1

The Honorable Catherine D. Perry, United States District Judge for the Eastern

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-4000

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Sandra S. Hillery, *

*

Plaintiff-Appellant, *

*

v. * Appeal from the United States

* District Court for the

Metropolitan Life Insurance Company; * Eastern District of Missouri.

The Limited Long Term Disability *

Program; *

*

Defendants-Appellees. *

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Submitted: May 15, 2006

Filed: July 18, 2006

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Before MURPHY, JOHN R. GIBSON, and BENTON, Circuit Judges.

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BENTON, Circuit Judge.

Metropolitan Life Insurance Company terminated long-term disability benefits

to Sandra S. Hillery after determining she was no longer disabled. The district court1

granted summary judgment for MetLife. Hillery appeals. Having jurisdiction under

28 U.S.C. § 1291, this court affirms.
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I.

Hillery was a co-manager of a Victoria's Secret, participating in the Limited

Long Term Disability Program. On April 5, 1991, she quit after being diagnosed with

Systemic Lupus Erythematosus. In January 1992, she began receiving long-term

disability benefits from MetLife. She was continually evaluated by several physicians

and rheumatologists over the next ten years, who all reached similar conclusions.

In April 2002, Hillery's doctor noted that her lupus was no longer active, despite

a positive ANA. Instead, the doctor explained that most of her problems were due to

fibromyalgia. On January 14, 2003, another doctor confirmed this assessment. All

the doctors still agreed, however, that she could not return to work. Based on these

reports, MetLife ordered additional examinations. On April 1, MetLife's in-house

physician, Dr. Greenhood, conducted an independent medical review of Hillery's

records. Greenhood agreed with Hillery's doctors for the most part, although he

concluded from the records that she only had mild lupus. He could not explain her

pain and fatigue, but said her subjective complaints were the result of fibromyalgia,

stating: "Most patients that have fibromyalgia are capable of work in the sedentary to

light categories." He did not find objective evidence for previous diagnoses of

peripheral neuropathy or cognitive deficit. Greenhood concluded Hillery's chances

of successfully returning to work were poor based only on her age and the length of

time out of work.

MetLife then requested an independent medical examination. Dr. Samudrala

reviewed the medical records and physically examined Hillery for 45 minutes.

Samudrala noted that she had normal strength, coordination, sensation, reflexes, and

gait. There was no acute inflammatory change or swelling in her joints. Further,

Samudrala observed four Waddell Signs (of malingering), remarking that she "does

not put forth full effort during the clinical examination." Samurala concluded that her

subjective complaints were disproportionate to the clinical and laboratory findings,
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and that she was capable of light duty work, including 5 hours of sitting, 2 hours of

standing, and 1 hour of walking per day. 

On September 16, MetLife issued an Employability Assessment Report based

on Samudrala's examination. It considered Hillery's age, medical history, motor-skill

impairments, education, work history, and proximity to labor markets. The report

listed four jobs that she was "realistically qualified to perform within the local

economy." On September 18, 2003, MetLife terminated long-term disability benefits

based on its determination that she was no longer disabled under the plan.

On March 14, 2004, Hillery submitted a written appeal, attaching new medical

records from several doctors. Dr. Esther explained she suffers from several

conditions, including SLE and fibromylagia, but that "her [lupus] is controlled with

the use of medications." An opthamologist stated that Hillery's dry eyes would require

her to take breaks from work every two hours, but that she was capable of sedentary

work. An allergist noted that her costochondritis "has not been well controlled" due

to peptic ulcer disease and an allergy to sulfa. A neurologist concluded she had

"rather severe bilateral sensory motor median neuropathies across the carpal tunnels,"

but that her lower extremities were normal.

On appeal, MetLife had two different doctors review all of Hillery's medical

records, including the new ones. They concluded that the records indicated her lupus

was "mild-to-marginal at best and not of a disabling degree given that she has not

sustained internal organ damage or involvement." On May 17, 2004, MetLife upheld

the termination of benefits.

