Summary
using the Diagnostic and Statistical Manual of Mental Disorders to interpret the administrative record
Summary of this case from Allen v. AT&T Disability Income ProgramOpinion
No. 3:03-0158
November 21, 2003
Margaret Louise Behm, Dodson, Parker, Dinkins Behm, P.C., Nashville, TN, for JEFFERY A. GOUGH pltf
Elizabeth A. Alexander, Lieff, Cabraser, Heimann Bernstein, LLP, Nashville, TN, for JEFFERY A. GOUGH pltf
John J. Heflin, III, Kenneth P. Jones, Bourland, Heflin, Alvarez Minor, PLC, Memphis, TN, for METROPOLITAN LIFE INSURANCE COMPANY deft
ORDER
For the reasons explained in the Memorandum filed contemporaneously herewith, the Court rules as follows:
1. Plaintiff's Motion for Judgment on the Administrative Record (Docket Entry No. 8) is hereby DENIED;
2. Defendant's Motion for Judgment on the Administrative Record (Docket Entry No. 11) is hereby GRANTED;
3. Plaintiff's Motion for Judicial Notice (Docket Entry No. 28) is hereby GRANTED; and
4. Defendant's Motion to Strike Plaintiff's Supplemental Motion for Judicial Notice is hereby DENIED (Docket Entry No. 30).
The decision of the Plan Administrator is AFFIRMED and judgment is hereby entered in favor of Defendant.
It is so ORDERED.
MEMORANDUM
Presently pending before the Court are the following motions: (1) Plaintiff's Motion for Judgment on the Administrative Record (Docket Entry No. 8); (2) Defendant's Motion for Judgment on the Administrative Record (Docket Entry No. 11); (3) Plaintiff's Motion for Judicial Notice (Docket Entry No. 28) and (4) Defendant's Motion to Strike Plaintiff's Supplemental Motion for Judicial Notice (Docket Entry No. 30).I. PROCEDURAL HISTORY
Plaintiff Jeffery Gough formerly worked for Atmos Energy Corporation as a computer mapping technician and was a participant in the Group Long Term Disability Plan for Employees of Atmos Energy Corporation Welfare Benefit Plan ("the Plan"). Defendant Metropolitan Life Insurance Company ("Met Life") insures the Plan and serves as the claims fiduciary. Beginning in July 1999, Plaintiff suffered from a right temporal lobe epilepsy. Plaintiff last worked on August 24, 1999, and he applied for and obtained short term disability benefits effective August 25, 1999. After completing an eligibility period of 180 days of continuous disability, Plaintiff received long term disability benefits from Defendant starting on February 21, 2000. On May 28, 2002, Defendant concluded a review of Plaintiff's claim for long term disability benefits and terminated his claim effective June 20, 2002.
On September 24, 2002, Plaintiff sought a review of Defendant's decision to deny his benefits, thereby exhausting his remedies under the Plan. On November 18, 2002, Defendant upheld its prior decision to deny Plaintiff's claim for long term disability benefits on the basis that Plaintiff had not met the Plan's definition of disability and had failed to prove that he was under appropriate care and treatment of a doctor. If Defendant had not denied his benefits, Plaintiff would have been entitled to receive long term disability benefits through September 20, 2017.
On February 24, 2003, Plaintiff initiated this lawsuit against Defendant, alleging that Defendant's conduct violated the Employee Retirement Security Income Act ("ERISA"), 29 U.S.C. § 1132. Plaintiff thereafter filed his Motion for Judgment on the Administrative Record (Docket Entry No. 8), contending that Defendant's decision to terminate his long term disability benefits was arbitrary and capricious because (1) Defendant operated under a conflict of interest in determining whether to award benefits; (2) Defendant failed to consider all of the evidence available to it in making the decision to deny Plaintiff's claim; (3) the opinions of Plaintiff's treating physicians should be accorded more weight than the opinions of non-treating physicians; and (4) the evidence establishes that Plaintiff is disabled under the terms of the Plan.
Defendant, on the other hand, maintains that its decision to deny Plaintiff's claim for disability benefits under the Plan was reasoned and supported by the evidence in the Administrative Record. According to Defendant, Plaintiff submitted no evidence which proved that he met the Plan's definition of disability and that he was under the appropriate care and medical treatment of a doctor.
II. PRELIMINARY ISSUES
Before adjudicating the parties' cross Motions for Judgment on the Administrative Record, the Court will resolve the preliminary issues presented by Plaintiff's Supplemental Motion for Judicial Notice (Docket Entry No. 28) and Defendant's Motion to Strike Plaintiff's Supplemental Motion for Judicial Notice (Docket Entry No. 30). Plaintiff asks that the Court take judicial notice of the criteria for his diagnosis under the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders Revised Text (4th Ed. 2000)("DSM-IV-TR"). Plaintiff contends that the contents of the DSM-IV-TR are relevant to the Court's determination of whether Defendant's denial of benefits was arbitrary and capricious because Dr. Candice Burger, one of Plaintiff's physicians, diagnosed Plaintiff with two mental conditions under this manual and Defendant unreasonably failed to consider that diagnosis in making its decision.
