Smith v. Continental Casualty

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NEAL S. SMITH, 
Plaintiff-Appellee,
v.  No. 03-2105
CONTINENTAL CASUALTY COMPANY,
Defendant-Appellant.

NEAL S. SMITH, 
Plaintiff-Appellee,
v.  No. 03-2435
CONTINENTAL CASUALTY COMPANY,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
William D. Quarles, Jr., District Judge.
(CA-02-3049-WDQ)
Argued: May 4, 2004
Decided: May 28, 2004
Before WILLIAMS and TRAXLER, Circuit Judges,
and Pasco M. BOWMAN, II, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit,
sitting by designation.
Vacated and remanded by published opinion. Judge Williams wrote
the opinion, in which Judge Traxler and Senior Judge Bowman
joined.
2 SMITH v. CONTINENTAL CASUALTY CO.
COUNSEL
ARGUED: Bryan David Bolton, FUNK & BOLTON, P.A., Balti-
more, Maryland, for Appellant. Scott Bertram Elkind, ELKIND &
SHEA, Silver Spring, Maryland, for Appellee. ON BRIEF: Michael
R. McCann, Hisham M. Amin, FUNK & BOLTON, P.A., Baltimore,
Maryland, for Appellant. Stephen F. Shea, ELKIND & SHEA, Silver
Spring, Maryland, for Appellee.
OPINION
WILLIAMS, Circuit Judge:
Continental Casualty Company appeals the district court’s grant of
summary judgment to Neal S. Smith on his claim for wrongful denial
of benefits under an ERISA plan. Because the district court relied on
a Social Security ruling dealing with subjective complaints of pain
that does not apply to this ERISA benefits plan, we vacate the grant
of summary judgment for Smith. Given our holding on the benefits
issue, we vacate the district court’s award of attorneys’ fees to Smith.
I.
Smith was a vice president of sales in the floor covering depart-
ment at J.J. Haines & Co., Inc., a wholesale distributor, where he was
in charge of carpet, ceramics and wood. As part of his job, he was
required to "travel independently up to 60% of the time within the
[d]omestic United States to attend various meetings with other per-
sonnel and public" and "to visit suppliers and customers." (J.A. at
172.) According to his job description, Smith was "frequently
required to sit" and "required to stand and walk." (J.A. at 172.) His
job also required "[e]xtensive automobile travel . . . to visit suppliers
and customers." (J.A. at 172.) Smith’s geographical territory extended
from Pennsylvania to South Carolina.
Smith has had a long history of back problems. Between March 14,
1997 and May 3, 2000, Smith had three surgeries performed on his
lower back. Smith experienced some temporary improvement follow-
SMITH v. CONTINENTAL CASUALTY CO. 3
ing the surgeries and was even able to travel during the late fall of 2000.1
On January 14, 2001, however, Smith was watching a football game,
and when he jumped up to celebrate a touchdown, "his back went out
again." Smith indicated that since January 2001, he has been unable
to stand or walk for more than three to five minutes at a time before
he has to lie down.
On February 23, 2001, Smith filed a claim for long term disability
benefits under the ERISA plan (the Plan) that Continental Casualty
administered for his employer.2 Smith’s claim was based on his
degenerative disc disease and joint disease of the lumbar spine.
The Plan provides for benefits for all full-time officers, managers,
and administrators. Continental Casualty concedes that Smith is a
covered person. Under the Plan, a covered person is "Disabled" or has
a "Disability," and thus, is entitled to benefits, if he meets the "Occu-
pation Qualifier or the Earnings Qualifier." (J.A. at 134.) The Earn-
ings Qualifier is not at issue in this case. The Occupation Qualifier
provides:
Disability" means that Injury or Sickness causes physical or
mental impairment to such a degree of severity that You are:
1. continuously unable to perform the Material and Substan-
tial Duties of Your Regular Occupation; and
2. not working for wages in any occupation for which You
are or become qualified by education, training or experi-
ence.
