Morris v. American Electric Power Long-Term Disability Plane , 399 F. App'x 978 ( 2010 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0650n.06
No. 08-4412
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Oct 15, 2010
LEONARD GREEN, Clerk
PAUL MORRIS )
)
Plaintiff–Appellant, )
)
v. ) On Appeal from the United States
) District Court for the Southern
AMERICAN ELECTRIC POWER LONG-TERM ) District of Ohio
DISABILITY PLAN )
)
Defendant–Appellee. )
Before: BOGGS, MOORE and GIBSON,* Circuit Judges.
BOGGS, Circuit Judge. Paul Morris was injured in a work-related automobile accident in
1992 and, as a consequence, began receiving long-term disability benefits from the Appellee (“the
Plan”) in 1993. In 2004, the Plan’s new third-party administrator, Broadspire, requested
documentation of Morris’s ongoing disability. Following a series of independent examinations and
Plan-sponsored file reviews, the Plan terminated Morris’s long-term disability benefits. Morris, after
exhausting his internal appeals, appealed to the district court, which affirmed the Plan’s
determination as being neither arbitrary nor capricious. For the reasons discussed below, we affirm
the judgment of the district court.
*
The Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit, sitting
by designation.
No. 08-4412
Morris v. Am. Elec. Power Long-term Disability Plan
I
Paul Morris was employed as a meter reader for American Electric Power (“AEP”) when he
was injured in an on-the-job automobile accident in August 1992. Though he continued to work in
the months immediately following the accident, by April 1993 his condition was such that he could
not perform the walking, climbing, standing, and moving of objects that his job required. On that
basis, and further claiming that he suffered from depression and post-traumatic stress disorder as a
result of the accident, Morris applied for and was granted long-term disability status by AEP’s then-
plan administrator, Aetna. At the same time, and with the encouragement of the Plan, he applied for
and obtained Social Security disability benefits.
Under the terms of the Plan, disability determinations are two-tiered. For the first two years
that a participant receives long-term disability benefits, he is considered disabled if he is unable to
perform the work required of him in his “own occupation”—that is, the occupation he held
immediately prior to going on disability. After that initial two-year period, in order for long-term
disability benefits to continue, the participant must be unable to perform any occupation that he is
qualified to perform, as long as that occupation pays at least 60% of his pre-disability base rate of
pay and is consistent with the participant’s formal education, training, and work experience (the
“any-occupation standard”).
In April 1995, Aetna informed Morris that he had met the any-occupation standard, entitling
him to benefits beyond the initial two-year time frame. Under the terms of the plan, Morris was
subject to provisions requiring him to provide continuing objective proof of his disability at least
once each year.
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Over the next ten years, Morris continued to see a neurologist, Dr. Nahid Dadmehr, for
complaints of headaches, pains in his back and legs, and right elbow pain. He also saw a
psychiatrist, Dr. Maureen Stark, on several occasions for depression.
In June 2004, the Plan’s new claims administrator, Broadspire, sought updated
documentation of Morris’s disability pursuant to the terms of the plan document. Broadspire asked
Morris to complete a questionnaire and an “attending physician statement and evaluation of physical
abilities” and to submit medical records as proof of continued disability. Morris eventually
submitted those forms, which indicated that he was still limited by back and leg pain, as well as by
panic attacks, depression, and irritability. The plan then requested that he complete a functional
capacity evaluation (“FCE”), which resulted in a finding that Morris was “functioning in the Medium
Physical Demand Category.” The FCE evaluator, Jessica Iams, believed that Morris “appear[ed]
rehabable if pain can be controlled,” and recommended “frequent change in position, allowances for
self management of symptoms while working or exercising, and some type of work conditioning
program” to facilitate a return to regular daily work.
The Plan also arranged for Morris to undergo an independent psychiatric examination by Dr.
Don McIntire, the results of which included a diagnosis of moderate Bipolar II Disorder and mild
post-traumatic stress disorder. Morris tested within the average range for overall intellectual
functioning, and did not exhibit any clinically significant behavioral impairments during the
evaluation. Dr. McIntire also administered an MMPI-2 personality inventory assessment, which
revealed that Morris had significant difficulties with depression and anxiety and was likely to be
uncomfortable being around other people.
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Upon receiving the results of the FCE and Dr. McIntire’s examination, Broadspire forwarded
them to its own reviewing physicians: Dr. Vaughn Cohan, a neurologist, and Dr. Barry Glassman,
a psychiatrist. Dr. Cohan concluded that Morris’s medical file showed his neurological symptoms
to be consistent with sedentary or light work, and that there was no indication that the medications
Morris was taking would prevent him from working. Dr. Glassman agreed that Morris would be best
placed in a low-stress, physically undemanding position, but also noted that there were no
examination findings to indicate that such would be medically necessary.
