Michael Prezioso v. Prudential Insurance Company , 748 F.3d 797 ( 2014 )


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  •                    United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 13-1641
    ___________________________
    Michael Prezioso
    lllllllllllllllllllll Plaintiff - Appellant
    v.
    The Prudential Insurance Company of America
    lllllllllllllllllllll Defendant - Appellee
    ____________
    Appeal from United States District Court
    for the District of Minnesota - Minneapolis
    ____________
    Submitted: December 17, 2013
    Filed: April 4, 2014
    ____________
    Before WOLLMAN, LOKEN, and KELLY, Circuit Judges.
    ____________
    LOKEN, Circuit Judge.
    Michael Prezioso brought this action under the Employee Retirement Income
    Security Act (“ERISA”), 
    29 U.S.C. § 1132
    (a)(1)(B), claiming that The Prudential
    Insurance Company of America (“Prudential”) wrongly denied him long term
    disability (“LTD”) benefits under a group policy sponsored by his former employer,
    Vertis, Inc. (“Vertis”). Prezioso appeals the district court’s1 grant of summary
    judgment dismissing this claim. He argues that the court erred in applying the abuse
    of discretion standard of judicial review and, alternatively, that Prudential abused its
    discretion in denying LTD benefits. Reviewing these issues de novo, we affirm.
    I. Factual and Procedural Background.
    The allegedly disabling injury occurred on May 10, 2010, when Prezioso
    injured his back lifting a 15-pound art portfolio while working as an advertising sales
    representative for Vertis, a marketing and advertising firm.2 On May 11, Dr. John
    Dowdle diagnosed acute mechanical low back pain and degenerative disc disease of
    the lumbar spine. Dr. Dowdle recommended a week off work and pain medication,
    noting that Prezioso should be “dramatically better when he is seen in 1 week.”
    Prezioso faxed this information to Vertis human resources. Later that day, Prezioso
    was terminated by his supervisor for failing to meet sales targets established after
    Vertis lost one of Prezioso’s major accounts in 2009.
    When the pain did not quickly resolve, Dr. Dowdle ordered an MRI of
    Prezioso’s lumbar spine. The images revealed degenerative disc disease at two levels
    of his lumbar spine and stenosis, a narrowing of spaces at the L4-L5 level impinging
    on the nerve. On June 1, Dr. Dowdle referred Prezioso to an exercise program at a
    neck and back clinic. Dr. Katherine Anglin observed that Prezioso “move[d] fairly
    easily about the room,” had a normal gait but a limited range of motion, and reported
    1
    The Honorable Ann D. Montgomery, United States District Judge for the
    District of Minnesota.
    2
    In May 2009, Prezioso sustained a similar injury to his lumbar spine while
    removing a box of work materials from a car trunk. He was treated with steroid
    injections and returned to work at Vertis within a few weeks. Prior to these injuries,
    he had a lumbar laminectomy and disc excision to treat a ruptured disc in 1981.
    -2-
    significant pain. Dr. Anglin estimated that, if the exercise program were successful,
    Prezioso would return to his normal activities in nine to twelve weeks.
    Prezioso participated in the exercise program but made little progress. In mid-
    June, Dr. Dowdle considered spinal surgery. After a July discogram showed
    “abnormal disc morphology” at L4-L5 and L5-S1, Dr. Dowdle referred Prezioso to
    orthopedic surgeon Stefano Sinicropi for a second opinion. When a CT scan
    confirmed Dr. Sinicropi’s preliminary opinion, he recommended two-level lumbar
    spinal fusion in October 2010 and eventually performed that surgery on June 24,
    2011. Meanwhile, a motor vehicle accident in October aggravated Prezioso’s lumbar
    pain and injured the cervical area of his spine. Dr. Dowdle, Dr. Sinicropi, and a
    physician’s assistant signed numerous “Workability Forms” stating, without analysis,
    that Prezioso was unable to work between May 10, 2010, and August 1, 2011.