1
According to Continental Casualty’s denial of benefits, because of his
back problems, Smith "was allowed to travel three times a week, which
incorporated a combination of air and car travel." (J.A. at 251.)
2
On May 11, 2001, Smith filed a claim for Social Security benefits,
which was granted on February 25, 2002, with a disability onset date of
February 23, 2001. Continental Casualty’s "disability determination is
independent of the Social Security Administration’s ruling." (J.A. at 251;
cf. Gallagher v. Reliance Standard Life Ins. Co., 305 F.3d 264, 275 (4th
Cir. 2002).)
4 SMITH v. CONTINENTAL CASUALTY CO.
(J.A. at 134.) The Plan defines "Material and Substantial Duties" as
"the necessary functions of Your Regular Occupation which cannot
be reasonably omitted or altered." (J.A. at 146.)
The Plan also provides that "[t]he policy does not cover any loss
caused by, contributed to, or resulting from: . . . Disability beyond 24
months . . . if it is due to a diagnosed condition which manifests itself
primarily with Self-Reported Symptom(s). (J.A. at 139.) The Plan
defines "Self-Reported Symptoms" as "the symptoms of which You
tell Your Doctor, and are not verifiable or quantifiable using tests,
procedures, or clinical examinations Generally Accepted in the Prac-
tice of Medicine. Examples of these manifestations include the fol-
lowing, but are not limited to: fatigue, pain, headaches, stiffness,
soreness, tinnitus (ringing in the ears), dizziness, numbness, or loss of
energy." (J.A. at 146.)
In the section entitled "Proof of Disability," the Plan provides that
The following items, supplied at Your expense, must be a
part of Your proof of loss. Failure to do so may delay, sus-
pend or terminate Your benefits:
1. The date Your Disability began;
2. The cause of Your Disability;
3. The prognosis of Your Disability; . . .
5. Objective medical findings which support Your Disabil-
ity. Objective medical findings include but are not limited to
tests, procedures, or clinical examinations standardly
accepted in the practice of medicine, for Your disabling con-
dition(s).
6. The extent of Your Disability, including restrictions and
limitations which are preventing You from performing Your
Regular Occupation.
(J.A. at 142.)
SMITH v. CONTINENTAL CASUALTY CO. 5
Continental Casualty issued its first denial of Smith’s claim on
April 16, 2001. Smith filed an administrative appeal, and after Smith
submitted additional information, Continental Casualty’s Appeals
Committee remanded Smith’s file to the Claims Unit for further
review and investigation. On November 21, 2001, the Claims Unit
once again denied Smith’s claim. Smith again appealed. On May 2,
2002, Continental Casualty issued its final denial of Smith’s claim. In
this denial, Continental Casualty stated that
The information presented does show degenerative disc dis-
ease, bilateral laminectomies at L3-4 and 4-5, spinal stenosis
and subsequent failed back syndrome. From 1997 to 2000,
Mr. Smith had underwent [sic] a total of three back sur-
geries as follows: 1) March 14, 1997, bilateral lumbar lami-
nectomy; 2) September 28, 1998, L2 through L5 lumbar
laminectomy with fusion; and 3) May 3, 2000, L4-L5, L5-
S1 hemilaminectomy and forminotomy.
(J.A. at 250.) Continental Casualty also acknowledged that the medi-
cal review performed by Dr. Soriano, who was hired by Continental
Casualty, indicated that Smith "would need to avoid sitting or stand-
ing for prolonged periods of time over 1-2 hours." (J.A. at 253.) After
listing all of the medical evidence, however, Continental Casualty
concluded that
the physical findings show full muscle strength, no atrophy
and no neurological deficits. . . .
. . . We can appreciate that Mr. Smith may have some
back pain and difficulties associated with his longstanding
back pain history and surgeries, but the information pre-
sented does not support a functional loss that would pre-
clude him from performing the full duties of his regular
occupation as of February 23, 2001 . . . . The primary limit-
ing factor affecting Mr. Smith is his pain complaints, which
are disproportionate when compared to the diagnostic and
physical findings presented.
