Leppert v. Liberty Life Assurance Co. of Boston , 661 F. App'x 425 ( 2016 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0630n.06
No. 16-3387
FILED
UNITED STATES COURT OF APPEALS Nov 29, 2016
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
DANA LEPPERT,
Plaintiff-Appellant,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
LIBERTY LIFE ASSURANCE CO. SOUTHERN DISTRICT OF OHIO
OF BOSTON,
Defendant-Appellee.
_____________________________/
BEFORE: DAUGHTREY, CLAY, and COOK, Circuit Judges.
CLAY, Circuit Judge. Plaintiff Dana Leppert appeals from the judgment entered by the
district court on March 24, 2016, granting Defendant Liberty Life Assurance Company of
Boston’s (“Liberty”) motion for summary judgment, and upholding Liberty’s decision to
terminate Leppert’s long term disability benefits. On appeal, Leppert argues that Liberty’s
benefits termination was arbitrary and capricious in violation of the Employee Retirement
Income Security Act of 1974 (“ERISA”). See 29 U.S.C. § 1001 et seq. We have jurisdiction to
entertain this appeal pursuant to 28 U.S.C. § 1291. For the reasons set forth below, we AFFIRM
the district court’s judgment.
BACKGROUND
I. Factual Background
Plaintiff Dana Leppert is a 60-year-old man formerly employed by Triumph Group Inc.
(“Triumph”), an aircraft manufacturer. Leppert graduated from high school in 1974, and has
never attended college or a trade school. Rather, Leppert has spent his entire adult life working
No. 16-3387
as a physical laborer in a variety of jobs ranging from farm work to washing and detailing
automobiles. From 1999 to 2011, Leppert worked as a window repairman for Triumph’s fleet of
aircraft.
In 2011, at age 55, Leppert was performing maintenance on his car when he heard and
felt several “pops” in his shoulders. (R. 11, Sealed Administrative Record, PageID #103.)
Leppert was subsequently diagnosed with “[m]assive” rotator cuff tears in both shoulders and
end-stage osteoarthritis in both knees, along with other smoking and obesity-related ailments.
Leppert ceased working at Triumph in May 2011, and applied for Social Security disability
benefits.
Leppert was examined by Dr. Elizabeth Das (“Dr. Das”) in order to determine his
eligibility for Social Security benefits. On December 13, 2011, Dr. Das issued a report finding
Leppert disabled within the meaning of the Social Security Act. Dr. Das determined that Leppert
suffers from three medically determinable impairments: (1) osteoarthritis and allied disorders;
(2) degenerative disc disease in his back; and (3) major joint dysfunction. Dr. Das classified all
three impairments as “[s]evere.” (Id. PageID #235.) Based on these impairments, Dr. Das
opined that Leppert was limited to “LIGHT”1 work (id. PageID #207), and could only: (1) lift or
carry twenty pounds for roughly two-to-three hours per day; (2) lift or carry ten pounds for
roughly two-to-five hours per day; (3) stand or walk for six hours per day; and (4) sit for six
hours per day. Dr. Das also noted that Leppert’s ability to use his hands was “[u]nlimited.” (Id.
PageID #206.) On December 31, 2011, the Social Security Administration accepted Dr. Das’
findings and awarded Leppert disability benefits beginning October 2011.
1
Social Security regulations describe “light work” as follows: “Light work involves lifting no
more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10
pounds. Even though the weight lifted may be very little, a job is in this category when it
requires a good deal of walking or standing, or when it involves sitting most of the time with
some pushing and pulling of arm or leg controls. To be considered capable of performing a full
or wide range of light work, the claimant must have the ability to do substantially all of these
activities. If the claimant can do light work, the Board determines that he or she can also do
sedentary work, unless there are additional limiting factors such as loss of fine dexterity or
inability to sit for long periods of time.” 20 C.F.R. § 220.132(b).
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Leppert also sought disability benefits under Triumph’s disability insurance plan with
Defendant Liberty Life Assurance Company of Boston (“the Plan”). The Plan provides two
methods of qualifying for long term disability benefits. First, if a worker becomes disabled from
performing his own occupation, he can receive up to two years’ worth of disability insurance
payments. Second, if a worker becomes disabled from performing any occupation, he can
continue to receive disability benefits until he is no longer disabled, or his maximum benefit
period expires, which for Leppert would have been September 18, 2022.
On or around August 31, 2011, Liberty contacted Dr. Joseph Assenmacher (“Dr.
Assenmacher”), Leppert’s treating orthopedist, in connection with Leppert’s claim that he was
disabled from performing his own occupation. After speaking with Dr. Assenmacher, Liberty
agreed that Leppert could no longer function as an airplane window repairman, and granted
Leppert twenty-four months of disability benefits starting October 29, 2011. Leppert was
eventually required to offset these benefits by his award from the Social Security Administration.
Liberty then began assessing Leppert’s long term prognosis. In connection with this
evaluation, Liberty enlisted Dr. Gale Brown, Jr. (“Dr. Brown”) to evaluate Leppert’s medical
records. As part of this review, Dr. Brown contacted Dr. Assenmacher to discuss Leppert’s
ailments. Dr. Brown and Dr. Assenmacher agreed that Leppert could perform full-time work
with the following restrictions:
 Occasional standing/walking, 10-15 minutes/session;
 Constant sitting, 45 minutes/session;
 No reaching/lifting above left shoulder level;
 Occasional lifting/carrying/pushing/pulling 10 lbs.
