Greg Oliver v. Aetna Life Insurance Company , 613 F. App'x 892 ( 2015 )


Menu:
  •               Case: 14-15259    Date Filed: 07/10/2015    Page: 1 of 24
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 14-15259
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 4:13-cv-01947-VEH
    GREG OLIVER,
    Plaintiff-Appellant,
    versus
    AETNA LIFE INSURANCE COMPANY,
    FEDERAL EXPRESS CORPORATION LONG TERM DISABILITY PLAN,
    Defendant-Appellee.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Alabama
    ________________________
    (July 10, 2015)
    Before JORDAN, JULIE CARNES, and JILL PRYOR, Circuit Judges.
    PER CURIAM:
    This appeal arises from the denial of a claim for long-term disability
    benefits. Plaintiff-appellant Greg Oliver (“Oliver”) appeals the district court’s
    Case: 14-15259     Date Filed: 07/10/2015    Page: 2 of 24
    grant of summary judgment to defendant-appellee Aetna Life Insurance Company
    (“Aetna”) on Oliver’s claim, brought under § 1132(a)(1)(B) of the Employee
    Retirement Income Security Act (“ERISA”), 
    29 U.S.C. § 1001
     et seq., that Aetna
    wrongfully denied him benefits.
    I.    BACKGROUND
    Oliver worked as a courier for the Federal Express Corporation (“FedEx”),
    and participated in its Long Term Disability Plan (“the Plan”). In addition to being
    the sponsoring employer of the Plan, FedEx is its administrator. Aetna, however,
    is the claims-paying administrator of the Plan, and is responsible for making
    benefits determinations.
    Oliver has a long history of bone and joint problems, including degenerative
    disc disease in his spine and osteoarthritis in his knee. In 1991, he tore his left
    anterior cruciate ligament, after which he developed severe arthritis in that knee.
    An examination of his knees in July 2009 revealed that
    His range of motion [in the left knee] was near to complete extension
    to one-hundred twenty degrees of flexion. There was positive patellar
    crepitus, negative instability, and positive medial and lateral joint line
    tenderness. Three x-ray views of the bilateral knees showed mild
    degenerative disease of the right knee and some patellofemoral
    disease. The left knee showed the prior anterior cruciate ligament
    screws in the femur and tibia. The femoral screw was protruding
    laterally, and the tibial screw was penetrating in the joint. There was
    also medial compartment sclerosis as well as patellofemoral disease.
    The assessment noted osteoarthritis, left knee.
    2
    Case: 14-15259        Date Filed: 07/10/2015         Page: 3 of 24
    At that time, Oliver reported that his knee pain was exacerbated by walking or
    standing for more than half an hour. He has had three surgeries on the left knee,
    the most recent being an October 2010 total knee replacement.1 This last surgery
    has alleviated, but not eliminated, what had been a persistently painful condition.
    Oliver has had less luck in treating his lower back pain, from which he has
    suffered since 2005. Examinations from October 2009 to February 2010 revealed
    numerous structural and functional abnormalities in his spine, lumbar-area
    tenderness, and muscle spasms. Oliver had limited ranges of motion involving his
    lower back, and experienced pain in performing those lower-back movements. His
    reports of back pain varied from examination to examination. He reported pain
    “while performing daily activities and certain motions.” Long periods spent
    walking around and repetitive movements exacerbated his pain. Various non-
    invasive treatments were performed, such as electrical stimulation of the tissues,
    and Oliver was instructed in proper sleep positioning and other ways to alleviate
    his pain.
    In addition to his longstanding knee and back problems, Oliver was injured
    on the job on August 15, 2009. 2 Following that injury, Oliver received short-term
    1
    Elsewhere it is reported that Oliver has had four knee surgeries.
    2
    The record does not reveal the specifics of this injury.
    3
    Case: 14-15259    Date Filed: 07/10/2015    Page: 4 of 24
    disability benefits under the Plan from August 24, 2009 to February 21, 2010. This
    was followed by long-term occupational disability benefits from February 22,
    2010 to February 21, 2012. That 24-month period was the maximum allowed
    under the Plan for long-term occupational disability.
    Before the expiration of Oliver’s long-term occupational disability benefits,
    Aetna notified him that he would have to qualify for long-term total disability
    benefits under the Plan to continue receiving benefits after the 24-month period.
    To receive the long-term total disability benefits, he would have to meet a more
    demanding definition of disability than that required for long-term occupational
    disability benefits: he would have to show a “complete inability . . . to engage in
    any compensable employment for twenty-five hours per week.”
