UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SANDRA McCANDLESS,

Plaintiff/Counter-Defendant,

v.

STANDARD INSURANCE COMPANY,

a subsidiary of STANCORP FINANCIAL 

GROUP, INC., jointly and severally,

Defendants/Counter-Plaintiff.

 /

Case No. 08-14195

HON. MARIANNE O. BATTANI

OPINION AND ORDER DENYING PLAINTIFF'S MOTION 

FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S MOTION FOR

JUDGMENT ON THE ADMINISTRATIVE RECORD

Before the Court is Plaintiff Sandra McCandless’ Motion for Summary Judgment

(Doc. 102) and Defendant Standard Insurance Company’s Motion for Judgment on the

Administrative Record (Doc. 104; Doc. 105). Plaintiff, an Employee Retirement Income

Security Act (“ERISA”) plan participant, brought this action challenging Defendant plan

administrator’s denial of long term disability benefits. (Doc. 33). Defendant filed a

counterclaim seeking to recover overpaid disability benefits based on plan provisions and

Plaintiff’s receipt of Social Security disability benefits. (Doc. 43). In her motion, Plaintiff

asks the Court to reverse Defendant’s decision to deny benefits for a variety of reasons.

Defendant seeks an affirmance of its decision and a $23,332.00 judgment on its

counterclaim. The Court has reviewed the record and finds oral argument will not aid in the

resolution of this dispute. See, E. D. Mich. LR 7.1(f)(2). For the reasons that follow,

Plaintiff's motion is DENIED and Defendant's motion is GRANTED.

I. BACKGROUND

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 Citations to “(0___)” refer to the last three digits of the corresponding Bates

numbered page of the Administrative Record, Doc.59.

2

Defendant Standard Insurance Company issued to Plaintiff Sandra McCandless’

former employer, Countrywide Home Loans, a Group Long Term Disability Insurance Policy

(“the Policy”). Plaintiff was insured under that ERISA governed Policy. The Policy’s

“Allocation of Authority” provision confers Defendant with discretionary authority to

determine benefit eligibility. (0044-45)1

To file a disability claim under the Policy, a claimant must complete a three-part

form, consisting of an Attending Physician’s Statement (signed by the treating physician),

an Employee’s Statement (signed by the claimant), and an Employer’s Statement (signed

by the employer). (0042). 

The Policy provides two different definitions of disability. During the first twenty-four

months in which benefits are paid, the “Own Occupation Definition of Disability” applies:

You are Disabled from your Own Occupation if, as a result of Physical Disease,

Injury, Pregnancy or Mental Disorder:

1. You are unable to perform with reasonable continuity the Material

Duties of your Own Occupation; and

2. You suffer a loss of at least 20% in your Indexed Predisability Earnings when

working in your Own Occupation.

(0032). After that period, the “Any Occupation Definition of Disability” applies:

You are Disabled from all occupations if, as a result of Physical Disease, Injury,

Pregnancy or Mental Disorder, you are unable to perform with reasonable continuity

the Material Duties of Any Occupation.

(0032) (emphasis added). The Policy defines the term “Material Duties” as “essential

tasks, functions and operations, and the skills, abilities, knowledge, training, and

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experience, generally required by employers from those engaged in a particular occupation

that cannot be modified or omitted.” (0032). “Any Occupation” means:

any occupation or employment which you able to perform, whether due to

education, training, or experience, which is available at one or more locations

in the national economy and in which you an be expected to earn at least

80% of your Indexed Predisability Earnings within twelve months following

your return to work, regardless of whether you are working in that or any

other occupation.

Id. The Policy also provides that no Long Term Disability (“LTD”) benefits “will be paid for

any period of Disability when you are not under the ongoing care of a physician in the

appropriate specialty as determined by us” and that “payment of LTD Benefits is limited to

24 months during your entire lifetime for a Disability caused or contributed to by ... 1.

Mental Disorders.” (0334; 0041-42).

