Gary Cross v. Metropolitan Life Insurance Co. , 292 F. App'x 888 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 16, 2008
No. 07-14201 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 05-00016-CV-WLS-1
GARY CROSS,
Plaintiff-Appellee,
versus
METROPOLITAN LIFE INSURANCE COMPANY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(September 16, 2008)
Before WILSON and PRYOR, Circuit Judges, and MIDDLEBROOKS,* District
Judge.
PER CURIAM:
*
Honorable Donald M. Middlebrooks, United States District Judge for the Southern
District of Florida, sitting by designation.
Gary Cross filed this action pursuant to 29 U.S.C. § 1132(a)(1)(B) of the
Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001
et seq., to recover long-term disability benefits under Georgia Pacific’s employee
welfare plan (the “Plan”). Metropolitan Life Insurance (“MetLife”), the Plan’s
administrator, terminated Cross’s disability benefits in March of 2004. Cross sued
MetLife to recover and reinstate these benefits, and requested attorneys’ fees and
costs related to his action.
Both parties moved for summary judgment. The district court applied the
six-part analysis set forth in Williams v. BellSouth Telecomms., Inc., 373 F.3d
1132, 1137 (11th Cir. 2004) to determine the appropriate standard for reviewing
MetLife’s decision to terminate Cross’s benefits. Ultimately arriving at the
arbitrary and capricious standard of review, the district court concluded that
MetLife’s determination was not supported by reasonable grounds. Accordingly,
the court granted summary judgment for Cross. Upon careful review of the record
and the parties’ briefs, and after hearing oral argument, we affirm the district
court’s grant of summary judgment for Cross. MetLife’s decision to terminate
Cross’s benefits was not supported by reasonable grounds.
I. BACKGROUND
In 1984, Gary Cross began working for Georgia Pacific, a manufacturer and
2
marketer of tissue, packaging, paper, pulp, building products, and related
chemicals. While employed, Cross suffered from chronic back pain. In 1998, he
underwent a microdiscectomy,1 recovered, and returned to work. The pain,
however, continued, and in July of 2001, Cross stopped working. In November of
2001, Cross underwent a second surgery, an anterior discectomy and anterior
lumbar interbody fusion with titanium bone cages.2 A month later, Cross reported
that his back pain had returned, and applied for long-term disability benefits under
Georgia Pacific’s disability plan. His benefits were approved by MetLife, the
Plan’s administrator.
To be eligible for benefits under the Plan, an employee must meet the Plan’s
definition of “disabled.” During the initial twenty-four months of benefits, the
Plan defines “disabled,” in relevant part, as: due to injury or sickness, being unable
to earn more than eighty percent of one’s pre-disability earnings at “[one’s] own
occupation for any employer in your local economy.” After twenty-four months of
benefits, the Plan’s definition of “disabled” changes, in relevant part, to: being
unable to earn more than eighty percent of one’s pre-disability benefits at “any
gainful occupation for which [one is] reasonably qualified taking into account
1
A microdiscectomy involves the surgical removal of a small amount of herniated disc
material that presses on a nerve root or the spinal cord.
2
This procedure involves the replacement of a portion of herniated disc material with a
titanium implant.
3
[one’s] training, education, experience, and predisability earnings.” At the time of
his disability, Cross worked as Shift Supervisor (also referred to as a Lead
Operator Technician). According to MetLife’s review of the Dictionary of
Occupational Titles (“DOT”), Cross’s position required “light strength demand.”
The Administrative Law Judge (“ALJ”) who awarded Cross social security
benefits, however, found that under the DOT, Cross’s position required “medium
exertion.”
Cross began receiving disability benefits under the Plan in December of
2001. In August of 2003, MetLife initiated a review of Cross’s entitlement to
continued benefits, and over the next several months, it gathered evidence on
Cross’s medical status. Then, in March of 2004, MetLife terminated Cross’s
benefits, finding that Cross was “capable of light work capacity,” that his prior job
required light physical demand, and, thus, concluding that Cross was no longer
considered disabled under the Plan.
