NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0435n.06 No. 10-1244 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

CHRI STI NA HUN TER, Plaintiff-Appellant,

v. L I FE I NSURANCE COMPANY OF NO R TH AMERI CA, Def endant- Appellee

. ) ) ) ) ) ) ) ) ) ) ) ON AP P E AL FROM THE UNI TED STATES DI STRI CT COURT FOR T HE EASTERN DI STRI CT OF MI CHI GAN

BEF ORE: COOK, McKEA GUE, a nd GRI FF I

N, Circuit J udg es. GRI FF I N, Circuit J udg e. I n this action broug ht pursuant to the Employ ee Retirement I ncome Security Act (“ERI SA”), 29 U.S.C. § 1001 et seq. , plaintiff Christina Hu n t er claims that her long- term disability (“L TD”) benef its wer e wrong fully terminated by defe ndant L ife I nsuranc e Company of North Americ a (“L I NA”)

. Hunter filed a motion for judgme nt on the administrative rec ord and L I NA cross-move d for summary

judgme nt. The district court g rante d defe ndant’s motion f or summary judgme nt and denied plaintiff’s motion, ruling that L I NA’s decision to te rminate Hunter’ s L TD benef its was not arbitra ry and ca pricious. We disag ree , and ther efor e re verse and re mand. I

. Hunter, a 53-y ear -old widow, has a long and well-doc umented history of numerous joint and spinal conditions known to cause chronic pain. Such conditions include deg ener ative joint disease,No. 10-1244

Hunter v. Life Ins. Co. of N. Am. deg ener ative arthritis, rheuma toid arthritis , osteoarthr itis, scapula r pain, fibromy alg ia, spondy lolithesis, and spinal stenosis. I t is undisputed that as a result of these aff lictions, Hunter has underg one over ten surg ical proce dures on her hips, knees, s h o u l d er s , and spine. Acc ording to Hunter’ s treating phy sicians, Hunter continues to suffe r fr om profound, chronic pain that seve rely limit s her f

unctional ca

pacity

. I n J uly 1997, Hunter was hi red by Wil liam Be aumont Hospital and there afte r promoted to the position of R ev en u e C y cle Manag er. As a Revenue Cy cle Manag er, Hunter was require d to “occ asionally ” lift and car ry ten pounds, “fr equently ” stand and walk, and “o cc as i o n ally ” climb stairs. I n addition, Hunter was require d to “occ asionally ” work overtime and extended shifts. The word “occ asionally ” indicates that the activity is require d 1-33% of the working day , and the word “fr equently ” indicates that the activity is require d 34-66% of the working day

. Howeve r, due to her poor health and an upcoming surg ery , Hunter’ s final day of work at Be aumont was Marc h 8, 2004. Hunter ha s not eng ag ed in any substantial ga inful activity since then. Citi ng chronic pain, sever e arthritis, and numerous surg ical proce dures, Hunter applied for L TD benefits under a L I

NA poli cy i s s u ed t o Be aumont pursuant to its ERI SA plan. As a C lass 1 employ ee, Hunter was entitled to L TD benef its if, “b ec au se of I njury or Sickness,

. . . she [was] unable to perf

orm all the materia l duties of

. . . her reg ular occupation[ .]” Ba sed upon the medical evidenc e, L I

NA appr oved Hunter ’s re quest for L TD bene fits on October 12, 2004. I n acc ordanc e with L I

NA policy require ments, Hunter applied for social secur ity disability benef its. I n May

2005, the Social Secur ity Administration ( “SSA”) found Hunter to suf fer from a

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Hunter v. Life Ins. Co. of N. Am. “disability ” as define d by the Social Security Act, and thus unable to eng ag e in any substantially g ainful acti vity as of November 25, 2003. There afte r, Hunter’ s monthly L TD benef its under the L I NA policy

wer e re duced by

the amount of he r SSA awar d. I n 2007, L I

NA revie wed and updated Hunter’ s medical files to deter mine her elig ibilit y for continued L TD benef

its. As part of this revie w, L I NA reque sted one of Hunter’ s trea ting phy sicians, Dr. Patricia Peters, to complete a phy sical ability assessment form. This assessment reve aled that 1 Hunter was capa

ble of “occ asionally ” sitti ng , standing , and walking , bu t was unable to work overtime or extended shifts. Ba sed upon Dr. Peters’ opinion, L I NA deter mined that Hunter would be unable to perf

orm her prior occupation as a Revenue Cy cle Manag er, but ref err ed her file for additional revie w. I n September 2007, L I

