Susan Wangenstein v. Equifax, Inc. , 191 F. App'x 905 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUG 4, 2006
No. 05-14288 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00043-CV-T-26-MSS
SUSAN WANGENSTEIN,
Plaintiff-Appellant,
versus
EQUIFAX, INC.,
Defendant,
LUMBERMENS MUTUAL CASUALTY COMPANY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 4, 2006)
Before EDMONDSON, Chief Judge, KRAVITCH, Circuit Judge, and
MIDDLEBROOKS,* District Judge.
*
Honorable Donald M. Middlebrooks, United States District Judge for the Southern
District of Florida, sitting by designation.
KRAVITCH, Circuit Judge:
Susan Wangenstein appeals from the district court’s grant of summary
judgment in favor of Lumbermens Mutual Casualty Company (“Lumbermens”),
and the court’s denial of her summary judgment motion, in her suit seeking to
overturn the denial of her long term disability (“LTD”) benefits pursuant to the
Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. §§
1001 et seq. (“ERISA”). For the reasons that follow, we affirm.
I. Background
Wangenstein worked for Equifax, Inc. (“Equifax”) as a Customer Service
Representative from 1996 until July 16, 1999, when she was diagnosed with
cervical spondylosis1 with myelopathy2 and migraine headaches.3 She was a
covered “participant” in Equifax’s LTD plan, which was insured by Lumbermens
and administered by Kemper National Services (“KNS”), a wholly-owned
1
Cervical spondylosis is a “degenerative joint disease affecting the cervical vertebrae,
intervertebral disks, and surrounding ligaments and connective tissue, sometimes with pain or
paresthesia radiating down the arms as a result of pressure on the nerve roots.” Dorland’s
Illustrated Medical Dictionary 1564 (28th ed. 1994).
2
Myelopathy is a general term denoting functional disturbances or pathological changes
in the spinal cord, often referring to nonspecific lesions in contrast to the inflammatory lesions of
myelitis. Id. at 1090.
3
Wangenstein suffered from and received treatment for her migraines for at least two
years prior to leaving her job.
2
subsidiary of Lumbermens.4
Lumbermens’ LTD policy (the “policy”) defines “disabled/disability” as:
[O]ur determination that a significant change in your physical or
mental condition due to:
1. Accidental Injury;
2. Sickness;
3. Mental Illness;
4. Substance Abuse; or
5. Pregnancy,
began on or after your Coverage Effective Date and prevents you
from performing, during the Benefit Qualifying Period and the
following 24 months, the Essential Functions of your Regular
Occupation or of a Reasonable Employment Option offered to you
by the Employer, and as a result you are unable to earn more than
60% of your Pre-disability Monthly Income.
After that, you must be so prevented from performing the Essential
Functions of any Gainful Occupation that your training, education
and experience would allow you to perform.”
(Emphasis added.) The former are “own occupation” benefits, and the latter are
“any occupation” benefits. The policy further provides that benefits will be
terminated when a participant “fail[s] to provide written proof of [her] Disability
that we determine to be satisfactory.” The plan’s proof of loss section provides
that the insurer “may require proof from time to time that [the participant]
4
During 2002 and 2003, Lumbermens sold KNS to a company that was eventually
renamed Broadspire Services, Inc. (“Broadspire”). By July 2003, KNS ceased to exist;
Broadspire had no corporate connection to Lumbermens.
3
continue[s] to be unable to work due to sickness or injury, and under the Regular
and Appropriate Care of a Physician.”
On July 25, 2000, Dr. Jayam K. Iyer, Wangenstein’s treating physician,
wrote in a letter to KNS that an MRI of Wangenstein’s cervical spine taken in
August 1999 showed:
disc protrusion at C3-4 level, spondylosis, more advanced at C4-5,
C5-6 level, bulging discs at multiple levels with spondylitic lipping.
She also has a central disc protrusion at C5-6 level with herniated
nucleus pulposis, cervical radiculopathy and status-post mini-stroke
with numbness of right side of the face and arm.
Dr. Iyer noted that, “Wangenstein also suffers from intense-to-moderate amount of
muscle spasm, chronic pain syndrome and cervicogenic headache,” which “is
complicated by her right hemicranial, right ophthalmic migraine.” Dr. Iyer
concluded that Wangenstein was “totally and permanently disabled” and “not
capable of any gainful employment.”
Thereafter, KNS had Dr. Gerald Goldberg, a neurologist, conduct a Peer
Review Consultation. Dr. Goldberg did not personally examine Wangenstein.
After reviewing Dr. Iyer’s notes, and without reviewing the MRI of Wangenstein’s
cervical spine, Dr. Goldberg opined that there was not enough objective data to
support Wangenstein’s LTD status. He wrote that except for a decreased range of
motion of the cervical spine, “her neurological exam was nonfocal.” He further
4
noted the absence of details surrounding the “mini-stroke” Dr. Iyer had mentioned.