    On November 11, 2010, Prezioso applied for LTD and short term disability
    (“STD”) benefits under Vertis’s separate LTD and STD plans administered by
    Prudential. He submitted an employee statement, attending physician statements, and
    medical records supporting his claim. Both plans defined disabled to mean that a
    participant is “unable to perform the material and substantial duties” of his “regular
    occupation” due to sickness or injury. “Material and substantial duties” are those that
    are “normally required for the performance of the [employee’s] regular occupation,
    and cannot be omitted or modified.” “Regular occupation” means the employee’s
    “occupation as it is normally performed instead of how the work tasks are performed
    for a specific employer or at a specific location.” To be eligible for STD benefits (not
    here at issue), an employee must be “continuously disabled” throughout a seven-day
    “elimination period.” To be eligible for LTD benefits, an employee must be
    continuously disabled throughout a 180-day elimination period.
    On January 18, 2011, Prudential disallowed Prezioso’s STD claim, concluding
    he was ineligible for benefits because the injury occurred on May 12, the day after he
    -3-
    was terminated. The decision advised that, if Prezioso chose to appeal, his LTD
    claim would be considered after STD benefits were approved. On March 18,
    Prezioso timely appealed both denials. His appeal clarified that the May 10 injury
    occurred prior to his May 11 termination. In addition, he submitted voluminous
    medical records and a personal affidavit declaring: “I am unable to work at any job
    due to . . . severe pain which causes me to be unable to sit, stand, walk, or drive for
    any period of time. I have been advised by my doctors to avoid lifting even light
    weight items. Both the pain and the pain medications which I need to take cause me
    to have difficulty thinking and concentrating.”
    In considering this appeal, Prudential had Prezioso’s claim reviewed by an
    independent physician board-certified in pain management and rehabilitation, Dr.
    Ephraim Brenman. Dr. Brenman’s April 22, 2011, report noted that Prezioso had
    restrictions and limitations from his back condition and found that he should not lift
    or carry items heavier than 25 pounds; only occasionally squat or reach below waist
    level; and sit for no longer than two hours at one time with five-minute breaks to
    stretch. Due to the automobile accident, Dr. Brenman also found that Prezioso should
    be limited to two hours of continuous keyboarding separated by five minute breaks.
    Despite these limitations, Dr. Brenman concluded that Prezioso “can perform the
    work activities and duties within the restrictions and limitations on a full time basis.”
    Dr. Brenman concluded that Prezioso had reported limitations “not supported and
    consistent with the documentation provided for review,” and that “no functional
    examination findings . . . support ongoing neurological deficit.” Prudential also
    consulted a certified rehabilitation counselor, Irene Morris, to identify the “material
    and substantial duties” of Prezioso’s regular occupation. Morris concluded that these
    duties included lifting and carrying up to twenty pounds occasionally and up to ten
    pounds frequently. She found that advertising executives often work more than forty
    hours per week, but “most have the freedom to determine their own schedules.”
    -4-
    Prudential denied Prezioso’s LTD and STD appeals on June 15, 2011. Citing
    Dr. Brenman’s report and medical records provided by Prezioso, Prudential agreed
    that Prezioso “did experience a level of functional impairment” following his back
    injury in May 2010. However, based on Morris’s analysis and Dr. Brenman’s
    findings, Prudential concluded that Prezioso’s impairments would not prevent him
    from performing the material and substantial duties of his regular occupation.
    Consistent with the LTD Plan’s Summary Plan Description (“SPD”), Prudential
    advised that Prezioso could elect to appeal this decision to Prudential’s Appeals
    Review Unit; that a second appeal must be submitted within 180 days; that Prudential
    would determine the second appeal within 45 days unless it notified Prezioso that
    “special circumstances” required a 45 day extension; and that he may immediately file
    a lawsuit under ERISA because he had “completed the first level of appeal.”
    On December 8, 2011, Prezioso submitted a voluntary second appeal. He
    objected to Dr. Brenman’s report because Dr. Brenman “is not a neurologist”
    qualified “to opine on neurological disorders” and submitted a statement from Dr.
    Sinicropi disagreeing with Dr. Brenman’s conclusions. Prezioso provided an updated
    medical history including records related to his June 24 lumbar fusion surgery. He
    also submitted a vocational report opining that he was incapable of performing his job
    due to a 10-pound lifting restriction; affidavits regarding his limited daily activities
    and debilitating pain; and a June 27 Social Security Administration decision that he
    has been under a disability as defined in the Social Security Act since May 10, 2010.
