Hanlon v. Principal Financial Group

Filing 43

ORDER granting 14 Motion for Summary Judgment by defendant; denying 17 Motion for Summary Judgment by plaintiff. Signed by Chief Judge Barbara B. Crabb on 7/20/2009. (llj)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------M A R CIA HANLON, O PIN IO N AND ORDER Plaintiff, 0 8 - cv -6 2 0 - b b c v. PR IN C IPA L LIFE INSURANCE C O M P A N Y ,1 D efendan t. --------------------------------------------T h is is a civil action brought under the Employee Retirement Income Security Act of 1 9 7 4 (ERISA), 29 U.S.C. §§ 1001-1461. Plaintiff Marcia Hanlon contends that defendant Prin cipal Life Insurance Company violated ERISA by terminating her long term disability ben efits under her employer's welfare benefit plan. Jurisdiction is present. 28 U.S.C. § 1 3 3 1. T he case is before the court on the parties' cross motions for summary judgment. D kts. ##14 and 17. The parties agree that defendant has discretionary authority to

Plaintiff named Principal Financial Group, d/b/a Principal Life Insurance Company as defendant. Defendant has advised the court that its correct name is Principal Life Insura nce Company.

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determ ine the validity of an employee's claim for benefits under her employer's welfare ben efit plan, leaving the sole disputed issue whether defendant's decision to terminate plaintiff's benefits was arbitrary and capricious in light of the relevant medical evidence. I co n clu de that it was not. Defendant based its decision to terminate plaintiff's benefits on an independent medical evaluation by an occupational medicine specialist, two evaluations by her treating physician, an in-home observation of plaintiff by defendant's agents and a function al capacity evaluation. It was reasonable for defendant to conclude from these so urces that plaintiff could work full-time with certain lifting, sitting and movement restrictions. Plaintiff has not introduced evidence sufficient to permit a finding that she cann ot work full-time with the restrictions defendant assigned her. Because she has not met h er burden of showing that defendant's decision was arbitrary and capricious, her motion for summary judgment will be denied and defendant's will be granted. From the parties' proposed findings of fact and the administrative record, I find the follow ing facts to be undisputed.

U N D IS PU T ED FACTS A. Parties Plain tiff Marcia Hanlon is a participant in her former employer American TV & Ap pliance of Madison Inc.'s employee benefits plan. The plan's long term disability benefits

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are underwritten and insured by defendant Principal Life under the terms of Group Long T erm Disability Insurance Policy No. N74134. Defendant Principal Life is an insurance company incorporated under the laws of the state of Iowa, with its principal place of business in Des Moines, Iowa. Defendant is licensed to do business in Wisconsin.

B. Defendant's Insurance Policy Defendant is the claims administrator for the American TV employee benefit plan. U nd er the terms of the plan, defendant has discretionary authority to construe and interpret th e terms of the policy, determine eligibility for benefits and determine the type and extent of benefits to be provided, if any. Defendant's long term disability policy contains the follow ing definition of total and residual disability: Part I - DEFINITIONS T otal Disability; Totally Disabled A Member who is not working for wage or profit and solely and directly because of sickness or injury: a. during the Elimination Period and the three year period immediately following the Elimination Period, is unable to perform the majority of the m aterial duties of his or her normal occupation; and b. after completing the Elimination Period and the three year period immediately fo llo w i ng the Elimination period, is unable to perform the majority of the material duties of

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an y occupation for which he or she is or may reasonably become qualified based on education , training or experience.

R esidual Disability, Residually Disabled A Member who is working on a limited or part-time basis and solely and directly because of sickness or injury: a. during the Elimination Period and the three year period immediately follow ing the Elimination Period : (1) is unable to perform the majority of the material duties of his or her n o rm al occupation; and (2) is unable to earn more than 80% of his or her Indexed Predisability E arn in gs; and b . after completing the Elimination Period and the three year period im m ediately following the Elimination Period: (1 ) is unable to perform the majority of the material duties of any occupation fo r which he or she is or may reasonably become qualified based on education, train in g or experience; and (2) is unable to earn more than 80% of his or her Indexed Predisability Earn ings. Ad m inistrative Record (AR), dkt. #21-2, at 10-12. Plaintiff's indexed predisability income was $6,179.28 per month. (80% of her indexed predisability income is $59,321.01 for the year.) U nd er the policy, the employee bears the burden of proving her disability in order to claim long term disability benefits:

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W ritten proof that Disability exists and has been continuous must be sent to [d efen dan t] within 90 days after the date a Member completes an Elimination Perio d. Further proof that Disability has not ended must be sent when r e quested by [defendant]. [Defendant] may request additional information to substantiate loss or require a signed unaltered authorization to obtain that info rm ation from the provider. Failure to comply with [defendant's] request co uld result in declination of the claim. A R , dkt.#21-2, at 39.

