Opinion
1:03CV16-T
August 14, 2003
MEMORANDUM AND RECOMMENDATION
THIS MATTER is before the Court on the parties' cross-motions for summary judgment in this case in which Plaintiff seeks relief pursuant to the Employment Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001-1461. Also before the Court is Plaintiffs motion to settle the administrative record. Having considered the parties' briefs, the administrative record, and the applicable law, the undersigned will recommend that the Court grant Plaintiffs Motion for Summary Judgment, deny Defendant's Motion for Summary Judgment, and enter judgment in favor of Plaintiff. The undersigned will also recommend that the Court grant Plaintiffs motion to settle the administrative record.
Because the recitation of facts and analysis set forth below is lengthy, the undersigned feels compelled to deviate from the more traditional order of analysis and state clearly at the beginning of this memorandum and recommendation the type of analysis that must be conducted by a plan administrator or fiduciary in order to have its decision upheld. While these points are stated in numerous judicial opinions, my review of recent ERISA benefits decisions convinces me that too many plan administrators and fiduciaries still fail to appreciate that there is a minimum level of care that must be exercised when rendering benefits decisions and that even under the deferential standard of review applicable where the administrator or fiduciary is granted discretion in the plan, their decisions may not be upheld if this care is not exercised. To state it plainly, ERISA requires, at a minimum, the reasonable determination of fact and the honest application of plan terms to those facts. The bar an administrator or fiduciary must traverse in order to have its decision upheld is not high, but there must be evidence in the record to support each factual conclusion, and every physician's report or vocational analysis must be reviewed carefully to determine, in an intellectually honest manner, just what it says and what it does not say. Reading facts into these reports that simply are not there, as occurred in this case with regard to the vocational analysis, is an abuse of discretion that ERISA does not permit.
BACKGROUND
This matter concerns the denial of long term disability income benefits under ERISA. Plaintiff, Knox McKeller Barnes, a high school graduate who was born on May 1, 1955, was employed by BellSouth Telecommunications, Inc. ("BellSouth") for twenty-eight years, from August 19, 1974 until December 2, 2001. During his career with BellSouth, Plaintiff held a number of positions, beginning as a long distance operator when he was nineteen-years-old and ending his career as a Specialist, in which he served as an analyst or consultant, running various reports for the Integrated Technician Performance plan and developing and preparing tracking and budget reports from multiple databases. (R. at 871, 872, 876). Plaintiffs experience at BellSouth did not include any sales experience. (R. at 879).
The physical impairments at issue in this case concern Plaintiffs back. In 1991, Plaintiff underwent two major back surgeries — a left L4-L5 partial hemi-laminectomy and diskectomy and a left L5-S1 diskectomy — and in June of 1993, Plaintiff had a second diskectomy and laminectomy on the left at L5-S1. (R. at 697-723). Based on recurrent back pain and two MRIs conducted in June of 1999 and June of 2000, Dr. Richard Weiss, a neurological surgeon, opined that Plaintiff had recurrent disc herniation on the left side at L4-5, and after discussing the options with Plaintiff, Plaintiff opted to proceed with a fourth back surgery. (R. at 312). On July 11, 2000, Dr. Weiss performed a left L4-5 diskectomy and a right L5-S1 diskectomy. (R. at 309). Although Dr. Weiss had originally planned only on the L4-5 diskectomy, Plaintiff complained before surgery of pain in his right leg, as well as his left, and upon review of the MRI, Dr. Weiss consulted with Plaintiffs spouse who agreed that he should perform a diskectomy at L5-S1 as well. (R. at 309). During the procedure, Dr. Weiss found that the SI nerve root was being pushed against the lateral spinal canal and that a small focal extruded herniated disk was causing "considerable pressure" on the nerve root. (R. at 310).
Following the surgery, Plaintiff returned to Dr. Weiss on July 21 and July 25, 2000. (R. at 307). During his visit on July 25, Plaintiff complained of increased pain on both sides, but Dr. Weiss opined that Plaintiff gradually would get better, though his recovery may be more prolonged than usual because he had performed procedures on both disks. (R. at 307).
On July 31, 2000, Plaintiff underwent another MRI, which revealed resolution of the disc protrusion at L4-5 and some improvement on the right at L5-S1. (R. at 306). The MRI also revealed some enhancing soft tissue at the origin of the left L5 root and at the origins of both the right and left SI nerve roots. (R. at 306).
Approximately one month after the surgery, Dr. Weiss advised Plaintiff that he could try playing golf. (R. at 302). Plaintiff subsequently attempted to play golf and, while hitting the ball, experienced the onset of increased left lower back pain. (R. at 302). Physician notes from Dr. Weiss' office dated August 9, 2000 state that Plaintiff had telephoned on multiple occasions expressing concern about recurrent back pain. (R. at 304). Dr. Seyed Emadian, a physician who practices with Dr. Weiss, prescribed different medication and recommended another MRI if Plaintiffs condition did not improve. (R. at 304). Plaintiff underwent another MRI on August 14, 2000, which revealed suspected residual or recurrent disc fragments at L4-5 and L5-S1 that were adjacent to and somewhat displacing the left L5 and S1 nerve roots.
Plaintiff returned to Dr. Weiss on August 28, 2000, who opined that Plaintiff might have a recurrent disc herniation on the left side at L5-S1. (R. at 302). Dr. Weiss instructed Plaintiff to restrict his activity but to continue walking. (R. at 302). On September 26, 2000, Dr. Weiss reported that the physical therapist with his practice instructed Plaintiff as to how to play golf again and that Plaintiff was able to begin playing again, estimating that his back was approximately fifty-percent (50%) back to normal. (R. at 300-01). On November 2, 2000, Plaintiff returned to Dr. Weiss and reported that while he still had his back pain and intermittent leg pain, he was generally happy with his condition. (R. at 301). Dr. Weiss discussed with Plaintiff chronic pain management and narcotic pain medicine and referred him to Dr. Margaret Burke for chronic physical and pain management. (R. at 301). Finally, Dr. Weiss noted that Plaintiff was able to play golf and that he would like to ski that winter. (R. at 301).
On November 7, 2000, Plaintiff visited Dr. Burke, a physiatrist, for the first time. In reviewing Plaintiffs medical history, Dr. Burke noted that Plaintiff relied on narcotic analgesics, taking six Percocet every twenty-four hours and reported pain and tingling. (R. at 300). Plaintiff reported that when he was on medications, he was able to play golf. (R. at 300). Dr. Burke diagnosed Plaintiff with "[f]ailed surgical back with chronic narcotic dependent pain." (R. at 299). On November 14, 2000, Plaintiff returned to Dr. Burke who reported that while he was functional when on his medicines and could even play golf, he was never pain free. (R. at 298).