II.

A grant of summary judgment is reviewed de novo. See Barnhart v. UNUM

Life Ins. Co. of Am., 179 F.3d 583, 587 (8th Cir. 1999). Summary judgment is
2

MetLife claims Hillery is precluded from raising this argument for the first

time on appeal. However, she raised the issue before the district court on page 13 of

her "Memorandum in Support of Plaintiff's Motion for Summary Judgment," filed

June 20, 2005. 

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appropriate if the evidence, viewed most favorably to the nonmovant, shows no

genuine issue of material fact and that the movant is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56(c). This court reviews de novo a district court's

determination of the appropriate standard of review under ERISA. See UNUM, 179

F.3d at 587. 

The district court used an abuse of discretion standard. See McGee v. Reliance

Standard Life Ins. Co., 360 F.3d 921, 924 (8th Cir. 2004). "[T]he plan administrator's

decision to deny benefits will stand if a reasonable person could have reached a

similar decision." Woo v. Deluxe Corp., 144 F.3d 1157, 1162 (8th Cir. 1998). A

reasonable decision is one supported by substantial evidence, which is more than a

scintilla but less than a preponderance. Id. The parties agree this is the correct

standard, although Hillery argues a less deferential standard should apply because

there is "a palpable conflict of interest or a serious procedural irregularity" which

"cause[d] a serious breach of the plan administrator's fiduciary duty" to her.2

 Id. at

1160–61.

Hillery alleges four procedural irregularities: 1) MetLife failed to review or

consider all of Hillery's medical information; 2) the independent medical examination

was perfunctory; 3) MetLife made false or inaccurate statements; and 4) MetLife

failed to consider her treating physicians' opinions or her subjective complaints of

pain. The mere presence of procedural irregularities, however, does not warrant the

less deferential standard. See McGarrah v. Hartford Life Ins. Co., 234 F.3d 1026,

1031 (8th Cir. 2000). "A claimant must offer evidence that 'gives rise to serious doubts

as to whether the result reached was the product of an arbitrary decision or the plan

administrator's whim' for us to apply the less deferential standard." Chronister v.
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Baptist Health, 442 F.3d 648, 654 (8th Cir. 2006), quoting Woo, 144 F.3d at 1160. To

invoke this standard, any alleged procedural irregularity must be so egregious that it

might create a "total lack of faith in the integrity of the decision making process."

Layes v. Mead Corp., 132 F.3d 1246, 1251 (8th Cir. 1998).

First, Hillery claims MetLife breached its fiduciary duty by not reviewing all

of her relevant medical information. The record, though, illustrates MetLife did

consider all relevant information. In a letter of July 30, 2003, Dr. Samudrala

summarizes the "[e]xtensive documents mailed to me and also those brought by the

claimant." Additionally, two letters, both dated May 6, 2004, from Dr. Lumpkins and

Dr. Jares, list numerous and extensive physician reports from throughout Hillery's

disability that were reviewed. Thus, there is ample evidence that MetLife reviewed

and considered Hillery's entire medical record before making its final decision. The

one record that possibly supports her argument is Dr. Greenhood's April 1, 2003,

"Physician Consultant Review," which lists only reviewed material dating back to

1999. However, this irregularity is not so egregious as to create a total lack of faith

in the integrity of the decisionmaking process, especially considering the extensive

documentation provided overall. Therefore, it does not warrant application of the less

deferential standard.