On April 18, 2005, Plaintiff filed a disability claim with Defendant. (0721). Her claim

paperwork was incomplete - she only submitted the Attending Physician’s Statement,

signed by Dr. Jamsek, Plaintiff’s psychiatrist. Jamsek diagnosed Plaintiff with a “Major

Depressive Illness” and described her symptoms as “depression, anxiety, low energy,

feeling helpless.” Id. On May 11, 2005, after reviewing her initial filings, Defendant sent

Plaintiff a letter explaining that it could not consider the claim until she provided an

Employer and Employee Statement and asked her to file those forms. (0388). On May 26,

2005, having not received any additional paperwork, Defendant sent her another letter,

again requesting the missing forms. (0384). On June 14, 2005, Plaintiff submitted her

Employee Statement. (0382). In it, she identified her disability as “severe depression.”

Id. Countrywide eventually filed the Employer Statement. Having filed all the necessary

paperwork, Defendant reviewed her claim. 

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Defendant granted Plaintiff Short Term Disability (“STD”) benefits on June 28, 2005.

(0376). Defendant made those benefits retroactive to February 2, 2005. STD benefits are

limited to 180 days. Defendant encouraged Plaintiff to see if she was eligible for additional

benefits under the Policy, such as LTD. Jamsek sent Defendant additional records.

(0697).

On October 3, 2005, Defendant granted Plaintiff twenty-four months of LTD benefits

pursuant to the Policy’s Mental Disorders provision. (0351). Defendant consulted with Dr.

Toenniessen, a psychiatrist, to review her LTD claim. After reviewing the available medical

records and discussing Plaintiff’s condition with Jamsek over a telephone conversation,

Toenniessen opined that Plaintiff’s psychiatric symptoms prevented her from working.

(0371). About two months after granting her LTD benefits, on January 17, 2006, Defendant

sent Plaintiff a letter informing her that those benefits expire on July 31, 2007, and that if

she has any information that shows she is disabled by conditions not covered under the

Mental Disorders provision, she should send it to Defendant as soon as possible. (0332).

In an effort to extend her LTD benefits beyond the twenty-four month period, Plaintiff

supplemented her claim file with additional records. On February 21, 2006, Standard

received a Physician’s Report from Jamsek. (0686). Jamsek diagnosed Plaintiff with

“Major Depressive Illness, severe,” “Anxiety disorder,” and “Anxiety [disorder] with panic

attacks.” Under General Medical Conditions, Jamsek identified “spondylitis” and

“tachycardia.” On February 28, 2006, Plaintiff sent a completed Activities of Daily Living

form, describing her current medical condition as: “[D]epression – and most recently

shortness of breath and rapid heart rate. Adjusting medication to treat. Working very closely

[with] doctor to improve condition.” (0309). In that form, Plaintiff also explained that she

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 On April 28, 2009, more than a year after the administrative record closed, the

Social Security Administration granted Plaintiff SSD benefits.

3

 Ankylosing spondylitis is a chronic inflammatory disease of the axial skeleton

manifested by back pain and progressive stiffness of the spine. Inflammatory changes

occur around the sites where ligaments are inserted into the bone, causing a fibrous or

bony bridging of the joints. Arthritis of the hips, shoulders and peripheral joints may

occur as well as anterior uveitis, which drastically affects eyesight (0423-0428).

5

was seeing a doctor for “Depression (severe),” “Ankylosing Spondylitis,” and “Recently –

being treated for rapid heart rate.” In a May 22, 2006 file review, Defendant determined

that the medical information supported only an ongoing psychiatric disability. (0308). As

such, her benefits were set to expire on July 31, 2007.

On July 14, 2006, Defendant asked Plaintiff to file a Social Security disability (“SSD”)

claim through its agent, Allsup. (0307). Plaintiff appointed Allsup as her Social Security

claims representative and filed her claim, including reports only from Wilkinson and

Jamsek. (0165). On March 15, 2007, the Social Security Administration denied her claim.

Allsup sent Engelmann a Physical Capacities Evaluation (“PCE”) form to fill out so Plaintiff

could refile. (0166-169). Engelmann completed the PCE form and Plaintiff reapplied.2

In May 2007, Defendant sent Plaintiff two letters informing her of the expiration date

and requesting that she submit additional information if she has a disability claim not

subject to the Mental Disorder provision. (0079; 0284). When Plaintiff received the first

letter, she immediately called Kathryn Matson (Plaintiff’s case manager) and asked

Defendant to consider a LTD claim based on her ankylosing spondylitis (“AS”).3 (0291).