MetLife based its decision to terminate Cross’s benefits primarily on the
following evidence.
One, MetLife’s Special Investigation Unit recorded surveillance footage of
Cross at a baseball diamond coaching his son’s team. The footage shows, among
other things, Cross bending at the waist, squatting, and arranging and carrying
4
equipment. MetLife argues that this footage reveals Cross performing activities
inconsistent with his stated limitations.
Two, Cross’s treating neurosurgeon, Dr. Javed, stated that Cross’s MRI did
not reveal any disc herniation and that “the levels above the disc essentially look
normal.” He concluded that Cross had reached maximal medical improvement
(there was nothing further, surgically, that could be done to improve his condition)
and referred Cross to a pain management specialist, Dr. Lee.
Three, MetLife ordered an independent medical examination (“IME”) of
Cross by Dr. Peach. Dr. Peach examined Cross, and reviewed his medical records
and the video surveillance. He stated that Cross was uncooperative during the
examination and therefore he was unable to validly estimate Cross’s functional
capacity. To that end, Dr. Peach recommended that Cross undergo a Functional
Capacity Evaluation (“FCE”) “to determine more objectively any valid functional
limitations.” Dr. Peach did, however, indicate that Cross was magnifying his
symptoms, and he noted that the surveillance footage was “totally inconsistent with
limitations claimed by the patient.”
Four, Dr. Greenhood, another independent physician, reviewed Cross’s
medical records and spoke with Cross’s treating physician, Dr. Lee. Dr.
Greenhood did not examine Cross. However, from the information reviewed, Dr.
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Greenhood inferred that Cross’s “functional capacity is not severely limited” and
that he is “capable of at least light work.”
Five, Dr. Gosline completed a psychiatric review of Cross. Dr. Gosline
determined that Cross’s prior psychiatric treatment was related to a single episode
of hospitalization due to Cross’s narcotic dependence and withdrawal, rather than
any ongoing disabling psychiatric condition. He concluded that Cross is not
limited in his work capacity by any disabling psychiatric condition.
Six, Dr. Ito, an independent rehabilitation specialist, reviewed Cross’s
medical records and the surveillance footage. Dr. Ito opined that Cross could
tolerate sedentary to light activity, provided that certain accommodations were in
place. Dr. Ito also stated that, despite Cross’s history of depression, dysthymia,
anxiety, and pain, Cross is able to participate in activities he is motivated to pursue,
as evidenced by his ability to coach a baseball team.
The following evidence, on the other hand, supports Cross’s claim that he is
“disabled” under the Plan.
One, Cross has an extensive record of medical treatment, back disorders, and
pain. He underwent two lumbar surgeries, and a titanium implant was fused to his
bone. After surgery, he received a number of epidural injections, and has been on
an extensive regimen of pain, anti-anxiety, and anti-depression medication for
6
several years, including Elavil, Methadone, MS-Contin, Avinza, Effexor, Mellaril,
Vicodin, Zoloft, Soma, and Gabitril. A post-surgery, cervical spine x-ray and MRI
of Cross revealed a bulging disc and spondylosis (spinal deformity). Over the
years, he has been diagnosed with intervertebral disc disorder, myelopathy (spine
disorder) and radiculitis (pain radiating from spine). Since leaving his position at
Georgia Pacific, he has seen numerous doctors and has consistently sought
treatment for his well-documented history of pain.
Two, Cross’s neurosurgeon, Dr. Javed, noted that Cross continued to
experience pain after his surgeries. He recommended that Cross undergo an FCE
to better determine his limitations. He stated his belief that Cross would be
“unable to return to his present job” but that he may be able to return to “light-
duty,” depending on the results of the FCE.
