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These motions were determined to be suitable for decision *

without oral argument. L.R. 78-230(h).

The caption has been changed to reflect the Amended Complaint **

filed November 18, 2005.

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

KERRY ATKINSON, )

) 02:04-cv-2010-GEB-JFM

Plaintiff, )

)

v. ) ORDER*

)

METROPOLITAN LIFE INSURANCE )

COMPANY, AT&T SHORT TERM )

DISABILITY PLAN FOR MANAGEMENT )

EMPLOYEES, AT&T LONG TERM )

DISABILITY PLAN FOR MANAGEMENT )

EMPLOYEES, )

)

Defendants. )

**

)

Pending are the parties’ cross-motions for summary judgment

or summary adjudication on Plaintiff’s action under the Employee

Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq. 

Plaintiff challenges the denial of her claim for benefits under the

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Plaintiff also seeks to recover disability benefits under the 1

AT&T Long Term Disability Plan for Management Employees (“LTD Plan”).

However, an employee is not eligible for LTD Plan benefits unless he/she

has received benefit under the STD Plan. Therefore, Plaintiff’s claim

for LTD Plan benefits depends on establishing that she was wrongfully

denied benefits under the STD Plan.

2

AT&T Short Term Disability Plan for Management Employees (“STD

Plan”).1

BACKGROUND

 The STD Plan is a self-funded employee benefit plan governed

by ERISA. (Administrative Record (“AR”) at 476.) BCAC acts as the

STD Plan administrator. (Pl.’s Statement of Undisputed Facts (“PUF”)

at 2.) Defendant, Metropolitan Life Insurance Company (“MetLife”)

acts as the third-party claims administrator for the STD Plan. 

(Defs.’ Statement of Undisputed Facts (“DUF”) at 6; AR at 25.) Any

benefit determination made by MetLife under the STD Plan may be

appealed to BCAC. (DUF at 2.) BCAC has sole discretion on benefit

determinations under the STD Plan, which are conclusive and binding on

all parties and not subject to further review. (Id.) 

Prior to January 24, 2003, Plaintiff worked for AT&T. (AR

at 159.) As a “management” employee of AT&T, Plaintiff was eligible

to apply for disability benefits under the STD Plan. (AR at 113.) On

January 24, 2003, Plaintiff ceased being actively employed by At&T. 

(DUF at 12.) On March 7, 2003, fourteen days after AT&T eliminated

Plaintiff’s job, Plaintiff submitted a provider’s report (“Report”) to

MetLife as part of a claim for disability benefits under the STD Plan. 

(DUF at 18.) Prior to making her claim for benefits, but while still

employed by AT&T, Plaintiff took off one week per month to treat her

back pain under the Family and Medical Leave Act (“FLMA”). (PUF at

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Plaintiff agrees that these were the only documents submitted 2

on March 7, 2003. Plaintiff contends, however, that Dr. Kreis’s letter

also contains an evaluation of a Computerized Tomography Scan and

diskography. (Pl.’s Response to DUF at 31.) These evaluations do not

appear to be part of the Administrative Record and, if they are,

Plaintiff fails to indicate where they are located.

3

5.) Plaintiff claimed in the report, her entitlement to short term

disability benefits from January 2004 to March 2004. (PUF at 5.) 

Plaintiff’s treating physician, Dr. Scott MacDonald,

completed the Report. (DUF at 19.) Dr. MacDonald diagnosed Plaintiff

with “degenerative disk disease,” found she was unable to sit “for

even short periods of time,” and concluded she was “disabled.” (Id.

at 21-22.) He noted, however, that Plaintiff could sit for twenty

minutes, stand for ten minutes, and walk for an hour, could climb,

reach above shoulder level, operate a motor vehicle, and had no

impairment of psychological functions. (Id. at 23-24.) The section

in the Report concerning “objective evidence of disability” was left

blank. (Id. at 26.) 

Along with the Report, Plaintiff also submitted one page of

progress notes from Dr. MacDonald dated October 17, 2002; a one page

Magnetic Resonance Imaging scan dated May 20, 2002; and a letter from

Dr. Paul Kreis to Dr. MacDonald dated November 21, 2002. (Id. at 2

27.) Dr. Kreis’s letter revealed Plaintiff was evaluated for 

subjective complaints of lower back pain. (Id.) Dr. Kreis noted

Plaintiff’s latest epidural steroid injection treatments provided

“excellent relief with a 60% reduction in her pain for two weeks.” 

(Id. at 28.) Dr. Kreis opined that Plaintiff’s treatment permitted

her to engage in physical therapy and other activities of daily life. 

(Id. at 29.) 

