Opinion
Case No. 2:01-CV-15.
January 4, 2002
ORDER
In accordance with the Opinion filed on this date, Defendant UnumProvident's Motion to Affirm ERISA
Determination (docket no. 8) is HEREBY GRANTED and its decision to terminate benefits is AFFIRMED.
Judgment is entered in favor of Defendant UnumProvident.
This case is concluded.
OPINION
Plaintiff, Dr. Douglas Soltysiak ("Dr. Soltysiak"), filed this claim in the Delta County Circuit Court on or about December 8, 2000, against Defendant, UnumProvident Corporation ("UnumProvident"), alleging a claim for benefits under a disability insurance policy issued through his employer. UnumProvident removed the case to this Court on or about January 26, 2000, pursuant to 28 U.S.C. § 1441, asserting that the claim was governed by the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001-1461. This Court has jurisdiction over this action under 28 U.S.C. § 1331, and ERISA governs the disability plan at issue. (See 9/26/00 Order, docket no. 16.) The parties have filed briefs regarding the standard of review and the information in the administrative record which supports their respective positions. The Court will treat the parties' briefs as cross-motions for judgment on the administrative record, the alternative to summary judgment in ERISA denial of benefits cases. See Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 619 (6th Cir. 1998).
Facts
Dr. Soltysiak is a licensed internist who has not practiced medicine since May 1995. On June 27, 1995, Dr. Soltysiak submitted a claim to the Paul Revere Life Insurance Company under a disability insurance policy ("the policy") received through his employer, M.C.C. Residents, and administered by UnumProvident. The policy provided that if Dr. Soltysiak was unable to perform the important duties of his occupation and was under the care of a physician, he would receive loss of income benefits. Dr. Soltysiak claimed that he was unable to work due to major depression. He was being treated by Dr. Kirk Swabash, a psychiatrist in Petoskey, Michigan. Dr. Swabash initially expressed to UnumProvident his hope that Dr. Soltysiak would eventually be able to return to work, but by February 1997, he indicated that Dr. Soltysiak would probably never be able to return to the practice of medicine. (Physician's Statements, Pl.'s Br. Opp'n Ex. 4.)
In 1997, Dr. Soltysiak submitted to numerous examinations by various psychologists and psychiatrists in order for UnumProvident to determine whether his condition kept him from performing his important job duties. In March, Dr. Paul Greilick, a clinical psychologist practicing at the same clinic as Dr. Swabash, performed a clinical interview, administered psychological testing, and reviewed Dr. Soltysiak's psychiatric records. (Greilick Rep. of 3/13/97 at 1, Pl.'s Br. Opp'n Ex. 5.) He concluded as follows:
Present psychological evaluation does reveal anxiety and depression at levels that would interfere with competent functioning with higher level tasks or high-pressure demands, such as those associated with standard medical practice. It would appear that the patient would be at risk for further emotional deterioration and probable inadequate performance in the role of a physician at this time.
The patient appears to be suffering considerable guilt and shame associated with his feelings of failure with regard to his current disability status and experiences over the past several years. Diagnostically, current evaluation supports his prior diagnosis of major depression, recurrent episode, and I would add generalized anxiety disorder at this time.
(Id. at 4.) Dr. Greilick recommended that Dr. Soltysiak continue with counseling, see a vocational rehabilitation counselor, and attempt to slowly reintroduce himself into the medical practice. (Id. at 4-5.)
Dr. David McDowell, one of UnumProvident's psychiatric consultants, reviewed Dr. Greilick's raw data and report, and he disagreed with Dr. Greilick's conclusions. (McDowell letter of 6/5/97, Appx. attached to Def.'s Br. Supp.) Dr. McDowell observed that Dr. Soltysiak's test scores suggested a possibility of "malingering", and he opined that Dr. Soltysiak was likely exaggerating his complaints. (Id.) This evaluation prompted UnumProvident to obtain an independent medical examination of Dr. Soltysiak.
In July 1997, pursuant to its rights under the policy, UnumProvident required Dr. Soltysiak to see Dr. Robb Imonen, a psychiatrist in Marquette, Michigan. After meeting with Dr. Soltysiak for an hour and reviewing his medical records and psychological tests, Dr. Imonen concluded that
It is clear that Dr. Soltysiak has a major depression and has generalized anxiety. It is also clear that this is significantly increased in times of stress and that working as an internist is stressful enough that this patient is unable to function in this capacity. . . . I believe that his [sic] patient could find some other place to practice in medicine or other work to do, but that at this time he cannot practice in his field and without some kind of collaborative approach between him and the insurance company, this will continue to be a major problem and will not be resolved. . . . As a total disabled, he is really unable to practice in medicine in his present area.
(Imonen Rep. of 8/11/97 at 3-4, Pl.'s Br. Opp'n Ex. 7.)