Plaintiff visited Dr. Burke again on December 14, 2000 and January 10, 2001. During the December 14 visit, Dr. Burke recommended that Plaintiff consider evaluation for fusion surgery; on January 10, Dr. Burke noted that Plaintiff had discomfort in moving from sit to stand but that he stood and walked independently and had normal upper and lower extremity strength and range of motion. (R. at 296).
On February 5, 2001, Plaintiff returned to Dr. Burke and reported that he had experienced what she described as a "subacute onset of increased pain" in his back. (R. at 295). Plaintiff reported that he had driven to Atlanta and attended a long business meeting, though he had made several stops during the drive and gotten up and moved around during the business meeting. (R. at 295). On March 12, 2001, Plaintiff visited Dr. Burke again and complained that he was unable to perform his usual activities, such as skiing, flying, and riding horses. (R. at 294). Dr. Burke's notes also indicate, however, that Plaintiffs pain had gone away using physical modalities, such as stretching and ice. (R. at 294).
On April 19, 2001, Plaintiff reported to Dr. Burke that he had experienced a flare up of back pain while playing golf. (R. at 293). Plaintiff reported that he generally used a golf cart and played up to eighteen holes at a time; Dr. Burke advised him to play nine holes of golf, walking between holes and stretching regularly. (R. at 293). Plaintiff stated that he would soon be traveling by car from Raleigh to Chicago because he could not tolerate the restriction of sitting in an airplane. (R. at 293).
On May 25, 2001, Dr. Burke reported that Plaintiff "continue[d] to complain of pain inadequately controlled by medications." (R. at 293). She also reported, however, that Plaintiff continued to travel widely with work. (R. at 292-93). When Plaintiff returned to Dr. Burke on July 20, 2001, he complained of "severe intolerable back pain." (R. at 292). According to Dr. Burke's physician notes, Plaintiff told her that the increase in pain had begun three weeks before when he had built a brick wall at his wife's request, which was followed by digging holes, planting bushes and trees, and a drive to Florida. (R. at 292). Dr. Burke also noted that the day before Plaintiffs visit, Dr. Thompson had administered an epidural block. (R. at 292). Dr. Burke described the visit as a "30 minute counseling session," in which Dr. Burke encouraged Plaintiff to live within his limitations; Dr. Burke noted that she feared that disguising the physical limitations of Plaintiff s back with narcotics would hasten his disability. (R. at 287). Accordingly, she wrote a statement that Plaintiff was able to work but unable to sit or stand for longer than one hour. (R. at 287).
On October 29, 2001, Plaintiff visited Dr. Jon Silver, a neurological surgeon in the same practice as Dr. Weiss. (R. at 285). Dr. Silver reported that Plaintiff continued to have "moderate pain across the lower back with pain down the sides of both legs into the fronts of both legs and into both feet." (R. at 284). Dr. Silver reported also that Plaintiff had numbness and tingling in both feet and cramping in both calves, which occurred with standing, sitting, and walking and did not improve with rest. (R. at 284). According to Dr. Silver's physician notes, not much had changed for Plaintiff since his MRI studies of a year earlier, and Plaintiff had reported that "things may be a little bit better." (R. at 284). After reviewing Plaintiffs history and his impressions, Dr. Silver opined that as Plaintiff was improving with epidural steroids and pain management by Dr. Burke, he would not recommend a fifth back surgery, which would not likely help his chronic pain. (R. at 282). The next day, on October 30, 2001, Plaintiff returned to Dr. Burke, to whom he reported that he had pain all the time but was able to work. (R. at 281).
On November 20, 2001, Plaintiff was telephoned at home and informed that he would lose his job as of December 2, 2001. (R. at 20). On November 27, 2001, Plaintiff reported to Dr. Burke that his job had changed and was requiring more traveling, causing him to think about retirement. (R. at 280). According to Dr. Burke, she and Plaintiff discussed pain management strategies. (R. at 280). On January 1, 2002, Dr. Burke noted that Plaintiff had been advised not to sit or stand long than one hour, not to bend, twist, stoop, or lift anything. (R. at 279).
On January 9, 2002, Plaintiff signed an Election to Terminate Employment and Apply for Long Term Disability Benefits, the function of which was to state his election to forego a severance package in favor of seeking long term disability benefits. (R. at 55, 191, 527). On January 18, 2002, Plaintiff submitted his Employee Long Term Disability Plan Benefit Application, stating that he was unable to work because of incapacitating pain. (R. at 95). Some time thereafter, Dr. Burke completed an Attending Physician's Statement for Kemper, in which she stated that Plaintiff had achieved maximum medical improvement and that he could not engage in prolonged standing, sitting, bending, twisting, or stooping and that he could not lift. (R. at 104). Dr. Burke also opined that Plaintiff was severely limited in his functional capacity and incapable of sedentary work. (R. at 104).
Plaintiff returned to Dr. Burke on January 21, 2002, who reported that Plaintiff frequently changed positions and moved about the room and that his back was not doing well. (R. at 278). Dr. Burke reported further that she urged Plaintiff to consider spinal fusion and recommended a change in medication. (R. at 278). Finally, Dr. Burke noted that "in [her] opinion, [Plaintiff was] totally unable to work." (R. at 278).
Plaintiff visited Dr. Burke again on February 21, 2002 and reported that he continued to have "frequent exacerbations of back pain." (R. at 674). Plaintiff reported that no medication had ever left him pain free and that while some days were better and some days were worse, he had severe pain with any physical activity. (R. at 674). Plaintiff reported further that he was unable to sit or stand more than a few minutes at a time for a maximum of one hour. (R. at 674). Dr. Burke noted that Plaintiff was unable to work and that she had offered to assist him in obtaining long term disability. (R. at 674).
On February 27, 2002, Plaintiff was notified that Kemper, the disability case manager for BellSouth, had scheduled a functional capacity evaluation designed to assist in determining Plaintiffs eligibility for benefits. (R. at 153).