The Magistrate Judge has denied Plaintiff's request to take judicial notice of the Diagnostic and Statistical Manual of Mental Disorders ("manual") on multiple occasions. (Docket Entry Nos. 18, 26, 29). However, in so doing, the Magistrate Judge specifically noted that he did not intend to preclude the District Judge from considering evidence that he might deem relevant because he would be in a better position to determine the relevance of the manual to Plaintiff's case. (Docket Entry Nos. 26 at 2, 29 at 1). In his Order of September 8, 2003, the Magistrate Judge permitted the parties to file supplemental briefs concerning "the psychiatric issues" and the relevancy of the manual for the District Judge's consideration. (Docket Entry No. 26). Defendant's current Motion to Strike is premised upon its argument that Plaintiff improperly filed a supplemental motion pertaining to the manual rather than a supplemental brief supporting his position. (Docket Entry No. 30). The Court need not become entangled in the technicalities of how and why Plaintiff entitled his latest submission. Instead, the Court will focus on the substance of the instant dispute between the parties — whether the Court should consider the manual in evaluating Defendant's decision to terminate Plaintiff's long term disability benefits.
Plaintiff initially requested that the Court consider theDiagnostic and Statistical Manual of Mental Disorders (4th Ed. 1994)("DSM-IV"). Plaintiff later modified his request, noting that it would be more appropriate for the Court to review the revised text version of the manual. The DSM-IV-TR had been published at the time of Dr. Burger's diagnosis. (Docket Entry No. 28 n. 1).
Defendant maintains that the Court should not consider any portion of the DSM-IV-TR for various reasons. Although Defendant posits that the contents of a diagnostic manual are not an appropriate subject for judicial notice, the Sixth Circuit Court of Appeals has taken judicial notice of the Diagnostic and Statistical Manual of Mental Disorders as an appropriate standard for diagnosing mental disorders. See United States v. Johnson, 979 F.2d 396, 401 (6th Cir. 1992) (taking judicial notice of an earlier edition of the DSM); see also United States v. Cantu, 12 F.3d 1506, 1509 n. 1(9th Cir. 1993) (taking judicial notice of a condition listed in the DSM-IV). And, while the DSM-IV-TR evidently was not considered by Defendant's claims fiduciary in making its determination to deny Plaintiff's claim for disability benefits, it is appropriate for the Court to review the manual in light of Plaintiff's contention that Defendant ignored Dr. Burger's diagnosis under the manual's criteria when making its decision to deny benefits to Plaintiff.
The Administrative Record includes print-outs of information from various Internet websites including "Yahoo! Health" on topics such as epilepsy and photosensitivity caused by seizures. (AR 248-58). Because Defendant included these pages, but did not include copies of pages from the DSM-IV-TR, the Court infers that Defendant did not consider the DSM-IV-TR in evaluating Plaintiff's claim.
Defendant correctly contends that it is not the role of the Court to use the DSM-IV-TR to diagnose medical conditions. The Court will reference the DSM-IV-TR only insofar as it is necessary to understand and to determine the reasonableness of Defendant's decision to deny Plaintiff's claim for long term disability benefits. For the reasons explained above, Plaintiff's Supplemental Motion for Judicial Notice (Docket Entry No. 28) shall be GRANTED, and Defendant's Motion to Strike (Docket Entry No. 30) shall be DENIED. The Court hereby takes judicial notice of the contents of the American Psychiatric Association'sDiagnostic and Statistical Manual of Mental Disorders Revised Text (4th Ed. 2000) for purposes of adjudicating the parties' cross Motions for Judgment on the Administrative Record.
III. ADJUDICATION OF ERISA CASES
The Sixth Circuit Court of Appeals has ruled that summary judgment procedures are inapposite to ERISA actions to recover benefits and, thus, should not be utilized in their disposition. Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 619 (6th Cir. 1998). The Court found that, because a district court should not adjudicate an ERISA action as if it were conducting a standard bench trial, the idea of determining whether there is a genuine issue of material fact for trial would make little sense. Id. at 618-19.The Court offered guidance to the district courts by identifying certain steps to employ in adjudicating an ERISA action. As to the merits of the claim, the court should conduct a "de novo" or "arbitrary and capricious" review and render findings of fact and conclusions of law accordingly. In so doing, the court may consider the parties' contentions concerning the proper analysis of the evidence contained in the Administrative Record but may not consider any evidence not presented to the plan administrator unless that evidence is offered in support of a procedural challenge to the administrator's decision, such as an alleged lack of due process afforded by the administrator or alleged bias on its part. Id. at 619. Accordingly, in ruling on the parties' cross Motions for Judgment on the Administrative Record, the Court shall render findings of fact and conclusions of law.