The Plan then obtained an employment assessment report (“EAR”), which was prepared after
a vocational consultant interviewed Morris and reviewed the results of the FCE and Dr. McIntire’s
psychiatric examination, as well as the reports of Drs. Cohan and Glassman. Taking into account
the “sedentary or light work” limitations indicated by Dr. Cohan’s recommendation, the EAR
identified two occupations that Morris could perform: Automatic Presser and Shirt Presser. Both
of these jobs were indicated to be available in Columbus, Ohio, where Morris resided, and met the
necessary salary and physical requirements. As a result of the EAR’s identification of jobs that
Morris could perform, Broadspire determined that Morris did not meet the any-occupation standard
and would no longer be eligible for disability payments.
Morris appealed, using the Plan’s internal appeals process. Over the course of the two
appeals permitted by the plan document, Morris submitted additional materials from his treating
physicians and records from a recent hospital stay incurred after he experienced “seizure-like
symptoms.” The Plan obtained reports from eight more reviewing physicians, each of which found
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no objective data to support a finding of disability under the any-occupation standard. The Plan
denied Morris’s appeals, and this litigation followed.
II
A
We “review de novo the decision of a district court granting judgment in an ERISA disability
action based on an administrative record.” Glenn v. MetLife, 461 F.3d 660, 665 (6th Cir. 2006),
aff’d, Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008). If the plan administrator is vested with
discretion to interpret the plan, we review the administrator’s denial of benefits to determine whether
that denial was arbitrary and capricious. Ibid. (citing Firestone Tire & Rubber Co. v. Bruch, 489
U.S. 101, 115 (1989)). Though highly deferential, this standard nevertheless requires “some review
of the quality and quantity of the medical evidence and the opinions on both sides of the issues” and
does not require us merely to rubber-stamp the administrator’s decision. McDonald v. Western-
Southern Life Ins. Co., 347 F.3d 161, 172 (6th Cir. 2003).
The ultimate question in any given disability case on “arbitrary and capricious” review is
whether a plan can offer a reasoned explanation, based on the evidence, for its judgment that a
claimant was not “disabled” within the plan’s terms. Elliott v. Metro. Life Ins. Co., 473 F.3d 613,
617 (6th Cir. 2006). In pertinent part, the plan here at issue reads:
After the first 24 months following your date of disability, disability is defined as an
illness or injury that requires the regular treatment of a duly qualified physician that
may reasonably be expected to prevent you from performing the duties of any
occupation for which you are reasonably qualified by your education, training and
experience. If you meet the requirements of this “two-year test,” you will continue
to be considered to be disabled and receive benefits up to the maximum benefit
period.
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Once the Plan makes a judgment as to whether a claimant has met the requirements of the
“two-year test,” its determination is entitled to deference unless it is arbitrary and capricious. That
is, if the Plan’s determination that an individual can perform any occupation “is the result of a
deliberate, principled reasoning process and if it is supported by substantial evidence,” it will not be
disturbed.
B
Notwithstanding the deference afforded a plan administrator’s decisions under arbitrary-and-
capricious review, courts must evaluate potential conflicts of interest and consider them as factors
in determining whether the decision to deny benefits was arbitrary and capricious. Gismondi v.
United Techs. Corp., 408 F.3d 295, 298 (6th Cir. 2005). For ERISA purposes, a conflict of interest
is present when the same entity both funds the plan and evaluates claims for benefits thereunder.
Glenn, 128 S. Ct. at 2348; DeLisle v. Sun Life Assur. Co. of Canada, 558 F.3d 440, 445 (6th Cir.
2009). At the root of this kind of conflict is the fact that “every dollar provided in benefits is a dollar
spent by . . . the employer; and every dollar saved . . . is a dollar in [the employer’s] pocket.” Glenn,
128 S. Ct. at 2348 (quoting Bruch v. Firestone Tire & Rubber Co., 828 F.2d 134, 144 (3d Cir.
1987)). In such circumstances, an employer’s immediate financial interest creates an inherent
conflict with its fiduciary duty under ERISA, which requires that plan administrators discharge their
duties solely in the interests of the participants and beneficiaries of the plan. Id. at 2350.
Application of this “heightened” form of arbitrary-and-capricious review is shaped by the
circumstances of the inherent conflict of interest. Borda v. Hardy, Lewis, Pollard & Page, P.C., 138
F.3d 1062, 1069 (6th Cir. 1998).