C. Plaintiff's Medical History In March and April of 2003, plaintiff visited Dr. Patrick Spiering and Dr. Victoria M . Yorke, complaining of tenderness and pain in her right foot. On April 18, 2003, after exam ining plaintiff, Dr. Kurt Oelke reported to Spiering and Yorke that it was likely that plaintiff suffered from reactive arthritis. On September 28, 2003, plaintiff left her job with Am erica TV because of her foot pain. AR, dkt. #21-7, 841. She completed a claim form dated October 7, 2003, which defendant received on November 12, 2003. On November 10 , 2003, Dr. Yorke submitted a disability claim form to defendant documenting plaintiff's diagno sis of severe arthritis in the right foot, weekly doctor visits and treatment with an tib io tics. AR, dkt. #21-7, at 837. O n January 13 and 16, 2004, defendant requested medical records from July 1, 2001 to January 2004 and answers to medical limitations questionnaires from plaintiff's treating p h y s i c ian , internist and rheumatologist Dr. Lawrence Ryan, from Dr. Yorke and from

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po diatrist Dr. Chad DeNamur. On January 27, 2004, plaintiff returned to work part-time. O n March 25, 2004, defendant approved plaintiff's claim for long term disability benefits. It paid full benefits until the day plaintiff returned to work part-time and partial benefits from that point forward. O n September 30, 2004, Dr. Ryan examined plaintiff and prescribed methotrexate for her foot pain but wrote that further treatment would "have to go a little bit slow with her because of her marked anxiety about medications." AR, dkt. #21-6, at 676. On November 18 , 2004, Dr. Ryan's examination revealed substantial decrease of swelling in plaintiff's toes and certain joints of the right foot as well as no active synovitis anywhere. Id. O n March 18, 2005, plaintiff reported to Dr. Jill Costello at the Medical College of W iscon sin that she had been feeling "much better" as a result of taking colchicine prescribed to her by a holistic doctor. AR, dkt. #21-6, at 671-72. Plaintiff indicated her desire to discon tinue the methotrexate. After seeing plaintiff on May 5, 2005, Dr. Ryan observed the following: [Plaintiff] reports much less pain and swelling in her foot. She feels that her hips are much less stiff than previously, are virtually pain free and have im proved their mobility. She is seeing a holistic practitioner and chiropractor. *** W e spent some time discussing her physical capabilities. Now that she is feeling better I think that she could try going back to work in her former occupation. I would suggest that she start with three to four hours maximum three days a week with interspaced days off, possibly working Monday,

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W ednesday, and Friday. I have also suggested that she not sit for longer than on e hour at a time since she has prolonged gelling after sitting for this d ur a tio n . A R , dkt. #21-5 at 658. O n May 26, 2005, plaintiff returned to work part-time at American TV, working four ho urs a day on Thursday and Saturday of each week. On August 16, 2005, plaintiff started w o r k in g for Shorewest Realty in Brookfield, Wisconsin, selling homes. Plaintiff's hours fluctuated but she always took off two days a week. On February 7, 2006, Amanda Karnas conducted a functional capacity evaluation of p lain tiff. Defendant scheduled the examination, seeking observation of plaintiff's sitting and stan din g posture. Karnas found that plaintiff was capable of sustaining a medium level of w ork for an 8-hour day and did not self-limit during her evaluation. Plaintiff demonstrated adequate balance on level and uneven surfaces and was able to lift, carry, push and pull up to 28 lbs. AR, dkt. #21-9, at 1159-64. Defendant forwarded the functional capacity examination to Dr. Bhupendra Gupta, an independent occupational medicine specialist, who reviewed the examination. On

Februa ry 23, 2006, Dr. Gupta concluded in a report that plaintiff was "capable of moderate level duty work full time" and that "there is no objective evidence of a functional impairment to support that [plaintiff] is not able to . . . work eight hours per day." AR, dkt. #21-9 at 11 53 . Dr. Gupta provided the following medically acceptable restrictions and limitations:

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[P lain tiff] can occasionally (one-33% of total time, up to two and one half hours) work bent over standing/stooping. [P lain tiff] can lift floor to waist 20 pounds, carry with two hands to 30 feet 28 po un ds, push 28 pounds, pull 28 pounds. [Plaintiff] can frequently (34-66% of total time, up to two and a half to five and one half hours) sit, stand, work arms over head standing, walk, climb, regular stairs, repetitive squatting, stoop, work kneeling, crawl, repetitive task rotation sitting, repetitive trunk rotation sitting standing. [Plaintiff] can adequately balance on level surfaces, balance on uneven surfaces. [Plaintiff] can inadequately balance on beam/scaffold.

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Id . Gupta noted that plaintiff was no longer taking methotrexate as prescribed by Dr. Ryan. Id. On May 23, 2006, defendant advised plaintiff that the policy's definition of total and residual disability had changed and therefore, it would need to determine plaintiff's con tinued eligibility as of December 30, 2006 by obtaining and reviewing updated in fo rm atio n regarding plaintiff's treatment, symptoms and resulting restrictions and lim itation s. AR, dkt. #21-5, at 471-74. (The parties have not identified the changes in defendan t's definition of disability.) On November 15, 2006, defendant conducted a review o f plaintiff's file and determined that plaintiff was not disabled. On November 16, 2006, relying on the functional capacity examination conducted in January and an employability analysis and labor market survey conducted in July 2006, defendant recommended denial

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of plaintiff's disability benefits beyond December 30, 2006. Plaintiff was informed of the term in atio n of her benefits on November 29, 2006. AR, dkt. #21-4, at 424-29. O n December 20, 2006, plaintiff requested reconsideration of the termination decision. AR, dkt. #21-9, at 1134-39. In her December 20, 2006 appeal letter, she stated, "I do agree that I can work Real Estate but only now part time and certainly not 8 hrs a day + 40 hrs a week. That is impossible." Id. at 1134. In response to the appeal, defendant arranged an independent medical examination by a specialist in occupational medicine. On May 1, 2007, Dr. Al Baltrusaitis reported that [Plaintiff] ambulated with a forward gait favoring her left foot. Her Romberg test was normal. She was unable to do a heel and toe walk. She was uanble to do a squat. She was unable to do a forward bend more than approximately 4 5 degrees due to complaints of back pain. *** [Plaintiff] has a diagnosis of progressive reactive arthritis. . . . She was very app rop riately and adequately treated by Dr. Lawrence Ryan with methotrexate in 2005. She had significant improvement and was functionally doing quite w e ll when she decided to discontinue taking the methotrexate in favor of alternative treatments . . . She was still doing reasonably well when she had h er physical work performance evaluation in February 2006. That evaluation docum ented that she could do medium work over an 8 hour day. . . . [T]he reactive arthritis progressed and flared up by the end of that year. At this po int in time, she has once again significant problems now spreading to her left foot. Her functional status is much more limited now compared to February 2006. Her disease has progressed as feared and predicted by Dr. Co stello who on March 18, 2005 advised her that the time to treat the arthritis was now before further damage occurs. . . . [Plaintiff] has once again sought treatment with Dr. Ryan and hopefully her current exacerbation can be stabilized. However, based on her past history, my concerns are such that

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o n c e, or if, she improves she will again discontinue the more appropriate traditional medical treatments in favor of the various nontraditional practition ers she has been seeing in the past. *** [Plaintiff] is currently doing somewhat better since she started treatment with D r. Ryan once again. Her current functional status is much more sedentary than originally noted in the physical work performance evaluation done in Februa ry 2006. Her functional level is much more in a light duty capacity w i th lifting and carrying limitations of 10 pounds. She has both sitting and standin g intolerances. She would have to have a job where she could alternate sitting and standing at least every 1-2 hours. This is changing because she has just recently started appropriate treatment. The hope is that there would be im pro vem ent. Once she has reached a plateau of healing, then another physical work performance may be appropriate. AR, dkt. #21-8, at 1038, 1044-45. It was Dr. Baltrusaitis's opinion that plaintiff was cap ab le of working an 8-hour day and 40-hour work week in a light duty capacity with lifting and carrying restrictions of 10 pounds and the ability to alternate sitting and standing at least every 1-2 hours. AR, dkt. #21-8, at 1057. On June 15, 2007, defendant referred plaintiff's file for an updated employability assessm en t. Taking into consideration Dr. Baltrusaitis's restrictions and limitations and co n s id erin g plaintiff's transferable skills, Charles Galaraga identified three occupations p lain tiff was qualified to perform: (1) real-estate agent; (2) supervisor, order taker, and (3) sales representative. AR, dkt. #21-8, at 977-991. Galarraga noted that plaintiff was not "n ecessarily limited" to these occupations. Id. at 978. None of the positions required lifting