Dr. Goldberg also commented on one of Dr. Iyer’s notes, dated January 11, 2000,
indicating that Wangenstein’s migraines were controlled by injections of Imitrex.
Dr. Goldberg stated that “her complaints continue to be subjective and it is difficult
to separate what might be organic and what might be related to her attempts to get
on disability for her ongoing subjective symptoms.” He concluded that, from a
neurological standpoint, there was not “enough objective data to support long term
disability,” and he recommended additional neurological evaluation and treatment,
psychiatric evaluation, and an Independent Medical Examination (“IME”).
Following Dr. Goldberg’s review, KNS sent Wangenstein for an IME with
Dr. Harish Patel, also a neurologist, who conducted an exam and documented some
cervical and lumbosacral spasm with a restricted range of motion in the cervical
spine. Patel noted Wangenstein had a history of neck pain, neck manipulation,
vascular headaches, narcotic dependency for relief from headaches and depression
and narcotic withdrawal and determined she was “partially disabled, and may be
able to perform part-time work as tolerated.” Thereafter, Wangenstein received
“Own Occupation” disability benefits, effective October 15, 1999.
By letter dated May 1, 2001, KNS informed Wangenstein that her 24-month
Own Occupation benefits period was coming to a close and requested that she
5
supply updated medical documentation of her condition so that KNS could
evaluate whether she qualified for “Any Occupation” benefits. KNS asked her to
sign a medical release authorization, fill out a questionnaire, and cooperate with
vocational consultants. Wangenstein complied with all requests.
By letter dated May 21, 2002, KNS requested that Dr. Iyer forward “[a]ll
current office and/or chart notes, along with any objective documentation you may
have including labs, blood work, x-rays, MRI results and the results of any other
diagnostic tests for the period of May 2001 to present.”
KNS sent Dr. Iyer a letter dated September 24, 2002, requesting medical
records beginning June 2002 and requesting that he fill out certain forms relating to
Wangenstein’s disability. On November 7, 2002, KNS again requested the above
materials from Dr. Iyer. KNS sent a similar letter to Wangenstein, also dated
November 7, 2002, requesting that she provide “ongoing proof of [her] disability”
and stated that KNS needed forms completed by Dr. Iyer as well as all current
“office and/or chart notes, MRI results, x-rays, operative reports and the results of
any diagnostic tests for the period of treatment June 2002 to present.” The letters
warned that failure to submit the requested materials by December 7, 2002 would
result in termination of benefits without further notice.
In November 2002, Dr. Iyer responded, indicating that Wangenstein had
6
cervical spondylosis with no chance of improvement and listing a number of work
restrictions, including: no sitting, standing, or walking for long periods, no
reaching, no lifting, carrying, pushing or pulling, no bending, and no repetitive
movements. According to Dr. Iyer, in a typical 8-hour work day, Wangenstein
could sit for no more than one hour with rest, could stand no more than one hour
with rest and could walk no more than one hour with rest. Dr. Iyer concluded that
Wangenstein could not work at all.
On December 13, 2002, Dr. Goldberg conducted a second review of
Wangenstein’s file, concluding that “no objective clinical findings” supported
Wangenstein’s “inability to work, either at her own sedentary job or at any
occupation.” He further concluded that “there is nothing to suggest that she has
restrictions of [sic] limitations.” Dr. Goldberg suggested that “a more detailed
neurological exam” and “imaging studies of the cervical spine” would be helpful in
evaluating Wangenstein’s claim in the future. On that basis, KNS informed
Wangenstein that “the records do not document that you are disabled” under the
“any occupation” clause. KNS requested that Wangenstein provide additional
documentation, which could “include, but would not be limited to a detailed
neurological exam and imaging studies of the cervical spine” by February 28, 2003
if she wished to continue receiving benefits.
7
On March 6, 2003, Dr. Vaughn Cohan, another neurologist, completed a
second Peer Review. Dr. Cohan reviewed a copy of Dr. Goldberg’s report, forms
and medical records provided by Dr. Iyer, a May 2001 LTD Questionnaire
completed by Wangenstein and additional medical documentation “recently
received by claimant including letter dated 2/4/03, by Dr. Iyer and MRI dated
2/5/01.” Dr. Cohan determined that the record failed to support functional
impairment that precluded work. He wrote that “Dr. Iyer supplies no objective
documentation to support his opinions regarding work functionality and the
restrictions and limitations listed . . .” Dr. Cohan also suggested additional
information that would be relevant in evaluating Wangenstein’s claim, including:
(1) “a detailed electrodiagnostic evaluation including EMG and nerve conduction
testing”; (2) “a detailed report from board certified neurologist and board certified
orthopedist including detailed neurologic physical examination findings and
detailed orthopedic/mechanical physical examination findings”; (3) “if previously
performed, the results of any cervical myelography and postmyelography CT scan
studies”; and (4) “a Functional Capacity Evaluation and/or Independent Medical
Evaluation.”