Next, Hillery argues MetLife breached its duty by performing only a

perfunctory, 45-minute independent medical examination, which cannot amount to

substantial evidence. She also asserts that MetLife improperly relied on Samudrala's

false and inaccurate statements, and that a physiatrist, such as Dr. Samudrala, is

unqualified to determine whether a person has the physical capabilities to perform

sedentary to light job duties. She cites no authority for these propositions. Contrary

to her claims, Samudrala considered Hillery's subjective complaints and conducted a

reasonable physical examination, as well as a motor examination and functional

assessment. She also reviewed numerous documents, provided by both MetLife and

Hillery, regarding her medical history. Samudrala's conclusions were not entirely
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inconsistent with other physicians' earlier impressions, and paralleled the opinions of

doctors Greehood, Lumpkins, and Jares. There is no evidence either that it is unusual

for physiatrists to conduct these types of examinations, or that Samudrala made false

or inaccurate statements. Thus, Hillery cannot show that MetLife acted dishonestly

or from improper motive when using Samudrala's report as part of its decisionmaking

process. See Neumann v. AT&T Commc'ns, Inc., 376 F.3d 773, 781 (8th Cir. 2004)

(describing requirements for less deferential standard to apply); see also Pralutsky v.

Metro. Life Ins. Co., 435 F.3d 833, 838 (8th Cir. 2006). 

Finally, Hillery claims MetLife failed to consider her treating physicians'

opinions and her subjective complaints of pain. However, the record shows her

medical records and her subjective complaints were reviewed by several physicians.

In fact, it was the reports of her treating physicians indicating her lupus was inactive

that caused MetLife to review her status. She argues, though, that a plan administrator

cannot deny benefits based solely on the absence of medical evidence. See House v.

Paul Revere Life Ins. Co., 241 F.3d 1045, 1048 (8th Cir. 2001). But, this is not a case

where the plan administrator possessed only a scintilla of evidence; the medical

opinions of several physicians supported MetLife's decision, and MetLife included the

treating physicians' reports in making its determination. In any event, MetLife is not

required to defer to her treating physicians. See Black & Decker Disability Plan v.

Nord, 538 U.S. 822, 830–32 (2003).

There is neither evidence that the termination of long-term benefits was a

product of an arbitrary decision of the plan administrator's whim, nor any procedural

irregularity so egregious that it created a total lack of faith in the integrity of the

decisionmaking process. Thus, the less deferential standard does not apply and this

court reviews for abuse of discretion.

Under section 2.26 of Hillery's long-term disability plan, a participant is totally

disabled if the participant:
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(a) is under the regular care of a Physician; and

(b) as a result of an Illness/Injury having an Onset Date while the

Participant is a Participant;

(i) during the twelve (12) months immediately

following the Benefit Commencement

Date, the Participant is unable to perform

any and every duty related to the

Participant's regular occupation in which

he or she was engaged immediately prior

to the occurrence of the Illness/Injury;

(ii) thereafter, the Participant cannot work at

any gainful occupation for which the

Participant is reasonably qualified, or could

become qualified, by education, experience

or training.

Given this definition of "totally disabled," MetLife had substantial evidence that

Hillery could work at any gainful occupation for which she is reasonably qualified or

could become qualified. The examinations and reports from doctors Samudrala,

Lumpkins, Jares, and Greenhood – as well as the conclusions of some of Hillery's

treating physicians – permit a reasonable person to reach a similar decision: that she

was no longer totally disabled under the terms of the plan. Therefore, MetLife did not

abuse its discretion by terminating her long-term disability benefits.

III.

Hillery also asserts that MetLife breached its fiduciary duty when it did not

consider her age and her length of unemployment. As she concedes, there is no

Eighth Circuit or ERISA requirement that a plan administrator consider age, if not

specifically required by the plan. And while she argues, without providing any

evidence, that very few employers will hire a 54-year-old woman, the plan's plain
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language states that a person be able only to work a job for which she is, or can

become, qualified. The plan does not speak to the difficulty of getting that job.

However, in the end, it does not matter because the record reflects that MetLife's

"Employability Assessment Report" did note and consider her age and time off, as

well as her previous work history and Dr. Samudrala's conclusions about her physical

limitations. 

IV.

The judgment of the district court is affirmed.

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