United States District Court, M.D. Pennsylvania
September 7, 2005.
RANDY L. NYMAN, Plaintiff,
LIBERTY MUTUAL ASSURANCE COMPANY OF BOSTON, Defendant.
The opinion of the court was delivered by: JOHN E. JONES, District Judge
MEMORANDUM AND ORDER September 7, 2005
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Pending before the Court is a Motion for Summary Judgment (doc.
21) filed by the defendant, Liberty Life Assurance Company of
Boston ("Defendant" or "Liberty Life") on June 1, 2005. We also
have before us a Motion for Partial Summary Judgment (doc. 24)
filed by the plaintiff, Randy Nyman ("Plaintiff" or "Nyman") on
June 1, 2005.
For the reasons that follow, we will grant Defendant's Motion
for Summary Judgment in its entirety and dismiss this case.
On or about November 3, 2004 Plaintiff filed a complaint
against "Liberty Mutual Assurance Company" in the Court of Common Pleas of Centre
County, Pennsylvania. On December 8, 2004, Liberty Life filed a
Notice of Removal in the United States District Court for the
Middle District of Pennsylvania. (See Rec. Doc. 1). On February
23, 2005, Plaintiff filed an amended complaint correctly naming
the defendant to be "Liberty Mutual Assurance Company of Boston."
(See Rec. Doc. 11). Although the amended complaint does not
refer to or cite the Employee Retirement Income Security Act
("ERISA"), 29 U.S.C. § 1001 et seq., it asserts a claim for
long-term disability benefits ("LTD benefits") under the
Coca-Cola LTD Policy. We will therefore construe Plaintiff's
amended complaint as arising under the provisions of ERISA.
On June 1, 2005, both parties filed Motions for Summary
Judgment, which have been briefed by the parties. The instant
Motions are therefore ripe for disposition.
STANDARD OF REVIEW:
Summary judgment is appropriate if "there is no genuine issue
as to any material fact and . . . the moving party is entitled to
judgment as a matter of law." FED .R. CIV. P. 56(c); see also
Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir.
1990). The party moving for summary judgment bears the burden of
showing "there is no genuine issue for trial." Young v.
Quinlan, 960 F.2d 351, 357 (3d Cir. 1992). Summary judgment should not be granted when there
is a disagreement about the facts or the proper inferences which
a fact finder could draw from them. Peterson v. Lehigh Valley
Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982).
Initially, the moving party has a burden of demonstrating the
absence of a genuine issue of material fact. Celotex Corporation
v. Catrett, 477 U.S. 317, 323 (1986). This may be met by the
moving party pointing out to the court that there is an absence
of evidence to support an essential element as to which the
non-moving party will bear the burden of proof at trial. Id. at
Federal Rule of Civil Procedure 56 provides that, where such a
motion is made and properly supported, the non-moving party must
then show by affidavits, pleadings, depositions, answers to
interrogatories, and admissions on file, that there is a genuine
issue for trial. FED. R. CIV. P. 56(e). The United States Supreme
Court has commented that this requirement is tantamount to the
non-moving party making a sufficient showing as to the essential
elements of their case that a reasonable jury could find in its
favor. Celotex Corp., 477 U.S. at 322-23.
It is important to note that "the non-moving party cannot rely
upon conclusory allegations in its pleadings or in memoranda and
briefs to establish a genuine issue of material fact." Pastore
v. Bell Tel. Co. of Pa., 24 F.3d 508, 511 (3d Cir. 1994) (citation omitted). However, all inferences
"should be drawn in the light most favorable to the non-moving
party, and where the non-moving party's evidence contradicts the
movant's, then the non-movant's must be taken as true." Big
Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d
Cir. 1992), cert. denied, 507 U.S. 912 (1993) (citations
Still, "the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in
original). "As to materiality, the substantive law will identify
which facts are material." Id. at 248. A dispute is considered
to be genuine only if "the evidence is such that a reasonable
jury could return a verdict for the nonmoving party." Id.
STATEMENT OF RELEVANT FACTS:
We initially note that we will, where necessary, view the facts
and all inferences to be drawn therefrom, in the light most
favorable to the nonmoving party in our analysis of the pending
Liberty Life provides LTD insurance to employees of The
Coca-Cola Company ("Coca-Cola") and affiliated entities pursuant
to a Group Disability Income Policy ("Coca-Cola LTD Policy")
which was effective January 1, 2003. Plaintiff was a participant in the Coca-Cola LTD Policy as a
result of his employment with CCDA Waters Company, a Coca-Cola
bottling plant in Milesburg, Pennsylvania. Plaintiff was employed
as an industrial operator for the manufacturing department of the
Coca-Cola bottling plant. Deductions were taken from Plaintiff's
pay and his employer was responsible for paying the insurance
premium for this disability insurance policy with Liberty Life.