Three, Cross’s pain management specialist, Dr. Lee, diagnosed Cross with
epidural fibrosis (the formation of scar tissue) and failed back syndrome, and stated
that he has “ongoing nerve damage.” Dr. Lee indicated that during an eight-hour
day, Cross could only sit one hour, stand one hour, and walk one hour, could only
occasionally lift eleven to twenty pounds, and could only carry up to ten pounds.
He added that Cross should never climb or crawl and must lie down every two
hours and elevate his legs. Dr. Lee noted that when Cross coaches his son’s
7
baseball team he simultaneously increases his narcotic medication, indicating that,
while he is physically able to perform the activity, it causes him an increase in
pain. Dr. Lee opined that Cross “would benefit from continued psychiatric
support, chronic pain management and spinal cord stimulator therapy.” He
concluded that Cross is currently disabled from “performing any gainful
employment” and “will likely remain disabled for the remainder of his life.”
Four, Cross was awarded social security disability benefits in March of
2003. While different standards apply to the ultimate award of benefits in the
social security context, the ALJ determined that Cross suffered from “severe”
impairments and “cannot perform on a sustained basis, even at the ‘sedentary’
level.”
Five, Cross has a documented history of depression and anxiety, and has
been prescribed anti-depressant and anti-anxiety medication. He was admitted to a
hospital due to suicidal ideation, depression, narcotic detox, and history of back
pain. Dr. Morgan, a psychiatrist, noted that Cross suffers from “major depression
[combined with] depression secondary to long-term narcotic use and chronic
illness with pain.” Dr. Lee has also noted Cross’s issues with depression and
anxiety, finding that Cross’s “depression scale is quite high” and that his
depression is “exacerbating his pain.” He referred Cross to a psychiatrist, Dr.
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Yost.
The district court carefully considered all the evidence before it. It found
that, while there was some evidence to question Cross’s status as disabled, MetLife
gave unreasonable weight to its experts’ opinions in the face of Cross’s
contradictory evidence. Moreover, the court noted that while MetLife could have
ordered an FCE to more adequately determine Cross’s specific limitations, it did
not. Lastly, the court found that MetLife failed to provide any evidence of exactly
what job duties Cross could perform. Accordingly, the court concluded that
MetLife’s decision to terminate Cross’s benefits was arbitrary and capricious, and
granted summary judgment for Cross.
II. STANDARD OF REVIEW
We review a district court’s grant of summary judgment in an ERISA action
de novo, applying the same legal standards that governed the district court’s
decision. Green v. Holland, 480 F.3d 1216, 1222 (11th Cir. 2007). One of three
standards governs our review of a plan administrator’s decision: (1) if the plan
does not grant discretion to the administrator in deciding claims, we review the
administrator’s decision de novo; (2) if the plan grants the administrator discretion
in deciding claims and the administrator does not suffer from a conflict of interest,
arbitrary and capricious review applies; and (3) if the administrator has discretion,
9
but suffers from a conflict of interest, we review its decision under a heightened
arbitrary and capricious standard. See Gilley v. Monsanto Co., 490 F.3d 848, 856
(11th Cir. 2007); HCA Health Servs. of Ga., Inc. v. Employers Health Ins. Co., 240
F.3d 982, 993 (11th Cir. 2001).3 It is uncontested that MetLife has discretion in
deciding claims under the Plan. It is also uncontested that MetLife does not suffer
from a conflict of interest. Thus, as the district court found, and as both parties
agree, we review MetLife’s decision to terminate Cross’s disability benefits under
the arbitrary and capricious standard. Under that standard, we must determine
whether there was a reasonable basis for MetLife’s decision, based on the facts as
known to MetLife at the time the decision was made. Glazer v. Reliance Standard
Life Ins. Co., 524 F.3d 1241, 1246 (11th Cir. 2008); Jett v. Blue Cross & Blue
Shield of Ala., 890 F.2d 1137, 1139 (11th Cir. 1989).