(J.A. at 253.)
6 SMITH v. CONTINENTAL CASUALTY CO.
On September 13, 2002, Smith filed a complaint in the United
States District Court for the District of Maryland for wrongful denial
of his claim for long-term disability benefits. Smith sought back bene-
fits, plus interest, future benefits, reinstatement of his term life insur-
ance, "waiver of premium" coverage, and reasonable attorneys’ fees.
Both parties moved for summary judgment. The district court
granted summary judgment in part for Smith, awarding back benefits
with interest, and future benefits. The district court’s decision relied
heavily on its adoption of a Social Security Ruling regarding subjec-
tive evidence of pain. Given its ruling on the benefits issue, the dis-
trict court remanded the waiver of premium issue to Continental
Casualty. The district court also granted Smith’s attorneys’ fee peti-
tion in total. This appeal followed.
II.
"We review the entry of summary judgment in favor of Appellees
de novo." Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003). Sum-
mary judgment is appropriate only "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any mate-
rial fact." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). In deciding whether there is a genuine issue of material
fact, "the evidence of the nonmoving party is to be believed and all
justifiable inferences must be drawn in its favor." American Legion
Post 7 v. City of Durham, 239 F.3d 601, 605 (4th Cir. 2001).
"It is well-established that a court reviewing the denial of disability
benefits under ERISA initially must decide whether a benefit plan’s
language grants the administrator or fiduciary discretion to determine
the claimant’s eligibility for benefits, and if so, whether the adminis-
trator acted within the scope of that discretion." Gallagher v. Reliance
Standard Life Ins. Co., 305 F.3d 264, 268 (4th Cir. 2002) " ‘Where
discretion is conferred upon the trustee with respect to the exercise of
a power, its exercise is not subject to control by the court except to
prevent an abuse by the trustee of his discretion.’ " Firestone Tire and
Rubber Co. v. Bruch, 489 U.S. 101, 111 (1989) (quoting Restatement
(Second) of Trusts § 187 (1959)). "Thus, a trustee’s discretionary
decision will not be disturbed if reasonable, even if the court itself
SMITH v. CONTINENTAL CASUALTY CO. 7
would have reached a different conclusion." Booth v. Wal-Mart
Stores, Inc. Assocs. Health & Welfare Plan, 201 F.3d 335, 341 (4th
Cir. 2000). "Under the abuse of discretion standard, the plan adminis-
trator’s decision is reasonable if it is the result of a deliberate, princi-
pled reasoning process and if it is supported by substantial evidence."
Bernstein v. CapitalCare, Inc., 70 F.3d 783, 788 (4th Cir. 1995)
(internal quotation marks omitted). It is undisputed that Continental
Casualty possessed discretionary authority to determine Smith’s enti-
tlement to benefits. Accordingly, we review the denial of benefits for
an abuse of discretion.
Where, however, an administrator or fiduciary with discretion is
operating under a conflict of interest such that its decision to award
or deny benefits impacts its own financial interests, as here, that con-
flict must be weighed as a factor in determining whether there is an
abuse of discretion. Bernstein, 70 F.3d at 787. In such a situation, we
modify the abuse of discretion standard, as we held in Doe v. Group
Hospitalization and Medical Services, 3 F.3d 80 (4th Cir. 1993):
We hold that when a fiduciary exercises discretion in inter-
preting a disputed term of the contract where one interpreta-
tion will further the financial interests of the fiduciary, we
will not act as deferentially as would otherwise be appropri-
ate. Rather, we will review the merits of the interpretation
to determine whether it is consistent with an exercise of dis-
cretion by a fiduciary acting free of the interests that conflict
with those of the beneficiaries. In short, the fiduciary deci-
sion will be entitled to some deference, but this deference
will be lessened to the degree necessary to neutralize any
untoward influence resulting from the conflict.