In July 2003, Plaintiff injured his lower back while building a
chicken coop at his home. He consulted with his chiropractor
without relief and was referred to his treating physician's
assistant, John C. Wadsworth ("Mr. Wadsworth"). Mr. Wadsworth
prescribed medication for muscle spasms and referred Plaintiff to
physical therapy. Plaintiff attempted physical therapy without
improvement and he experienced pain radiating down his legs with
his legs becoming weak with prolonged standing. An August 4,
2003, an MRI of Plaintiff's lumbar spine revealed the following:
disc desiccation of L3-L4, L4-L5, and L5-S1; a small broad based
central disc protrusion of L5-S1, minimal annular bulge of L3-L4
and L4-L5, and a small annular fissure at the L3-L4 level. On
October 9, 2003, Plaintiff followed up with neurosurgeon Gail
Magid ("Dr. Magid") and was ruled out as a surgical candidate.
In December 2003, Plaintiff sought to return to his work with
CCDA Waters; however, Plaintiff's employer insisted upon an
examination by Dr. Susan R. Friedman ("Dr. Friedman") before
Plaintiff was allowed to return to work. On December 10, 2003,
Dr. Friedman examined Plaintiff and recommended the following:
His mechanical back problems, which in my opinion are
the primary cause of his low back pain, should
resolve with appropriate physical therapy treatment.
Should Mr. Nyman wish, I could give him suggestions
about where to go, etc.
At present, I would not recommend that he return to
his regular job. I think the chances are high that
his pain would increase and that his employment would
be responsible for exacerbation of his underlying
Rec. Doc. 28, P-1, at LL-0084-0087; Rec. Doc. 27, Ex. 29, at
In May 2004, Plaintiff applied for LTD benefits with Liberty
Life under the Coca-Cola LTD Policy. Both parties agree that
Liberty Life received the following information:*fn1 an
unsigned disability claim form that Liberty Life asserts was
presumably completed by Plaintiff; an Attending Physician's
Statement and a Functional Capacities Form, both of which were
completed on May 7, 2004 by Dr. Henry Dietrich ("Dr. Dietrich");
and an Employer's Statement completed on May 20, 2004, by a
representative of Plaintiff's employer. According to the
information received by Liberty Life, in July 2003, Plaintiff commenced a
medical leave from his position as an industrial operator as a
result of his back injury sustained during the same month.
Plaintiff listed the date of his disability as July 8, 2003 and
his employer listed Plaintiff's last day of work as July 25,
On May 7, 2004, Liberty Life received a copy of a job
description from Plaintiff's employer concerning his position as
an industrial operator. According to the job description received
by Liberty Life, the physical requirements concerning Plaintiff's
position require the ability to lift up to 50 pounds
occasionally, and require Plaintiff to stand, bend, and squat on
a regular basis. Upon receiving the job description from
Plaintiff's employer, Liberty Life referred that information to
Liberty Life's Vocational Case Management Department for review.
On June 11, 2004, Janette Purtell ("Ms. Purtell"), a vocational
case manager for Liberty Life, prepared an occupational analysis
Prior to receiving Ms. Purtell's occupational analysis, on May
28, 2004, Liberty Life sent letters to various physicians and
medical providers who had been identified by Nyman, requesting
that they provide medical information, medical records, and other
information concerning Nyman's condition. In addition to
receiving medical records, Liberty Life also received additional
information from Nyman concerning his claim for benefits under
the Coca-Cola LTD Policy, including a questionnaire completed by Nyman on June 10, 2004 in
which he provided information concerning some of his daily
activities and physical capacities. In the questionnaire,
Plaintiff indicated that he was capable of sitting for
approximately one hour, standing for one hour, and walking one
and one-half to two hours. (See Rec. Doc. 28, P-1, at LL-0172).
Plaintiff also stated that he was not able to stand or lift
objects, kneel or crouch, and that the aforementioned actions
caused pain and discomfort in his back. Id. at LL-0174.
On June 20, 2004, the disability case manager, Chandra E. Burch
("Ms. Burch") directed Andrea Dukes ("Ms. Dukes"), the claims
handler, to investigate how Plaintiff's performance at work had
been prior to disability and whether he was having any difficulty
doing his work given his physical condition.
Following receipt of the various medical records and other
information concerning Plaintiff's claim, on June 28, 2004,
Liberty Life referred Plaintiff's records for a peer review
analysis by an orthopedic specialist, listing questions and
issues to be addressed in connection with this review. On July
14, 2004, Liberty Life received a report summarizing the results
of the peer review analysis which had been performed by Dr.
Richard Silver ("Dr. Silver"), a board certified orthopedic
surgeon. Dr. Silver's report stated that Nyman was capable of
being employed in his occupation as early as December 1, 2003,
and that there were no objective clinical findings which substantiated Nyman's
subjective complaints of back pain. (See Rec. Doc. 27, Ex. 23,
On July 21, 2004, Liberty Life issued its determination denying
Nyman's claim for LTD benefits under the Coca-Cola LTD Policy. In
addition to describing the information on which its determination
was based, Liberty Life's July 21, 2004 letter advised Nyman of
his right to request a review of Liberty Life's determination and
denial of benefits, as well as the procedures to be followed in
connection with any request for review. Liberty Life received an
August 24, 2004 letter from counsel for Nyman which Liberty Life
treated as a request for review of its July 21, 2004 decision.
