Opinion
Case No. 2:07-CV-95.
September 22, 2008
OPINION AND ORDER
This is an action filed by plaintiff Maribea Balmert pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq. In a complaint filed in this court on February 8, 2007, plaintiff, a former employee of Big Lots, Inc., brings a claim under 29 U.S.C. § 1132(a)(1)(B), challenging the failure of defendant Reliance Standard Life Insurance Company ("Reliance Standard"), insurer and administrator of Big Lots' long-term disability plan ("the Plan"), to pay her long-term disability benefits allegedly due her under the terms of the plan. This matter is before the court on the parties' respective motions for judgment on the administrative record.
Plaintiff's complaint also refers to 29 U.S.C. § 1132(c), but contains no allegations which would support a claim under that section and subsequent pleadings only support a claim for denial of appeal rights and benefits.
Although Reliance Standard has captioned its motion as one for "summary judgment" (Doc. 30), it is more appropriately captioned as one for judgment on the administrative record. In an ERISA claim for benefits, summary judgment is generally considered an inappropriate mechanism for adjudicating claims and judgment should be confined to evidence contained only in the administrative record. See University Hospitals of Cleveland v. Emerson Elec., 202 F.3d 839, 845 n. 2 (6th Cir. 2000). Reliance Standard's motion is clearly one for judgment on the administrative record as it does not refer to the summary judgment standard, agrees with plaintiff as to the standard of review, and specifically states "Reliance Standard now seeks judgment in its favor based on the administrative record." Defendant's Motion, p. 12.
I. STANDARD OF REVIEW
In Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989), the Supreme Court held that a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan, in which case the more deferential arbitrary and capricious standard of review applies. In this case, the Plan provides:
Reliance Standard Life Insurance Company shall serve as the claim review fiduciary with respect to the insurance policy and the Plan. The claims review fiduciary has the discretionary authority to interpret the Plan and the insurance policy and determine eligibility for benefits. Decisions by the claims review fiduciary shall be complete, final and binding on all parties.
R. 14. The parties agree that the deferential "arbitrary and capricious" standard of review applies in this case in determining whether Reliance Standard appropriately denied plaintiff's benefits. Plaintiff's Motion, p. 8; Defendant's Motion, p. 12.
The arbitrary and capricious standard is the least demanding form of judicial review of administrative action. McDonald v. Western-Southern Life Ins. Co., 347 F.3d 161, 169 (6th Cir. 2003). Under the arbitrary and capricious standard, a determination by the plan administrator will be upheld if it is rational in light of the plan's provisions. Id.; Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376, 381 (6th Cir. 1996). When it is possible to offer a reasoned explanation for a plan administrator's decision based upon the evidence, that decision is not arbitrary and capricious. McDonald, 347 F.3d at 169; Davis v. Kentucky Fin. Cos. Retirement Plan, 887 F.2d 689, 693 (6th Cir. 1989). However, a district court's obligation to review the administrative record "inherently includes some review of the quality and quantity of the medical evidence and the opinions on both sides of the issues" to avoid becoming "nothing more than rubber stamps for any plan administrator's decision[.]" McDonald, 347 F.3d at 172.
"Generally, when a plan administrator chooses to rely upon the medical opinion of one doctor over that of another in determining whether a claimant is entitled to ERISA benefits, the plan administrator's decision cannot be said to have been arbitrary and capricious because it would be possible to offer a reasoned explanation, based upon the evidence, for the plan administrator's decision." McDonald, 347 F.3d at 169. A plan administrator is not required to accord special weight to the opinions of the plaintiff's treating physician, or to offer an explanation when it credits reliable evidence that conflicts with a treating physician's evaluation. Black Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003); Calvert v. Firstar Finance, Inc., 409 F.3d 286, 293 (6th Cir. 2005) ("treating physician rule" does not apply in the ERISA context).
In reviewing the administrator's decision, the court is limited to a consideration of the evidence which was included in the record before the plan administrator. See Shelby County Health Care Corp. v. Southern Council of Industrial Workers Health Welfare Trust Fund, 203 F.3d 926, 932 (6th Cir. 2000); Smith v. Ameritech, 129 F.3d 857, 863 (6th Cir. 1997).
Plaintiff notes that the Plan is both insured and administered by Reliance Standard and that any benefits provided under the Plan are paid directly by Reliance Standard as the Plan Administrator. See R. 14. Operation of a plan both as the insurer and the administrator creates a conflict of interest. Met Life Ins. Co. v. Glenn, No. 06-923, 128 S. Ct. 2343, 2346 (2008);Kalish v. Liberty Mutual/Liberty Life Assur. Co. of Boston, 419 F.3d 501, 506 (6th Cir. 2005); Killian v. Healthsource Provident Adm'rs, Inc., 152 F.3d 514, 521 (6th Cir. 1998). However, such a situation does not alter the degree of deference granted under the arbitrary and capricious standard of review; rather, the conflict must be weighed as a factor in determining whether an abuse of discretion occurred. Met Life Ins. Co., 128 S. Ct. at 2350-51; Calvert, 409 F.3d at 292-93 (arbitrary and capricious standard remains unchanged, and conflict of interest is considered in applying that standard).
