Robinson v. UNUM Life Ins. CV-02-006-B 03/12/03

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Ralph Robinson

v. Civil No. 02-6-B Opinion No.

UNUM Life Insurance Company of America

MEMORANDUM AND ORDER

Ralph Robinson brings this action pursuant to the Employee

Retirement Income Security Act ("ERISA"),

(a)(1)(B) (1999), to recover benefits allegedly due to him

under the terms of his employer's long term disability plan (the

"Plan"), which is administered by Unum Life Insurance Company of

America ("UNUM"). Robinson alleges that the decision of UNUM to

terminate his disability benefits was arbitrary and capricious.

Before me are Robinson's motion for judgement on the

administrative record (Doc. No. 9) and UNUM's motion for judgment

on the administrative record (Doc. No. 8). For the reasons set

forth below, I deny Robinson's motion and grant UNUM's motion. I. BACKGROUND

Robinson went to work for Cisco Systems as a manager of

software development in 1995. As a Cisco employee, Robinson was

eligible to participate in the Plan.

A. The Plan

The Plan divides benefit eligibility into two phases.

During the initial phase of up to twenty-four months, an employee

is eligible for benefits if he cannot or is unable to perform

"the material and substantial duties of [his] regular occupation

due to sickness," and "[has] a 20% or more loss in [his] indexed

monthly earnings due to the same sickness or injury."

Administrative Record (Record) at 782. After twenty-four months,

an employee is eligible for benefits only if he is found to be

"unable to perform the duties of any gainful occupation for which

[he is] reasonably fitted by education, training or experience."

The burden is upon the employee to provide satisfactory

proof of the nature and extent of his disability.

The Plan also limits long term benefits beyond the twenty-

four month period to disabilities that do not primarily rely upon

- 2 - self-reported symptoms. Self-reported symptoms means "the

manifestation of [employee's] condition," which the employee

reports to a doctor, "that are not verifiable using tests,

procedures or clinical examinations standardly [sic] accepted in

the practice of medicine." Record at 7 90. Fatigue is listed in

the Plan as an example of a self-reported symptom.

B. Robinson's Claim: The First Twenty-Four Months

Robinson was diagnosed with sarcoidosis1 in 1979. He

continued to work on a full-time basis, however, until he took a

medical leave of absence from Cisco in March 1998. In June 1998,

he applied for disability benefits under the Plan. As part of

the application, a physician's statement was submitted by Dr.

1 Sarcoidosis is "a systematic granulomatous disease of unknown cause, especially involving the lungs with resulting fibrosis, but also involving lymph nodes, skin, liver, spleen, eyes, phalangeal bones, and parotid glands." Stedman's Medical Dictionary (25th ed 1990) . According to the National Institute of Health of the United States Department of Health and Human Services (NIH), as cited by Robinson, fatigue is often a symptom of sarcoidosis. However, the NIH also notes that "most people with sarcoidosis lead a normal life," and that the "symptoms, after all, are usually not disabling," and that "most patients can go about their lives as usual." w ww.nhlbi.nih.gov/health/public/lung/other/sarcoidosis.

- 3 - Andrew G. Villanueva, Robinson's treating physician. Dr.

Villanueva's statement indicated that the primary diagnosis for

Robinson was "sarcoidosis, type II DM, hypertension, chronic

fatigue." Record at 751. Dr. Villanueva listed "exertion

involving upper & lower extremities" as the only limitation on

Robinson's ability to work. Record at 752. There were no other

limitations or restrictions indicated on Dr. Villanueva's

statement.

After reviewing Robinson's claim, including Dr. Villanueva's

clinical notes, UNUM determined that it was unclear how

Robinson's sarcoidosis rendered him unable to work. Therefore,

UNUM reguested additional information from Dr. Villanueva on

August 21, 1998. Dr. Villanueva responded to this reguest on

September 14, 1998. Dr. Villanueva reported that " [h]is

sarcoidosis has manifested itself mainly by skin lesions,

interstitial lung disease and overwhelming fatigue. The fatigue

has been difficult to eradicate and has severely diminished his

capacity to physically function and intellectually concentrate

for more than 1-2 hours a day." Record at 673.