 No climbing/squatting/crouching/kneeling/crawling.
(Id. PageID #654.)
On May 3, 2012, Dr. Brown issued a report summarizing his findings. Relevant to this
appeal, Dr. Brown concluded that: (1) Leppert suffered from permanent partial physical
impairment in his shoulders and knees; (2) Leppert was therefore restricted to sedentary-light
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work as defined in Department of Labor regulations; (3) Leppert’s prognosis for resuming
sedentary-light work was “excellent;” (4) there was “no evidence for functionally limiting
comorbid diagnoses or medication side effects;” and (5) Leppert’s various complaints were
completely consistent with the conditions identified in his medical records. (Id. PageID #667–
68.) On February 18, 2013, after reviewing additional medical records submitted by Leppert, Dr.
Brown issued a supplemental report adhering to his conclusions expressed in the May 3, 2012
report.
After Dr. Brown issued his May 2012 report, Leppert was referred by Liberty to Ms. Lori
Ashworth (“Ms. Ashworth”), a vocational rehabilitation counselor, to determine whether Leppert
would be a good candidate for a job-retraining program. For reasons that are not entirely clear
from the record, this analysis was never completed. Ms. Ashworth stated on May 22, 2012 that
the analysis was being postponed so that Leppert could see Dr. Assenmacher about pain and
numbness in his hands. However, Dr. Assenmacher’s treatment notes for this period make no
mention of any problems with Leppert’s hands. In any event, on September 19, 2012 Ms.
Ashworth made a notation in Leppert’s file stating: “CONCLUDED [Leppert] NOT A GOOD
CANDIDATE FOR [Vocational] RETRAINING PROGRAM.” (Id. PageID #92.) Leppert was
accordingly never afforded vocational retraining services.
On March 6, 2013, Liberty began formally reviewing whether Leppert was disabled from
performing any occupation within the meaning of the Plan. As part of this review, Liberty asked
Michelle Reddinger (“Ms. Reddinger”), a certified rehabilitation counselor, to conduct a
vocational review and transferable skills analysis based on Dr. Brown’s report to determine
whether Leppert retained any skills that could help him find alternate employment. On March 8,
2013, Ms. Reddinger issued a report opining that Leppert possessed several transferable skills,
including: (1) the ability to communicate effectively with others; (2) the ability to assemble
objects; (3) the ability to read diagrams; (4) the ability to follow written and verbal instructions;
(5) the ability to utilize basic computer applications; and (6) the ability to record information
accurately. Based on these skills, and Leppert’s “training, education, and experience,” Ms.
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Reddinger opined that Leppert could perform four occupations: (1) “Assembler, Small Products
(e.g., bench);” (2) “Electronic Assembler (e.g., bench);” (3) “Information Clerk (e.g., mall,
airport or visitor’s center);” or (4) “Security Guard (e.g., badge checker).” (Id. PageID #503.)
Liberty also asked Dr. Martin Kanner (“Dr. Kanner”) to conduct an independent peer
review of Leppert’s medical records. On July 23, 2013, Dr. Kanner issued a report opining that:
(1) Leppert’s knee and shoulder diagnoses were consistent with the medical evidence; (2) Dr.
Brown was correct that Leppert would need to observe certain limitations in any physical work
he conducted; and (3) Dr. Brown’s recommended limitations could be observed in light or
sedentary occupations.
On September 26, 2013, Liberty notified Leppert that, based on Ms. Reddinger and Dr.
Kanner’s reports, it had determined that Leppert was not disabled from performing any
occupation, and therefore was not entitled to more than two years’ worth of disability benefits,
according to the terms of the Plan. Accordingly, Liberty terminated Leppert’s benefits as of
October 28, 2013. On March 24, 2014, Leppert filed a timely administrative appeal, enclosing:
(1) Leppert’s complete Social Security disability file; and (2) several sets of vocational
documents. As part of the appeal, Leppert enclosed notes from April 2013 by Dr. Mark C.
Nadaud (“Dr. Nadaud”), Leppert’s treating physician, diagnosing Leppert with degenerative
joint disease of the hands, and noting deformities in Leppert’s fingers. In these notes, Dr.
Nadaud expressly declined to evaluate whether Leppert’s hand problems would diminish
Leppert’s work capacity, stating that a functional capacity evaluation would be necessary to
assess the effects of Leppert’s degenerative joint disease.
In order to evaluate Leppert’s appeal, Liberty obtained an additional peer review of
Leppert’s medical records from Dr. Francesca Litow (“Dr. Litow”). In a report dated June 4,
2014, Dr. Litow confirmed that Leppert’s shoulder and knee ailments were medically supported.
Dr. Litow also opined that Leppert would need to work with physical restrictions including:
(1) no reaching, lifting or work over shoulder level; (2) limit lifting to ten pounds frequently and
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twenty pounds occasionally with both upper extremities; and (3) no climbing ladders, squatting,
crawling, kneeling, or crouching.
