff’s disability benefits when he was seeing several
doctors, was considering surgery, and was being restricted in his activities by Dr. McGlothlin.
Defendant subsequently denied benefits after Plaintiff had undergone surgery, was no longer
regularly seeing his doctors, and was not under any official restrictions on his activities. A
changing disability determination in light of changing circumstances is not evidence of an
insufficient decisionmaking process.
ii. Lack of Physical Examination
Plaintiff correctly notes that Defendant had the right to have him physically examined.
(AR 47). By not exercising this right and relying on other sources of evidence instead, Plaintiff
argues that Defendant improperly made its decision.
Plaintiff argues that Defendant’s decisionmaking was flawed because it could have

12

afforded to pay for a physical examination with the money they spent on surveillance instead.
(Dkt. 87 at 14). However, the law does not impose an obligation on Defendant to gather evidence
in the way Plaintiff desires. See Elliott v. Sara Lee Corp., 190 F.3d 601, 609 (4th Cir. 1999)
(“[A] plan administrator is under no duty to secure specific forms of evidence.”).
At oral argument, Plaintiff also raised the argument that Defendant was contractually
required to have Plaintiff examined. Plaintiff reasoned that a “full and fair review” under ERISA
requires that plan administrators with a right to obtain an examination do so whenever they reject
or disagree with the evidence presented by the claimant. See generally 29 U.S.C. § 1133; 29
C.F.R. § 2560.503-1(h); Ellis v. Metro. Life Ins. Co., 126 F.3d 228, 236–37 (4th Cir. 1997).
Plaintiff argued that the following contractual provision mandates an examination in this case:
We have the right, at Our expense, to have You examined or evaluated by:
1) a Physician or other health care professional; or
2) a vocational expert or rehabilitation specialist; of Our choice so that We
may evaluate the appropriateness of any proposed modification.
(AR 47). Looking at the plain language of this provision, it is clear that it provides Defendant
with a right, but not an obligation to obtain a physical examination. This Court is not aware of,
and Plaintiff has not provided, a case supporting Plaintiff’s contention that a provision such as
this should be interpreted as a requirement rather than a right. Further, the Fourth Circuit has
made clear that a “plan administrator is under no duty to secure specific forms of evidence.”
Elliott, 190 F.3d at 609. This Court has also previously addressed this issue, ruling that there was
no requirement to affirmatively seek an examination. See Moore v. Liberty Life Assur. Co. of
Boston, 129 F. Supp. 3d 408, 426–27 (W.D. Va. 2015) (“To the extent that Plaintiff contends
that Defendant should have arranged for or paid for further testing, it had no such obligation.”).
Thus, this Court will decline to impose an unwritten requirement to obtain a physical
examination in this case.
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Further, the burden of proof in proving disability falls on the claimant. See Moore, 129 F.
Supp. 3d at 424 (“[T]he claimant in an ERISA case bears the burden to show that she is disabled
within the terms of the relevant policy.”); see also Elliott, 190 F.3d at 608 (“The burden of
proving the disability is on the employee.”); Harrison v. Wells Fargo Bank, N.A., 773 F.3d 15,
21 (4th Cir. 2014) (“[T]he primary responsibility for providing medical proof of disability
undoubtedly rests with the claimant . . . .”). Plaintiff does not argue, nor plausibly could he, that
he was legally unable to obtain a physical examination of himself. Thus, Plaintiff cannot succeed
in arguing that Defendant’s decisionmaking was flawed because it failed to take a step that: (1) it
was not required to take, and (2) that Plaintiff bore the burden to take himself if he thought it
would prove his claim.
iii. Reliance on EAR
Plaintiff has two primary objections to Defendant’s reliance on an Employability
Analysis Report (“EAR”) that showed he was able and qualified to work at several types of jobs.
First, he contends that the EAR relied on the faulty assumption that his activities were not being
restricted by his doctors, when, in fact, Dr. McGlothlin stated that he believed Plaintiff was
disabled and unable to work 40 hours per week in a sedentary position. Second, he argues that
the occupations suggested by the analysis were not ones in which he could work because he
lacked the necessary training and education.
The first objection is primarily a factual issue. In communications with Defendant, Dr.
McGlothlin provided seemingly contradictory answers to questions about Plaintiff’s condition.
He both indicated that he was not currently restricting Plaintiff’s activities, but also checked “no”
in response to whether Plaintiff would be “capable of performing activities 40 hours a week
primarily seated in nature . . . .” (AR 503). Further confusing the matter, Dr. McGlothlin seemed

