NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 19-2959 ________________

GREGORY ADDINGTON,

Appellant

v.

SENIOR VICE PRESIDENT HUMAN RESOURCES CONSOL ENERGY, INCORPORATED, as Plan Administrator of the Consol Energy Inc Flexible Benefits Program Long Term Disability Plan; LIBERTY LIFE ASSURANCE COMPANY OF BOSTON; AMANDA PIPENBACHER, also know as Amanda Quinto

Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 2-17-cv-00444) District Judge: Honorable Marilyn J. Horan ________________

Submitted under Third Circuit LAR 34.1(a) On April 16, 2020

Before: CHAGARES, SCIRICA and ROTH, Circuit Judges

(Opinion filed: December 30, 2020)

OPINION *

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. ROTH, Circuit Judge

After Gregory Addington’s disability benefits were terminated, he sued the

administrators of the plan seeking continued payment of them. He appeals the District

Court’s decision to grant summary judgment against him. For the reasons that follow, we

will affirm.

I.

Addington began working as an underground section foreman at Consol Energy in

May 1992. As an employee at Consol, he participated in its Health and Welfare Plan,

under which Consol served as the plan administrator and Liberty Life Assurance

Company served as the claims administrator. In January 2012, Addington stopped

working as a result of chronic knee, back, and neck conditions. He received short-term

disability benefits through the Plan from February 2012 to August 2012. Liberty

subsequently approved Addington for long-term disability (LTD) benefits. To be eligible

for LTD benefits under the Plan, a claimant “must become Totally Disabled.” 1

The Plan gives Consol and Liberty considerable discretion. By its terms, Consol

has “the discretionary authority to determine eligibility[,] . . . interpret plan provisions[,] .

. . and decide issues of credibility and fact” while Liberty has “the discretionary authority

and power to construe all terms, provisions, conditions and limitations of the Plan.” 2 The

Plan also specifically states that Consol and Liberty have the “sole discretion to

1

.

. 2 determine what is Suitable Employment for any individual and what is a reasonable

compensation for that position.” 3

As required by the Plan, Addington applied for Social Security disability benefits

and was found eligible by the Social Security Administration (SSA) in December 2012. 4

After he was found eligible for Social Security disability benefits, Liberty requested an

update regarding his conditions and received a note from his primary care physician,

stating that Addington was “unable to return to work as coal miner” and “permanently

disabled for all work activities.” 5 In October 2013, Liberty received additional

information from the primary care physician as well as from a pain management

specialist. A medical file review was then conducted by Dr. Lisa Nocera. Based on Dr.

Nocera’s conclusion that Addington was not impaired and had “no restrictions or

limitations,” 6 Addington’s case manager at Liberty advised him in December 2013 that

his LTD benefits were no longer payable because he was not precluded “from performing

the material and substantial duties of [his] occupation or any occupation” and thus was no

longer totally disabled under the Plan. 7 Addington appealed that determination in June

2014. About a month later, Liberty reinstated his benefits retroactively. 8

3

. 4 Liberty was informed of this development, and in January 2013 requested that Addington return a sum equivalent to the back pay Addington received from the Social Security Administration for being disabled from July to December 2012. 5

.

. 7 App. 1089–1092.

. 3 Addington had knee replacement surgery in August 2015. The surgeon informed

Liberty after the surgery that he believed Addington could return to work in January 2016

with accommodations and could return to “full duty” work in February 2016. 9 The

surgeon also replied “no” when asked whether Addington was “being disabled by [his]

office.” 10 A vocational rehabilitation consultant for Liberty reviewed Addington’s

medical records and concluded that there were three occupations that Addington could

perform, based on his education, training, and current physical capacities: maintenance

dispatcher, production scheduler, and work order clerk. 11 On January 20, 2016,

Addington was informed by Liberty that his benefits were no longer payable because he

was no longer totally disabled. The letter noted Addington’s surgery and stated that

Liberty had “fully considered the Social Security Administration’s ruling to approve

Social Security Disability benefits.” 12

On July 15, 2016, Addington again appealed the termination of his benefits and

submitted additional medical records. A few days later, Liberty informed Addington that

it had completed its review of his request for reconsideration and determined that benefits

were payable. 13

Liberty referred Addington’s medical records for additional peer review. The

report of this review, dated August 24, 2016, contained a detailed list of the records

9 App. 993–94.

. 11 App. 989–91. 12 App. 985–88.

