Jane E. Donaho v. FMC Corporation

___________
No. 95-1280
___________
Jane Donaho, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
FMC Corporation, a Delaware *
corporation, as Plan *
Administrator of the FMC *
Long-Term Disability Plan, *
*
Appellee. *
___________
Submitted: October 18, 1995
Filed: January 31, 1996
___________
Before BOWMAN, FLOYD R. GIBSON, and BRIGHT, Circuit Judges.
___________
BRIGHT, Circuit Judge.
Jane Donaho appeals a district court order granting summary
judgment in favor of her employer, FMC Corporation (FMC), in this
suit to enforce her rights under an ERISA health benefits plan.
See 29 U.S.C. § 1132(a)(1)(B). Under a deferential standard of
review, the district court upheld FMC's decision to deny Donaho's
application for long-term disability benefits under FMC's employee-
funded disability plan. Donaho contends that the denial of
benefits is unreasonable and not supported by substantial evidence.
Because we conclude that FMC's denial of benefits to Donaho, at
least until October 1993, was an abuse of discretion, we reverse
and remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
Jane Donaho was hired as a full-time employee of FMC
Corporation in 1990. She held the position of senior software
engineer at FMC's Naval Systems Division, where her duties included
planning, designing and writing computer software with military
applications. Donaho's position at FMC was demanding, requiring
that she possess a very high level of analytical ability and
communication skills to enable her to design complex software,
solve difficult technical problems and provide assistance to
project leaders.
Donaho continued working full time at FMC until July 14, 1992,
when she collapsed at work. Recurrent depression caused her
collapse and subsequent inability to work. Donaho underwent
psychological treatment with her psychotherapist, Dr. Patricia
Aletky, and saw a psychiatrist, Dr. Deanna Bass, who prescribed
Prozac for the illness. In November 1992, Dr. Aletky approved
Donaho for part-time work at FMC; however, Donaho's condition
worsened after two weeks and she could not continue working.
FMC maintains an employee-funded benefits plan which includes
both short-term and long-term disability benefits. During the
initial period of her illness, Donaho collected short-term
disability benefits.1 On January 12, 1993, when these benefits
expired, Donaho applied for long-term disability (LTD) benefits.
Under FMC's LTD plan, employees are entitled to LTD benefits if
they are totally disabled, providing that they have satisfied a
six-month qualifying period. For the first two years of
disability, an employee is considered totally disabled when she is
1
To be eligible for short-term benefits, an employee must
have an illness so severe that she is unable to "perform the
necessary duties of [her] job or another job for which [she was]
or could be qualified by virtue of experience, training or
education." Appellant's App. at A-184.
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"wholly and continuously unable to perform every duty of [her] own
job with FMC." Appellant's App. at A-150.
To evaluate Donaho's initial application for LTD benefits, and
pursuant to standard policy, the plan administrator retrieved
Donaho's personal, vocational and medical records. Dr. Richard
Zaloudek, the plan administrator's medical director and consulting
psychiatrist, reviewed Donaho's entire record and determined that
she was not totally disabled. Specifically, Dr. Zaloudek reviewed
Dr. Aletky's patient notes and determined that Donaho had shown
overall improvement since February 1993 and that her depression had
improved in late 1992. Further, Dr. Zaloudek found no evidence of
"cognitive deficits or psychomotor abnormalities." Dr. Zaloudek
approved of this "not totally disabled" evaluation prior to April
2, 1993.
In addition to the medical review, FMC director of employee
benefits Kenneth J. Morrissey discovered that Donaho had been
assisting in the preparation of, and actively participating in,
professional meetings and volunteer projects since late 1992
(although Donaho spent only a few hours per month on these
activities). On the basis of this information, plus the medical
review, Morrissey rejected Donaho's application for LTD benefits on
April 2, 1993.
On May 27, 1993, Donaho filed an appeal with the plan
administrator. In support of her appeal, Donaho included a letter
from Dr. Aletky (dated May 25, 1993) that stated that Donaho was
not currently able to perform every duty of her own job and that a
return to full-time employment would create a "serious likelihood
of relapse."2 Appellant's App. at A-111. Donaho later sent to the
2
Dr. Aletky's May 25 letter further noted that Donaho "has
had no remission of her depression since its onset" and that she
"was not able to perform every duty of her job at FMC on a
sustained, regular basis at any point [between July 1992 and May
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3
plan administrator a letter from Dr. Bass (dated June 23, 1993)
which stated that Donaho's symptoms of impaired concentration and
fatigue would "make it extremely difficult to attend consistently
to the details that are involved in [Donaho's] work." Appellant's
App. at A-104. Bass further noted that Donaho's depression would
"most certainly interfere" with her ability to perform every duty
of her job on a regular, sustained basis. Id. Finally, Donaho
submitted an evaluation performed by Dr. Bass on April 26, 1993.
