Mouton v. Fresenius Medical Care of North America

United States Court of Appeals
Fifth Circuit
F I L E D
October 6, 2003
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 03-30361
Summary Calendar
BEVERLY MOUTON,
Plaintiff-Appellant,
versus
FRESENIUS MEDICAL CARE OF NORTH AMERICA,
FRESENIUS MEDICAL CARE OF NORTH AMERICA
LONG TERM DISABILITY PLAN; LIBERTY LIFE
ASSURANCE COMPANY OF BOSTON; FRESENIUS
MEDICAL CARE MEDICAL PLAN; FRESENIUS
MEDICAL CARE RETIREMENT PLAN; FRESENIUS
MECIDAL CARE DENTAL PLAN,
Defendants-Appellees.
Appeal from the United States District Court for
the Middle District of Louisiana
(USDC No. 01-CV-932-D)
_______________________________________________________
Before REAVLEY, JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion
should not be published and is not precedent except under the limited circumstances
Beverly Mouton sued her employer, Fresenius Medical Care North American
(“Fresenius”), and others under the Employee Income Retirement Security Act. See
29 U.S.C. §§ 1132(a)(1)(B), 1132(a)(3). The district court granted summary
judgment for Fresenius after determining that the Claims Administrator, Liberty
Mutual Life Asssurance Co. (“Liberty”), did not abuse its discretion by finding that
the administrative record lacked objective medical evidence of Mouton’s disability.
We affirm.
1. Mouton first argues that the decision of Liberty should be reviewed de novo.
In the district court, Mouton argued for de novo review because the decision
was made by the Claims Administrator, Liberty, rather than the Plan
Administrator, Fresenius. The district court rejected this argument, finding
that there is an express delegation of the Plan Administrator’s claims
adjudication and benefits determinations to a Claims Administrator, who has
also been delegated authority to determine appeals of its benefits and claims
decisions. See Dist. Ct. Op. at 6.
2. On appeal, Mouton changes course and concedes that the plan gave Liberty
discretionary authority to determine eligibility for benefits and to construe the
set forth in 5TH CIR. R. 47.5.4.
2
terms of the plan. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101,
115 (1989) (explaining that an ERISA Plan Administrator’s denial of benefits
is reviewed de novo “unless the benefit plan gives the administrator or
fiduciary discretionary authority to determine eligibility for benefits or to
construe the terms of the plan.”). Mouton now claims that Liberty disclaimed
that authority, and thus de novo review is proper.
3. We do not reach this issue because we find that Mouton failed to properly
raise it in the district court. “We will not consider an issue that a party fails
to raise in the district court, absent extraordinary circumstances.
Extraordinary circumstances exist when the issue involved is a pure question
of law and a miscarriage of justice would result from our failure to consider
it.” N. Alamo Water Supply Corp. v. City of San Juan, 90 F.3d 910, 916 (5th
Cir. 1996) (footnotes omitted). First, this is not a pure question of law, for its
resolution would require the court to make a factual determination regarding
whether Liberty intended to disclaim its discretionary authority. Second,
Mouton has not explained what “extraordinary circumstances” exist justifying
consideration of this forfeited issue. Thus, we decline to consider Mouton’s
argument and apply the abuse of discretion standard of review.
4. Under an abuse of discretion standard of review, a Plan Administrator’s
3
denial of benefits will be subject to reversal only if it is arbitrary or
capricious. See Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc., 168
F.3d 211, 215 (5th Cir. 1999). It is arbitrary and capricious if the record
lacks substantial evidence to support the Plan Administrator’s benefit
determination. See id. When determining whether a Plan Administrator
abused its discretion in making a factual determination, the court examines
the record before the administrator when the claim was denied. Vega v. Nat’l
Life Ins. Servs., Inc., 188 F.3d 287, 299 (5th Cir. 1999).
5. Under the plan, a claimant is required to “give the employer proof in the form
of objective evidence of continued: (a) Disability; and (b) required regular
attendance of a Physician. The proof must be given upon the Plan’s request
and at the Covered Person’s expense.” Fresenius Plan §§ 3.1, 4.1. Liberty
concluded that Mouton failed to provide such evidence. Mouton does not
contend that Liberty interpreted the plan incorrectly by requiring objective
medical evidence of continued disability. Thus, the question is whether it was
arbitrary or capricious for Liberty to conclude that the record lacked objective
medical evidence of Mouton’s disability.
6. Mouton contends that Liberty’s decision was an abuse of discretion “[s]ince
her job required her to sit to perform most of her duties, and she couldn’t sit
4
for more than 15 or 20 minutes at a time because of pain, [and thus] could not
perform all of her duties.” Liberty concluded that there was no evidence that
sitting for more than 20 minutes at a time was a material and substantial duty
of her occupation. The Physical Job Evaluation Form completed by
Mouton’s employer stated that Mouton’s job allowed her to change positions
frequently and that “[b]ecause of back problems, [the] employee is not
allowed to do any lifting or prolonged sitting or typing.” This statement could
mean either that Mouton’s employer did not require or allow Mouton to sit or
type for prolonged periods, or it could mean that Mouton’s physician placed
restrictions on her physical activities. Liberty’s interpretation of the
statement—that her employer did not require or allow Mouton to sit or type
for prolonged periods—was not unreasonable. Thus, it was not an abuse of
discretion for Liberty to conclude that Mouton’s inability to remain seated for
prolonged periods did not mean she was unable to perform a material and
substantial duty of her job.