By letter dated May 1, 2003, KNS denied Wangenstein LTD benefits, stating
that Dr. Iyer’s findings were unsupported by medical data. KNS conducted a wage
8
survey and determined that she was capable of the following occupations based on
physical capacity, education and work history: Customer Service Representative,
Mortgage Clerk and Teller.
Wangenstein appealed the denial, and in a May 13, 2003 letter, Dr. Iyer
wrote that Wangenstein “has intractable cervical facet syndrome” and suffers from
migraines. He explained that a clinical examination, MRI of the brain, and EEG
would be useless because they would not show evidence of migraines. Dr. Iyer
stated that she had provided “enough information on the cervical MRI regarding
cervicogenic headaches for cervical facet syndrome” and that, with respect to the
migraines, “there is no diagnostic tool, other than the patient’s history and the
patient’s affect during the episodes of migraines” and that no other documentation
could be provided. Dr. Iyer further opined that if Wangenstein takes a job, “she
will be calling in sick because of the migraines. Her work hours will be very
unpredictable. She will not be able to talk to the people in customer service
because any noise or tension, etc. trigger migraines. . . .”
In June, KNS had Drs. Robert Ennis and Eddie Sassoon perform additional
peer reviews. Dr. Ennis, an orthopedic surgeon, reviewed Wangenstein’s file and
reached the same conclusion as Drs. Cohan and Goldberg, stating that “[d]ue to the
lack of objective documentation at the present time it is not possible to make a
9
determination that she is disabled from performing any occupation.” Dr. Ennis
also repeated Dr. Cohan’s suggestions regarding additional tests and
documentation that would be helpful in evaluating Wangenstein’s disability claim.
Dr. Sassoon, a specialist in Physical Medicine and Rehabilitation, noted that
the detailed electrodiagnostic evaluation and myelographic studies recommended
by Dr. Cohan had not been provided. Dr. Sassoon further stated that “the records
obtained essentially reveal no evidence of acute neurologic or orthopedic deficits
which would preclude sedentary level activity on at least a part time basis.”
Accordingly, he concluded that Wangenstein was not disabled from performing
any occupation, and KNS again denied Wangenstein’s appeal.
Wangenstein challenged the denial in district court, and the parties
ultimately filed cross motions for summary judgment. The court granted summary
judgment in favor of KNS, concluding that KNS was not wrong in denying
Wangenstein’s benefits claim. The court found that although the administrator may
have ignored the peer review physicians’ requests for additional neurological tests
and although Goldberg was not provided with the results of Wangenstein’s MRI,
Wangenstein failed to respond to the administrator’s repeated requests for
objective medical documentation. The court stated that although Wangenstein had
seen numerous neurologists apart from Iyer, she never submitted any more specific
10
tests regarding her cervical spine pain and mobility, justifying the denial of her
LTD benefits. Wangenstein now appeals.
II. Standard of Review
We review a district court’s ruling on a motion for summary judgment in an
ERISA case de novo, applying the same legal standards that governed the district
court’s disposition. Williams v. BellSouth Telecomms., Inc., 373 F.3d 1132, 1134
(11th Cir. 2004).
We apply the following procedure in reviewing denials of benefits under
ERISA plans:
(1) Apply the de novo standard to determine whether the claim
administrator’s benefits-denial decision is ‘wrong’ (i.e., the court
disagrees with the administrator’s decision); if it is not, then end the
inquiry and affirm the decision.
(2) If the administrator’s decision in fact is “de novo wrong,” then
determine whether he was vested with discretion in reviewing claims;
if not, end judicial inquiry and reverse the decision.
(3) If the administrator’s decision is “de novo wrong” and he was
vested with discretion in reviewing claims, then determine whether
“reasonable” grounds supported it (hence, review his decision under
the more deferential arbitrary and capricious standard).
(4) If no reasonable grounds exist, then end the inquiry and reverse
the administrator’s decision; if reasonable grounds do exist, then
determine if he operated under a conflict of interest.
(5) If there is no conflict, then end the inquiry and affirm the decision.
(6) If there is a conflict of interest, then apply heightened arbitrary and
capricious review to the decision to affirm or deny it.
Id. at 1137-38. We follow this approach in reviewing both an administrator’s
11
interpretation of a plan and its factual determinations. Id. at 1134 n.3. Here, the
parties agree that KNS was vested with discretion and that, therefore, the arbitrary
and capricious standard applies here in some form. They disagree, however,
regarding whether the heightened standard applies.
Wangenstein argues that KNS is conflicted because, although LTD benefits
are not paid out of its own assets, they are paid out of the assets of its parent
corporation, Lumbermens. Wangenstein contends that KNS has an interest in
conserving its parent’s assets. She relies on Brown v. BellSouth Telecomms. Inc.,
73 F. Supp. 2d 1308 (M.D. Fla. 1999), in which the court applied the heightened
arbitrary and capricious standard because the employer both made the claims
decisions and paid LTD benefits directly out of its operating expenses. Id. at 1324.