III. FINDINGS OF FACT
The Administrative Record ("AR") reveals the following facts: Plaintiff Jeffery A. Gough was hired by Atmos Energy Corporation ("Atmos") on or about May 1, 1979. (AR 216). At Atmos, Plaintiff held the position of computer mapping technician. (Id.) Through his employment, Plaintiff was a participant in a group long term disability plan for which Defendant MetLife serves as claims fiduciary and is responsible for reviewing claims for the purpose of approving, adjusting, or denying benefits. (AR 29). Defendant also insures the Plan. (AR at 30).To be eligible for long term disability benefits under the terms of the Plan, a participant must show that he has a "Disability," which the Plan defines as follows:
"Disabled" or "Disability" means that, due to sickness, pregnancy or accidental injury, you are receiving Appropriate Care and Treatment from a Doctor on a continuing basis; and
1. during your Elimination Period and the next 24 month period, you are unable to earn more than 80% of your Predisability Earnings or Indexed Predisability Earnings at your Own Occupation from any employer in your Local Economy; or
2. after the 24 month period, you are unable to earn more than 50% of your Indexed Predisability Earnings from any employer in your Local Economy at any gainful occupation for which you are reasonably qualified taking into account your training, education, experience and Pre-disabi1ity Earnings.
Your loss of earnings must be a direct result of your sickness, pregnancy or accidental injury. Economic factors such as, but not limited to, recession, job obsolescence, pay cuts and job-sharing will not be considered in determining whether you meet the loss of earnings test.
(AR 10).
In order to be eligible for long term disability benefits, a participant also must provide Defendant with documentation of his disability, as follows:
BENEFITS CHECKLIST
In order to receive benefits under This Plan, you must provide to us at your expense, and subject to our satisfaction, all of the following documents. These are explained in this Certificate. Initial submission of these documents should be made no later than the 12th week following your original date of disability.
• Proof of Disability.
• Evidence of continuing Disability.
• Proof that you are under the Appropriate Care and Treatment of a Doctor throughout your Disability.
• Information about Other Income Benefits.
• Any other material information related to your Disability which may be requested by us.
(AR 6).
Beginning in July 1999, Plaintiff suffered from a right temporal lobe epilepsy. (AR 49). Plaintiff's last day of actual work was August 25, 1999. (AR 93). Plaintiff applied for and received short term disability benefits from August 25, 1999 until February 20, 2000. (AR 234). As the date on which Plaintiff's short term disability benefits would expire approached, Defendant began to assess whether Plaintiff was eligible for long term disability benefits under the terms of the Plan. (AR 225). In so doing, Defendant considered the August 31, 1999 neuropsychological evaluation performed by Gary S. Solomon, Ph.D ("Dr. Solomon"), a clinical neuropsychologist. (AR 33-39). Dr. Solomon noted that Plaintiff's chief complaints were memory and concentration problems secondary to his seizure disorder. (AR 33). Dr. Solomon also noted that Plaintiff's scores on cognitive tests suggested "suboptimal effort" by Plaintiff and that his test results "are of questionable technical satisfaction" due to malingering. (AR 38). Indeed, Dr. Solomon concluded, "I seriously doubt that the bulk of his cognitive problems are in fact organic in nature." (Id.)
The DSM-IV-TR defines "malingering" as "the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution, or obtaining drugs." DSM-IV-TR at 683.
Defendant also considered a number of other medical reports, including the October 14, 1999 Attending Physician's Statement by Dr. Bassel Abou-Khalil ("Dr. Abou-Khalil") in which Dr. Abou-Khalil stated that Plaintiff's primary diagnosis was "epilepsy, intractable" and that Plaintiff was unable to perform job duties "because of recurrent seizures, resistant to medical therapy." (AR 40-43).
Plaintiff's December 6, 1999 EEC report declared: "[a]bnormal EEG because of the presence of focal, right temporal, rhythmic discharges associated with clinical seizures. This is consistent with ictal expression of a partial epilepsy with right temporal focus." (AR 52).
On December 16, 1999, Plaintiff had an "[e]ssentially negative MRI of the brain." (AR 51).
Dr. Abou-Khalil's December 30, 1999 Attending Physician's Statement stated that Plaintiff's diagnosis was "intractable epilepsy" and that Plaintiff could not perform his job duties because of "repeated epileptic seizures." (AR 44-48).
On February 8, 2000, Defendant advised Plaintiff that it had approved his claim for long term disability benefits under the "Own Occupation" definition of Disability in the Plan, with long term benefit payments to begin on February 21, 2000. (AR 211-14).
On July 25, 2000, Plaintiff underwent an operation to place electrodes in his brain. (AR 60). On August 1, 2000, Plaintiff underwent an inferior frontal gyrectomy and lobectomy at Vanderbilt University to try to relieve his seizures. (AR 65).
On September 14, 2000, Dr. Peter E. Konrad reported that Plaintiff had not experienced any seizures since surgery and "had done quite well. . . . Excellent outcome so far following right temporal lobectomy." (AR 68).
On October 18, 2000, Dr. Abou-Khalil reported "[e]xcellent complete seizure control following right temporal lobectomy. I am very pleased with the outcome so far." However, Plaintiff complained to Dr. Abou-Khalil of memory difficulties, blurred and double vision, and unsteadiness, although Plaintiff reported not having experienced these problems "in a while now." (AR 71).