Doe, 3 F.3d at 87. "[I]n no case does the court deviate from the abuse
of discretion standard. Instead, the court modifies that abuse of discre-
tion standard according to a sliding scale. The more incentive for the
administrator or fiduciary to benefit itself by a certain interpretation
of benefit eligibility or other plan terms, the more objectively reason-
able the administrator or fiduciary’s decision must be and the more
substantial the evidence must be to support it." Ellis v. Metro. Life
Ins. Co., 126 F.3d 228, 233 (4th Cir. 1997). The district court cor-
rectly recognized that the modified abuse of discretion standard was
8 SMITH v. CONTINENTAL CASUALTY CO.
appropriate because Continental Casualty, directly and indirectly,
both insures and administers the Plan.
With this standard in mind, we consider Continental Casualty’s
argument that the district court erred by importing Social Security
Ruling ("SSR") 90-1p into the ERISA context. SSR 90-1p,3 which
provided the Fourth Circuit’s standard for the evaluation of pain for
purposes of Social Security disability determinations, stated that
Once an underlying physical or mental impairment that
could reasonably be expected to cause pain is shown by
medically acceptable objective evidence, such as clinical or
laboratory diagnostic techniques, the adjudicator must eval-
uate the disabling effects of a disability claimant’s pain,
even though its intensity or severity is shown only by sub-
jective evidence. If an underlying impairment capable of
causing pain is shown, subjective evidence of the pain, its
intensity or degree can, by itself, support a finding of dis-
ability. Objective medical evidence of pain, its intensity or
degree (i.e., manifestations of the functional effects of pain
such as deteriorating nerve or muscle tissue, muscle spasm,
or sensory or motor disruption), if available, should be
obtained and considered. Because pain is not readily suscep-
tible of objective proof, however, the absence of objective
medical evidence of the intensity, severity, degree or func-
tional effect of pain is not determinative.
SSR 90-1p; Hyatt v. Sullivan, 899 F.2d 329 (4th Cir. 1990). Accord-
ing to the district court,
The evidentiary assessment of pain cannot reasonably dif-
fer whether a claimant seeks disability benefits under a pri-
3
After promulgating SSR 90-1p, the Social Security Administration
issued final regulations incorporating these same standards for evaluating
pain. See 56 Fed. Reg. 57928-01 (1991). Accordingly, SSR 90-1p has
since been superceded. See SSR 95-5p. Because the district court used
the language from SSR 90-1p, which itself was drawn from our decision
in Hyatt v. Sullivan, 899 F.2d 329 (4th Cir. 1990), the subsequent history
of SSR 90-1p has no bearing on our decision today.
SMITH v. CONTINENTAL CASUALTY CO. 9
vate plan of insurance or under the public scheme of social
security. Proof is proof.
(J.A. at 19.) Thus, the district court held, Smith’s evidence must be
considered in light of SSR 90-1p. Applying SSR 90-1p, the district
court held that "[b]ecause a claimant need not present clinical or diag-
nostic evidence to support the severity of pain, a plan administrator
cannot discount self-reports of disabling pain solely because the
objective medical evidence does not fully support them." (J.A. at 20.)
Although we can understand the district court’s perspective, this hold-
ing was error under the rationale of the recent Supreme Court deci-
sion in Black & Decker Disability Plan v. Nord, 123 S. Ct. 1965
(2003).
In Black & Decker, the Supreme Court held that the "treating phy-
sician" rule adopted by the Commissioner of Social Security did not
apply to disability determinations under employee benefit plans cov-
ered by ERISA. The Court reversed the Ninth Circuit, which had held
that the "treating physician" rule should apply to ERISA plans. The
Ninth Circuit had held "that its ‘reasons ha[d] to do with common
sense as well as consistency in [judicial] review of disability determi-
nations where benefits are protected by federal law.’ ‘Just as in the
Social Security context,’ the [Ninth Circuit] court observed, ‘the dis-
puted issue in ERISA disability determinations concerns whether the
facts of the beneficiary’s case entitle him to benefits.’" Id. at 1969
(citations omitted). The Court held that the Ninth Circuit erred in
equating the ERISA and Social Security regimes. Id. at 1970.