Nyman therefore appealed Liberty Life's denial of LTD benefits
and supplemented the administrative record with additional
information. As a result of Plaintiff's request for review,
Liberty Life referred Plaintiff's file to Dr. Gale Brown ("Dr.
Brown"), one of Liberty Life's consulting physicians who
specializes in physical medicine and rehabilitation. On October
5, 2004, Liberty Life received a memorandum from Dr. Gale Brown
("Dr. Brown"), one of its consulting physicians who specializes
in physical medicine and rehabilitation, summarizing the results
of her review of Nyman's medical records. In her memorandum,
which we will describe in more detail below, Dr. Gale recommended
certain prophylactic physical restrictions but she stated that
within the restrictions, Nyman retained the physical capacity to resume
the essential duties of his own occupation as of January 22,
2004. "Dr. Freedman's opinion that the claimant should not resume
his regular job duties is not supported by documentation of
standard criteria for neuromuscular impairment." (Rec. Doc. 27,
Ex. 30, Rec. Doc. 28, P-1, at LL-0062). On October 6, 2004,
Liberty Life denied Plaintiff's appeal.
In its Motion for Summary Judgment, Liberty Life submits that
the proper standard of review to employ in the case sub
judice is that of "heightened" arbitrary and capricious as
Liberty Life is responsible for both determining benefit
eligibility and for paying those benefits out of its own funds.
Second, Liberty Life argues that no evidentiary basis exists for
disturbing its determination that Nyman was capable of performing
the material duties of his industrial operator position. Finally,
Liberty Life contends that Nyman cannot establish that its
adverse determination was arbitrary and capricious.
In his Motion for Partial Summary Judgment, Plaintiff is in
agreement with Liberty Life that a "heightened" arbitrary and
capricious standard of review is applicable; however, he asserts
that numerous procedural irregularities warrant elevating the
scrutiny under the heightened arbitrary and capricious standard.
"For the defendant to reject the opinions of the only two physicians
who have examined Mr. Nyman and his individual work capacity,
without reason or explanation, warrants a high level of scrutiny
of the defendant's denial." (Pl.'s Br. Supp. Mot. Partial Summ.
J. at 26). Plaintiff also maintains that under a high level of
scrutiny, Liberty Life acted arbitrarily and capriciously in
denying his claim for benefits. "For the defendant to deny
benefits to the plaintiff in light of the nature of the physical
requirements of his occupation, the recommendations and opinions
of two separate physicians and the defendant's own analysis of
Mr. Nyman's job was to act arbitrarily and capriciously under the
heightened standard of review." Id. at 29-30.
In an ERISA action, a district court must first determine the
applicable standard of review and then proceed to evaluate the
facts in light of that standard. Accordingly, we will first turn
to the issue of the proper standard of review.
A. Applicable Standard of Review
Under ERISA, a court reviewing an administrator's decision to
deny benefits is by default reviewed de novo, "unless the
benefit plan gives the administrator or fiduciary discretionary
authority to determine the employee's eligibility or construe the
terms of the plan." Firestone Tire & Rubber Co. v. Bruch,
489 U.S. 101, 115 (1989); Stratton v. E.I. DuPont De Nemours & Co.,
363 F.3d 250, 253 (3d Cir. 2004). If a plan provides discretionary authority to the
administrator or fiduciary, then a reviewing court applies a form
of arbitrary and capricious review. Firestone Tire & Rubber
Co., 489 U.S. at 111-12, 115; see Mitchell v. Eastman Kodak
Co., 113 F.3d 433, 437 (3d Cir. 1997). Discretionary authority
can be provided for by express or implied language in the benefit
plan. Luby v. Teamsters Health, Welfare, & Pension Trust,
944 F.2d 1176, 1180 (3d Cir. 1991). Whether that arbitrary and
capricious review is heightened in any way depends on the
presence of potentially conflicted ERISA fiduciaries and is
determined on a sliding scale that we will discuss in further
detail below. Pinto v. Reliance Standard Life Ins. Co.,
214 F.3d 377, 379 (3d Cir. 2000).
The scope of discovery depends upon the standard of review. In
the Third Circuit, "a district court exercising de novo review
over an ERISA determination between beneficiary claimants is not
limited to the evidence before the Fund's Administrator." Luby,
944 F.2d at 1184-85. In sharp contrast, the record available to a
court conducting an arbitrary and capricious review is the record
made before the plan administrator, which cannot be supplemented
during litigation. See Kosiba v. Merck & Co., 384 F.3d 58, 67
n. 5 (3d Cir. 2004) (citing Mitchell, 113 F.3d at 440).
Nevertheless, when a reviewing court is deciding whether to
employ the arbitrary and capricious standard or a more heightened
standard of review, it may consider evidence of potential biases and conflicts of
interest that are not found in the administrator's record. Id.
Under the group disability insurance policy, Liberty Life has
the authority "in its sole discretion, to construe the terms of
[the] policy and to determine benefit eligibility." (Rec. Doc.