    Oliver applied for long-term total disability benefits to begin on February
    22, 2012, when his long-term occupational disability benefits were to terminate.
    His claim was denied on January 12, 2012, and he filed an appeal to the Aetna
    Appeal Review Committee (“AARC”). On March 13, 2012, Oliver was notified
    by Aetna representative Linda Bizzarro that his appeal had been denied the day
    before, “because there [wa]s a lack of significant objective findings to substantiate
    a claim under the Plan for Total Disability.”
    4
    Case: 14-15259       Date Filed: 07/10/2015       Page: 5 of 24
    In the meanwhile, on January 17, 2012, Oliver had received a favorable
    disability decision from the Social Security Administration (“SSA”), which found
    that he had become disabled for purposes of the Social Security Act as of August
    15, 2009, the date at which Oliver had been injured on the job. See 
    42 U.S.C. §§ 416
    (i); 423(d). The AARC had been notified of this favorable SSA
    determination on February 28, 2012, and made note of it in denying Oliver’s
    appeal. The AARC explained, however, that “the criteria utilized by the [SSA] for
    . . . disability awards are different from the definition for Total Disability set forth
    in the Plan.” Thus, the intervening SSA determination did not dictate the outcome
    of the AARC review of the initial denial of long-term total disability benefits.
    Oliver filed for suit against Aetna for its denial of long-term total disability
    benefits on September 11, 2013 in the Circuit Court of Etowah County, Alabama.
    Aetna removed the case to the Northern District of Alabama on October 22, 2013,
    because the case raised a federal question under ERISA and ERISA gives the
    district courts and state courts concurrent jurisdiction over actions brought under
    
    29 U.S.C. § 1132
    (a)(1)(B).3 See 
    28 U.S.C. § 1331
    ; 
    29 U.S.C. § 1132
    (e)(1). In an
    order ruling on various motions, the district court granted Aetna’s motion for
    3
    A participant in, or beneficiary of, an ERISA-governed plan has a private right of
    action “to recover benefits due to him under the terms of his plan . . . .” 
    29 U.S.C. § 1132
    (a)(1)(B).
    5
    Case: 14-15259        Date Filed: 07/10/2015        Page: 6 of 24
    summary judgment, holding that its denial of long-term total disability benefits to
    Oliver was not wrong. 4
    Oliver filed this appeal from the district court’s grant of summary judgment
    to Aetna. Oliver argues that the district court incorrectly placed the burden of
    proof on him to show that Aetna’s denial of benefits decision was wrong. From
    there, he says, the court erred in finding no error in Aetna’s denial of benefits. In
    particular, the court allegedly erred by accepting Aetna’s argument that because its
    definition of long-term disability used “different criteria” than those used by the
    SSA, the favorable SSA ruling did not control Aetna’s determination. Oliver
    further argues that the district court applied an incorrect standard of review in its
    alternative holding 5 that, even if wrong, Aetna’s denial of benefits was not
    arbitrary and capricious. Rather than this more deferential standard, which the
    district court held would apply, Oliver contends that a de novo standard applies.
    Finally, Oliver argues that the doctrine of judicial estoppel should have applied to
    prevent the termination of his benefits.
    4
    The district court also held in favor of Aetna on its counterclaim for $5,912.63 in
    overpaid long-term disability benefits, due it to offset the benefits paid to Oliver by the SSA.
    Oliver has not argued on appeal that this was error.
    5
    Because the district court did not find the denial of benefits to be wrong under its initial
    de novo review, it did not have to address the standard of review that would have been
    appropriate if Aetna’s decision had been deemed to be incorrect. Nonetheless, in the interest of
    completeness, it determined that, given the discretion afforded the administrator, the arbitrary
    and capricious standard would apply in this scenario, and that the decision was not arbitrary or
    capricious.
    6
    Case: 14-15259     Date Filed: 07/10/2015   Page: 7 of 24
    II.   STANDARD OF REVIEW
    We review de novo a district court’s decision affirming an ERISA plan
    administrator’s determination regarding benefit eligibility, applying the same
    standards as the district court. Blankenship v. Metro. Life Ins. Co., 
    644 F.3d 1350
    ,
    1354 (11th Cir. 2011). Our review considers only “the material available to the
    administrator at the time it made its decision.” 
    Id.
    Because ERISA does not set out a standard of review for challenges to the
    denial of benefits brought under 
    29 U.S.C. § 1132
    (a)(1)(B), this Court has
    developed a multi-part test, relying on the Supreme Court’s opinions in Firestone
    Tire & Rubber Company v. Bruch, 
    489 U.S. 101
    , 109 (1989), and Metropolitan
    Life Insurance Company v. Glenn, 
    554 U.S. 105
    , 111 (2008). We proceed in the
    following manner:
    (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).