In August 1997, UnumProvident required Dr. Soltysiak to see Dr. Charles Schmittdiel, a psychologist also practicing in Marquette. Dr. Schmittdiel conducted an interview and administered another psychological test. He commented that Dr. Soltysiak obsessed over specific test items, suggesting a plea for help or attention to his problems, or potentially an attempt to present himself in a negative light. (Schmittdiel Rep. of 8/1/97 at 3, Pl.'s Br. Opp'n Ex. 8.) Dr. Schmittdiel concluded that the psychological profile was interpretable, and he noted that Dr. Soltysiak appeared obsessive and perfectionistic, and that he was prone to anxiety, guilt, and despair. (Id. at 4.) He reported that, "[t]his examiner would concur with this individual's current inability to practice given the symptomatology reported and review of previous records." (Id.) Based on these reports, UnumProvident continued to pay disability benefits to Dr. Soltysiak during this time.
In January 2000, Dr. Soltysiak underwent an independent medical examination by another psychiatrist, Dr. Gerald Shiener, and a psychological evaluation by Dr. William Bloom. Dr. Shiener reviewed medical records, reports from Dr. Swabash, the psychological exam administered by Dr. Schmittdiel, the medical exam by Dr. Imonen, and the psychological tests and evaluation by Dr. Bloom. (Shiener Rep. of 2/24/00 at 1, Appx. attached to Def.'s Br. Supp.) Dr. Shiener stated that he did not agree with the prior independent medical examinations that Dr. Soltysiak was unable to work. (Id. at 10-11.) In particular, Dr. Shiener noted that Dr. Soltysiak regularly worked around the house, read, pursued continuing medical education, and went hunting, and that these activities were inconsistent with a disabling depressive illness. (Id. at 10.) He stated,
I find Dr. Soltysiak to be suffering from a chronic mild form of mixed anxiety and depression that relates more to his personality style that causes him to have feelings of resentment toward his employers when he feels that they are placing unreasonable demands on him and will lead him to leave work and justify his leaving with physical complaints and emotional complaints.
I would further conclude that he has a tendency in a clinical interview and on psychological testing to overstate the degree of distress that he experiences as a result of these complaints and that some of his activities of daily living are inconsistent with a diagnosis of a sever and incapacitating form of depressive illness.
(Id. at 11.)
A consulting psychiatrist for UnumProvident, Dr. Stuart Anfang, reviewed the reports from Dr. Shiener and Dr. Bloom and concluded that Dr. Soltysiak was not disabled within the meaning of the policies. UnumProvident informed Dr. Soltysiak of its determination on April 4, 2000. (Letter from Paul Revere Ins. Co. to Dr. Soltysiak of 4/4/00 at 3, Appx. attached to Def.'s Br. Supp.) Dr. Soltysiak appealed the decision, and UnumProvident rejected the appeal after further review of Dr. Swabash's reports and records. In particular, Dr. Anfang and Dr. Shiener considered Dr. Swabash's recent progress notes indicating a condition of improved anxiety disorder and personality disorder, not major depression. (Progress Note of 4/6/00, Appx. attached to Def.'s Br. Supp.) Dr. Shiener maintained his position that Dr. Soltysiak could work as a physician. (Letter from Shiener to Carlson of 8/24/00, Appx. attached to Def.'s Br. Supp.) On September 25, 2000, UnumProvident informed Dr. Soltysiak of its final decision to terminate disability benefits. (Letter from Blais to Dr. Soltysiak of 9/25/00, Appx. attached to Def.'s Br. Supp.)
Discussion
I. Standard of Review
The issue presented in this case is whether Dr. Soltysiak is entitled to disability benefits. See 29 U.S.C. § 1132(a)(1)(B). A plan administrator's denial of benefits under an ERISA plan is reviewed de novo "unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 956-57 (1989); see also Perez v. Aetna Life Ins. Co., 150 F.3d 550, 555 (6th Cir. 1998) (en banc). The de novo standard of review applies to both the factual determinations and legal conclusions of the plan administrator. See Wilkins, 150 F.3d at 613 (6th Cir. 1998).
Section 1132(a)(1)(B) provides:
(a) Persons empowered to bring a civil action. A civil action may be brought —
(1) by a participant or beneficiary —
* * *
(B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan. . . .29 U.S.C. § 1132(a)(1)(B).
Where the plan clearly confers discretion upon the administrator to determine eligibility or construe the plan's provisions, the determination is reviewed under the "arbitrary and capricious" standard.Wells v. United States Steel Carnegie Pension Fund. Inc., 950 F.2d 1244, 1248 (6th Cir. 1991). UnumProvident contends, and Dr. Soltysiak concedes, that the policy language confers such discretion and that the arbitrary and capricious standard applies. (Pl.'s Br. Supp. at 9.) Based on the language "satisfactory proof of loss" in the policy at issue and the court's holding in Perez that similar language means that the insurer has discretion to make benefits determinations, this Court agrees. See Perez, 150 F.3d at 556-58.