On September 18, 1998, Dr. Villanueva also spoke with UNUM's

Millie Blackstone, a registered nurse, and apparently informed

- 4 - her that he "has noted increased fatigue from [Robinson's]

history," but that the recent decrease in Robinson's prednisone2

"may be causing the fatigue." Record at 667. According to

UNUM's file notes. Dr. Villanueva also told nurse Blackstone that

Robinson's "[p]ulmonary function tests have been fine . . . skin

lesions and lung issues have been stable," and that Robinson

should be able to return to work by January 1999. Record at 667.

On September 18, 1998, UNUM informed Robinson via telephone

that his disability claim was approved. He was advised, however,

that UNUM was "still unsure" as to what was causing Robinson's

fatigue and why he was unable to work because of his sarcoidosis.

Record at 665. UNUM notified Robinson that it expected him to

return to work in January 1999, but if he did not return to work

UNUM would reguire additional medical evidence of his continued

disability.

In late January 1999, Dr. Villanueva determined that

Robinson could only work part-time (3 hours a day from his home).

In September 1999, UNUM asked Dr. Villanueva when it should

2 Prednisone is a type of steroid typically prescribed to reduce inflammation. www.webmd.com.

- 5 - expect Robinson to resume a full-time work schedule. After

repeated attempts to receive information regarding the status of

Robinson's disability. Dr. Villanueva sent a letter to UNUM in

January 2000. The letter stated that, due to Robinson's fatigue,

it was still "medically reasonable for him to have his work hours

limited" to 3 hours a day. Record at 445, 454. The letter also

stated that, "[w]hile it is true that his pulmonary function

tests . . . have been 'normal', this has not been the basis of

his disability. His angiotensin converting enzyme continues to

be elevated (it was last 53 on November 29, 1999) which indicates

that the sarcoidosis itself remains active." Record at 445.

UNUM's associate medical director. Dr. Michael Randall,

reviewed Robinson's file and responded to Dr. Villanueva's

January letter on February 8, 2000. Dr. Randall guestioned Dr.

Villanueva's interpretation of the angiotensin converting enzyme

level, noting that a level of 53 "would be very marginally

elevated," and considering "confidence intervals, it could very

well be normal." Record at 434. Dr. Randall also guestioned how

Dr. Villanueva's work limitation was determined, "other than from

the patient," and reguested updated lab tests. Record at 434.

- 6 - According to UNUM, Dr. Villanueva called claims

representative Megan Matselboba in response to Dr. Randall's

February 8, 2000 letter. Matselboba's file notes allege that Dr.

Villanueva stated that "[w]hen skin lesions flare, extreme

fatigue is justifiable," and that "there is no other internal

measure of [disability] except degree of fatigue [with] skin

lesions as a barometer." Record at 390. As for the part-time

work restriction. Dr. Villanueva allegedly indicated that this

restriction was reasonable "based on [Robinson's] self-report he

cannot [work] more than that [and] fact that skin lesions are

present." Record at 390.

Robinson's skin lesions were treated by Dr. Samuel

Moschella. Dr. Moschella's progress notes indicate that Robinson

responded well to thalidomide treatment.3 Indeed, in December

1999, Robinson experienced an 85% clearing of his lesions. Dr.

Moschella noted the continued success of the thalidomide

treatment on February 3, 2000, and again in March. Although Dr.

Moschella noted Robinson's complaint of fatigue, he attributed

3 Thalidomide is a medication which affects the immune system. www.webmd.com. Thalidomide is used to treat and prevent certain types of skin sores.

- 7 - this to depression for which Robinson was taking antidepressants.

Dr. Moschella's progress notes also indicate that Robinson's

- 8 - "fatigue syndrome" was independent from his diagnosis of

sarcoidosis. Record at 365.