On September 5, 2001, Dr. Abou-Khalil saw Plaintiff in his office for the first time in seven months. Plaintiff reported no seizures since the surgery, but complained of episodes of memory loss and confusion. Dr. Abou-Khalil recommended repeat neuropsychological testing and a two-hour video EEG test. (AR 74).
Dr. Abou-Khalil's Attending Physician's Statement dated September 7, 2001, indicated that Plaintiff reported "[i]ntermittent periods of confusion, severe memory loss/amnesia episodes." He referred Plaintiff to a psychiatrist for evaluation. He assessed Plaintiff's Psychological Function as Class 3, meaning [p]atient is able to engage in only limited stress situations and engage in only limited interpersonal relations (moderate limitations)." (AR 72-73).
On September 10, 2001, Plaintiff was referred by his treating physician to James S. Walker, Ph.D ("Dr. Walker"), a clinical neuropsychologist at Vanderbilt Forensic Psychiatry. (AR 55). Dr. Walker performed a neuropsychological evaluation of Plaintiff and reported that some of Plaintiff's test results might indicate malingering:
ACTIVITIES OF DAILY LIVING
Mr. Gough says he spends much time associating with close friends. He often helps them make improvements to their homes. He also plays a lot of chess. He said he is "heavy into computers," consistent with his training. He does his own chores and shops without difficulty. He has a driver's license and drives. He says that he needs his ex-wife to help him manage his finances. He said he is very active in church and in private religious activities.
BEHAVIOR OBSERVATIONS
. . . His memory for recent events was excellent, as evidenced by his detailed accounts of recent happenings and his excellent memory of testing tasks and other events during the day's testing.
TEST RESULTS
Mr. Gough was administered tests designed to detect underperformance on cognitive testing. On the more obvious of the tests he scored well, but on subtle tests of malingering it was apparent that he was grossly underperforming in both verbal and visual memory domains. As a result, his test results should be viewed as a minimal estimate of his ability . . ..
Impression: Mr. Gough's neuropsychological test performance today was marred today by very poor effort, at time approaching below-chance levels on forced-choice memory testing. . . . He reported odd spells of disorientation, and it not clear what these are. . . .
Despite his odd spells, he continues to live independently, shop, use computers extensively, perform house repairs, and play chess with only episodic difficulties reported.
(AR 75). Dr. Walker recommended that Plaintiff be referred for psychiatric management "as his symptoms need to be monitored on a long term basis." (AR 79).
On September 13, 2001, Plaintiff had a two-hour EEG-CCTV study with a result of "normal EEG." (AR 80).
On October 22, 2001, Defendant advised Plaintiff that it was reviewing whether he met the change in definition of "Disability" under the Plan that would occur on February 21, 2002 (from "own occupation" for the first 24 months to "any occupation"). (AR 185).
On January 7, 2002, Dr. Abou-Khalil's notes indicate that he saw Plaintiff in his office for the first time in four months and that Plaintiff had "[g]ood seizure control, but Mr. Gough appears to be nonfunctional because of memory problems. It is quite possible that mood difficulties and anxiety are contributing to his disability." (AR 81). Dr. Abou-Khalil reported that he was considering changing Plaintiff's medication to one that "seems to have less cognitive side effects and to be generally better for memory and cognition." (AR 81-82).
On March 12, 2002, Gary P. Greenhood, M.D. ("Dr. Greenhood"), a consultant retained by Defendant who is certified by the American Board of Internal Medicine and in Infectious Diseases, reviewed Plaintiff's records and provided a Physician Consultant Review to Defendant. (AR 178-80). Dr. Greenhood did not examine Plaintiff. (AR 178). He concluded that there was no objective basis for Plaintiff's symptoms and that Plaintiff did not have any work-related restrictions. (AR 179).
A second consultant, John P. Shallcross, Psy.D. ("Dr. Shallcross"), a clinical psychologist, was retained by Defendant to complete a Physician Consultant Review on April 29, 2002. (AR 170-171). Like Dr. Greenhood, Dr. Shallcross did not examine Plaintiff. (AR 170). Dr. Shallcross concluded that [i]t does not appear that this claimant lacks work capacity." (AR 172). In arriving at this conclusion, Dr. Shallcross relied heavily on Plaintiff's testing performance. (AR 171-72). He also relied on findings by Drs. Walker and Greenhood. (AR 171). Dr. Shallcross noted that Plaintiff "was apparently referred for a psychiatric evaluation, but there is no evidence in the file that claimant saw a psychiatrist." (AR 172).
On May 16, 2002, Defendant had a Transferable Skills and Labor Market Analysis performed by Janet C. Clifton, CDMS, CCM, a vocational rehabilitation specialist. Her report concluded that Plaintiff had transferable skills based on past and current work experience as a computer mapping technician and real estate agent, and Plaintiff had the ability to work at the sedentary to light level of physical demand. According to Ms. Clifton, Plaintiff had the capacity to work as an engineering assistant, drafter, building consultant, real estate sales agent, electrical drafter or civil drafter, all of which were available occupations in the Brentwood, Tennessee area. (AR 139-65).