14

to indicate that the basis for his doubt about Plaintiff’s capacity was that he had restricted him in
2012, prior to his surgery. (AR 120, 503). Dr. McGlothlin also provided two letters further
describing Plaintiff’s condition in 2012. (AR 505, 506). Dr. McGlothlin later clarified that he had
seen Plaintiff in July of 2014, and — based on that visit — he believed that Plaintiff was not
capable of sitting for long periods without discomfort and pain, and thus was “very likely to have
some disability.” (AR 443). However, Dr. McGlothlin’s conclusion was later muddied in a
phone call with Defendant’s appeals team in which he reported “he can only suggest lack of
function based on [Plaintiff’s] self-reported info” and that “he could only guess that . . .
[Plaintiff’s] condition is likely the same,” but could not confirm it. (AR 110). Defendant
determined that Plaintiff did not have restrictions for work based on Dr. McGlothlin’s lack of
restrictions (which he did not amend despite communicating with Defendant on several
occasions) and his less-than-definitive suggestion of disability based only on Plaintiff’s own
statements.
Despite some evidence to the contrary, Defendant was justified in relying on the EAR
using the assumption that Plaintiff was not restricted in his activities. Quite simply, there was not
a single doctor who would definitively state that Plaintiff’s activities were being restricted. On
that basis alone, it was not unreasonable for Defendant to conclude that Plaintiff was not
restricted in his activities.
Dr. McGlothlin’s statements make Defendant’s conclusion more questionable because he
indicated that: (1) Plaintiff couldn’t at a work a job that required sitting at a desk 40 hours a
week, (2) Plaintiff was unable to sit or stand for prolonged periods without pain, and (3) that
Plaintiff was very likely to have some disability. (AR 503, 443). However, Defendant was
justified in discounting these statements. McGlothlin himself clarified that he checked “No” on

15

the 40 hours question only “because he did restrict him in 2012.” (AR 120). McGlothlin also
admitted that he could only “guess” or “suggest” Plaintiff’s limitations, but not “confirm” them.
(AR 110–11). Further, McGlothlin at no point contradicted his earlier statement that he was not
restricting Plaintiff’s activities, and in fact confirmed that he was not restricting Plaintiff because
he appeared to be “moving just fine”. (AR 120). Therefore, it was not unreasonable for
Defendants to conclude that Plaintiff was not being restricted in his activities when they
produced the EAR.
The second objection revolves around the meaning in the Policies of “any occupation,”
which is defined as jobs for which Plaintiff is “qualified by education, training or experience.”
(AR 51). Plaintiff argues that the jobs suggested by Defendant were not ones for which Plaintiff
was qualified.

A court interpreting Hartford’s same language has noted that the “Any

Occupation” definition does not include “an occupation for which a person could become
qualified” and instead “must be one for which [the plaintiff] is already qualified.” Curtis v.
Hartford Life & Accident Ins. Co., 64 F. Supp. 3d 1198, 1221 (N.D. Ill. 2014) (emphasis added).
If Plaintiff was not qualified to work in any of the jobs he was physically able to perform, he
would remain “disabled” under the Policies. Thus, the question is whether the occupations listed
by Defendant in its analysis were ones for which Plaintiff was already qualified.
Particularly in comparison to the facts of Curtis, Plaintiff appears to be qualified for
many of the jobs listed in the EAR. Six of the ten sample occupations were “Closest” matches
for Plaintiff, which require minimum training and “familiarization only.” (AR 449). The
remaining four were “Good” matches which require some training in tools and/or materials. (Id.)
Overall, Plaintiff was a match for 172 occupations: 46 Closest matches and 126 Good matches.
(AR 445, 449). In Curtis, by contrast, the only matches were “Fair” or “Potential,” which