In June 2000, UNUM sought an independent functional capacity

evaluation (FCE) of Robinson. Steven M. Coppola performed the

FCE and concluded that, based upon Robinson's occupation,

"Robinson is currently physically capable of functioning in the

medium category of work for an eight hour work day in full time

capacity." Record at 211. Also in June 2000, Dr. Randall again

reviewed Robinson's medical file and considered the results of

the FCE. He concluded: (1) Robinson was physically capable of

performing his regular occupation;(2) the medical file showed

occasional references to fatigue and related it to other

symptoms, such as depression; and (3) there was no objective

support for Robinson's claim of "decreased intellectual

concentration" as a result of Robinson's sarcoidosis. Record at

202 .

On July 6, 2000, an UNUM vocational rehabilitation

counselor, John C. Meyers, was asked if Robinson could perform

his occupation based upon the results of the FCE. Meyers

concluded that Robinson's job was a sedentary position and that. based upon the results of the FCE, Robinson could perform his

jo b .

C. Denial of Long-term Benefits Beyond Twenty-Four Months

On August 9, 2000, UNUM denied Robinson's claim for long­

term disability benefits beyond the twenty-four month period.

UNUM's denial was premised upon Dr. Randall's multiple reviews of

Robinson's medical records and Dr. Villanueva's correspondence

with UNUM, the results of the FCE, and Meyers' determination that

Robinson's job was sedentary. UNUM sent a letter to Robinson,

stating:

At this time, there is no medical data on file to support any restrictions or limitations which would preclude Mr. Robinson from performing the material duties of his sedentary occupation on a full-time basis as described above. If you have new or additional information to support Mr. Robinson's claim for disability benefits, please provide it to this office within the next 30 days. If Mr. Robinson has medical records that objectively support his claim of decreased intellectual concentration, such as neuropsych evaluations, he should provide these records for review.

Record at 197. Robinson appealed the denial. In support of his

appeal, Robinson submitted the following: a letter from Dr.

Villanueva; a vocational assessment report conducted by Jack Bopp

(a certified rehabilitation counselor); Robinson's account of his

- 10 - job duties; and literature on sarcoidosis. Dr. Villanueva's

letter noted that an exhaustive evaluation had been done to

discover the etiology of Robinson's "chronic fatigue symptoms."

Record at 77. Dr. Villanueva stated that he had "no other

explanation other than sarcoidosis to explain [Robinson's]

disabling fatigue. Furthermore, Dr. Villanueva concluded that:

While I have relied on Mr. Robinson's symptoms to gauge his degree of disability, my assessment is not based solely on his symptoms. I now have objective evidence that the sarcoidosis remains active in the skin and internally, based on the gallium scan. I do feel that his current symptoms of fatigue and inability to concentrate because of this fatigue are very likely due to his known diagnosis of sarcoidosis.

Record at 77.

Bopp's report concluded that "Mr. Robinson's problems with

fatigue, concentration, malaise, and irritability would within

reasonable rehabilitation professional probability preclude him

from meeting the competitive demands of [his] position on a

consistent basis." Record at 56. Bopp's conclusion was based

upon a review of Robinson's medical records, the FCE, Dr.

Villanueva's correspondence with UNUM, consultations with

Robinson's doctors, and interviews with Robinson and his wife.

Bopp conducted no independent tests of Robinson's physical or

- 11 - mental capabilities. Bopp's report also rejected the results of

the FCE, noting, inter alia, that "opinions regarding the

implications of FCE findings for work capacity are[,] in general

industrial/vocational rehabilitation practice[,] the province of

Physicians not Physical Therapists." Record at 59. Lastly,

Bopp's report classified Robinson's position as consistent with

the United States Department of Labor's 0*Net occupational title

of computer and information systems manager.

On April 30, 2001, Dr. Randall again reviewed Robinson's

file, including the most recent letter from Dr. Villanueva.

