Kobs, Elvis v. United WI Insur Co

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2483
ELVIS KOBS,
Plaintiff-Appellant,
v.
UNITED WISCONSIN INSURANCE COMPANY,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 04 C 5—John C. Shabaz, Judge.
____________
ARGUED JANUARY 20, 2005—DECIDED MARCH 16, 2005
____________
Before FLAUM, Chief Judge, and BAUER and KANNE,
Circuit Judges.
BAUER, Circuit Judge. Plaintiff-appellant Elvis Kobs suf-
fered injuries in January 2002 when he fell off his roof while
removing Christmas ornaments. Following the accident,
Kobs received short-term disability benefits from his
disability insurance carrier, defendant-appellee United
Wisconsin Insurance Company (“UWIC”), but his subse-
quent application for long-term disability benefits was
denied. After an unsuccessful appeal of that determination,
Kobs filed suit in state court, and UWIC removed the case to
2 No. 04-2483
federal court, as the plan at issue is governed by the Em-
ployee Retirement Income Security Act (“ERISA”), 29 U.S.C.
§§ 1001, et seq. The district court granted summary judg-
ment in favor of UWIC. We affirm.
I. Background
Prior to his January 2002 fall, Kobs was a business
manager at Bernard’s Northtown car dealership in New
Richmond, Wisconsin. This sedentary job required him to
sit eighty percent of the day, stand twenty percent of the
day, and lift up to five pounds. Kobs was a participant in a
group disability insurance plan (the “Plan”) issued by UWIC
to Bernard’s Northtown, and the Plan offered both short-
term and long-term benefits. With regard to short-term
benefits, the Plan states: “You are disabled if, because of
illness or injury, you are unable to perform with reasonable
continuity, the material duties of the occupation that you
regularly perform for this group.” The Plan generally
provides long-term disability benefits when an insured is
“Totally Disabled,” defined, in relevant part, as follows:
“TOTAL DISABILITY” and “TOTALLY DISABLED”
means that due to Injury and/or Illness:
1. The Insured cannot perform the material duties
of his or her regular occupation during the
Elimination Period and the following 24 months of
the Benefit Period; and
2. After 24 months of the Benefit Period, the In-
sured cannot perform any of the material duties of
any gainful occupation for which he/she is or may
be reasonably fitted by education, training, or
experience.
The Plan also confers discretion upon UWIC to determine
eligibility for benefits:
No. 04-2483 3
BENEFIT DETERMINATION
Benefits under this policy will be paid only if United
Wisconsin Insurance Company decides in its discretion
that the Insured is entitled to them.
Kobs applied for short-term disability benefits immedi-
ately after the January 2002 accident. UWIC approved his
application and paid him short-term disability from Janu-
ary 2, 2002, until July 4, 2002, when his short-term benefits
were exhausted. Kobs then applied for long-term disability
benefits. Kobs claimed that he could not perform the
material duties of his regular occupation because he
suffered from various conditions, most notably memory loss
resulting from incidents in 1998 and 1999 and exacerbated
by his fall in 2002. In an October 2002 letter, UWIC denied
Kobs’ claim for long-term disability benefits, explaining that
“the medical information does not support an inability to
perform the duties of your occupation, after July 4, 2002.”
After Kobs appealed the determination, UWIC received and
reviewed additional medical information and then upheld
the denial of benefits. The denial letter stated, “We lack
objective medical evidence to support the numerous subjec-
tive complaints and find no basis for a physically disabling
condition.”
UWIC considered a number of medical opinions and rec-
ords in arriving at its decision. The opinions weighing in
Kobs’ favor came from Dr. Neal Melby, his primary care
physician, and Dr. Mary Fischer, a psychologist who saw
Kobs on a referral from Dr. Melby. Dr. Melby opined on
several occasions that Kobs was disabled both as a result of
“musculoskeletal problems” (injuries to his back and legs)
and as a result of cognitive disability, including memory
loss. Dr. Fischer met with Kobs to evaluate his complaints
of memory loss, headaches, and cognitive difficulties. After
conducting psychological tests on Kobs, she concluded that
he suffered “from deficits in executive functioning including
4 No. 04-2483
sequencing, planning, mental organization, and mental
control” and “global memory deficits,” and met “the criteria
for a DSM-IV diagnosis of dementia due to traumatic brain
injury.” In addition, Dr. Thomas Reiser of the Midwest
Spine Institute saw and evaluated Kobs in 1999, then re-
viewed Kobs’ medical records in 2002 and stated that he
had “a permanent partial disability of 4% to the body as a
whole” under applicable workers’ compensation law.