16

required training in tools and materials. Curtis, 64 F. Supp. 3d at 1211. Thus, the facts of the case
on which Plaintiff relies are entirely distinguishable from the facts of this case. Further, it is
disingenuous of Plaintiff to argue he is not qualified for Closest matches because of the
minimum training requirement, when Closest is the highest category of match available in this
type of report. (See AR 449). Virtually any job requires at least some training and
familiarization. Under Plaintiff’s interpretation, he would never be qualified under this particular
type of EAR for any job because they all would require minimum training or familiarization.
Plaintiff further argues that all the jobs listed are at a Specific Vocational Preparation
(“SVP”) level of two or higher, and all the Closest matches area SVP-4 or higher. Thus, they
range in required preparation from “Over 1 month and up to and including 3 months” to “Over 1
year up to and including 2 years.” Specific Vocational Preparation (SVP), O*NET OnLine Help,
https://www.onetonline.org/help/online/svp (last visited December 8, 2016). Plaintiff asserts that
these training periods indicate that these jobs are not ones for which he is immediately qualified,
as required under the relevant definitions in the Policies. However, according to the very website
cited by Plaintiff, SVP includes “Essential experience in other jobs.” Id. Therefore, it is more
than likely that Plaintiff has already received the requisite preparation from his previous
employment as a medical transcriptionist or insurance clerk for several years. (See AR 444).
Further, common sense dictates that little formal training is required for occupations such as
“Receptionist” or “Data Entry Clerk,” particularly for an individual such as Plaintiff who has
already held similar clerical jobs. (See AR 449; AR 444). Under Plaintiff’s restrictive view, in
contrast, he would be unqualified for essentially any job except for the exact ones he previously
held; this cannot be the case.
Plaintiff’s two objections to the EAR, therefore, do not rise to the level of an abuse of

17

discretion on the part of Defendant. Based on the available medical evidence — which Plaintiff
could have supplemented had he so desired — Defendant made a reasonable conclusion that
Plaintiff could work in a sedentary occupation. Further, Plaintiff was clearly qualified for at least
some of the occupations listed in the EAR.
iv. Contrary to Advice of Doctors
Plaintiff also claims that Defendant’s decision was contrary to the advice of his doctors,
namely, the report of Dr. Teichman finding that Plaintiff was still disabled for any occupation
and Dr. McGlothlin’s statements suggesting he was still disabled.
As an initial matter, it is not clear that the termination was directly contrary to the advice
of Plaintiff’s doctors. Dr. Teichman’s recommendation was based primarily on a lack of
information, rather than his affirmative medical opinion that Plaintiff was disabled. (See AR 952
(“In the absence of physical examination findings . . . I am forced to defer to the treating
physician and his opinion regarding the claimant’s level of function.”)). Therefore, it is difficult
for Defendant’s decision to be contrary to Dr. Teichman’s opinion when Dr. Teichman had not
himself opined on Plaintiff’s disability. Further, Dr. Teichman’s report was made well before
Defendant made its determination, and itself was based on old information. Considering that his
conclusions were based on Dr. Carmouche’s diagnosis, Dr. Teichman likely would have changed
his recommendation in light of Dr. Carmouche’s later failure to provide restrictions for Plaintiff.
That Dr. Teichman was forced to defer to another doctor based on his limited information has
little bearing on Defendant’s subsequent decision after additional information had emerged.
As discussed in-depth in other parts of this opinion, Dr. McGlothlin did not provide a
definitive statement of disability. While he checked a box indicating that he believed Plaintiff as
unable to work 40 hours per week, he later indicated that he did that to reflect the fact that he had

18

restricted Plaintiff over two years prior. (AR 120). Additionally, while he did indicate that he
believed Plaintiff was being truthful about his disability, he clarified that his diagnosis of
Plaintiff’s disability was based on Plaintiff’s self-reported limitations rather than an independent
medical examination. (AR 110, 443). Crucially, at no point did Dr. McGlothlin state that he was
restricting Plaintiff’s activities. Thus, a determination that Plaintiff was not being restricted was
not necessarily contrary to the medical opinion of Dr. McGlothlin.
Further, the fact that a defendant makes a decision contrary to the advice of a doctor does
not automatically make that decision unreasonable. “[A] claims administrator is ‘not obliged to
accord special deference to the opinions of treating physicians.’” Black & Decker Disability Plan
v. Nord, 538 U.S. 822, 825 (2003). “[N]or may courts impose on plan administrators a discrete
burden of explanation when they credit reliable evidence that conflicts with a treating
physician’s evaluation.” Id. Given the very tentative conclusions of the doctors in this case,
Defendant might have properly concluded Plaintiff was not disabled based on other evidence.
Here, other evidence includes: the surveillance video, Plaintiff’s statements during the interview,
and a lack of restrictions from any of Plaintiff’s other doctors. Weighing all the evidence before
it, while not giving dispositive weight to the uncertain conclusion of any one doctor, it was not
an abuse of discretion for Defendant to conclude that Plaintiff was not disabled.
v. Conclusion – Defendant Employed a Reasoned and Deliberate
Decisionmaking Process
After considering and dismissing the various allegations as to what Defendant did not do,
let us now turn briefly to what it did do. Defendant contacted and sought physical examinations
from Plaintiff’s various doctors at multiple points in the investigation. When that failed,
Defendant sought to conduct its own physical examination, but found that too costly due to
Plaintiff’s remote location. Instead, Defendant employed other investigative methods such as
19