Although the arbitrary and capricious standard applies to Reliance Standard's denial of benefits, this court reviews de novo the legal question of whether Reliance Standard, in denying plaintiff's claim, complied with the notice requirements of ERISA under 29 U.S.C. § 1133. Wenner v. Sun Life Assurance Co. of Canada, 482 F.3d 878, 882 (6th Cir. 2007). This Court has adopted a "substantial compliance" test in deciding whether denial notices meet the requirements of § 1133. Id. "In this analysis, it is crucial for us to determine whether the plan administrators fulfilled the essential purpose of § 503 — notifying [the claimant] of their reasons for denying [her] claims and affording [her] a fair opportunity for review." Marks v. Newcourt Credit Group, Inc., 342 F.3d 444, 460 (6th Cir. 2003) (citing Kent v. United of Omaha Life Ins. Co., 96 F.3d 803, 807 (6th Cir. 1996)).
II. PLAN DISABILITY BENEFITS
Under the Plan, plaintiff, an accountant, would be considered a member of "Class 3" which is defined as "salaried Employee earning less than $50,000, excluding Vice Presidents, Senior Vice Presidents, and Executives." R. 7. The Plan states that Reliance Standard will pay a monthly benefit "if an Insured: (1) is Totally Disabled as a result of a Sickness or Injury covered by this Policy; (2) is under the regular care of a Physician; (3) has completed the Elimination Period; and (4) submits satisfactory proof of Total Disability to us." R. 18. The Plan defines "Total Disability" or "Totally Disabled," as those terms apply to Class 3 as follows:
The "Elimination Period" is 180 consecutive days of total disability, during which time benefits are not payable. R. 7, 9.
(1) during the Elimination Period and for the first 24 months for which a Monthly Benefit is payable, an Insured cannot perform the material duties of his/her regular occupation;
. . .
(2) after a Monthly Benefit has been paid for 24 months, an Insured cannot perform the material duties of any occupation. Any occupation is one that the Insured's education, training or experience will reasonably allow. We consider the Insured Totally Disabled if due to an Injury or Sickness he or she is capable of only performing the material duties on a part-time basis or part of the material duties on a full-time basis.
R. 10.
III. PLAINTIFF'S CLAIM
Plaintiff began her employment with Big Lot's, Inc. on October 15, 2001 as an accountant. R. 118. The position is a sedentary job which requires plaintiff to sit most of the day and requires plaintiff to use her hands, fingers, and wrists to use a computer. R. 49, 126. Plaintiff left work on August 25, 2004 and filed for long-term disability (LTD) benefits on February 15, 2005. R. 126-127. According to plaintiff, she became disabled due to symptoms related to rheumatoid arthritis. R. 129. The disability claim at issue in this case relates to plaintiff's rheumatoid arthritis and whether that diagnosis caused her alleged inability to work.
The parties indicates that plaintiff filed for LTD benefits in February 2005, but the administrative record cited for the proposition has a signature date of February 15, 2004. R. 127. Because the parties do not dispute the date as occurring in 2005, and because plaintiff was not even allegedly disabled until August 2004, this court assumes that an error was made on the signature line and plaintiff applied for LTD benefits on February 15, 2005.
The administrative record includes a variety of medical records, including records from plaintiff's treating physician, Dr. Kevin Hackshaw, a rheumatologist. In a letter dated August 26, 2004, the onset date of plaintiff's alleged disability, Dr. Hackshaw stated "I am questioning the patient and the husband also states that her job is a `high stress job' and it seems the family feels that the stress is exacerbating her symptoms . . . the pain that she complains of is disproportionate relative to the amount of synovitis I see." R. 306. His office notes on that same date state plaintiff "had symptoms of pain which are out of proportion to her arthritis which is under control." R. 282. Dr. Hackshaw stated that her symptoms suggest "some other etiology, neurologic or possibly psychologic with regard to some of these symptoms" and that he made a referral for her to a neurologist and a psychologist. R. 306. He stated he "awaits insight from [his] colleagues in neurology and psychology to further evaluate [plaintiff's] symptoms." R. 306.
In a letter dated October 21, 2004 Dr. Hackshaw stated that plaintiff was "doing well" with her medications and that "her rheumatoid arthritic standpoint seems to be under good control." R. 305. He noted that plaintiff was "concerned about returning to work and there seems to be some stresses associated with her job." R. 305. He noted that because of her stresses she "may have to come up with a decision about whether she wants to be maintained at her current `high level job' of if she is going to want to discontinue that job and go to an alternative position." R. 305.
Plaintiff began seeing psychologist Wanda McEntyre, Ph.D. On August 30, 2004, Dr. McEntyre noted that plaintiff "described her job as stressful because of the work pressure and long hours. She described having very little control over her hours and having expectations that she put in long days." R. 219. Dr. McEntyre's notes from September 14, 2004, indicate that plaintiff stated she was using her time off work to "rest more" and be "home for [her] sons" and that her "work stress/pressures keep her away from home and she doesn't get a chance to see [her family]." R. 222.