The employer was thus clearly conflicted with respect to LTD benefits. The
Brown court proceeds to discuss, however, that disability pension benefits were
paid out of a separate trust established by the employer’s parent corporation.
Although the trust was funded through periodic contributions by the subsidiaries,
including the defendant, the parent corporation apparently owned the trust. On that
basis, the court concluded that the employer, which also administered the plan,
“would feel duty bound to conserve its corporate parents’ funds.” Id. at 1324.
In contrast to the situation in Brown, here LTD benefits are paid out of
12
Lumbermens’ assets so that payments to Wangenstein would not have any direct
impact on KNS’s operating funds. Even where the party making the benefits
determination is the wholly-owned subsidiary of the insurance company
responsible for paying the claims, the heightened arbitrary and capricious standard
would not apply unless “the plan-payout funding source retains ultimate control
over the pay-out decision.” Williams, 373 F.3d at 1136; Buce v. Allianz Life Ins.
Co., 247 F.3d 1133, 1141 (11th Cir. 2001) (holding that the heightened arbitrary
and capricious standard applies where a plan administrator, despite delegating its
claim processing duties to a third party, exercises the “ultimate authority to
determine for itself whether payments should be made out of its own assets.”).
Here, not only is there no allegation that Lumbermens retained ultimate
control over the decision to pay benefits, there is no allegation that Lumbermens
even communicated with KNS regarding Wangenstein’s claim. Moreover, unlike
the situation in Buce, here there is no allegation or evidence suggesting that KNS
was dependant on the patronage of Lumbermens. See id. at 1141. Where, as here,
the party that must pay the claims does not retain ultimate control over the benefits
determination, the heightened arbitrary and capricious standard is inapplicable.
This is the case even where, as here, the company making the benefits
determination is a wholly-owned subsidiary of the insurance company that must
13
pay the claim.
III. Discussion
In accordance with the procedure outlined above, we first consider whether
KNS was wrong in determining that Wangenstein is not disabled from performing
any gainful occupation.
Wangenstein argues that the district court erred in concluding that she was
not disabled from performing any occupation and that the court’s error derives
from its focus on her orthopedic conditions and its failure to appreciate that her
claimed disabling condition was solely chronic migraine headaches. Wangenstein
contends that she could not have provided objective evidence of her chronic
migraines because migraines are diagnosed exclusively via a patient’s subjective
complaints. Wangenstein relies primarily on Mitchell v. Eastman Kodak Co., 113
F.3d 433 (3d Cir. 1997), in which the Third Circuit held that it was arbitrary and
capricious for an administrator to deny LTD benefits because the claimant did not
provide objective medical evidence of chronic fatigue syndrome. Id. at 442. The
Mitchell court held that the administrator did not identify any more objective
evidence that the claimant could have submitted in support of his disability claim.
Wangenstein argues that, like the insurance company in Mitchell, Lumbermens is
trying to add a “clinical evidence of etiology” requirement for LTD benefits not
14
found in the text of the plan.
Under ERISA, the plaintiff has the burden of proving her entitlement to
contractual benefits. See Horton v. Reliance Standard Life Ins. Co., 141 F.3d 1038,
1040 (11th Cir. 1998). In other words, Wangenstein bears the burden of proving
that she is “so prevented from performing the Essential Functions of any Gainful
Occupation that [her] training, education and experience would allow [her] to
perform.”
Wangenstein argues that she met her burden because: (1) Dr. Iyer repeatedly
and unequivocally stated that Wangenstein is completely disabled due to her
migraines; and (2) Dr. Patel, who performed an IME on Wangenstein at
Lumbermens’ request, made findings that comport with those of Dr. Iyer,
specifically that Wangenstein was “partially disabled, and may be able to perform
part-time work as tolerated.” Furthermore, Wangenstein contends that, as Dr. Iyer
stated in a May 2003 letter to KNS, “there is no diagnostic tool, other than the
patient’s history and the patient’s affect during the episodes of migraines, and there
is no other documentation we can provide regarding the migraine headaches.”
Drs. Iyer and Patel, however, were not the only specialists to evaluate
Wangenstein’s condition. Four other doctors performed paper reviews of
Wangenstein’s file, and all concluded that the evidence did not establish that
15
Wangenstein was disabled from performing any occupation.
Dr. Goldberg twice reviewed her file, although he was not provided with
Wangenstein’s MRI results in either instance. Following his second review, Dr.
Goldberg concluded that, “[b]ased on the information presented by Dr. Iyer, which
do not include any x-rays or MRI scans of the cervical spine to document
spondylitis disease, there are no objective clinical findings that would support an
inability to work, either at her own sedentary job or at any occupation.” (Emphasis
added.)
Dr. Cohan completed a peer review on March 11, 2003, in which he
recounted the work restrictions listed by Dr. Iyer and then stated that “Dr. Iyer
supplies no objective documentation to support his opinions regarding work
functionality and the restrictions and limitations listed . . .” (Emphasis added.) Dr.