On May 28, 2002, Defendant terminated Plaintiff's long term disability benefits effective June 20, 2002. (AR 135-38). Defendant's decision was based on a number of specific findings: (1) Plaintiff no longer meets the second definition of disability under the Plan as Plaintiff is not unable to perform any occupation (AR 136); (2) there is no reliable evidence offered that Plaintiff's memory or concentration is significantly impaired (Id.); and (3) Plaintiff has the education and skills to work at other occupations which are available in his geographic area (AR 137).
On August 5, 2002, Plaintiff appealed Defendant's decision, thereby exhausting his remedies under the Plan. (AR 129-30). In his appeal, Plaintiff provided additional evidence to Defendant for its review. He provided a Psychosocial Evaluation by Dr. Candice Burger, Ph.D ("Dr. Burger"), at the Vanderbilt Bill Wilkerson Center. (AR 19, 85). In addition to reviewing Plaintiff's medical records, Dr. Burger interviewed Plaintiff. (Id.) She also conducted a telephone interview with Plaintiff's former wife and received information from Plaintiff's brother by letter. (Id.) Dr. Burger found:
Based on my evaluation, the knowledge that Mr. Gough underwent right temporal lobectomy after a prolonged period of intractable seizures, evidence from collateral informants, and impressions of his neurologist, I do not believe that Mr. Gough is functioning near his preinjury level of performance. He experiences particular problems in memory function and serious emotional and behavioral difficulties. I do not believe that he could work in most normal environments. If he were to work he would require a situation in which he could work on projects for a few minutes at a time and take as many breaks as necessary to manage his level of frustration. He would require some supervision to stay on task and the environment would have to be tolerant of emotional outbursts, anger and suspiciousness. I believe the only appropriate situation for him at this time would be a sheltered workshop for disabled individuals.
(AR 83). Using the DSM-IV-TR, Dr. Burger made the following diagnosis:
DIAGNOSIS:
Axis I: R/O Mood disorder due to head injury, 293.83
R/O Major depression with psychotic features, 296.24
Axis II: deferred
Axis III: deferred
Axis IV: severe-financial, legal, employment, medical insurance
Axis V: 45
(AR 87). Dr. Burger also completed an assessment of Plaintiff's ability to do work-related activities. She determined that Plaintiff has a "marked" ability to:
1. Understand and remember. [Mr. Gough has] problems comprehending and using directions;
2. Sustain concentration and persistence. [He has] significant interpersonal conflict in even superficial social interactions;
3. Maintain social interaction. [Mr. Gough has] anger and suspicion.
(AR 84). Dr. Burger addressed the concerns of Dr. Walker that Plaintiff's test results could indicate malingering. She noted that the results of those tests were not provided, and thus, their significance could not be determined. (AR 83, 88). She further noted that "in all clinical populations (e.g. brain injured; Alzheimer's disease) some individuals made errors that would be considered as evidence of malingering." (AR 83). Dr. Burger stated that the test results with which she had been provided seemed "inconsistent with a desire to `look bad' on testing." (Id.)
In support of his appeal, Plaintiff also submitted a letter dated July 20, 2002, from Dr. Abou-Khalil which stated that "[a]lthough [Mr. Gough's] surgery has made him seizure free, his memory and concentration are significantly impaired. He has been unable to work in any gainful employment given his condition." (AR 132).
Plaintiff also informed Defendant that on September 15, 2002, Plaintiff was granted Social Security disability benefits by an administrative law judge ("ALJ"). (AR 107-110). The ALJ concluded that Plaintiff had been disabled since August 30, 1999. (AR 109). The ALJ noted that Dr. Walker and another physician, Dr. Evelyn Davis, had rendered professional opinions adverse to Plaintiff's claim of disability under the Social Security Act. (AR 109).
On October 15, 2002, Defendant hired Dr. Mark Schroeder, M.D. ("Dr. Schroeder"), to conduct a third Physician Consultant Review. (AR 96-98). Dr. Schroeder is a Diplomate of the American Board of Psychiatry and Neurology. (Id.) He did not examine Plaintiff. (AR 96-97). He concluded:
The file does not support that the employee, as of 6/20/02, showed evidence of psychiatric impairments sufficient to preclude him from performing the essential duties of "any occupation". The record contains sparse self- reported symptoms of anxiety and depression, and "spells" or episodes of self-reported confusion and memory problems. No thorough psychiatric or psychological evaluation is performed and, in the evaluation in [sic] included, no evidence is presented that the employee suffers from a DSM-IV-TR psychiatric disorder. Both neuropsychological evaluations found evidence of suboptimal performance. The report by Dr. Walker specifically indicated concerns about malingering, and anti-social personality. Neither Physician Consultant Review found evidence of impairment due to seizures or psychiatric disorder.
Therefore, the record does not substantiate the existence of a psychiatric impairment severe enough to preclude the employee from performing the essential duties of "any occupation". Information that would be relevant to this claim would be a thorough mental health evaluation and, if indicated, a record of ongoing treatment from a mental health professional.
(AR 98).