NA hired PhotoFax, I ncorpor ated to surveil Hunter and document her functional capa city

. This surveillance took place betwee n September 12 and September 15, 2007. On Se p t em b er 1 2 , 1 4, and 15, Hunter did not leave her home. On September 13, Hunter was captur ed on video as she car ried gro ce ries from the trunk of her vehicle into her home. The

L I NA asser ts that in 2007, it rec eived a phy sical ability assessment form fro m Dr

. J o h n 1 Tower , on e o f Hu n t er ’s trea ting phy sicians. Howeve r, this form is not contained within the administrati v e rec ord. I nstead, L I NA ref ers the court to the termination letter it sent to Hunter in 2008, which describes the result s o f the allege d assessment. Howeve r, L I NA’s description of t he phy sical ability asse s s m en t is hear say , Fe d. R. Evid. 801(c) , and fails to comply with the best evidenc e rule, Fe d. R. Evid. 1002 (“To prove the content of a writing , rec ording , or photogr aph, the origi n al wr iting, recording , or phot og raph is require d, except as ot herw ise provided in these rules or by Act of Cong ress.” ). Ac cording ly , we do not conside r this evidence

. - 3 -No. 10-1244

Hunter v. Life Ins. Co. of N. Am.

surveillance repor

t notes that Hunter “re moved a g allon of milk, small box es of wine, and a case of pop from her

trunk.” I n J anuar y 2008, L I

NA re quired Hunter t o underg o a functional capa city evalua tion. This evalua tion reve aled a signific antly diminis hed functional capa city that limit ed Hu n t er ’s ability to perf orm an occupation “even wi t h i n the Sedentar y work cate g ory .” Specifica lly , the phy sical thera pist found that Hunter was unable to lift objects over two pounds, car ry objects over one pound

more than fifty fee t, climb stairs, stoop, kneel, crouc h, cra wl, or work overtime or extended shifts. Howeve r, the phy sical thera pist found that Hunter was able to sit, stand, and walk on an “occ asional” basis. I n making these finding s, the phy sical thera pist noted that Hunter was consistent both when

awa re a nd unawa re of observa tion. Also in January 2008, L I

NA hired PhotoFax to perf orm additional surveillance of Hunter. On J anuar y 7, Hunter was observe d driving to and from a medical office and pumping g asoline. On J anuar y 8, surveillance ca p t ured Hunter as she exit ed her functional capa city evalua tion, walking

s l o wl y , hunched over, and with the assistance of a standard cane . On J anuar y 9, Hunt er wa s observe d as she walked from an automobile deale rship back to t h e p as seng er side of her vehicle. She moved slowly , but in a fluid and fully ere ct manner , and without the use of a cane . Hunter was later obse rved te st driving a vehicle f or a pe riod of fifte en minutes. I n April 2008, L I

NA sent Hunter’ s medical rec ords and the surveillance videos to MCMC, L L C, f or an independe nt f

ile revie w. Clay

ton Cowl, M.D., a prac titioner of internal, preve ntative, and occupational medicine, perf ormed the revie w. Dr. Cowl deter mined that while Hunter had

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Hunter v. Life Ins. Co. of N. Am.