In this evaluation, Dr. Bass concluded that "the patient has not
returned to normal baseline mood and in fact would not be
considered in partial remission since mood would plummet . . . if
stress increased . . . ."3 Appellant's App. at A-123.
Dr. Zaloudek, having reviewed the letters of Drs. Bass and
Aletky, concluded on July 1, 1993 that "[s]ince the new evidence
from Dr. Bass and Dr. Aletky are in close agreement, I would accept
their conclusions. It appears now that the client did not have
sufficient improvement to function appropriately as a computer
software engineer." Appellant's App. at A-106.
However, after Dr. Zaloudek was contacted by the plan
administrator, he reversed course and stated that Dr. Bass and Dr.
Aletky did not provide "sufficient objective measurement of
attention span, memory and concentration . . ." (Appellant's App.
at A-101), and he recommended that a complete independent medical
examination (IME) be performed.
1993]." Appellant's App. at A-110.
3
In this evaluation, Dr. Bass also noted that, while Donaho
did not exhibit "abnormalities of speech or psychomotor
behavior," (Appellant's App. at 122), her fatigue increased
during the months of January, February and March 1993. Further,
while Donaho did not seem "severely depressed" during this time
period, her depression worsened near the end of March 1993.
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4
Donaho's IME was conducted on September 1, 1993 by Dr.
Abuzzahab. He determined that Donaho suffered from a mild but
recurrent depression that would be amenable to drug treatment. Dr.
Abuzzahab concluded that, while Donaho had only a limited ability
to complete assigned tasks and to function independently, she
"should respond to the suggested pharmacologic approaches, and thus
she will be able to resume working" (emphasis added). Appellant's
App. at A-51. Dr. Abuzzahab did not state that Donaho had already
recovered; rather, his conclusions indicate that Donaho was still
disabled but could recover in the future. His report was forwarded
to the plan administrator on October 1, 1993.
Dr. Zaloudek reviewed Dr. Abuzzahab's findings. Dr. Zaloudek
noted that "Dr. Abuzzahab did not find any significant cognitive
problems. [Donaho's] memory was fine." He concluded that "while
[Donaho] has not completely recovered, there is no objective
evidence to show marked impairment in attention, memory, and
concentration. . . . [She is] not totally prevent[ed] from carrying
out her software engineer duties as routinely expected." (Emphasis
added). Appellant's App. at A-49. This report was dated October
20, 1993.
In addition to these medical reports, Donaho was requested to
execute a release of information permitting FMC to obtain and
review her application files from the Social Security disability
program. While Donaho's file revealed that she had been denied
Social Security benefits,4 one finding is instructive: Donaho was
able to "understand, remember, and follow through with moderately
difficult instructions." Appellant's App. at A-96.
4
To be eligible for benefits under Social Security, "you
must have a severe impairment, which makes you unable to do your
previous work or any other substantial gainful activity which
exists in the national economy." 20 C.F.R. § 404.1505(a) (1992).
This standard is much more restrictive than FMC's LTD benefits
standard, which requires for eligibility that a person be unable
to perform "every duty of [her] own job with FMC."
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5
Morrissey reviewed all of the materials received and prepared
a report for the Employee Benefits Welfare Committee. The
Committee met on January 6, 1994, and it determined that Donaho was
not "totally disabled" within the meaning of the plan.
Specifically, the Committee found that "by late 1992 Ms. Donaho
could perform all of the duties of her job as a senior software
engineer on a full-time basis." Appellant's App. at A-118.
Accordingly, Donaho was denied all LTD benefits.
After the Committee rejected Donaho's application for LTD
benefits, Donaho filed suit under the Employee Retirement Income
Security Act (ERISA), 29 U.S.C. § 1132(a)(1)(B), claiming that LTD
benefits were wrongfully denied her. The district court granted
summary judgment in favor of the defendants, determining that the
Committee's decision to withhold LTD benefits was neither
"extraordinarily imprudent" nor "extremely unreasonable." This
appeal followed.
II. STANDARD OF REVIEW
We review a grant of summary judgment de novo. LeBus v.