On November 18, 2002, Defendant upheld its previous decision to terminate Plaintiff's long term disability benefits. (AR 92). Defendant's decision was based on its findings that (1) Plaintiff's records contain no objective evidence of any functional impairment or disabling condition that would render him unable to work at any gainful occupation for which he is reasonably qualified; and (2) Plaintiff has not provided evidence of continued disability and shown that he is receiving "Appropriate Care and Treatment from a Doctor on a continuing basis." (AR 94).
IV. CONCLUSIONS OP LAW
A. Determining the Standard of ReviewThe Supreme Court has held that a denial of benefits challenged under ERISA "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." Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). The language of the plan determines whether the Court must apply the arbitrary and capricious standard of review or whether the Court must review the determination de novo. If the language of the plan gives the plan administrator discretionary authority to determine eligibility for benefits or to construe plan terms, the highly deferential arbitrary and capricious standard applies. Id. While "magic words" are unnecessary to vest discretion in the plan administrator and trigger the arbitrary and capricious standard of review, this Circuit has consistently required that a plan contain "a clear grant of discretion [to the administrator] to determine benefits or interpret the plan." Wulf v. Quantum Chem. Corp., 26 F.3d 1368, 1373 (6th Cir. 1994).
The parties agree that the appropriate standard of review for this case is the arbitrary and capricious standard. The relevant Plan language provides that:
MetLife in its discretion has authority to interpret the terms, conditions, and provisions of the entire contract.
(AR 01).
In carrying out their respective responsibilities under the Plan, the Plan administrator and other Plan fiduciaries shall have discretionary authority to interpret the terms of the Plan and to determine eligibility for an entitlement to Plan benefits in accordance with the terms of the Plan. Any interpretation or determination made pursuant to such discretionary authority shall be given full force and effect, unless it can be shown that the interpretation was arbitrary and capricious.
(AR 29). This language clearly provides discretionary authority to Defendant to interpret the Plan and to assess claims for plan benefits. Accordingly, the Court finds that the arbitrary and capricious standard of review applies to Defendant's denial of benefits.
B. Application of the Appropriate Standard of Review
In applying this deferential standard, the Court "must decide whether the Plan Administrator's decision was rational in light of the plan's provisions." Smith v. Ameritech, 129 F.3d 857, 863 (6th Cir. 1997) (internal quotations and citations omitted). Stated differently, "[w]hen it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary and capricious."Davis v. Ky. Fin. Cos. Ret. Plan, 887 F.2d 689, 693 (6th Cir. 1989) (internal quotations and citation omitted).
Plaintiff urges that Defendant's decision was arbitrary and capricious for a number of reasons. First, Plaintiff contends that because Defendant has a dual role in administering and funding the Plan, Defendant operated under a conflict of interest in determining whether to award benefits. As a result, the Court should apply heightened scrutiny to the review process.
Defendant's potential conflict of interest is merely a factor for the court to consider in determining whether there has been an abuse of discretion. Davis, 887 F.2d at 694; see also Bruch, 489 U.S. at 115. The dual role of an insurer/claims fiduciary becomes a factor for the court to consider only where there is "`significant evidence" that the insurer/claims fiduciary was motivated by self-interest. Peruzzi v. Summa Med. Plan, 137 F.3d 431, 433 (6th Cir. 1998). Mere allegations of the existence of a structural conflict of interest are not enough; there must be some evidence that the alleged conflict of interest affected the plan administrator's decision to deny benefits. See Peruzzi, 137 F.3d at 433 ("Because our review of the record reveals no significant evidence that SummaCare based its determination on the costs associated with Mrs. Peruzzi's treatment . . . we cannot conclude that SummaCare was motivated by self-interest in this instance"); see also Mers v. Marriott Int'l Group Accidental Death Dismemberment Plan, 144 F.3d 1014, 1020 (7th Cir. 1998) ("We presume that a fiduciary is acting neutrally unless a claimant shows by providing specific evidence of actual bias that there is a significant conflict"); Sullivan v. LTV Aerospace Def. Co., 82 F.3d 1251, 1259 (2d Cir. 1996) ("[A] reasonable interpretation of the Plan will stand unless the participants can show not only that a potential conflict of interest exists, . . . but that the "conflict affected the reasonableness of the Committee's decision'").
Here, Plaintiff has not presented any "significant evidence" that Defendant's conflict of interest actually affected the claims fiduciary's decision to deny Plaintiff's claim for long term disability benefits. Plaintiff points to an October 22, 2001, notation in Plaintiff's file by one of Defendant's employees or agents that reads: Plaintiff "is capable of endorsing his cks — why can't [h]e work." (AR 278). This notation was made a full year prior to Defendant's ultimate denial of Plaintiff's claim — prior to evaluations made by Drs. Greenhood, Shallcross, Burger, Abou-Khalil, and Schroeder, and prior to the assessment by the Vocational Specialist. Considered along with the complete record, the October 22, 2001 notation does not prove that Defendant was motivated by self-interest in making its decision to deny Plaintiff's claim and does not require the Court to elevate the standard of review in this case.