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Morris has conceded that the plan administrator in this case is vested with sufficient
interpretive discretion to qualify for review under the arbitrary-and-capricious standard. He does
contend, however, that a conflict of interest exists as to Broadspire, the plan administrator, in that
Broadspire’s advertising materials contain language indicating that its mission is to help its clients
“contain costs” and “have a positive impact on [their] employees and [their] bottom line.” In
Morris’s view, such promises align Broadspire’s interests with those of the Plan enough to conclude
that the two ought to be treated interchangeably for conflict-of-interest analysis, and therefore it is
functionally true that the same entity both makes eligibility determinations under the plan and pays
benefits to those found eligible.
We do not appear to have ever held that a conflict of interest inherently exists in such a
situation, and we will not do so now. In Glenn, the Supreme Court made it clear that the conflicted
entity need not be an employer, but could instead be (for example) an insurance company—as long
as it was the same entity that performed both the benefits-determination and the benefits-payout
functions. Though the Court acknowledged that insurance companies were not necessarily affected
to the same extent by the prospect of paying out claims they determined to be valid (because they
could recoup a fraction of their costs by imposing a per-claim service charge), they nevertheless
suffered an immediate financial loss. The difference, in other words, was one of degree.
Here, the difference is one of kind. Morris is, in effect, arguing that the third-party
administrator has implemented a long-term strategy to carry out its duties as plan administrator for
the benefit of the employer, rather than for the benefit of the plan participants and
beneficiaries—presumably on the belief that, in so doing, they will be able to attract new and
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continued business, thus eventually lining their own pockets. Such an accusation is critically distinct
from the inherent conflict of interest present when a decision maker will benefit or suffer as a direct
consequence of her decisions. Because Broadspire’s theoretical advantage from making benefit
denials would be neither immediate nor guaranteed, it cannot be said to be “inherent” in the way that
a conflict is when the same entity is responsible for both benefits eligibility determinations and
benefits payments. Even if we were to assume, therefore, that an independent claims administrator
could be so motivated by market forces as to effectively be an alter-ego of those funding the plan,
it would be necessary to demonstrate that the administrator had, in fact, acted on those motivations
before a conflict could be said to exist.
There is no such evidence in our case. The appellant relies on generic promotional language
contained on Broadspire’s website. Such language is of a kind that one would very much expect to
see, given that the entity responsible for paying benefits is generally the one that selects a third-party
administrator. Advertisements emphasizing cost savings to that entity are neither surprising nor
especially probative of conflict. Further, the language cited by the appellant is hardly damning:
promising to “contain costs” and “have a positive impact on your employees and your bottom line”
is a far cry from even implying that the administrator will evaluate otherwise-viable claims harshly.
Indeed, Broadspire’s advertisements could simply refer to the benefits of economies of scale, or to
the savings to a company from using expert claims administrators to quickly pay legitimate claims
while weeding out fraudulent ones.1
1
For the same reasons, Morris’s argument that a conflict exists because Broadspire markets
itself as offering “integrated disability management” services, such as employer-advocacy services
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Morris v. Am. Elec. Power Long-term Disability Plan
Morris argues that a conflict in cases like ours is inherent, because no self-funded plan would
turn over administration of its claims without an expectation that the administrator will act in its
interest. This simply proves too much. Taken as true, this argument would necessitate a finding of
conflict every time a third-party administrator was used. Because it is generally true that the failure
to use a third-party administrator—i.e., when the same entity both determines claim eligibility and
pays benefits—produces a conflict of interest, the holding Morris proposes would effectively render
the distinction between “normal” arbitrary and capricious review and the so-called “heightened”
arbitrary and capricious review utilized in the presence of a conflict meaningless.2
In this case, we therefore apply ordinary arbitrary-and-capricious review to the Plan’s decision
to deny long-term disability benefits to Morris.
in worker’s compensation and Family and Medical Leave Act cases, must fail. There is simply no
evidence that Broadspire even provides these services to the Plan, let alone that it has deliberately
engaged in violations of their fiduciary duties to the Plan’s participants.
2
Morris also argues that evidence of Broadspire’s conflict can be found in the fact that it has
engaged in a broad pattern of denials of long-term disability. As proof of this alleged pattern,
however, Morris cites just two decisions of district courts: Powell v. Am. Elec. Power Sys. Long
Term Disability Plan, 2008 WL 885956 (S.D. Ind. Mar. 28, 2008), and Madden v. Am. Elec. Power
Sys. Long Term Disability Plan, 2009 WL 277447 (E.D. Ky. Feb. 5, 2009). Curiously, the latter of
these decisions upheld the decision of the administrator. Thus, Morris appears to be inviting us to
find that Broadspire has engaged in a pattern of bad-faith claims denials when its evidence consists
of a single denial of summary judgment and the unsubstantiated allegations made in his own case.
We decline.