    In response to this second voluntary appeal, Prudential sought an independent
    medical review from a board-certified neurologist and asked Dr. Brenman to re-
    evaluate his findings in light of the recent fusion surgery and Social Security ruling.
    The neurologist, Dr. Leonid Topper, found no evidence in Prezioso’s medical records
    that he was affected by any specific neurological diagnosis. Therefore, Dr. Topper
    found that Prezioso’s reported limitations were “not supported . . . from a
    neurological point of view.” Dr. Brenman reviewed documents relating to Prezioso’s
    -5-
    spinal fusion surgery and concluded that his earlier opinion was still sound. Both
    physicians explained why the Social Security award did not change their opinions.
    Prudential did not complete its investigation of Prezioso’s second appeal within
    45 days. On January 20, 2012, Prudential gave notice it required the 45-day
    extension contemplated in the SPD. On March 7, Prudential requested a further
    extension, which Prezioso’s attorney refused to grant. Prudential advised that it
    would nonetheless continue to review the second appeal. Prezioso filed this action
    on April 27. Prudential completed its review and issued a final decision denying the
    second appeal on June 7, 2012. On October 31, a magistrate judge granted Prezioso’s
    motion to exclude documents generated after the filing of his lawsuit as not properly
    part of “the ERISA administrative record.” On February 28, 2013, the district court
    granted summary judgment to Prudential, concluding that Prudential did not abuse
    its discretion in deciding that Prezioso was not continuously disabled within the
    meaning of the LTD policy and therefore not entitled to LTD benefits.
    II. The ERISA Standard of Judicial Review.
    A “denial of benefits challenged under [ERISA] is to be reviewed under a de
    novo standard unless the benefit plan gives the administrator . . . discretionary
    authority to determine eligibility for benefits.” Firestone Tire & Rubber Co. v. Bruch,
    
    489 U.S. 101
    , 115 (1989). As the Supreme Court recently noted -
    Firestone deference[,] . . . by permitting an employer to grant
    primary interpretive authority over an ERISA plan to the plan
    administrator, preserves the ‘careful balancing’ on which ERISA is
    based. Deference promotes efficiency by encouraging resolution of
    benefits disputes through internal administrative proceedings rather than
    costly litigation. It also promotes predictability, as an employer can rely
    on the expertise of the plan administrator rather than worry about
    -6-
    unexpected and inaccurate plan interpretations that might result from de
    novo judicial review.
    Conkright v. Frommert, 
    559 U.S. 506
    , 517 (2010). Thus, although we require
    “explicit discretion-granting language” in an ERISA plan contained in a group health
    and welfare insurance policy, the policy need not use the word “discretion.” Hankins
    v. Standard Ins. Co., 
    677 F.3d 830
    , 835 (8th Cir. 2012).
    A. Prezioso first argues that the district court erred in applying the abuse of
    discretion standard because the plan did not include discretion-conferring language.
    Reviewing this issue de novo, see Ferrari v. Teachers Ins. & Annuity Ass’n, 
    278 F.3d 801
    , 806 (8th Cir. 2002), we first note that it was not properly preserved for appeal.
    In the district court, Prezioso moved to exclude documents generated after he filed
    this lawsuit as not properly part of the ERISA administrative record. Resolution of
    that issue very much depended on whether judicial review of Prudential’s decision
    would be conducted under the abuse of discretion or the de novo standard of review.
    Compare, e.g., Donatelli v. Home Ins. Co., 
    992 F.2d 763
    , 765 (8th Cir. 1993) (“[i]f
    it is necessary for adequate de novo review of the fiduciary’s decision, the district
    court may allow the parties to present [additional] evidence”), with Bounds v. Bell
    Atl. Enter. Flexible Long-Term Disability Plan, 
    32 F.3d 337
    , 339 (8th Cir. 1994). In
    response, Prudential advised that “the sole issue is whether Prudential abused its
    discretion when, based on the evidence in the administrative record, it denied
    Plaintiff’s claim for disability benefits.” In his Reply memorandum, Prezioso did not
    challenge this description of the applicable standard of review, thus either conceding
    the issue or leading the trial court into error in granting the motion to exclude.