The district court in this case made the same error that the Ninth
Circuit made in Black & Decker by equating the determination of dis-
ability under the Social Security regime with the determination of dis-
ability under the ERISA plan at issue. In Black & Decker, the Court
recognized that "ERISA was enacted to promote the interests of
employees and their beneficiaries in employee benefit plans, and to
protect contractually defined benefits." Id. at 1970. The Court noted
that "the most recent version of the [ERISA] regulations, which
installs no treating physician rule, issued more than nine years after
the Social Security Administration codified a treating physician rule
in that agency’s regulations." Id. "Finally, and of prime importance,
critical differences between the Social Security disability program and
10 SMITH v. CONTINENTAL CASUALTY CO.
ERISA benefit plans caution against importing a treating physician
rule from the former area into the latter." Id. at 1971. As the Court
recognized,
The Social Security Act creates a nationwide benefits
program funded by Federal Insurance Contributions Act
payments, see 26 U.S.C. §§ 3101(a), 3111(a), and superin-
tended by the Commissioner of Social Security. . . . Pre-
sumptions employed in the Commissioner’s regulations
"grow out of the need to administer a large benefits system
efficiently." . . . Along with other regulations, the treating
physician rule works to foster uniformity and regularity in
Social Security benefits determinations made in the first
instance by a corps of administrative law judges.
In contrast to the obligatory, nationwide Social Security
program, "[n]othing in ERISA requires employers to estab-
lish employee benefits plans. Nor does ERISA mandate what
kind of benefits employers must provide if they choose to
have such a plan." Lockheed Corp. v. Spink, 517 U.S. 882,
887 . . . (1996). Rather, employers have large leeway to
design disability and other welfare plans as they see fit. In
determining entitlement to Social Security benefits, the
adjudicator measures the claimant’s condition against a uni-
form set of federal criteria. "[T]he validity of a claim to ben-
efits under an ERISA plan," on the other hand, "is likely to
turn," in large part, "on the interpretation of terms in the
plan at issue." Firestone Tire, 489 U.S., at 115 . . . . It is the
Secretary of Labor’s view that ERISA is best served by
"preserv[ing] the greatest flexibility possible for . . . operat-
ing claims processing systems consistent with the prudent
administration of a plan." Department of Labor, Employee
Benefits Security Administration, http://www.dol.gov/ebsa/
faqs/faq_ claims_proc_ reg.html, Question B-4 (as visited
May 6, 2003) (available in Clerk of Court’s case file). Def-
erence is due that view.
Id. at 1971-72 (emphases added).
The Supreme Court’s reasoning is equally applicable to the ques-
tion of whether to import SSR 90-1p into the ERISA area. As with
SMITH v. CONTINENTAL CASUALTY CO. 11
the treating physician rule at issue in Black & Decker, the most recent
version of the ERISA regulations was enacted long after SSR 90-1p
was adopted, and the ERISA regulations do not reference the pain rul-
ing. Moreover, ERISA does not mandate what benefits an employer
must offer. ERISA benefits are a matter of contract. Accordingly,
what qualifies as a disability for social security disability purposes
does not necessarily qualify as a disability for purposes of an ERISA
benefit plan — the benefits provided depend entirely on the language
in the plan. Thus, if the plan language provided that pain could never
support a finding of disability (which, we are quick to note, is not the
case here), then the plan language would control. Because the district
court’s grant of summary judgment rested entirely on its importation
of SSR 90-1p into the ERISA context, we vacate the grant of sum-
mary judgment for Smith on the benefits issue and remand to the dis-
trict court for reconsideration. Given this holding, we vacate the
award of attorneys’ fees for Smith.