III. DISCUSSION
MetLife’s decision to terminate Cross’s disability benefits was not supported
by reasonable grounds. The surveillance footage recorded by MetLife’s Special
Investigation Unit provided a mere snapshot of Cross’s activities throughout the
3
Recently, in Metropolitan Life Ins. Co. v. Glenn, 128 S. Ct. 2343 (2008), in which a
participant filed suit under ERISA to contest a plan administrator’s termination of long-term
disability benefits, the Supreme Court cautioned against the use of special rules based upon a
conflict of interest: “Neither do we believe it necessary or desirable for courts to create special
burden-of-proof rules, or other special procedural or evidentiary rules, focused narrowly upon
the evaluator/payor conflict.” Id. at 2351. This issue, however, is not before us. Therefore, we
decline to say more.
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day. The surveillance spanned five days, but only resulted in approximately two
hours of video. While the footage does not show that Cross’s physical abilities
were limited, it also does not show Cross exerting himself. At most, Cross is seen
occasionally bending at the waist, squatting, and carrying equipment of an
unknown weight. What MetLife characterizes as Cross “pitch[ing] baseballs to a
player in the batting net” is nothing more than Cross sitting on a bucket next to a
batter and tossing baseballs a few feet up in the air for the batter to hit. MetLife
remarked that the video did not show Cross using “braces, supports or other
orthopedic devices.” It also noted that the video shows Cross moving in a
“smooth, fluid manner, without exhibiting . . . external signs of impairment or
physical restriction.” While this may be an accurate characterization, these
snapshots do nothing to disprove Cross’s reports of pain. In fact, Dr. Lee noted
that Cross simultaneously stepped-up his dosages of pain medication during his
coaching activities, indicating that these activities caused him an increase in pain.
Likewise, MetLife’s independent physician reports do not provide a
reasonable basis for MetLife’s decision. Of the four physicians relied on by
MetLife, Cross was only physically examined by Dr. Peach. However, due to what
Dr. Peach felt ws a “lack of cooperation,” he concluded that he was unable to
validly estimate Cross’s functional capacity (“I do not feel, based on the findings
11
of my physical exam, that I can make a valid estimation of [Cross’s] functional
capacity.”). Dr. Peach recommended that Cross undergo an FCE, and opined that
Cross’s limitations “cannot be validated without” one.
Dr. Greenhood provided a brief physician consultant report. He did not
examine Cross; instead it seems he based his opinion primarily on Dr. Peach’s IME
and a conversation with Dr. Lee. Dr. Greenhood noted that Dr. Lee does not
believe Cross is capable of working. He inferred, however, from the surveillance,
from Dr. Peach’s IME, and from Dr. Lee’s statement that Cross may have
symptom amplification or somatization, that Cross is “functionally capable of at
least light work.” Dr. Greenhood did not expound on his analysis or on what,
specifically, he considered to be “light work.”
Nor did Dr. Gosline examine Cross, although it does seem that he carefully
reviewed Cross’s medical records. Nevertheless, Dr. Gosline, a psychiatrist, had
no opinion on whether Cross was limited by a physical disability. Instead, he
concluded that he could not find “adequate compelling information of a disabling
psychiatric condition that would provide a global impairment of function that
would prevent [Cross] from performing the duties of some occupation consistent
with his physical limitations and with appropriate job modifications.”
Lastly, MetLife relies on a report by Dr. Ito, an independent rehabilitation
12
specialist who reviewed Cross’s medical record and the surveillance footage. After
an extensive summary of Cross’s medical history, Dr. Ito opined that Cross could
“tolerate sedentary to light activity” provided that the following accommodations
were in place: (1) restrictions on frequent overhead work, push-pull work,
crouching, twisting and bending; and (2) position changes on an hourly basis,
including “postural adjustments during any static positioning such as sitting or
standing.” Dr. Ito also stated that, despite Cross’s history of depression,
dysthymia, anxiety, and pain, Cross is able to participate in activities he is
motivated to pursue, such as: planning and “participat[ing] in scheduled activities,”
and “relat[ing] interpersonally with children as well as adults.”
