Opinion
Civil Action No. 3:94-CV-1785-D.
January 7, 1997
MEMORANDUM OPINION AND ORDER
In this action to recover long term disability benefits, the defendant ERISA plan moves for summary judgment. For the reasons that follow, the court grants the motion and dismisses this action by judgment filed today.
Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001- 1461.
I
This is an action by plaintiff William D. Salazar ("Salazar") to recover long term disability benefits from defendant Owens-Illinois, Inc. Salary Employee Welfare Benefit Plan (the "Plan"), a self-funded ERISA employee benefit plan. Salazar is a Plan participant. Aetna Life Insurance Company ("Aetna") is the third party administrator of the Plan, and determines whether a Plan participant is "totally disabled. Aetna pays disability benefits, for which the Plan reimburses Aetna and compensates it through an administrative services fee. Aetna's determinations are subject to review by the Owens-Illinois Benefits Committee ("Committee").
Salazar originally sued Aetna. His action against Aetna was dismissed without prejudice pursuant to an agreed order of dismissal. The Plan is therefore the only remaining defendant.
After suffering an on-the-job injury, Salazar began receiving long term disability benefits. Plan participants are entitled to such benefits only if they are "totally disabled." Plan § II, at LTD-1. A participant is deemed to be "totally disabled" during the first 24 months of disability if he "cannot work at the type of occupation in which the employee normally engages." Id. After 24 months, however, the test for total disability changes. Thereafter, a participant is defined as "totally disabled"
only if the employee is unable to work at any reasonable occupation. A reasonable occupation is any gainful activity for which the employee is fitted by the employee's education, training, or experience, or for which the employee could reasonably become fitted.Id.
At the end of the applicable 24-month period, Aetna determined that Salazar was not "totally disabled" within the meaning of the Plan. Aetna based this conclusion on a statement of Salazar's physician, Richard A. Marks, M.D. ("Dr. Marks"). Dr. Marks opined that Salazar was capable of performing "sedentary work [with] frequent position changes," that he had a moderate limitation of functional capacity, and that he was capable of clerical/administrative (sedentary) activity, as defined in the Federal Dictionary of Occupational Titles. See Affidavit of Joe Greco ("Greco"), Ex. B.
Salazar asked Aetna to reconsider its decision, and submitted a new statement from Dr. Marks, in which he opined that Salazar had regressed. He reclassified Salazar as having a severe limitation of functional capacity, so that he was incapable of performing minimal sedentary activity. See id. Ex. C.
After receiving Dr. Marks' second statement, Aetna scheduled Salazar for an independent medical examination by Charles R. Crane, M.D. ("Dr. Crane"). Aetna instructed Salazar to bring to the examination all relevant X-rays, medications, and medical records. Salazar did not comply with this directive. This led Dr. Crane to state in his report that "it is difficult to be able to identify objective information as no medical records are available to confirm the information supplied by the patient," and that he felt "that it would be important to be able to review the reports of available medical records." See id. Ex. D at 2.
Despite not having access to Salazar's medical records, Dr. Crane made some preliminary findings. He reported that Salazar "feels that he will have to return to work activity that would fall within a sedentary or light type of job description and that he probably will have to be retrained." Id. Dr. Crane concluded from Salazar's statements that "based on the patient's story that he is not able to return to work at this time." Id.
Aetna informed Salazar that its reconsideration of the termination of long term disability benefits would require that he deliver his medical records to Dr. Crane. Salazar instead filed this suit against Aetna and, later, against the Plan, challenging the termination of benefits.
Thereafter, Dr. Crane conducted other medical examinations of Salazar. Aetna provided Dr. Crane with the medical records that Salazar had produced in discovery. On the basis of these examinations, Dr. Crane opined in a disability determination summary that Salazar could return to work. See Crane Aff. Ex. C. at 4-5. He stated that Salazar
does have the ability to be able to perform work. He displays the capability of being able to function within the light to medium work level with the consideration however that he stands little likelihood of being able to do this on a sustained six to eight hours a day basis five days a week. The patient describes and I believe that it is reasonable that he is uncertain when he is going to experience significant episodes of increased pain and needs the flexibility to be able to rest during those times when the pain becomes quite severe as well as needing the ability to be able to change position from sitting, standing and walking as his symptoms would dictate. This would mean that even from the standpoint of a sedentary job which he functionally displays the physical ability to do, he would need the flexibility to be able to change position as necessary and to be able to seek relief of acute pain by medical means on an as needed basis.Id. at 4-5.
Dr. Crane's findings were reviewed and found valid and accurate by Aetna's in-house medical consultant. Aetna also commissioned a transferable skills analysis, which was performed by Susan A. Plasse ("Plasse"), a Senior Rehabilitation Consultant employed by Aetna. Relying on Dr. Crane's disability determination summary, Plasse concluded that there were a number of light duty and sedentary work level jobs available in the Dallas area job market for which Salazar was fitted by his education, training, and experience. Plasse Aff. at ¶¶ 6 7. Plasse identified several of these as being within Salazar's former salary range. Id. at ¶ 7.
Aetna concluded that Salazar was not "totally disabled" within the meaning of the Plan. Salazar then asked the Committee to reconsider Aetna's findings. The Committee upheld Aetna's findings and determinations.
Salazar contends the proper standard of review is de novo. He asserts under this standard that Aetna erroneously terminated his benefits on the basis of Dr. Marks' first report, which included a diagnosis of Salazar's cervical — not lumbar — injuries, and after ignoring Dr. Crane's report that Salazar could not return to his former or different occupation, or any gainful work. He maintains that Aetna ignored that he was certified as severely disabled by the Texas Rehabilitation Commission. He contends he provided Aetna with a release that enabled Aetna (and Dr. Crane) to have full access to his medical records, but that Aetna failed to obtain the documents prior to denying benefits. Salazar also asserts that the Plan fails to acknowledge that, during the time he was attempting to regain disability benefits, he underwent several surgeries that increased his disability level. Salazar also challenges Aetna's reliance on findings that he asserts are contradicted by other medical opinions. Finally, he maintains that an unsuccessful work experience shows that he is totally disabled.
