Opinion
Case No. 1:03-CV-88
December 31, 2003
ORDER AND JUDGMENT
In accordance with the Opinion filed on this date,
IT IS HEREBY ORDERED that Plaintiff's Motion For Judgment On The Administrative Record (docket no. 7) is DENIED.
IT IS FURTHER ORDERED that Plaintiff's Motion To Expand The Administrative Record (docket on. 9) is DENIED.
Judgment is hereby entered in favor of Defendant.
This case is CONCLUDED.
OPINION
Plaintiff, Carol Seiser ("Seiser"), has sued Defendant, UNUM Provident Corporation ("UNUM"), under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 to 1461, for review of UNUM's denial of long-term disability ("LTD") benefits. Seiser has filed a motion for judgment based upon the administrative record pursuant to the procedure set forth in Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609 (6th Cir. 1998), for determining ERISA denial of benefits claims. Also before the Court is Seiser's motion to expand the administrative record to include a copy of the Social Security Administration's decision awarding benefits to Seiser. For the reasons set forth below, the Court will deny both motions and enter judgment on the administrative record in favor of UNUM.
Facts
Seiser was employed as a nurse by Borgess Medical Center in Kalamazoo, Michigan until approximately 1995. Through her employment with Borgess, Seiser was covered by a long term disability policy issued by UNUM. The UNUM policy ("Policy" or "Plan") provides: "Disability" and "disabled" mean that because of injury or sickness:
1. the insured cannot perform each of the material duties of his regular occupation; and
2. after benefits have been paid for 36 months, the insured cannot perform each of the material duties of any gainful occupation for which he is reasonably fitted by training, education or experience.
(Administrative Record ("A.R.") at UACL00212.)
The Court notes that the definition of disability set forth in UNUM's brief, which is taken from the September 4, 2001, letter from Heather Friant to Seiser, differs from the language in the policy, found at UAGP00098, in that the "regular occupation" period in the Policy is 24 months rather than 36 months. There are also minor but immaterial differences in the language of the "any gainful occupation" provision.
In 1995, Seiser filed a claim for disability benefits under the Policy based upon orthopedic problems associated with her lower back. UNUM approved the claim and paid benefits from 1995 through September 17, 2001. By letter dated September 4, 2001, UNUM notified Seiser of its decision to deny LTD benefits. (A.R. at UACL00212.) UNUM concluded that Seiser is not disabled because she is capable of performing several sedentary occupations in the national economy.
Seiser has a long history of back problems dating from the late 1960s. Seiser had her first back surgery in 1967 for a transitional vertebrae. In 1985, Seiser began receiving treatment from Bruce E. Dall, M.D., an orthopedic surgeon. Dr. Dall and a neurosurgeon performed surgery for a fusion at the L4-5 level of her spine in October 1991. In October 1995, Dr. Dall and a neurosurgeon performed a third surgery on Seiser with instrumentation and the harvesting of both anterior iliac crests for graft, (Id. at UACL00093.) In addition to back problems, Seiser also suffers from arthritic problems, and underwent a DeQuervain's release for her right wrist sometime during 1995 or 1996. Phalen's and Tinel's sign tests have both indicated positive for carpel tunnel syndrome. (Id. at UACL00223.) Finally, Seiser has been treated by Robert E. Brush, M.D. for pulmonary and vascular problems, including chronic obstructive pulmonary disease. (Id. at UACL00166.)
At the time it made its decision to deny benefits, UNUM had before it statements from Seiser's treating physicians. On March 14, 2001, Dr. Dall completed an Attending Physician's Statement, which included restrictions of "no lifting [over] 10 pounds, no bending, twisting, pushing or pulling" and "sitting, standing and walking as tolerated." Id., at UACL00223.) Dr. Brush completed an Attending Physician's Statement on March 12, 2001. On his statement, Dr. Brush indicated that Seiser's restrictions and limitations were "no physical exertion." (Id. at UACL00221.)