Liberty issued a final decision denying Leppert’s appeal on June 6, 2014. In its denial
letter, Liberty reviewed the medical expert opinions in the record, including those offered by
Dr. Das, Dr. Brown, Dr. Assenmacher, Ms. Reddinger, Dr. Kanner, and Dr. Litow, and noted
that the experts generally agreed that Leppert could perform physical work with restrictions to
account for his ailments. Liberty also stated that it had reviewed the Social Security
Administration’s benefits determination, and had denied benefits under the Plan because Liberty
had the benefit of more recent medical records. Finally, Liberty addressed several specific
arguments Leppert made in his administrative appeal, including that Leppert’s degenerative joint
disease in his hands would make him unsuited to perform any of the occupations identified by
Ms. Reddinger in her vocational report. Liberty noted that there was no objective medical
evidence in the record that Leppert’s hand problems would limit his ability to work in the jobs
identified by Ms. Reddinger.
II. Procedural History
On August 11, 2014, Leppert brought suit in the United States District Court for the
Southern District of Ohio, alleging that Liberty had illegally withheld benefits that Leppert was
otherwise entitled to in violation of 29 U.S.C. § 1132(a)(1)(b). Liberty filed an answer on
September 25, 2014, denying Leppert’s allegations. On May 15, 2015, the parties filed cross-
motions for summary judgment on the administrative record, essentially relitigating the same
arguments that were involved in Leppert’s administrative appeal.
On March 24, 2016, the district court granted Liberty’s summary judgment motion and
denied Leppert’s motion. Leppert v. Liberty Life Assur. Co. of Bos., No. 2:14-cv-1207, 2016 WL
1161957, at *6 (S.D. Ohio Mar. 24, 2016). The district court first determined that its review was
limited to whether Liberty’s benefits denial was arbitrary and capricious in light of the evidence
in the administrative record. Id. at *2. The district court then reviewed the objective medical
evidence Liberty relied upon at length, recounting the opinions of Drs. Brown, Assenmacher,
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Kanner, Litow, and Das, as well as Ms. Reddinger. Id. at *3. The district court concluded that
Leppert had failed to carry his burden of presenting objective medical evidence to show that he
was disabled from performing any occupation, as required by the Plan. Id. at *4. The district
court further concluded that Liberty did not act arbitrarily or capriciously in crediting the expert
evidence in the record, nearly all of which found that Leppert could still perform light or
sedentary work. Id. at *4–5. The district court rejected Leppert’s argument that Liberty had
arbitrarily ignored the Social Security Administration’s disability determination, noting that none
of the Social Security documents in the record purported to find that Leppert was incapable of
performing even light or sedentary work. Id. at *5. Finally, the district court rejected Leppert’s
argument that Liberty had improperly calculated the benefits he was owed during his initial two
years of disability. Id. at *5–6.
The district court entered judgment against Leppert on the same day it released its
opinion granting summary judgment. On April 15, 2016, Leppert filed a timely notice of appeal.
DISCUSSION
I. Standard of Review
We review de novo “the district court’s disposition of an ERISA action based upon the
administrative record, and apply the same legal standard as the district court.” Kovach v. Zurich
Am. Ins. Co., 587 F.3d 323, 328 (6th Cir. 2009). The legal standard governing our review of an
ERISA plan administrator’s benefits determination differs based on the terms of the plan. Where
the plan “gives the plan administrator discretionary authority to determine eligibility for benefits
or to construe the terms of the plan,” we review the administrator’s determination “under an
‘arbitrary and capricious’ standard.” Morrison v. Marsh & McLennan Cos., Inc., 439 F.3d 295,
300 (6th Cir. 2006) (quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111 (1989)).
Where no such discretion is granted, our review is de novo. Id. Regardless of which standard
applies, our review is confined to the documents contained in the administrative record.
Schwalm v. Guardian Life Ins. Co. of Am., 626 F.3d 299, 308 (6th Cir. 2010).
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“Review under the arbitrary and capricious standard is the least demanding form of
judicial review of an administrative action; it requires only an explanation based on substantial
evidence that results from a deliberate and principled reasoning process.” Morrison, 439 F.3d at
300. “Nonetheless, this deferential standard is ‘tempered’ by any possible conflict of interest
where the Plan Administrator both determines eligibility and funds the Plan.” Farhner v. United
Transp. Discipline Income Protection Program, 645 F.3d 338, 342 (6th Cir. 2011) (quoting
Univ. Hosp. of Cleveland v. Emerson Elec. Co., 202 F.3d 839, 846 (6th Cir. 2000)). “[S]uch a
conflict is a red flag that may trigger a somewhat more searching review of a plan administrator's
decision,” although “the arbitrary and capricious standard remains in place.” Schwalm, 626 F.3d
at 311–12.
A structural conflict of interest “should prove more important (perhaps of great
importance) where circumstances suggest a higher likelihood that it affected the benefits
decision, including, but not limited to, cases where an insurance company administrator has a
history of biased claims administration.” Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 117
(2008). “It should prove less important (perhaps to the vanishing point) where the administrator
has taken active steps to reduce potential bias and to promote accuracy, for example, by walling
off claims administrators from those interested in firm finances, or by imposing management
checks that penalize inaccurate decisionmaking [sic] irrespective of whom the inaccuracy
benefits.” Id. “Mere allegations of the existence of a structural conflict of interest are not
enough to show that the denial of a claim was arbitrary; there must be some evidence that the
alleged conflict of interest affected the plan administrator’s decision to deny benefits.” Jackson
v. Metro. Life, 24 F. App’x 290, 292 (6th Cir. 2001) (citing Peruzzi v. Summa Med. Plan, 137
F.3d 431, 433 (6th Cir. 1998)); Iley v. Metro. Life Ins. Co., 261 F. App’x 860, 864 (6th Cir.
2008) (same).