Record at 44. After the review. Dr. Randall specifically

rejected Dr. Villanueva's medical conclusions, stating:

[Dr. Villanueva's] report does not provide evidence to support marked fatigue on a basis of [diagnosis] of sarcoidosis (e.g., significant abnormal lab tests). The abnormal thallium test showed some findings, but [Dr. Villanueva] didn't state[] date of test, nor how the findings were being treated - only that a Dr. Schick will evaluate [Robinson] for this. Even so, there is no evidence that there is cardiac disease to preclude sedentary work capacity. Also, [report] shows no [decrease] work capacity since 6/00. Conclusion - [Dr. Villanueva's] letter does not alter my prior opinion. Claimant is capable of sedentary to light work capacity.

Record at 44.

- 12 - On May 3, 2001, UNUM rehabilitation counselor, Debra J.

Clark, concurred only with Bopp's classification of Robinson's

job as a computer information systems manager, and amended UNUM's

vocational assessment to reflect her concurrence. She also

concluded that this occupation was a sedentary position.

On May 7, 2001, after reviewing the additional information

submitted by Robinson, UNUM upheld its decision to terminate

Robinson's benefits. UNUM found the additional information,

including Dr. Villanueva's most recent letter, insufficient to

reverse its previous decision. UNUM's letter included the

conclusions of Dr. Randall and noted that its vocational

assessment determined that Robinson's job was sedentary. UNUM's

Quality Performance Unit concurred with the result. It further

noted that the Plan's twenty-four month limitation on benefits

for "self-reported symptoms" (such as fatigue) had expired and

Robinson was not entitled to benefits beyond the limitation.

There were no other administrative appeals available to Robinson,

who subseguently initiated this action.

II. STANDARD OF REVIEW

When the denial of benefits is challenged under ERISA

- 13 - 1132(a)(1)(B), "the standard of review depends largely upon

whether 'the benefit plan gives the administrator or fiduciary

discretionary authority to determine eligibility for benefits or

to construe the terms of the plan'" Leahy v. Raytheon Co.,

(lst Cir. 2002)(guoting Firestone Tire & Rubber Co. v.

Bruch,

(1989). If discretionary authority is

given under a benefit plan, "a deferential arbitrary and

capricious standard of review is mandated." See id.; see also

Terry v. Baver Corp.,

(1st Cir. 1998). "This

standard means that the administrator's decision will be upheld

if it is reasoned and supported by substantial evidence in the

record." Vlass v. Raytheon Employees Disability Trust,

(2001) (guotation omitted). Substantial evidence means

evidence that is "reasonably sufficient to support a conclusion."

The presence of contradictory evidence "does not, in itself,

make the administrator's decision arbitrary."

Robinson does not dispute that the Plan gives UNUM

discretionary authority to determine eligibility for benefits.

He contends, however, that I must, in essence, apply some form of

heightened review because UNUM operated under a conflict of

interest in making its decision. Robinson argues that UNUM

- 14 - operated under a conflict of interest because it is responsible

for determining whether a claimant is eligible for benefits and,

if so, paying for those benefits.

The First Circuit recently held that, "[t]o affect the

standard of review, however, a conflict of interest must be real.

A chimerical, imagined, or conjectural conflict will not strip

the fiduciary's determination of the deference that otherwise

would be due." Leahy,

(citing Doyle v. Paul

Revere Life Ins. Co.,

(1st Cir. 1998) . It is

conjectural to allege that a conflict exists simply because an

award of benefits would come from the same entity that is

responsible for determining the eligibility for those benefits.

Without more, this general assumption does not indicate an

improper motivation on the part of UNUM, and finding no such

improper motivation given the circumstances of this case, I

proceed "to simply ensure that the termination decision was not

objectively unreasonable in light of the available evidence."

Pari-Fasano v. ITT Hartford Life and Acc. Ins. Co.,

(1st Cir. 2000).