UNUM submitted Seiser's medical information to Thomas Hashway, M.D., a physician board-certified in internal medicine, for review. Dr. Hashway agreed that the "data support [restrictions and limitations] of no light exertional activities," but concluded that Seiser "appears capable of sedentary occupational activities." (Id. at UACL00182.) UNUM also obtained a Transferrable Skill Analysis ("ISA"), which assumed that the restrictions and limitations identified by Dr. Dall were valid. The TSA found that based upon "Seiser's educational level, work history, experience, sedentary work capacity and restrictions on lifting over 10 lbs., bending, twisting, pushing or pulling and sitting, standing and walking as tolerated," Seiser is capable of performing several jobs in the local economy, (Id. at UACL00198-97.) UNUM made its decision to deny benefits based upon this information.
Seiser filed an administrative appeal of UNUM's decision and submitted a note dated September 12, 2001, from Dr. Dall stating that Seiser is "totally disabled from any useful work including sedentary work." (Id. at UACL00224.) By letter dated September 14, 2001, UNUM advised Seiser that the note from Dr. Dall was the only new piece of medical information submitted in support of the appeal, and there was no objective evidence to support the conclusion that Seiser was preluded from performing a sedentary occupation, (Id, at UACL00229.) Therefore, UNUM denied the appeal. However, UNUM indicated that it would forward the entire file to its Quality Performance Support Unit for a final determination of the claim. By letter dated October 26, 2001, UNUM informed Seiser that it was upholding its decision to deny benefits. (Id. at UACL00244.) UNUM stated that it did not contest the restrictions and limitations identified by Seiser's physicians, but it reiterated that "those restrictions and limitations identified would not preclude your ability to perform in a sedentary occupation." (Id. at UACL00241.) UNUM advised Seiser that it would consider any additional medical documentation generated as a result of a scheduled appointment with Dr. Fabi on November 30, 2001.
On November 30, 2001, Seiser sent additional information to UNUM from her "Orthopedic Spine Specialist, Neurosurgeon, and Pulmonologist." (Id. at UACL00261.) The note from Dr. Dall stated that Seiser was "permanently totally disabled from any useful work including sedentary work."(Id. at UACL00260.) The note from Dr. Brush stated that Seiser's pulmonary condition, "in conjunction with her orthopedic problems render her disabled from any employment where any physical activity is required." (Id. at UACL00259.) In the final note, Dr. Fabi, a neurosurgeon, stated that he agreed with Dr. Brush and Dr. Dall that Seiser is "totally disabled from any type of sedentary or gainful employment of any sort" due to her "limited abilities which encompass any moderate bending, twisting or turning and lifting greater than 5 pounds." (Id. at UACL00258.) However, Dr. Fabi stated that he was not commenting upon Seiser's pulmonary limitations, but was leaving that issue "up to Dr. Brush and his evaluations." (Id.)
UNUM requested that Dr. Hashway review the new information submitted by Seiser. On December 18, 2001, Dr. Hashway wrote:
I had commented on this file on 8/1/01. The file is under appeals. The new material has been read. I shall not comment on the orthopedic issues, since they have been previously addressed by Dr. Martin. The letter from the pulmonologist, Dr. Brush, states that her "moderately severe" lung disease "in conjunction with her orthopedic problems render her disabled." The implication is that the pulmonary problem alone is not sufficient to imply RL's of no sedentary occupational activity.
In response to your questions, the letter from the pulmonologist does not alter my previous opinion. I shall leave the orthopedic questions to other impairment units. I do not know if both the orthopedic and pulmonary combination is disabling because I do not know the degree of orthopedic impairment. I do feel a review by another specialist is warranted, either by Dr. Martin or by an orthopod.
(Id. at UACL00262.) UNUM subsequently forwarded Seiser's medical records to Dr. Martin, a board certified physician in occupational medicine. On January 10, 2002, Dr. Martin concluded that the new information did not alter his prior conclusion that Seiser was not disabled. Dr. Martin stated:
The clinical data does not appear to support a lack of physical demand capacity due to a combination of pulmonary and orthopedic conditions (c.f. Dr. Hashway's report of 12/18/01). No new clinical findings were noted in appeal documentation reviewed. As noted previously Dr. Dall's RL's in 03/01 appeared supported based upon clinical documentation available for review.