“we ll-documented impairments involving deg ener ative chang es . . . o f th e lumbar and cer vical spinal reg ions . . . . [t] he video surveillanc e foota g e is quite incong ruent with the c laimant’s complaints” and “introduce s conce rn for malinge ring [.] ” There fore , Dr. Cowl conclude d that Hunter was able to pe rfor m w ork “at a sedenta

ry level

. . . as define d by [t he] D epar tment of L abor classifica tion.” Howeve r, Dr. Cowl ne ither conta cted Hunte r’s tre ating phy sicians nor e x amined Hunter

. Ba sed primarily upon the analy sis of Dr. Cowl and the surveillance videos, L I NA terminated Hunter’ s L TD benef

its on May 13, 2008. Specifica lly , L I NA deter mined that Hunter was phy sically capa ble of returning to her prior occupation of Revenue Cy cle Manag er, which was cate g orized as a “se dentar

y ” position. Hunter ther eaf ter filed a timely appea l. I n ch al l enging the t ermination of her L TD benefits, Hunter supplemented her medical file with the aff

idavits of David Montgome ry , M.D. and Pramod Ker k ar , M

. D., two of her trea ting phy sicians. Both doc tors conclude d that Hunter w as unable to return to her prior occ upation as a 2 Revenue Cy cle Manag er and that the surveillance videos did not demonstrate otherwise. Dr. Ker kar specific ally noted that based upon Hunter’ s “multiple spinal and joint patholog ies [t hat] will never be cu re d

. . . . [Hunter] will alway s suffe r with debilitating pain to some extent[ ,]” and that the
trea tment he provides is “ intended to ma nag e Mrs. Hunter’ s pain so that she may maintain a sense of persona l dignity by perf orming the m o s t b as i c activities of daily living, i.e., bathe and dress herse lf, cook for

herse lf, perf

orm light housew ork, and shop f or esse ntials.”

Dr. Montg omery

is an orthopae dic surg eon and D r. Ke rkar is an ane sthesiologist. 2 - 5 -No. 10-1244

Hunter v. Life Ins. Co. of N. Am.

For purposes of Hunter’ s appeal , L I NA sent Hunter’ s file to MES Soluti ons for a second independe nt file revie w. On J anuar y 12, 2009, Fr ank Polanco, M.D., board cer tified in preve ntative and occupational medicine, with added e x pertise in pain medic ine, provided a n opinion reg arding Hunter’ s functional capac ity

. I n his report, Dr. Polanco provided a detailed summary of Hunter’s medical r ecor ds without disputing the nature or extent of the under ly ing dia g noses. Neve rtheless, rely ing upon the surveillance videos, Dr. Polanco conclude d that Hunter reta ined t h e fu n ctional capa city to perf

orm “sede ntary ” work requiring “intermittent (less than 33%) standing and walking and li fting less than 10 pounds.” Dr . Polanco not ed that he dis ag ree d with the t rea ting phy sicians reg arding the extent of Hunter’ s phy sical limit ations, and that Hunter’ s 2008 functional capa city evalua tion “sig nificantly undere stimate[d] her phy sical capa ci ty

. ” D r . Po la n c o d id n o t d ir ectly assess the specific require ments of Hunter’ s former position as a Revenue Cy cle Manag er and did not perf orm a phy sical examination. Rely ing on Dr. Polanco’s opinion, L I NA upheld its termination of Hunter’ s L TD benef its on J an u ar y 1 6, 2009, finding that Hunter was able to perf orm her prior work as a Revenue C y cl e Manag er, a “sede ntary ” position. Hunter there afte r filed suit in the United States District Court for the Easter n District of Michig an. Upon Hunter’ s motion for judgme nt on the administrative rec ord and L I NA’s cross-motion for summary judgme nt, the district court held in favor of L I NA, g ranting summary judgme nt from the benc h. This appea l followed.

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Hunter v. Life Ins. Co. of N. Am.

I I

. “This Court revie ws de novo the district court’s ruling , apply ing the same leg al standard as the district court.” W

hitaker v. Hartford Life & Acc ident Ins. Co. , 404 F.3d 947, 949 (6th Cir. 2005). “Althoug h we likewise ordinarily revie w an ERI SA plan administrator’s decision deny ing benef its de novo, wher e, as here , the plan administrator is g iven the discretionar y au t h o ri t y to deter

mine elig ibilit y for benef

its or to construe the plan terms, we revie w the administrator’s decision to deny bene fits using the highly defe rential arbitra ry and capr icious standard of revie w.” Evans v. UnumProvide nt Corp. , 434 F.3d 866, 875 ( 6th Cir. 2006) (interna l quota tion mar ks, footnote, and citations omitted). The parties do not dispute that the policy g rants L I NA discretionar

y authority to deter mine benef

it eligibility

. The arbitra

ry and capr icious standard “is the least demanding fo rm of judicial revie w of administrative action.