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m ore than 10 pounds. Id. at 977-991. On October 3, 2007, defendant informed plaintiff that it was upholding its determ ination to terminate long term disability benefits. AR, dkt. #21-8, at 969. However, defendant extended benefits retroactively through May 1, 2007 because plaintiff had experienced a flare up in her condition at the end of 2006 and the limitations underlying the em p lo yab ility assessment were based on plaintiff's improved condition as of May 1, 2007. Id. at 979. On January 24, 2008, plaintiff submitted additional medical records from Drs. Baggio an d Ryan for further reconsideration of defendant's decision to terminate benefits. AR, dkt. # 21 -8, at 928. On January 24, 2007, Baggio wrote defendant, stating that he had concluded that plaintiff was able to perform 15-25 hours of work a week as a real estate agent. Id. at 93 1. On February 1, 2007, Ryan began treating plaintiff's flare up and determined that it w as too early to make a decision regarding her ability to work. Id. On July 16, 2007, Ryan indicated that plaintiff had no joint pain at all and no current joint swelling and that her p ro bab le reactive arthritis was "pretty well controlled." Id. at 931. On November 19, 2007, he noted that plaintiff complained of pain in her feet and shoulder but that her reactive arthritis was "clinically stable." Id. at 938, 940. On March 3, 2008, defendant's employees, Rene Haigh, a vocational consultant, and B eatrice Thompson, a claim analyst, met with plaintiff at her home to discuss her condition,

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sym ptom s and restrictions and limitations. Id. at 918-27. Haigh and Thompson observed that plaintiff demonstrated fluid movements on numerous occasions and that despite the deform ities of her feet, she did not wear orthotics or special shoes because they hurt her feet even more. AR, dkt. #21-7, at 907. Plaintiff told Haigh and Thompson that she had difficulty walking down stairs, id. at 901, that her husband did the vacuuming and washed the floors and that she could not shovel the snow. Id. Plaintiff stated that she worked as a real estate agent for 4 hours a day, every other day. She answered phones at the office, p ro vid ed information to potential customers, faxed documents, showed homes and researched listings. Id. at 902, 905. Plaintiff stated that if she worked more than 15 hours a week she would have a problem medically. Id. at 904. In correspondence dated March 20, 2008, defendant upheld its initial determination to approve benefits through May 1, 2007 and decline further benefits beyond May 1, 2007. Id . at 893-97.

O PIN IO N B ecause the parties agree that the standard of review in this case is whether d efen dan t's denial of benefits was an arbitrary and capricious application of the plan, Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 114 (1989) (plan that gives d efen dan t discretionary authority to construe claim terms is reviewed under arbitrary and

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capricious standard), I will consider only the evidence and facts that were in the adm inistrative record and before defendant when it made its decision. Militello v. Central S tates, Southeast & Southwest Areas Pension Fund, 360 F.3d 681, 686 (7th Cir. 2004); see also Perlman v. Swiss Bank Corp. Comprehensive Disability Protection Plan, 195 F.3d 975, 9 8 1 - 82 (7th Cir. 1999) ("Deferential review of an administrative decision means review on th e administrative record."). Compare Casey v. Uddeholm Corp., 21 F.3d 1094, 1098 & n.4 (7th Cir. 1994) (when undertaking de novo review, court need not limit evidence to record before plan administrator). The court will not substitute its own decision for the administrator's but will uphold th e administrator's decision "if `(1) it is possible to offer a reasoned explanation, based on th e evidence, for a particular outcome, (2) the decision is based on a reasonable explanation o f relevant plan documents, or (3) the administrator has based its decision on a con sideration of the relevant factors that encompass important aspects of the problem.'" M ilitello , 360 F.3d at 686 (quoting Hess v. Hartford Life & Accident Insurance Co., 274 F.3d 456, 461-62 (7th Cir. 2001)). In other words, an administrator's decision will be o vertu rn ed only if it is downright unreasonable. Carr v. Gates Health Care Plan, 195 F.3d 29 2, 294 (7th Cir. 1999). D e fen dan t terminated plaintiff's long term disability benefits, effective May 1, 2007, in reliance on the following evidence: (1) Dr. Batrusaitis's conclusion after examining