Next, Plaintiff contends that Defendants failed to consider all of the evidence available to it in denying Plaintiff's claim for long term disability benefits. According to Plaintiff, Defendant did not consider the decision of the ALJ to award Plaintiff Social Security disability benefits. However, the record shows that Defendant was aware that Plaintiff had been awarded Social Security disability benefits. (AR 209-10). Plaintiff's suggestion that he is automatically entitled to long term disability benefits under the terms of the Plan simply because he was awarded Social Security disability benefits is contrary to the Supreme Court's recent holding in Black Decker Dis. Plan v. Nord, ___ U.S.___, 123 S.Ct. 1965 (2003). In Nord, the Supreme Court stated that there are "critical differences between the Social Security disability program and ERISA benefit plans." Id. at 1970. The Court reasoned:
In contrast to the obligatory, nationwide Social Security program, "[n]othing in ERISA requires employers to establish employee benefits plans. Nor does ERISA mandate what kind of benefits employers must provide if they choose to have such a plan." Rather, employers have large leeway to design disability and other welfare plans as they see fit. In determining entitlement to Social Security benefits, the adjudicator measures the claimant's condition against a uniform set of federal criteria. "[T]he validity of a claim to benefits under an ERISA plan, " on the other hand, "is likely to turn, " in large part, "on the interpretation of terms in the plan at issue."Id. at 1971 (quoting Firestone Tire, 489 U.S. at 115) (internal citations omitted); see also Calvert v. Firstar Fin., Inc., 266 F. Supp.2d 578, 585 (W.D. Ky. 2003) (holding that a Social Security Administration's disability determination is not binding on an ERISA plan administrator). As the Supreme Court explained, Defendant MetLife was not bound by the ALJ's award of Social Security disability benefits to Plaintiff. Instead, Defendant, as the claims fiduciary, was bound to apply the Plan's terms in determining whether Plaintiff met the criteria for an award of long term disability benefits under the Plan.
Plaintiff also contends that Defendant failed to consider the opinions and diagnoses made by Dr. Abou-Khalil, his treating physician, and by Dr. Burger. For example, Plaintiff complains that one of the consultants hired by Defendant, Dr. Greenhood, did not consider Dr. Abou-Khalil's January 7, 2002 report when assessing Plaintiff's condition on March 12, 2002. However, the record shows that Dr. Greenhood was not provided with the report until April 4, 2002, several weeks after Dr. Greenhood issued his findings. (AR 81-82, 305). The record also shows that each of Defendant's hired consultants considered the records and opinions of Dr. Abou-Khalil. (Report of Dr. Greenhood, AR 178-79; Report of Dr. Shallcross, 167-69; Report of Dr. Schroeder, 96-98). Likewise, the record shows that Dr. Schroeder considered Dr. Burger's opinion in preparing his Physician Consultant Review. (AR 96-98).
According to Plaintiff, in addition to ignoring important evidence, Defendant relied on Dr. Schroeder's erroneous conclusion that Dr. Burger did not offer a diagnosis of Plaintiff's condition. Plaintiff's argument stems from Defendant's statement in its November 18, 2002 denial letter that "although [Dr. Burger] mentions possible affective or other psychiatric disorders, no definitive diagnosis is offered." (AR 94) (emphasis added). Plaintiff insists that a cursory reading of Dr. Burger's report would have revealed Dr. Schroeder's mistake because Dr. Burger clearly lists her diagnosis of Plaintiff under Axis I of the DSM-IV-TR. Dr. Burger's report reads as follows: DIAGNOSIS:
The DSM-IV-TR utilizes a multiaxial system where each of five axes "refers to a different domain of information that may help the clinician plan treatment and predict outcome." DSM-IV-TR at 25. Axis I is for reporting all the various disorders or conditions in the Classification except for the personality disorders and mental retardation (which are reported in Axis II). Id. When an individual has more than one Axis I disorder, each disorder should be reported under Axis I, with the principal diagnosis or reason for visit listed first. Id.
Axis I: R/O Mood disorder due to head injury, 293.83 R/O Major depression with psychotic features, 296.24
(AR at 87).
The Court agrees with Defendant that Dr. Burger did not definitively diagnose Plaintiff under Axis I. Dr. Burger's use of the common clinical abbreviation "R/O" for "Rule Out" indicates that she lacked sufficient information to diagnose Plaintiff with either condition at the time of her report. Thus, Defendant relied on accurate information when it credited Dr. Schroeder's statement that Plaintiff had not been diagnosed with a mental disorder or condition.
"Although not part of the formal DSM-IV convention, many clinicians also use the term "Rule Out' just prior to a diagnosis to indicate that not enough information exists to make the diagnosis, but it must be considered as an alternative." Wayne G. Siegel, Differential Diagnosis of Substance Use Disorders and Other Psychiatric Disorders, Gary L. Fischler Associates, P.A.,(Oct. 2003), at http://www.psycheval.com/substance_abuse.htm.