On March 6, 2002, Debbie Craig, a physical therapist, conducted a Functional Capacity Evaluation of Plaintiff pursuant to Kemper's request. (R. at 235). In summarizing her findings, Ms. Craig stated that Plaintiff gave submaximal, self-limiting effort with eighteen of twenty-seven consistency measures within expected limits. (R. at 235). Specifically, Ms. Craig opined that Plaintiff was able to crouch and reach on a constant basis; carry up to twenty pounds and reach overhead with his right arm on a frequent basis; and walk, push or pull forty pounds, climb stairs, and reach overhead with this left arm on an occasional basis. (R. at 235). Ms. Craig found that Plaintiff was not able to carry fifty pounds, stoop, or kneel. (R. at 235). Finally, Ms. Craig found, based on these limitations, that Plaintiff could perform medium work for an eight-hour workday. (R. at 235).
On or about March 8, 2002, Plaintiff wrote Marabel Amor, the Kemper representative assigned to Plaintiffs disability case, describing the accommodations BellSouth had made for his back pain and which enabled him to work. (R. at 160). In the letter, Plaintiff noted that BellSouth had entered into a telecommuting agreement with Plaintiff and purchased office furniture for Plaintiffs home, all in an effort to enable Plaintiff to continue working. (R. at 160). Plaintiff stated that he began working from home in May of 2000 and that in addition to permitting Plaintiff to work from home, BellSouth also restructured his position by requiring less travel; limiting any travel to short car distances; permitting him to attend meetings by conference call; providing him with a telephone, computer, high speed data line, and additional telephone line at home; and permitting him to work at whatever hours he could, day or night, with deadlines known well in advance in order to complete the work, which in turn allowed him to rest and did not require that he stay in any one position for very long. (R. at 160).
On March 25, 2002, Plaintiff returned to Dr. Burke who noted that Plaintiff believed he had injured a different area of his back and had difficulty sitting, standing, and walking. (R. at 675). Dr. Burke noted further that Plaintiff cried out with sudden movements. (R. at 675). Dr. Burke nevertheless opined that she expected Plaintiffs pain to improve over time. (R. at 675).
On March 28, 2002, Dr. Duff Rardin, conducted an examination and neurological consultation of Plaintiff, pursuant to Kemper's request. (R. at 231). In his report to Kemper, Dr. Rardin stated that Plaintiff complained of constant pain in the low back at the belt line on both sides with a constant radiation of pain down the left thigh and into the calf and intermittently into the sole of his foot. (R. at 231). Dr. Rardin reported that Plaintiff complained also of pain on the right side radiating down the lateral thigh and calf. (R. at 231). According to Dr. Rardin, Plaintiff reported that the pain was worse in any prolonged posture or position and that he could sit for approximately one hour with bearable pain, noting that if he sat longer than an hour, he would not be able to get relief by shifting positions. (R. at 231). Additionally, Dr. Rardin noted that Plaintiff was probably at his worst while standing. (R. at 231). Dr. Rardin reported that Plaintiff exhibited significant pain behavior throughout the examination, sitting on his right buttock or standing, and that he reported that his pain was a four on a ten-point scale. (R. at 232). Dr. Rardin reported further that Plaintiff stated that his average discomfort was a five out often but would spike briefly every day to a ten. (R. at 232). On physical examination, Dr. Rardin reported that Plaintiff had a dramatic pain response when he attempted a straight leg raise on the left but no pain on the right and that the range of motion in his legs appeared normal. (R. at 232). Dr. Rardin noted that there was submaximal effort in the lower extremities with complaints of pain but that there did not appear to be any genuine anatomical weakness. (R. at 232). Dr. Rardin diagnosed Plaintiff with "[f]ailed postsurgical back." (R. at 233). In responding to Kemper's specific questions, Dr. Rardin opined that Plaintiff did not have any objective neurologic deficits that would limit his function and that there was no neurologic contraindication for his sitting at a desk. (R. at 233). Dr. Rardin noted that Plaintiff seemed limited primarily by pain and that a reasonable accommodation would be to allow him to shift positions as much as possible. (R. at 233). As for restrictions, Dr. Rardin recommended that Plaintiff avoid significant lifting, bending, stooping, crawling, and kneeling, but noted that these restrictions were solely because these activities would increase Plaintiffs pain. (R. at 233).
Also on March 28, 2002, Plaintiff contacted a Kemper representative and expressed that he was unhappy with the functional capacity evaluation. (R. at 69). According to Kemper records, Plaintiff informed the representative that when he asked the evaluator about the purpose of the evaluation, he was told that they "wanted to make sure that he [did] not deserve disability." (R. at 69).
On April 20, 2002, Dr. Craig Mills, completed an Attending Physician's Statement for Kemper. (R. at 222). In this statement, Dr. Mills stated that Plaintiff would experience life-long pain and opined that he suffered from a severe limitation of functional capacity and was incapable of sedentary work. (R. at 224). Dr. Mills also opined that Plaintiff suffered from a moderate mental impairment, restricting his ability to handle stress and requiring that he engage in only limited interpersonal relationships. (R. at 224).
On April 22, 2002, Plaintiff wrote Ms. Amor and explained that Dr. Burke's statement in October of 2001 that he was able to work assumed certain restrictions and conditions, including no bending, stooping, or kneeling, little or no travel, and no prolonged sitting or standing. (R. at 226). Plaintiff also explained that the statement that he could work was his own statement to Dr. Burke and was predicated on a continuation of the accommodations BellSouth had already permitted in terms of hours and place of work. (R. at 226).
Plaintiff next visited Dr. Burke on April 25, 2002. During this visit, Dr. Burke noted that when she had stated, in her physician notes from Plaintiffs visit to her on October 30, 2001, that Plaintiff was able to work, he had been working "with extreme restrictions," such that when his job requirements changed the following month, he was no longer able to work. (R. at 677). Dr. Burke reiterated later in her notes from this visit that Plaintiff continued to be unable to work. (R. at 677).
Also during April of 2002, Jacqueline Haynes, a Kemper Vocational Care Manager conducted an Employability Assessment Report with Transferable Skills Analysis and a Labor Market Survey, designed, according to the report, to identify and determine the availability of jobs within a thirty-five mile radius of Plaintiff s home that would be suitable in light of his physical impairments and transferable work skills. (R. at 196). Ms. Haynes noted in both reports that she was assuming the specific work restrictions that were outlined in the Functional Capacity Evaluation, which indicated medium physical demands and, more specifically, that Plaintiff could perform activities related to crouching and reaching on a constant basis, could carry up to twenty pounds, could reach overhead on an occasional basis, could walk, could push and/or pull up to forty pounds, and could climb stairs. (R. at 196, 210). Ms. Haynes also noted that she had conducted an interview with Plaintiff by telephone in which he reported that he would like to return to work for BellSouth and that working from home had been ideal, as it permitted him to take breaks as needed to relieve back pain. (R. at 211). Ms. Haynes noted further that Plaintiff reported that he enjoyed golf, tennis, and horseback riding, but could not perform these activities any more because of chronic back pain. (R. at 211).