27, Ex. 1, at LL-0033). As Liberty Life has the discretionary
authority to interpret plan terms and determine eligibility for
plan benefits, we will review the decision regarding Plaintiff's
claim for LTD benefits under the arbitrary and capricious
standard of review. Firestone Tire & Rubber Co.,
489 U.S. at 111-12, 115; see Mitchell, 113 F.3d at 437. In further
support thereof, both parties concede that the Court should apply
at minimum the arbitrary and capricious standard of review to the
case sub judice. While Liberty Life concedes that the Court
should apply the heightened arbitrary and capricious standard of
review, the parties have differing views as to the proper
"heightened" degree of arbitrary and capricious review along the
Pinto v. Reliance Standard Life Ins. Co., 214 F.3d 377 (3d Cir.
2000), "sliding scale" approach that is applicable to this
case.*fn2 As previously noted, we will accordingly review
the decision regarding Plaintiff's claim for LTD benefits under the arbitrary and
capricious standard of review on the basis of the administrative
record before Liberty Life at the time of the decision to deny
Plaintiff's claim. See Kosiba, 384 F.3d at 67 n. 5 (citing
Mitchell, 113 F.3d at 440).
Given the disagreement concerning the application of an
elevated standard, we must now determine whether to employ a
heightened arbitrary and capricious standard of review, and if
so, the proper heightened scrutiny to apply to this case.
In its submissions to the Court, Liberty Life has explained
that its role in administering the benefit process under the
Coca-Cola LTD Policy includes responsibility for deciding
questions concerning benefit eligibility, as well as
responsibility for payment of benefits out of its own funds. In
circumstances such as these, the Third Circuit Court of Appeals
has applied a "heightened" arbitrary and capricious standard of
review, in recognition of the potential conflict of interest
which may be present. See Pinto, 214 F.3d 377. In Pinto,
the Third Circuit held that in reviewing an ERISA plan
fiduciary's discretionary determination regarding benefits, a
court must take into account the existence of the structural
conflict of interest present when a financially interested entity
also makes benefit determinations. See Kosiba,
384 F.3d at 64. Under this heightened scrutiny, the Third Circuit adopted a "sliding scale" approach in
Pinto, in which the district courts must "consider the nature
and degree of apparent conflicts with a view to shaping their
arbitrary and capricious review of the benefit determinations of
discretionary decisionmakers." Id. (citing Pinto,
214 F.3d at 392-93). The aforementioned "sliding scale method"
"intensifies the degree of scrutiny to match the degree of
conflict." Id. at 379.
In Pinto, the Third Circuit set out factors for the court to
consider in deciding the amount of deference to be afforded to
benefit determinations made by insurance companies that both fund
and administer plans. The factors a court considers in
determining the degree of scrutiny to afford the administrator in
the determination to terminate benefits include: "(1) the
sophistication of the parties; (2) the information accessible to
the parties; (3) the exact financial arrangement between the
insurer and the company; and (4) the status of the fiduciary, as
the company's financial or structural deterioration might
negatively impact the `presumed desire to maintain employee
satisfaction.'" Stratton, 363 F.3d at 254 (citing Pinto,
214 F.3d at 392).
Liberty Life argues that the only factor leading to the
application of a heightened level of review is the financial
arrangement between the insurer and the company, under which
Liberty Life pays benefits out of its own funds. Liberty Life asserts that the other Pinto factors are either neutral or
militate against application of a high level of review. In
response, Plaintiff asserts that numerous procedural
irregularities, as previously noted, warrant heightening the
scrutiny given to Liberty Life's decision under the heightened
arbitrary and capricious standard.*fn3
We believe that even under the most heightened arbitrary and
capricious standard of review, Liberty Life's decision to deny
Nyman disability benefits was proper. We therefore need not
engage in a detailed analysis of specifically how heightened our
arbitrary and capricious standard must be and we will apply the
least deferential of those standards. See McElroy v.
SmithKline Beecham Health & Welfare Benefits Trust Plan,
340 F.3d 139, 143 n. 2 (3d Cir. 2003) (holding that a court may apply
a more heightened scrutiny if the same result in favor of the
administrator would be reached under a less heightened scrutiny).
Under this heightened standard, "a plan administrator's decision will be
overturned only if it is clearly not supported by the evidence in
the record or the administrator has failed to comply with the
procedures required by the plan." Smathers v. Multi-Tool,
Inc./Multi-Plastics, Inc. Employee Health & Welfare Plan,
298 F.3d 191, 199 (3d Cir. 2002).
B. Review of Nyman's Claim for Benefits
The Third Circuit Court of Appeals has instructed that in
reviewing a denial of benefits under the "arbitrary and
capricious" standard, a plan administrator's decision will be
overturned only if it is "clearly not supported by the evidence
in the record or the administrator has failed to comply with the
procedures required by the plan." Orvosh v. Program of Group
Ins. for Salaried Employees of Volkswagen of Am., 222 F.3d 123,
129 (3d Cir. 2000) (quoting Abnathya v. Hoffman-La Roche,
Inc., 2 F.3d 40, 41 (3d Cir. 1993)). The Third Circuit has
recently instructed that a court should affirm the plan
administrator's determination as long as it is supported by
substantial evidence in the record, even if the record also
contains substantial evidence that would support a different
result. Johnson v. UMWA Health and Retirement Funds, 2005 U.S.