Dr. McEntyre's notes from October 26, 2004, indicate that plaintiff was upset and tearful after seeing Dr. Hackshaw, who told her "you're fine. Your pain is under control" and that she could return to work. R. 223. Plaintiff told Dr. McEntyre that plaintiff does "everything at home (cleaning, cooking, bill paying, etc.) and can't do everything and work long, demanding hours." R. 223. Plaintiff stated that "her husband has been helping some because she has had pain, but now says he won't help her" and denied her request to hire a housekeeper. R. 223. Dr. McEntyre noted that plaintiff used complaints of pain to get help with household chores from her husband and sons. R. 223.
In a note from November 12, 2004, Dr. McEntyre indicated that plaintiff stated "she is very concerned about her ability to [return to work] if her work hours or home responsibilities don't change" and that she has been "looking for a new job" and "wants to secretly hire a cleaning woman without her husband's knowledge." R. 224. Plaintiff ended her treatment with Dr. McEntyre in December 2004 and did not seek further treatment for stress. R. 224.
Plaintiff does not dispute Reliance Standard's argument that psychological disability could not be the basis for plaintiff's disability claim. Under the terms of the plan, a monthly benefit is payable if claimant submits satisfactory proof of Total Disability and is under the regular care of a Physician. R. 18. Because plaintiff stopped seeing Dr. McEntyre within the Elimination Period, the time during which she was treating with Dr. McEntyre cannot be considered part of her claim for disability. R. 7, 9.
In a letter dated February 14, 2005, Dr. Hackshaw stated "[plaintiff's] work status-we had allowed her to return to work with limitations and they apparently stated she would not be able to return to work due to the limitations. They suggested that she seek permanent disability as a result." R. 304. In the same letter, Dr. Hackshaw indicated that plaintiff thought her current status was "fine with regard to her current symptoms and what she wanted to do." R. 304. He stated she had "no tender points and no synovitis that I could detect, so I think in general she is doing well." R. 304.
On February 21, 2005, Dr. Hackshaw completed Reliance Standard's physician form and indicated that plaintiff could not use her upper extremities for simple grasping, pushing/pulling or fine manipulation. R. 313.
In a letter dated May 19, 2005, Dr. Hackshaw indicated that plaintiff "is currently unable to use her hands for keying and keyboard applications in her position as an accountant at Big Lots." R. 299.
Reliance Standard denied plaintiff's claim for disability benefits on June 2, 2005, based on the office notes of Dr. Hackshaw indicating that her complaints of pain were disproportionate to the synovitis noted, that her medication was working, that she was unable to return to work due to stresses on the job, and that she was in general doing well. R. 74. It stated that "there is no documentation of a physical condition that would preclude you from performing the material duties of your own occupation." R. 75. The letter advised plaintiff of her appeal rights under ERISA. R. 75.
Plaintiff appealed from Reliance Standard's denial of her disability benefits. In support of her appeal, plaintiff provided additional medical and other information to the administrator for consideration. R. 114. The medical and other information before the administrator included the information described below.
On August 18, 2005, Dr. Hackshaw reported that plaintiff "has no warm or swollen joints" and "has had no other symptoms exacerbating any underlying conditions . . . Generally, I am pleased with how she is doing." R. 239.
In a letter dated December 1, 2005, Dr. Hackshaw noted that plaintiff has "no other particular symptoms of note" and concluded "essentially she is doing well with current medications." R. 237.
Dr. Hackshaw referred plaintiff to Mathew Crill, a physical therapist, to perform a functional capacity evaluation (FCE) on March 15, 2006 to determine plaintiff's ability to work at her regular employment. R. 212. Crill's recommendations were:
Based on her modified FCE, I do not believe it would be safe or prudent to place Ms. Balmert in any type of formal work setting. This conclusion is based on her lack of sitting tolerance, lack of standing tolerance, severe deficits in upper extremity strength, severe deficits in fine motor skills, and chronic and intractable subjective pain ratings. She would not be able to perform any of her previous work requirements under modified or full duty in the context of full work day. These recommendations are pending the referring physician's final evaluation . . .
R. 212.
Plaintiff submitted a statement, dated May 30, 2006, to Reliance Standard informing them that her condition had "stabilized" and that Dr. Hackshaw had been able to control her rheumatoid arthritis with a combination of drugs so that her condition had not "gotten any worse." R. 180-181. She stated that she was in the same condition as she was when she left work in August 2004 and that her life had not changed since she had been off work. R. 181. She was still not able to use her hands and had to have her son type the letter she was sending. R. 181. She was still having problems "sitting, standing, and walking" and that "this is the best [she] can hope for because [she] will never get any better." R. 181.