Here, the Plan provides:
Liberty shall possess the authority, in its sole discretion, to construe the terms of
this policy and to determine benefit eligibility hereunder. Liberty’s decisions
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regarding construction of the terms of this policy and benefit eligibility shall be
conclusive and binding.
(R. 11 PageID #65.) The parties agree that this language confers sufficient discretion upon
Liberty to trigger the arbitrary and capricious standard of review. Morrison, 439 F.3d at 300.
Leppert argues that because Liberty both determines Plan eligibility and funds the Plan, it has a
structural conflict of interest that should temper the deference we accord Liberty’s decision.
However, Leppert has put forward no evidence showing that Liberty’s conflict influenced its
decision in this case, or that Liberty has a history of biased claims administration. Accordingly,
Liberty’s conflict has little bearing on this appeal, and we will review Liberty’s benefits
determination under the full deference accorded by the arbitrary and capricious standard. Glenn,
554 U.S. at 117; Peruzzi, 137 F.3d at 433 (holding that structural conflict was not important
where “the record reveal[ed] no significant evidence that [plan administrator] based its
determination on the costs associated with [claimant’s] treatment or otherwise acted in bad
faith”).
II. Liberty’s Benefits Determination
Leppert offers a wide range of arguments criticizing Liberty’s benefits determination, and
urges us to find that Liberty’s conclusion was arbitrary and capricious. We have reviewed the
record in detail, and disagree. We hold that Liberty reasonably concluded based on substantial
record evidence that Leppert was not totally disabled within the meaning of the Plan.
Under the Plan’s terms, in order to receive long term disability coverage, Leppert was
required to provide “Liberty Proof of continued . . . Disability.” (R. 11 PageID #45.) Relevant
here, Disability means that “the Covered Person, as a result of Injury or Sickness, is unable to
perform the Material and Substantial Duties of Any Occupation.” (Id. PageID #36.) “Material
and Substantial Duties” are defined as “responsibilities that are normally required to perform the
Covered Person’s Own Occupation, or any other occupation, and cannot be reasonably
eliminated or modified.” (Id. PageID #38.) “Any Occupation” is defined as “any occupation
that the Covered Person is or becomes reasonably fitted by training, education, experience, age,
physical and mental capacity [sic].” (Id. PageID #35.)
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‘Proof’ means the evidence in support of a claim for benefits and includes, but is
not limited to, the following:
1. a claim form completed and signed (or otherwise formally
submitted) by the Covered Person claiming benefits;
2. an attending Physician’s statement completed and signed (or
otherwise formally submitted) by the Covered Person’s attending
Physician; and
3. the provision by the attending Physician of standard diagnosis,
chart notes, lab findings, test results, x-rays and/or other forms of
objective medical evidence in support of a claim for benefits.
(Id. PageID #39.)
Moreover, the Plan also provides that in “determining whether the Covered Person is
Disabled, Liberty will not consider employment factors including, but not limited to,
interpersonal conflict in the workplace, recession, job obsolescence, paycuts, job sharing and loss
of professional or occupational license or certification.” (Id. PageID #45.)
Thus, applying the Plan’s terms, in order to obtain benefits, Leppert was required to
provide objective medical evidence showing that there was no occupation that he could perform
in light of his age, skills, education, and physical and mental health. Liberty determined that
there were occupations that Leppert could perform even with his physical ailments. In order to
disturb this finding on appeal, Leppert must show that Liberty’s determination was not based on
substantial record evidence and did not result from a “deliberate and principled reasoning
process.” Morrison, 439 F.3d at 300. Leppert has not made this showing.
The record shows that Liberty evaluated the conclusions of six medical experts. Five of
those experts offered opinions on whether Leppert could still perform full-time employment, and
all five indicated that he could perform such work, with four opining specifically that he could
perform light or sedentary work. The sixth medical expert (Dr. Litow) opined that Leppert
required physical restrictions consistent with those proposed by the other experts. The medical
experts were thus unanimous that Leppert could perform physical work with restrictions
designed to accommodate Leppert’s admittedly severe shoulder and knee problems. And Ms.
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Reddinger opined that there were specific jobs within the light and sedentary work classifications
that would conform to Leppert’s restrictions.
We hold that, under the facts presented here, it was not arbitrary and capricious for
Liberty to rely on the unanimous conclusions of so many medical experts in determining whether
Leppert could perform “Any Occupation” within the meaning of the Plan. Liberty’s benefits
denial letter shows that it reviewed the administrative record in detail, considered the conclusions
of medical experts, considered Leppert’s arguments for deviating from the experts’ conclusions,
and made a reasoned determination to accept the conclusions of the various doctors and
vocational experts that either examined Leppert in person, or reviewed his medical records.
Because Leppert did not offer objective medical evidence contradicting the experts’ conclusions,
the law requires no more. See, e.g., Judge v. Metro. Life Ins. Co., 710 F.3d 651, 660 (6th Cir.
2013) (affirming benefits denial where claimant failed to provide objective medical evidence
contradicting expert opinions that he could return to work); Whitaker v. Hartford Life & Accident
Ins. Co., 404 F.3d 947, 950 (6th Cir. 2005) (affirming benefits denial where insurer relied on
medical records review from two independent physicians who concluded that claimant was not
disabled within the plan’s meaning); Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 614
(6th Cir. 1998) (affirming benefits denial of claim based on rotator cuff injuries where claimant
failed to provide objective medical evidence supporting claim, and where none of the doctors
who examined claimant “determined that he [was] disabled or unable to return to work
indefinitely”).