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III
A
Morris argues that Broadspire’s denial of claims was arbitrary and capricious in that there was
no evidence in the record suggesting that his medical condition had improved between the time the
Plan most recently found him to be disabled and the time his benefits were terminated.
In Kramer v. Paul Revere Life Ins. Co., 571 F.3d 499 (6th Cir. 2009), we held cancellation
of benefits by a plan administrator to be arbitrary and capricious when done in the absence of
evidence showing that the claimant’s condition had improved, and no explanation existed for the
apparent discrepancy from earlier assessments. Morris cites Kramer, along with three district courts
in our circuit, as support for his argument that we have adopted an Eighth Circuit decision—McOsker
v. Paul Revere Life Ins. Co., 279 F.3d 586 (8th Cir. 2002)—that holds, in Morris’s words, “that an
administrator acts arbitrarily and capriciously when it terminates benefits absent an indication in the
record that a claimant’s medical condition had improved sufficiently to justify terminating long-term
disability benefits previously awarded.”
Morris overstates the holdings of the cases he cites from within our circuit and, in our view,
also overstates the holding of McOsker. In Kramer, we indicated that:
Moreover, there is no explanation for the decision to cancel benefits that had been
paid for some five years based upon the initial determination of total disability in the
absence of any medical evidence that the plaintiff’s condition had improved during
that time. The best that can be said of the opinions of [the company’s consultants]
is that they support the proposition that [the claimant] was, in fact, never disabled
from her “own occupation.” But that conclusion flies in the face of all the other
evidence in the record, and the plan administrator’s reliance upon it can only be
described as arbitrary and capricious.
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Kramer, 571 F.3d at 507 (emphasis in original). This is not, however, a wholesale endorsement of
the notion that a lack of evidence of improvement is sufficient unto itself to prove a plan
administrator’s decision arbitrary and capricious. Rather, Kramer coupled the absence of such
evidence with a lack of explanation or support for the plan’s decision, among other factors.
Surely it is reasonable to require a plan administrator who determines that a participant meets
the definition of “disabled,” then reverses course and declares that same participant “not disabled”
to have a reason for the change; to do otherwise would be the very definition of “arbitrary and
capricious.” It does not follow, however, either logically or from our decision in Kramer, that the
explanation must be that the plan administrator has acquired new evidence demonstrating that the
participant’s medical condition has improved. While Morris contends that the legal issue “is not
whether there is ‘new evidence,’ but whether the evidence—new or old—establishes that Morris’s
medical condition had improved,” the ultimate question is whether the plan administrator had a
rational basis for concluding that Morris was not disabled at the time of the new decision. Under the
any-occupation standard at issue in this case, any number of factors could be germane to such a
determination—including evidence of improvement, certainly, but also including evidence better
defining the participant’s medical condition, or even, given the plan’s definition of “disabled,”
newly-acquired skills that would permit the previously disabled participant to perform an occupation
he had not been qualified for at the time of his disability.3
3
To take one hypothetical example, a high-school dropout who became disabled from a job
that required intense physical labor, but then successfully pursued an advanced degree in computer
science, might no longer be “disabled” even in the absence of improvement to his or her physical
condition.
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Such an interpretation comports not only with the “no explanation” language in Kramer, but
also with each of the other cases cited by Morris. These cases, at most, merely characterize the lack
of evidence of improvement as a circumstance to be weighed by a reviewing court, rather than per
se proof of arbitrariness. See McOsker, 279 F.3d at 589 (“We are not suggesting that paying benefits
operates forever as an estoppel so that an insurer can never change his mind; but unless information
available to an insurer alters in some significant way, the previous payment of benefits is a
circumstance that must weigh against the propriety of an insurer’s decision to discontinue those
payments”) (emphasis added); Rabuck v. Hartford Life and Accident Ins. Co., 522 F. Supp. 2d 844,
872 (W.D. Mich. 2007) (characterizing prior payment of disability benefits as a circumstance that
weighs against the propriety of discontinuing payments); Boyd v. Am. Elec. Power Sys. Long-Term
Disability Plan, 2007 WL 2778667 (S.D. Ohio Sept. 21, 2007) (“The fact that defendant’s decision
to terminate benefits was not based on new significant evidence or evidence of improvement since
the prior determination of disability weighs against the propriety of defendant’s decision to terminate
plaintiff’s LTD benefits.”). As a “circumstance to be weighed,” we may therefore accord greater or
lesser import to a lack of evidence of improvement, depending upon whether that lack is explained
by other relevant information.