Plaintiff sent Defendant a letter on June 15, 2007 that summarized her conversation with

Matson and accused Defendant of overlooking and not considering her claim based on her

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 Dr. Engelmann, a general family physician, is Plaintiff’s primary physician. 

6

AS. (0280). Defendant sent her additional forms to fill out regarding her AS based LTD

claim. (0288). 

Plaintiff sent a variety of written records in support of her LTD claim based on AS

to Defendant. She submitted a Health Provider Verification Statement, specifically noting

the doctors who treated her for AS (0281). Plaintiff told Defendant that she would send

records from Engelmann, Jamsek, and Wilkinson, her treating doctors. (0280). Defendant

received those records, the relevant aspects are as follows:

Engelmann4 summarized his treatment of Plaintiff and opined that she needs

“continued intensive treatment for her depression and anxiety at the present

time” and that she “continues to manifest classic symptoms of low back pain

and stiffness,” “joint stiffness,” “constant pain,” and “ocular manifestations”

which has severely limited her activities, leaving her in “pain with every

movement.” (00651-652). Engelmann considered treatment of Plaintiff’s

psychiatric condition a “top priority” and the only medical evidence he

provided was a blood test that confirmed the presence of a gene marker

associated with individuals prone to AS. (00652; 0661). 

Jamsek said that since the onset of treatment, Plaintiff "is physically very

limited due to exacerbation of spondylitis, which gives her severe back pain,

and uveitis, which impairs her vision (634). 

Wilkinson, Plaintiff’s ophthalmologist, initially examined her for uveitis, an

inflammation of the eye, which he treated with steroids to quell the

inflammation. (0679; 0594). At an office visit in early December, 2004,

Wilkinson referred Plaintiff to a rheumatologist for treatment of AS. (0629).

Plaintiff never sought treatment with a rheumatologist. Wilkinson noted that

Plaintiff’s uveitis symptoms continuously improved between January and

August in 2005. During a May 2007 examination (the first time Wilkinson had

seen Plaintiff in over two years), Wilkinson noted her complaints of

headaches (lasting 3 weeks), nausea, numbness in the arms, dry eyes and

decreased visual acuity. His assessment was “myopia/presbyopia”

(near-sightedness) and dry eyes, which he treated with lubricating drops.

(0669).

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On August 6, 2007, Defendant denied her LTD claim based on her AS symptoms.

(0264). In reaching its decision, Defendant consulted with Dr. Dickerman, a physiologist

and board-certified neurologist. (0638). After reviewing her entire file, Dickerman

concluded that Plaintiff has

chronic depression, anxiety, dysthymic disorder and carries the diagnosis of

ankylosing spondylitis on the basis of positive HLA-B27. There has been no

documentation of a physical examination regarding this patient or

documentation of her activities. Therefore, at this time, there has been no

evidence submitted to indicate that this patient has any specific limitations or

restrictions secondary to the diagnosis of ankylosing spondylitis or any other

physical diagnosis.

(0639). Dickerman recommended that if Plaintiff received treatment by a rheumatologist,

Defendant should obtain those records and submit them for evaluation by a consulting

rheumatologist. (0261). Defendant told Plaintiff that it would forward this decision to its

Administrative Review Unit (“ARU”) for further review. (0265).

The ARU recommended that Defendant reexamine its decision to deny Plaintiff’s

claim. The ARU determined that Plaintiff and her treating doctors might not have submitted

all of the available medical evidence. (0258-261). Acting on that observation, Defendant

contacted Plaintiff and Engelmann in a search for missing records. Defendant specifically

sought any records from treating doctors not on Plaintiff’s forms and any records from a

rheumatologist. Plaintiff confirmed she never visited a rheumatologist. (0253). Engelmann

submitted a letter in which he explained that, based on his observations, Plaintiff suffers

from AS. (0261). Defendant obtained two MRI’s of Plaintiff’s spine, one from 2001 and the

other from 2007. (0623; 0622). The 2001 report stated “no evidence of fracture or intrinsic

or osseous abnormalities or spondylolysis or spondylolisthesis.” (0623). The 2007 report

stated (after observing that her sacroiliaic joints were fused), “[a]bsence of the sacroiliac

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joints can reflect ankylosing spondylitis although the other signs of this disease in the

lumbar area are not present.” (0622). Defendant also obtained medical records from Dr.