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p lain tiff that she could work eight hours a day and 40 hours a week with certain restrictions an d that her condition was improving; (2) a July 16, 2007 and November 19, 2007 d eterm in atio n by Dr. Ryan that plaintiff's reactive arthritis was under control; (3) a June 15, 2007 employability assessment by Charles Galaraga, identifying three jobs plaintiff was qualified to perform in light of Dr. Baltrusaitis's examination; (4) a March 2008 in-home assessm ent by defendant's agents that plaintiff moved without difficulty and (5) a February 7, 2006 functional capacity evaluation by Amanda Karnas, indicating that plaintiff was capable of sustaining a medium level of work for an eight-hour day. Plaintiff challenges defendant's determination as factually inaccurate and arbitrary and capricious because (1) the May 1, 2007 evaluation by Dr. Baltrusaitis demonstrated that sh e could not work full-time; (2) the functional capacity evaluation lacked foundation and w as irrelevant because plaintiff's condition worsened; (3) defendant disregarded plaintiff's M arch 3, 2008 testimony about the difficulty she would have working a forty-hour week; an d (4) defendant incorrectly identified certain jobs that paid below the minimum indexed predisability requirement. In addition, plaintiff argues that defendant's role as the claims adm inistrator is a conflict of interest and should count as a factor against it. As an initial matter, the parties spend a great deal of time arguing whether plaintiff's decision to forgo traditional medical treatment in favor of holistic and integrative medicines w a s a reasonable treatment decision, without showing how this issue is relevant to

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defendan t's decision to terminate plaintiff's disability benefits. Perhaps plaintiff meant to argu e that defendant was discriminating against her because of the non-traditional options sh e sought. A more likely interpretation is that defendant believed that plaintiff's decision to seek alternative remedies was an indication that her alleged pain and disability were not as severe as she alleged. Whatever the case, the issue is irrelevant. The record shows that defendan t made its termination on the basis of plaintiff's condition and not the medicines she was taking. U n d er defendant's policy, the employee bears the burden of proving initial and ongoing disability. AR, dkt. #22-1, at 39. Accordingly, plaintiff must show that she has an on goin g disability if she is to sustain her claim for disability. Tolle v. Carroll Touch, Inc., 23 F.3d 174, 179 (7th Cir. 1994) ("To recover benefits under § 502(a)(1)(B), the employee m ust establish that he or she `has satisfied the conditions necessary for benefits under the plan'"). The policy contains two "disability" classifications: total and residual disability. To estab lish that she has a "total disability," plaintiff must show that she is not working and "is unable to perform the majority of the material duties of . . . her normal occupation" before and after the elimination period. (Neither party explains the relevance or importance o f the term "elimination period." I assume it is not applicable to the parties' dispute.) To p ro ve residual disability, plaintiff would have to show that she is working on a part-time or

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lim ited basis, cannot perform a majority of the material duties of her occupation and is unable to earn more than 80% of her indexed predisability earnings. Plaintiff contends that her condition amounts to total disability as defined by the plan or, at the very least, residual d i s a b i li t y . Plaintiff's effort to show that she is totally disabled under the plan falls flat. The lan gu age of the plan is clear: total disability means "[a] Member who is not working for w a ge or profit and solely and directly because of sickness or injury." AR, dkt. #21-2 at 12. I t is undisputed that plaintiff was working as a real estate agent on May 1, 2007, when defendan t made the initial termination of benefits, and that she was still working in this capacity on March 3, 2008 when defendant's agents visited her home to determine her eligib ility for benefits on appeal. Although the undisputed facts show that plaintiff was not w o rkin g full-time, plaintiff has suggested no reason why her ability to work part-time should no t bar her from claiming benefits as a totally disabled person. From the undisputed facts an d the language of the policy, I find that it was not arbitrary and capricious for defendant to determine that plaintiff was not "totally disabled" as defined by its policy. That leaves plaintiff's claim regarding residual disability. Plaintiff argues that Dr. Baltrusaitis's May 1, 2007 evaluation is evidence that she was m e d ic a lly restricted from working full-time. She cites the symptoms he identified, his recitation of her ongoing medical history and quotes selectively from his report. Plaintiff