Ms. Haynes next moved into the Transferrable Skills Analysis and identified five occupations for which Plaintiff might be suited based on his previous work experience, training, and education, including: (1) statistical clerk, classified as sedentary; (2) chemical equipment tender; (3) communication-center coordinator, classified as sedentary; (4) dispatcher, classified as sedentary; and (5) expediting clerk, classified as sedentary/light work. (R. at 198, 213-14). Ms. Haynes noted that the Plan required that Plaintiff must be able to earn at least fifty-percent of what he earned before his disability, and she then extrapolated from his ending salary of $68,299.90 that fifty-percent of his pre-disability hourly wage would be $16.42 per hour. (R. at 198, 212-13). Of these occupations, Ms. Haynes found that none of the median hourly wages for these jobs met the $16.42 per hour threshold, but that the occupations of chemical equipment tender and utilities dispatcher had a high range that was equal to or greater than $16.42 per hour and stated that it was "possible that [Plaintiff would] be able to command an hourly salary on the higher end of the salary range, placing him closer to the minimum hourly pay needed." (R. at 215).
In her Labor Market Survey, Ms. Haynes repeated this analysis and then stated:
The Vocational Care Manager notes, [Plaintiff] has limited transferable skills as it relates to working in other industries or with other potential employers, as all of his 28 years of work experience was obtained while employed with BellSouth Telecommunications. Because he earned such a high salary with BellSouth, it was challenging to locate other potential employers willing to pay at least $34,200 annually to an employee without a college degree or previous work experience in their specific industry.
(R. at 200). After describing her efforts to find a suitable employer, Ms. Haynes then concluded that Plaintiff "has excellent opportunities in the sales industry," though she acknowledged that he would have to be "diligent in his job search, perhaps registering with 2-3 employment/staffing agencies in his local area to seek job search assistance." (R. at 200). Ms. Haynes identified four potential employers with sales positions in the light physical demands category and paying approximately $40,000 annually. (R. at 201-02). Ms. Haynes noted that "[t]hese four positions appear[ed] suitable for [Plaintiff] based on proximity to his home in Arden, North Carolina and salary requirements outlined by the employer's disability plan." (R. at 200). While Ms. Haynes deemed these positions to be "suitable," she did not discuss specifically whether Plaintiff had skills that were transferable to these sales positions. (R. at 200).
On May 3, 2002, Ms. Amor wrote Plaintiff and informed him that Kemper, on behalf of the BellSouth Long Term Disability Plan, was denying his claim for long term disability benefits. (R. at 187). Ms. Amor noted that the functional capacity evaluation revealed that Plaintiff could work at the medium level of exertion and that a neurological evaluation conducted by Dr. Rardin on March 28 revealed that he had a normal range of motion in the cervical spine, shoulder, legs, and arms and that while Plaintiff complained of pain, there did not appear to be any genuine anatomical weakness. (R. at 188). Ms. Amor noted further that Plaintiff could laterally flex and rotate his trunk, stand on his heels and toes, and tandem walk. (R. at 188). Ms. Amor also noted that Plaintiff exhibited significant pain behavior throughout the examination, which he rated as a four on a ten-point scale. (R. at 188). Ms. Amor noted that Dr. Rardin opined that Plaintiff had no neurological deficits that would limit his function. (R. at 188). Next, Ms. Amor referred to the labor market survey that indicated that Plaintiff had excellent job opportunities in the sales industry and that four jobs, specifically, were identified as suitable, including a sales team manager with an annual salary of $40,000, a salesperson with an annual salary of more than $40,000, a sales manager trainee with a weekly salary of $750 plus incentives, bonuses, and benefits, and a sales representative with an annual salary between $50,000 and $100,000. (R. at 188). Ms. Amor concluded, on the strength of this evidence, that Plaintiff was not disabled under the Plan. (R. at 188).
On May 15, 2002, when Plaintiff returned to Dr. Burke, she noted that he had called on several occasions since his April 25 visit, complaining of severe back pain. (R. at 678). Plaintiff reported that he had pain in his right hip and buttocks down to his calf and that he had pain, numbness, and tingling. (R. at 678). Dr. Burke noted her diagnosis of "[f]ailed surgical back with intractable pain" and that Plaintiff was "obviously very uncomfortable," though his gait was normal. (R. at 678).
On May 21, 2002, Plaintiff sent an electronic mail message to Ms. Amor, in response to a message from her the day before in which she noted that pain was subjective. (R. at 551-52). Plaintiff explained to Ms. Amor that he felt pain all day and night and expected to feel that pain for the rest of his life. (R. at 551). Plaintiff noted that his pain could change the way he stood, sat, walked, sneezed, or used the bathroom, and that while one day might be bright and there appeared to be hope, the next day was dark and "life [was] more torture than pleasure." (R. at 551). Finally, Plaintiff noted his pain was so intense that he was medicated with a patch given to cancer patients during their last days. (R. at 551).
On May 23, 2002, Plaintiff underwent an MRI exam. (R. at 679-81). The physician who read the exam, Dr. Michael Boerner, concluded that there were "[o]verall no significant interval change as compared to the prior exam of [August 14, 2000]." (R. at 680). The MRI did reveal, however, the probable conjoined nerve root sleeve involving the left L5 and SI nerve roots and some inflammation or scar tissue at the left and right S1 nerve root. (R. at 680-81). A small disc protrusion on the right at L5-S1 was also noted, though it appeared to touch against the traversing right S1 nerve root without definitely compressing it. (R. at 680). Finally, Dr. Boerner opined on the basis of the possible enhancement of the right SI nerve root and potentially of the left SI nerve root, that these findings "may represent arachnoiditis." (R. at 681).
On May 29, 2002, Plaintiffs counsel notified Kemper that she had been retained to represent Plaintiff. (R. at 560). On August 2, 2002, Dr. Burke completed a questionnaire for Plaintiff, in which she opined that Plaintiff suffered from intractable back pain due to post-laminectomy syndrome, degenerative disc disease at L4-5, L5-S1, and arachnoiditis. (R. at 622). Dr. Burke stated that Plaintiffs physical impairments had been shown by medically acceptable objective evidence and that they could reasonably be expected to cause pain. (R. at 622). Dr. Burke also opined that Plaintiff was, as of November 17, 2001, unable to perform any type of work, other than one which paid less than half of his pre-disability earnings and that his impairments prevented him from being able regularly to attend work and work an eight-hour day. (R. at 623). As for specific work restrictions, Dr. Burke opined that Plaintiff could sit for two hours, stand for one hour, and drive for one hour during an eight-hour work day. (R. at 623). Dr. Burke also stated that Plaintiff could not stay in one position for more than a few minutes and that he required high doses of narcotic analgesics that cause drowsiness and impair driving on some days. (R. at 624). Finally, Dr. Burke stated that Plaintiffs prognosis for returning to work was poor. (R. at 624).