On the other side of the scale were the opinions of two or-
thopedic surgeons, two psychologists, a psychiatrist/neur-
ologist, and a registered nurse. Dr. Nolan Segal, an ortho-
pedic surgeon, performed an independent medical evalua-
tion of Kobs in January 2003 and concluded that there was
“no evidence [that Kobs] would be considered disabled from
a musculoskeletal standpoint.” Dr. Richard Silver, also
an orthopedic surgeon, reviewed Kobs’ medical file at
UWIC’s request and concluded that Kobs was “fit for duty
at a sedentary light capacity . . . from an orthopedic perspec-
tive.” Dr. Mary Sullivan, a psychologist who saw Kobs on a
referral from Dr. Melby, performed a neuropsychological
evaluation of Kobs in August 2003 and concluded that Kobs
was not “cognitively disabled or memory impaired.” Dr.
Sullivan also noted that “there are numerous implausible
aspects of his performance which raise questions about the
effort he exerted throughout the evaluation.” Dr. Reginald
Givens, a psychiatrist and neurologist hired by UWIC
to review Kobs’ file, concluded that “Kobs does not have a
significant impairment that would impair him from per-
forming essential functions of his employment.” Dr. Philip
Sarff, a psychologist hired by UWIC, evaluated Kobs in
March 2003 and opined that Kobs’ “pattern of deficits is not
consistent with degenerative dementia, or dementia due to
brain injury.” In addition, Sarff noted that “there is strong
evidence that [Kobs] consciously or unconsciously exagger-
ated symptoms for this evaluation.” The final opinion came
from Francine Blaha, a nurse who reviewed Kobs’ entire file
No. 04-2483 5
at UWIC’s request prior to its decision on Kobs’ appeal.
Blaha recommended that UWIC uphold the denial of long-
term disability benefits because “the objective data does not
even come close to the massive subjective complaints of the
claimant.”
II. Discussion
Kobs leads with a challenge to the district court’s decision
to apply the arbitrary and capricious standard to review
UWIC’s benefits determination. Citing case law from other
circuits, Kobs argues that UWIC has an inherent conflict of
interest due to its dual role as insurer and administrator of
the Plan. See Pinto v. Reliance Standard Life Ins. Co., 214
F.3d 377 (3d Cir. 2000) (collecting cases). We have consid-
ered and rejected similar arguments on numerous occa-
sions, most recently in Leipzig v. AIG Ins. Co., 362 F.3d 406(7th Cir. 2004), and we see little reason to revisit those
opinions or add to their analysis. As we explained in Mers
v. Marriott Int’l Group Accidental Death and Dismember-
ment Plan, 144 F.3d 1014, 1020 (7th Cir. 1998), “[w]e
presume that a fiduciary is acting neutrally unless a
claimant shows by providing specific evidence of actual bias
that there is a significant conflict.” Because Kobs has not
presented any specific evidence of a conflict of interest and
because the Plan contains a grant of discretionary authority
that closely tracks the “safe harbor” provision we drafted in
Herzberger v. Standard Ins. Co., 205 F.3d 327 (7th Cir.
2000), we agree with the district court that reversal is only
warranted if the administrator’s decision was arbitrary or
capricious. Under the arbitrary and capricious standard, we
do not ask whether the administrator reached the correct
conclusion or even whether it relied on the proper author-
ity. Cvelbar v. CBI Ill. Inc., 106 F.3d 1368, 1379 (7th Cir.
1999). Instead, the only question for us is whether the
administrator’s decision was completely unreasonable.
6 No. 04-2483
Manny v. Cent. States, Southeast and Southwest Areas
Pension and Health and Welfare Funds, 388 F.3d 241, 243
(7th Cir. 2004).
Kobs argues that UWIC’s decision was arbitrary and
capricious because his treating physician, Dr. Melby, con-
cluded that he was disabled. This argument is unpersuasive
for a number of reasons. First, ERISA does not require plan
administrators to accord special deference to the opinions
of treating physicians. Black & Decker Disability Plan v.