App. LEXIS 2115, * 8 (3d Cir. 2005). "[A] court is not free to
substitute its own judgment for that of the defendants in
determining eligibility for plan benefits." Orvosh, 222 F.3d at 129(internal quotations omitted). Furthermore, "whether a claim
decision is arbitrary and capricious requires a determination
`whether there was a reasonable basis for [the administrator's]
decision, based upon the facts as known by the administrator at
the time the decision was made.'" Bader v. RHI Refractories
America, Inc., 111 Fed. Appx. 117, 120-21 (3d Cir. 2004)
(quoting Jett v. Blue Cross & Blue Shield of Ala., Inc.,
890 F.2d 1137, 1139 (11th Cir. 1989)).
i. The Coca-Cola LTD Policy
In determining whether the decision to deny Plaintiff LTD
benefits was arbitrary and capricious, we begin with the
Coca-Cola LTD Policy itself, since an ERISA plan administrator
must "discharge his duties with respect to a plan . . . in
accordance with the documents and instruments governing the plan
insofar as such documents and instruments are consistent with the
provisions of [ERISA]." Mitchell, 113 F.3d at 439; see
29 U.S.C. § 1104(a)(1)(D).
Pursuant to the Coca-Cola LTD Policy, Plaintiff sought benefits
pursuant to the twenty-four (24) month own occupation benefit
portion of the Plan. Under the Policy, in order for Nyman to be
eligible for LTD benefits, his condition must prevent him from
performing the material and substantial duties of his own
occupation during the elimination period and the first
twenty-four (24) months of his alleged disability.*fn4 Specifically, the Coca-Cola LTD
Policy defines disability for someone such as Nyman with the
twenty-four (24) month own occupation benefit as follows:
i. If the Covered Person is eligible for the 24-Month
Own Occupation Benefit, "Disability" or "Disabled"
means that during the Elimination Period and the next
24 months of Disability the Covered Person, as a
result of Injury or Sickness, is unable to perform
the Material and Substantial duties of his Own
Rec. Doc. 27, Ex. 1, at LL-0006; Rec. Doc. 28, P-1, at LL-0006.
In addition, "material and substantial duties" are defined as
"responsibilities that are normally required to perform the cover
person's own occupation or any other occupation, and cannot be
easily eliminated or modified." (See Rec. Doc. 27, Ex. 1, at
LL-0007; Rec. Doc. 28, P-1, at LL-0007). Therefore, the
appropriate inquiry is whether Nyman's disability, if any,
prevented him from doing his job as an industrial operator. ii. Nyman's Record Support
To determine whether Plaintiff carried her burden, we look to
the record as a whole. See Mitchell, 113 F.3d at 440. As we
previously explained, under the arbitrary and capricious standard
of review, the "whole" record consists of that evidence that was
before the administrator when the decision being reviewed was
made. Id.; see also Luby, 944 F.2d at 1184, n. 8.
Plaintiff presented medical evidence in the form of office
notes from his primary care physician, Dr. Dietrich, x-rays taken
of Plaintiff's back, an MRI report, physical therapy records,
medical records from Mr. Wadsworth, and an office note completed
by Dr. Magid following her evaluation of him on October 9, 2003,
in support of his claim of disability. Following Liberty Life's
July 21, 2004 denial of Nyman's claims for benefits under the
Coca-Cola LTD Policy, Liberty Life received an August 24, 2004
letter from counsel for Nyman which, as previously stated,
Liberty Life treated as a request for review of its July 21, 2004
decision and Liberty Life subsequently referred Nyman's file to
its Appeals Review Unit. Nyman's counsel supplemented the prior
documentation provided in support of Nyman's claim for disability
with the following submissions: a physical capacities evaluation
form, which had been completed by Dr. Dietrich on August 3, 2004
and a copy of a December 10, 2003 letter prepared by Dr. Freedman
who had examined Nyman in December 2003 at the request of his employer.
A principal argument advanced by Plaintiff is that Liberty Life
acted improperly and arbitrarily in rejecting the opinion
expressed by Dr. Dietrich, Plaintiff's primary care physician,
concerning his ability to return to his former position.
Plaintiff asserts that one of the procedural irregularities that
occurred in the case sub judice concerns the fact that
Liberty Life relied upon a paper in-house medical review to
reject the certification of a treating physician without
We find that Liberty Life did not act in an arbitrary and
capricious manner in rejecting the opinion of Plaintiff's
treating physician, Dr. Dietrich, in favor of contrary opinions
expressed by two consulting specialists, for the reasons that
As Liberty Life submits, in Black & Decker Disability Plan v.
Nord, 538 U.S. 822 (2003), the Supreme Court noted that ERISA
requires that plan procedures "afford a reasonable opportunity . . .
for a full and fair review" of dispositions adverse to the
claimant. Id. at 830-31 (citing 29 U.S.C. § 1133(2)).
Moreover, the Supreme Court explained that nothing in the Act
itself suggests that plan administrators must accord special
deference to the opinions of treating physicians. "Nor does the
Act impose a heightened burden of explanation on administrators when they reject a treating physician's opinion."
