Piepenhagen v. Old Dominion Freight Line, Inc.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1248
THOMAS F. PIEPENHAGEN,
Plaintiff - Appellant,
v.
OLD DOMINION FREIGHT LINE, INC., Employee Benefit Plan,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior
District Judge. (7:08-cv-00236-jct)
Argued: March 24, 2010 Decided: September 16, 2010
Before MICHAEL and DAVIS, Circuit Judges, and Eugene E. SILER,
Jr., Senior Circuit Judge of the United States Court of Appeals
for the Sixth Circuit, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Richard F. Hawkins, III, HAWKINS LAW FIRM, Richmond,
Virginia, for Appellant. Monica Taylor Monday, GENTRY, LOCKE,
RAKES & MOORE, Roanoke, Virginia, for Appellee. ON BRIEF:
Michael A. Cleary, Roanoke, Virginia, for Appellant. Eunice
Park Austin, W. David Paxton, GENTRY, LOCKE, RAKES & MOORE,
Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This appeal arises under the Employee Retirement Income
Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001, et seq. Upon
its consideration of cross-motions for summary judgment, the
district court sustained the denial of long term disability
benefits to Thomas F. Piepenhagen (“Appellant”), a former truck
driver, by the Old Dominion Freight Line, Inc., Employee Benefit
Plan (“the Plan” or “Appellee”). On appeal, Appellant contends
that the district court erred in concluding that Appellee’s
denial of benefits was consonant with the dictates of ERISA. We
discern no error in the district court’s review of Appellant’s
contentions and therefore we affirm.
I.
On February 8, 2005, Appellant suffered a heart attack
while operating a tractor-trailer rig. Immediately thereafter,
he was hospitalized and underwent medical treatment. Appellant
never returned to work as a truck driver. Over the next two
years, Appellant made regular visits with his primary care
physician, Dr. Vashist Nobbee, and his cardiologist, Dr. Andrew
J. Maiolo, who undertook responsibility for management of
Appellant’s cardiac condition. Virtually all of the material in
the administrative record of Appellant’s claim consists of
reports and records generated by those two physicians.
2
In October 2005, the Social Security Administration awarded
Appellant benefits (“SSA award”) based on its determination that
he was totally disabled. (Under the terms of the Plan, Appellant
was required to seek Social Security benefits as a precondition
to his receipt of long term disability benefits.) In the
meantime, Appellee paid short term and “same occupation” long
term disability benefits to Appellant from February 2005 through
December 2005, when it suspended payments. Appellee based its
suspension of payments on its assertion that certain
psychological or psychiatric “comorbidities” (which were not
covered under the terms of the Plan) were causally related to
Appellant’s inability to work.
After Appellant exhausted his administrative remedies as
required by the Plan he filed suit on or about November 6, 2006,
in state court (without mentioning ERISA) seeking restoration of
benefits. Appellee removed the case to the federal district
court for the Western District of Virginia. In due course, the
parties reached a settlement as to Appellant’s claim for “same
occupation” long term disability benefits. In accordance with
the parties’ settlement agreement, on April 20, 2007, the
district court (1) dismissed with prejudice the claim for “same
occupation” benefits; and (2) remanded the claim for “any
occupation” benefits to the Plan for plenary review.
3
In the post-remand administrative proceedings, Appellee
determined that Appellant had not carried his burden to show
that he was totally disabled under the terms of the Plan.
Accordingly, after Appellant had exhausted all administrative
remedies available to him under the Plan, he filed suit on or
about February 27, 2008, again in state court. The case was
removed once again to federal court. The administrative record
was lodged with the district court and the parties filed cross-
motions for summary judgment. The district court conducted a
hearing on the cross-motions on December 4, 2008, and, on
February 27, 2009, filed a comprehensive memorandum opinion and
order granting Appellee’s motion for summary judgment, denying
Appellant’s motion for summary judgment, and entering judgment
in favor of Appellee. Piepenhagen v. Old Dominion Freight Line,
Inc. Employee Benefit Plan, 640 F. Supp. 2d 778 (W.D.Va. 2009).
Appellant filed this timely appeal from the judgment of the
district court.
II.
We begin with a summary of some of the evidence in the
record bearing on Appellant’s course of treatment and prognosis
after his heart attack. In so doing, we bear in mind that (1) no
issue is presented in this appeal as to short term disability or
“same occupation” long term disability, and (2) psychiatric “co-
4
morbidities” may not, under the circumstances here, bolster
Appellant’s claim.