    7
    Case: 14-15259     Date Filed: 07/10/2015    Page: 8 of 24
    (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, the conflict should merely be a factor for
    the court to take into account when determining whether an
    administrator’s decision was arbitrary and capricious.
    Blankenship, 
    644 F.3d at 1355
    .
    III.   ANALYSIS
    Our analysis in this case begins and ends at the first step of the test. Upon
    our de novo review, we conclude that Aetna’s determination that Oliver is not
    entitled to long-term disability benefits was not “wrong.” “A decision is ‘wrong’
    if, after a review of the decision of the administrator from a de novo perspective,
    ‘the court disagrees.’” Glazer v. Reliance Standard Life Ins. Co., 
    524 F.3d 1241
    ,
    1246 (11th Cir. 2008) (quoting Williams v. BellSouth Telecomms., Inc., 
    373 F.3d 1132
    , 1138 & n.8 (11th Cir. 2004)). We consider, “based on the record before the
    administrator at the time [the] decision was made, whether [we] would reach the
    same decision as the administrator. If [we] determine[] that the plan administrator
    was right, the analysis ends and the decision is affirmed.” 
    Id.
     at 1246–47.
    Contrary to Oliver’s assertions, it is the law in this Circuit that when appealing the
    plan administrator’s denial of long-term disability benefits, the plaintiff bears the
    8
    Case: 14-15259     Date Filed: 07/10/2015   Page: 9 of 24
    burden to prove that he is disabled. Doyle v. Liberty Life Assur. Co. of Boston, 
    542 F.3d 1352
    , 1362 (11th Cir. 2008); Glazer, 
    524 F.3d at 1247
    ; see also 
    29 U.S.C. § 1132
    (a)(1)(B) (2014). Oliver has not carried that burden.
    A.     “Total Disability” Under the Plan and the SSA Test
    Because Oliver’s argument relies in large part on the fact that the SSA
    determined that he was totally disabled, we begin our analysis by comparing the
    SSA test for total disability with that of the Plan. “A district court may consider
    the [SSA’s] determination of disability in reviewing a plan administrator’s
    determination of benefits.” Kirwan v. Marriott Corp., 
    10 F.3d 784
    , 790 n.32 (11th
    Cir. 1994). However, we have held that “the approval of disability benefits by the
    [SSA] is not considered dispositive on the issue of whether a claimant satisfies the
    requirement for disability under an ERISA-covered plan.” Whatley v. CNA Ins.
    Companies, 
    189 F.3d 1310
    , 1314 n.8 (11th Cir. 1999) (citing Paramore v. Delta
    Air Lines, Inc., 
    129 F.3d 1446
    , 1452 n.5 (11th Cir. 1997)).
    The SSA test consists of a five-step sequence that the administrative law
    judge (“ALJ”) follows in determining the claimant’s eligibility for long-term
    disability benefits.
    At step one, the [ALJ] must determine whether the claimant is
    engaging in substantial gainful activity (20 CFR 404.1520(b)).
    Substantial gainful activity (SGA) is defined as work activity that is
    both substantial and gainful. If an individual engages in SGA, he is
    9
    Case: 14-15259    Date Filed: 07/10/2015   Page: 10 of 24
    not disabled regardless of how “severe” his physical or mental
    impairments are and regardless of his age, education or work
    experience. If the individual is not engaging in SGA, the analysis
    proceeds to the second step.
    At step two, the [ALJ] must determine whether the claimant has a
    medically determinable impairment that is “severe” or a combination
    of impairments that is “severe” (20 CFR 404.1520(c)).               An
    impairment or combination of impairments is “severe” within the
    meaning of the regulations if it significantly limits an individual’s
    ability to perform basic work activities. If the claimant does not have
    a “severe” medically determinable impairment or combination of
    impairments, he is not disabled. If the claimant has a “severe”
    impairment or combination of impairments, the analysis proceeds to
    the third step.
    At step three, the [ALJ] must determine whether the claimant’s
    impairment or combination of impairments is of a severity to meet or
    equal the criteria of an impairment listed in 20 CFR Part 404, Subpart
    P, Appendix 1 (20 CFR 404.1520(d), 404.1525, and 404.1526). If the
    claimant’s impairment or combination of impairments is of a severity
    to meet or equal the criteria of a listing and meets the duration
    requirement (20 CFR 404.1509), the claimant is disabled. If it does
    not, the analysis proceeds to the next step.