. 4 reviewed and a summary of Addington’s medical history. The reviewing physician noted

Addington’s Social Security disability benefits and recounted his conversation with

Addington’s primary care physician, who maintained that he did not believe Addington

could return to any work. The reviewing physician opined that Addington could “sustain

full time work capacity” with certain restrictions on lifting, sitting, walking and overhead

activity. 14 The vocational expert identified four occupations that were within

Addington’s education, training, and current physical capacities: maintenance dispatcher,

production scheduler, work order clerk, and expediter. 15

On September 7, 2016, the Liberty case manager informed Addington that Liberty

had completed a thorough review of his “continued eligibility for disability benefits” and

determined that his benefits were no longer payable. The letter recited the definition of

disability under the Plan, summarized the conclusions of the reviewers, and stated that

because Liberty determined that he could perform the suggested occupations with

reasonable continuity, he no longer met the definition of total disability under the Plan.

The letter also noted that Liberty had “fully considered the Social Security

Administration’s ruling to approve Social Security Disability benefits” to Addington. 16

By letter dated December 1, 2016, Addington again appealed. Liberty requested

another peer review report. This physician opined that Addington was functionally

impaired, but generally prescribed lesser restrictions than the previous reviewer. Four

. 15 App. 423–24.

. 5 days later, Liberty denied Addington’s appeal by letter. The letter cited the conclusions

of the reviewers and stated that Liberty “did fully consider the Social Security

Administration’s ruling” to award Social Security benefits to Addington. 17

In response, Addington sued Consol and Liberty alleging violations of the

Employee Retirement Income Security Act of 1974 (ERISA), specifically

(a)(1)(B). 18 Both sides moved for summary judgment. In granting Consol and

Liberty’s motion, the District Court concluded that “[e]ven when viewing the facts of

record and the reasonable inferences drawn therefrom in the light most favorable to

[Addington], [Consol and Liberty had] shown that no reasonable jury could find that

Liberty reached the determination at issue in an arbitrary or capricious fashion such that

the determination should not be upheld.” 19 On appeal, Addington argues that the District

Court’s grant of summary judgment against him was erroneous. 20

17 App. 263–67. 18 The complaint contained a second cause of action under state law that was dismissed below. Addington does not appeal that dismissal.

. 20 Addington also asserts that the District Court erred in refusing to consider deposition testimony regarding Liberty’s claims process. Because “under most circumstances, the record for . . . review of ERISA benefits denial is the record made before the plan administrator, and cannot be supplemented during litigation,” Howley v. Mellon Fin. Corp.,

(3d Cir. 2010) (internal quotation marks omitted), deposition testimony obtained during the course of litigation would ordinarily not be part of the record. One exception to this bar against supplemental evidence is “evidence of potential biases and conflicts of interest that is not found in the administrator’s record.”

However, Addington neither points to the kind of bias or conflict of interest that is the subject of that exception, nor does he identify another exception. 6 II. 21

“We review the District Court’s grant of summary judgment de novo,” applying

“the same standards and presumptions as the District Court.” 22 To prevail on summary

judgment, the moving party must show that there is no genuine dispute of material fact,

with all facts “viewed in the light most favorable to the non-moving party” and “all

reasonable inferences drawn in that party’s favor.” 23 Because the Plan confers on Consol

and Liberty the discretionary authority to determine eligibility for benefits, construe the

terms of the Plan, and decide issues of fact, we must apply the arbitrary and capricious

standard when we review their denial of benefits, their interpretations of the Plan, and

their factual findings. 24 An administrator’s decision is arbitrary and capricious if it is

without reason, unsupported by substantial evidence or erroneous as a matter of law. 25

An administrator’s factual findings are not arbitrary and capricious when they are

supported by substantial evidence. 26 We have defined “substantial evidence” to mean

relevant evidence that “a reasonable mind might accept as adequate.” 27

In Addington’s view, his medical records establish his total disability as the Plan

defines that term. He argues that Consol and Liberty’s determination to the contrary was

21 The District Court had jurisdiction to hear the case under

,

(e), and 28 U.S.C § 1367. We have jurisdiction over this appeal under

. 22 Sapa Extrusions, Inc. v. Liberty Mut. Ins. Co.,

(3d Cir. 2019). 23 Jutrowski v. Twp. of Riverdale,

(3d Cir. 2018) (internal quotation marks omitted). 24 Fleisher v. Standard Ins. Co.,