. . . When it is possible to offe r a rea soned explanation, based on the evidenc e, for a particula

r outcome, that outcome is not arbitra ry or capr icious

. ” K

i l lian v. Healthsource Provident Adm’rs, In c. , 1 5 2 F.3d 514, 520 (6th Cir. 1998) (interna l quotation marks and citation omitted). Consequently , a decision will be upheld “if i t i s t he result of a delibera te principled

rea soning proce ss, and if it is supported by substantial evidenc e.” Id. (interna l quotation marks and citation omitted). “[T] he ultimate issue in an ERI SA denial of benef its case is not whether discrete
acts by the plan administrator are arbitra ry and capr icious but whether its ultimate decision deny ing benef its was arbitra

ry and capr icious. ” Spangler v. Lockhee d Martin Energy Sys., Inc. , 313 F.3d 356, 362 (6th Cir. 2002).

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Hunter v. Life Ins. Co. of N. Am.

Whil e the arbitra

ry a n d c a p r ic io u s s ta

n d ard is defe rential, “‘[i] t is not, howeve r, without some teeth.’” McD onald v. W

estern-Southe rn Life Ins. C o. , 347 F.3d 161, 172 ( 6th Cir. 2003) (quoting Cozzie v. Metro. Life Ins. Co. , 140 F. 3 d 1 104, 1107-08 (7th Cir. 1998)). “[M] ere ly beca use our revie w must be defe rential does not mean our revie w must also be inconseque ntial. Whil e a benef its plan may vest discretion in the plan administrat o r, t h e federal courts do not sit in revie w of the administrator’s decisions only for the purpose of rubber stamping those decisions.” Moon v. Unum Pro vi d en t C o r

p . , 405 F.3d 373, 379 (6th Cir. 2005). The obliga tion under ERI SA to revie w the administrative rec ord in order to deter mi n e whether the plan administrator acte d arbitra rily and capr iciously “inher ently

includes some re view of the quality and quantity of t he medical evidenc e and the opinions on both sides of the issues.” McD onald , 347 F.3d at 172. However, this revie w does not extend outside the administrative rec ord. Kalish v. Liberty Mut./Liberty Life Assurance Co. of Boston , 419 F.3d 501, 511 ( 6th Cir. 2005). This court has rec og nized that a conflict of interest exis ts when the insurer bot h decide s whether the employ ee is elig ible for benef its and pay s those bene fi t s. Gismondi v. United Techs. Corp. , 408 F.3d 295, 299 (6th Cir. 2005). I n this case , beca use defe ndant maintains such a dual role, “the potential for self-inter ested decision-making is evident.” Univ. Hosps. of Cleveland v. Emerson Elec. Co. , 202 F.3d 839, 846 n.4 (6th Cir. 2000). Howeve r, this conflict of interest does not displace
t h e ar b i trary and capr icious standard of revie w; rathe r, it is a fac tor that we consider wh en deter mining whether the administrator’s decisi o n t o deny benef its was arbitra

ry and capr icious. Kalish , 419 F.3d at 506. The revie wing court looks to see if there is evidenc e that the conflict in any

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Hunter v. Life Ins. Co. of N. Am.

way influence d the plan administrator’s decision. Carr v. Reliance Standard Life Ins. Co. , 363 F.3d 604, 606 n.2 (6th Cir. 2004). I I I

. Ba sed upon our revie w of the administrative rec ord, we hold that L I NA’s termination of Hunter’ s L TD benef

its was arbitra

ry and capr icious. First and fore most, L I NA failed to adequately consider Hunter’ s prior occupational require ments. I n order to be considere d “disabled” under the L I NA policy , Hunter is require d to demonstrate that “bec ause of I njury or Sickness,