On March 3, 2005, within weeks of his cardiac event,
Appellant visited Dr. Nobbee, who noted that the Appellant “was
doing well” but “will remain off work” until May, when his next
doctor’s visit was scheduled. Dr. Nobbee also noted that it “may
be worthwhile to keep him off work until his cardiac status is
fully controlled given his strong risks.” On March 9, 2005, Dr.
Maiolo examined Appellant and noted that he was “doing
reasonably well.” Appellant informed Dr. Maiolo that he planned
to return to work in July 2005.” Dr. Maiolo noted that the
Appellant had scheduled a full physical with Dr. Nobbee in July
2005, and that the Appellant “can, at that time, be cleared to
return to work.”
During Appellant’s visit to Dr. Nobbee on May 5, 2005,
Appellant was “doing quite well” but showing personality and
mood difficulties. On June 16, 2005, Dr. Nobbee completed an
Attending Physician’s Statement and indicated that Appellant was
“totally disabled” for “any occupation” but that he “may be able
to return to work in July 2005. During a July 26, 2005 visit,
Dr. Nobbee found that Appellant had “recovered well” from his
cardiac event but was concerned about Appellant’s psychological
health. Dr. Nobbee recommended a psychological evaluation prior
5
to releasing the Appellant to work. During a November 1, 2005
visit, Dr. Nobbee diagnosed Appellant as doing well.
On January 9, 2006, Dr. Nobbee submitted a letter in
support of Appellant’s “same occupation” long term disability
claim, indicating that Appellant has “several comorbidities
including advanced coronary artery disease as well as
significant symptoms of depression and anxiety related to his
medical comorbidities.” Dr. Nobbee recommended that permanent
disability be awarded Appellant because of “his inability to
continue in his present employment as a truck driver.” On
January 16, 2006, the Plan’s agent, ACS Benefit Service (“ACS”),
asked Dr. Nobbee to complete another Attending Physician’s
Statement. In response, on January 30, 2006, Dr. Nobbee
indicated that Appellant had impairments based on his cardiac
condition and major depressive disorder and hyperlipidemia,
which were unimproved. He further noted that Appellant’s
prognosis was “permanently disabled,” adding that Appellant
would never return to his “regular occupation.”
On September 18, 2006, Dr. Maiolo again evaluated
Appellant, and described him as “doing reasonably well.” On
November 13, 2006, Dr. Nobbee examined Appellant and indicated
that he was “doing quite well,” had no “active complaints,” and
that his “[d]epression screen . . . was negative.” Dr. Maiolo
also assessed Appellant on February 13, 2007, and found that he
6
was “was doing reasonably well.” He added that Appellant was
experiencing chest discomfort on occasion, but that such
discomfort was remedied by medication. Appellant was not
suffering from any psychological impairments. On April 24, 2007,
Dr. Maiolo completed a Cardiac Residual Functional Capacity
Questionnaire (“CRFC”). In it, he indicated that Appellant was
“capable of low stress jobs.”
The evidence emphasized most heavily by Appellant as
demonstrating that he established his entitlement to long term
disability benefits is seen in this summary found at page 12 of
his opening brief, consisting of counsel’s interpretation of Dr.
Maiolo’s opinions as derived from the CRFC:
That he was limited to walking no more than two
blocks without rest;
That he was limited to occasionally lifting no
more than twenty pounds;
That he must avoid even moderate exposure to
extreme cold or heat, wetness, humidity, noise, fumes
and hazards;
That he could sit no more than forty-five minutes
before needing to get up;
That he could stand no more than forty-five
minutes before needing to sit down or walk around;
That he would need to take unscheduled breaks
during an eight-hour work shift, that such un-
scheduled work breaks would occur two to three times
per eight-hour work day, and that each rest period
would have to be at least twenty minutes; and
7
That he would experience good days and bad days
based on his recurring chest pain and that he would
miss approximately one day per month as a result of
this impairment.
On June 19, 2007, Appellant submitted his remand claim for
benefits under the “any occupation” provision of the Plan,
supported, in particular, by Dr. Maiolo’s CRFC. He also included
as a basis for his claim the loss of three fingertips on his
right hand resulting from a 1988 accident while working as a
machine operator. Appellant asserted that his hand injury made
“any writing difficult” and affected his ability to “pick up
small objects” and grasp heavy items with any strength.
III.