By a letter dated July 25, 2006, Dr. Hackshaw indicated that he had reviewed the FCE and that he "agree[d] with the findings[.]" He agreed that plaintiff's condition was the same at that time as it was when he was treating her in 2004. R. 211.
Reliance Standard referred plaintiff to Dr. Marvin Thomas for an independent medical exam (IME) on September 29, 2006. R. 188-191. In a memo prepared by Dr. Thomas on that same day, Dr. Thomas identified the "copious amount of material" he reviewed from plaintiff's file, including the FCE and Dr. Hackshaw's concurring opinion, as well as Dr. Hackshaw's letter indicating plaintiff was unable to use her hands for keying and keyboard applications. R. 190.
Plaintiff alleges that the records given to Dr. Thomas entered on September 29, 2006, were somehow fraudulently entered and not actually received until after the date of the exam. R. 190. Plaintiff has cited no support for this allegation other than plaintiff counsel's own letter accusing Dr. Thomas of not having the records. These allegations constitute mere speculation which this court need not consider.
Dr. Thomas also conducted a physical exam of the plaintiff. In his memo, Dr. Thomas stated:
While I do not question the diagnosis of rheumatoid arthritis based on her previous history and some of the laboratory studies noted. There is at this time as it has been stated by Dr. Hackshaw on a number of occasions no evidence of active disease. I would agree with Dr. Hackshaw that at this time most of her symptoms are probably on the basis of fibromyalgia. Whether there are significant psychosocial elements here remains uncertain.
R. 191.
Dr. Thomas concluded that "[t]here is no rheumatoligical basis for disability" (R. 191) and opined that while the diagnosis of rheumatoid arthritis "seems firm, there is still very little evidence of active disease and one would guess that it is in relative remission." R. 188. He stated that plaintiff's "musculoskeltal examination revealed good range of motion of her shoulders. There was no evidence of synovitis in her upper extremities including the hands." R. 190. He noted that progress with rheumatoid arthritis is always uncertain but that progress "looks reasonably good for [plaintiff] at this point," that the "x-rays of the hands were normal," and he "would place very little limitation on her in terms of the use of her upper extremities" but that she "might have some difficulty because of her knees with prolonged standing and negotiating steps." R. 188. He also noted she was on "fairly maximum treatment." R. 188. Finally, he noted "[i]n summary while she has a diagnosis of rheumatoid arthritis, it seems controlled. I see no reason why she cannot continue in her present position." R. 189.
Jody Barach, Supervisor for Rehabilitation Services, requested a review of claimant's occupation and current physical restrictions to determine if the claimant was prohibited from performing her own occupation. R. 155. Marianne Lubrecht, RN, BSN, an employee of Reliance Standard, performed this review on October 26, 2006. R. 155. By a memorandum dated October 27, 2006, Barach found, based on the review of Lubrecht, that claimant was able to perform the material duties of an accountant and that there were no restrictions or limitations that would preclude her from performing her own occupation. R. 155. She described the material duties of the occupation as established by the Dictionary of Occupational Titles (DOT). R. 155.
On October 27, 2006, however, Lubrecht, who had written the initial review of the IME, requested additional information from Dr. Thomas regarding plaintiff's restrictions and limitations from the date of loss. R. 186. By letter dated November 2, 2006, Dr. Thomas responded, "Based on the records sent to me it would appear initially that she would have difficulty keyboarding and other use of her hands. Based on what I see now this would be much less of a problem." R. 184. Based on Dr. Thomas' addendum, Lubrecht changed her analysis and stated that "review of the records supports limits on keyboarding, fingering, and grasping from the date of loss thru [sic] 9/06 IME." R. 183.
Plaintiff alleges that Dr. Thomas' addendum is unreliable because the administrative record does not contain the letter from the outside medical review company requesting the addendum. This court sees no reason why that letter would have any relevance in determining whether Dr. Thomas' statement is credible.
Based on this new information, Barach prepared another memo, dated December 14, 2006, quoting Lubrecht's revised review that plaintiff's records "support limits on keyboarding, fingering, and grasping from the date of loss thru [sic] 9/06 IME." R. 153. It also stated that "[a]s an Accountant, [plaintiff] would be required to perform frequent fine manipulation. Therefore, [plaintiff] is precluded from performing her own occupation." R. 153.
By letter dated December 14, 2006, Reliance Standard found that claimant had established total disability from August 26, 2004, until September 29, 2006, the date of Dr. Thomas' IME. R. 38-42. The letter advised plaintiff that current records documented excellent control of the rheumatoid arthritis with medication at the time she ceased working. R. 40. Although psychiatric impairment was supported through January 2005, that was during the elimination period during which no benefits would be payable. R. 40. The letter relied on the IME of Dr. Thomas which stated that he saw "no reason why she cannot continue in her present position." R. 41. The letter indicates that Reliance Standard specifically requested an addendum to find out if prior to the time of the examination plaintiff was precluded from performing her own occupation. R. 41. It noted that initially she would have been precluded from keyboarding and other use of her hands, but at the time of the IME that was not the case. R. 41. These findings were referred to a vocational specialist who concluded that plaintiff would not have been able to perform her occupation during the period prior to the IME. R. 41.