    Before considering step four of the sequential evaluation process, the
    [ALJ] must first determine the claimant’s residual functional capacity
    (20 CFR 404.1520(e)). An individual’s residual functional capacity is
    his ability to do physical and mental work activities on a sustained
    basis despite limitations from his impairments. In making this
    finding, the [ALJ] must consider all of the claimant’s impairments,
    including impairments that are not severe (20 CFR 404.1520(e) and
    404.1545; SSR 96-8p).
    Next, [the ALJ] must determine at step four whether the claimant has
    the residual functional capacity to perform the requirements of his
    past relevant work (20 CFR 404.152(f)). The term past relevant work
    means work performed (either as the claimant actually performed it or
    10
    Case: 14-15259    Date Filed: 07/10/2015   Page: 11 of 24
    as it is generally performed in the national economy) within the last
    15 years. In addition, the work must have lasted long enough for the
    claimant to learn to do the job and have been SGA (20 CFR
    404.1560(b) and 404.1565). If the claimant has the residual
    functional capacity to do his past relevant work, the claimant is not
    disabled. If the claimant is unable to do any past relevant work or
    does not have any past relevant work, the analysis proceeds to the
    fifth and last step.
    At the last step of the sequential evaluation process (20 CFR
    404.1520(g)), [the ALJ] must determine whether the claimant is able
    to do any other work considering his residual functional capacity, age,
    education, and work experience. If the claimant is able to do other
    work, he is not disabled. If the claimant is not able to do other work
    and meets the duration requirement, he is disabled. Although the
    claimant generally continues to have the burden of proving disability
    at this step, a limited burden of going forward with the evidence shifts
    to the Commissioner of the Social Security Administration. In order
    to support a finding that an individual is not disabled at this step, the
    Commissioner is responsible for providing evidence that demonstrates
    that other work exists in significant numbers in the national economy
    that the claimant can do, given the residual functional capacity, age,
    education, and work experience (20 CFR 404.1512(g) and
    404.1560(c)).
    “Disability” under the SSA test, means “inability to engage in any
    substantial gainful activity by reason of any medically determinable physical or
    mental impairment or combination of impairments that can be expected to result in
    death or that has lasted or can be expected to last for a continuous period of not
    less than 12 months.”
    By contrast, the Plan here describes the following procedure for providing
    disability benefits:
    11
    Case: 14-15259      Date Filed: 07/10/2015    Page: 12 of 24
    Section 5.1. Proof of Disability. No Disability Benefit shall be paid
    under the Plan unless and until the claims Paying Administrator has
    received an application for benefits and information sufficient for the
    Claims Paying Administrator to determine pursuant to the terms of the
    Plan that a Disability exists. Such determination shall be made in a
    fair and consistent manner for all participants in the Plan. Such
    information may, as the Claims Paying Administrator shall determine,
    consist of a certification from the Covered Employee’s attending
    Practitioner, in a the form of personal references, narrative reports,
    pathology reports, x-rays and any other medical records or other
    information as may be required by the Claims Paying Administrator.
    In addition, a Covered Employee may be required, as the Claims
    Paying Administrator shall determine, to submit to continuing proof
    of Disability in the form of the information described above, as well
    as evidence that he continues to be under the care and treatment of a
    Practitioner during the entire period of Disability. If, in the opinion of
    the Claims Paying Administrator, the Practitioner selected by the
    Covered Employee cannot substantiate the Disability for which a
    claim is being made or benefits are being paid hereunder, such
    Employee may be required to submit himself to an examination by a
    Practitioner selected by the Claims Paying Administrator. The burden
    of proof for establishing a Disability is on the Covered Employee.
    Under the Plan, determinations of “disability” require “significant objective
    findings which are defined as signs which are noted on a test or medical exam and
    which are considered significant anatomical, physiological or psychological
    abnormalities which can be observed apart from the individual’s symptoms.” The
    Plan further defines “total disability” as “the complete inability . . . because of a
    medically-determinable physical or functional impairment . . . to engage in any
    compensable employment for twenty-five hours per week.”
    12
    Case: 14-15259     Date Filed: 07/10/2015    Page: 13 of 24
    Thus, the Plan’s test for total disability differs in several ways from that of
    the five-step SSA test. First, the SSA test categorizes as disabled one who cannot
    perform “substantial gainful activity.” Under the Plan, however, total disability
    means “the complete inability . . . to engage in any compensable employment for
    twenty-five hours per week.” Thus, the Plan imposes a higher standard upon a
    claimant. Second, the fifth step of the SSA test precludes a finding of disability,
    even for a person able to perform work, unless the SSA Commissioner can prove
    the existence of jobs, in significant numbers, that the claimant can do, given not
    only his impairment, but also his age, education, and work experience. In contrast,
    the Plan does not take the availability of jobs into consideration. Third, the SSA
    test, as interpreted by this Circuit, recognizes that “pain alone can be disabling,
    even when its existence is unsupported by objective evidence.” Francis v.
