Thompson v. Liberty Life Assurance 06-CV-117-SM 09/24/07 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Kim Irene Thompson, Plaintiff

v. Civil No. 06-cv-117-SM Opinion No.

Liberty Life Assurance Company of Boston, Defendant

O R D E R

Kim Thompson brings this action seeking benefits under her

former employer's long-term disability plan (the "Plan"). See

generally Employee Retirement Income Security Act,

(a) ("ERISA"). Defendant, Liberty Life Assurance Company of

Boston ("Liberty"), acts as both the insurer underwriting

benefits provided by the Plan and Plan Administrator. In its

capacity as Plan Administrator, Liberty determined that although

Thompson plainly suffers from a fairly serious medical condition,

she did not, as of September of 2004, meet the eligibility

requirements for long-term disability benefits. Of course, that

denial of Thompson's application for benefits meant that Liberty

(in its capacity as insurer of the Plan) was not obligated to

make payments to her. Pending before the court are the parties' cross-motions for

judgment on the administrative record. The court is constrained

to conclude that because judicial review of Liberty's decision to

deny Thompson long-term disability benefits is narrow, and the

decision cannot be said to be "arbitrary and capricious," Liberty

is entitled to judgment as a matter of law.

Background

Pursuant to this court's Local Rule 9.4(b), the parties have

submitted a Joint Statement of Material Facts (document no. 15),

describing Thompson's recent medical history, including her

numerous visits to several doctors, nurses, and physical

therapists, the non-surgical treatment she has received, and the

fairly substantial number of medications she has been prescribed.

Those facts relevant to the disposition of this matter are

discussed as appropriate.

Standard of Review

Cases brought under ERISA require the district court to

employ a somewhat modified version of the standard of review

typically applied to motions for summary judgment. Rather than

take evidence or consider affidavits and deposition testimony,

the court is called upon to "evaluate the reasonableness of an

2 administrative determination in light of the record compiled

before the plan fiduciary." Leahy v. Raytheon Co..

(1st Cir. 2002). Consequently, this court sits more as an

"appellate tribunal than as a trial court" in determining whether

a plan administrator's benefits eligibility decision is

sustainable. Rl. This means that "summary judgment is simply a

vehicle for deciding the issue," and "the non-moving party is not

entitled to the usual inferences in its favor." Orndorf v. Paul

Revere Life Ins. Co..

(1st Cir. 2005) (citation

omitted).

Discussion

I. Plaintiff's Burden of Proof under ERISA.

Because the parties agree that the plan vests the Plan

Administrator (i.e.. Liberty) with discretionary authority to

make benefits eligibility determinations, the court must evaluate

Liberty's denial of Thompson's application for benefits under the

deferential "arbitrary and capricious" standard of review. See

generally Firestone Tire & Rubber Co. v. Bruch.

(1989). But, says Thompson, because Liberty is both the Plan

Administrator and the entity responsible for paying benefits, its

resolution of her application for benefits was, at least

potentially, clouded by a conflict of interest. Given that

3 circumstance, Thompson asks the court to apply a "heightened"

arbitrary and capricious standard when reviewing Liberty's

decision. See Plaintiff's memorandum (document no. 18-2) at 12

(citing Sanderson v. Continental Casualty Corp..

(D. Del. 2003)). The court necessarily disagrees.

To be sure, numerous courts, including this one, have

questioned the propriety, and even fairness, of the "arbitrary

and capricious" standard of review in cases where the same entity

that makes eligibility determinations also funds benefit

payments. Two judges on a split panel of the First Circuit Court

of Appeals recently suggested that the full court, sitting en

banc, ought to revisit the standard of review applicable to ERISA

cases in which the plan administrator determines benefits

eligibility and also funds benefit payments. Denmark v. Liberty

Life Assurance Co. of Boston.