Id. at 831. In Black & Decker, the Supreme Court further
stated that plan administrators may not arbitrarily refuse to
credit a claimant's reliable evidence, including the opinions of
a treating physician; however, it held that "courts have no
warrant to require administrators automatically to accord special
weight to the opinions of a claimant's physician; nor may courts
impose on plan administrators a discrete burden of explanation
when they credit reliable evidence that conflicts with a treating
physician's evaluation." Id. at 834.
In addition, as Liberty Life points out, following the Black &
Decker decision, district courts have upheld administrative
determinations that reject the opinions of a claimant's treating
physicians which are contradicted by opinions expressed by
consulting physicians, even in cases like the instant one, in
which the consulting physicians' opinions are based upon a record
review which did not include an actual examination of the
patient. See, e.g., Dinote v. United of Omaha Life Ins.
Co., 331 F.Supp.2d 341, 347-49 (E.D. Pa. 2004); Fahringer v.
Paul Revere Ins. Co., 317 F.Supp.2d 504, 517-18 (D.N.J. 2003);
Sweeney v. Standard Ins. Co., 276 F.Supp.2d 388, 396-97 (E.D.
Pa. 2003). We therefore reject Plaintiff's repeated argument
regarding the fact that Dr. Dietrich's opinions are entitled to special weight by Liberty Life.*fn5
We will first review the salient portions of Nyman's medical
records with Dr. Dietrich to begin our analysis of whether
Liberty Life's decision to reject Dr. Dietrich's opinion in favor
of contrary opinions received from consulting specialists was
arbitrary and capricious. First, the medical records Liberty Life
received from Dr. Dietrich indicate that when Nyman originally
strained his back in July 2003, he was seen by Mr. Wadsworth, a
physician assistant in Dr. Dietrich's office. The primary visit
diagnosis was a lumbosacral sprain. Mr. Wadsworth referred Nyman
to a physical therapy program on July 14, 2003, which Nyman began
on July 21, 2003; however, he voluntarily withdrew from it on
July 29, 2003 pending the results of a surgery evaluation by Dr.
Magid, the neurosurgery specialist to whom Nyman was referred by
Dr. Dietrich. Subsequently, on October 17, 2003, Dr. Dietrich saw
Nyman, but not for his back problem. In fact, as Liberty Life submits, Dr. Dietrich was
unfamiliar enough with Nyman's back injury that on his October
17, 2003 office note concerning his examination of Nyman for
depression, he wrote that Nyman was "currently off work because
of shoulder injury." (See Rec. Doc. 27, Ex. 15, at LL-0137).
Dr. Dietrich examined Nyman on January 29, 2004 for his back
problem and, as had occurred with Mr. Wadsworth, referred Nyman
for pain therapy. There is a lack of evidence that Nyman followed
the recommendation to pursue pain therapy, and the only other
office note Liberty Life received from Dr. Dietrich during the
administrative process was that concerning an April 9, 2004
office visit when Nyman was examined for an upper respiratory
infection. Therefore, Liberty Life accurately points out that the
records demonstrate that Dr. Dietrich saw Nyman for his back
condition on only one occasion, on January 29, 2004, more than
three months prior to his completion of the functional capacities
form on May 7, 2004 and more than seven months prior to his
completion of the physical capacities form on August 3,
2004.*fn6 At the end of the physical capacities form, Dr.
Dietrich wrote the following, "I do not think that it will be possible for Mr.
Nyman to work on a line twisting and lifting continuously with
his back. There is enough evidence from his MRI that his job at
CCDA Waters is out of the question. He needs to pursue a
different type of work." (See Rec. Doc. 27, Ex. 28).
Our next task in conducting this arbitrary and capricious
determination is to scrutinize Liberty Life's consulting
physicians' reports. First, Liberty Life referred Nyman's file to
Dr. Silver, an orthopedic surgeon, to ascertain his level of
functionality. Dr. Silver's detailed July 14, 2004 report places
particular emphasis on "numerous medical records" submitted from
Mr. Wadsworth, Dr. Gabinsky, Nyman's chiropractor, and Dr.
Dietrich. In that regard, after reviewing the aforementioned
records, Dr. Silver opined that Nyman had a paucity of objective
clinical findings on physical examination to substantiate his
subjective complaints and belief that he could not be gainfully
employed. Dr. Silver indicated that the best clinical examination
was the neurosurgical consultation performed by Dr. Magid on October 9, 2003 in which she recommended a lumbar
epidural steroid injection and an intensive course of physical
therapy. She found no focal neurological deficits, decreased
range of motion at the extremes of lumbosacral spine, but no loss
of functionality of the lumbosacral spine. While Dr. Silver
concluded that Plaintiff should avoid unprotected and
unrestricted heights and heavy manual labor, he stated that
Plaintiff was capable of being gainfully employed at medium labor
and at his normal occupation. "For a simple sprain/strain, the
reasonable timeframe would be a minimum of 4-6 weeks and a
maximum of 10-14 weeks. On rare occasions, it will go as long as
16-20 weeks, but with Mr. Nyman's subjective complaints not being
substantiated by objective clinical findings, he has been capable
of being gainfully employed as early as 12/01/03, based on my
review of the medical records available." Id. at Ex. 23.