Northwestern Mut. Life Ins. Co., 55 F.3d 1374, 1376 (8th Cir.
1995). A court considering a motion for summary judgment must view
all facts in the light most favorable to the non-moving party and
give to the non-moving party the benefit of all reasonable
inferences that can be drawn from the facts. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). While
a party is entitled to summary judgment if "there is no genuine
issue as to any material fact and if the moving party is entitled
to judgment as a matter of law," Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250 (1986), summary judgment is inappropriate when
the record permits reasonable minds to draw conflicting inferences
about a material fact. Id. at 250-51; Ozark Interiors, Inc. v.
Local 978 Carpenters, 957 F.2d 566, 569 (8th Cir. 1992).
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6
While ERISA itself does not specify the standard of review,
see 29 U.S.C. § 1132(a)(1)(B), the Supreme Court has held that a
reviewing court should apply a de novo standard of review unless
the plan gives the "administrator or fiduciary discretionary
authority to determine eligibility for benefits or to construe the
terms of the plan." Firestone Tire and Rubber Co. v. Bruch, 489
U.S. 101, 115 (1989). If such discretionary authority is given by
the plan, we review the plan administrator's decision only for
abuse of discretion.5 Id.; see also Cox v. Mid-America Dairymen,
Inc., 965 F.2d 569, 571 (8th Cir. 1992) (Cox I), aff'd after
remand, 13 F.3d 272 (8th Cir. 1993) (Cox II).
FMC's employee health benefits plan grants explicit
discretionary interpretive authority to the plan administrator:
FMC, as Plan Administrator, has discretionary
authority to construe and interpret the terms
of the Plan, including, but not limited to,
deciding all questions of eligibility. . . .
Appellant's App. at A-162. We agree with the district court that
this plan language requires that courts apply a deferential
standard of review to the Committee's plan interpretation and fact-
based disability determinations. We review de novo a district
court's application of the deferential standard of review. Bolling
v. Eli Lilly and Co., 990 F.2d 1028, 1029 (8th Cir. 1993).
5
Some courts continue to use the pre-Bruch formulation of
"arbitrary and capricious," see, e.g., Perry v. United Food &
Com. Workers Dist. Unions, 64 F.3d 238, 242 (6th Cir. 1995);
Finley v. Special Agents Mut. Benefit Ass'n, Inc., 957 F.2d 617,
621 (8th Cir. 1992); Madden v. ITT Long Term Dis. Plan, 914 F.2d
1279, 1285 (9th Cir. 1990), cert. denied, 498 U.S. 1087 (1991),
rather than abuse of discretion. While this may be a
"distinction without a difference," Cox v. Mid-America Dairymen,
Inc., 965 F.2d 569, 572 n.3, aff'd after remand, 13 F.3d 272 (8th
Cir. 1993); see also Wildbur v. ARCO Chemical Co., 974 F.2d 631,
635 n.7 (5th Cir. 1992) (noting only a "semantic, not a
substantive, difference" between the two terms); Taft v.
Equitable Life Assur. Soc., 9 F.3d 1469, 1471 n.2 (9th Cir.
1993), we will use the "abuse of discretion" formulation.
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7
This deferential standard "does not permit a reviewing court
to reject a discretionary trustee decision with which the court
simply disagrees[.]" Cox I, 965 F.2d at 572. In defining the
scope of deferential review, however, this circuit has used several
different formulations. In some cases we have upheld an
administrator's decision under a deferential standard of review if
the decision was supported by "substantial evidence," see, e.g.,
Short v. Central States, S.E. & S.W. Areas Pen. Fund, 729 F.2d 567,
571 (8th Cir. 1984); in other cases we have required that the
decision be "reasonable," see, e.g., Cox II, 13 F.3d at 274; Finley
v. Special Agents Mut. Benefit Ass'n, Inc., 957 F.2d 617, 621 (8th
Cir. 1992); in still other cases we have only required that the
decision not be "extraordinarily imprudent or extremely
unreasonable," see, e.g., Lickteig v. Business Men's Assur. Co. of
America, 61 F.3d 579, 583 (8th Cir. 1995); Lutheran Med. Center v.
Contractors, Laborers, Teamsters and Engineers Health and Welfare
Plan, 25 F.3d 616, 621 (8th Cir. 1994); Bernards v. United of Omaha
Life Ins. Co., 987 F.2d 486, 488 (8th Cir. 1993).