(1st Cir. 2007)

(Judge Lipez wrote: "I think it is time to reexamine the standard

of review issue in an en banc proceeding. Although Judge Howard

dissents from the judgment agreed to by Judge Selya and myself,

he agrees with me, as indicated in his dissent, that we should

reexamine the standard of review issue."). A petition for en

banc review is apparently pending in Denmark. But, unless and

until the court of appeals (or the Supreme Court) changes the

4 governing standard of review, this court is obliged to apply the

law as it currently exists.

Under the current law of this circuit, merely pointing out

that a plan administrator is also the entity that pays any

benefits found due under the plan is insufficient to warrant

departure from the applicable arbitrary and capricious standard

of review. See, e.g.. Wright v. R.R. Donnelley & Sons Co. Group

Benefits Plan.

(1st Cir. 2005) ("[T]he fact that

the plan administrator will have to pay the plaintiff's claim out

of its own assets does not change the arbitrary and capricious

standard of review.") (citation and internal punctuation

omitted); Dovle v. Paul Revere Life Ins. Co..

(1st Cir. 1998) (same). To warrant subjecting a plan

administrator's benefits eligibility determination to a stricter

standard of review, a plaintiff must point to some evidence

suggesting that its decision was actually influenced by improper

factors.

Here, beyond pointing out the potential conflict of interest

facing Liberty, Thompson has failed to identify anything in the

record suggesting that its benefits eligibility determination was

influenced by improper factors. Consequently, this court is

5 obligated to measure the appropriateness of Liberty's actions

against the highly deferential "arbitrary and capricious"

standard of review.

Under the arbitrary and capricious standard of review, this

court must uphold a plan administrator's benefits eligibility

determination if its decision was reasoned and supported by

substantial evidence. And, as the court of appeals has

repeatedly noted.

Evidence is substantial when it is reasonably sufficient to support a conclusion, and contrary evidence does not make the decision unreasonable. While arbitrary and capricious review is not the equivalent of a rubber stamp, a court is not to substitute its judgment for that of the decisionmaker.

Denmark,

(citations and internal punctuation

omitted). See also Dovle.

("Substantial evidence

. . . means evidence reasonably sufficient to support a

conclusion. Sufficiency, of course, does not disappear merely by

reason of contradictory evidence."). Necessarily, then, whether

the court would award benefits to Thompson under the Plan is

completely immaterial. The sole issue presented is whether there

is "reasonably sufficient" evidence in the record to support

Liberty's denial of benefits. There is.

6 II. Evidence Supportive of The Parties' Respective Positions

Thompson's last worked for her employer in March of 2004,

after which she began collecting short-term disability benefits

under the Plan for a period of six months. The question before

the court is whether Liberty improperly denied Thompson's

application for long-term disability benefits, which would have

begun in September of 2004.

As is frequently the situation in ERISA cases arising out of

contested benefits eligibility determinations, the record

contains evidence supportive of both parties' positions. For her

part, Thompson relies on her lengthy medical history and well-

documented diagnoses of multi-level disc degeneration. The most

compelling support for her position is an opinion issued by her

treating physician. Dr. Thomas Rock (an orthopedic surgeon). Dr.

Rock opined that Thompson suffers from a permanent impairment and

that, as of September of 2004, she was unable to work as a result

of severe pain caused by her disc disease. His opinion is both

well-supported and well-reasoned, and it is based upon a fairly

lengthy period of observation and treatment.

Additionally, Thompson points to the opinion of another of

her treating physicians - Dr. Peter Thompson - who, in the fall

7 of 2004, opined that she had "significant degenerative disc

disease with distal extremity pain." Admin. Rec. at 435. She

also relies on the opinion of Dr. Christopher Burns who, in

November of 2004, observed that Thompson had "degenerative disc

disease in the lumbar spine that has been quite debilitating."

Admin. Rec. at 201. Also supportive of her position is the

opinion of physician's assistant Timothy O'Brien, who, in July of

2004, opined that Thompson could not work and was unable to bend,

kneel, squat, climb, sit, reach, drive, or do any fine motor

activities. Admin. Rec. at 434.