    Heckler, 
    749 F.2d 1562
    , 1564 (11th Cir. 1985). The Plan, by contrast, requires
    “significant objective findings . . . which can be observed apart from the
    individual’s symptoms.” Or, as Aetna explained to Oliver, “Pain, without
    significant objective findings, is not proof of disability.” Finally, although a court
    must give special weight to the opinions of a claimant’s treating physician in social
    security cases, the same deference does not apply to disability determinations
    13
    Case: 14-15259     Date Filed: 07/10/2015    Page: 14 of 24
    under employee benefit plans governed by ERISA. Black & Decker Disability
    Plan v. Nord, 
    538 U.S. 822
    , 825 (2003).
    Thus, based on our precedent and the manifestly different criteria of the SSA
    and the Plan, Oliver cannot simply rely on the determination by SSA in
    challenging Aetna’s denial of benefits. Rather, the question of whether the denial
    of benefits was wrong must turn on the evidence of disability itself. We turn now
    to that evidence.
    B.     The Evidence Presented in Support of Oliver’s Claim
    Oliver bore the burden of producing evidence to show his entitlement to
    long-term disability benefits. See Horton v. Reliance Standard Life Ins. Co., 
    141 F.3d 1038
    , 1040 (11th Cir. 1998). Our analysis therefore turns to the evidence
    submitted by Oliver to Aetna in support of his claim for long-term total disability
    benefits. See Glazer, 
    524 F.3d 1246
    -47. We summarize the key portions of that
    record.
    On January 12, 2010, orthopedic surgeon Dr. Lawrence J. Lemak stated in a
    clinic note that, “[g]iven the extent of [Oliver’s] arthritic change in his knee and
    the demands of his profession as a FedEx truck driver, we supported [Oliver’s]
    thoughts of heading down application route [sic] for disability . . . [W]e do not feel
    he would be able to effectively perform his job as a truck driver.”
    14
    Case: 14-15259     Date Filed: 07/10/2015    Page: 15 of 24
    A June 7, 2010 office note from neurosurgeon Dr. Joel O. Pickett appeared
    to show some responsiveness to treatment. Dr. Pickett stated that Oliver’s “leg
    pain has resolved with an epidural steroid injection, although he still has some
    lower back pain. Overall he seems to be doing better and is getting about well
    [sic].” Dr. Pickett noted that Oliver appeared to have stenosis of the L4-5
    vertebrae, for which he recommended epidural steroid injections and physical
    therapy. If those treatments failed to resolve his back pain, Dr. Pickett would
    “look into this further with a lumbar myelogram and possibly proceed with
    surgery.”
    On October 11, 2010, Oliver underwent total knee replacement surgery on
    his left knee, which seemed to improve his condition considerably. Dr. Lemak’s
    office notes from December 14, 2010 recorded Oliver’s progress since that
    surgery. Dr. Lemak described Oliver as “doing extremely well. He is advised to
    continue his range of motion and muscle strengthening exercises. He will follow
    up in 4 months.”
    On January 21, 2011, however, Dr. Lemak submitted a physician’s report on
    Oliver, indicating that, due to his osteoarthritis, Oliver could neither work “Full
    Duty” nor “with Restrictions.” Dr. Lemak did indicate that Oliver’s condition had
    15
    Case: 14-15259      Date Filed: 07/10/2015      Page: 16 of 24
    not reached a “PERMANENT & STATIONARY status.” He advised that Oliver
    should perform “no work until re-evaluated on 4/5/2011.”
    On April 8, 2011, Oliver underwent an MRI of his lumbar vertebrae, which
    was evaluated by Dr. Arthur A. Jones and Dr. David Simmons. Those physicians
    summarized that “[t]here is a diffusely narrowed central canal throughout the
    lumbar spine with accompanying short pedicles. There are disc herniations at L4-5
    and L5-S1 that are slightly asymmetric to the right with narrowing of the right
    lateral recesses at these two levels and probable nerve root impingement of L5 and
    S1.” They made no note of how this might affect his work ability.
    On April 11, 2011, Dr. Faulkner, an orthopedic surgeon and colleague of Dr.
    Lemak, produced a clinic note on Oliver after reviewing his medical history,
    performing a physical exam, and evaluating x-rays of his spine. Dr. Faulkner
    concluded that Oliver had “Degenerative disc disease at multiple levels.” Dr.