The "extraordinarily imprudent or extremely unreasonable"
language, first stated in Cox I, 965 F.2d at 572 (quoting George G.
Bogert & George T. Bogert, The Law of Trusts and Trustees § 560, at
201-04 (rev. 2d ed. 1980)), has found some current favor in this
circuit. We note, however, that the Cox I court cited this
language as an example of abuse of discretion and not as a
threshold level for review.6 While "extraordinarily imprudent or
extremely unreasonable" may be a helpful example in certain fact
situations, it is less instructive as an across-the-board test for
determining when a plan administrator's disability determination is
6
The Cox I court noted that "'if the action of the trustee
is extraordinarily imprudent or extremely unreasonable, the court
is likely to find that there has been an abuse of discretion.'"
Cox I, 965 F.2d at 572 (quoting George G. Bogert & George T.
Bogert, The Law of Trusts and Trustees § 560, at 201-04 (rev. 2d
ed. 1980).
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an abuse of discretion. From our examination of the cases, we
believe the proper inquiry is whether the plan administrator's
decision was reasonable; i.e., supported by substantial evidence.
The pejorative adjectives of "extraordinarily" (imprudent) or
"extremely" (unreasonable) are encompassed in a reasonableness
test.
The starting point for our analysis is the Supreme Court
opinion in Bruch. As the Court noted, "ERISA abounds with the
language and terminology of trust law. . . . In determining the
appropriate standard of review for actions under § 1132(a)(1)(B),
we are guided by principles of trust law." Bruch, 489 U.S. at 110-
11.
In defining an abuse of discretion, the Restatement (Second)
of Trusts notes that "the court will not interfere unless the
trustee in exercising or failing to exercise the power . . . acts
beyond the bounds of a reasonable judgment." Restatement (Second)
of Trusts § 187, cmt. e (1959). This reasonableness standard has
generally been followed by commentators. See, e.g., 3 W. Fratcher
Scott on Trusts § 187, at 14-15 (4th ed. 1988) (trustee abuses her
discretion when she "acts outside the bounds of a reasonable
judgment"); Bogert & Bogert, supra, § 559 at 169-71 (where trustee
given power to construe disputed terms, her decision will not be
disturbed if reasonable), quoted in Bruch, 489 U.S. at 111.
Several circuits have adopted a reasonableness standard as well.7
7
See, e.g., Crosby v. Crosby, 986 F.2d 79, 83 (4th Cir.
1993) (under abuse of discretion standard, "a court should not
disturb the administrator's decision if reasonable"); Auto Club
Ins. Ass'n v. Health and Welfare Plans, Inc., 961 F.2d 588, 593
(6th Cir. 1992) (same); Krawczyk v. Harnischfeger Corp., 41 F.3d
276, 279 (7th Cir. 1994) (committee decision will be upheld under
abuse of discretion standard if the decision "offers a reasoned
explanation, based on the evidence"); Cox v. Mid-America
Dairymen, Inc., 13 F.3d 272, 274 (8th Cir. 1994) (court will
affirm a "reasonable interpretation"); Jett v. Blue Cross and
Blue Shield of Alabama, 890 F.2d 1137, 1139 (11th Cir. 1989)
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9
We are aware that the word "reasonable" possesses different
connotations.8 As in Cox I, we reject any definition of
reasonableness that would "permit a reviewing court to reject a
discretionary trustee decision with which the court simply
disagrees[.]" Cox I, 965 F.2d at 572. Rather, the proper reading
of "reasonable" in the context of trusts and ERISA is "not
immoderate or excessive"; that is, a trustee decision is reasonable
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. Put another way, the committee's decision
need not be the only sensible interpretation, "so long as its
decision 'offer[s] a reasoned explanation, based on the evidence,
for a particular outcome.' If the committee's decision offers a
reasonable explanation, their decision should not be disturbed even
if another reasonable, but different, interpretation may be made."
Krawczyk v. Harnischfeger Corp., 41 F.3d 276, 279 (7th Cir. 1994)
(citation omitted).9
("[T]he function of the court is to determine whether there was a
reasonable basis for the decision, based upon the facts as known
to the administrator at the time the decision was made."); Block
v. Pitney Bowes Inc., 952 F.2d 1450, 1454 (D.C. Cir. 1992) ("The
essential inquiry here, in short, is . . . [d]id the Committee
reasonably construe and apply the Pitney Bowes Plan in Ralph
Block's case?").