Finally, Thompson points to various records relating to her

mental health counseling, which she says demonstrate the

psychological toll her disability has taken on her and document

the numerous medications she is taking as a result. Importantly,

however, none of those records seem to suggest (nor does Thompson

argue) that any of her counselors viewed her mental condition as

so severe as to be disabling.

In support of its view that its decision to deny Thompson

benefits was neither arbitrary nor capricious. Liberty points out

that Dr. Uri Ahn - another of Thompson's examining physicians -

acknowledged her painful back condition, but did not consider her to be disabled. Instead, Dr. Ahn opined that Thompson could work

eight hours a day, five days a week, and could frequently

lift/carry 10 pounds, stand, walk, sit, reach, drive, and perform

fine motor activities. He also opined that she could

occasionally bend, kneel, squat, and climb. Admin. Rec. at 411.

Two months later, in June of 2004, Ernest Roy, a physical

therapist, performed a functional capacity evaluation of Thompson

(frequently referenced in the record as an "FCE"). Mr. Roy

concluded that Thompson could work an eight-hour day and perform

at a medium duty level. He also expressed the opinion that

Thompson showed "significant performance inconsistencies with

regard to her lifting capacity test," which he suggested meant

that Thompson's test results were not representative of her

actual abilities. Admin. Rec. at 137.

Liberty also points out that, in the summer of 2004,

Thompson was examined by Dr. Anthony Parisi, an orthopedic

surgeon. Among other things. Dr. Parisi opined that Thompson

suffers from "low-grade multilevel disc degeneration." But, said

Parisi, Thompson's condition "does not usually cause significant

impairment in a 44-year-old female." Admin. Rec. at 550. He

concluded that Thompson's "symptoms appear[ed] to be in excess of

the physical and diagnostic findings." Dr. Parisi also noted

9 that Thompson's performance on the physical capacities

examination performed by Mr. Roy is "suggestive of symptom

magnification."

Subsequently, in late August of 2004, Liberty hired a

private investigator to observe Thompson for a period of 48

hours. That investigator reported that he saw Thompson at a

fitness center, walking in a smooth and erect manner and

performing sit-ups without any apparent discomfort. He also

observed Thompson carrying her gym bag and groceries, without any

apparent difficulty. Admin. Rec. at 525. Finally, the

investigator noted that Thompson entered and exited her sport

utility vehicle (which has a fairly high threshold) without

difficulty or discomfort. Rl. at 527.

Later, in November of 2004, Dr. Parisi completed another

report in which he opined that "the medical records only support

the diagnosis of milder degenerative disc disease, as would not

be unexpected in a person of 45 years of age." Admin. Rec. 456.

He also noted that Thompson's "symptoms appear in excess of the

physical and diagnostic findings." Rl. at 457. And, in the end.

Dr. Parisi concluded that the "diagnosis of significant disc

disease is not well-supported by the medical record. I do not

10 find evidence of significant pathology that would preclude the

insured from sedentary to light level of activity."

Finally, in January of 2005, Liberty sought the opinion of

Dr. C. David Bomar, a consulting physician who specializes in

orthopedic surgery. After reviewing Thompson's medical records.

Dr. Bomar concluded that: (1) those records do not support the

conclusion that Thompson is unable to perform light and medium

level work activities; (2) Thompson's subjective complaints of

pain are not consistent with the results of objective medical

testing and diagnostic imaging; (3) Thompson's functional

capacity examination was "characterized by inconsistencies and

submaximal effort"; (4) the surveillance video substantially

undermines Thompson's claims of disabling pain; (5) one of

Thompson's treating physicians - Dr. Ahn - concluded that she was

not disabled; and (6) another consulting physician who reviewed

Thompson's records - Dr. Parisi - shares the view that Thompson

overstates her pain and is not disabled. Admin. Rec. at 186-89.