    Faulkner recommended against surgery, but believed Oliver should “get on a home
    exercise program.”
    Dr. Lemak concluded on September 9, 2011, after evaluating Oliver, “it’s
    my professional opinion that he will be unable to return to Federal Express as a
    Courier, secondary to total knee replacement.” 6 Dr. Lemak examined Oliver three
    6
    As mentioned, Oliver underwent total knee replacement on October 11, 2010, which
    Dr. Lemak recognizes in his December 14, 2010 note and again in his December 15, 2011 note.
    16
    Case: 14-15259       Date Filed: 07/10/2015      Page: 17 of 24
    months later, and in his clinical notes stated that Oliver was “doing well. He does
    not have any pain. He will occasionally feel soreness if he has been on it for a
    while.” The clinic notes record that “[a]t this time, we will recommend him to
    continue his strengthening exercises for his left knee as well as range of motion. In
    regards to his work, since his work involve [sic] lot [sic] of walking around, which
    might affect the longevity of his knee, we would like to keep him off work.” On that
    basis, Dr. Lemak, in response to an inquiry from Aetna, stated that in his opinion
    Oliver was “unable to work at any compensable employment for a minimum of
    twenty-five hours per week.”
    Aetna referred these materials to an orthopedic surgeon, Dr. Lawrence
    Blumberg, on December 23, 2011, for independent review.7 After summarizing
    the records, Dr. Blumberg gave his opinion on January 8, 2012 that Oliver could
    engage in some compensable employment for a minimum of 25 hours per week,
    explaining:
    The claimant’s physical examination findings for the left knee
    revealed a well-healed incision with no effusion. There was
    essentially normal range of motion and a stable knee. The x-rays
    It is thus not clear what Dr. Lemak means by “secondary to total knee replacement” in the
    September 9, 2011 note.
    7
    Dr. Blumberg reviewed the following materials: (1) “Office note from Dr. Joel Pickett,
    Neurosurgeon dated 6/7/10”; (2) “Office note from Dr. Faulkner, Orthopedic Surgeon dated
    4/21/11”; (3) “Office notes from Dr. Lemak dated 12/14/10, 4/21/11 and 12/15/11”; and (4)
    “Work Status Letter from Dr. Lawrence Lemak, Orthopedic Surgeon dated 12/15/11.”
    17
    Case: 14-15259       Date Filed: 07/10/2015      Page: 18 of 24
    revealed good alignment of the total knee components. There was no
    evidence the claimant couldnot [sic] stand, sit, or ambulate. There is
    no evidence the claimant could not lift up to ten pounds. He is
    therefore capable of at least any occupation/sedentary activities for a
    minimum of 25 hours per week.
    Based on Dr. Blumberg’s review, Aetna denied Oliver’s claim for long-term total
    disability benefits on January 12, 2012, and Oliver appealed.
    On February 17, 2012, Aetna submitted the records Dr. Blumberg reviewed,
    along with further medical records produced by Oliver, to Dr. Martin
    Mendelssohn, another orthopedic surgeon, to review for Oliver’s appeal.8 Dr.
    Mendelssohn came to the same conclusion that Oliver could work some
    compensable employment for a minimum of 25 hours per week, explaining:
    This claimant has chronic problems in his low back but is not a
    surgical candidate although he has degenerative changes and
    abnormalities at multiple levels with MRI, his clinical examination is
    nonfocal and it was determined by his spine surgeon that he is not a
    surgical candidate. In the past he has received an epidural injection
    which resolved his leg symptomatology, but the claimant continues to
    have axial back pain without neurological findings. With respect to
    his left knee, he underwent a total knee arthroplasty. There has been
    no documentation any complication [sic]. He has functional range of
    motion, no instability. X-rays reveal the components are in excellent
    position without evidence of loosening, and there is no evidence
    documented that the claimant would not be able to stand, sit, or
    8
    In addition to the materials submitted to Dr. Blumberg, Dr. Mendelssohn was presented
    with (1) “General Peer Review Dr. Blumberg 12/27/11”; (2) “Note from Dr. Pickett 05/10/10”;
    (3) “Physician Report Dr. Lemak 01/21/11”; (4) “MRI Lumbar Spine 04/08/11”; (5) “MRI
    Result Sheet 04/21/11”; (6) “Patient Pain Drawing 04/21/11”; (7) “Patient Referral 04/21/11”;
    (8) “Dictation Tracking Sheet 04/21/11”; (9) “Correspondence from Dr. Lemak 09/09/11”; and
    (10) “Surgery & Diagnostic Order Sheet undate [sic].”