In ERISA cases as in others, we review the district court’s
grant of summary judgment de novo. Ellis v. Metropolitan Life
Ins. Co., 126 F.3d 228, 232 (4th Cir. 1997). In doing so,
however, where the administrator or fiduciary of an ERISA-
covered plan exercises discretionary authority granted by the
plan, as is the case here, this court (like the district court)
reviews that determination under an abuse of discretion
standard. Metropolitan Life Ins. Co. v. Glenn, 128 S. Ct. 2343,
2347-48 (2008) (citing Firestone Tire & Rubber Co. v. Bruch, 489
U.S. 101, 111-13 (1989)); Ellis, 126 F.3d at 232 (collecting
cases). Under such a deferential standard of review, this court
8
will not disturb the administrator or fiduciary’s decision if it
is reasonable, even if this Court -- assuming, arguendo, that we
had initially heard the case -- would have come to a different
conclusion. Id. A reasonable decision is one where “the result
of a deliberate, principled reasoning process and if it is
supported by substantial evidence.” Brogan v. Holland, 105 F.3d
158, 161 (4th Cir. 1997) (quotation omitted).
We have recognized that in Glenn, the Supreme Court
clarified “that the administrator’s conflict of interest did not
change the standard of review from the deferential review,
normally applied in the review of discretionary decisions, to a
de novo review, or some other hybrid standard.” Carden v. Aetna
Life Ins. Co., 559 F.3d 256, 260 (4th Cir. 2009); see also
Champion v. Black & Decker (U.S.) Inc., 550 F.3d 353, 357-59
(4th Cir. 2008). Instead, the abuse of discretion determination
is made by weighing the conflict of interest along with “several
different, often case-specific, factors.” Glenn, 128 S. Ct. at
2351. Our precedents teach that the weight accorded a conflict
of interest depends on the plan’s language as well as other
factors, such as:
(1) the language of the plan; (2) the purposes and
goals of the plan; (3) the adequacy of the materials
considered to make the decision and the degree to
which they support it; (4) whether the fiduciary’s
interpretation was consistent with other provisions in
the plan and with earlier interpretations of the plan;
(5) whether the decisionmaking process was reasoned
9
and principled; (6) whether the decision was
consistent with the procedural and substantive
requirements of ERISA; (7) any external standard
relevant to the exercise of discretion; and (8) the
fiduciary’s motives and any conflict of interest it
may have.
Booth v. Wal-Mart Stores, Inc. Associates Health & Welfare Plan,
201 F.3d 335, 342-43 (4th Cir. 2000).
IV.
On appeal, Appellant takes aim at four aspects of the
district court’s assessment of the reasonableness of Appellee’s
denial of “any occupation” long term disability benefits,
namely, that the district court erred: (1) in concluding that
the decisionmaking process was reasoned and principled, and that
substantial evidence supported the denial of benefits; (2) in
concluding that the Plan was not required independently to
obtain evidence of Appellant’s vocational capacity to support
the Plan’s determination that he could engage in a gainful
occupation for which he was reasonably qualified by his
education, training, and experience; (3) in concluding the Plan
was not required to obtain an Independent Medical Examiner
(“IME”) evaluation to justify the denial of the claim; and (4)
in assigning inadequate negative weight to the Social Security
Administration’s determination that Appellant was totally
disabled and to Appellee’s related conflict of interest.
10
The gravamen of these contentions, taken as a whole, is the
assertion that the district court erred in failing to find
Appellee’s decision to deny benefits unreasonable because the
court relied exclusively on material submitted by Appellant
himself. Put differently, the argument is that the material
submitted by Appellant established a prima facie case of total
disability as a matter of law. Thus, according to Appellant,
Appellee abused its discretion in denying the claim without its
own independently-obtained evidence to meet the evidence
provided by Appellant, and the district court erred when it
failed so to conclude. We reject these contentions as we are not
persuaded that the district court misapplied our precedents.
A.
This court has clearly held that when an ERISA plan
discontinues an employee’s benefits after totally disregarding
some portion of a physician’s opinion that is favorable to the
employee’s claim and seizing upon that portion which is adverse
to the employee’s claim, such decisionmaking is unreasonable.
See Donovan v. Eaton Corp., 462 F.3d 321, 329 (4th Cir. 2006).
Nevertheless, we have never required a plan to recite every fact
found in doctors’ reports and evaluations.
Here, the Plan provides for long-term disability benefits
to employees who suffer from a “total disability.” Under the
Plan, “total disability” is defined in the following manner:
11
Total disability, as it applies to this benefit, shall
mean that you are prevented solely by an illness or
injury from performing the regular and customary
duties of your enjoyment. You do not have to be
confined to your home, but must be under the regular
and continuing care of a physician. Beginning 24
months after the disability first began, to be
considered to be totally disabled, you must not be
able to engage in any gainful occupation for which you
are reasonably qualified by education, training or
experience. You are not considered to be totally
disabled if at any time you engage in your own or any
other occupation for compensation or profit.