Based upon all of the evidence contained in Thompson's

medical records, and in light of the opinions issued by several

doctors (both examining and consulting) , Liberty concluded that,

although Thompson "may continue to experience some symptoms, the

11 medical information contained in her file does not support

complications or restrictions or limitations severe enough to

prevent her from performing the material and substantial duties

of her own occupation." Admin. Rec. at 181. Accordingly,

Liberty concluded that Thompson was not "disabled," as that term

is defined in her former employer's long-term disability plan.

III. Liberty's Determination was not "Arbitrary or Capricious"

If this were a breach of contract case, in which Thompson

sued her insurance company for disability benefits, the outcome

might be different. There is, after all, substantial evidence in

her medical records (including the opinions of two treating

physicians) supportive of the view that Thompson is disabled.

But, because this case is governed by ERISA, what would

otherwise be an insurance coverage or breach of contract case is,

instead, one governed by principles of trust law. Liberty's

adverse benefits eligibility determination is subject to a far

more deferential standard of review. And, because there is also

substantial evidence in the record supportive of the view that

Thompson's complaints of disabling pain are overstated and that

she is, in fact, capable (albeit with some occasional discomfort)

12 of performing the modest exertional demands of her prior work as

a bank teller, the court cannot disturb Liberty's decision.

Although Thompson asserts that Liberty accorded too little

weight to the opinions of her treating physicians and gave too

much credence to the opinions of the non-examining physicians and

the brief surveillance video, the law is well-established that

Liberty was entitled to rely on such evidence. See Black &

Decker Disability Plan v. Nord,

(2003) ("Plan

administrators, of course, may not arbitrarily refuse to credit a

claimant's reliable evidence, including the opinions of a

treating physician. But, we hold, courts have no warrant to

require administrators automatically to accord special weight to

the opinions of a claimant's physician; nor may courts impose on

plan administrators a discrete burden of explanation when they

credit reliable evidence that conflicts with a treating

physician's evaluation."). See also Denmark,

(holding that the plan administrator was entitled to rely upon

the opinions of a nurse as well as non-examining physicians, over

the opinions of the plaintiff's treating physicians, and that it

could rely on surveillance evidence in reaching its decision).

13 Conclusion

Given the applicable standard of review, which affords

substantial deference to Liberty's adverse benefits eligibility

determination, the conclusion that the record supports Liberty's

decision is unavoidable. While the court obviously has no way of

knowing the precise extent of Thompson's disc disease or the

level of pain it causes her, the record does contain substantial

evidence supporting her claim of total disability by virtue of

the pain she experiences. Importantly, however, the record also

contains substantial evidence supporting Liberty's determination

that, while Thompson has certainly experienced some disc

degeneration and suffers from periodic flare-ups of discomfort,

that condition has not rendered her disabled.

To its credit. Liberty appears to have fully and carefully

reviewed Thompson's medical history and thoroughly investigated

her claims. Whether its decision was "correct" or whether this

court might have ruled differently on Thompson's application for

disability benefits are not questions before the court. Rather,

the issue presented is whether, in light of the entire record.

Liberty's decision was arbitrary and capricious. That Liberty

chose to credit the opinions of Dr. Ahn, Mr. Roy, Dr. Parisi, and

Dr. Bomar (and to give some weight to the findings of its private

14 investigator) over the opinions of Dr. Thompson and Dr. Rock

(and, earlier in Thompson's treatment. Dr. Miller) cannot be said

to have been arbitrary or capricious. As the court of appeals

has repeatedly pointed out, when there is substantial evidence

supportive of both the claimant and the plan administrator, the

district court cannot overturn the plan administrator's decision

as arbitrary and capricious. Such is the case here.

For the foregoing reasons, as well as those set forth in

Liberty's memorandum. Liberty's motion for judgment on the

administrative record (document no. 21) is granted, and

Thompson's motion (document no. 18) is denied. The Clerk of

Court shall enter judgment in accordance with this order and

close the case.

SO ORDERED.

Steven J./McAuliffe Chief Judae

September 24, 2007

cc: William D. Woodbury, Esq. William D. Pandolph, Esq.

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