The decision stated:
Since it has been established that total disability is supported from August 26, 2004 to September 29, 2006, [plaintiff's] file has been returned to the Claims department to pay benefits up to the latter date and then close the file on the basis that disability is not supported beyond that date.
. . .
Please be advised that our claim decision is now final, as [plaintiff] has exhausted any administrative remedies available.
R. 41.
IV. DISCUSSION
Plaintiff argues that Reliance Standard's December 1, 2006, decision which granted benefits up to the date of Dr. Thomas' IME violated ERISA because it violated ERISA's claim review regulation and because it was arbitrary and capricious.
A. ERISA Claim Review Requirements
Under ERISA § 503 ( 29 U.S.C. § 1133) "every employee benefit plan shall . . . afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim." If a claim is denied, a claimant "shall have a reasonable opportunity to appeal an adverse benefit determination to an appropriate named fiduciary of the plan, and under which there will be a full and fair review of the claim and the adverse benefit determination." 29 C.F.R. § 2560.503-1(h)(1). A full and fair review takes into account any new "comments, documents, records, and other information submitted by the claimant relating to the claim, without regard to whether such information was submitted or considered in the initial benefit determination." 29 C.F.R. § 2560.503-1(h)(2)(iv). Plaintiff argues that Reliance Standard violated ERISA's notice requirements because it did not provide her with a full and fair review of its final decision, rendered December 14, 2006.
Reliance Standard issued its initial opinion denying benefits on June 2, 2005. In accordance with the regulations, it allowed her to appeal that determination and submit new evidence in support of her appeal. In its final determination, rendered December 14, 2006, Reliance Standard acknowledged its review of that submitted evidence. R. 38-40 (indicating, among other things, its review of plaintiff's FCE and Dr. Hackshaw's July 2006 letter noting his agreement with it).
Plaintiff argues, however, that she is entitled to yet another review of her claim. Citing Wenner v. Sun Life Assur., 482 F.3d 878 (6th Cir. 2007), plaintiff argues that Reliance Standard's final decision, rendered December 14, 2006, was based on a different reason than the initial June 2, 2005, denial of benefits and thus, she is entitled to another appeal. In Wenner, plaintiff's initial termination letter from Sun Life indicated that his failure to respond to an updated information request was the sole basis for termination of his benefits. Id. at 880. After his appeal, Sun Life affirmed its decision to terminate his benefits, but based that decision on an entirely new reason-that Wenner was no longer disabled. Id. The court found those actions to violate ERISA because Sun Life never provided Wenner an opportunity to respond by the appropriate appeals process to the new, additional reason for its final decision. Id. at 883. Thus, the court reinstated benefits beginning from the invalid termination. Id. at 883.
The court noted that § 1133 does not allow a plan to tell a beneficiary it is denying his claim for one reason "and then turn around and terminat[e] his benefits for an entirely different and theretofore unmentioned reason, without affording him the opportunity to respond to the second, determinative reason for the termination." Id. at 882. Clearly, the Wenner court was concerned with whether or not the beneficiary has had an adequate opportunity to respond to the given reason. See Robinson v. Aetna Life Ins. Co., 443 F.3d 389, 393, 394 (5th Cir. 2006) (the requirement that the administrator disclose the basis for its decision is necessary so that beneficiaries can adequately prepare for any further administrative review).
Here, unlike in Wenner, plaintiff's disability was denied on appeal for the same reason that it was initially denied — the claims review administrator did not find sufficient evidence that plaintiff's rheumatoid arthritis rendered her totally disabled as that term is defined in the policy. Plaintiff argues that the fact she was granted benefits up until Dr. Thomas' IME somehow supports her argument that the final denial was based on a different reason than the initial denial. But in issuing his opinion that plaintiff was not disabled, Dr. Thomas reviewed the information plaintiff submitted in her appeal, including plaintiff's FCE and concurring opinion of Dr. Hackshaw. Thus, her evidence submitted in support of her claim was considered, not only by the claims administrator, but also by the doctor performing the IME. Clearly, plaintiff had her opportunity to respond to the question of whether or not there was sufficient evidence of total disability.
The core requirements of full and fair review include "knowing what evidence the decision-maker relied upon, having an opportunity to address the accuracy and reliability of that evidence, and having the decision-maker consider the evidence presented by both parties prior to reaching and rending his decision." See Houston v. UNUM Life Insurance Co. of America, No. 06-3644, 246 Fed. Appx. 293, 300 (6th Cir. 2007) (citing Halpin v. W.W. Grainger, Inc., 962 F.2d 685, 689 (7th Cir. 1992)). Clearly, these requirements were met in this case. Plaintiff knew the decision-maker denied her claim for lack of evidence supporting "Total Disability," she submitted additional evidence to rebut that reason, and the decision-maker considered the evidence along with a new IME and determined the evidence was still not sufficient. Thus, a new reason was not offered for the final decision and plaintiff's right to an appeal was satisfied.