The arbitrary and capricious standard "`is the least demanding form of judicial review of administrative action. When it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary or capricious.'" Davis v. Kentucky Fin. Cos. Retirement Plan, 887 F.2d 689, 693 (6th Cir. 1989) (citation omitted) (quoting Pokratz v. Jones Dairy Farm, 771 F.2d 206, 209 (7th Cir. 1985)); see also Miller v. Metropolitan Life Ins. Co., 925 F.2d 979, 984 (6th Cir. 1991) (noting that administrators' decisions "are not arbitrary and capricious if they are `rational in light of the plan's provisions'") (quoting Daniel v. Eaton Corp., 839 F.2d 263, 267 (6th Cir. 1988)). In applying this standard, the Court must defer to the administrator's interpretation when the plan vests the administrator with discretion to interpret the plan; an administrator's determination will be overturned only upon a showing of internal inconsistency in the plan or bad faith. Davis, 887 F.2d at 695. The Court's review is limited to the administrative record that was before the plan administrator.Wilkins, 150 F.3d at 615.
II. Denial of Benefits
Dr. Soltysiak asserts that the decision to terminate loss of income benefits was unreasonable because it ignored the opinions of his treating physician, Dr. Swabash, and those doctors who concluded that his depression prevented him from working as an internist. UnumProvident responds by arguing that a treating physician's opinion is not entitled to deference in ERISA cases and by noting that Dr. Greilick, Dr. Imonen, and Dr. Schmittdiel reached their conclusions in 1997, three years before UnumProvident decided to terminate benefits. UnumProvident asserts that its decision was not arbitrary and capricious because it was reasonably based on the more recent opinions of Dr. Shiener and Dr. Bloom, and it points out that Dr. Swabash's notes from April 2000 indicate that Dr. Soltysiak no longer suffered from major depression but improved anxiety disorder and personality disorder.
A. The "Treating Physician Rule"
In social security disability determinations, greater weight is to be given to a treating physician's opinion than the opinions of other doctors. 20 C.F.R. § 404.1527(d)(2). This rule was established because a treating physician is employed to cure not merely to evaluate, has typically been treating a patient over a long period of time, and has a greater opportunity to know the patient than an examining physician who sees the patient on one occasion and whose reports are less thorough.Id. The Sixth Circuit has not ruled, however, on the applicability of the treating physician rule to ERISA cases. Other circuits are split.Compare Regula v. Delta Family-Care Survivorship Plan, 266 F.3d 1130, 1139 (9th Cir. 2001) (holding that the same rationale for the treating physician rule in social security cases applies to ERISA cases as well),Donaho v. FMC Corp., 74 F.3d 894, 901 (8th Cir. 1996) (applying the rule in disability case under ERISA), with Sheppard Enoch Pratt Hosp., Inc. v. Travelers Ins. Co., 32 F.3d 120, 126 (4th Cir. 1994) (rejecting the treating physician rule when an ERISA plan administrator is making a determination about the medical necessity of treatment); Salley v. E.I. DuPont de Nemours Co., 966 F.2d 1011, 1016 (5th Cir. 1992) (expressing "considerable doubt about holding the rule applicable in ERISA cases");Jett v. Blue Cross Blue Shield of Ala., Inc., 890 F.2d 1137, 1140 (11th Cir. 1989) (stating that the rule is not applicable to determinations under ERISA-governed plan where treating physician has an economic interest in benefits being paid). One court in this district declined to apply the rule to an ERISA case because the Sixth Circuit has not found that the rule is proper in the ERISA context and because of the potential conflict of interest a treating physician has in benefitting from the continuation of benefits. Needham v. CIGNA Group Ins., No. 1:00-CV-76, 2001 WL 765902, *6 (W.D.Mich. June 22, 2001).
This conclusion has been undermined in subsequent 8th Circuit decisions which note the extreme circumstances at issue in Donohoe, where two treating physicians and an examining physician disagreed with the reviewing physician's conclusion. Delta Family-Care Disability and Survivorship Plan v. Marshall, 258 F.3d 834, 842 (8th Cir. 2001);Fletcher-Merrit v. NorAm Energy Corp., 250 F.3d 1174, 1180 n. 3 (8th Cir. 2001).
There are persuasive arguments on both sides of the issue. On the one hand, the definition of "disability" and the procedures for determining a disability are different in the social security context than under ERISA. See Marsteller v. Life Ins. Co. of N. Am., 24 F. Supp.2d 593, 597 (W.D.Va. 1998). The Social Security Administration has developed an elaborate five-step procedure for determining whether a claimant is disabled, whereas a disability determination under ERISA is subject almost entirely to the language of the policy. Regula, 266 F.3d at 1150 (Brunetti, J., dissenting). Moreover, social security regulations explicitly mandate the treating physician rule as part of its scheme, whereas no such regulation has been adopted for ERISA determinations.Id. Finally, courts have identified a potential conflict of interest for a physician who stands to gain from a determination that benefits are to be paid. Needham, 2001 WL 765902, at *6.