Based on the surveillance and the above reports, MetLife concluded that
Cross was capable of performing his prior occupation, and therefore, Cross no
longer met the Plan’s post-twenty-four-month definition of “disabled.” To
determine the physical requirements of Cross’s prior occupation at Georgia Pacific
as Shift Supervisor, MetLife performed an occupational analysis. The analysis
determined that Cross’s position most closely matches the DOT’s position of
Process-Area Supervisor.4 Under the DOT, the position of Process-Area
4
The ALJ, on the other hand, evaluated Cross’s prior position in reference to the DOT’s
position of “Supervisor I, chemical plant” or “Chemical Operator II,” both requiring “medium
exertion.”
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Supervisor is one of “light-strength demand,” and its physical demands include: (1)
lifting, carrying, pushing, and pulling twenty pounds occasionally, ten pounds
frequently, and a negligible amount constantly; (2) frequent reaching, handling,
fingering, talking, hearing, and near visual acuity; and (3) occasional climbing,
stooping, and crouching.
MetLife concluded that Cross is able to engage in the above activities even
though none of its independent physicians specified the types of activities Cross is
capable of performing. Dr. Peach and Dr. Javed each recommended that MetLife
order an FCE in order to assess Cross’s specific limitations. Dr. Peach explicitly
stated that Cross’s limitations could not be verified without an FCE. MetLife
never ordered one.
Instead, MetLife unreasonably inferred Cross’s abilities from the evidence
before it. MetLife relied on the surveillance tapes, which were mere snapshots of
Cross’s activities over the course of several days. It did not address Dr. Lee and
Dr. Ito’s reports that these activities caused Cross an increase in pain. MetLife
relied on an IME by Dr. Peach, the only one of MetLife’s physicians who actually
examined Cross. Dr. Peach concluded, however, that he could not validly assess
Cross’s actual limitations. MetLife relied on Dr. Gosline’s report, which spoke
only to Cross’s psychiatric condition and did not address Cross’s physical
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limitations. It relied on Dr. Greenhood’s rather conclusory report, which stated
Cross was capable of “light work” but which did not address Cross’s specific
abilities and limitations. Finally, MetLife relied on Dr. Ito’s report, which
concluded that Cross could “tolerate sedentary to light activity” conditioned on a
number of accommodations. MetLife, however, made no determination of whether
these accommodations could be integrated into Cross’s prior position.
At the same time, MetLife arbitrarily discounted the ample evidence
supporting Cross’s disability: the reports of Cross’s treating physicians; Cross’s
clear record of pain; his adverse diagnoses, surgery, epidural injections, and
extensive medication regimen; and the ALJ’s finding that Cross suffered from
“severe” impairments and “cannot perform on a sustained basis, even at the
‘sedentary’ level.”
IV. CONCLUSION
In light of the above findings, MetLife’s determination that Cross is capable
of performing his prior occupation is not supported by a reasonable grounds.
Accordingly, we find MetLife’s decision to terminate Cross’s benefits to be
arbitrary and capricious, and affirm the district court’s grant of summary
judgment.5
5
It appears that the district court also granted Cross’s motion for attorneys’ fees, but it
did not set forth its reasoning for doing so. In an order dated August 15, 2007, the court states
15
AFFIRMED, IN PART; VACATED, IN PART; AND REMANDED.
initially that “Plaintiff’s motion for attorney’s fees (Doc. No. 41) is GRANTED.” However, at
the conclusion of that order, it instead sets filing deadlines for Plaintiff’s motion to amend its
motion for attorneys’ fees. Then, on May 8, 2008, the court granted Plaintiff’s motion to amend
its motion for attorneys’ fees. This order is the final entry in the docket. We thus vacate the
district court’s August 15, 2007 order granting Cross’s motion for attorneys’ fees and remand for
the district court to make specific findings.
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