Plaintiff additionally contends that Defendant should have accorded the opinions of Plaintiff's treating physicians more weight than the opinions of non-treating physicians. Prior to this year, courts disagreed as to whether ERISA plan fiduciaries were obliged to accord special deference to the opinions of treating physicians. In May 2003, the Supreme Court resolved the dispute among the Circuits, holding that no such deference is required. Nord, 123 S.Ct. at 1967. Thus, supportive statements from a treating physician, such as Dr. Abou-Khalil, do not automatically entitle a plan participant to benefits. As one court within our Circuit explained:
[T]here is nothing in the Plan or in law that requires the Plan Administrator to agree with the decision of the Participant's treating physician. On "arbitrariness" review, it is simply not our province to compare the weight, credibility, and persuasiveness of the medical and occupational authorities submitted to the Plan Administrator. The very crux of the arbitrary and capricious review is that a court looks to see if the decision was supportable given the evidence, not whether we agree with the importance given to various pieces of evidence or the decision itself.Brown v. Nat'l City Corp., 974 F. Supp. 1037, 1042 (W.D. Ky. 1997),aff'd, 166 F.3d 1213 (6th Cir. 1998) (emphasis in original).
Although Defendant's consultants considered the opinions of Drs. Abou-Khalil and Burger, they did not agree with those opinions. Plaintiff maintains that Defendant acted arbitrarily and capriciously because neither it nor its physician consultants explained why the opinions of Plaintiff's doctors were rejected. No such explanation was required, however. The Supreme Court has held that courts may not "impose on plan administrators a discrete burden of explanation when they credit reliable evidence that conflicts with a treating physician's evaluation."Nord, 123 S.Ct. at 1972.
Finally, Plaintiff contends that Defendant's denial of benefits was arbitrary and capricious because the evidence establishes that Plaintiff is disabled under the terms of the Plan. Defendant, on the other hand, maintains that Plaintiff has not submitted evidence proving that he met the Plan's definition of disability. The Court finds that the medical evaluations by Drs. Walker, Solomon, Greenhood, Shallcross, and Schroeder, as well as the labor skills analysis by the Vocational Rehabilitation Specialist Ms. Clifton, provide sufficient evidence to support Defendant's denial of benefits decision under the arbitrary and capricious standard of review.
All of the doctors who examined Plaintiff found that his lobectomy cured his formerly disabling seizures, and the record does not show that Plaintiff is disabled by mental limitations and psychological problems. Both Drs. Solomon and Walker found evidence of malingering by Plaintiff during their psychological testing, which casts doubt on Plaintiff's subjective claims of psychological problems and disability. Dr. Abou-Khalil's findings that Plaintiff suffered from memory loss, confusion, and inability to function were based only on Plaintiff's subjective complaints. Plaintiff has never been definitively diagnosed with a mental disorder.
Plaintiff reported to Dr. Walker that he lives independently, drives, actively engages in religious activities, shops, uses computers extensively, performs house repairs, and plays chess "very well." This report is inconsistent with Plaintiff's claim and Drs. Abou-Khalil and Burger's findings that Plaintiff is unable to work at any gainful occupation. The Vocational Rehabilitation Specialist found that Plaintiff has transferrable skills based on past and current work experience and has the ability to work at the sedentary to light level of physical demand.
Significantly, Plaintiff has not demonstrated that he was undergoing regular treatment for depression, mood disorder, problems with functioning, or any other psychological disorder. The Plan requires that an eligible participant be "receiving Appropriate Care and Treatment from a Doctor on a continuing basis." (AR 10). Although several doctors referred Plaintiff for psychiatric evaluation and management, Plaintiff evidently did not follow-up on these referrals, and there is no record of him receiving any medical care and treatment for a psychiatric disorder or condition.
As explained above, since it is possible to offer a reasoned explanation, based on the evidence, for Defendant's decision, the decision of Defendant to deny Plaintiff's claim for long term disability benefits was not arbitrary and capricious.
Furthermore, under the facts and circumstances of this case, the Court is not influenced by the inherent conflict of interest in Defendant's decision-making process. While the presence of a conflict of interest is a factor to be considered when reviewing a plan administrator's decision, some evidence must be produced indicating how the alleged conflict affected the administrator's denial of the claimant's benefits. Plaintiff has failed to provide such evidence here.
In the absence of such evidence, the Court concludes that the decision of the Plan Administrator to deny Plaintiff continued benefits was a reasonable one based on the evidence in the record. Here, Defendant based its decision not only on the opinions of independent physician consultants who reviewed Plaintiff's records but also on the opinions of physicians who examined Plaintiff, including Drs. Walker and Solomon. Plaintiff cannot prevail by arguing that Defendant should have adopted the opinions of two doctors (Drs. Abou-Khalil and Burger) while ignoring the contrary opinions of five doctors, Drs. Walker, Solomon, Greenhood, Shallcross, and Schroeder, as well as the Vocational Rehabilitation Specialist Ms. Clifton.
V. CONCLUSION
For the reasons explained herein, Plaintiff's Motion for Judgment on the Administrative Record (Docket Entry No. 8) shall be DENIED; Defendant's Motion for Judgment on the Administrative Record (Docket Entry No. 11) shall be GRANTED; Plaintiff's Motion for Judicial Notice (Docket Entry No. 28) shall be GRANTED; and Defendant's Motion to Strike (Docket Entry No. 30) shall be DENIED. The decision of the Plan Administrator shall be AFFIRMED and judgment shall be entered in favor of Defendant.
An appropriate order shall be entered.