. . . she is unable
to perf orm all the materia l duties of

. . . her regular occupation [.] ” (Emph as i s ad d ed

. ) As a Revenue Cy cle Manag er, Hunter was require d to fre quently walk and stand, and occa sionally work overtime and extended shifts. L I NA does not dispute that the employ er- provided “job require ments” form is controlling reg arding the phy sical require ments of Hunter’ s prior position. Howeve r, L I NA did not specific ally assess Hunter’ s ability to perf orm these, or an y o t her specific phy sical require ments of her

prior occ upation. I n terminating Hunter’ s L TD benef its, L I NA found that Hunter had the functional capa city
to perf orm “sede ntary ” work. Howeve r, while “the fac t that a claimant is able to eng ag e in sedenta ry work is an appropr iate consideration in some case s,” it is not an appropr iate consideration when “the Plan lang uag e [ at i ssue] expli citly state[s] that a participant is d i s ab l ed so long as ‘he is unable to perf orm all of the materia l and substantial duties of his occupation.’” Kalish , 419 F.3d at 506. Thus, the fac t that Hunter “mig ht be capa ble of sedenta

ry work cannot be a rational basis for finding that [she] was not disabled,” g iven that her former occupation require d her to walk and stand for sever al

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Hunter v. Life Ins. Co. of N. Am.

hours a day

. Id. at 507; see also Elliott v. Metro. Life Ins. Co. , 473 F.3d 613, 618 n.3 (6th Cir. 2006) (noting that a district court’s rea soning was in err or “bec ause i t relies on a g ener al notion of ‘sede ntary ’ work rathe r than on the duties t h at [ t h e claimant’s] occupation entailed” ). I ndeed, in deny ing Hunter’ s appea l, L I NA cate g orized her prior occupation as “sede ntary ,” meaning that it involved “wa lking or standing for brief periods of tim e” o r “o cc asi onally .” Howeve r, it is undisputed that as a Revenue Cy cle Manag er, Hunter was require d to walk and stand for 34-66% of the working day

. I n this case, ne ither L I

NA nor its eva luating phy sicians assesse d whether Hunter w ould be able to stand or walk for the intervals require d by her position as R ev en u e Cy cle Manag er, and nothing in the administrati v e r e c o r d in d ic ates that Hunter can return to a job with such require ments. 3 I n fac t, Dr. Polanco found tha t Hunter would be able to stand and walk on an “inter mittent” basis, meaning “less than 33%” of the working day

. This finding sug g ests that Hunter would be unable to pe rfor m the more demanding walking and standing require ments of her former occupation. Dr. Cowl simil arly deter

mined that Hunter was able to work at a “sede nt ar y l ev el” as define d by the Depa rtment of L abor

. This classifica tion require s a claimant to be able to walk and stand only “occ asionally .” 20 C.F.R. § 404.1567(a)

. I ndeed, if a position require s “a g ood deal of walking or standing ,” it is classified as “ light wor k.” 20 C.F.R. § 404.1567(b)

.

Both Drs. Cowl and Polanco listed Hunter’ s “job require ments” as a document assessed as 3 a part of their file revie w. Howeve r, mere mention of Hunter’ s job descr iption, without analy sis, is insufficient to demonstrate that these phy sicians actua lly considere d Hunter’ s ability to perf orm the phy sical demands of her prior occupa tion. See Elliott , 473 F.3d at 619; McD onald , 347 F.3d at 172. - 10 -No. 10-1244

Hunter v. Life Ins. Co. of N. Am.

Moreove r, there is nothing in the administrative rec ord indicating that Hunter has the ability
to work overtime or ex tended shifts, express require ments of her prior occupation. I n fac t, all the medical evidenc e indicates that Hunter would be unable to work any thing more than a reg ular forty

hour position. Acc ording ly , beca use L I NA did not assess the actua l require ments of Hunter’ s prior occupation, specific ally the walking , standing , and overtime require ments, its decision to terminate her L TD benef

its was arbitra

ry and capr icious. See Elliott , 473 F.3d at 618 n.3; Evans , 434 F.3d at 879-80; Kalish , 419 F.3d a t 506-07. I V. Whil e L I NA’s failure to addre ss the actua l require ments of Hunter’ s pri o r occupation is sufficie nt to render