    Turning to the merits of this issue out of an abundance of caution, we find it
    is governed by controlling Eighth Circuit precedent. The LTD plan expressly
    provided that, in considering a claim for LTD benefits, Prudential “may request . . .
    proof of continuing disability, satisfactory to Prudential.” Another provision stated
    -7-
    that benefits, if granted, will cease on the date “you fail to submit proof of continuing
    disability satisfactory to Prudential.” In Ferrari, we held that a plan requiring that the
    employee submit “written proof of continued total disability . . . satisfactory to [the
    plan administrator]” was sufficient to trigger abuse of discretion review. 
    278 F.3d at 806
    ; accord Clapp v. Citibank N.A. Disability Plan (501), 
    262 F.3d 820
    , 823, 826-27
    (8th Cir. 2001). Prezioso urges us to instead follow contrary decisions of other
    circuits. See Cosey v. Prudential Ins. Co. of Am., 
    735 F.3d 161
    , 166-68 & n.3 (4th
    Cir. 2012), and cases cited. As a panel, we may not do so. In any event, we find the
    reasoning in those decisions unpersuasive.
    Prezioso further argues that this case should be governed by our decisions
    noting that ambiguous language in an insurance policy does not confer discretion.
    See Rittenhouse v. UnitedHealth Group Long Term Disability Ins. Plan, 
    476 F.3d 626
    , 629 (8th Cir. 2007), citing Walke v. Group Long Term Disability Ins., 
    256 F.3d 835
    , 840 (8th Cir. 2001). But, contrary to this contention, the phrasing in Prudential’s
    LTD plan -- “satisfactory to Prudential” -- eliminated the ambiguity that prompted our
    decision in Walke. See 
    256 F.3d at 839-40
    . Moreover, there is far more in this case
    than the above-quoted policy provisions. As the district court noted, the LTD plan’s
    SPD clearly explained to plan participants that Prudential “has the sole discretion to
    interpret the terms of the Group Contract, to make factual findings, and to determine
    eligibility for benefits,” and that Prudential’s decisions as claims administrator “shall
    not be overturned unless arbitrary and capricious.” Prezioso argues the district court
    erred in relying on the SPD, citing cases holding that discretion-conferring language
    found only in the SPD is ineffective because “there would . . . be little need to follow
    formal [ERISA plan] amendment procedures if key terms could be changed by a
    summary plan description.” Ringwald v. Prudential Ins. Co. of Am., 
    609 F.3d 946
    ,
    949 (8th Cir. 2010) (quotation omitted). But this principle does not apply if the plan
    has language conferring discretion that is ambiguous, rather than absent altogether.
    To disregard SPD language clarifying a plan’s arguably ambiguous grant of
    discretion would be contrary to Department of Labor regulations requiring that SPDs
    -8-
    clearly describe “all claims procedures.” 
    29 C.F.R. § 2560.503-1
    (b)(2), cross-
    referencing § 2520.102-3. The district court correctly concluded that the plan
    language as confirmed by the SPD explicitly granted Prudential discretion to interpret
    the plan and to determine eligibility for benefits.
    B. Prezioso further argues that, even if the plan granted Prudential discretion,
    he is nonetheless entitled to de novo review because, when a plan administrator fails
    to act on a claimant’s appeal that “raises serious doubts about the administrator’s
    [initial] decision,” the initial decision “is subject to judicial review, and the standard
    of review will be de novo.” Seman v. FMC Corp. Ret. Plan for Hourly Emps., 
    334 F.3d 728
    , 733 (8th Cir. 2003). We reject this contention because it misconstrues the
    applicable ERISA statute and regulations.
    The statute provides that every plan must provide participants with adequate
    notice of claim denials and “a reasonable opportunity . . . for a full and fair review by
    the appropriate named fiduciary of the decision denying the claim.” 
    29 U.S.C. § 1133
    (2). Claimants “must exhaust this procedure before bringing claims for
    wrongful denial to court.” Galman v. Prudential Ins. Co. of Am., 
    254 F.3d 768
    , 770
    (8th Cir. 2001). Implementing § 1133(2), the Department of Labor’s regulations
    provide that every plan must establish a procedure “under which there will be a full
    and fair review of the claim and the adverse benefit determination.” 