Leppert offers a laundry list of arguments attacking the methodology employed by the
medical experts. Although some of these arguments state potentially valid criticisms of the
experts’ review, we note that under the Plan’s terms, it is insufficient for Leppert to merely cast
doubt on the medical evidence Liberty relied upon in making its benefits determination. Rather,
Leppert bore the burden of proving his disability through objective medical evidence, and on
appeal, Leppert bears the higher burden of showing that Liberty unreasonably weighed the
evidence in making its benefits determination. Judge, 710 F.3d at 661; Likas v. Life Ins. Co. of
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N. Am., 347 F. App’x 162, 167 (6th Cir. 2009) (“Plaintiff must provide ‘continued proof’ of his
disability under the policy; LINA does not bear the burden of showing that plaintiff's eligibility
has ended.”). Because Leppert offered neither contradictory expert evidence showing that he
could not perform any light or sedentary job, nor evidence showing that Liberty’s benefits
determination was infected by bias, we hold that Leppert has not shown that Liberty acted
arbitrarily and capriciously by simply accepting the conclusions drawn by the experts who
reviewed Leppert’s medical history. Nevertheless, we will review each of Leppert’s arguments
in turn.
III. Leppert’s Arguments
A. Failure to Discuss Leppert’s Age
First, Leppert argues that the Plan explicitly required Liberty to consider Leppert’s age in
determining whether Leppert could perform Any Occupation, that Liberty failed to do so, and
that Liberty’s failure rendered its benefits determination arbitrary and capricious. Leppert argues
that if Liberty had considered his age, it would have realized that as a 60-year-old man with
severe medical problems, limited education, and limited job skills, Leppert was unlikely to be
able to acquire the kinds of new skills necessary to obtain any of the light or sedentary jobs
Ms. Reddinger identified in her report. In support of this argument, Leppert cites Social Security
regulations related to the determination of disability benefits for persons “limited to light work as
a result of severe medically determinable impairment(s).” 20 C.F.R. Pt. 404, Subpt. P, App’x 2,
§ 202.00(c). Those regulations provide that:
[F]or individuals of advanced age who can no longer perform vocationally
relevant past work and who have a history of unskilled work experience, or who
have only skills that are not readily transferable to a significant range of semi-
skilled or skilled work that is within the individual’s functional capacity, or who
have no work experience, the limitations in vocational adaptability represented by
functional restriction to light work warrant a finding of disabled. Ordinarily, even
a high school education or more which was completed in the remote past will
have little positive impact on effecting a vocational adjustment unless relevant
work experience reflects use of such education.
Id.
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As Leppert correctly notes, these regulations were not binding on Liberty in making its
benefits determination. See Black & Decker Disability Plan v. Nord, 538 U.S. 822, 833–34
(2003); Calvert v. Firstar Fin., Inc., 409 F.3d 286, 294 (6th Cir. 2005). But Leppert’s argument
suffers from a more fundamental problem. Leppert’s age was included in the medical records
reviewed by Ms. Reddinger and the rest of the medical experts that Liberty asked to review
Leppert’s files. Thus, when Ms. Reddinger opined that Leppert could perform existing light and
sedentary occupations, she made that determination despite knowing Leppert’s age. Therefore,
Liberty implicitly considered Leppert’s age in crediting Ms. Reddinger’s findings. Nothing in
the Plan required Liberty to explicitly mention Leppert’s age in denying his benefits request, and
in light of Liberty’s detailed explanation recounting the medical evidence in the administrative
record, we cannot say that Liberty’s failure to discuss Leppert’s age rendered its decision
arbitrary and capricious.
We are not persuaded by the cases Leppert cites in support of his argument. In
Filipowicz v. American Stores Benefit Plans Committee, 56 F.3d 807, 814 (7th Cir. 1995), the
court held that the plan administrator’s decision to read limitations into the plan documents that
were not reflected in the plan’s plain language was arbitrary and capricious. And in Dalesandro
v. International Paper Co., 214 F.R.D. 473, 479–80 (S.D. Ohio 2003), the district court
concluded that the plan administrator’s decision to ignore plan provisions that triggered benefits
upon the claimant’s termination was arbitrary and capricious. These cases involved the plan
administrator contradicting express plan language, and have little applicability here.
The Western District of Arkansas’s decision in Mackey v. Liberty Life Assurance Co. of
Boston, 168 F. Supp. 3d 1162, 1171 (W.D. Ark. 2016) is considerably more relevant, but
ultimately inapposite. In Mackey, a 63-year-old claimant sought long term disability benefits
from Liberty under a materially similar plan. The district court faulted Liberty for failing to
discuss whether the claimant’s age and lack of computer training would render her unable to
obtain employment in the occupations suggested by Liberty’s vocational expert, and remanded
for a new benefits determination. Id. Unlike Leppert, however, the Mackey claimant offered her
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own vocational expert contradicting the analysis performed by Liberty. Id. at 1169. Liberty’s
failure to evaluate the claimant’s age was thus more relevant, since Liberty was required to
weigh the competing evidence and offer a reasoned basis for trusting its own expert over the
claimant’s. Id. Because Leppert offered no expert evidence suggesting that he lacks the skills to
perform the jobs identified by Liberty here, however, Mackey is not on point.