its decision to terminate her L TD bene fits arbitrar

y and ca pricious, our re view

reve als additional err ors that further support this conclusion. Her e, signific ant evidenc e supports a disability finding , such as the 2 0 0 7 phy sical abili ty assessment performe d by Dr. P eter s, the 2008 functional capac ity evalua tion, the undi sputed medical recor ds demons t ra t i n g Hunter’ s numerous medical conditions, and the aff idavits of Drs. Montgome ry and Ker kar. Gene rally , when a plan administrator chooses to cre dit the medical opinion of one doctor over another , the decision cannot b e s ai d to have been arbitrar y and capricious. Id. at 169. Howeve r, t his court has also n o t ed t h at

a d mi n is tr a to r s c a n n o t arbitra

rily disreg ard reliable medical evide n c e d e mo n s tr a ti n g d is a b il it y in f a v o r of medical evidenc e lacking in thoroug hness and reliability

. See Evans , 434 F.3d at 877-79 (citing

case s).

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Hunter v. Life Ins. Co. of N. Am.

I n this case , L I

NA’s decision to cre dit the opinions of Drs. Cowl and Polanco over other medical evidence is questionable for sever al reasons. First, unl i k e Dr s . Montgome ry and Kerkar , Drs. Cowl and Polanco d i d not phy sically exam Hunter. The failure to perf orm a phy sical examination is “one fac tor that we may consider in deter mining whether a plan administrator acte d arbitra rily and capr iciously in g iving g rea ter weig ht to the opinion of its consulting phy sician.” See Kalish , 419 F.3d at 508. I ndeed, the lack of a p h y s ical examination is particula rly troublesome wher e, as here , the file revie wer s make critica l cre dibilit y deter m i n at i ons. See Calvert v. Firstar Fin., Inc. , 409 F.3d 286, 297 n.6 (6th Cir. 2005) (“[T]here is nothing inhere ntly improper with rely ing on a fi l e re view

. . . . Where, as here , howeve r, the conclusions from that revie w include critica l cre dibilit y deter

minations r e g a

r d in g a c la im a

n t’ s me d ic a l h is to r

y a n d sy mptomology , relianc e on such a r eview ma

y be inade quate.” ). I n addition, the analy ses provided by Drs. Cowl and Polanco wer e less than thoroug h. Both Drs. Cowl and Polanco descr ibe Hunter’ s detailed medical history , but then summarily conclude that Hunter’ s complaints of pain and limit ed functionality “ar e not supported” by the medical evidenc e. See Cooper v. Life Ins. Co. of N. Am. , 486 F.3d 157, 170 (6th Cir. 2007) (noting that “conc lusory and unsupported statements that the documentation of [t he claimant’s] functional capa city was insufficient to support a finding of disability ” is not enoug h to uphold the denial of L TD benef its). These conclusions are particula rly dubious in light of the fac t that neither doctor disputes the nature or extent of Hunter’ s numerous joint and spinal conditions.

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Hunter v. Life Ins. Co. of N. Am.

I n opining on Hunter’ s level of functionality , Drs. Cowl and Polanco rely e xc lu s ively on what they both perc eive as inconsistencies betwee n Hunter’ s asser ted level of functionality (docume nted during her 2008 functional capa city evalua tion) and her functionality display ed in the surveillance

v id e o s . H oweve r, while the surveillance footag e reve als some discrepa ncies betwe e n H u

n te r ’ s s ta te d and observe d functionality , these inconsistencies are rela tively minor, an d d o not indicate that 4 Hunter can perf

orm all the phy sical duties of her former occupation. See Hanusik v. Hartford Life Ins. Co. , No. 06-11258, 2008 WL 283714, at *4 (E.D. Mich. J an. 31, 2008) (noting that surveillance footag e of the claimant walking thirty minutes, opera ting a car , and p er fo rm ing other sm all tasks, “fa ils to show Plaintiff either perf orming any single or combination of activities for an eig ht