In light of this definition, it is evident to us (as it was
to the district court) that the Plan fully considered the
totality of evidence presented by the Appellant in connection
with his “any occupation” disability claim. In a July 3, 2007
letter, Michele Ackerman – Manager of Employee Benefits for the
Plan – addressed the Appellant’s remand claim and dismissed his
assertion that he was physically incapacitated by the loss of
three finger tips on his right hand in 1988. The Plan dismissed
this assertion because it represented “a new claim that was not
the subject of or related to his prior claim for physical
disability.” J.A. 190-91. Moreover, Ms. Ackerman did not believe
that Appellant provided a sufficient rationale for why this
condition prevented him from “engaging in at least sedentary
employment.” J.A. 191. Then, focusing on the balance of
Appellant’s submission, which dealt primarily with Dr. Maiolo’s
assessments, Ms. Ackerman looked to the most recent of Dr.
Maiolo’s assessments. She found that, essentially, in his April
12
24, 2007 CRFC, Dr. Maiolo indicated that the Appellant was
“capable of low stress jobs.” Furthermore, Ms. Ackerman
underscored that what is meant by “illness” under the Plan
“means ‘bodily sickness, disease or disorder, excluding mental
/nervous disorders, except to the extent such mental/nervous
disorders have a physical manifestation.’” And as such, there
was nothing in the record to undermine Dr. Nobbee’s July 26,
2005 assessment that the Appellant “had ‘recovered well from his
recent coronary artery event and physically is doing well.’”
The district court concluded that the record demonstrates
that the Plan engaged in a “deliberate and principled reasoning
process in analyzing [Appellant’s] long-term disability claim.”
J.A. 320. It further concluded that the Plan neither ignored
evidence supportive of Appellant’s alleged total disability nor
distorted statements made by any of the physicians. The court
acknowledged that the Plan’s first denial letter did not mention
all of “Dr. Maiolo’s answers on the Cardiac Residual Functional
Questionnaire and/or the specific questions that prompted those
answer,” but that “the selected portions cited by [the Plan] do
not mischaracterize or ‘ignore the t[h]rust’ of the
questionnaire as a whole.” J.A. 322.
Moreover, as found by the district court, even though Dr.
Nobbee noted that the Appellant suffered from permanent
disability, Dr. Nobbee qualified these statements by noting that
13
he was referring to the Appellant’s disability vis-à-vis his job
as a truck driver. J.A. 58, 71, 153. Ultimately, the district
court specifically addressed those facts that both supported and
undermined Appellant’s arguments.
At bottom, it cannot plausibly be said that the district
court failed in its duty to assess whether Appellee gave short
shrift to any of the evidence presented by Appellant in support
of his claim. The court did not err in concluding that Appellee
did no such thing; its related conclusion that substantial
evidence supports the adverse disability determination was
sound.
B.
Appellant also argues that the district court erred when it
concluded that the Plan was not required to obtain vocational
evidence of his occupational skills prior to concluding that he
could engage in a gainful occupation for which he was reasonably
qualified by his education, training, and experience. We
disagree.
Under this court’s precedents, a plan is not required as a
matter of law to obtain vocational or occupational expertise in
its evaluation of an employee’s claim. See LeFebre v.
Westinghouse Elec. Corp., 747 F.2d 197, 206 (4th Cir. 1984),
overruled by implication on other grounds by Black & Decker
Disability Plan v. Nord, 538 U.S. 822 (2003); see also United
14
States Ass’n v. Social Sec. Admin., 423 F.3d 397, 404 (4th Cir.
2005). We agree with the district court that because Appellee
reasonably concluded that Appellant failed to establish a prima
facie case of long term disability, based on “reliable evidence”
contained in Appellant’s very submission, see Berry v. Ciba-
Geigy Corp., 761 F.2d 1003, 1008 (4th Cir. 1985), the Plan was
free to exercise its discretion not to procure such evidence.
Obviously, Appellant, on whom the plan document indisputably
placed the burden to establish disability, could have elected to
bolster his claim by obtaining vocational evidence as a part of
his submission to the Plan. But here, there was nothing
requiring a rebuttal showing. See Elliott v. Sara Lee Corp., 190
F.3d 601, 608 (4th Cir. 1999) (holding that Sara Lee did not
need to secure a vocational consultant to determine if Elliot
could perform any jobs). We discern no error.
C.