Although not phrased as such by plaintiff, plaintiff's argument can be construed as one that plaintiff is entitled to a further appeal because the final decision was based on new evidence, as opposed to a new reason. That is, because Dr. Thomas' IME was the last exam to be completed, she did not have an opportunity to respond with her own evidence and thus, she should be entitled to an additional appeal.
This type of argument has been rejected by the courts. In the leading case, Metzger v. UNUM Life Insurance Co., 476 F.3d 1161, 1167 (10th Cir. 2007), the court concluded that documents "generated during the administrative appeal . . . must be disclosed after a final decision on appeal." Id. The court held that "[p]ermitting a claimant to receive and rebut medical opinion reports generated in the course of an administrative appeal — even when those reports contain no new factual information and deny benefits on the same basis as the initial decision — would set up an unnecessary cycle of submission, review, re-submission, and re-review" and that such a cycle would increase both the cost and length of the appeals process. Id. at 1166. Based on the strong language from Metzger, it is clear that plaintiff is not entitled to yet another opportunity to submit additional information to rebut the report of Dr. Thomas.
See also Silver v. Exec. Car Leasing Long-Term Disability Plan, 466 F.3d 727, 732 n. 2 (9th Cir. 2006); Laub v. Aetna Life Ins. Co., 549 F. Supp. 2d 571, 576 (S.D.N.Y. 2008); Boldt v. Dow Chem. Co. Voluntary Group Accident Ins. Plan, No. 06-cv-25, 2007 U.S. Dist. LEXIS 59725, at *38-43 (S.D. Tex. Aug. 15, 2007); Hoover v. Metro. Life Ins. Co., No. 05-4323, 2006 U.S. Dist. LEXIS 5481, 27-28 (E.D. Pa. Feb. 14, 2006). But see Abram v. Cargill, Inc., 395 F.3d 882 (8th Cir. 2005) (holding that full and fair review requires an administrator to make appeal-level consultants' reports available to claimants during the course of an appeal, but not addressing the ERISA regulation's language found controlling in Metzger because the claim for benefits in Abram's was prior to the effective date of the 2000 ERISA regulation amendments).
B. Review of Plan Determination
Plaintiff argues that the December 14, 2006, decision was arbitrary and capricious because Reliance Standard "gave no consideration to any medical or other evidence presented by [plaintiff] . . ." Plaintiff's Motion, p. 15.
In fact, Reliance Standard discussed the medical evidence it considered in its final determination. The determination letter specifically states that Reliance Standard considered the FCE and Dr. Hackshaw's support of it and notes that based on Dr. Thomas' findings and a review of a vocational specialist, plaintiff would not have been able to perform her occupation prior to the exam. Simply put, Reliance Standard relied on the evidence of Dr. Thomas instead of Dr. Hackshaw and the FCE. As noted above, relying on the report of one doctor instead of another does not make a decision arbitrary and capricious.
The denial letter indicates that the FCE is "incomplete," but does not elaborate on why the FCE was incomplete. R. 40. Even assuming the FCE was complete, however, Reliance Standard's decision was still well reasoned because the FCE simply conflicted with the IME of Dr. Thomas and plaintiff has given us no reason why one should be believed over the other.
It is certainly reasonable to find Dr. Thomas' report more credible than that of Dr. Hackshaw. Although Dr. Thomas indicated plaintiff could return to work, he was willing to accept evidence in the record that at one time plaintiff was unable to work. This finding bolsters his credibility as to his findings after his in person exam because it demonstrates his goal was not to save Reliance Standard from having to pay the claim.
In contrast, the records of Dr. Hackshaw dating from 2004 to 2006 are inconsistent. As early as August 2004, Dr. Hackshaw indicated "the pain [plaintiff] complains of is disproportionate relative to the amount of synovitis I see." R. 306. In October 2004, Dr. Hackshaw again stated that plaintiff was "doing well" and that "her rheumatoid arthritis standpoint seems to be under good control." R. 305. At some point, prior to February 14, 2005, Dr. Hackshaw had released her to return to work with limitations, although nothing was available at Big Lots. R. 304. Yet later, in May 19, 2005, Dr. Hackshaw indicated that plaintiff "is currently unable to use her hands for keying and keyboard applications in her position as an accountant at Big Lots." R. 299. In December 2005, Dr. Hackshaw noted that plaintiff has "no other particular symptoms of note" and concluded "essentially she is doing well with current medications." R. 237. In light of these inconsistent records, Dr. Hackshaw's July 2006 statement agreeing with the findings of the FCE and noting plaintiff's condition was "the same" at that time as it had been since 2004 is less than persuasive. R. 211.
The fact that Big Lots, Inc. did not have a job available within plaintiff's limitations does not show that plaintiff was incapable of performing her "regular occupation" as required under the plan. As noted below "regular occupation" encompasses a wider range of jobs than just plaintiff's position at Big Lots.