peer review, surveillance, and an interview. Using the evidence before it, Defendant conducted
an EAR and identified numerous jobs at which Plaintiff could work. Defendant undertook these
various investigations despite Plaintiff having the burden of proving his own disability. While
the conclusion to end disability benefits may not have been inescapable, the process employed to
reach that decision did not suffer from fatal flaws. Thus, the record supports a finding that
Defendant’s decisionmaking was “reasoned and principled” under Booth.
b. Substantial Evidence
The next Booth factor to consider is “the adequacy of the materials considered to make the
decision and the degree to which they support it.” The Court finds that there was substantial evidence
to support Defendant’s conclusion. The following is a description of the evidence relied upon in

making the termination decision, and the circumstances surrounding the evidence that might
make it more or less probative of Plaintiff’s alleged disability.
i. Non-Reviewable Evidence
As an initial matter, Plaintiff is correct that this Court’s review is limited to the rationales
given by Defendant in the initial termination letter. Hall v. Metro. Life Ins. Co., 259 F. App’x
589, 592–93 (4th Cir. 2007) (“[T]his court has previously held . . . that 29 U.S.C. § 1133 and 29
C.F.R. § 2560.503-1 require that judicial review be ‘limited to whether the rationale set forth in
the initial denial notice is reasonable.’” (quoting Thompson v. Life Ins. Co. of N. Am., 30 F.
App’x. 160, 164 (4th Cir. 2002))); see also Ferguson v. United of Omaha Life Ins. Co., 3 F.
Supp. 3d 474, 489 (D. Md. 2014) (“It is well established that, under ERISA, judicial review [is]
limited to whether the rationale set forth in the initial denial notice is reasonable.” (internal
quotation marks omitted)). Evidence referenced only in an appeals letter cannot be considered,
under the rationale that a plaintiff must have some ability to respond to the reasons for the
termination of their benefits. See Hall, 259 F. App’x at 593 (“The claimant must then be given
20

‘the opportunity to submit written comments, documents, records, and other information relating
to the claim for benefits,’ and the claims administrator must take any such materials submitted
into account in deciding the appeal.” (quoting 29 C.F.R. §§ 2560.503-1(h)(2)(ii), (iv))). Under
this standard, then, any evidence not relied on by Defendant in the initial denial letter (AR 227)
cannot be considered by the Court in determining whether the decision was reasonable. Thus,
some evidence argued in litigation, such as the denial of Plaintiff’s Social Security Disability
Insurance claim, will not be part of this Court’s decision.
ii. Reviewable Evidence
The following evidence was relied upon by Defendant in its initial termination letter and
will be considered by the Court.
1. Dr. Carmouche
Dr. Carmouche was Plaintiff’s primary treating physician for his neck problems,
specifically “degeneration as C5-6 and C6-7, with disc herniation at both.” (AR 752). Dr.
Carmouche performed a neck surgery known as foraminotomy surgery on Plaintiff on March 18,
2013. (AR 179). Despite several requests to do so, Dr. Carmouche refused to perform an
evaluation of Plaintiff’s physical capacities, per his office’s policy. (AR 190, 785). Dr.
Carmouche was the main source of information for Dr. Teichman’s peer review of Plaintiff’s
medical condition in February 2014. (AR 594–600, 952). According to Dr. Teichman, “[Mr.
Griffin] reported being unable to sit for more than 10 minutes at a time and . . . he, Dr.
Carmouche, is very hesitant to say otherwise.” (AR 952). However, Dr. Teichman also reported
that “the likelihood is that the patient can actually do more than [Dr. Carmouche or Plaintiff]
thinks [Plaintiff] can do.”4 (AR 598). Dr. Carmouche did not respond to Defendant’s letter
4

The context of this sentence makes clear that the first “he” refers both to Mr. Griffin and
Dr. Carmouche. Dr. Teichman intended to communicate that he thought both the patient and
21

regarding the surveillance video and whether he was currently restricting Plaintiff. (AR 122).
One potential reason for his lack of response could be that he had not treated Plaintiff since
October 2013, approximately eight months before the June 2014 letter. (AR 122).
2. Dr. Bravo
Dr.