Cohan found that although Dr. Iyer discussed Wangenstein’s history and her
imaging study results, she “supplie[d] no objective data to support” her opinion
that Wangenstein is permanently and totally disabled. (Emphasis added.) Dr.
Cohan noted that the detailed neurological physical examination report
recommended by Dr. Goldberg was not supplied but that, in any case, “upon
retrospective review of the claimant’s physical examination findings as recorded
over a period of several years by Dr. Iyer, there does not appear to be any evidence
16
of significant neurologic dysfunction.” He concluded that “the medical
documentation submitted for review fails to demonstrate objective evidence of a
functional impairment of sufficient severity and intensity as to preclude the
claimant from returning to any occupation” and that “[r]estrictions and limitations
would be those consistent with sedentary work . . .” (Emphasis added.)
Dr. Ennis completed a peer review on June 25, 2003, in which he reviewed
the results of an MRI of Wangenstein’s brain, an electroencephalogram, an MRI of
the cervical spine and her medical records and concluded that “[t]here is no reflex,
sensory or motor change, muscle weakness or specific documentation of functional
limitation that would prevent the claimant from working at any occupation at the
present time.” Dr. Ennis noted that additional documentation would be helpful,
including: a complete physical examination by a Board Certified neurologist and
orthopedist detailing neurological and physical findings, a current electrodiagnostic
study and nerve conduction testing, and a Functional Capacity Evaluation.
Finally, Dr. Sassoon completed a peer review on June 26, 2003, in which he
noted that the record lacked the following evidence: a Functional Capacity
Evaluation; a detailed electrodiagnostic evaluation; and myelographic studies to
help identify the pain generator. Dr. Sassoon concluded that “the records obtained
essentially reveal no evidence of acute neurological or orthopedic deficits which
17
would preclude sedentary level activity on at least a part time basis” and that
Wangenstein is therefore not disabled from performing any occupation.
Thus, the doctors who evaluated Wangenstein disagreed regarding what
weight to accord the subjective evidence of her disability. Wangenstein argues that
the administrator should have credited the opinions of her treating physician and
Dr. Patel, the only two doctors who actually examined her, rather than the opinions
of the four doctors who reviewed her medical records. Wangenstein also notes
that neither Dr. Goldberg nor Dr. Cohan appears to have reviewed the report of Dr.
Patel’s IME when conducting their peer reviews.5 However, Dr. Patel’s IME
report is listed as among the documents considered by Drs. Ennis and Sassoon in
their peer reviews.
In Black & Decker Disability Plan v. Nord, 538 U.S. 822 (2003), the
Supreme Court instructed 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. On the other hand, although administrators are not required to defer to a
5
Dr. Cohan does not list the IME report as being among the documents provided to him,
and he notes at the end of his evaluation that “a Functional Capacity Evaluation and/or
Independent Medical Evaluation would be relevant in further evaluation of the claim.”
18
treating physician’s opinion on disability, “[p]lan administrators, of course, may
not arbitrarily refuse to credit a claimant’s reliable evidence, including opinions of
a treating physician.” Id. Here, the administrator did not arbitrarily refuse to credit
the opinions of Drs. Iyer and Patel, but rather accorded greater weight to the
conflicting opinions of Drs. Goldberg, Cohan, Ennis and Sassoon.
Furthermore, KNS had at least one reason to accord greater weight to the
opinions of Drs. Goldberg, Cohan, Ennis and Sassoon. In his second peer review,
Dr. Goldberg noted that Dr. Iyer’s findings were somewhat equivocal in that Dr.
Iyer stated, in a single paragraph, that Wangenstein had both “decreased range of
motion of her neck” and “good range of motion of the cervical spine.”
Furthermore, as the district court noted, Wangenstein failed to provide the
detailed neurological examination reports that KNS repeatedly requested. The
record reveals that Wangenstein saw numerous neurologists in addition to the peer
reviewers mentioned above, yet she failed to submit the requested reports.
Wangenstein’s contention that the detailed reports would not have affected the
migraines diagnosis does not excuse her failure to submit them to KNS.
In any event, even if we were to conclude that KNS was wrong in finding
that Wangenstein was not disabled from performing the duties of any occupation,
that would not end our inquiry. Instead, we would next consider whether KNS’s
19
decision was arbitrary and capricious. “A decision to deny benefits is arbitrary and
capricious if no reasonable basis exists for the decision.” Shannon v. Jack Eckerd
Corp., 113 F.3d 208, 210 (11th Cir. 1997).