    18
    Case: 14-15259     Date Filed: 07/10/2015   Page: 19 of 24
    ambulate nor would be unable to lift a minimum of ten pounds and
    therefore, the claimant is able to function in a sedentary occupation
    for a minimum of 25 hours per week.
    Based upon Dr. Mendelssohn’s review, the AARC denied Oliver’s appeal on
    March 13, 2012.
    Upon this Court’s de novo review of the record, we conclude that Aetna was
    not wrong in denying long-term disability benefits to Oliver. First, as discussed,
    the Plan sets a more demanding standard for total disability than what the SSA test
    imposes. Therefore, Aetna’s denial of disability is not necessarily called into
    question by the SSA ruling. Second, the records submitted to Aetna fail to
    establish that Oliver can perform no compensable employment for a minimum of
    25 hours per week. The clinical notes from Oliver’s treating physicians
    consistently show that his back pain was treatable, probably with physical therapy
    rather than surgery, and there was no indication that the pain Oliver suffered from
    his back condition would prevent him from performing various, probably non-
    manual labor, jobs. The record of his knee problems likewise provide no basis for
    concluding that Oliver could not perform some form of sedentary employment.
    Further, Dr. Lemak gave no reasons for the change of prognosis between
    September 2011, when he stated that Oliver would be unable to return to work as a
    courier, and December 2011, when he stated that Oliver could perform no
    19
    Case: 14-15259    Date Filed: 07/10/2015   Page: 20 of 24
    compensable work for 25 hours a week. Lemak’s own clinical notes from that
    period record that Oliver experiences “no pain” unless he is using the leg for some
    period of time, and that work as a courier was to be avoided, because it involved a
    lot of moving around, which could interfere with Oliver’s recovery. It did not
    explain why sedentary employment would be problematic.
    Because Oliver’s SSA determination was submitted to the AARC for its
    review, and therefore constitutes part of the record we review, we note from the
    ALJ’s order certain facts that support the AARC’s decision to deny benefits to
    Oliver. At the SSA hearing, Oliver testified about his daily routine, which the ALJ
    summarized:
    [H]e arises at 6:00 in the morning, gets coffee, and is then from the
    bed to the couch, due to stiffness. He testified that he eats breakfast at
    8:00, and assists with getting the children off to school. He testified
    that he takes a one-hour class two days per week, and becomes stiff in
    class, he is able to get up and move around during class. He reported
    being at the hearing for two hours increased his pain level. He
    testified that he drives approximately twenty to twenty-five miles per
    week. He also testified that he attends church on Sundays. The
    claimant testified that he takes Lortab and Robaxin as needed but that
    the Lortab causes drowsiness, sweating, and sometimes keeps him
    awake. He further testified that two or three times weekly, he has to
    elevate his knee for one hour at a time; and that he has trouble
    manipulating steps and stairs at times. He testified that he received
    steroidal treatments to the knee and epidurals to his back; and is
    currently in physical therapy where he performs stretching exercises.
    In addition, the claimant testified that he is able to walk twenty-five
    yards; and if necessary, could walk goal post to goal post. He also
    testified that he is able to stand for twenty minutes, and sit for thirty
    20
    Case: 14-15259       Date Filed: 07/10/2015      Page: 21 of 24
    minutes to an hour. He testified that he is able to lift ten pounds. He
    testified that his father-in-law and wife perform the yard work. He
    testified that golf and softball were prior hobbies, but he had not
    played in two years. He testified that his girls participate in sports
    activities, and he occasionally attends the functions, but has
    difficulties climbing the steps in the sports arenas, and has to
    frequently stand, until he is no longer able to stand comfortably. He
    also testified that the heat and cold temperatures worsen the pain. He
    testified that he is unable to return to work at his prior job as a
    courier, because it required a lot of lifting, walking, and driving. He
    testified that he feels his [sic] is unable to work a forty-hour week
    because his back will not hold up.
    Oliver’s SSA testimony thus reveals that, although he experiences pain and
    has difficulties in getting around, he is able to participate in various activities:
    getting his children ready for school; attend classes, church, and sporting events;
    drive a car; walk short distances; and participate in physical therapy. This level of
    activity that Oliver testified that he can manage is consistent with many part-time,
    fairly sedentary jobs.9
    For these reasons, we determine, upon de novo review, that Aetna was not
    wrong in denying long-term disability benefits to Oliver because, based on the
    evidence Oliver presented to Aetna and the AARC, the latter’s conclusion that
    9
    Further, the determination of the ALJ was that “[m]edical improvement is expected
    with appropriate treatment. Consequently, a continuing disability review is recommended in 12
    months.” Thus, as the district court noted, “Oliver, at best, has established a period of non-
    permanent total disability under the SSA as of January 17, 2012.”