On or about August 14, 2002, Plaintiff filed an appeal of Defendants' denial of his long term disability benefit claim, enclosing medical records. (R. at 560, 596). Plaintiff attached to his appeal medical records previously not considered, as well as an affidavit. In his affidavit, Plaintiff explained that he began limiting the travel he could do for his job in late 1999 and early 2000, and some time early in 2000, he began working from home in order to accommodate his back pain. (R. at 871). Plaintiff stated that while he was working at home, he was able to prepare reports by working at short intervals in a twenty-four hour period, with breaks as needed to lie down or otherwise relieve his back pain. (R. at 873). Plaintiff noted that he could work at nights and on weekends and stated that he essentially lived in the home office he established, working in spurts when he was able. (R. at 873). Plaintiff emphasized in his affidavit that he was only able to continue to work because he was permitted to telecommute. (R. at 874). Plaintiff stated that since January of 2001, he required several hours in order to leave his house after waking up in the morning. (R. at 876). According to Plaintiff, he was taking classes at a community college, where he had special permission to arrive late and leave the classroom as needed, preferred seating, flexibility on attendance, and a two-hour break between certain classes in order to rest. (R. at 877). Plaintiff stated that he slept two hours or less, and he rated his pain as averaging a five on a ten-point scale, with prolonged sitting or standing, repetitive motion, emotional stress, and lack of sleep aggravating his pain. (R. at 877). Plaintiff noted that he was often unable to cook for himself and that his spouse sometimes had to assist him in showering and getting dressed. (R. at 877). With respect to the Functional Capacity Evaluation, Plaintiff stated that when he asked Ms. Craig about the purpose of the evaluation, she responded that it "was to determine that [he] was NOT qualified for benefits." (R. at 878 (emphasis in original)). Plaintiff also noted that the evaluation took place over approximately a three-hour period and that he had to take two rest periods. (R. at 879).
On October 1, 2002, Dr. Vaughn Cohan, a Kemper neurologist, conducted a peer review for Kemper in which he was asked to review Plaintiffs file and provide an opinion as to whether he was able to work on December 3, 2001. (R. at 602). After reviewing the file, Dr. Cohan concluded that the medical records failed "to support functional impairment(s) that precludes work." (R. at 603). In reaching this conclusion, Dr. Cohan noted that medical records from visits to Dr. Burke indicated that in July of 2001, she stated that he could return to work with no continuous standing or sitting for longer than one hour at a time, that she noted in September and November of 2001 that he stood and walked about the room independently and had a full range of motion, and that in January of 2002, she stated that Plaintiff was advised not to sit or stand longer than one hour at a time. (R. at 603). Dr. Cohan then noted that beginning on January 21, 2002, when Dr. Burke reported that Plaintiff was having difficulty establishing disability benefits, the medical notes began to indicate that Plaintiffs subjective symptoms had become more severe. (R. at 603). While Dr. Cohan acknowledged that Dr. Burke opined that Plaintiff was incapable of even sedentary work, he noted that she provided no specific objective data which would support that classification. (R. at 603). Dr. Cohan also noted that Dr. Burke's restrictions limiting Plaintiff to sitting only two hours, standing only one hour, and driving only one hour during an eight-hour workday were inconsistent with the previous restrictions limiting Plaintiff to standing and/or sitting for one hour periods of time. (R. at 603).
On or about October 4, 2002, Kemper notified Plaintiff, through counsel, that on October 3, 2002, the BellSouth Appeals Committee had reviewed Plaintiffs appeal and sustained Kemper's decision to deny long term disability benefits. The Appeal Coordinator stated that Plaintiffs physicians did not provide sufficient objective findings to support a functional impairment that would preclude Plaintiff from performing any type of work and relied on the Functional Capacity Evaluation, as well as Dr. Rardin's examination, in determining that Plaintiffs function was not limited. (R. at 882). The Appeal Coordinator also referred to Dr. Cohan's report. (R. at 883).
On October 7, 2002, Plaintiffs counsel sent a letter to Kemper, enclosing additional medical records from Dr. Burke and requesting that the records be included in the administrative record. (R. at 11). Specifically, counsel enclosed a letter dated August 30, 2002 from Dr. Burke to the Social Security Administration, in which Dr. Burke noted that recent radiological studies had shown the emergence of scar tissue compatible with arachnoiditis and that Plaintiff experienced severe pain requiring escalating doses of narcotics. (R. at 12). Dr. Burke also stated that "[i]n [her] medical opinion, [Plaintiff was] totally disabled from all substantial gainful employment" and that she supported his disability application. (R. at 13). In response to counsel's letter, on October 15, 2002, an Appeal Coordinator from Kemper notified Plaintiffs counsel that its decision on Plaintiffs appeal had been rendered on October 3, 2002 and was final as of that date; she also noted that Kemper's letter confirming notice of Plaintiff s appeal had stated that a decision would be rendered within forty-five days of receipt of the appeal, which date was October 4, 2002. (R. at 10).
On November 18, 2002, Plaintiffs counsel requested, on behalf of Plaintiff, that the plan administrator reconsider its decision to deny Plaintiffs claim for long term disability benefits and attached, as support, the award of Social Security disability benefits dated November 11, 2002, in which the Social Security Administration found that Plaintiff had been disabled as of December 2, 2001. (R. at 15). Plaintiffs counsel also requested that the decision be included in the administrative record. (R. at 15). A Kemper representative responded to this request on November 27, 2002 and stated that the decision to deny Plaintiffs disability benefits was final and that no further review would be completed. (R. at 14).
On January 14, 2003, Plaintiff filed this action, asserting that Defendants' denial of his claim for long term disability benefits was in violation of ERISA. Plaintiff filed his motion to settle the administrative record on June 7, 2003, and the parties filed cross-motions for summary judgment on June 27, 2003.