In this case, there is no reason to believe that the purported lack of evidence of improvement
rendered the Plan’s decision arbitrary, given the extent to which it obtained new information about
his current condition. The Plan’s decision was based upon the recommendations of ten reviewing
physicians and an employability assessment report. These sources were, in turn, provided with
contemporaneously-issued reports from an independent psychologist, an independent functional
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capacity evaluator, and, in most cases, the entire contents of the Plan’s file relating to Morris dating
back to 1993. There is, in fact, nothing in the record to indicate that Morris even underwent an EAR
prior to September 15, 2005, let alone that the Plan had access to the information generated by the
FCE and the independent psychiatrist’s examination. Even assuming that these reports did not
explicitly demonstrate “improvement” in the sense of showing that the specific physical and
psychological bases for Morris’s initial disability determination had been ameliorated, the additional
detail and analysis they provide serve as adequate explanation for the administrator’s decision to
revoke those benefits under the arbitrary and capricious standard.
B
Morris also argues that Broadspire’s decision was arbitrary and capricious because it did not
address the fact that Morris had successfully applied for Social Security disability benefits in 1993.
We have held that if a plan administrator (1) encourages an applicant to apply for Social
Security disability payments, (2) financially benefits from the applicant’s receipt of Social Security,
and then (3) fails to explain why it is taking a position different from the Social Security
Administration on the question of disability, a court reviewing that determination should weigh this
in favor of a finding that the decision was arbitrary and capricious. Bennett v. Kemper Nat’l Svcs.,
Inc., 514 F.3d 547, 553 (6th Cir. 2008). The rationale for according this factor any weight is that it
serves as a form of estoppel, reducing fraud in the legal process by forcing a modicum of consistency
on a repetitive litigant. Glenn, 461 F.3d at 667–68 (quoting Ladd v. ITT Corp., 148 F.3d 753, 756
(7th Cir. 1998)).
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Morris asserts (and the Plan does not dispute) that the Plan encouraged him to apply for Social
Security disability payments when he first became disabled, and that the Social Security
Administration’s subsequent grant of disability benefits lightened the Plan’s financial obligation to
Morris under the terms of the plan document. It is similarly undisputed that Broadspire did not refer
at all to Morris’s Social Security award in its initial letter denying him benefits, and merely listed it
as one of seventy or so documents that had been reviewed in its second and third denial letters.
Again, however, the language of Bennett indicates that a failure to take into account a Social
Security disability award is to be weighed in favor of a finding that the decision was arbitrary and
capricious, not that such a decision is arbitrary and capricious per se. As such, we may give it greater
or lesser weight, depending on the circumstances. Given that the purpose of weighing it at all is to
prevent the plan, as an interested party, from effectively committing fraud on the court by taking
inconsistent positions to minimize its financial exposure, it makes a great deal of sense to weigh an
unexplained inconsistency in this area heavily when those positions are taken in quick succession.4
In this case, however, the dissonance between the plan’s encouragement of Morris’s Social
Security claim and its subsequent denial of benefits is muted, because more than twelve years had
passed between the time Morris was determined to be disabled by the Social Security Administration
and the time Broadspire informed him that they no longer considered him disabled. It seems highly
unlikely that a plan would encourage a claimant to apply for Social Security disability benefits as part
4
This was, in fact, the case in both Bennett and Glenn. In both cases, the plans’ denials of
benefits were virtually simultaneous with the their encouragement of the participants to apply for
Social Security benefits.
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of a disingenuous scheme to lessen its potential exposure on a claim, then abide twelve years while
paying its own share of disability benefits before cutting those benefits off for no legitimate reason.
It is far more reasonable to believe that a 1993 determination of disability was simply not very
relevant to a 2005 decision on the same issue.
To be sure, Broadspire’s decision to cut off benefits is inconsistent with the Plan’s previous
encouragement of Morris to apply for Social Security disability, and to that extent weighs slightly in
Morris’s favor when it comes to evaluating whether that decision was arbitrary and capricious. We
will not merely assume, in the absence of an explanation by Broadspire, that it considered the Social
Security Administration’s determination to be obsolete and thereby excuse their failure to take it into
account entirely. Given that the Plan’s encouragement of Morris to apply for those benefits happened
so long ago, however, and that it obtained new information about Morris’s disability from numerous
sources in a contemporaneous investigation, we do not find the Plan’s behavior to be particularly
troubling.
C
We now turn to the question of whether Broadspire acted arbitrarily and capriciously in
evaluating the medical evidence available to it while making the decision to terminate Morris’s
benefits. Morris contends that Broadspire ignored the medical evidence and the conclusions
contained in the reports of his own doctors, as well as those set forth in the independent functional
capacity evaluation and the independent psychiatric evaluation.