Bravo

treated

Plaintiff’s

arm

issues,

specifically

“right

elbow

lateral

epicondylitis/carpal tunnel syndrome.” (AR 125). However, Bravo only saw Plaintiff for
treatment once, in August 2013. Accordingly, Dr. Bravo declined to provide an opinion on
Plaintiff’s capacity in response to Defendant’s requests. (AR 160–61, 165). Similarly, Dr. Bravo
indicated that he was not currently restricting Plaintiff in response to a letter in July 2014. (AR
512–13).
3. Dr. McGlothlin
Dr. McGlothlin is a chiropractor who treated Plaintiff’s neck and arm pain. In March and
April of 2012, Dr. McGlothlin provided statements as to the severity of Plaintiff’s neck and arm
pain, and recommended he not work more than two hours per day. (AR 860). Later, McGlothlin
responded to Defendant’s August 2014 letter and indicated that he was not currently restricting
Plaintiff’s activities, although he also indicated that he thought Plaintiff was unable to work 40
hours per week in a sedentary occupation. (AR 503). However, he described the basis for his
assessment of Plaintiff’s ability to work as his restrictions of Plaintiff in April 2012, over two
years prior. (AR 120, 503).
After Plaintiff’s benefits were denied, Dr. McGlothlin provided information in support of
his appeal. (AR 443). Dr. McGlothlin reviewed the surveillance video and stated that it was not
indicative of a lack of disability, considering the limited scope of activity it showed. (AR 443).
Dr. McGlothlin further stated that “I think Mr. Griffin is being honest about his pain and
doctor were overstating Plaintiff’s limitations.
22

discomfort. After neck and low back surgery, he is very likely to have some disability.” (AR
443). Dr. McGlothlin indicated that he had treated Plaintiff with manipulation on July 25, 2014,
and that he believed Plaintiff had some limitations on his functions. (AR 443). However, he later
noted in a phone call that his diagnosis was based off of Plaintiff’s self-reporting and was only a
“guess.” (AR 110). Accordingly, he suggested that Defendant have a surgeon physically examine
Plaintiff to get a fuller picture of his disability. (AR 110).
4. Dr. Teichman
Dr. Teichman served as a peer reviewer of Plaintiffs file, and never physically examined
Plaintiff. Based on his peer review, completed February 28, 2014, Dr. Teichman concluded that
there was insufficient evidence for an independent review of Plaintiff’s disability in his file, and
thus he was “forced to defer to the treating physician and his opinion regarding the claimant’s
level of function.” (AR 592). That treating physician was Dr. Carmouche, who opined in a
conversation with Dr. Teichman that Plaintiff was unable to sit for more than 10 minutes at a
time, based on Plaintiff’s self-reported limitations. (AR 592, 598).
5. Plaintiff’s Statements
Plaintiff made several statements inconsistent with his disability at an interview
conducted by Defendant’s investigation team on May 21, 2014. Plaintiff stated that he was not
seeing any medical professionals and he had not seen a medical professional since October 2013,
approximately seven months prior. (AR 525; AR 533–34). Plaintiff reported that he had built his
own computer system, and that he sometimes performed IT work for the doctor for whom his
mother worked. (AR 544, 558). He also noted the ability to perform a range of everyday
activities, including: walking short distances, driving, walking up and down stairs, shopping,
lifting reasonable amounts of weight, grasping objects, hand-writing, typing for short periods,