    29 C.F.R. § 2560.503-1
    (h)(1).3 For group health plan disability claims, the plan must notify the
    claimant of its determination of the mandatory appeal within 45 days, subject to one
    45-day extension for “special circumstances.” § 2560.503-1(i)(1), (3)(i). If the plan
    fails to follow this procedure, “a claimant shall be deemed to have exhausted the
    administrative remedies available under the plan” and may seek judicial review.
    3
    The LTD plan’s SPD incorporated the substance of 
    29 C.F.R. § 2560.503-1
    (h),
    providing that the first mandatory appeal will be a “full review of the information in
    the claim file and any new information submitted to support the appeal.”
    -9-
    § 2560.503-1(l). That was the circumstance in Seman, where the plan denied the
    claimant full and fair review by failing to decide his mandatory appeal for more than
    18 months. 
    334 F.3d at 731
    .4 We had no administrative appeal decision to review,
    and the claimant, having exhausted his plan remedies, was entitled to judicial review
    of the adverse initial decision. Thus, we saw no alternative but to conduct that review
    de novo. We explicitly noted the district court’s discretion to base this de novo
    review “on evidence beyond that presented to the administrator.” 
    Id. at 734
    .
    This case is far different because Prudential conducted a full and fair review
    of Prezioso’s mandatory appeal and issued a timely decision. At that point, his plan
    remedies were exhausted. The regulations allow for a voluntary second appeal but
    expressly provide that the claimant need not exhaust this procedure before seeking
    judicial review. 
    29 C.F.R. § 2560.503-1
    (c)(3). The regulations do not provide that
    a voluntary appeal procedure is part of the plan’s statutory obligation to provide “full
    and fair review” of the initial decision. See DaCosta v. Prudential Ins. Co. of Am.,
    No. 10-CV-720 (JS)(ARL), 
    2010 WL 4722393
    , at *4-5 (E.D.N.Y Nov. 12, 2010).
    Thus, when Prezioso filed his voluntary second appeal in December 2011, his right
    to seek judicial review of the adverse determination of his mandatory appeal under
    the abuse-of-discretion standard of review was established. In these circumstances,
    we agree with the Eleventh Circuit that Prudential’s subsequent handling of the
    voluntary appeal did not change the standard of review. See Harvey v. Standard Ins.
    Co., 503 F. App’x 845, 848-49 (11th Cir. 2013) (per curiam) (unpublished). Of
    course, in a particular case, how the plan administrator responded to a claimant’s
    voluntary second appeal may “be weighed as a factor in determining whether there
    is an abuse of discretion.” Metro. Life Ins. Co. v. Glenn, 
    554 U.S. 105
    , 115 (2008),
    quoting Bruch, 
    489 U.S. at 115
    .
    4
    Likewise, McGarrah v. Hartford Life Ins. Co., 
    234 F.3d 1026
    , 1031 (8th Cir.
    2000), involved a plan administrator’s failure to provide the written decision required
    by 
    29 C.F.R. § 2560.503-1
    (h)(3).
    -10-
    Determining that the abuse-of-discretion standard of review applies when a
    voluntary second appeal was available, but either was not pursued by the claimant or
    was not completed by the plan administrator, does not resolve an important, related
    question -- in such a case, what is the ERISA administrative record to be reviewed?
    In some cases, if the claimant elects to sue without waiting for the plan’s response to
    a voluntary appeal, it may be proper to limit the administrative record to the record
    before the plan administrator when the prior, mandatory appeal was decided, as in
    Harvey, 503 F. App’x at 849. But in other cases, such as this case, determining the
    proper record to be reviewed for abuse of the plan administrator’s discretion may
    require careful examination of the claim’s complete procedural history. One thing
    seems clear: neither the statute, the regulations, nor any persuasive judicial authority
    warranted the magistrate judge’s decision to keep the record open until Prezioso filed
    his lawsuit, thus including his additional supporting materials but not Prudential’s
    final response to those materials, without a finding that Prudential’s delay was
    unreasonable and prejudicial, or that the litigation would otherwise be unreasonably
    prolonged. Fortunately, the district court’s careful review of the arbitrarily truncated
    administrative record under the abuse-of-discretion standard of review made this
    initial procedural error harmless.
    III. Abuse of Discretion Review.
    The remaining question is whether Prudential abused its discretion in denying
    Prezioso LTD benefits. Under this standard, “the plan administrator’s decision will
    be upheld if it was reasonable, that is, if it was supported by substantial evidence.”