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Paragraph 4.10 states: “A disabled employee shall not be 3

entitled to Disability Benefits if he declines to permit the Committee

(BCAC) to make or have made by a physician from time to time, such

examinations as the Committee may deem necessary in order to ascertain

the Employee’s condition, or if he fails to give proper information

respecting his condition, or if he prevents the necessary examination by

absenting himself from home without arranging with the Committee, or

giving satisfactory reasons for not doing so, and furnishing the

necessary evidence or if he fails to comply with notice to meet the

Committee, at its offices or elsewhere, when his condition and location

permit of his doing so.”

4

On March 13, 2003, MetLife contacted Plaintiff by telephone

to inform her that her claim was denied. (DUF at 40.) MetLife later

confirmed this telephonic communication in writing. (Id. at 42.) On

March 21, 2003, Plaintiff was allowed to submit further documentation

on her claim to MetLife following the initial denial on March 13,

2003. (Id. at 44.) On March 28, 2003, MetLife denied Plaintiff’s

claim in writing for a second time. (Id. at 52-53.) 

In the March 28 denial letter MetLife explained Plaintiff’s

claim was denied pursuant to paragraph 4.10 of the STD Plan. (Id. at 3

53.) MetLife listed several reasons for the denial. It noted that

Plaintiff had been treated for degenerative disk disease since 1994,

and that she had received an epidural steroid injection for that

condition up to six times per year since 1994. (Id. at 54.) MetLife

also referred to Plaintiff’s acupuncturist’s statement that there was

“a noticed improvement [in Plaintiff’s condition] with the treatment

plan.” (Id. at 55.) Further, MetLife referenced Dr. MacDonald’s

observation that Plaintiff could “sit for 20 minutes, stand for 10

minutes, walk for one hour, lift 20 pounds occasionally, climb, reach

above shoulder level, and operate a motor vehicle.” (Id. at 56.)

On July 31, 2003, Plaintiff appealed MetLife’s decision to

BCAC. (Id. at 58.) Plaintiff claimed that the notes provided by Dr.

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MacDonald were “the most complete notes” available, and reiterated her

symptoms. (Id. at 59-60.) Plaintiff also included with her appeal a

four-page claim report listing prescription purchases from May 2000

through April 2003, and a note from a physical therapist dated

March 21, 2003, that stated Plaintiff was evaluated on January 13,

2003. (Id. at 61.)

Plaintiff’s appellate claim file was forwarded to Dr. Robert

Porter, a doctor certified in occupational medicine, for review. (Id.

at 62-63.) Dr. Porter considered Plaintiff’s degenerative disk

disease ailment a common condition, and found that Plaintiff’s

objective evidence was not of “clinical significance.” (Id. at 64.)

Further, he found that Plaintiff’s condition and symptoms did not

support absence from “sedentary” work for longer than seven days. (AR

at 354.) Dr. Porter also found that without evidence of nerve root

impingement or instability in the back, there was insufficient

evidence supporting Plaintiff’s contention that she was unable to

perform her job. (Id. at 65). 

BCAC upheld MetLife’s decision that denied Plaintiff’s claim

for benefits on October 6, 2003. (Id. 69.) BCAC informed Plaintiff

that its in-house medical advisor had come to the conclusion that

MetLife’s decision was correct. (Id. at 69, 74.) 

On July 12, 2004, Plaintiff’s attorney sent a letter to

MetLife and additional medical records in support of Plaintiff’s claim

for benefits, stating Plaintiff may have previously failed to submit

sufficient evidence of disability. (Id. at 75, 77.) On

August 10, 2004, Plaintiff’s attorney sent another letter to Metlife

and medical records from Plaintiff’s visit to the UC Davis Pain

Management Clinic on June 17, 2004,. (Id. at 76.) On August 5, 2004,

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6

BCAC’s secretary called MetLife to retrieve the additional documents

sent by Plaintiff’s attorney. (Id. at 78.) Subsequently, BCAC

advised MetLife that it would not hear a further appeal because the

time for appeal had lapsed; however a medical advisor for BCAC

evaluated Plaintiff’s entire appellate claim file, which included the

documentation Plaintiff’s attorney sent on July 12, 2004, and

August 10, 2004. (Id. at 79-81.) The medical advisor concluded that

the original denial was appropriate. (Id.) 

DISCUSSION

I. Standard of Review

A “denial of benefits challenged under ERISA is reviewed de

novo unless the benefit plan gives the fiduciary or administrator

discretion to determine eligibility for benefits or construe the terms

of the plan.” Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101,

115 (1989). If such discretion is given the court reviews the denial

decision for an abuse of discretion. Id.; see also Bendixen v.