Biddinger, an internist who examined Plaintiff for heart palpitations. (0565-571). Defendant

sent this newly acquired information to Dickerman for a second review. (0538-540).

Defendant affirmed its denial of Plaintiff’s LTD claim on October 12, 2007. (0194-

196). After again reviewing Plaintiff’s file, Dickerman concluded “the available records,

regardless of a diagnosis for this pain, do not provide documentation of a significant pain

disorder or specific limitations or restrictions that would, at any point, provide limitations and

restrictions to prevent full-time sedentary work activities.” (0540).

After Defendant informed Plaintiff of its decision, Plaintiff again filed additional

records in support of her claim. On November 19, 2007, Engelmann submitted a letter

describing his disappointment with Defendant’s decision and further explained his

observations that support his AS diagnosis. (0534). Enclosed in that letter, was a x-ray

of Plaintiff’s pelvis, taken by Dr. Kellam, a radiologist. (0536-537). Though Kellam’s initial

opinion was that the pelvis showed no signs of disease, three weeks later, he attached an

addendum that explained his findings actually support an AS diagnosis. Id. Engelmann

also submitted new medical records that chronicled Plaintiff’s complaints of pain from July

2007 to November 2007. (0527; 0525; 0524; 0523; 0518; 0517). 

Defendant again affirmed its denial. Dickerman, after reviewing Plaintiff’s file for a

third time, concluded that the newly submitted records do not alter his previous findings.

(0503-506). He explained that Kellam’s “addendum” merely confirms the findings in the

2001 and 2007 MRIs. He also questioned Engelmann’s non-treatment of AS despite

Engelmann’s opinion that her AS was severe: “It makes little sense, if this patient has

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significant pain from [AS], that the treatment for the condition would be deferred simply

because she is being treated for depression....” (0506). Defendant sent Plaintiff’s file to

the ARU for additional review. (0183). 

Plaintiff sent additional records to the ARU before it began its second review.

Plaintiff’s attorney asked Engelmann to transcribe his handwritten notes and send them to

Defendant. Engelmann refused to do so. He did, however, send Defendant a letter stating

that his exam summaries were more than sufficient to support her AS diagnosis. (0153).

He also enclosed a copy of the PCE he filled out in support of Plaintiff’s SSD claim. He

described the PCE form as a “full physical evaluation” of Plaintiff’s physical abilities.

Defendant, noting that the PCE is simply a “check-a-box” form, asked Plaintiff to provide

the raw data on which Engelmann relied on to complete Plaintiff’s PCE form. (0148-149).

Plaintiff never sent the underlying “raw data.” Engelmann’s letter suggested that Defendant

send Plaintiff’s claim to a rheumatologist for review. Id. Defendant agreed and had Dr.

Ingram, a board-certified rheumatologist, review her entire file as part of its administrative

review process. (0182). 

On March 7, 2008, Defendant issued its final decision denying Plainitff’s LTD claim.

(0126-133). In an eight-page opinion, Dr. Ingram concluded that if Plaintiff’s AS symptoms

were as severe as Engelmann had observed, “a prudent patient and/or primary care

physician would direct them to specialty care [a rheumatologist] that would enable them to

receive treatment to allow them to continue to work.” (0414). She also found that “the fact

that [Plaintiff] has not sought specialty care undermines the severity of restriction or pain

experienced by [Plaintiff], as does the fact that she is not on nonsteriodal anti-inflammatory

drugs....” (0413). Ingram ultimately concluded that Plaintiff’s medical records do not

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support a finding that her AS symptoms preclude her from working a sedentary occupation

“particularly since there are no physical exams, specialty evaluations, nor actual

observations of functional limitations.” (0413).

On March 18, 2008, pursuant to Section 500.2213(c) of Michigan’s Insurance Code,

Defendant employee Walt Henry (a supervisor) reviewed and affirmed the final decision to

deny Plaintiff LTD benefits. (0124). He specifically noted that her file had “no physical

exams, special evaluations, nor actual observations of functional limitations during [the

applicable] time period” and that Plaintiff failed to meet the “‘Care of a Physician” policy

requirement because she did not consult with a rheumatologist.” Id. 