Rather, we are more persuaded by the Eighth Circuit’s decision in Gerhardt v. Liberty
Life Assurance Co. of Boston, 736 F.3d 777, 783 (8th Cir. 2013). There, as in Mackey, the
claimant sought long term disability benefits from Liberty under a plan materially similar to the
one at issue here. The 52-year-old claimant argued that Liberty had acted arbitrarily and
capriciously by failing to discuss her age in determining whether she could adequately perform
the occupations identified by Liberty’s vocational expert. Id. The Eighth Circuit rejected this
argument because Liberty’s first benefits determination letter mentioned that it had considered
her age, and because “most of the reports issued by the reviewing physicians and vocational
consultants” mentioned her age. Id.
Here, although Liberty never mentioned Leppert’s age in any of its benefits denial letters,
each of the experts Liberty relied upon noted Leppert’s age in conducting their review. As in
Gerhardt, we hold that Liberty did not impermissibly fail to consider Leppert’s age in light of its
otherwise detailed record review, its reliance on experts who considered Leppert’s age, and
Leppert’s failure to provide contradictory expert testimony.
B. Conflicting Vocational Opinions
Second, Leppert argues that Liberty’s determination was arbitrary and capricious because
it failed to explain why it accepted Ms. Reddinger’s vocational report over conflicting vocational
determinations in the record. Specifically, Leppert argues that Ms. Ashworth and the Social
Security Administration determined that Leppert has no transferable skills, which, if true, would
seriously undermine Liberty’s conclusion that Leppert could perform additional occupations.
Leppert’s argument is not supported by the record, however. Although Ms. Ashworth did
initiate a vocational assessment for Leppert in 2012, as the district court correct noted, this
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assessment was never completed. Leppert argues that the vocational assessment was terminated
because Ms. Ashworth determined that Leppert lacked any transferable skills. For support,
Leppert cites a notation made in his file on September 19, 2012 stating that Ms. Ashworth
“CONCLUDED [Leppert] NOT A GOOD CANDIDATE FOR [Vocational] RETRAINING
PROGRAM.” (R. 11 PageID #92.) On its face, this notation does not state why Leppert was not
considered a good candidate for a vocational retraining program—and it certainly does not state
that Leppert had no transferable skills.
Moreover, the Social Security Administration’s award letter does not state the basis for
its finding that Leppert is disabled, and does not purport to conclude that Leppert lacked any
transferable skills. In fact, when Leppert was examined for his Social Security benefits
determination, Dr. Das concluded that he was capable of performing light work. When the
Social Security Administration determines eligibility for disability benefits, it evaluates whether
the applicant can perform “substantial gainful work that exists in the national economy.”
20 C.F.R. § 404.1505(a). Determining whether an applicant can perform substantial gainful
work involves consideration of a lengthy and complex list of criteria, many of which are
different from the criteria the Plan uses to determine whether a claimant can perform “Any
Occupation.” Compare id. § 404.1574, with (R. 11, PageID #35). Without specific findings in
the Social Security Administration’s benefits award letter, it is not proper to assume that the
Social Security Administration necessarily found that Leppert could not perform Any
Occupation within the meaning of the Plan. See, e.g., Black v. Long Term Disability Ins., 582
F.3d 738, 748 (7th Cir. 2009) (explaining that the Social Security Administration’s disability
determination is not dispositive where “the Social Security Act’s disability standard is different
from that in the ERISA plan”); Schatz v. Mut. of Omaha Ins. Co., 220 F.3d 944, 950 n.9 (8th Cir.
2000) (same).
Accordingly, because there is no record evidence contradicting Ms. Reddinger’s
assessment that Leppert possesses transferable skills that could enable him to obtain light or
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No. 16-3387
sedentary work, Liberty did not act arbitrarily and capriciously by accepting Ms. Reddinger’s
conclusions.
C. Social Security Administration’s Findings
Third, Leppert argues that Liberty failed to adequately explain why it rejected the Social
Security Administration’s disability findings in denying Leppert long term disability benefits.
Although he does not say so explicitly, Leppert implies that the Social Security Administration
found that he was totally disabled and could not perform any occupation in awarding him
benefits.
Putting aside the fact that the Social Security Administration’s determination was not
binding on Liberty, DeLisle v. Sun Life Assur. Co. of Canada, 558 F.3d 440, 445–46 (6th Cir.
2009), Leppert’s argument is once again not supported by the record. The Social Security
Administration’s award letter does not state the basis for its benefits determination; it merely
notifies Leppert: (1) that he was entitled to benefits; and (2) of the effective date of those
benefits. As the district court thus correctly noted, nothing in the record suggests that the Social
Security Administration determined that Leppert could not perform Any Occupation as that term
is used in the Plan. Rather, under existing Social Security regulations, Leppert could have been
awarded benefits for a variety of reasons, including that he had been unable to find a job in the
sluggish post-recession economy, see 20 C.F.R. § 404.1574(c)—a factor that the Plan expressly
does not require Liberty to consider. Liberty therefore did not act arbitrarily or capriciously in
failing to distinguish findings that were not reasonably present in the record.