Moreover, there are numerous indications in the administrative record that plaintiff's symptoms are more likely related to stress than to her arthritis. As early as August 26, 2004, Dr. Hackshaw stated "I am questioning the patient and the husband also states that her job is a `high stress job' and it seems the family feels that the stress is exacerbating her symptoms[.]" R. 306. On October 21, 2004, Dr. Hackshaw again noted plaintiff was "concerned about returning to work and there seems to be some stresses associated with her job." R. 305. Dr. McEntyre likewise noted plaintiff's pain as related to her stress at work when she stated plaintiff does "everything at home (cleaning, cooking, bill paying, etc.) and can't do everything and work long, demanding hours," that plaintiff was tearful after Dr. Hackshaw told her "you're fine" and that her pain was "under control" and she could return to work, and that plaintiff used complaints of pain to get help with household chores from her husband and sons. R. 223. Despite Dr. Hackshaw's concerns regarding plaintiff's stress exacerbating her symptoms, plaintiff discontinued psycological counseling with Dr. McEntyre prior to the end of the elimination period. R. 224, 306.
Weighing plaintiff's evidence of the FCE and the conclusions of Dr. Hackshaw against the report of Dr. Thomas, who indicated that plaintiff was capable of working, Reliance Standard's decision to rely on Dr. Thomas' exam was well reasoned. The plan administrator is not required under ERISA to accord plaintiff's treating physician any special deference. Black and Decker Disability Plan v. Nord, 538 U.S. 822, 831 (2003). While it is true that plaintiff presented some evidence of her disability, Reliance Standard had conflicting evidence in Dr. Thomas' IME report.
Plaintiff lists a litany of other arguments, none of which persuade this court that Reliance Standard acted in an arbitrary and capricious manner. Specifically, plaintiff argues that Dr. Thomas was biased, that Reliance Standard failed to give sufficient weight to claimant's vocational evidence, that the claims examiner relied on an improper job description, and that Reliance Standard did not consider the statement of Jody Barach that "Balmert is precluded from performing her Own Occupation." R. 153.
1. Dr. Thomas' Alleged Bias
Plaintiff argues that Dr. Thomas' was biased for two reasons: first, because he reviewed a letter written by plaintiff's counsel and second, because he was hired by Reliance Standard. Neither of these factors necessitate a finding that Dr. Thomas offered a biased opinion.
Reliance Standard sent plaintiff's file to Dr. Thomas to review in connection with his physical examination of her. In that file, there was a copy of a letter sent by plaintiff's counsel outlining why plaintiff believed she was totally disabled. Plaintiff's Motion, 21. Plaintiff has cited no law that such a submission is inappropriate in this context. Moreover, supplying Dr. Thomas with plaintiff's letter, which argues that plaintiff is disabled, would at most bias Dr. Thomas in favor of plaintiff, not against her. At the very least it gave plaintiff the benefit of providing Dr. Thomas with her counsel's arguments as to why she should be considered disabled.
Plaintiff argues that although routine deference to an opinion of a claimant's treating physician is not warranted, this court should consider whether "a consultant engaged by a plan may have an `incentive' to make a finding of `not disabled' as a factor in determining whether the plan administrator acted arbitrarily and capriciously in deciding to credit the opinion of its paid, consulting physician." Kalish v. Liberty Mutual/Liberty Life Ass. Co. of Boston, 419 F.3d 501, 508 (6th Cir. 2005) (quoting Black Decker Disability Plan v. Nord, 538 U.S. 822, 831 (2003)). There is no evidence in the record, however, that casts doubt upon defendant's characterization of Dr. Thomas as "independent" or that otherwise suggests some form of bias or incentive to reach a particular conclusion. See Kalish, 419 F.3d at 508 (adhering to ordinary "arbitrary and capricious" review where the plaintiff "offered only conclusory allegations of bias" on the part of the independent physician retained by the defendant plan administrator to review the medical record); See also Esclavada v. Metro. Life Ins. Co., No. 02-75091, 2005 U.S. Dist. LEXIS 25002, at *20 (E.D. Mich. Oct. 18, 2005).
2. Vocational Evidence
This court is not persuaded by plaintiff's argument that Reliance Standard did not consider plaintiff's vocational evidence. While it may be true that vocational evidence may and should be considered in determining a claimant's occupational abilities (Cf. Rochow v. Life Ins. Co. of N. Am., 482 F.3d 860, 865-866 (6th Cir. 2007)), there is no evidence here that Reliance Standard did not consider plaintiff's vocational evidence. That evidence, namely the FCE, simply offered an opinion different from Dr. Thomas' IME, which found plaintiff capable of working.