Generally speaking, a plan may not summarily reject the opinions of a treating physician, but
must instead give reasons for adopting an alternative opinion. Elliott, 473 F.3d at 620. Giving
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greater weight to a non-treating physician’s opinion for no apparent reason lends force to the
conclusion that a plan administrator’s decision is arbitrary and capricious. Ibid. Plan administrators,
however, “are not obligated to accord special deference to the opinions of treating physicians.” Black
& Decker Disability Plan v. Nord, 538 U.S. 822, 825 (2003). To that extent, a lack of objective
medical evidence upon which to base a treating physician’s opinion has been held sufficient reason
for an administrator’s choice not to credit that opinion. See, e.g., Boone v. Liberty Life Assur. Co.
of Boston, 161 F. App’x 469, 473 (6th Cir. 2005) (administrator’s decision not to credit treating
physicians’ assessments not arbitrary because the assessments were not supported by the objective
evidence, as required by the plan document).
In looking to the various communications sent from Broadspire to Morris during the process
of terminating Morris’s benefits, we find that Broadspire set forth a lack of objective data as its
primary reason for choosing not to credit the assessments of Drs. Dadmehr and Stark. In addressing
the conclusions of Dr. Dadmehr, Broadspire’s letter denying Morris’s first internal appeal indicated
that
. . . there were no physical examination findings included in this note substantiating
Mr. Morris’ inability to perform the duties of any occupation. Therefore based on the
medical evidence, Mr. Morris can sit, stand and ambulate. He is also capable of
lifting up to 8 to 10 pounds on a repetitive basis. Therefore, based on the medical
information from an orthopedic standpoint Mr. Morris is capable of performing the
duties of any occupation.
With regard to Morris’s alleged neurological problems, the appeal decision observed that “there
weren’t any clinical neurological abnormalities documented by Dr. Dadmehr from the neurological
examinations. There also was no clinical documentation provided to support recurrent seizure
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activity in the last ten years. Additionally, there was no clinical documentation of a recurrence of
syncopal episodes since the early 1990's.”
Similarly, Broadspire’s first appeal denial indicated that “there were no documented physical
examination findings, lab abnormalities including blood sugar values such as a hemoglobin AIC
provided for review to determine the degree of control of his diabetes.” With regard to his psychiatric
condition, the letter notes that “Dr. Stark did not provide any specific examination findings
substantiating the presence of impairment in psychological functioning,” and “did not provide
findings to substantiate impairment in cognitive, emotional, or behavioral functioning that would
preclude Mr. Morris from performing the duties of any occupation.”
The Plan’s references to a lack of objective data to support Morris’s physicians’ conclusions
are consistent with its overall conclusion that “[b]ased on a review of the aforementioned medical
data, there was a lack of medical evidence to substantiate . . . inability to perform any occupation.”
It is also consistent with the Plan Summary, which states:
To continue receiving benefits, you will be required to provide continuing proof of
your disability at least once each year. Objective medical evidence must be supplied
supporting your case for disability. A letter from your treating physician merely
stating that you are unable to work without any supporting information will not be
considered as conclusive proof of your disability.
Nor was there any great mystery as to what kinds of objective medical data Broadspire was
looking for in this case. Broadspire’s first appeal denial informed Morris that it would consider
relevant data to include specific psychiatric findings, a complete orthopedic examination, complete
neurological testing, other abnormal diagnostic test results, and examination findings to substantiate
the presence of cognitive, emotional, or behavioral impairment. Under the terms of the plan
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document, it was Morris’s responsibility to obtain this data; he did not, and therefore the Plan was
not arbitrary and capricious in choosing to discount the conclusions of his treating physicians.5
Moreover, Broadspire did not ignore the findings of its own independent examinations.
Morris points out that neither the functional capacity evaluation nor the independent psychological
examination came to a conclusion as to whether Morris could return to work. Yet a definitive
conclusion as to whether Morris met the any-occupation standard does not appear to have been the
point of either exam. Rather, they provided information on Morris’s relevant physiological and
psychological limitations, which were reviewed by the vocational counselor who prepared the
Employability Assessment Report that concluded Morris could work as an automatic presser or shirt
presser. While Morris makes much of a single sentence in the FCE noting that “[h]e appears
rehabable if pain can be controlled,” (implying that he cannot return to work without rehab, and
cannot be rehabbed without pain control), the FCE puts Morris in the “Medium Physical Demand
Category,” whereas the ultimate conclusion of the EAR and Plan was that Morris could return to
sedentary or light work. The jobs in the sedentary/light work category would presumably involve
lesser physical demands than Morris was already capable of during the FCE, and could also include
5
The (small) handful of objective tests performed at the behest of Morris’s treating physicians
over the years appear to have been unremarkable from a medical standpoint, as were EMGs
performed in 1998 and 2000, or of unexplained significance, as was an MRI performed in 2000.