First, Wangenstein’s heavy reliance on Mitchell is misplaced. In that case,
the Third Circuit noted that “[a]lthough in some contexts it may not be arbitrary
and capricious to require clinical evidence of the etiology of allegedly disabling
symptoms in order to verify that there is no malingering, we conclude that it was
arbitrary and capricious to require such evidence in the context of this Plan and
CFS.” 113 F.3d at 442-43. Thus, the Mitchell holding is more narrow and fact-
based than Wangenstein asserts. Moreover, the Mitchell court noted that, in that
case, the plan administrator was presented with “undisputed evidence” showing
that the applicant could not sustain regular paid employment because he suffered
from chronic fatigue syndrome.” Id. at 440. And in rejecting the plaintiff’s
benefits claim, the administrator issued only “terse” letters, merely stating that the
plaintiff had failed to tender “objective medical evidence” that he was disabled
under the plan’s terms. Id. at 442. In contrast, here KNS did not simply ignore the
opinions of Drs. Iyer and Patel, but rather placed greater reliance on the opinions of
its peer reviewers, who generally cited a lack of objective evidence that
Wangenstein was disabled from performing the duties of any occupation in
20
concluding that she had not established her entitlement to benefits.
Furthermore, given that KNS has discretion in terms of what it considers
adequate “proof” of continuing disability, we cannot say that it is unreasonable for
KNS to demand objective evidence. Thus, we hold that KNS was not arbitrary and
capricious in requiring objective evidence of disability and crediting the opinions
of the four peer review physicians over those of Drs. Iyer and Patel.
Finally, Wangenstein argues that the Employability Assessment Report was
in error in identifying full-time jobs that Wangenstein could perform, as the record
does not demonstrate that she is capable of full-time employment. Dr. Goldberg,
however, found that Wangenstein had no work restrictions or limitations, and Dr.
Cohan only listed that she should not be required to perform excessive overhead
activities. Although this court may have concluded otherwise on the basis of
reports by Drs. Iyer and Patel that, at most, Wangenstein was capable of part-time
employment, we cannot say that KNS was arbitrary and capricious in finding that
she was capable of performing the duties of a full-time sedentary occupation.
Accordingly, we conclude that KNS was not arbitrary and capricious in denying
Wangenstein’s claim for LTD benefits. We AFFIRM the district court.
21
MIDDLEBROOKS, District Judge, concurring in part and dissenting in part:
I concur in Part II of the majority’s opinion. I also agree with the majority’s
analysis and conclusion insofar as Wangenstein’s objectively verifiable medical
conditions – cervical spondylosis and myelopathy – are concerned. I dissent from
Parts I and III of the opinion, however, because I believe that KNS unreasonably
dismissed or otherwise failed to evaluate Wangenstein’s claim of disability due to
migraine1 solely on the basis that she submitted no objective evidence to prove it.
In her November 16, 1999 application for disability benefits, Wangenstein
described her “illness/injury” as including both objectively verifiable conditions,
such as degenerative disc disease, and the subjective condition of “migraine.”
KNS awarded Wangenstein “own occupation” benefits only after an IME
concluded that she was partially disabled due objectively verifiable conditions of
which she was complaining.2 Nevertheless, the record shows that Wangenstein
sought and received treatment for migraines at the same time, and continued to do
so throughout KNS’ evaluation of her eligibility for benefits.
Monthly records reflect that Wangenstein regularly complained of recurring
1
Migraines are “episodic, disabling headaches that may recur over years” and can be
debilitating. Sharon Parmet, Headaches, 295 J. Am. Med. Ass’n 2320 (May 17, 2006). They are
often associated with irritability, nausea, vomiting, constipation or diarrhea, and sensitivity to
light or sound. Dorland’s Illustrated Medical Dictionary 1042 (28th ed. 1994).
2
Dr. Patel noted cervical and lumbosacral spasm, and a limited range of motion.
22
and disabling migraines, including symptoms of severe pain, vomiting, and
sensitivity to light and sound.3 Wangenstein’s migraines were at times her chief
complaint, sometimes appeared to aggravate her other medical problems, and from
time to time seemed “under control” with medication.
On January 11, 2000, Dr. Iyer wrote that Wangenstein reported having one
to two migraines per week that are “controllable,” 4 although, even with medication,
“when the migraine comes, she cannot handle it . . . she is throwing up . . . she is
overall affected by pain in the right side of her face . . . [she] is unable to function
and take care of her daily activities.” As of April 19, 2000, Dr. Iyer noted that
Wangenstein continued to report near-daily headaches, and that the injections she
received from him for the pain only “tend[ed] to keep her away from the
emergency room.” On July 11, 2000, Wangenstein reported that following
treatment she would do well for about a week or so. On July 18, 2000,
Wangenstein returned to the doctor’s office, stating that she was anxious and could
not even sit because of a migraine. In addition to severe pain, Wangenstein
3
Women who, like Wangenstein, are between the ages of 50 and 64 and suffer from
migraines average the highest number of bedridden days per year and the greatest length of bed
rest for migraines compared to other groups. X. Henry Hu, et al., Burden of Migraine in the
United States, 159 Arch. Intern. Med. 813 (Apr. 26, 1999).
4
Although the majority read this note as stating that the medication actually controlled
the migraine headaches, I find Dr. Iyer’s use of the word “controllable” to reflect a statement of
opinion as to the potential of the medication’s efficacy.