Dr. Thomas discussed plaintiff's limitations in terms of her job. He found "no evidence of synovitis in her upper extremities including the hands." R. 190. He stated that plaintiff's "x-rays of [her] hands were normal," that she had "very little limitation on her in terms of the use of her upper extremities" and had "much less of a problem" keyboarding and with other use of her hands. R. 184, 188. Dr. Thomas noted that plaintiff worked as an accountant and that she told him the reason she could not continue to work was because of "`low back pain' and she cannot sit for long periods of time and with her rheumatoid arthritis [sic] difficulty using her hands." R. 190. It was with this knowledge that Dr. Thomas specifically stated "I see no reason why she cannot continue in her present position" (R. 189) and later stated that "it would appear initially she would have difficulty key boarding and other use of her hands. Based on what I see now this would be much less of a problem." R. 184. Clearly, Dr. Thomas understood the fundamentals of plaintiff's occupation and opined that she was capable of performing them.
3. Plaintiff's Job Description
Plaintiff's argument that the claims examiner relied on an improper job description is likewise unpersuasive. Plaintiff argues that the medical findings should have been analyzed with regard to plaintiff's specific job description provided by Big Lots. The Sixth Circuit has found that an administrator's use of the DOT definitions to determine a claimant's regular occupation is not arbitrary and capricious, but reasonable. Osborne v. Hartford Life and Acc. Ins. Co., 465 F.3d 296, 299 (6th Cir. 2006). "The word `occupation' is sufficiently general and flexible to justify determining a particular employee's `occupation' in light of the position descriptions in the [DOT] rather than examining in detail the specific duties the employee performed." Id. Thus, it was not arbitrary and capricious for Reliance Standard to rely on the DOT definitions.
4. Statement of Jody Barach
Jody Barach, Supervisor for Rehabilitation Services for Reliance Standard, prepared a memo dated December 14, 2006, citing the review of the IME addendum completed by Marianne Lubrecht, RN. That review opines "review records support limits on keyboarding, fingering, and grasping from the date of loss thru [sic] 9/06 IME." R. 153. Barach notes that she discussed the file with the nurse and confirmed that plaintiff would be restricted to occasional fine manipulation and that therefore "Balmert is precluded from performing her Own Occupation." R. 153.
Based on this last sentence, plaintiff argues that Jody Barach specifically found that plaintiff was not capable of performing her own occupation because she stated "Balmert is precluded from performing her Own Occupation"(R. 153, emphasis added), rather than stating she was precluded from performing her own occupation through September 2006. It is clear from the record, however, that Barach's opinion is based on the final review done by Lubrecht, that states plaintiff's limitations were supported "thru [sic] 9/06 IME." R. 153. It was not arbitrary and capricious for Reliance Standard to find limitations only through the date of the IME, as that was the conclusion reached by the nurse conducting the file review.
In addition, Reliance Standard's credibility is bolstered by Barach's report. Barach was specifically relying on the statement of Lubrecht, RN, BSN, an employee of Reliance. Originally, Lubrecht determined that plaintiff was capable of working, but later specifically requested an addendum from Dr. Thomas regarding whether or not plaintiff was capable of working prior to the date of the IME. The fact that Lubrecht, an employee of Reliance, sought out more information from Dr. Thomas demonstrates Reliance Standard was making every effort to accurately determine whether plaintiff was totally disabled.
In this case it is possible to offer a reasoned explanation for the Plan's decision based upon the evidence, thus the decision was not arbitrary and capricious. McDonald, 347 F.3d at 169. Under the Insuring Clause in the Plan policy, the burden is on plaintiff to "submit satisfactory proof of Total Disability." R. 18. Plaintiff argues that Reliance Standard initially wrongfully denied her claim without a physician review (Plaintiff's brief, pg. 7), but under the Plan, plaintiff bore the burden of producing sufficient evidence of her disability during the relevant period to satisfy the Plan. See Miller v. Metropolitan Life Ins. Co., 925 F.2d 979, 985-986 (6th Cir. 1991) (holding the plaintiff in an ERISA benefits case bears the burden in proving continuous disability as defined by the plan and rejecting argument that once disability benefits are conferred, the burden of proof lies with the insurance company to prove that employee can return to former employment). The Plan could reasonably conclude, based on the documents in the administrative record, that plaintiff failed to sustain this burden.
The court further concludes that the fact that Reliance Standard is both the insurer and the administrator of the claim, when weighed with the evidence as a whole, is not sufficient to render the Plan's decision arbitrary and capricious. The fact that Reliance Standard reversed its prior decision to deny benefits for the period up to Dr. Thomas' IME and granted plaintiff disability benefits for that period militates against a finding that the Plan was improperly motivated or influenced by its own interests in denying benefits in the future.
C. Attorney's Fees
Because there was no violation of ERISA in this case, plaintiff's request for attorney's fees is likewise denied.
V. CONCLUSION
Upon review of the administrative record, the court concludes that the Plan's determination is rational in light of the Plan's provisions, Yeager, 88 F.3d at 381, and that it is possible to offer a reasoned explanation for the Plan's decision based upon the evidence. McDonald, 347 F.3d at 169. Thus, the Plan's determination is not arbitrary and capricious. Id. Accordingly, defendant's motion for judgment on the administrative record (Doc. 30) is granted. Plaintiff's motion for judgment on the administrative record (Doc. 13) is denied. The clerk shall enter judgment in favor of the defendant.