. . . hour period[.] ”); W

ilson v. Life Ins. Co. of N. Am. , 424 F. Supp. 2 d 1 1 4 6 , 1157 n.6 (D. Neb. 2006) (“N othing i n the rec ord comes close to establishing that [t he claimant’s] activities of daily living could rea sonably be equate d with the demands of a full-time job.”). I ndeed, out of over eig hty hours of surve illance, less than thirty minutes capture Hunter e ng ag ing in a ny activity whatsoeve r. 5
During her functional capa city evalua tion, Hunt er as s er t ed that she could only sit for ten 4 minutes, stand for two minutes, walk fo r fi v e minutes, drive for five minutes, and lift one pound without ag g rava ting her sy mptoms. Ba sed upon the surveillance videos, these statements appea r to be exag g era tions. L I NA place s g rea t emphasis on this court’s unpublished o p i n i o n i n Rose v. Hartford 5 F in a n c ia l Servic es Group, Inc. , 268 F. App’x 444 (6th Cir. 2008). Howeve r, Rose is distinguisha b le

. I n Rose , the claimant was surveilled as she conducted herse lf in a manner contrary to her claimed level of functionality

. Id. at 451. Howeve r, the inconsistencies betwee n the claimant’s stated level of functionality and the surveillance videos wer e more extreme than those prese nted h er e. For example, the claimant in Rose asser ted she could lift no more than three to fo u r p o u n d s, but was observe d lifting a 37.5 pound bag of d o g food. Id. at 451-52. Moreove r, the claimant in Rose provided “little” evidenc e demonstrating her claimed disability

. Id. at 450-52. I n contra st, Hunter - 13 -No. 10-1244

Hunter v. Life Ins. Co. of N. Am.

Hunter has never disputed her ability to occa sionally sit, stand, walk, rea ch, or drive. Moreove r, Drs. Montgome ry and Ker kar opined that the “non-e x ertional” activities display ed in the surveillance videos do not indicate that Hunter is a ble to pe rfor

m the require ments of her previous occupation. Whil e Dr. Polanco had the opportunity to a ddress and re fute these opinions, he failed
to do so. This f

ailure diminis hes the streng th of Dr. Polanco’s conclusions. See Calvert , 409 F.3d
at 296 (finding a revie wing phy sician’s repor t to be inadequa te beca

use, even though the revie wing p h y s ician “does mention [t he claimant’s doctors] by name, he does not explain why their conclusi o n s

. . . wer e re

jected out- of-ha

nd”). I n terminating Hunter’ s L TD bene fits and deny ing he r appe al, L I

NA fa iled to expl ain why it cre dited the medical opinions of Drs. Cowl and P o l an co over those of Drs. Montgome ry and Ker kar, particula

rly with reg ard to the signific ance of the surveillance videos. See Black & Dec ker Disabilit y Plan v. Nord , 538 U.S. 822, 834 (2003) (“Plan administrat o rs , of course , may not arbitra rily ref use to cr ed i t a claimant’s reliable evidenc e, including the opinions of a trea ting phy sician.”) ; Elliott , 473 F.3d at 620 (“[The administ rator] failed to offe r any rea son for rejec ting [t he trea ting phy sician’s] conclusions about [t he claimant’s] ability to work. Gene rally speaking ,
a plan may not reje ct summarily the opinions of a trea ting phy sician, but must instead g ive rea sons for adopting an alterna tive opinion.”). W hile trea ting phy sicians are not aff orded mandatory d eferenc e as require d in the Social Security context, Evans , 434 F.3d at 877, the fac t that L I NA “g ave g rea ter weig ht to a non-trea ting phy sician’s opinion for no appar ent rea son lends forc e to the has provided substantial medic al evidenc e supporting her c laimed disability

. - 14 -No. 10-1244

Hunter v. Life Ins. Co. of N. Am.

conclusion t hat [ i t ] acte d arbitra rily and capriciously ,” Elliott , 473 F.3d at 620 (interna l quotation marks and c itation omit ted). Finally , we note that L I

NA failed to consider the SSA’s deter mination reg arding Hunter’ s disability

. Gene rally , an ERI SA plan administrator is not bound by an SSA dete rmination finding of total disability