On remand, the district court should consider whether Continental
Casualty abused its discretion in failing to apply the language of the
Plan related to Self-Reported Symptoms. We note that Continental
Casualty’s denial of benefits admits that Smith has some objective
medical findings supporting his disability. Specifically, Continental
Casualty found that "[t]he information presented does show degenera-
tive disc disease, bilateral laminectomies at L3-4 and 4-5, spinal ste-
nosis and subsequent failed back syndrome" and that "Mr. Smith may
have some back pain and difficulties associated with his longstanding
back pain history and surgeries." (J.A. at 250, 253 (emphasis added).)
Continental Casualty denied benefits because it concluded that there
were no additional objective medical findings, such as neurological
deficits, muscle atrophy, or a decrease in muscle strength, that sup-
ported the functional loss reported by Smith and his doctors. Thus,
there are some objective medical findings, Continental Casualty
merely concluded that there were not enough objective medical find-
ings. As Continental Casualty stated, "[t]he primary limiting factor
affecting Mr. Smith is his pain complaints, which are disproportion-
ate when compared to the diagnostic and physical findings pre-
sented." (J.A. at 253 (emphasis added).)
In coming to this conclusion, Continental Casualty apparently
ignored the Plan provision that indicates that limited benefits will be
12 SMITH v. CONTINENTAL CASUALTY CO.
provided for a disability "due to a diagnosed condition which mani-
fests itself primarily with Self-Reported Symptom(s)." (J.A. at 139.)
The Plan defines "Self-Reported Symptoms" as "the symptoms of
which You tell Your Doctor, and are not verifiable or quantifiable
using tests, procedures, or clinical examinations Generally Accepted
in the Practice of Medicine. Examples of these manifestations include
. . . pain." (J.A. at 146.) If a disability "manifests itself primarily with
Self-Reported Symptom(s)," (J.A. at 139), it seems that the self-
reported symptoms frequently, if not invariably, will be "dispropor-
tionate when compared to the diagnostic and physical findings pre-
sented." (J.A. at 253.) If the district court concludes that Continental
Casualty failed to consider this Plan language, it can remand the case
to Continental Casualty for further administrative review. Cf. Evans
v. Metropolitan Life Ins. Co., 358 F.3d 307, 312 (4th Cir. 2004)
("Because MetLife abused its discretion . . ., we vacate the judgment
of the district court and direct the district court to remand this case
for further administrative review by MetLife consistent with this
opinion.").
The district court may also choose to consider whether, apart from
the Plan language regarding Self-Reported Symptoms, Continental
Casualty’s denial of benefits was supported by substantial evidence.
For example, the doctor engaged by Continental Casualty to review
Smith’s file concluded that because of his three back surgeries, Smith
"would need to avoid sitting or standing for prolonged periods of time
over 1-2 hours."4 (J.A. at 253.) Continental Casualty relied on this
statement in denying benefits as evidence that Smith could perform
the material and substantial duties of his regular occupation. A review
of Smith’s job description and responsibilities reveals that he is vice
president of sales for a territory that extends from Pennsylvania to
South Carolina and that extensive automobile travel is required to
visit suppliers and customers within this territory. Although Smith
may have some control over his travel due to his position in upper
management, he has no control over the length of time that it takes
to drive from Pennsylvania to South Carolina — for example, a one-
way trip from Harrisburg, PA to Columbia, SC covers over 600 miles
and takes considerably longer than 1-2 hours.
4
Smith, we note, claims that he cannot sit or stand for more than three
to five minutes.
SMITH v. CONTINENTAL CASUALTY CO. 13
III.
For the foregoing reasons, we vacate the grant of summary judg-
ment for Smith on the benefits issue and vacate the award of attor-
neys’ fees to Smith. We remand the case for proceedings consistent
with this opinion.
VACATED AND REMANDED