- 15 - III. DISCUSSION

Robinson claims that UNUM's decision to terminate his

disability benefits was arbitrary and capricious. He argues that

UNUM's decision was based solely upon Dr. Randall's review of

Robinson's medical records and the results of the FCE. Robinson

claims that Dr. Randall's opinions ignored or disregarded the

opinions of Dr. Villanueva, and unreasonably reguired objective

support for Robinson's symptom of mental fatigue. Robinson also

insinuates that UNUM employed a "scheme of denial" that was

carried out in bad faith. In response, UNUM argues that Dr.

Villanueva's opinions were considered, but rejected, and that

both Robinson and Dr. Villanueva repeatedly failed to provide

objective support demonstrating that he was disabled because of

mental fatigue.

A. Considering Dr. Villanueva's Opinion

The record is replete with evidence that UNUM repeatedly

reviewed Dr. Villanueva's clinical notes and considered his

opinions. Furthermore, on more than one occasion UNUM reguested

additional information and clarification from Dr. Villanueva,

presumably to ensure that Dr. Randall fully explored Dr.

- 16 - Villanueva's medical findings and conclusions. Indeed, in its

denial letters, UNUM directly addressed Dr. Villanueva's

opinions. There is simply no basis to conclude that UNUM ignored

or disregarded Dr. Villanueva's medical opinions.

What UNUM did not do (and what I perceive as Robinson's real

argument here) is simply accept the opinion of the treating

physician. Dr. Villanueva. Plan administrator's are not

reguired, however, to give controlling weight to the opinion of a

treating physician. See Sheppard & Enoch Pratt Hosp., Inc. v.

Travelers Ins. Co.,

(4th Cir. 1994); see also

Chandler v. Raytheon Employees Disability Trust,

(D. Mass. 1999); Greene v. Metropolitan Life Ins. Co.,

(D.R.I. 1996). Reguiring a plan

administrator to adopt the opinion of a treating physician would

vitiate the administrator's role of determining whether an

employee is disabled. See Sheppard & Enoch Pratt H o s p .,

. Furthermore, when presented with conflicting medical

opinions, such a reguirement would also undermine the

administrator's responsibility to weigh the conflicting evidence

and make an informed determination regarding disability. See

- 17 - Vlass,

(administrator's responsibility is to weigh

conflicting evidence). Accordingly, absent certain

circumstances, which are not present in this case, UNUM was

simply not reguired to give conclusive weight to Dr. Villanueva's

opinion. See Doe v. Travelers Ins. Co.,

(1st

Cir. 1999); Garcia v. Raytheon Employees Disability Trust,

(D.N.H. 2000) .

Additionally, it was not unreasonable for UNUM to rely upon

the opinions of a non-examining physician, such as Dr. Randall,

in reaching an eligibility determination. See Greene,

(collecting cases). This principle holds true even

where the non-examining physician's opinion, as here, contradicts

that of the examining physician. See

; see also

Dovle,

("Sufficiency, of course, does not

disappear merely by reason of contradictory evidence.").

B. Evidence of Decreased Concentration

In this case, it was reasonable for UNUM to reguest that

Robinson provide objective support for his claim that he was

disabled due to the symptom of mental fatigue. Robinson argues

that fatigue includes a decrease in the ability to concentrate.

- 18 - and that this is a well-known symptom of sarcoidosis. Therefore,

Robinson should not have been required to provide anything more

than Dr. Villanueva's diagnosis of sarcoidosis and his conclusion

that Robinson suffered disabling mental fatigue because of the

disease.

I note that imposing an objective evidence requirement may

be an abuse of discretion in some cases where the terms of the

benefits plan do not mandate such a requirement, and the etiology

of the disability cannot be rooted in objective medical testing.

See Mitchell v. Eastman Kodak,

(3d Cir. 1997)

(finding it arbitrary and capricious to require objective

evidence of chronic fatigue syndrome under terms of plan); see

also Loque v. Reliance Standard Life Ins. Co.,

.

In this case, however, the Plan expressly states that

disabilities "which are primarily based on self-reported symptoms

. . . have a limited pay period up to 24 months." Record at 7 91.