Second, as previously noted, subsequent to Nyman's appeal of
Liberty Life's denial of disability benefits, Liberty Life
referred Plaintiff's file to Dr. Brown. In her October 5, 2004
memorandum, Dr. Brown noted that by October 17, 2003, Nyman was
reporting no specific low back complaints when he visited his
primary care physician, which was consistent with the expected
recovery period from an LS strain, such as that experienced by
Nyman on July 5, 2003. Dr. Brown noted that the x-rays completed
on August 1, 2003 revealed no change from previous studies and that the August 4, 2003 MRI did not reveal
any significant changes which correlated with specific symptoms
or physical exam findings. Finally, although Dr. Brown
recommended certain prophylactic physical restrictions,*fn7
which were consistent with those described by Nyman's primary
care physician and by Dr. Silver in his July 14, 2003 report, Dr.
Brown expressed her overall opinion that Nyman was capable of
returning to work in his own occupation. (Rec. Doc. 27, Ex. 30).
After a careful review of the record, we do not find that
Liberty Life's decision to reject Dr. Dietrich's opinion in favor
of contrary opinions received from consulting specialists, Dr.
Silver and Dr. Brown, was arbitrary and capricious. Liberty
Life's decision to credit the conclusions of Dr. Silver and Dr.
Brown over those expressed by Dr. Dietrich is supported the
observations by Dr. Silver and Dr. Brown that there was no
objective medical evidence or documentation supporting Dr.
Dietrich's opinion that Nyman was not capable of returning to his
former position at Coca-Cola. Moreover, Liberty Life's decision
is further buttressed by an examination of Dr. Dietrich's
records, which demonstrate that Nyman had experienced improvement in his condition by December 2003, and as
previously noted, that Dr. Dietrich saw Nyman for his back
condition on only one occasion, which occurred more than three
months prior to his completion of the functional capacities form
on May 7, 2004 and more than seven months prior to his completion
of the physical capacities form on August 3, 2004. Finally, as
Liberty Life submits, Dr. Dietrich's medical records confirm that
the only "treatment" rendered by him was to refer Nyman to Dr.
Magid for a surgical evaluation which led to Dr. Magid's finding
that there was no need for surgical intervention, and his
referral of Nyman to a physical therapy program, from which Nyman
withdrew after a short period of participation.
Plaintiff also places emphasis upon the opinion of Dr. Susan
Freedman ("Dr. Freedman"), who was hired by Nyman's employer in
connection with Nyman's request to return to work. Plaintiff
argues that Dr. Freedman's "independent" medical examination
opinion, stating that employment would exacerbate and cause Nyman
further injury, was not followed and that Liberty Life instead
again submitted Nyman's case for an in-house medical review.
A thorough review of Dr. Freedman's December 10, 2003 letter
reveals that it primarily consists of a summary of Nyman's
subjective complaints. Although she recommended that Plaintiff
not return to his regular job and stated that "the chances are high that his pain would increase and that his
employment would be responsible for exacerbation of his
underlying back problem," importantly, Dr. Freedman did not have
access to any of Nyman's medical records, nor did she examine the
x-rays or MRI test result in connection with her examination of
Nyman. See Stratton, 363 F.3d at 258 (noting it was not
arbitrary for a benefits administrator to be wary of a doctor's
opinion rendered before the doctor had an updated MRI); see
Rec. Doc. 27, Ex. 29, at LL-0087; Rec. Doc. 28, P-1, LL-0087.
Instead, Dr. Freedman relied upon Nyman's oral representation of
his MRI results. Finally, and contrary to Nyman's suggestion,
Liberty Life did not arbitrarily disregard Dr. Freedman's
opinion. Dr. Freedman's letter was forwarded by Liberty Life to
Dr. Brown, and Dr. Brown included a detailed summary of her
reasons for discounting Dr. Freedman's opinion. Notably, Dr.
Brown stated the following in her October 5, 2004 report:
Dr. Freedman (PM & R) did not offer specific physical
restrictions, although recommended that the claimant
not resume his former job due to the risk of
mechanical low back pain exacerbation. However, Dr.
Freedman did not document neuromuscular impairment to
support such opinion . . . Dr. Freedman's opinion
that the claimant should not resume his regular job
duties is not supported by documentation of standard
criteria for neuromuscular impairment.
See Rec. Doc. 27, Ex. 30, at LL-0062-0063. Liberty Life quoted
Dr. Brown's assessment of Dr. Freedman's letter in Liberty Life's
October 6, 2004 letter to Nyman's attorney explaining the reasons for its adverse decision
concerning the appeal. We therefore do not find that Liberty Life
acted arbitrarily and capriciously in rejecting Dr. Freedman's
December 10, 2003 letter.