    21
    Case: 14-15259        Date Filed: 07/10/2015        Page: 22 of 24
    Oliver was not totally disabled, as defined by the Plan, was not incorrect. 10
    C.      Does Judicial Estoppel Apply?
    Oliver’s final argument is that Aetna should be judicially estopped from
    disagreeing with the SSA’s conclusion that Oliver was totally disabled. Oliver
    argues that because its plan required him to apply for SSA benefits, Aetna
    implicitly endorsed the SSA criteria of total disability, and its findings. But the
    Eleventh Circuit case relied upon by Oliver—Melech v. Life Insurance Company
    of North America, 
    739 F.3d 663
     (11th Cir. 2014)—does not support his
    argument. 11
    In Melech, while considering claimant Melech’s claim for disability benefits
    under the employee plan, the plan administrator had required Melech to apply for
    SSA benefits. Yet, in ultimately deciding to deny benefits under its plan, the
    administrator refused to consider any evidence from the SSA process, making its
    10
    As noted, the district court sustained Aetna’s finding of no disability on the alternative
    ground that the Plan gave AARC discretion over the decision whether Oliver was disabled and,
    that being so, even a “wrong” decision by AARC would not be reversible unless that decision
    was arbitrary and capricious. The court concluded that AARC’s decision was neither arbitrary
    nor capricious. Although we perceive nothing faulty about the district court’s reasoning on this
    point, we do not have to firmly decide this matter, given our conclusion that, even under a de
    novo review, Aetna’s decision that there was no qualifying disability was not a “wrong”
    decision.
    11
    The district court held that because Oliver only raised his judicial estoppel argument at
    summary judgment, rather than in his complaint, it was procedurally improper. The court
    nonetheless held that the argument failed on the merits. Because we agree with the district court
    that the judicial estoppel argument is meritless, we affirm on that ground.
    22
    Case: 14-15259     Date Filed: 07/10/2015    Page: 23 of 24
    decision on a record that excluded any information that was available from that
    agency. 
    Id. at 673
    . The district court held that the administrator’s decision was
    correct based on the record before it, but again this record did not include any of
    the SSA information.
    We reversed, but not because we concluded that, having required the
    claimant to simultaneously pursue SSA benefits, the administrator was judicially
    estopped from doing anything but adhering to the SSA’s decision. Instead,
    explaining that the administrator “is not free to selectively use evidence in this
    manner,” 
    id. at 675
    , and that “an administrator’s decision to deny benefits must be
    based on a complete administrative record,” 
    id. at 676
    , we reversed because we
    concluded that the administrator had acted in a way that created “procedural
    unfairness” to Melech. 
    Id.
    Indeed, had we concluded that the administrator was judicially estopped
    from contesting a finding of disability by the SSA, we would have simply reversed
    and directed a judgment for Melech. But we did not do that. We remanded the
    case, requiring only that the administrator “decide Melech’s claim with the full
    benefit of the results generated by the SSA process that it helped to set in motion.”
    
    Id. at 676-77
    . Indeed, we were quite explicit that we were not “prejudg[ing] the
    ultimate outcome” on remand, stating “We do not imply that the SSA’s ultimate
    23
    Case: 14-15259     Date Filed: 07/10/2015   Page: 24 of 24
    conclusion that Melech was ‘disabled’ under the SSA standard creates a
    presumption that she is eligible for benefits under the Policy.” 
    Id.
     at 676 and n.21.
    Unlike the administrator in Melech, the administrator in this case did take
    Oliver’s SSA determination into account when it considered his appeal. Thus, the
    concern about procedural unfairness that troubled the Melech court does not arise
    in this case. Second, because the favorable SSA determination did not create a
    presumption of disability under the Plan and because Aetna explained to Oliver
    that the Plan imposed a different definition of disability than that used in the SSA
    test, there is no reason to conclude that Aetna was acting arbitrarily and
    capriciously when it reached a different decision than did the SSA. See Whatley,
    
    189 F.3d at
    1314 n.8. We therefore reject Oliver’s judicial estoppel argument.
    IV.   CONCLUSION
    For the above reasons, we affirm the district court’s grant of summary
    judgment in favor of Aetna. In doing so, we conclude, based on our de novo
    review of Aetna’s denial of benefits to Oliver, that its decision was not wrong. We
    further reject Oliver’s argument that judicial estoppel operates to require Aetna to
    follow the SSA’s determination that Oliver is totally disabled.
    AFFIRMED.
    24