Leppert also argues that Liberty was too conclusory in explaining why it did not follow
the Social Security Administration’s disability determination. In its letter rejecting Leppert’s
benefits appeal, Liberty discussed the Social Security determination as follows:
In our review of Leppert’s claim, Liberty Life has fully considered the Social
Security Administration’s (SSA) December 2011 ruling to approve Social
Security Disability Income benefits under their rules for his disability beginning
in April 2011. It should be noted, however, that while we fully consider the
SSA’s ruling, the determination by the SSA is not determinative of entitlement to
benefits under the terms and conditions of the Triumph Group Inc. Group
Disability Income Policy and our determination considered additional medical
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No. 16-3387
and vocational reviews. Moreover, Liberty Life has obtained and considered
more current medical records that were not considered by the SSA in its
determination process.
(Id. PageID #120.) Because the Social Security Administration did not issue any findings
contradicting Liberty’s conclusions, Liberty was not required to say more than this. See Cox v.
Standard Ins. Co., 585 F.3d 295, 302 (6th Cir. 2009) (“We have previously upheld a denial of
benefits where independent consultants reviewed the medical records and determined that the
claimant was not disabled within the meaning of the policy, although the claimant had been
declared disabled by the Social Security Administration.”); O’Bryan v. Consol Energy, Inc.,
477 F. App’x 306, 308 (6th Cir. 2012) (upholding plan administrator’s language distinguishing
Social Security benefits award that stated, inter alia, that administrator “had additional medical
evidence that the Social Security [Administration] did not”).
Finally, the cases Leppert cites in support of this argument are distinguishable. In
DeLisle, there was much stronger evidence that the administrator had failed to consider the
Social Security Administration’s findings because “none of the three denial letters [the
administrator] sent [the claimant] mention[ed] her Social Security determination as a fact that
[the administrator] considered in reaching its own determination,” and only “one of [the
administrator’s] reviewers even acknowledged in his report that he was aware of the Social
Security determination.” 558 F.3d at 446. Likewise, in Bennett v. Kemper National Services,
Inc., 514 F.3d 547, 554 (6th Cir. 2008), the administrator “in its final benefits determination[]
failed to discuss the SSA’s determination that [the claimant] was ‘disabled’ under the Social
Security Act.” And in Glenn v. Metlife, 461 F.3d 660, 667 (6th Cir. 2006), aff’d sub nom. Metro.
Life Ins. Co. v. Glenn, 554 U.S. at 105, the administrator failed to discuss an explicit finding by
an administrative law judge that the claimant was “totally disabled.” Here, by contrast, Liberty
expressly discussed the Social Security Administration’s determination in Leppert’s denial letter,
and there are no explicit findings by the Social Security Administration that Liberty was required
to specifically address.
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No. 16-3387
D. Leppert’s Hand Ailments
Next, Leppert argues that Liberty failed to appropriately consider whether Leppert could
perform the occupations identified in Ms. Reddinger’s vocational report in light of Leppert’s
degenerative joint disease in his hands, which allegedly developed in 2013. Once again,
Leppert’s argument is not supported by the record. In order to see why this is so, we will briefly
review the medical evidence in the record related to Leppert’s hands.
In her December 12, 2011 report in connection with Leppert’s application for Social
Security disability benefits, Dr. Das noted that Leppert had no limitations in the feeling and use
of his hands. Thereafter, in May of 2012, in connection with Leppert’s benefits review for
Liberty, Leppert told Ms. Ashworth that his left arm and fingers were going numb approximately
twenty times per day. Ms. Ashworth delayed Leppert’s vocational assessment pending an
upcoming appointment with Dr. Assenmacher (Leppert’s orthopedist), where Leppert planned to
raise the issues with his left hand. However, as the district court correctly noted, Dr.
Assenmacher’s treatment notes make no reference to any problems with Leppert’s hands. Then,
in his April 8, 2013 examination report, Dr. Nadaud noted that Leppert had deformities in his
fingers, and diagnosed him with degenerative joint disease of the hands. Dr. Nadaud did not
note that these problems would limit Leppert’s functional use of his hands, however. Finally,
when Dr. Litow reviewed Leppert’s medical files for his benefits appeal in 2014, she noted
Dr. Nadaud’s diagnosis and the deformities in Leppert’s fingers, but did not recommend any
additional occupational limitations based on this diagnosis.
In its benefits denial letter, Liberty stated:
You also assert that Leppert has impairments with manual dexterity; however, no
impairments, restrictions, or limitations have been supported to this end based on
the medical reviews documented on file. Similarly, Dr. Das specifically indicated
in the residual functioning capacity assessment that Leppert was unlimited with
handling (gross manipulation), fingering (fine manipulation) or feeling.
(Id. PageID #92.)
Leppert argues that this language shows that Liberty does not believe that Leppert suffers
from pain and numbness in his hands, and that Liberty’s benefits denial therefore rested on an
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No. 16-3387
improper credibility determination that Liberty should not have made as part of a file review.
But Liberty did not say that it believed Leppert was malingering. Rather, Liberty accurately
pointed out that there is no objective medical evidence in the record that Leppert’s hand
functionality is in any way impaired by his degenerative joint disease. The only evidence in the
record, in fact, suggests that Leppert has no functional limitations with his hands. To wit, in
2011, Dr. Das specifically noted that Leppert’s hand functionality was unlimited, and in 2014,
Dr. Litow noted Leppert’s deformities in his fingers but did not impose any new limitations on
his ability to work. Because Leppert bore the burden of coming forward with objective medical
evidence demonstrating that his hand problems would prevent him from performing Any
Occupation, and he offered none, Liberty was entitled to credit the expert evidence in the file
suggesting that Leppert’s hand problems do not impair his functionality. Whitaker, 404 F.3d at
950; Wilkins, 150 F.3d at 614. Therefore, Liberty did not act arbitrarily or capriciously in failing
to reject Ms. Reddinger’s vocational assessment on the basis of Leppert’s degenerative joint
disease.