Nyman also argues that Liberty Life did not make its
determination based upon an accurate assessment of the principal
duties of Plaintiff's position as an industrial operator, which
involved regular bending and squatting. In that regard, Plaintiff
contends that if one takes the restrictions and limitations
recommended by Defendant's doctors and applies them to the
vocational analysis prepared by the vocational case manager, one
should conclude that Plaintiff "probably is incapable of doing
his job." (Pl.'s Br. Supp. Mot. Partial Summ. J. at 28-29).
We do not find that Liberty Life acted in an arbitrary and
capricious manner in characterizing the principal duties and
responsibilities of Nyman's occupation in rendering its decision,
for the reasons that follow. First, Plaintiff is incorrect in
contending that Liberty Life acted improperly by not relying
exclusively on the job description it received from Nyman's
employer, as opposed to the Department of Labor's ("DOL")
description obtained from the Dictionary of Occupational Titles
("DOT") by Liberty Life's vocational manager. Although Nyman
cites to Lasser v. Reliance Std. Life Ins. Co., 344 F.3d 381
(3d Cir. 2003), cert. denied, 541 U.S. 1063 (2004), in
support of the proposition that a person's "regular occupation"
is generally defined by reference to the actual job duties performed
by the specific individual for his former employer, and not on
the basis of a more generic job description as to how the
occupation is performed in the national economy, the Lasser
case is clearly distinguishable from the case sub judice. In
Lasser, the Third Circuit Court of Appeals defined "regular
occupation" as "the usual work that the insured is actually
performing immediately before the onset of disability," and
placed great emphasis on the fact that the disability policy at
issue did not define "regular occupation." Id. at 386 ("In this
context, it is unreasonable for Reliance to define `regular
occupation' differently from its plain meaning . . . without
explicitly including that different definition in the policy.").
In contrast, the Coca-Cola LTD Policy specifically defines "own
occupation" by reference to how a person's occupation is
regularly performed in the national economy. In the Coca-Cola LTD
Policy, "own occupation" is defined as follows:
"Own Occupation" means the Covered Person's
occupation that he was performing when his Disability
or Partial Disability began. For the purposes of
determining Disability under this policy, Liberty
will consider the Covered Person's occupation as it
is normally performed in the national economy.
Rec. Doc. 27, Ex. 1, at LL-0008; Rec. Doc. 28, P-1, at LL-0008.
Accordingly, we find that because the Coca-Cola LTD Policy
explicitly defined "own occupation" by referring to how the
occupation is performed in the national economy, it was appropriate for Liberty Life to include
in its consideration the DOT job description, in addition to the
description obtained from Coca-Cola. See Vaughan v. Vertex. Inc.
Short and Long Term Disability Plan, 2004 U.S. Dist. LEXIS 26061
(E.D. Pa. 2004) (distinguishing Lasser as the policy at issue
in Lasser did not include a definition of the term "regular
occupation"). Moreover, the administrative record demonstrates
that Liberty Life gave consideration to the description of job
duties it obtained from Coca-Cola, as well as the DOT job
Finally, Plaintiff argues that a procedural irregularity
occurred in this case in that the Defendant ignored the
conclusions of its vocational case manager, Ms. Purtell, that
Nyman could not perform his own occupation and her assessment of
the substantial and material duties of Nyman's occupation. In
response, Liberty Life concedes that on the June 11, 2004
occupation analysis completed by its vocational case manager, the
case manager stated that "with the capacities recommended by Dr.
Dietrich on 5/7/04 [light capacity, with back limitations] it is
not expected that claimant could perform his [occupation] as it
is typically conducted in the national economy." (See Rec. Doc. 27, Ex. 20;
Rec. Doc. 29, P-1, at LL-0207).
After a thorough review of the record, we are in agreement with
Liberty Life's assertion that the above statement written by Ms.
Purtell as to whether Nyman could perform his occupation was
explicitly premised upon the validity of the restrictions
recommended by Dr. Dietrich on the May 7, 2004 functional
capacities form. Liberty Life ultimately concluded that the
restrictions recommended by Dr. Dietrich were not justified for
reasons detailed in the denials of disability benefits. We do not
find that Liberty Life failed to accord proper weight to Ms.
Purtell's opinion as it was premised upon restrictions that
Liberty Life later determined to be invalid or unsupported by
Having reviewed the record as it existed at the time the
decision to deny Plaintiff's disability benefits was made, the
Court finds that Defendant's decision is proper under the most
significantly heightened arbitrary and capricious review standard
of review. As previously noted, so long as the administrator's
determination is clearly supported by the evidence, we are to
affirm its decision. Smathers, 298 F.3d at 199. Here,
Defendant's decision to deny Plaintiff LTD benefits is supported
by substantial evidence in the record, and without substituting
the Court's judgment for that of the Defendant in determining
eligibility for plan benefits, the Court concludes that Plaintiff is not "disabled"
under the terms of the Coca-Cola LTD Policy and that its decision
was neither arbitrary nor capricious.*fn9 Accordingly,
Defendant's Motion for Summary Judgment is granted.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1. Plaintiff's Motion for Partial Summary Judgment
(doc. 24) is DENIED.
2. Defendant's Motion for Summary Judgment (doc. 21)
3. Plaintiff's complaint is DISMISSED with prejudice.
4. The Clerk is directed to close the file on this
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