23

driving for 30–40 minutes, cooking, lace work, and cleaning his house. (See generally AR 525–
60). Plaintiff, however, also indicated throughout the interview that he had symptoms consistent
with his disability, such as difficulty sitting or standing for prolonged periods, difficulty typing,
and difficulty putting his body in certain positions. (See generally AR 525–60).
6. Surveillance Video
After observing Plaintiff for four days, Defendant’s investigation team was able to
produce a one-minute and fifty-three-second video of Plaintiff. (AR 521–24). The footage
showed Plaintiff getting in and out of his car and walking approximately fifty feet without any
apparent pain of difficulty. (AR 133, 443). Dr. McGlothlin responded to an inquiry about the
footage by stating that it did “not tell me anything about [Plaintiff’s] condition.” (AR 443).
iii. Burden of Proof
Although the parties do not always argue this explicitly, much of their disagreement
stems from the issue of the burden of proof — that is, whether Plaintiff must prove he is disabled
or Defendant must prove he is not. This disagreement is reflected in the way the parties view
each piece of evidence. For example, Defendant continually notes the absence of evidence of
disability from various sources, such as when various doctors note that they had not seen
Plaintiff recently or were not currently restricting him. Plaintiff, conversely, argues that such an
absence indicates that Defendant’s decision is not supported by the facts.
As previously discussed, the law in the Fourth Circuit is that the claimant of disability
benefits has the burden of establishing their own disability.5 This burden does not shift simply
See Subsection III.a.iii supra; see also Moore, 129 F. Supp. 3d at 424 (“[T]he claimant in
an ERISA case bears the burden to show that she is disabled within the terms of the relevant
policy.”); Elliott, 190 F.3d at 608 (“The burden of proving the disability is on the employee.”);
Harrison, 773 F.3d at 21 (“[T]he primary responsibility for providing medical proof of disability
undoubtedly rests with the claimant . . . .”); Champion v. Black & Decker (U.S.) Inc., 550 F.3d
353, 361 (4th Cir. 2008) (“Champion produced no evidence showing or tending to show that she
5

24

because benefits were previously granted. See Hensley, 123 F. App’x at 538 (“[T]he decision to
grant benefits initially cannot create an obligation by which a plan fiduciary is estopped from
later terminating benefits.”) (internal quotation marks omitted); Tumbleston v. A.O. Smith Corp.,
28 F. App’x 231, 235 (4th Cir. 2002). One way this burden can be met is by having a claimant’s
physicians “provide objective support for their diagnoses.” Hensley, 123 F. App’x at 538.
However, this principle is not without limits: “a plan administrator cannot be willfully
blind to medical information that may confirm the beneficiary’s theory of disability where there
is no evidence in the record to refute that theory.” Harrison, 773 F.3d at 21; see also id. (“[O]nce
a plan administrator is on notice that readily-available evidence exists that might confirm
claimant’s theory of disability, it cannot shut its eyes to such evidence where there is little in the
record to suggest the claim deficient.”).
Here, Plaintiff’s physicians failed to “provide objective support for their diagnoses” and
there was no available medical evidence that Defendant simply ignored. See Hensley, 123 F.
App’x at 538. After checking with each of Plaintiff’s doctors, none could provide a definitive
medical statement that Plaintiff was disabled. The only statement suggesting disability came
from Dr. McGlothlin, but it was undercut by the fact that Dr. McGlothlin was not restricting
Plaintiff in line with his own disability assessment, and that he was basing his view on Plaintiff’s
own statements rather than a medical examination. Additionally, while Defendant could have
conducted its own physical examination, such evidence was not “readily-available,” as it did not
yet exist and would have forced Defendant to incur large expenses to obtain. It would also
completely undercut well-established burden of proof principles if Defendant was required to
affirmatively create certain types of new evidence or else be considered “willfully blind.”
Further, there was not “little in the record” to refute the theory that Plaintiff was disabled.
could substantiate her disability claim on just her epilepsy.”).
25

See Harrison, 773 F.3d at 21. Almost every piece of evidence in the record could be interpreted
to support a finding that Plaintiff was not disabled at the time of decisionmaking. Thus, the
burden of proof rested on Plaintiff to demonstrate that he was still disabled.
iv. Conclusion – Substantial Evidence Supported Defendant’s Conclusion
That Plaintiff Was Not Disabled
The record contains several independent sources of evidence demonstrating that Plaintiff
was not disabled. There is also a lack of the type of evidence that would allow Plaintiff to prove
his disability, such as definitive statements by medical professionals. Taking a broad view,
Plaintiff’s evidence essentially amounts to: (1) the documented fact that he has had serious spine
and arm infirmities in the past, and (2) his own opinion that those infirmities continue to be as
disabling as they once were. Plaintiff’s evidence of his condition was ultimately based on his
self-diagnosis, even if he reported that diagnosis to his doctors, who passed it along to
Defendant.
The evidence that does exist points toward a lack of disability. While the surveillance
video, interview, lack of current restrictions, and lack of any current medical treatment reflect
limited information, the information that they contain suggests that Plaintiff is not disabled. The
effect of the evidence on the record is compounded by the legal standards, that Plaintiff has the
burden of proving his own disability and that Defendant’s decision may be overturned only if it
was an abuse of discretion. While reasonable minds may disagree as to whether the evidence
definitively shows that Plaintiff is not disabled, it is clear that the evidence does not prove that
Plaintiff is disabled. Thus, the record reflects that Defendant’s decision was supported by
adequate materials on the record.