23
reported that she was also experiencing vomiting and shaking.
On July 25, 2000, a year after Wangenstein began disability leave, Dr. Iyer
wrote to KNS that Wangenstein’s “right hemicranial, right opthalmic migraine,”
which the doctor described as “persistent and permanent,” was complicating her
other medical conditions. He concluded that she was not capable of working, and
was in need of chronic pain management and oral medication.
Dr. Iyer treated Wangenstein’s migraines with an array of pain medication
administered orally and by injection. Her response to the treatments varied. On
March 19, 2001, Wangenstein reported that she was on the fourth day of a
migraine attack, and was able to get over the “crisis” only after taking Imitrex both
orally and by injection. In a May 8, 2001 KNS questionnaire, Wangenstein wrote:
“Because of constant pain in face, eye and head, vomiting and hot and cold sweats
from pain, I am constantly in bed all day, I only go out of the house when I have a
doctor’s appointment.” At what may have been her highest point, in July 2002
Wangenstein reported that “she had not had any headaches for at least four days,”
and that this was “the best she ha[d] ever felt.” Wangenstein and her doctor
discussed reducing her narcotic intake and treating her with methadone, but
Wangenstein hesitated because she feared that she would be in “horrendous pain.”
In September 2002, after an attempt to modify the medicinal regimen,
24
Wangenstein found that she could not tolerate the methadone. She reported that
“the pain is constant. She has been vomiting and nauseated for the last five days.
The Imitrex is not helping.” Wangenstein also complained that she could not sleep
because the pain would wake her up. At that point, in addition to other
medications, she and her doctor discussed “[t]he possibility of hospitalization for
intractable migraines[.]”
In October 2002, Wangenstein reported that although the current medication
and treatment plan were helping, she knew she would have to deal with the
inability to control migraines all of her life. In November 2002, Wangenstein
again discussed chronic headaches and migraine. Dr. Iyer noted that although
Wangenstein “controls the migraines with Imitrex shots . . . [t]here is no way she
can reduce any pain medication. She is not getting any relief.” Wangenstein
described feeling “normal” by 6:00 PM, “but [that] all morning [she] is miserable
because of the ongoing headaches.” Wangenstein reported that “by the third day of
the attack, she is okay, but she still has daily headaches.”
On February 4, 2003, Dr. Iyer again wrote to KNS that Wangenstein’s
chronic, intractable and debilitating migraines, which she had been struggling for
years to control, rendered her totally disabled. Dr. Iyer wrote that she would
require regular treatment and care just to be able to take care of personal affairs.
25
Even when Wangenstein stated, during an April 2003 employability
assessment, that she could perform basic activities of “daily living and personal
care,” she described that “her typical day is to stay in bed all day long due to her
constant pain in her face, eyes and head,” and that she only left the house when
necessary to go to the doctor.
On May 1, 2003 Dr. Iyer wrote to KNS that Wangenstein’s migraines were
debilitating and intractable. Dr. Iyer stated that he recommended no employment
because Wangenstein’s condition is debilitating, chronic, and progressively getting
worse.
Although, as the majority has shown, KNS thoroughly reviewed
Wangenstein’s claim of cervical spondylosis and myelopathy, KNS did not fairly
consider all relevant evidence regarding Wangenstein’s claim of disability due to
migraine. Instead it disregarded symptoms and medical evidence that it found to
be purely “subjective,” including the extensive documentation of Wangenstein’s
complaints of – and treatment for – disabling migraine. KNS’ Peer Reviewers
based their conclusions as to whether Wangenstein was disabled on the sufficiency
of the objective data.5 While in its benefits denial letter KNS devoted several
5
That KNS’ Peer Reviewers may have briefly acknowledged Wangenstein’s migraine
complaints and diagnosis does not constitute fair consideration of that evidence, given their
insistence on objective documentation to establish her disability.
26
paragraphs to explaining how it found insufficient objective evidence of a
functional impairment related to Wangenstein’s cervical spine condition, it only
mentioned Wangenstein’s “anti-migraine therapy” in passing. KNS’ denial letter
and subsequent correspondence affirming the denial of benefits did not discuss the
evidence regarding her migraine symptoms at all.6
I disagree with the majority’s conclusion that KNS was entitled to dismiss
evidence of Wangenstein’s disabling migraines solely on the basis that it was
subjective, and to insist on objective evidence instead. As counsel for
Lumbermens acknowledged at oral argument, no language in the Plan requires a
claimant to furnish objective evidence to prove a claim of disability.7 Rather, it
only states that a claimant must provide “proof that you are unable to work due to
sickness or injury,” and that the proof must be “written.” Nowhere in the Plan is
“proof” defined to exclude evidence based on subjective reports. Other than with
regard to conditions which fall under the rubric of mental health, the Plan does not
6
Compare Ellis v. Metropolitan Life Ins. Co., 126 F.3d 228 (4th Cir. 1997)(affirming
denial of benefits where medical consultants considered both objective and subjective evidence,
and concluded claimant had sufficient functional capacity to work after assuming the accuracy of
her self-reported symptoms and certain possible diagnoses which could not be verified). Note
that in Ellis, the claimant’s own physicians’ reports were conflicting, and one of her examiners
had suggested the possibility that she was embellishing her symptoms.