Two reasonable conclusions may be drawn from this limitation on

self-reported symptoms. First, UNUM apparently had no obligation

to entertain Robinson's claim beyond the twenty-four month period

if it reasonably concluded that his claim was primarily based

upon self-reported symptoms of mental fatigue. Second, the

- 19 - Plan's limitation of benefits for self-reported symptoms leads to

the rational conclusion that in order to recover benefits beyond

the twenty-four month period, Robinson's disability had to be

founded upon something more than his subjective reports of

fatigue. In other words, either the self-reporting limitation

applied and UNUM had no obligation to pay benefits beyond the

twenty-four month period4, or Robinson had to demonstrate that he

was disabled by providing UNUM with something more than his

subjective reports of fatigue.

This is not a case where UNUM disputed the etiology of the

employee's disease. Rather, it guestioned whether the

manifestations of the condition rendered Robinson "unable to

perform the duties of any gainful occupation for which [he was]

reasonably fitted by education, training or experience," as

mandated by the Plan. Record at 782. Based upon the terms of

the Plan, most notably the self-reported symptoms provision, it

was reasonable for UNUM to guestion Dr. Villanueva's medical

opinion, which UNUM found to be based in part upon Robinson's

4 I note that UNUM, upon Robinson's administrative appeal, indicated that in addition to upholding its decision it concluded that Robinson's claim was limited by the self-reporting symptoms provision of the Plan.

- 20 - self-reports, and seek additional objective support.

Dr. Villanueva's initial physician's statement indicated

that the only limitation on Robinson's ability to work was

"exertion of the upper and lower extremities." This suggests

that the extent of Robinson's disability was physical in nature,

and did not include mental fatigue. Dr. Villanueva, in response

to UNUM's reguest for additional information, later stated that

Robinson's symptom of fatigue "has severly diminished his

capacity to physically function and intellectually concentrate

for more than 1-2 hours a day." Record at 673. Thus, contrary

to his initial physician's statement filed with Robinson's claim

for benefits. Dr. Villanueva subseguently stated that Robinson

suffered physical and mental fatigue.

Robinson's fatigue was, at one point, attributed to

depression and withdrawal from various drug treatments - neither

of which are necessarily permanent conditions. Dr. Moschella's

progress notes echo these conclusions. Furthermore, Dr.

Villanueva's medical conclusions regarding the basis of

Robinson's mental fatigue appears to waiver between attributing

it to chronic fatigue syndrome and sarcoidosis. Lastly,

according to UNUM's file notes. Dr. Villanueva concluded that

- 21 - Robinson's fatigue was justifiable "[w]hen skin lesions flare."

Dr. Moschella's progress notes state that Robinson's skin lesions

were 85% clear in December 1999, and that Robinson continued to

experience significant improvement through March 2000. Despite

the clearing of skin lesions. Dr. Villanueva concluded on

February 3, 2000 that Robinson continued to be disabled because

of fatigue.

I also note that Bopp's report states that Robinson's normal

day (since he ceased working) consists of meditating, writing in

his journal, reading, following the stock market, browsing

websites, and reading and responding to email. Further, he tries

to attend a weekly service and a Bible study group once a week.

This level of mental activity appears to contradict Dr.

Villanueva's conclusion that Robinson suffers from fatigue that

limits his ability to concentrate for more than two hours a day.

Given the apparent fluctuations in Dr. Villanueva's medical

conclusions and opinions on Robinson's fatigue, and given the

terms of the Plan, it was reasonable for UNUM to reguire

additional objective support for Robinson's claim that his

sarcoidosis manifested itself in mental fatigue, which rendered

him disabled beyond the twenty-four month period. UNUM notified

- 22 - Robinson early on in the claims process that it may require

additional information regarding Robinson's fatigue because it

was "unsure" of the basis of the claim. Indeed, UNUM later

suggested that Robinson undergo neuropsychological testing to

establish proof of his mental fatigue.5 Robinson never underwent

additional testing and relied solely upon Dr. Villanueva's

medical opinions.6

C. The Alleged "Scheme of Denial"

I find no merit to Robinson's claim that UNUM acted in bad

faith. UNUM has an obligation to ensure the veracity of claims

of disability. It is also the responsibility of plan

5 Robinson states that such testing would have been a "waste of time," since he believes UNUM predetermined that it was going to deny his claim at all costs. There is no indication in the record that UNUM would not have considered additional proof if submitted by Robinson. On the contrary, UNUM repeatedly sought additional information and considered it. Further, in its denial letter, it expressly suggested that Robinson submit additional evidence for its review.