Appellant next contends that the district court erred when
it concluded that the Plan was not required to obtain an
Independent Medical Examiner (“IME”) evaluation. Again, we
disagree, because as discussed above, a plan administrator has
no duty to develop evidence that a claimant is not disabled
prior to denying benefits. See LeFebre, 747 F.2d at 206. Here,
the plain language of the Plan Document states that “[t]he plan
reserves the right to have [a claimant] examined by a medical
15
specialist(s) at any time after [the claimant] file[s] for
disability benefits.” J.A. 41 (emphasis and alterations added).
Nothing in the language of the Plan document or in our
precedents required Appellee to seek out IME evidence as a
condition to its denial of Appellant’s claim.
D.
Finally, Appellant contends that the district court erred
by not giving appropriate weight to the award of Social Security
disability benefits and to the Plan’s related conflict of
interest. We disagree.
We have held that barring proof that the disability
standards for social security and the plan in question are
analogous, we would not consider an SSA award in an ERISA case.
See Smith v. Continental Cas. Co., 369 F.3d 412, 420 (4th Cir.
2004) (noting that “what qualifies as a disability for social
security disability purposes does not necessarily qualify as a
disability for purposes of an ERISA benefit plan”); Elliott, 190
F.3d at 607 (refusing to consider an SSA disability award where
such an award was not binding on the plan and “[t]here is no
indication that the definition of ‘total disability’ under the
Plan in any way mirrors the relevant definition under the
regulations of the SSA”.). Here, there are no indicia that the
Plan Document’s definition of “total disability” mirrors the
16
relevant definition in the SSA’s regulations. In fact, the Plan
specifically noted the difference. In its February 8, 2008
denial letter, it explained:
[T]he Plan is not governed by or subject to this
determination since the Social Security Administration
employs standards and guidelines that differ from the
terms of the Plan. While this determination is not
binding, this information has been considered. I find
this determination unpersuasive in light of the rest
of the record.
J.A. 201. The district court concluded that the Plan’s analysis
and resolution regarding the SSA award was reasonable in light
of the SSA’s determination that was not informed by relevant
information that only later became available.
In light of these facts, this court must consider whether
the Plan’s treatment of the SSA determination, i.e., requiring
Appellant to apply for SSA disability income benefits as a
condition to receipt of benefits under the Plan, and then
concluding that he is not disabled, as potential evidence of
procedural unreasonableness and unfairness. See Glenn, 128 S.
Ct. at 2352. In Glenn, the court of appeals had “found
questionable the fact that MetLife had encouraged Glenn to argue
to the Social Security Administration that she could do no work,
received the bulk of the benefits of her success in doing so . .
. and then ignored the agency’s finding in concluding that Glenn
could in fact do sedentary work.” Id. These circumstances not
only suggested procedural unreasonableness; they also justified
17
the court in according significant weight to the conflict given
that MetLife’s apparently inconsistent positions were
financially advantageous. Id. Notably, however, the court had
observed that MetLife had preferenced a certain medical report
that favored denying benefits over other reports that suggested
a contrary conclusion, id., and indeed, although MetLife had
retained vocational and medical experts, it had “failed to
provide [its witnesses] with all of the relevant evidence.” Id.
(emphasis added). These facts, under the “totality of the
circumstances test” adopted by the majority in Glenn, see id. at
2357 (Scalia, J., dissenting), clearly prompted the Glenn
majority to affirm on the merits the court of appeals’ ultimate
conclusion that MetLife’s denial of benefits was an abuse of
discretion.
The circumstances in the case at bar are easily
distinguished from those presented in Glenn. Considering the
Plan’s conflict of interest in light of the totality of the
eight Booth factors, it simply cannot be said that the Plan
acted unreasonably or unfairly. See Booth, 201 F.3d at 342-43.
Here, as we have noted, and unlike in Glenn, 128 S. Ct. at 2352,
the Plan acted reasonably in its holistic review of Appellant’s
submission and in finding reliable evidence therein supporting
its denial, and, as we have said, the Plan properly exercised
its discretion not to procure vocational and independent medical
18
evidence. The record here leaves solely the conflict of interest
as an indicium of unreasonableness. Accordingly, this factor, in
isolation, is insufficient for this court to conclude that the
trial court erred in its determination.
V.
Having had the benefit of full briefing and oral argument,
and having fully considered Appellant’s assignments of error, we
affirm for the reasons stated by the district court. Piepenhagen
v. Old Dominion Freight Line, Inc. Employee Benefit Plan, 640
F. Supp. 2d 778 (W.D.Va. 2009).
AFFIRMED
19