Among the documents Plaintiff filed in support of his motion for summary judgment were copies of articles downloaded from medical internet web sites describing arachnoiditis, which articles were also provided to Kemper. One of these articles, from the National Institute of Neurological Disorders and Stroke, defines arachnoiditis as "an inflammatory response of the arachnoid, one of three coverings, or meninges, that envelop the brain and spinal cord [that] may result from infection . . . or trauma (including that resulting from surgery, lumbar puncture, and spinal anesthesia)." (R. at 693) This article stated that there is no cure for arachnoiditis and that for the majority of patients, "arachnoiditis is a disabling disease causing intractable pain and neurological deficits." (R. at 693). The article stated further that as the disease progresses, some symptoms may increase and become permanent and that few people with arachnoiditis are able to continue working. (R. at 693). A second article, from the University of Southern California Department of Neurological Surgery, states that arachnoiditis "is a frequently invoked `cause' of the chronic nerve root pain that afflicts some patients who have undergone procedures in the lumbar spinal canal (such as lumbar laminectomy for decompression or microdiscectomy) many of whom also carry the diagnosis: "Failed back." (R. at 691).
PERTINENT PLAN PROVISIONS
During the time period relevant to this dispute, Plaintiff was subject to an employee welfare benefit plan ("the Plan") providing long term disability benefits. The Plan defines "disability" as "a physical or mental illness, whether work-related or non-work related, which makes a Participant . . . unable to perform any type of work other than one which pays less than half of his base pay at the time his benefits under the Short Term Disability Plan begin." (R. at 1218). The Plan provides further that, effective January 1, 1993, "a participant's earnings potential shall be determined using potential jobs in the community [and] [t]he earnings test shall take into account a participant's functional capacities, background, (education, training, work experience) transferable skills, and the participant's age." (R. at 1218).With respect to the administration of the Plan, it provides that BellSouth Corporation is the Plan Administer and Sponsor. (R. at 1223). The Plan provides further that participating companies, such as BellSouth Telecommunications, Inc., "shall appoint an Employees' Benefit Claim Review Committee ("EBCRC"), consisting of one or more persons, which, to the extent it does not delegate its responsibilities . . . shall serve as the final claim review committee . . . for Participants employed by such Participating Company and shall have such other administrative responsibilities as are described in the Plan." (R. at 1223). The Plan names BellSouth Corporation, each participating company, and each EBCRC as a "named fiduciary" under ERISA and provides further that the EBCRC "has complete discretionary authority to determine Benefits and to interpret the terms and provisions of the Plan." (R. at 1225). The Plan provides further that named fiduciaries "may delegate their operational/administrative duties under the Plan to other persons and may employ persons to advise them as to their duties." (R. at 1225). Such delegation, according to the Plan, "will be in writing and signed by an authorized Plan representative." (R. at 1225). Although the Plan does not mention Defendant Kemper National Services ("Kemper"), the Summary Plan Description states that BellSouth Corporation has delegated to Kemper "the duty to administer all claims for benefits under the [P]lan for all participating companies." (R. at 1236). Finally, with respect to Kemper, the Summary Plan Description provides:
Kemper National Services is the named fiduciary under the [P]lan with complete authority to review all denied claims for benefits in exercising such fiduciary responsibilities.
Kemper National Services shall have discretionary authority to determine whether or to what extent participants and beneficiaries are entitled to benefits and to construe disputed or doubtful [P]lan terms. Kemper National Services shall be deemed to have properly exercised such authority unless they have abused their discretion hereunder by acting arbitrarily and capriciously.
(R. at 1236).
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). As the facts are not in dispute in this case, both parties agree that the case is appropriate for resolution on summary judgment.
STANDARD OF REVIEW
It is well settled that a court reviewing the denial of disability benefits under ERISA must first decide whether the benefit plan's language "grants the administrator or fiduciary discretion to determine the claimant's eligibility for benefits." Gallagher v. Reliance Standard Life Ins. Co., 305 F.3d 264, 268 (4th Cir. 2002). If the benefit plan gives the administrator or fiduciary such discretion, "a reviewing court may reverse the denial of benefits only upon a finding of abuse of discretion." Elliott v. Sara Lee Corp., 190 F.3d 601, 605 (4th Cir. 1999). If, however, the plan does not explicitly give the administrator or fiduciary discretion, the court's review is de novo. Gallagher, 305 F.3d at 269; see also Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 956-57 (1988) ("a denial of benefits challenged under [29 U.S.C.] § 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 determining whether a particular plan grants the administrator or fiduciary discretionary authority, the court does not require the use of specific language; rather, the court "examine[s] the terms of the plan to determine if it vests in its administrators discretion either to settle disputed eligibility questions or construe doubtful provisions of the Plan." Feder v. Paul Revere Life Ins. Co., 228 F.3d 518, 522 (4th Cir. 2000). Where, however, the plan's language "expressly creates discretionary authority," the court will find discretionary authority in the administrator to exist. Id.
In this case, the Summary Plan Description provides that BellSouth has delegated to Kemper the authority to review all denied claims for benefits and has granted Kemper "discretionary authority to determine whether or to what extent participants and beneficiaries are entitled to benefits and to construe disputed or doubtful [P]lan terms." (R. at 1236). The Summary Plan Description also makes explicit that Kemper "shall be deemed to have properly exercised such authority unless they have abused their discretion . . . by acting arbitrarily and capriciously." ( Id.) Plaintiff correctly notes that this delegation language is not contained within the Plan itself and that there is no other evidence of record that shows that a delegation has been reduced to "writing and signed by an authorized Plan representative." (R. at 1225). Nevertheless, it is apparent from the record and from the Summary Plan Description that BellSouth Corporation delegated its authority to make benefits determinations to Kemper and that Kemper acted as the agent of BellSouth Corporation and its participating companies. Accordingly, the appropriate standard of review is abuse of discretion.
Under an abuse of discretion standard, the administrator's decision "will not be disturbed if it `is the result of a deliberate, principled reasoning process and if it is supported by substantial evidence,'" even if this Court would have reached a different conclusion. Elliott, 190 F.3d at 605 (quoting Brogan v. Holland, 105 F.3d 158, 161 (4th Cir. 1997)); see also Feder, 228 F.3d at 522. Even under this deferential standard of review, however, evidence that the administrator or fiduciary who denied benefits was operating under a conflict of interest is relevant and "must be weighed as a `facto[r] in determining whether there is an abuse of discretion.'" Bruch, 489 U.S. at 115, 109 S.Ct. at 957 (quoting Restatement (Second) of Trusts § 187, cmt. d (1959)). Thus, the Fourth Circuit has explained: "The more incentive for the administrator or fiduciary to benefit itself by a certain interpretation of benefit eligibility or other plan terms, the more objectively reasonable the administrator or fiduciary's decision must be and the more substantial the evidence must be to support it." Ellis v. Metropolitan Life Ins. Co., 126 F.3d 228, 233 (4th Cir. 1997).