26

c. Conflict of Interest
The third factor to consider is whether Defendant’s decision is tainted by a conflict of
interest. The parties agree that Defendant had a “structural” conflict of interest in that it both paid
Plaintiff’s benefits and determined his eligibility to receive those benefits. See Metropolitan Life
Insurance Co. v. Glenn, 554 U.S. 105, 112 (2008). Defendant argues that the conflict was purely
structural, rather than actual, because the fact that it provided benefits to Plaintiff for over two
years while it investigated his case demonstrated its good faith. Plaintiff, on the other hand,
alleges that some of the decisions made by Defendant are evidence of an actual conflict, such as
the decision to spend money on less effective investigation methods (e.g. surveillance, interview)
rather than simply order a cheaper medical examination to more definitively determine whether
Plaintiff was disabled.
Generally, a structural conflict of interest is one of the factors to be weighed in
determining whether an administrator’s decision was an abuse of discretion. Glenn, 554 U.S. at
108. A conflict of interest is weighed more heavily, however, “where circumstances suggest a
higher likelihood that it affected the benefits decision,” including when “the other factors are
closely balanced.” Id. at 117–18. Conversely, a conflict of interest may be minimized in other
situations such as when there was an “initial finding of disability, [defendant’s] payment of
longterm disability benefits for almost two years, and [defendant’s] referral of its termination
decision to two independent doctors.” Williams v. Metro. Life Ins. Co., 609 F.3d 622, 632 (4th
Cir. 2010). Overall, “the significance of the factor will depend upon the circumstances of the
particular case.” Glenn, 554 U.S. at 108.
The circumstances in the present case do not point to the conflict of interest being
weighed heavily. It is fair to conclude that the decision Defendant made was supported by

27

substantial evidence and the result of a reasoned process. And while Plaintiff makes a valid point
about Defendant’s decision not to order a physical examination, the case law is clear that
administrators are not required to obtain any specific type of evidence, and that the burden of
proof ultimately rests with the party seeking to prove disability. Thus, this is not a situation
where the conflict of interest factor would serve as a “tiebreaker” in an otherwise close decision.
See Glenn, 554 U.S. at 117.
Further, the circumstances of this case closely resemble those in Williams, where the
court held the conflict of interest was minimized and the administrator was “not inherently
biased.” Williams, 609 F.3d at 632. Like in Williams, the Defendant here initially granted
disability benefits and paid them for over two years. Although Defendant did not delegate its
decision to independent doctors, it nonetheless sought out the opinion of Plaintiff’s treating
physicians at every possible turn. Thus, this could fairly be considered the type of case where the
conflict of interest is minimized.
Under Glenn, the Court must weigh a conflict of interest as one of many factors, while
considering the evidence as a whole. Glenn indicates that this is not the factual set that would
dictate putting particular weight on the conflict of interest. Further, the conflict of interest is
minimized in this case, where disability benefits were paid for over two years before their
termination. Thus, the structural conflict of interest in this case does not change the overall
analysis, that Defendant did not abuse its discretion in terminating Plaintiff’s disability benefits.
d. LWOP Claim
There is also the issue of whether Plaintiff’s LWOP claim is procedurally proper.
Defendant claims both that it was improperly plead and that it was not administratively
exhausted. As to pleading, Defendant asserts that the complaint implicates only the LTD claim