8
Reasonableness can mean either "fair, proper, just,
moderate" or "not immoderate or excessive." Black's Law
Dictionary (6th ed. 1991).
9
While Krawczyk deals with plan interpretation rather than
plan application, its reasoning applies in both situations. See,
e.g., Block v. Pitney Bowes Inc., 952 F.2d 1450, 1454 (D.C. Cir.
1992) ("The essential inquiry here . . . is [d]id the Committee
reasonably construe and apply the Pitney Bowes Plan in Ralph
Block's case?") (emphasis added).
When determining whether an administrator's plan
interpretation is reasonable, this circuit uses the five-factor
test enunciated in Finley, 957 F.2d at 621. Where, however, an
administrator evaluates facts to determine the plan's application
in a particular case, such as here, the substantial evidence test
governs our review.
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10
In evaluating whether a plan administrator's fact-based
disability determinations are reasonable, courts should look to
whether the decision is supported by substantial evidence.10 Thus,
under the abuse of discretion standard of review, the district
court, in the absence of bad faith or conflict of interest, may
overturn a decision of the plan administrator only if it is
"'without reason, unsupported by substantial evidence or erroneous
as a matter of law.'" Abnathya v. Hoffmann-La Roche, Inc., 2 F.3d
40, 45 (3d Cir. 1993) (citation omitted); see Sandoval v. Aetna
Life and Cas. Ins. Co., 967 F.2d 377, 382 (10th Cir. 1992)
(adopting substantial evidence standard).
Our conclusion that "substantial evidence" is only a
quantified reformulation of reasonableness has support in the case
law. Under the substantial evidence standard of review, as under
the reasonableness standard, "so long as the [plan committee's]
findings are reasonable, they may not be displaced on review even
if the court might have reached a different result had the matter
been before it de novo." Laro Maintenance Corp. v. NLRB, 56 F.3d
224, 229 (D.C. Cir. 1995). See also Bates v. Chater, 54 F.3d 529,
532 (8th Cir. 1995) (where inconsistent conclusions may be drawn
from evidence as a whole, decision must be upheld under
"substantial evidence" standard). Under both standards, a plan
administrator's decision must be upheld if a reasonable mind would
find that the decision was adequately supported by the evidence on
record.11
10
Substantial evidence "means such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938). In quantifiable terms, "[s]ubstantial evidence requires
'more than a scintilla but less than a preponderance.'" Sandoval
v. Aetna Life and Cas. Ins. Co., 967 F.2d 377, 382 (10th Cir.
1992) (citation omitted).
11
That reasonableness and substantial evidence are really
two formulations of the same standard is made more evident by
comparing the pre-Bruch "arbitrary and capricious" standard to
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11
III. ABUSE OF DISCRETION
We apply the foregoing standard to the issues here. Under
FMC's LTD plan, an eligible participant is entitled to LTD benefits
after a six-month qualifying period of total disability. Because
Donaho first became disabled in July 1992, her qualifying period
did not end until January 1993. The benefits committee, however,
concluded that "by late 1992 Ms. Donaho could perform all of the
duties of her job as a senior software engineer on a full-time
basis," (Appellant's App. at A-118), and it thus denied Donaho's
application for LTD benefits. This determination lacks support in
the record.
Certain facts are central to our holding that the plan
administrator acted unreasonably. On July 1, 1993 Dr. Zaloudek
accepted the conclusions of Dr. Bass and Dr. Aletky that Donaho had
not completely recovered. Then, after talking with the plan
administrator, Dr. Zaloudek reversed course and ordered a complete
IME for Donaho. The IME, performed by Dr. Abuzzahab, indicated
that Donaho suffered from a continuing disability which could be
overcome by medication. Dr. Zaloudek, who was not a treating
physician, then misconstrued Dr. Abuzzahab's findings. In his
October 20, 1993 report, Dr. Zaloudek first stated that Donaho had
not completely recovered and then, without more, he leapt to the
the post-Bruch "abuse of discretion" standard. Under the
deferential arbitrary and capricious standard, courts would
uphold a plan administrator's decision if it was supported by
substantial evidence. See Short v. Central States, S.E. & S.W.
Areas Pen. Fund, 729 F.2d 567, 571 (8th Cir. 1984); Holt v.
Winpisinger, 811 F.2d 1532, 1535 (D.C. Cir. 1987). Under an
abuse of discretion standard, courts should uphold an
administrator's decision if reasonable. As noted above, courts
have not discerned a difference between "arbitrary and
capricious" and "abuse of discretion." See supra note 5. Thus
it stands to reason that the tests for each standard should also
be substantially equivalent.