Standard Ins. Co, 185 F.3d 939, 942 (9th Cir. 2005). But if a plan

administrator vested with such discretion acted under a conflict of

interest, the standard of review may become de novo. Atwood v.

Newmont Gold Co., Inc., 45 F.3d 1317, 1322-23 (9th Cir. 1995). 

The parties agree that the STD Plan vests BCAC with “sole

and complete discretionary authority” to determine benefit

eligibility. (DUF at 3.) Plaintiff, however, argues the de novo

standard of review applies because BCAC is both the funding source and

administrator of the STD Plan. Defendants concede that BCAC’s dual

role as funding source and plan administrator creates an apparent

conflict of interest, but argue Plaintiff has not established that

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Plaintiff argues that the initial decisions of MetLife were 4

incorrect and should be reviewed by this Court independently of BCAC’s

decision. However, BCAC rendered the final administrative decision on

Plaintiff’s disability claim, and only that decision is being reviewed.

Burke v. Pitney Bowes, Inc. Long-Term Disability Plan, No. C 04-4483,

slip op. at 4 n.2, 2006 WL 13097 (N.D. Cal. Jan. 3, 2006) (citing Abatie

v. Alta Health & Life Ins. Co., 421 F.3d 1053, 1062 (9th Cir. 2005)).

7

this apparent conflict requires application of a de novo standard of

review. 

“[An] abuse of discretion standard [is applied] to the

decisions of [an] apparently conflicted [plan administrator] unless

the affected beneficiary comes forward with . . . material, probative

evidence . . . tending to show that the [plan administrator’s]

self-interest caused a breach of [its] obligations to the

beneficiary.” Atwood, 45 F.3d at 1322-23. Since Plaintiff has not

made this showing, the abuse of discretion standard of review applies

in this action.

II. Review of BCAC’s Decision4

Under the abuse of discretion standard BCAC’s decision is

reviewed “to determine whether it is ‘so patently arbitrary and

unreasonable as to lack foundation in factual basis.’” Cervantes v.

Metropolitan Life Ins. Co., 388 F. Supp. 2d 1164, 1169 (E.D. Cal.

2005) (quoting Taft v. Equitable Life Assurance Soc’y, 9 F.3d 1469,

1471 (9th Cir. 1993)). Three inquiries are generally made under this

standard of review: (1) whether a denial was given without

explanation, (2) whether there is a clearly erroneous finding of fact,

or (3) whether the decision conflicts with the plan’s plain meaning. 

Snow v. Standard Ins. Co., 87 F.3d 327, 331 (9th Cir. 1996). 

Plaintiff argues that BCAC abused its discretion when it denied her

claim because: (1) the decision was inadequately explained to her, (2)

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there were clearly erroneous findings of fact, and (3) BCAC’s

interpretation of “disability” conflicts with the STD Plan’s language. 

MetLife informed Plaintiff on March, 13, 2003, her claim was

going to be denied for failure to provide adequate information on her

disability. (DUF at 40.) Plaintiff was subsequently allowed to send

more information to MetLife regarding her claim, which she did on

March 21, 2003. (Id. at 44.) MetLife then sent a detailed letter to

Plaintiff in which it cited section 4.10 and explained why all the

information she had provided was inadequate. (Id. at 53.) MetLife

explained that based on the information provided Plaintiff could

perform the functions of her job with AT&T. (Id. at 52-57.) 

Specifically, MetLife referenced Plaintiff’s treating physician’s

report that stated Plaintiff could sit for twenty minutes, walk for

ten minutes, and stand for an hour; and Plaintiff’s acupuncturist who

opined that treatments were generating a “noticed improvement” in

Plaintiff’s condition. (DUF at 52-57.) 

Plaintiff also submitted more information directly to BCAC

in July of 2003. (Id. at 61.) BCAC denied her claim based on the

lack of objective evidence in her file. (Id. at 69.) Another letter

was sent to Plaintiff that explained the evidence submitted did not

indicate a level of severity or impairment that would prevent

Plaintiff from working. (DUF at 74.) BCAC provided Plaintiff

sufficient information about the grounds for the denial of her claim

in its letter to her, and thus did not abuse its discretion under this

factor.

Plaintiff also argues that the review of her medical

information resulted in BCAC issuing clearly erroneous findings of

fact. Plaintiff contends that her subjective opinion of her ability

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Plaintiff makes inconsistent arguments about the nature of her job,

but “does not dispute her job was sedentary.” (Pl.’s Reply to Def.s’

Opp. to Pl.’s Mot. Summ. J. at 7.) Plaintiff’s own statements indicate

she could change between sitting and standing positions to alleviate her

pain, even though doing so made it harder for her to get work done. (AR

339.) 