In this case, Defendants assert that because BellSouth funds the Plan, Kemper did not act under a conflict of interest in rendering its decision to deny Plaintiffs long term disability benefits and a straight abuse of discretion standard of review is applicable. It is clear from the record, however, that Kemper was identified as the "named fiduciary" under the Plan and acted as BellSouth's agent in rendering its benefits decisions. It, therefore, had a financial interest in the decision to grant or deny medical benefits to Plaintiff, and the abuse of discretion standard should be modified to take that conflict of interest into account. See Lloyd v. Evangeline Health Care, Inc., 1999 WL 33117256, at *5 (W.D.N.C. March 31, 1999) (holding that a modified abuse of discretion standard applied where decisionmaker was hired by plan administrator to perform administrative functions but where plan administrator/employer primarily funded the plan). It does not appear from the record, however, that Kemper acted under a conflict of interest to the same extent a fiduciary acts under a conflict of interest, where the fiduciary both renders final decisions and funds the benefits plan. Therefore, while the undersigned recommends that the Court apply a modified abuse of discretion, on the "sliding scale" rubric established in this Circuit for the review of ERISA claims under an abuse of discretion standard, the discretion accorded the administrator in this case should be greater than the discretion accorded a fiduciary acting under a greater conflict of interest — this case falls, in other words, on the more deferential end of the sliding scale. See Ellis, 126 F.3d at 233 (describing the modified abuse of discretion standard as a "sliding scale," tipping one way or the other depending on the strength of the administrator or fiduciary's incentive to render eligibility decisions that benefit itself, but remaining always an abuse of discretion standard).
DISCUSSION I. Motion to Settle the Record
The first issue to be resolved is the content of the administrative record. As set forth above, following Defendants' final decision denying Plaintiffs application, Plaintiff, through counsel, submitted additional evidence, including the award of Social Security disability insurance benefits and a letter written by Dr. Burke in support of his application for Social Security disability benefits and referencing more recent medical evidence of disability. Plaintiff specifically requested that Defendants reconsider their decision to deny his application on the basis of the new evidence and requested that the new evidence be included in the final administrative record. Plaintiff has now filed a motion to settle the administrative record and seeks the inclusion of the disputed evidence in the administrative record for purposes of this action.Although, as Defendants note, the Fourth Circuit has stated that review in ERISA cases is generally limited to "the evidence that was before the plan administrator or trustee at the time of the determination," Quesinberry v. Life Ins. Co. of North Am., 987 F.2d 1017, 1025 (4th Cir. 1993), the court in Quesinberry was not presented with the question of when the benefits decision is considered final such that new evidence may not be presented by the claimant. Defendants have not cited any Fourth Circuit decision, and the undersigned has not located any, that addresses the precise issue presented in this case — that is, whether evidence presented following the decisionmaker's articulated "final decision" but before a complaint is filed should be considered part of the administrative record. The Fifth Circuit, however, has answered this question and has held that if a claimant submits additional evidence to the administrator "in a manner that gives the administrator a fair opportunity to consider" the new evidence and requests that the administrator reconsider his decision, "the additional information should be treated as part of the administrative record." Vega v. National Life Ins. Servs., Inc., 188 F.3d 287, 300 (5th Cir. 1999) (en banc); see also O'Sullivan v. Metropolitan Life Ins. Co., 114F. Supp.2d 303, 310 (D.N.J. 2000) ("If a claimant submits additional evidence and requests the plan administrator to reconsider the previous decision, that additional evidence would be included as part of the administrative record."). As articulated by the Fifth Circuit, this approach balances the need to limit review to evidence that was fairly presented to the plan administrator in order to prevent a claimant from circumventing that review with the need to ensure that a self-interested administrator is not able to render its "final decision" so early in the process that a full and fair review of evidence favorable to the claimant is not possible. Additionally, the undersigned notes that this standard requires that the administrator have had a reasonable opportunity to consider the new evidence and that the claimant request reconsideration, preventing a claimant from including evidence submitted so late in the process that the administrator does not have a fair chance to reconsider its decision in light of the evidence.
In this case, Plaintiff submitted the letter from Doctor Burke within days of Kemper's decision in Plaintiffs appeal and, evidently, before he had even received that decision. He submitted the Social Security award and requested reconsideration approximately five weeks after the appeal decision and approximately two months before he filed this action. It appears, therefore, that Plaintiff submitted this new evidence in time to give Defendants a "reasonable opportunity" to reconsider their decision before he filed this action, and the undersigned recommends that the evidence be included in the administrative record subject to review herein.
II. Cross-Motions for Summary Judgment
In determining whether a plan administrator has abused its discretion in the denial of benefits, the Fourth Circuit has identified eight factors that a reviewing court may consider, though it is not limited to these factors:
(1) the language of the plan;
(2) the purposes and goals of the plan;
(3) the adequacy of the materials considered to make the decision and the degree to which they support it;
(4) whether the fiduciary's interpretation was consistent with other provisions in the plan and with earlier interpretations of the plan;
(5) whether the decision-making process was reasoned and principled;
(6) whether the decision was consistent with the procedural and substantive requirements of ERISA;
(7) any external standard relevant to the exercise of discretion; and
(8) the fiduciary's motives and any conflict of interest it may have.Booth v. Wal-Mart Stores, Inc. Associates Health and Welfare Plan, 201 F.3d 335, 342-43 (4th Cir. 2000). The Supreme Court has also recently made clear that ERISA does not "require [plan] administrators automatically to accord special weight to the opinions of a claimant's physician." Black Decker Disability Plan v. Nord, ___ U.S. ___, 123 S.Ct. 1965, 1972 (2003). The Court 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." Id. The Court nevertheless recognized that plan administrators may not "arbitrarily refuse to credit a claimant's reliable evidence." Id.