E. Transferable Skills Analysis
Leppert next argues that Liberty conceded in its benefits denial letter that he could only
perform sedentary—and not light—work, and that therefore the only job Leppert could possibly
perform of the four identified by Ms. Reddinger was “information clerk.” Leppert argues that
Liberty abused its discretion in determining that Leppert could be an “information clerk”
because: (1) he lacks sufficient familiarity with computers to conform to that job’s requirements;
(2) his degenerative joint disease would impair his ability to type; and (3) due to the first two
limitations, Leppert could not earn enough as an information clerk in order to approximate the
amount he would receive in benefits.
Leppert’s argument is not entirely without merit. He is a 60-year-old man without a
college education who spent his entire life performing physical labor. The record is clear that
Leppert possesses only limited computer skills. Liberty’s determination that Leppert could
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No. 16-3387
function as an “information clerk,” which appears to require at least basic familiarity with
ordinary office computer functions (R. 11 PageID #196), is difficult to credit.
Nevertheless, according to the terms of the Plan, Leppert is not entitled to long term
disability benefits if there is “Any Occupation” he is competent to perform. And Leppert’s
assertion that Liberty “conceded” that he could only perform sedentary as opposed to light work
is a straw man. Liberty’s benefits denial letter makes no such concession, and in fact, as noted
earlier, the expert evidence in the record is unanimous that Leppert is competent to perform light
work. Accordingly, if Liberty was reasonably justified in concluding that Leppert could perform
any of the four occupations identified by Ms. Reddinger, Leppert’s appeal must fail.
At least two of the occupations identified by Ms. Reddinger—small products assembler,
and security guard (e.g., badge checker)—do not appear to require any particular facility with
computers. Accordingly, because Leppert has not carried his burden to show either that his
physical limitations would prevent him from performing those jobs, or that those jobs require
skills that he could not reasonably acquire at his age and experience level, Liberty did not abuse
its discretion in determining that Leppert is not entitled to long term disability benefits.2
F. Liberty’s Conflict of Interest
Finally, Leppert argues that the record shows that Liberty’s benefits denial was directed
by its structural conflict of interest as the party that both funds the disability benefits, and makes
benefits determinations. Leppert argues that Liberty’s conflict is apparent from: (1) its decision
to credit Ms. Reddinger’s vocational assessment over Ms. Ashworth’s without explanation;
2
Leppert repeatedly asserts that Ms. Reddinger’s vocational skills analysis is unreliable because
she found that Leppert can perform “sedentary-light,” which is not a formally recognized work
category under Social Security regulations. See 20 C.F.R. § 220.132. Leppert’s argument
requires an untenably wooden interpretation of the term “sedentary-light.” The applicable
regulations provide that in most cases, a claimant that can perform light work can also perform
sedentary work. See id. § 220.132(b). In context, when the experts that reviewed Leppert’s file
use the term “sedentary-light,” they are not referring to some imagined hybrid work category—
as Leppert argues—but rather are stating that Leppert can perform work in either the sedentary
or light categories. That Leppert can perform light work is supported by Dr. Das’ express
finding to that effect.
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No. 16-3387
(2) its decision to improperly discount the Social Security Administration’s disability
determination; and (3) Ms. Reddinger’s use of the 50th–75th percentile wage data to calculate
whether Leppert could make enough money as a Small Products Assembler and Electronic
Assembler, while using 25th–50th percentile wage data for the other two occupations she
identified.
Leppert’s first two grounds do not lend support to his argument that Liberty was biased.
As explained supra, sections III.B–C, there are no conflicting vocational assessments in the
record, and Liberty did not improperly discount the Social Security Administration’s disability
determination.
However, Leppert is correct that Ms. Reddinger’s arbitrary use of wage data is troubling.
In order to determine whether Leppert could make enough money in any of the four occupations
she identified to roughly approximate what Leppert would receive in disability benefits, Ms.
Reddinger used labor statistics to determine the salary ranges for those occupations. But she
offered no explanation for why she chose to use 50th–75th percentile salaries for two of the
occupations, while using the 25th–50th percentile data for two others. Without context, Ms.
Reddinger’s inconsistent use of wage data seems arbitrary and unprofessional, at a minimum.
Leppert’s inference that Ms. Reddinger manipulated the wage data in order to find additional
occupations that Leppert could perform at an appropriate salary level certainly seems plausible.
Nevertheless, as we noted earlier, the importance of Liberty’s structural conflict of
interest varies based on the strength of Leppert’s other evidence suggesting that Liberty’s
benefits determination was arbitrary and capricious. Glenn, 554 U.S. at 117. Leppert put
forward no objective medical evidence, as the Plan required, demonstrating that he is unable to
perform the Material and Substantial Duties of Any Occupation. The record, moreover, is
replete with expert evidence suggesting that Leppert can perform light-to-sedentary work.
Accordingly, we hold that in spite of the irregularities in Ms. Reddinger’s analysis, Leppert has
not shown that Liberty acted arbitrarily and capriciously in determining that he is not disabled.
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No. 16-3387
CONCLUSION
For the foregoing reasons, we hold that Liberty did not act arbitrarily or capriciously in
making Leppert’s benefits determination. Accordingly, we AFFIRM the district court’s
judgment.
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