Nord, 538 U.S. 822, 834, 123 S.Ct. 1965, L. Ed. 2d 1034 (2003)
(rejecting Ninth Circuit’s decision to import the “treating
physician” rule from the Social Security context). Second,
Kobs makes no effort to address the medical opinions that
undermine Dr. Melby’s conclusions and support UWIC’s de-
termination. Two orthopedic surgeons rejected Dr. Melby’s
opinion that Kobs was totally disabled due to “musculo-
skeletal problems,” and concluded that he was not disabled
from a musculoskeletal standpoint. It makes little sense to
give great deference to Dr. Melby’s opinion about Kobs’
“musculoskeletal problems” when it is contradicted by two
physicians who specialize in musculoskeletal injuries. Black
& Decker, 538 U.S. at 832. In light of the opinions of the two
specialists, it was neither arbitrary nor capricious for UWIC
to conclude that Kobs’ claimed physical impairments did not
prevent him from performing the material duties of his
sedentary job.
The medical evidence regarding Kobs’ asserted cognitive
impairments also supported UWIC’s denial of long-term dis-
ability benefits. Dr. Melby referred Kobs to both Dr. Fischer
and Dr. Sullivan for psychological testing. While Dr. Fischer
diagnosed Kobs with dementia due to traumatic brain in-
jury and global memory deficits, Dr. Sullivan strongly dis-
agreed, concluding that Kobs was not cognitively disabled
or memory impaired. Dr. Sullivan, who was not on UWIC’s
payroll, was also the first of three medical experts who
questioned whether Kobs was sandbagging during the tests:
No. 04-2483 7
[T]here are numerous implausible aspects of his per-
formance . . . . First of all, Mr. Kobs’ IQ, as measured
here, was found to be 80, that is, just barely within the
low average range. This is simply not believable. There
is no possible way that a head injury of the severity
described by Mr. Kobs could have lowered his IQ to this
level. Furthermore, there were findings within the IQ
testing that were also highly unlikely. Mr. Kobs ob-
tained a score on Vocabulary, which measures knowl-
edge of vocabulary, that was in the low average range.
This seems unusually low for a man who finished two
years of Boston College and who used to make speeches
and sell cars . . . . Furthermore, knowledge of vocabulary
is pretty invulnerable to the effects of a mild head in-
jury . . . . Third, Mr. Kobs got just one item right on
Picture Arrangement—the first item. He then failed the
next four items. This is a highly unusual performance,
even for people who are mentally retarded. Mr. Kobs,
even given how poorly he performed, is clearly not men-
tally retarded.
Ex. M to Szemborski Aff. (emphasis in original). Psychologist
Philip Sarff concurred with Dr. Sullivan’s assessment that
Kobs was exaggerating his symptoms. Dr. Givens and
Francine Blaha, a psychiatrist and nurse, respectively, also
agreed that Kobs’ complaints about cognitive impairments
did not match the objective medical evidence. The foregoing
medical opinions provided UWIC with reasonable support
for its denial of Kobs’ long-term disability application.
Kobs also describes the Plan’s short-term disability defi-
nition and long-term disability definition as “nearly iden-
tical,” arguing that the disability finding for short-term
benefits should have led to a disability finding for long-term
benefits. This argument ignores the plain language of the
Plan. A Plan participant is “Totally Disabled” under the
Plan and thus entitled to long-term disability if (1) he can-
not perform the material duties of his position for 30 months
8 No. 04-2483
(the elimination period plus the benefit period) and (2) he
cannot perform any of the material duties of any gainful
occupation for which he is reasonably suited after those 30
months. In contrast, a Plan participant is entitled to short-
term benefits if he is unable to perform the material duties
of his position during the short-term benefits period. Thus,
the provisions are different because they are premised on
different time frames and because a worker that qualifies
for short-term benefits may not be entitled to long-term
benefits if he possesses the ability to perform the duties of
another occupation for which he is suited. As a consequence,
it was not arbitrary and capricious for UWIC to interpret
the Plan in a way that granted Kobs short-term benefits
and denied him long-term benefits.
A more fundamental problem with Kobs’ arguments is
that he fails to account for the deferential standard of re-
view that we apply to UWIC’s decision. UWIC gathered and
reviewed the pertinent medical information, hired a number
of physicians to evaluate Kobs and review his medical files,
and made an informed judgment about Kobs’ long-term
disability application that coincided with the bulk of the
medical evidence. When Kobs appealed the initial deter-
mination, UWIC accepted additional medical information
submitted by Kobs, had another psychologist evaluate Kobs,
and hired a nurse to review Kobs’ entire file. Given this
exhaustive process, UWIC’s reasonable conclusions, and the
absence of evidence of bad faith or conflict of interest, there
is no basis to disturb UWIC’s benefits determination.
III. Conclusion
For the reasons stated herein, we AFFIRM the decision of
the district court.
No. 04-2483 9
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-16-05