Although Morris did undergo testing in connection with his admission to St. Ann’s Hospital for
“seizure-like symptoms” in 2005, even Dr. Dadmehr’s notes disclose that the cause of this episode
was essentially unknown, with possibilities being “[c]omplex partial seizure versus micturition
syncope versus transient ischemic attack versus vasodepression syncope versus cardiogenic.” If a
treating physician cannot tell from the data he has gathered what a patient’s condition is, it stands
to reason that one cannot credibly claim that it would be arbitrary and capricious to discount the
conclusion that the same data is objective medical evidence supporting a finding of disability.
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Morris v. Am. Elec. Power Long-term Disability Plan
the “frequent change in position, allowances for self-management of symptoms while working or
exercising, and . . . work conditioning” recommended by the FCE evaluator. Similarly, while the
independent psychological examination conducted by Dr. McIntire did not opine one way or another
as to the question of whether Morris could “return to work,” it pointed out that he had difficulties
with depression and anxiety, and in interacting with others. These conclusions, too, were reviewed
for the EAR.6
D
The remainder of Morris’s arguments may be disposed of in short order.
Morris argues that the plan administrator’s decision to terminate his benefits was arbitrary and
capricious because it was done without considering whether, after more than twelve years of being
out of the workforce, he was “employable.” This argument has some basis in the language of the plan
document, which requires that the Plan may only consider Morris to be not disabled under the any-
occupation standard if Morris can work in an occupation that is “consistent with the participant’s
formal education, training, and work experience.” However, it appears that the EAR relied upon by
the plan administrator did take those factors into account. Generally, the purpose of the report was
to make a determination regarding the potential to find Morris “feasible employment”; though the
meaning of “feasible” is not defined in the EAR, the report specifically details Morris’s education,
6
Morris considers the EAR itself to be inconsistent with the medical record, inasmuch as it
acknowledges that work as a presser is fast-paced and stressful. Yet the EAR refers to the physical
stress of maintaining a production pace, rather than the type of psychological stress that the
Independent Medical Examination found relevant in Morris’s case, which is the stress of interacting
with authority figures and co-workers.
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Morris v. Am. Elec. Power Long-term Disability Plan
notes his job skills, and makes an explicit “transferability of skills analysis” in order to identify
current jobs that made use of his previously-existing skills. Morris presents no evidence that his prior
skills have declined, nor that the occupations identified by the EAR require particularly up-to-date
knowledge.
Morris also argues that Broadspire did not provide his full medical file to the vocational
consultant who prepared the EAR, instead creating a misleading picture of Morris’s condition by
withholding the reports of Morris’s own treating physicians. See Spangler v. Lockheed Martin
Energy Systems, Inc., 313 F.3d 356, 361-62 (6th Cir. 2002) (“cherry-picking” claimant’s file in hopes
of obtaining a favorable report from a vocational consultant as to the claimant’s ability to work held
arbitrary and capricious). In Spangler, however, the decision to terminate was based solely on a
transferability of skills analysis performed by an expert who had been forwarded a single aberrant
physician’s report. In this case, the vocational consultant was provided with both of the independent
examination reports, along with the report of a reviewing physician considered the most favorable
to Morris of the ten such reports prepared at the behest of the plan. Moreover, the decision to
terminate was not based solely on the EAR, but also on those reviewing physicians’ reports.7
Morris further contends that the Plan’s decision to terminate his benefits was arbitrary and
capricious because it relied on peer-review physicians who had conflicts of interest stemming from
long-term professional relationships with Broadspire. Morris cites our decision in Kalish v. Liberty
7
Additionally, we note that it would make little sense to permit the plan to discount the
reports of a claimant’s treating physicians in favor of those prepared by the plan’s own physicians,
as per Black & Decker, while at the same time requiring it to provide those same materials to the
preparers of “derivative” reports like the EAR.
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Morris v. Am. Elec. Power Long-term Disability Plan
Mutual/Liberty Life Assur. co. of Boston, 419 F.3d 501, 507-08 (6th Cir. 2005) for the proposition
that “a plan administrator, in choosing the independent experts who are paid to assess a claim [has]
a clear incentive to contract with individuals who were inclined to find it its favor that [a claimant]
was not entitled to continued [disability] benefits.” In Kalish, however, we also noted that conclusory
allegations of bias with respect to a plan-chosen reviewer, without statistical evidence that the
reviewer consistently opined the claimants were not disabled, could not permit a conclusion that
relying on that reviewer’s opinion was arbitrary and capricious. Id. at 508. Morris seeks to forestall
this objection by averring that a WESTLAW database search identified 30 cases since 2005 in which
Dr. Cohan served as a physician-reviewer for Broadspire, along with various lesser numbers for eight
of the other reviewing physicians. Yet Kalish requires evidence that reviewers consistently opine that
claimants are not disabled, not that they frequently do so. Morris provides no context for his
numbers; we do not know, for example, if Dr. Cohan’s “not disabled” findings account for 30 cases
out of 30 in which he was retained by Broadspire, or 30 out of 300.