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argues that the following observations by Dr. Baltrusaitis prove that she was disabled: she had a great deal of difficulty transferring or ambulating; she was unable to do a squat or a heel or toe walk; a forward bend of more than 45 degrees; she had deformities in her feet, sw elling in her left foot and pain with movement in both ankles. Although it is undisputed that plaintiff had pain in her feet and difficulty with certain exercises and sitting for an extended period, Baltrusaitis never found her incapable of working full or part-time. In fact, h e stated in his report that "[s]he would have to have a job where she could alternate sitting an d standing at least every 1-2 hours" and that she is "capable of working an 8-hour day and 4 0 -h ou r work week" with certain restrictions. In other words, he found her capable of w ork ing either part-time or full-time despite her medical condition. In addition, Dr. Baltrusaitis did not conclude that as of May 1, 2007, plaintiff's con diti o n was so dire that she could not conduct a majority of the material duties of her occupation. If, as plaintiff suggests, the symptoms described by Batrusiatis indicate that she is disabled, she should have provided objective evidence that her symptoms prevented her from doing a substantial or material portion of her duties. Williams v. Aetna Life Ins. Co., 509 F.3d 317, 323-24 (7th Cir. 2007) (denial based on lack of evidence showing that claim an t's symptoms prevented him from performing job not arbitrary and capricious). O t herw i se, I must defer to the doctor's observation that the symptoms he described did not re n der her disabled. He found that she could work in a more sedentary job that involved

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light duty work and did not require carrying objects weighing more than ten pounds. Next, plaintiff cites Baltrusaitis's recitation of her history of reactive arthritis from M arch 31, 2003 through October, 2006 as well as Dr. Baggio's January 24, 2007 letter that plaintiff is limited to 15 to 25 hours of work a week as additional proof that she was precluded from full-time work. Plaintiff's past history has no bearing on defendant's decision. The relevant question is whether plaintiff continues to suffer from a disability that places a total or significant restriction on her ability to work full or part-time. Dr.

Baltrusaitis concluded that as of May 1, 2007, plaintiff did not suffer from a condition that rendered her disabled under defendant's policy. Last, although plaintiff cites various passages from Baltrusaitis's letter indicating that h er condition had worsened or had the potential to do so, plaintiff cites the letter out of con text. Baltrusaitis did state that plaintiff's condition was worse when he saw her than it w a s in February 2006 when she had her functional capacity evaluation, but he did not co n clu de that it had worsened to the point where she could not work. In addition,

B a ltru saitis makes repeated references in his letter to plaintiff's need to treat her condition p ro p e r ly to insure that it did not worsen. This is not evidence of ongoing or continuing d i s a b i li t y . In addition, the undisputed facts show that on July 16 and November 19, 2007, Dr. R y an , plaintiff's treating physician, found plaintiff's reactive arthritis to be under control and

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clinically stable. This is further support for Dr. Baltrusaitis's conclusions. Plaintiff also contends that defendant's reliance on the 2006 functional capacity evaluation was not valid because it lacked proper foundation and was rendered moot by B a l tr u saitis's May 1, 2007 examination. Amanda Karnas conducted the evaluation and found that plaintiff was capable of sustaining a medium level of work for eight hours a day, d id not self-limit during her evaluation and was able to lift, carry, push and pull up to 28 po un ds. With respect to the first point, lack of proper foundation, plaintiff cites one case, P flu ger v. U.S. Group Long-Term Disability Ins. Plan, 2007 WL 130193 (E.D. Wis. Jan. 16, 2007), but no additional outside expert opinion. Pfluger is readily distinguishable on two grounds. First, in Pfluger, the administrator's decision was not reviewed under the arbitrary an d capricious standard and therefore, was not entitled to the same deference as the decision in this case. Id. at *9. Second, and more important, Pfluger provided independent evidence fro m her psychiatrist that contradicted the findings of defendant's functional capacity evaluation. Id. at *5-6, *14-15. Plaintiff has cited no independent medical evidence that m ight call into question the validity of the functional capacity evaluation in her case. She offers only her own criticism, which is insufficient. Given the change in plaintiff's condition between the 2006 functional capacity evaluation and Dr. Baltrusaitis's examination on May 1, 2006, it is questionable whether the ad m inistrator should have placed as much weight on the evaluation as it did. However, I