7. Mouton also argues that “she met the definition of disability in 1997 and
1998, but she tried to work through the pain in the hope she would get better.
She finally had to admit that she was not able to do her work, and she applied
for disability.” According to Liberty, however, there was a lack of medical
5
evidence supporting the worsening of Mouton’s condition between 1998 and
2000. Mouton has not suggested that this evidence exists, nor does she argue
that her conditions actually worsened. Instead, she contends it took her three
years to realize that she was not able to do her work and that she should not
be punished for working through her pain. However admirable her
perseverance was, it also permits the inference that she was able to perform
the material and substantial duties of her job while experiencing the level of
neck and back pain she experienced in 1998. Dr. Roger G. West compared
Mouton’s 1998 lumbar MRI to her 2000 lumbar MRI, and concluded that the
2000 MRI showed no interval change. Additionally, Mouton’s treating
physician, Dr. Paul Kramm, never explained how, why, or to what extent
Mouton’s condition worsened during that time. The objective medical
records showed no change in her back and neck condition from 1998 to 2000,
and Liberty did not abuse its discretion in so concluding.
8. Mouton also argues that Liberty abused its discretion by finding that she was
not disabled because she cancelled an appointment with an orthopedic
surgeon to treat her frozen right shoulder and because she showed
improvements in her shoulder range of motion. There was nothing arbitrary
or capricious about Liberty’s determination that Mouton was not disabled by
6
her shoulder pain, as the medical records indicate that her shoulder pain
“resolved” between her application for short-term disability benefits and
Liberty’s termination of those benefits. See P.’s Ex. 7 at 43.
9. Mouton argues that Liberty abused its discretion by rejecting the expert
opinion of her treating physician, Dr. Kramm, on the ground that the opinion
is not supported by objective medical evidence. Specifically, she contends
that Liberty ignored her disabling level of pain resulting from the myriad of
her impairments, and that the court should apply Lain v. UNUM Life
Insurance Co. of America, 279 F.3d 337 (5th Cir. 2002), and hold that
Liberty abused its discretion.
10. Lain is distinguishable. First, the reviewing court made a de novo
interpretation of the records and determined there was a conflict of interest
between the plan’s administrator and insurer, so that the administrator’s
factual determinations were given less deference than is appropriate in this
case. Second, UNUM had incorrectly interpreted the plan, which the court
cited as a strong indicator of arbitrary and capricious behavior. Third, Lain
was given pain medication that did not work, while Mouton’s records
indicate a positive response to her pain prescriptions. Fourth, the
administrator in Lain misrepresented the objective test results justifying its
7
denial by claiming they were normal when instead they were “abnormal” and
at times “top normal.” There is no suggestion that Liberty misinterpreted
objective test results, as no such results existed. Thus, the Lain court’s
conclusion that the Plan Administrator erred by “fail[ing] to take into account
that Lain’s chest pains cannot be clinically measured by tests” and
“focus[ing] on the tests, rather than the pain and its effect” is not controlling.
Id. at 347. In Lain, UNUM’s own staff physician determined that he “[could]
neither validate nor refute the claimant’s subjective pain complaints though
the consistency across multiple providers and the presentations of
pyscho[logical] eval[uations] suggest a real ongoing problem.” Id. In the
present case, there is no evidence of Mouton’s pain in the form of objective
medical testing and no medical opinions discussing the pain she experiences.
11. Mouton also argues that Liberty should have requested objective medical
evidence in the form of her medical records for the records custodian at the
Ochsner Clinic, where she was treated by Dr. Kramm, rather than directly
from Dr. Kramm. Of course, Dr. Kramm could have forwarded any requests
to the proper party at Ochsner, and he never informed Liberty that he could
not secure the records or even that it would be easier if Liberty asked
someone else for the records. In any event, the Plan places the burden of
8
obtaining the required records on the claimant. See Fresenius Plan § 3.1
(providing a claim will be paid “if the Covered Person gives the employer
proof in the form of objective evidence” upon request). Thus, Dr. Kramm’s
failure to provide the necessary medical evidence is imputed to Mouton.
12. After reviewing the administrative record with careful attention to the medical
records cited by Mouton, particularly the letter from Dr. Kramm to Liberty
dated September 8, 2000, the orthopedic notes of Dr. William J. Hubbard
dated April 11, 2001, and the letter from Dr. Kramm to Liberty dated May 3,
2001, we cannot say that Liberty abused its discretion by denying Mouton’s
claim. Liberty did not ignore Mouton’s pain, but instead looked to the
medical records to substantiate it. Those records lack any discussion of the
level of pain Mouton experiences, and the restrictions and limitations noted
therein do not suggest that Mouton could not perform her sedentary
occupation. Additionally, Dr. Kramm’s opinion that Mouton is disabled was
conclusory and unsupported by medical testing, an explanation of how
Mouton’s condition deteriorated between 1998 and 2000, or a discussion of
Mouton’s restrictions and limitations. The administrative record does not
suggest that Mouton’s inability to sit for prolonged periods would render her
unable to perform her sedentary job. Thus, it was not an abuse of discretion
9
for Liberty to conclude that Mouton was not disabled within the meaning of
the Fresenius Plan.
AFFIRMED.
10