, 120–21 (3d Cir. 2012). 25

(internal quotation marks omitted). 26

27

(internal quotation marks omitted). 7 arbitrary and capricious because (1) Liberty’s decision to deny him benefits conflicts with

the weight of the medical evidence, (2) Liberty failed to consider the SSA’s decision to

award him disability benefits, (3) Liberty abruptly reversed course during his appeals

process by deciding to pay his benefits before finally terminating them one month later

based on substantially the same record, and (4) Liberty acted inequitably in denying him

benefits after it had identified occupations paying substantially less than the benefits he

was entitled to. Even viewing the record in the light most favorable to Addington and

drawing all reasonable inferences in his favor, we disagree.

First, Liberty’s decision was not against the weight of the medical evidence. The

following facts are not in dispute. After Addington’s knee surgery, his operating

physician, opined that he could return to work in January 2016 with accommodations and

in February 2016 with no accommodations. Liberty’s letters of denial in September 2016

and January 2017 cited the reports provided by the physicians who reviewed Addington’s

medical records and concluded that despite his impairments Addington could work with

certain accommodations. The vocational expert provided her analysis based on the

restrictions prescribed by the reviewing physicians. Finally, Liberty relied on the

vocational expert’s suggestions to conclude that Addington could engage in suitable

employment and was thus not totally disabled under the Plan.

Addington relies primarily on the opinion of his primary physician who

consistently opined that Addington is totally disabled. However, Liberty was not

8 required to “accord special deference to the opinions of treating physicians.” 28 To the

extent that Addington challenges specific conclusions drawn by physicians and analysts

employed or contracted with by Liberty, we decline to “substitute [our] own judgment for

that of the defendants in determining eligibility for plan benefits.” 29 Our role is to

determine whether Liberty’s decision to deny Addington benefits was arbitrary and

capricious. On these facts, we cannot conclude that Liberty’s decision was so.

Second, Addington’s belief that Liberty failed to consider the SSA’s decision to

award him disability benefits is unsubstantiated. Addington acknowledges that Liberty

stated in its letters to him in September 2016 and January 2017 that it had considered the

SSA’s ruling in denying his claim. However, he characterizes Liberty’s statement as

“boilerplate language.” Addington relies, ultimately, on Sixth Circuit precedent holding

that a reviewing court “should weigh [a plan administrator’s failure to explain why it is

taking a position different from the SSA] in favor of a finding that the decision was

arbitrary or capricious.” 30 However, Liberty did explain in those letters why it was

taking a different position from the SSA, stating on both occasions that its review

included vocational and medical assessments that were not considered by the SSA. 31

Third, the record does not support Addington’s belief that Liberty abruptly

reversed course in September 2016 by denying his benefits after approving his benefits

28 See Black & Decker Disability Plan v. Nord,

(2003) 29 Orvosh v. Program of Grp. Ins. for Salaried Employees of Volkswagen of Am., Inc.,

, 129 (3d Cir. 2000) (quoting Abnathya v. Hoffman-LaRoche, Inc.,

(3d Cir. 1993)). 30 Bennett v. Kemper Nat. Servs., Inc.,

(6th Cir. 2008). .

. 9 the month before. The facts establish that the August 2016 letter was not a final

determination on Addington’s eligibility, but an interim determination while a full

investigation was being carried out. The fact that a file review that included Addington’s

additional submissions was conducted after the August 2016 letter likewise points to the

same conclusion. Thus, we find no questionable aspect of or inconsistency among

Liberty’s pre-final decisions that could serve as evidence that Liberty abused its

discretion.

Finally, Addington argues that it is inequitable for defendants to avoid liability by

identifying occupations that earn less than his benefit level. The Plan, however, does not

tie a claimant’s eligibility for benefits to the pay the claimant may receive from an

identified occupation. Because Liberty has identified full-time employment in positions

that Addington was trained or qualified to perform, it had a sufficient basis to exclude

Addington from the definition of total disability under the Plan. Accordingly,

Addington’s challenge on this ground must fail.

III.

For the foregoing reasons, we conclude that Consol and Liberty’s denial of

Addington’s benefits was not arbitrary and capricious, Accordingly, we will affirm the

District Court’s grant of summary judgment in their favor.

10