. W

hitaker , 404 F.3d at 949. Howeve r, it is inappropria te for a plan administrator
to ignor e an SSA awa

rd in making benef

it deter minations, espec ially when the claim an t wa s required to apply for SSA benef its. Benne tt v. Kemper Nat’l Servs., Inc. , 514 F.3d 547, 553 (6th Cir. 2008); Calvert , 409 F.3d at 293-95. I ndeed, “a decision by a plan administrator to seek and embra ce 6

an SSA deter

mination for its own benef it, and then ignor e or discount it later, casts additional doubt

o n t h e ad equac y of their evalua tion of

. . . [a] claim[.] ” Calvert , 409 F.3d at 294-95 (i n t er n al quotation marks and citation omitted). I n this case , L I NA require d Hunter to apply for SSA benef its, and once a favor able deter mination was obtained, L I NA’s pay ments to Hunt er wer e signific antly lessened. Acc ording ly , L I NA’s failure to addre ss Hunter’ s favor able SSA deter mination is another fac tor indicating that its decision to terminate Hunter’ s L TD benef its was arbitra

ry and capr icious. 7

Mere mention of a favor able SSA deter mination “is not the same as a discussion about why 6 the administrator rea ched a differ ent conclusion from the SSA.” Benne tt , 514 F.3d at 553 n.2. Her e, while t he S SA awa

rd i s listed by Dr. P olanco a s a document revie wed in forming his opinion, the SSA’s deter

mination is never expressly discussed or ref uted. Dr. C o wl did not revie w the SSA awa rd for purposes of his file r eview. The SS A aw ar d was two y ear s old at the time Hunter’ s L TD benef its wer e terminated. 7 Acc ording ly , while L I

NA’s failure to addre ss the awa rd supports an arbitra

ry and capr icious finding , this fa ilure, standing alone, would not require the reve rsal of L I NA’s termination decision. Cox v. S t a n d a r d Ins. Co. , 585 F.3d 295, 303 (6th Cir. 2009) (noting that the failure to consider an SSA deter mination that was made two y ear s prior to the administrator’s revie w of the claimant’ s L T D - 15 -No. 10-1244

Hunter v. Life Ins. Co. of N. Am.

V. I n sum, “[i] t is evident that defe ndant’s conflict of i n t erest arising from its dual role as administrator an d i n s u re r of the L TD policy interfe red with an objective revie w of the rec ord.” Evans , 434 F.3d at 879. L I NA failed to assess Hunter’ s ability to perf orm the phy sical require ments of her former position as a Revenue Cy cle Manag er, and there is no evidenc e in the rec ord indicating that Hunter would be able to perf orm the s tanding , walking , or overtime require ments of t he job. I n ad d ition, L I

NA arbitra

rily disreg arde d cre dible evidenc e demonstrating Hunter’ s disability i n favor of medical evidenc e lacking in thoroug hness and reliability and failed to addre ss and distinguish Hunter’ s favor able SSA aw ard. Acc ording ly , we hold tha t the termination of Hunter’ s L TD bene fits was ar

bitrary and ca pricious. VI

. This leave s us with the question of reme dy

. “I n case s such as these, courts may either awa rd benef its to the claimant or rema nd to the plan administrator.” Elliott , 473 F.3d at 621. I n this case ,
we find that rema

nd to L I NA is appropr iate. “[W ]here the problem i s wi t h t h e i n t eg rity of [t he plan’s] decision-making proce ss, rathe r than that [a claimant] was denied benef its to which he was clea rly entitled, the appropriate remedy g ener ally is rema nd to the pl an adminis trator.” Id

. at 622 (interna l quotation marks and citation omitted). L I NA’s decision-making proce ss, particula rly its failure to addre ss Hunter’ s actua l job require ments, rende rs its deter mination arbitra

ry and capr icious. Acc ordi n gl y , we rema nd this matter to the district court with instructions to further

claim did not rende r the de cision arbitra ry and ca pricious). - 16 -No. 10-1244

Hunter v. Life Ins. Co. of N. Am.

rema nd to L I NA. “Such a reme dy will allow for a proper d et er m i n at ion of whether , in the first instance, [Hunter] is entitled to [ continued] long-te rm disability benef its.” Id. We reve rse and rema

nd

. On re mand, the district court is direc ted to further rema nd this
matter to L I

NA for further proce eding s and de novo considera tion of Hunter’ s L TD claim consistent with this opi nion.

- 17 -