On the other hand, a treating physician's opinion is likely to be more thorough given a long-term relationship with the patient. Just as in the social security context, giving greater weight to this opinion would likely increase the accuracy of the determination whether benefits should be paid. See Regula, 266 F.3d at 1139. Moreover, applying the rule to ERISA cases would encourage the plan administrator to conduct a thorough review of the record and produce specific, legitimate reasons for rejecting the treating physician's opinion. See id. at 1140-41. Finally, a treating physician dealing with disability payments rather than health insurance benefits is not faced with a conflict of interest because in disability cases, the payment is made directly to the beneficiary, whereas in a health insurance benefits case, the payment is made to the treating physician, thus creating an incentive for the treating physician to ensure that benefits are paid. Id. at 1143. The conflict in disability cases is with the examining doctors hired by the plan administrator who have an incentive to conclude "not disabled" in order to preserve their consulting arrangement. Id.
The dissenting judge in Regula disagreed, noting that, "a disability finding by a treating physician almost guarantees another visit by that claimant," thus creating a conflict of interest there as well. Id. at 1152 (Brunetti, J., dissenting).
The Court agrees with the majority of circuits that the treating physician rule is inapplicable to ERISA cases because of the potential conflict of interest and the differences between ERISA and social security. Thus, in the absence of Sixth Circuit mandate, the Court is not inclined to apply the treating physician rule in this ERISA case. A decision on this issue is not outcome determinative, however, because even if the treating physician rule did apply, the administrator's decision here was not arbitrary and capricious. As one court has noted, "[t]he rule is not that a treating physician's opinion trumps all other evidence but that a court must give it appropriate weight." Conley v. Pitney Bowes, 176 F.3d 1044, 1049 (8th Cir. 1999).
The record shows that UnumProvident gave sufficient weight to the opinion of Dr. Soltysiak's treating physician, Dr. Swabash. First, Dr. Shiener based his report and conclusions in part on Dr. Soltysiak's medical records and Dr. Swabash's reports. The fact that Dr. Shiener's analysis differed from Dr. Swabash's opinion does not render the decision arbitrary. Second, Dr. Swabash's progress notes of April 6, 2000, reviewed in the administrative appeal, state that Dr. Soltysiak suffered from improved anxiety disorder and personality disorder. These notes indicate that Dr. Soltysiak's depression was either no longer present or at least subsiding, and they suggest that Dr. Swabash's earlier opinion that Dr. Soltysiak could not work was no longer pertinent, or at least worthy of some doubt. Finally, after reviewing Dr. Swabash's notes, Dr. Shiener and Dr. Anfang both concluded that Dr. Swabash's notes did not change their opinion that Dr. Soltysiak was no longer totally disabled.
Therefore, UnumProvident's decision to terminate Dr. Soltysiak's benefits was not arbitrary and capricious simply because of its decision not to follow Dr. Swabash's opinion that Dr. Soltysiak was unable to work.
B. The Opinions of Other Doctors
Dr. Soltysiak's other objection to UnumProvident's decision to terminate benefits is that it disregarded the opinions of Dr. Imonen, Dr. Greilick, and Dr. Schmittdiel, who concluded that Dr. Soltysiak was disabled with major depression and unable to practice medicine. As UnumProvident correctly points out, these opinions were formulated in 1997 and are irrelevant to a decision made in 2000 concerning Dr. Soltysiak's ability to work. Three years passed after these doctors had concluded that Dr. Soltysiak's depression kept him from practicing medicine, and UnumProvident paid benefits during this time, presumably based on these opinions. UnumProvident's decision to require Dr. Soltysiak to submit to further examination in 2000 was not arbitrary or capricious. The plan gives UnumProvident that right, and it makes sense that after a time of potential healing and recovery that it would choose to reevaluate Dr. Soltysiak's claim. This is especially true given that Dr. McDowell and Dr. Schmittdiel both indicated that Dr. Soltysiak might be overstating his problems and attempting to present himself in a negative light. It was not whimsical or unreasonable for UnumProvident to refuse to rely on stale opinions from three years past in making its determination and instead follow the thorough and recent evaluations of Dr. Shiener, Dr. Bloom, and Dr. Anfang.
Conclusion
UnumProvident has offered a reasoned explanation, based on the record, for its decision to terminate benefits. Therefore, the result is not arbitrary or capricious, and the Court will affirm the ERISA determination and enter judgment in favor of UnumProvident.
An order consistent with this opinion will be entered.