Plaintiff also states she was in two car accidents, but this 6

contention is not supported by any evidence. 

9

to work should outweigh the objective medical evidence BCAC found to

the contrary. Plaintiff argues that though her job was sedentary, she

could not perform the limited tasks it required. She points to her 5

own testimony and her monthly FMLA leave as evidence that her pain

rendered her unable to work. (AR 233.) She also argues that while her

treating physician, Dr. MacDonald, said she could sit for twenty

minutes, stand for ten minutes, and walk for an hour, he did not say

she could do this repetitively throughout the course of a day. She

contends that her pain prevented repetitive movements, and that

despite a sit/stand option at her job she was unable to fully perform

all of her job functions. She claims that her condition was

worsening, and cites as evidence of this a rise in the number of

medical consultations, her FMLA leave, her subjective statements, and

her request for Intradiscal Electrothermal Therapy. (PUF at 5.) 6

BCAC found there was insufficient evidence to support a

finding of objective impairment that would fully prevent Plaintiff

from performing the functions of her job. Defendant based this

finding upon its review of Dr. Porter’s evaluation, Plaintiff’s entire

claim file, and Plaintiff’s own evidence. (DUF at 74.)

In his evaluation, Dr. Porter noted that degenerative disk

disease a common ailment, and found that Plaintiff’s condition and

symptoms did not support more than a week’s absence from “sedentary”

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work. (Id. at 64; AR at 354.) Specifically, Dr. Porter’s found that

the evidence submitted by Plaintiff was not of “clinical

significance,” and that “without evidence of nerve root impingement or

instability in the back, there was not valid evidence of disability.”

(Id. at 63-65.) 

Additionally, Defendants assert Plaintiff’s own physician

found she could sit for twenty minutes, walk for an hour, stand for

ten minutes, drive, reach above shoulder level, and had no impairment

of psychological function. (DUF at 20-26.) Defendants note that Dr.

McDonald left blank the section of the Report entitled “objective

evidence of disability.” (Id. at 26.) Defendants also point to

Plaintiff’s acupuncturist’s finding that Plaintiff’s treatment plan

was creating a noticeable improvement in her pain. (Id. at 55.) 

Defendants argue that based on all available evidence, Plaintiff was

able to work at her job with the condition and no objective medical

evidence supported a finding to the contrary. 

BCAC’s factual determination that Plaintiff was not disabled

under the STD Plan is not clearly erroneous simply because it gave

greater weight to the objective evidence in Plaintiff’s claim file

than the subjective evidence Plaintiff presented. The use of an

objective test for evaluating benefit claims under ERISA is not

unreasonable per se. Voight v. Metropolitan Life Insurance Co., 28

F. Supp. 2d 569 (C.D. Cal. 1998) (allowing the administrator to rely

on objective medical evidence). BCAC relied on valid evaluations of

a board certified physician specializing in occupational medicine who

found Plaintiff was not impaired from performing the tasks of her

sedentary job. BCAC also accorded Dr. Porter’s evaluation great

weight, and considered Plaintiff’s doctor’s evaluation which

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reaffirmed she could perform light work and was not entirely prevented

from engaging in basic tasks. Consequently, BCAC’s decision was not

based on clearly erroneous findings of fact. 

Finally, Plaintiff argues BCAC’s decision conflicts with the

STD Plan’s definition of disability. Defendants have proffered a

definition of disability derived from the STD Plan description which

defines a person as “disabled” if: 

“The Claims Administrator (MetLife) determines that you are

unable to perform the duties of your job and you cannot be

accommodated at another job within the Company (AT&T).” 

(AR at 465.) Plaintiff has neither shown this definition of

disability is deficient nor that BCAC used another definition. This

definition of disability clearly requires “that [a claimant] be unable

to perform the duties of her job or another job within the Company.” 

(AR at 465.) Here, BCAC found Plaintiff could still perform the

duties of her job with AT&T because her job was “sedentary” and Dr.

Porter found that any work loss at her “sedentary job” for more than

seven days was unsupported by her medical record. (Id. at 64; AR at

354.) Thus, BCAC’s decision does not conflict with the STD Plan’s

definition of disability.

CONCLUSION

For the reasons set forth above, Defendants’ motion for

summary judgment is granted, and the Clerk of the Court shall enter

judgment in favor of Defendants. 

IT IS SO ORDERED.

Dated: March 10, 2006

/s/ Garland E. Burrell, Jr.

GARLAND E. BURRELL, JR.

United States District Judge

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