In this case, considering especially the degree to which the materials before Defendants supported their decision and whether the decision-making process was reasoned and principled, the undersigned recommends that the Court hold, under a generous modified abuse of discretion standard, that Defendants abused their discretion in denying long term disability income benefits to Plaintiff. In so recommending, the undersigned notes, first, that while Defendants explicitly rejected certain of Plaintiff s treating physicians' opinions regarding Plaintiffs ability to engage in substantial gainful activity and, more specifically, the extent to which Plaintiffs impairments restrict his physical activity, the undersigned agrees with Defendants that there was sufficient evidence in the administrative record to support Kemper's decision that as of December 2, 2001, Plaintiff could engage in work with the restriction that he be permitted to change positions often and within the limitations recognized by Dr. Rardin and confirmed by Dr. Cohan. In reaching this conclusion, the undersigned notes, in addition to the evidence relied upon by Defendants, that there is no evidence that Plaintiff suffered from the disabling condition of arachnoiditis on December 2, 2001. While Plaintiff may have had a pre-cursor to that condition, the first suggestion of arachnoiditis in the record is an MRI report on May 23, 2002. Additionally, the undersigned notes that although the ability to attend school with lengthy breaks does not necessarily mean that Plaintiff could work an eight-hour a day job, Plaintiffs description of his daily schedule in his affidavit suggests that he either sits or stands more than one or two hours during an eight-hour day and has more functionality than suggested by Dr. Burke. The undersigned concurs with Dr. Cohan's assessment that the description of Plaintiff s impairment seemed to grow more restrictive and more detailed after Dr. Burke was informed that Plaintiff was having difficulty obtaining long term disability benefits. There is certainly nothing wrong with a physician assisting a disabled individual in obtaining benefits, but the change in tone in Dr. Burke's description of Plaintiffs impairments between October of 2001 and January of 2002 could appropriately be considered by Dr. Cohan and, by extension, Kemper in assessing the credibility of her opinions.
Plaintiff argues that Kemper's assessment of his functionality failed adequately to take into consideration the extent of his pain. While the undersigned agrees that Dr. Rardin, for example, did not appear to consider carefully the extent to which Plaintiffs pain might impede his functionality, he did discuss Plaintiffs pain and articulated restrictions based solely on his pain. The undersigned simply cannot say that Defendants abused their discretion in finding that Plaintiff was capable of work, with the restrictions noted, notwithstanding the fact that he suffered from chronic pain and would, at times, experience intense pain because there was evidence upon which Defendant properly could rely that Plaintiffs pain was always present but generally manageable with medication and frequent change in position. Additionally, there was medical evidence in the record that he had no neurological impairments that would prevent functionality.
Plaintiff also argues that Defendants abused their discretion in relying unduly on the Functional Capacity Evaluation. The undersigned agrees with Plaintiff that the reliability of a Functional Capacity Evaluation conducted over three hours as an effective assessment of a person's ability to sustain that effort over an eight-hour day is questionable. In this case, however, the Functional Capacity Evaluation revealed that Plaintiff could perform numerous physical tasks. Additionally, the limitations described by Dr. Burke before December 2, 2001, the reports of Dr. Rardin and Dr. Cohan, and Plaintiffs own description of his physical activities could reasonably be relied upon as establishing that a frequent change of position would render him functionally capable of performing at least some work.
In the end, however, under the definition of "disability" applicable in this case, it is the undersigned's opinion that Kemper abused its discretion in denying Plaintiff disability benefits because there is no reliable evidence in the record that there were any jobs available within a reasonable distance of his home that he had the skills and physical ability to perform and that met the earnings requirement. While Defendants rely heavily on the Labor Market Survey conducted by Ms. Haynes, the Court notes that nowhere in her report does Ms. Haynes ever state that Plaintiff has the skills to perform work as a salesperson. Indeed, in her Employability Assessment Report with Transferable Skills Analysis, Ms. Haynes identified five types of jobs that Plaintiff could perform with his education and experience and physical impairments, though she acknowledges that it is only "possible" that he could earn "close to the required fifty-percent of his pre-disability earnings in any of these positions. Moving on to the Labor Market Analysis to determine whether any of these jobs might be available within Plaintiffs community, Ms. Haynes noted that Plaintiff did not have the education generally expected of employees commanding such salaries or any experience in any of the fields she identified. Then, apparently unable to find any positions in the fields identified in the Transferrable Skills Analysis, Ms. Haynes suddenly declared that Plaintiff "has excellent opportunities in the sales industry." (R. at 200). In a glaring omission, Ms. Haynes stated that the four sales positions she identified were suitable for Plaintiff based on proximity to his home and salary requirements, but she says nothing about whether Plaintiff has any transferable skills that would enable him to obtain or maintain employment in the sales industry. Plaintiff himself made clear in his affidavit that he had no experience in sales.
Under the terms of the Plan, in determining whether a claimant is capable of earning fifty-percent of his pre-disability wages, potential jobs in the community must be considered in light of the claimant's functional capacities, background, including education, training, and work experience, and transferable skills. Here, there is no evidence in the record that Plaintiff had the skills the perform sales work, the only type of job in the community identified as suitable under the other criteria, and Ms. Haynes nowhere stated in her transferable skills analysis that he does have such skills. Additionally, Ms. Haynes expressly noted that Plaintiffs lack of higher education and experience in a single field for an entire career would limit his ability to find employment paying the requisite salary.
Because there is no evidence in the record that there were any jobs within Plaintiffs community that would enable him, with his physical impairments and considering his education, experience, and transferable skills, to earn at least fifty-percent of his pre-disability earnings, Defendants abused their discretion in finding that Plaintiff was not disabled as of November 2, 2001, as "disability" is defined in the Plan. While the undersigned would recommend a different decision if "disability" were defined as the inability to perform any work, such is not the definition of "disability" applicable in this case, and the undersigned will recommend, therefore, that the Court grant Plaintiffs motion for summary judgment, deny Defendant's motion for summary judgment, and enter judgment in favor of Plaintiff.
RECOMMENDATION
For the foregoing reasons, the undersigned RESPECTFULLY RECOMMENDS that the Court GRANT Plaintiffs motion to settle the record and include the evidence submitted to Kemper prior to Plaintiffs filing this action in the administrative record reviewed herein. The undersigned FURTHER RECOMMENDS that the Court apply a modified abuse of discretion standard of review to Defendants' decision to deny benefits in this case, but on the deferential end of the "sliding scale." Finally, the undersigned RECOMMENDS that Plaintiffs motion for summary judgment be granted, that Defendant's motion for summary judgment be denied, and that judgment be entered in favor of Plaintiff.
The parties are hereby advised that, pursuant to 28, United States Code, Section 636(b)(1)(C), written objections to the findings of fact, conclusions of law, and recommendation contained herein must be filed within ten (10) days of service of same. Failure to file objections to this Memorandum and Recommendation with the district court will preclude the parties from raising such objections on appeal. Thomas v. Arn, 474 U.S. 140, 152, 106 S.Ct. 466, 473 (1985); United States v. Schronce, 727 F.2d 91, 93-94 (4th Cir. 1984).