28

explicitly. Alternatively, Defendant argues that because Plaintiff failed to appeal the LWOP
claim, it is not administratively exhausted, and thus not ripe for adjudication by this Court.
Plaintiff responds by arguing that the administrative record does not support a finding of failure
to exhaust, or that he fits into an exception for futility even if he had failed to exhaust his
administrative remedies.
Defendant’s pleading argument is largely without merit. Plaintiff’s complaint references
both the LTD and LWOP policies as providing “disability benefits” (Dkt. 1 ¶¶ 8, 10). It then
states a claim on the basis of the improper termination of those same “disability benefits.” (Id.
¶ 17). Further, it alleges that the presence of the separate contracts for LTD and LWOP benefits,
and claims relief on the basis of actions taken “[c]ontrary to the terms of the contracts.” (Id.
(emphasis added)). The complaint unambiguously states a claim for improper termination of the
LWOP benefits.
As to exhaustion, “an ERISA claimant generally is required to exhaust the remedies
provided by the employee benefit plan in which he participates as a prerequisite to an ERISA
action for denial of benefits under 29 U.S.C. § 1132.” Makar v. Health Care Corp. of Mid-Atl.
(CareFirst), 872 F.2d 80, 82 (4th Cir. 1989). Here, Plaintiff had a right to appeal the termination,
so the question is whether Plaintiff actually did so in order to exhaust his administrative
remedies. (See AR 232).
The record supports a finding that Plaintiff did not appeal his LWOP claim, and thus did
not administratively exhaust his remedies. Plaintiff’s notice of appeal letter referenced only the
policy number for his LTD policy. (AR 141). Additionally, it stated explicitly that it was
appealing the termination found in the September 5th letter from Defendant, while the LWOP
termination occurred in a letter dated September 8th. (Id.; AR 1029). Finally, in a phone call with

29

a representative of Defendant during the appeal process, Plaintiff stated “this is not about life
insurance” and was subsequently transferred to an LTD analyst. (AR 1019). The record
demonstrates that Plaintiff did not appeal his LWOP termination, but instead only appealed the
LTD decision.
Plaintiff is correct, however, that an appeal of his LWOP claims would be futile. A “clear
and positive” showing of futility is required to suspend the exhaustion requirement for bringing
an ERISA claim. Makar, 872 F.2d at 82. One way that such a showing can be made is by
demonstrating that a decision had already been made under a less restrictive standard. See
DuPerry v. Life Ins. Co. of N. Am., 632 F.3d 860, 876 (4th Cir. 2011) (“DuPerry can hardly be
blamed for not applying to LINA for benefits during the any-occupation period as LINA, having
denied DuPerry’s claim under the regular-occupation standard, would have surely denied a claim
under the any-occupation standard as well.”).
In this case, the parties agree that the LWOP coverage had the same or higher standard
than LTD. (See Dkt. 85 at 20). Thus, like in DuPerry, there is no reason for Plaintiff — or the
Court — to believe that an appeal of the LWOP claim would have resulted in anything other than
a denial of the claim. Defendant argues that the LWOP appeal would have created a record that
“could provide additional grounds to deny the LWOP claim that do not exist for the LTD claim.”
(Dkt. 86 at 20). However, Defendant fails to specify what these grounds could possibly be.
Further, there is nothing to indicate that the LWOP appeal wouldn’t have been based upon the
exact same evidence before the Court today. The LWOP appeal, therefore, would have been
futile. Thus, Plaintiff’s LWOP claim is not barred by exhaustion and will be adjudicated by this
Court.

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e. Remand
At oral argument, Plaintiff argued that this Court could remand the case back to
Defendant for further evaluation as a potential remedy. Such remands are permissible. See Hall,
259 F. App’x at 595; Berry v. Ciba-Geigy Corp., 761 F.2d 1003, 1007 n. 4 (4th Cir.1985).
However, because the Court will grant Defendant’s motion for summary judgment, remand
would not be appropriate in this case.
IV.

Conclusion
The Court holds that no reasonable jury would find that Defendant abused its discretion

in denying Plaintiff’s benefits. Even construing the evidence in favor of the Plaintiff on
Defendant’s motion for summary judgment, Defendant’s decision was not unreasonable. Further,
the burden of proof was on Plaintiff to prove his own disability, which he failed to do. Finally,
although Plaintiff’s LWOP claim was not administratively exhausted, it was futile and did not
need to meet the exhaustion requirements. Regardless of its exhaustion, the LWOP claim was
properly denied by Defendant on the merits, as described by the reasoning of this opinion. In
sum, Defendant did not abuse its discretion, and its motion for summary judgment will be
GRANTED. Plaintiff’s motion for summary judgment will be DENIED. An appropriate order
will issue
The Clerk of the Court is directed to send a certified copy of this Memorandum Opinion
to all counsel of record.
25th
Entered this _____ day of January, 2017

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