The Plan moves for summary judgment.
Because it need not do so, the court does not address all the grounds on which the Plan relies for summary judgment.
II
The court must determine as a threshold question what is the applicable standard of review.Relying on Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101 (1989), and post-Bruch Fifth Circuit decisions, Salazar maintains that the de novo standard applies because there is no evidence that the Plan's terms give the Plan Administrator discretionary authority to determine eligibility or to construe the Plan's terms. This position ignores the distinction between denials of benefits based on plan interpretation and those based on factual determinations. An ERISA plan administrator's factual determination that a participant is not "totally disabled" is reviewed under an abuse of discretion standard. See Sweatman v. Commercial Union Ins. Co., 39 F.3d 594, 597-98 (5th Cir. 1994) ("for factual determinations under ERISA plans, the abuse of discretion standard of review is the appropriate standard") (quoting Pierre v. Connecticut Gen. Life Ins. Co., 932 F.2d 1552, 1562 (5th Cir.), cert. denied, 502 U.S. 973 (1991)); see Pierre, 932 F.2d at 1556-57. Because Salazar challenges only the factual determination that he was not "totally disabled," the abuse of discretion standard applies without a specific showing that the Plan gives the administrator discretionary authority. See id. at 1556.
III A
When a party who will not have the burden of proof at trial, such as the Plan, moves for summary judgment, it may meet its summary judgment burden by pointing to the absence of evidence to support the nonmovant's claim. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The Plan directs the court to Salazar's inability to show an abuse of discretion. Because the Plan has satisfied its burden, Salazar must go beyond his pleadings and designate specific facts showing a genuine issue for trial concerning whether the Plan abused its discretion in denying his claims. See id.; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam).
B
"In applying the abuse of discretion standard, [the court] analyze[s] whether the plan administrator acted arbitrarily or capriciously." Salley v. E.I. DuPont de Nemours Co., 966 F.2d 1011, 1014 (5th Cir. 1992) (citation omitted). To avoid summary judgment, Salazar must raise a genuine issue of fact that there was an abuse of discretion — that is, that the Plan was administered arbitrarily and capriciously. See Sweatman, 39 F.3d at 601 (citing Salley, 966 F.2d at 1014).
Salazar maintains the Committee gave improper weight to the opinion of Dr. Crane in evaluating his condition. He asserts that the Committee could not rely on Dr. Crane's opinion when two of his treating physicians, Dr. Marks and Dr. Richard Guyer, diagnosed him as being "totally disabled." The presence of contradicting medical opinions will not allow a reasonable trier of fact to find that the Plan acted arbitrarily and capriciously. See id. at 601-03 (rejecting plaintiffs reliance on her doctors' opinions, and focusing on defendants' decision-making process in determining whether there had been an abuse of discretion). ERISA plan administrators may choose to rely on the opinions of independent medical consultants rather than on those of a participant's own physicians. See id. at 601; Salley, 966 F.2d at 1016 (rejecting the "treating physician rule" upon which Salazar relies).
Dr. Crane's disability determination summary provides sufficient evidence to support the Committee's finding that he was not "totally disabled" within the meaning of the Plan. Salazar's only objections to the statement are that Dr. Crane told him that the examination was limited to his lumbar injuries and refused to accept documentation that Salazar brought to his office on the new injuries following his surgeries. See Salazar Aff. ¶ 17.
Dr. Crane's statement represents an adequate independent evaluation upon which the Committee was entitled to rely. Plan administrators may rely on a physician's opinion if it is based on an independent evaluation or at least upon the most recent medical records. See Salley, 966 F.2d at 1015-16. Even assuming that Dr. Crane did not already have Salazar's records, the statement notes the subsequent surgeries, see Crane Aff. Ex. C. at 1, and the prognosis section refers to "subsequent post-operative complications in the form of [a] hernia and . . . a heart valve infection," id. at 4. Salazar does not contend that his condition has been altered further by surgery performed subsequent to his second examination by Dr. Crane. Additionally, it is clear that Dr. Crane performed tests on Salazar's complete physical condition, including his cervical condition, see, e.g. id. at 15, 17-20. His diagnosis includes the finding that Salazar suffers from "[c]ervical disco genic pain syndrome." Id. at 4. This did not alter his determination that Salazar had the residual functional capacity to work. See id. at 4-5.
In addition to challenging the weight given to Dr. Crane's statement, Salazar lodges several other objections to the determination that he was not "totally disabled." The majority appear to be predicated on a de novo standard of review. None creates a genuine issue of material fact, because none establishes alone, or in combination with one or more other arguments, that the Plan abused its discretion in making the finding of not "totally disabled." Although there may have been other evidence upon which Aetna could have relied, and evidence upon which it could not have relied in isolation, the record supports the determination.
C
The Plan did not abuse its discretion or act arbitrarily or capriciously in finding that Salazar was not "totally disabled." Aetna commissioned an independent medical examination and functional capacity evaluation by a physician whose credentials are not challenged. The results of that evaluation indicated that Salazar could work. Aetna's in-house medical consultant then reviewed this conclusion and found it to be accurate. Aetna obtained a transferable skills analysis that showed that there were jobs in the relevant geographic area that Salazar could perform. Salazar's evidence establishes at best that the Plan made the wrong decision. This is not adequate to avoid summary judgment. See Sweatman 39 F.3d at 601.