(Id at UACL00268.) On March 13, 2002, UNUM informed Seiser that UNUM's final determination, based upon the additional information submitted and reviewed by Drs. Hashway and Martin, was that Seiser was not disabled and therefore not entitled to benefits under the Policy.
Thereafter, Seiser filed the instant action.
Discussion
I. Standard of ReviewThe issue presented in this case is whether Seiser is entitled to disability benefits. See 29 U.S.C. § 1132(a)(1)(B). A plan administrator's denial of benefits under an ERISA plan is reviewed de novo "unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101, 115. 109 S.Ct. 948, 956-57 1989): see also Perez v. Aetna Life Ins. Co., 150 F.3d 550, 555 (6th Cir. 1998). The de novo standard of review applies to both the factual determinations and legal conclusions of the plan administrator.See Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 613 (6th Cir. 1998).
Where the plan clearly confers discretion upon the administrator to determine eligibility or construe the plan's provisions, the determination is reviewed under the "arbitrary and capricious" standard.Wells v. United States Steel Carnegie Pension Fund. Inc., 950 F.2d 1244, 1248 (6th Cir. 1991). The arbitrary and capricious standard "`is the least demanding form of judicial review of administrative action. When it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary or capricious.'" Davis v. Kentucky Fin. Cos. Retirement Plan, 887 F.2d 689, 693 (6th Cir. 1989) (citation omitted) (quoting Pokratz v. Jones Dairy Farm. 771 F.2d 206, 209 (7th Cir. 1985)); see also Miller v. Metropolitan Life Ins. Co., 925 F.2d 979, 984 (6th Cir. 1991) (noting that administrators' decisions "are not arbitrary and capricious if they are `rational in light of the plan's provisions'") (quoting Daniel v. Eaton Corp., 839 F.2d 263, 267 (6th Cir. 1988)). In applying this standard, the Court must defer to the administrator's interpretation when the plan vests the administrator with discretion to interpret the plan; an administrator's determination will be overturned only upon a showing of internal inconsistency in the plan or bad faith.Davis, 887 F.2d at 695. While no particular language is necessary to vest the plan administrator with discretion to interpret the plan or make benefit determinations, the Sixth Circuit "has consistently required that a plan contain `a clear grant of discretion [to the administrator] to determine benefits or interpret the plan.'"Perez, 150 F.3d at 555 (quoting Wulf v. Quantum Chem. Corp., 26 F.3d 1368, 1373 (6th Cir. 1993) (italics and alteration in original)).
The Policy contains the following provision with regard to the Plan Administrator's authority;
The policy is delivered in and is governed by the laws of the governing jurisdiction and to the extent applicable by the Employee Retirement Income Security Act of 1974 (ERISA) and any amendments. When making a benefit determination under the policy, UNUM has discretionary authority to determine your eligibility for benefits and to interpret the terms and provisions of the policy.
(A.R. at UAGP00052.) The Court concludes that the quoted provision is sufficient to grant UNUM the discretionary authority to interpret the Plan and to determine eligibility for benefits required to support application of the arbitrary and capricious standard. Seiser does not offer any persuasive argument to the contrary. Accordingly, the Court will apply the deferential standard of review to UNUM's denial of benefits.
II. Denial of Benefits
A. Motion To Expand The Administrative Record
Seiser has moved to expand the administrative record to include a copy of the Social Security decision awarding her disability benefits. The Sixth Circuit has firmly established that "in an ERISA claim contesting a denial of benefits, the district court is strictly limited to a consideration of the information actually considered by the administrator," Killian v. Healthsource Provident Adm'rs, Inc., 152 F.3d 514, 522 (6th Cir. 1998). UNUM made its final decision to deny benefits on March 13, 2002, but the Social Security decision was issued over six months later, on September 23, 2002. Because the Social Security decision was not, and could not have been, part of the administrative record considered by UNUM, Seiser's motion must be denied. Therefore, the Social Security decision will not be considered as part of the administrative record.