    McGarrah, 
    234 F.3d at 1031
    . We must affirm “if a reasonable person could have
    reached a similar decision, given the evidence before him, not that a reasonable
    person would have reached that decision.” Ferrari, 
    278 F.3d at 807
     (quotation
    omitted; emphasis in original).
    -11-
    The record demonstrates that Prudential provided Prezioso the required “full
    and fair review” before denying his first appeal from the initial denial of LTD
    benefits. It considered all comments, medical records, and other information
    submitted by Prezioso; did not afford deference to the initial decision; referred the
    appeal to a different decisionmaker; consulted a neutral health care professional with
    appropriate training and experience in lower back disabilities; and obtained advice
    from a qualified vocational expert regarding the demands of Prezioso’s “regular
    occupation.” See 
    29 C.F.R. § 2560.503-1
    (h)(2) and (3). Contrary to Prezioso’s
    assertions, Prudential did not abuse its discretion by according more weight to the
    opinions of its own experts -- Dr. Brenman and Irene Morris -- than to the opinions
    of his treating physicians and other experts. See Black & Decker Disability Plan v.
    Nord, 
    538 U.S. 822
    , 834 (2003); Dillard’s Inc v. Liberty Life Assurance Co. of Bos.,
    
    456 F.3d 894
    , 899-900 (8th Cir. 2006). The key question presented to Prudential --
    whether Prezioso was able to perform the material and substantial duties of his
    regular occupation -- was not meaningfully addressed by his medical records or by
    the opinions of Drs. Dowdle and Sinicropi, who submitted conclusory workability
    forms covering the 180-day elimination period and the succeeding months prior to
    Prezioso’s lumbar surgery, a period when he did not have a job and there is no
    evidence he was looking for work. By contrast, Prudential’s experts analyzed
    Prezioso’s medical records and job responsibilities, concluded that he “experienced
    a level of functional impairment” that did not meet the definition of “continuously
    disabled” in the LTD plan, and further concluded that his subjective complaints of
    continuously disabling pain were not supported by the objective medical evidence.
    Based on this record, Prudential did not abuse its discretion in denying Prezioso’s
    first appeal from the adverse initial decision.
    Turning to the abbreviated record of Prezioso’s voluntary second appeal, the
    district court noted that he submitted a large volume of documents, but “the majority
    of these documents provided little or no new information for Prudential to consider.”
    -12-
    Prezioso’s criticism of Dr. Brenman’s lack of expertise in neurology prompted
    Prudential to request an independent neurological review by Dr. Topper, who
    concluded that Prezioso’s claim was not supported “from a neurological point of
    view.” The Social Security decision was new, but “an ERISA plan administrator or
    fiduciary generally is not bound by an SSA determination that a plan participant is
    disabled.” Farfalla v. Mutual of Omaha Ins. Co., 
    324 F.3d 971
    , 975 (8th Cir.)
    (quotation omitted), cert. denied, 
    540 U.S. 875
     (2003). Drs. Brenman and Topper
    explained to Prudential why they disagreed with the Social Security decision. The
    lumbar surgery was a newly-completed event. Prudential asked Dr. Brenman to
    reconsider his earlier conclusions in light of the new evidence. After reviewing
    records of the surgery and Prezioso’s subsequent recovery, Dr. Brenman concluded
    that Prezioso would have been unable to work for 30 days after the surgery, would
    have been limited to sedentary work for the next three months, and then would have
    again been able to work with the restrictions noted in Dr. Brenman’s initial report.
    We agree with the district court that the subsequent medical evidence submitted with
    Prezioso’s voluntary second appeal did not render Prudential’s denial of his
    mandatory first appeal an abuse of discretion. Particularly in a case like this
    involving a claim of total disability based primarily on the claimant’s subjective
    complaints of pain, “[w]here there is a conflict of opinion, the plan administrator does
    not abuse his discretion in finding that the employee is not disabled.” Clapp, 
    262 F.3d at 829
     (quotation omitted).
    For the foregoing reasons, the judgment of the district court is affirmed. We
    deny Prezioso’s motion to strike Prudential’s separate appendix and Prudential’s
    motion for leave to file a Sur-Reply Brief.
    ______________________________
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