6 Robinson argues that Dr. Villanueva did conduct objective medical tests and found the results to be abnormal. Dr. Villanueva concluded that the results indicated that Robinson suffered from active sarcoidosis. First, Dr. Randall disagreed with the interpretation of some of the test results. Further, UNUM never challenged the diagnosis of sarcoidosis, rather, it challenged whether the manifestation of his condition - fatigue - rendered him unable to perform his occupation under the terms of the Plan.

- 23 - administrator's to weigh the evidence before it, including

conflicting medical and professional opinions. In light of these

duties and obligations, I can infer no bad faith from UNUM's

conduct in this case. UNUM notified Robinson from the beginning

that it was "unsure" about his claim of disability due to

fatigue. Even though it appears that UNUM could have flatly

rejected Robinson's claim under the Plan's self-reported symptoms

limitation, it repeatedly reguested additional information from

Robinson and his treating physician in order to fully consider

the claim before it.

Lastly, I find no merit to the assertion that Dr. Randall's

opinion served as the "blueprint" for a "scheme of denial." It

is true that UNUM's initial denial letter fully explained its

position and incorporated the medical conclusions of its

associate medical director. Dr. Randall. This, by itself, does

nothing to demonstrate that UNUM acted in bad faith. Further,

the fact that UNUM's vocational assessment, reguested FCE, and

medical reviews occurred at different times does not prove that

UNUM acted in bad faith. Robinson offers nothing to support his

claim that UNUM somehow plotted to deny Robinson's claim.

D. The Record Supports UNUM's Decision

- 24 - According to UNUM's letter to Robinson notifying him of the

termination of his benefits, UNUM's conclusion that Robinson

could perform his regular occupation was based upon all the

medical and vocational evidence in the record. This evidence

included: (1) Dr. Villanueva's correspondence to UNUM; (2)

Robinson's medical records; (3) Dr. Randall's review of

Robinson's medical records and Dr. Villanueva's correspondence;

(4) the results of the FCE; and (5) UNUM's vocational assessment

report.

Although Dr. Randall disagreed with the medical conclusions

of the treating physician. Dr. Villnueva, this is not enough to

render UNUM's decision arbitrary or capricious. See Vlass,

; Terry,

; Dovle,

. The

same may be said about the disagreement between the results of

the FCE and Bopp's report. Given: (1) the results of the FCE;

(2) Dr. Randall's opinion; (3) the lack of objective support

regarding Robinson's inability to concentrate; (4) the

fluctuations in Dr. Villanueva's assessment of Robinson's

fatigue; (5) Dr. Moschella's progress notes; and (6) the

vocational assessment report, UNUM's decision was not arbitrary

and capricious. At best, the record does not reflect a single,

- 25 - clear conclusion as to Robinson's disability status due to mental

fatigue.

Based upon a review of the entire record, UNUM's decision

was supported by evidence that was "reasonably sufficient to

support [its] conclusion." Vlass,

. While I may

have weighed the evidence in this case differently, I may not

substitute my judgment for that of UNUM. See Terry,

; Dovle

.

IV. CONCLUSION

For the foregoing reasons, I deny Robinson's motion for

judgement on the administrative record (Doc. No. 9) and grant

UNUM's motion for judgment on the administrative record (Doc. No.

8) .

SO ORDERED.

Paul Barbadoro Chief Judge

March 12, 2003

- 26 - cc: James C. Wheat, Esq. Byrne J. Decker, Esq.

- 27 -