B. UNUM's Decision
Based upon the evidence in the administrative record, the Court concludes that UNUM's determination that Seiser is not disabled and, therefore, not entitled to benefits, was not arbitrary and capricious. Under the Policy, Seiser was entitled to benefits only if she was unable to "perform each of the material duties of any gainful occupation for which [s]he [wa]s reasonably fitted by training, education or experience." Thus, Seiser bore the burden of proving that she was entitled to disability benefits because she could not perform any occupation, including occupations that are sedentary in nature. See Miller v. Metro. Life Ins. Co., 925 F.2d 979, 985 (6th Cir. 1991).
As of September 4, 2001, when UNUM made its decision to terminate Seiser's benefits, UNUM had before it the restrictions and limitations from Seiser's physicians of "no lifting [over] ten pounds, no bending, twisting, pushing or pulling," "sitting, standing and walking as tolerated," and "no physical exertion." UNUM submitted this information for review to Dr. Hashway, a board certified internal medicine physician, who advised UNUM that Seiser is capable of sedentary occupational activities. UNUM also obtained a TSA, which indicated that Seiser was able to perform several sedentary occupations in the local economy. UNUM denied benefits because it concluded that the medical information did not support a level of impairment precluding Seiser from performing sedentary work.
UNUM also considered the additional medical information Seiser furnished in connection with her appeals and concluded, based upon opinions from two board-certified physicians and the opinions of two occupational medicine physicians, that its original determination that Seiser could perform sedentary work was correct. UNUM concluded that the additional evidence, which included Dr. Ball's September 12, 2001, and November 29, 2001, notes, Dr. Brush's November 29, 2001, note, and Dr. Fabi's November 19, 2001, note, failed to support reversal of the prior determination because while Seiser's physicians all opined that she was totally disabled from any occupation, they failed to provide any clinical findings showing that Seiser could not perform in a sedentary occupation. Given the lack of clinical evidence in the administrative record supporting such a conclusion, the Court cannot say that UNUM's decision to deny benefits was arbitrary and capricious.
Seiser contends that UNUM's decision to deny benefits was arbitrary and capricious because UNUM made its determination by picking and choosing the favorable medical evidence to support its conclusion without considering the overall effect of Seiser's impairments on her ability to perform sedentary work. Seiser further argues that UNUM did not "present physicians of equal skill and specialization with opinions that are contrary to those of the treating physicians." (Pl's Br. Supp. at 5.) These arguments must be rejected, because the administrative record shows that the physicians' opinions and conclusions UNUM relied on in reaching its decision incorporated the same medical restrictions and limitations prescribed by Seiser's physicians. Moreover, Seiser has not pointed to any specific evidence in the record showing that Dr. Hashway's or Dr. Martin's opinions were based upon incomplete or inaccurate conclusions. Although Seiser's physicians unanimously found her to be disabled from performing any occupation, they failed to cite any clinical evidence supporting this conclusion, as requested by UNUM. In the absence of such evidence, UNUM was not bound to accept those conclusory opinions.
Seiser cites Cunningham v. Paul Revere Life Insurance Co., 235 F. Supp.2d 746 (W.D.Mich. 2002), as support for the proposition that a plan administrator abuses its discretion when it relies on a reviewing physician's incomplete conclusions without regard for the objective medical evidence However, Cunningham is distinguishable from this case in several material respects First, the question in that case was whether the plaintiff was able to perform his own occupation, as opposed to any occupation as in this case Second, the opinions of the plaintiff's treating physicians were not conclusory and were supported by clinical findings Finally, the court found that the insurer's reasons for finding that the plaintiff was not disabled were not sound, because the plaintiff's occupation was not sedentary and the findings of the reviewing physician ignored the substantial objective medical evidence showing that the plaintiff could not perform the duties of his own occupation.
Conclusion
For the foregoing reasons, judgment will be entered in favor of UNUM.An Order and Judgment consistent with this Opinion will be entered.