7
Compare Boone v. Liberty Life Assurance Co. of Boston, 161 Fed.Appx. 469, 472 (6th
Cir. 2005)(administrator entitled not to credit doctor’s conclusions that claimant was disabled
where those conclusions were not supported by objective medical evidence and plan defined
proof of disability as requiring “objective medical evidence”). See also Frost v. Intel Corp., 37
Fed.Appx. 295 (9th Cir. 2002).
27
limit or exclude benefits for primarily subjective conditions. Dr. Iyer’s statements
that additional testing would be “normal” because there is no objective diagnostic
tool for migraines, and that there was no other documentation he could have
provided to prove that condition, are uncontested in the record.8
It is worth noting that Wangenstein’s claim of debilitating migraines is not
controverted in this record. Although KNS’ peer reviewers found no objective
medical evidence to support her claim of disability, none of them concluded that
her reported symptoms were inconsistent with migraine, or that her migraine
diagnosis was inconsistent with her other diagnoses. There is no video
surveillance or other evidence contradicting Wangenstein’s claims as to her
limitations due to recurring migraine attacks and related symptoms. No examining
physician has opined that she is a malingerer.9
8
I disagree with the majority’s assessment that Wangenstein was not excused from
providing the additional medical documentation KNS’ peer reviewers sought. Although the Plan
authorizes the administrator to require “any other proof we reasonably believe is necessary to
evaluate your claim,” it would not be reasonable to require a claimant to undergo, at her own
expense, additional medical testing unrelated to the claimed disabling condition, where, as here,
there is unrebutted evidence that additional testing would not prove the disability.
9
I find Dr. Goldberg’s statement that “it is difficult to separate what might be organic
and what might be related to her attempts to get on disability for her ongoing subjective
symptoms” to reflect his rejection of subjective evidence as adequate to establish disability. Dr.
Goldberg, who only reviewed the paper record, did not have the benefit of examining
Wangenstein in order to make any sort of credibility determination as to her subjective
complaints. See, e.g., Smith v. Continental Casualty Co., 450 F.3d 253 (6th Cir. 2006)(finding
that credibility determination regarding subjective complaints without the benefit of a physical
exam supported a finding that benefits determination was arbitrary).
28
Unlike the majority, I believe that the central analysis in Mitchell is
instructive here. In Mitchell, the Third Circuit held that it was arbitrary and
capricious for an administrator to deny benefits for failure to submit “objective
evidence,” where the undisputed evidence showed that Mitchell suffered from
chronic fatigue syndrome that precluded him from working; the plan only required
Mitchell to show he was disabled, not to supply clinical evidence of the disease;
and there was no more objective evidence Mitchell could have submitted given the
absence of any “dipstick” test in the medical community for the syndrome, even
though it is universally recognized as a severe disability. See also Cook v. Liberty
Life Assurance Co. of Boston, 320 F.3d 11, 21 (1st Cir. 2003)(given that chronic
fatigue syndrome was not verifiable by laboratory findings, it was not reasonable
for administrator to require objective evidence of the condition where no contrary
medical evidence was in the record).
Here, the evidence pertaining to Wangenstein’s claim of disability due to
migraine was not controverted, but simply dismissed or disregarded because it was
“subjective.” Dr. Iyer’s statement that no objective diagnostic tool existed for the
migraine condition was not rebutted. KNS’ Plan did not require objective proof or
otherwise exclude benefits for subjective conditions. I believe that KNS’ denial of
29
benefits under these circumstances was arbitrary and capricious.10 See also Van
Cleave v. United States, 70 Fed.Cl. 674 (2006)(military board’s finding that
claimant’s subjective reports were insufficient to establish migraine condition for
purposes of disability rating was unreasonable where claimant was diagnosed with
and treated for migraine, and record did not show any objective test for migraine).
Because KNS failed to consider all relevant evidence and unreasonably
construed the Plan as to require objective evidence of a subjective condition, I
would reverse. I would not, however, substitute my judgment for that of the
administrator to conclude that Wangenstein has proven her claim based on this
record. Rather, I would remand the matter to KNS for consideration all relevant
evidence regarding Wangenstein’s claim of disability due to migraine. See, e.g.,
Rekstad v. U.S. Bancorp, 2006 WL 1689217 at * 5-6 (10th Cir. 2006)(remanding
benefits denial after finding that administrator failed to examine and give full and
fair consideration to material portion of the relevant evidence).
10
Wangenstein’s case is perhaps more complex than Mitchell’s, in a sense, because she
also suffers from objectively verifiable conditions, the evidence of which KNS reasonably
concluded did not support a finding of disability.
30