Finally, Morris claims that the Plan was arbitrary and capricious in relying upon peer-review
physicians who made “critical credibility determinations” as to his psychiatric condition without
having evaluated him personally. We have held that whether a doctor has physically examined the
claimant is one factor that may be considered in determining whether a plan administrator acted
arbitrarily and capriciously in giving greater weight to the opinion of its own consulting physician.
Kalish, 419 F.3d at 509. However, “reliance on a file review does not, standing alone, require the
conclusion that [a plan administrator] acted improperly.” Id. Importantly, this is not a situation in
which the reviewing psychiatrists and psychologists are flatly contradicting the conclusions of those
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Morris v. Am. Elec. Power Long-term Disability Plan
who examined the patient, nor is it the case that the Plan did not have Morris examined personally.
Dr. Stark, Morris’s treating psychiatrist, consistently indicated that she believed Morris could perform
some “parttime, low-stress work.” Dr. McIntire, the independent psychiatric evaluator, saw Morris
personally and recommended limitations that were taken into account by the EAR. Dr. McIntire’s
observations were also provided to the reviewing psychiatrists who made the final recommendations
to the administrator as to Morris’s psychiatric limitations. Thus, to the extent that the Plan’s
determinations relied upon an accurate assessment of Morris’s credibility, the Plan was not arbitrary
and capricious in relying on recommendations that were based on the in-person evaluation of an
independent medical professional and were not inconsistent with the patient’s own treating
psychiatrist.
IV
For the reasons discussed above, we conclude that the Plan appears to have put forth a
reasoned explanation based on the evidence for the termination of Morris’s benefits. The opinions
of Morris’s own physicians, to they extent that they supported Morris’s disability claim, were
unsupported by the objective evidence required in the plan document. By contrast, an employability
assessment report that was based on objective evidence, an interview with Morris, and a relatively
claimant-favorable report by a reviewing physician concluded that he could perform certain kinds of
light-duty work. Though we find Broadspire’s failure to address the grounds for Morris’s Social
Security disability award relevant as a matter of law, when weighed in the balance and considered
in context it does not suffice to render the administrator’s decision arbitrary and capricious. The
judgment of the district court is therefore AFFIRMED.
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KAREN NELSON MOORE, Circuit Judge, dissenting. I respectfully dissent from the
majority’s conclusion that the decision of Broadspire, the Plan’s administrator, was not arbitrary and
capricious. Most important, similar to its defective rationale described in Bennett v. Kemper National
Services, Inc., 514 F.3d 547 (6th Cir. 2008), Broadspire once again failed to explain why it disagreed
with the Social Security Administration’s disability determination in favor of Morris. We have
observed that a plan administrator’s failure to consider the Social Security disability determination
is a “significant factor” that weighs in favor of finding a plan’s termination of benefits to be arbitrary
and capricious. Glenn v. Metlife (Metro. Life Ins. Co.), 461 F.3d 660, 669 (6th Cir. 2006), aff’d, 554
U.S. 105 (2008); see also Bennett, 514 F.3d at 553-54. Although the Plan here required claimants
to file for Social Security disability benefits and then offset such benefits against Plan benefits,
Broadspire did not discuss in its three denial letters to Morris its reasons (if any) for disagreeing with
the Social Security disability determination. Our decision in Bennett requires that the benefits-denial
letters provide “discussion about why the administrator reached a different conclusion from the SSA”
and rejects the adequacy of “mere mention of the [SSA] decision” as one of many items considered
by the Plan administrator. Id. at 553 n.2. As in Bennett, we should “vacate the judgment of the
district court and remand with instructions to remand to Broadspire for a full and fair review.” Id.
at 556.
In addition, I believe that on remand some weight should be placed on the conflict of interest
that exists in light of Broadspire’s mission statement that it seeks to help client-employers “contain
costs” and affect their “bottom line.” As in Glenn, the existence of a conflict of interest should be
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weighed as a factor in applying the deferential standard of review when plan administrators are
afforded discretion under the terms of the plan. Glenn, 554 U.S. at ___, 128 S. Ct. 2343, 2350–52.
Finally on remand Broadspire should assure itself and any future reviewing entities that the
evaluators such as the vocational expert creating the Employability Assessment Report consider all
relevant medical reports, especially including those of treating physicians Dr. Dadmehr and Dr. Stark,
which appear to have been funneled through peer review reports rather than directly provided.
I respectfully dissent.
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