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12
conclusion that Donaho was "not totally prevent[ed] from carrying
out her software engineer duties. . . ." Appellant's App. at A-49.
The unreasonableness of a plan administrator's decision can be
determined by both the quantity and quality of the evidence
supporting it. We find the evidence supporting the decision
lacking on both counts. First, the evidence indicating continuing
disability was overwhelming.12
Second, the only evidence supporting the committee's
decision,13 Dr. Zaloudek's October 20, 1993 evaluation, is not as
12
All three examining physicians determined that Donaho was
totally disabled. Dr. Abuzzahab determined that Donaho had only
a limited ability to complete assigned tasks and function
independently and he clearly indicated that Donaho was still
disabled as of October 1, 1993. Dr. Aletky, a treating
physician, stated that Donaho "has had no remission of her
depression since its onset" and that she "was not able to perform
every duty of her job at FMC on a sustained, regular basis at any
point [between July 1992 and May 1993]." Appellant's App. at A-
110. Dr. Bass, also a treating physician, stated that Donaho's
symptoms of impaired concentration and fatigue would "make it
extremely difficult to attend consistently to the details that
are involved in [Donaho's] work," (Appellant's App. at A-104),
and she concluded in her April evaluation that "the patient has
not returned to normal baseline mood and in fact would not be
considered in partial remission since mood would plummet . . . if
stress increased. . . ." Appellant's App. at A-123.
13
The committee erroneously relied on the Social Security
Administration's rejection of Donaho's application for Social
Security disability benefits. The Social Security Administration
concluded that Donaho could "understand, remember, and follow
through with moderately difficult instructions" (Appellant's App.
at A-96), and thus she could function as a "data entry operator."
This does not support the committee's decision that Donaho could
function as a computer software engineer, a very demanding
occupation.
The committee also erroneously relied on evidence of
Donaho's personal life, including social activities. That she
can get out of bed, take care of herself, interact with others,
and spend a few hours per month on professional activities (most
often only attending functions and perhaps making a few phone
calls) does not demonstrate that she can resume working at a
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13
determinative as the committee would have us believe. Dr. Zaloudek
was a reviewing physician; he never examined Donaho. While this
fact alone is not dispositive, it lessens the weight which the
committee should have accorded Dr. Zaloudek's opinion. We have
held, in Social Security cases, that a reviewing physician's
opinion is generally accorded less deference than that of a
treating physician, Thompson v. Bowen, 850 F.2d 346, 349 (8th Cir.
1988), and we apply this rule in disability cases under ERISA as
well. Certainly where the reviewing physician's conclusions are
contradicted by an examining physician and two treating physicians,
reliance on the reviewing physician's conclusions "seems especially
misplaced" and constitutes an abuse of discretion. See Totz v.
Sullivan, 961 F.2d 727, 730 (8th Cir. 1992) (ALJ erred in crediting
testimony of reviewing physician rather than testimony of three
treating physicians).
Further, while Dr. Zaloudek's opinions have been largely
supportive of the committee's findings, they have not always been
consistent. As we have already observed, on July 1, 1993, Dr.
Zaloudek agreed with Dr. Bass and Dr. Aletky that "[i]t appears now
that the client did not have sufficient improvement to function
appropriately as a computer software engineer." Appellant's App.
at A-106. Only after being contacted by the plan administrator did
he reverse course and order an IME. This change of opinion should
also lessen the weight that the committee gave to Dr. Zaloudek's
opinion.
In prior cases, we have held that where there is a conflict of
opinion, the plan administrator does not abuse his discretion in
finding that the employee is not disabled. See Cox II, 13 F.3d at
275. However, where the administrative decision lacks support in
the record, or where the evidence in support of the decision does
stressful and demanding job.
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14
not ring true and is so overwhelmed by contrary evidence, the
administrative decision is unreasonable and will not stand. That
is the case here.
IV. CONCLUSION
Having determined that the committee's denial of disability
benefits was an abuse of discretion, we vacate the grant of summary
judgment and remand to the district court. The district court
should in turn remand this case to the plan administrator and
require the plan administrator to acknowledge liability at least
until October 1, 1993, and for such additional time as the record
may show that Donaho's condition remained the same or worsened
after October 1993. The administrator of the plan should permit
additional evidence to determine the duration of the disability, if
any, following October 1, 1993.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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