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cann ot say that its doing so make its decision clearly unreasonable. Sisto v. Ameritech S ickness and Accident Disability Benefit Plan, 429 F.3d 698, 701 (7th Cir. 2005) ("Under [arb itrary and capricious] standard, `questions of judgment are left to the [plan] adm inistrato r,' and `[i]t is not our function to decide whether we would reach the same co n clu sio n ' as the administrator. Since the application of the plan's text and the resulting denial of accident benefits are reasonable, we will not overturn that denial.") (internal c i ta ti o ns omitted). Certainly, if the evaluation had been defendant's sole basis for

term in ati n g her benefits, plaintiff would have a stronger case. However, it was only one factor defendant used in considering whether to terminate benefits. Further, the

o bservatio n s by Drs. Baltrusaitis and Ryan that plaintiff's recent arthritis was improving w ith treatment and Baltrusaitis's confirmation that plaintiff could work with certain restrictions indicate that the evaluation was not entirely invalid. C on tinuin g to challenge the functional capacity evaluation, plaintiff argues that once defendan t had the results of Dr. Baltrusaitis's May 2007 examination, it "had a duty to accep t plaintiff's [March 3, 2008] account as the most recent and relevant information conc er ning her health condition, symptoms and treatment." Plt.'s Resp. Br., dkt. #26, at 14. First, as I have found, it was not unreasonable for defendant to rely on the February 20 06 functional capacity evaluation. Second, defendant has no "duty" to accept plaintiff's self-described symptoms, particularly in light of the report of its own agents, who observed

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th at plaintiff was moving without difficultly when they interviewed her on March 3, 2008. U ltim ately, plaintiff bears the burden of adducing objective evidence that her condition affects her ability to work either full or part-time. Williams, 509 F.3d at 323-24; see also John son v. Metropolitan Life Ins. Co., 437 F.3d 809, 813-14 (8th Cir. 2006). Plaintiff argues that defendant acted improperly when it changed the requirements of its long term disability policy by identifying jobs that did not pay 80% of plaintiff's indexed predisability income. Plaintiff is misreading defendant's disability policy. Under th at policy, a claimant is classified as having a residual disability only if she (1) is working on a limited or part-time basis solely because of sickness or injury; (2) is "unable to perform th e majority of the material duties of any occupation for which [she was] or may reasonably beco m e qualified based on education, training or experience"; and (3) is unable to earn 80% of her indexed predisability income. Merely meeting the third requirement is insufficient. P lain tiff must also show that defendant acted unreasonably in concluding that she had not sh ow n her inability to perform the majority of the material duties of any occupation for w hich she is qualified. Because it is plaintiff's burden to show all three elements and she has not shown that she can meet the second requirement, it is a moot point whether the jobs identified by defendant would or would not have paid plaintiff 80% of her previous income. L ast, plaintiff argues that defendant's role as the claims administrator is a conflict of interest and should count as a factor against it. Paintiff cites Metropolitan Life Insurance

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C o. v. Glenn, 128 S. Ct. 2343, 2350 (2008) in which the Supreme Court held that "a co nflict should "be weighed as a `factor in determining whether there is an abuse of discretion .'" Id. (citing Firestone, 489 U.S. at 115.) Although I agree that Metropolitan Life requ ires a court to consider a conflict of interest as a factor in certain circumstances, plaintiff fails to illustrate how the conflict of interest applies in this case. She merely repeats her earlier arguments that the decision was arbitrary and capricious in light of other evidence on the record. Defendant's conflict of interest would be a tiebreaker in plaintiff's favor if the evidence were in equipoise and good reasons existed to show that the decision by defendant w as against the weight of the evidence. Id. at 2351 ("any one factor will act as a tiebreaker w h en the other factors are closely balanced, the degree of closeness necessary depending u po n the tiebreaking factor's inherent or case-specific importance"). The mere existence of a conflict of interest does not carry the day for a disappointed claimant, when a case is not a close one. In this case, the undisputed facts show that defendant's decision to terminate plaintiff's benefit was not unreasonable.

ORDER IT IS ORDERED that plaintiff Marcia Hanlon's motion for summary judgment, dkt. # 17, is DENIED and defendant Principal Life Insurance Company's motion for summary ju dgm en t, dkt. #14, is GRANTED. The clerk of court is directed to enter judgment in favor

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of defendant and close this case. E n tered this 20 t h day of July, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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