After exhausting her administrative remedies under ERISA, Plaintiff filed the instant

action to overturn Defendant’s decision. (Doc. 1; Doc. 33). Subsequent to the closure of

the administrative record (“AR”) and the filing of this lawsuit, on April 28, 2009, the Social

Security Administration granted Plaintiff SSD benefits based on a combination of her

mental and physical impairments. (Doc. 102, Ex. 1). Pursuant to the Policy’s “Deductible

Income” provision (0037-38), Defendant filed a counterclaim seeking to recover overpaid

disability benefits based on Plaintiff’s receipt of SSD benefits. (Doc. 43). Defendant

calculates that it overpaid Plaintiff’s disability benefits from January 2006 through July 2007

in the monthly amount of $1,228, totaling $23,332.00.

Plaintiff filed a Motion for Summary Judgment (Doc. 102) and Defendant filed a

Motion for Judgment on the Administrative Record (Doc. 104; Doc. 105). The dueling

dispostive motions are now before the Court. 

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 Summary judgment procedures are inappropriate for ERISA actions involving

disputed benefit awards. Wilkins v. Baptist Healthcare System, Inc., 150 F.3d 609, 619

(6th Cir.1998) (Gilman, J., concurring); see also, University Hospitals of Cleveland v.

Emerson Electric Co., 202 F.3d 839, 845 n. 2 (6th Cir. 2000). Accordingly, the Court

treats the parties' dispositive motions as motions for judgment on the administrative

record, excepting from that characterization the portion of Defendant's motion that

seeks summary judgment on its counterclaim. On that claim, the Court applies Rule 56

standards.

11

III. STANDARD OF REVIEW5

A. ERISA

A district court reviews an ERISA plan administrator's denial of benefits de novo,

unless the plan gives the administrator discretionary authority to determine eligibility for

benefits. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989); Cox v. Standard

Ins. Co., 585 F.3d 295, 299 (6th Cir. 2009). If the plan gives the administrator discretionary

authority, the Court applies the highly deferential “arbitrary and capricious” standard of

review. Cox, 585 F.3d at 299. “The arbitrary and capricious standard is the least

demanding form of judicial review of administrative action. When it is possible to offer a

reasoned explanation, based on the evidence, for a particular outcome, that outcome is not

arbitrary or capricious.” Schwalm v. Guardian Life Ins. Co. of America, 626 F.3d 299, 308

(6th Cir. 2010) (quoting Shields v. Reader's Digest Ass'n, Inc., 331 F.3d 536, 541 (6th Cir.

2003)). Moreover, even when a claimant has introduced evidence that might be sufficient

to support a finding of disability, if there is a reasonable explanation for the administrator's

decision denying benefits because of the plan's provisions, then the decision is neither

arbitrary nor capricious. Id. (citing Williams v. Int'l Paper Co., 227 F.3d 706, 712 (6th Cir.

2000). Accordingly, a court must uphold the administrator's decision if it is the result of a

deliberate, principled reasoning process and is supported by substantial evidence. Id.

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(quoting Baker v. United Mine Workers of Am. Health & Ret. Funds, 929 F.2d 1140, 1144

(6th Cir. 1991). 

An important conflict of interest consideration tempers such a deferential standard

of review. When the plan administrator both evaluates claims for benefits and pays the

claims it approves, the administrator is operating under a structural conflict of interest that

must be weighed as a factor in the Court's determination of whether the denial of benefits

was arbitrary or capricious. Id. at 311 (quoting Metropolitan Life Ins. Co. v. Glenn, 554 U.S.

105 (2008). The Supreme Court has explained that the existence of such a conflict does

not heighten the standard of review; it is “but one factor among many that a reviewing judge

must take into account.” Metropolitan Life, 554 U.S. at 116; see also, Calvert v. Firstar Fin.,

Inc., 409 F.3d 286, 293 (6th Cir. 2005) (noting that the Sixth Circuit has consistently viewed

a conflict of interest as a factor to consider in applying the “arbitrary and capricious”

standard). 

Here, Plaintiff concedes that the Policy contains language sufficient to grant

discretion to Defendant. Further, Defendant both grants eligibility for benefits and pays

benefits. Therefore, the Court reviews this case under the highly deferential “arbitrary and

capricious” standard, while bearing in mind that a structural conflict of interest exists.

B. Rule 56

Summary judgment is appropriate only when there is “no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. Pro.

56(a). The central inquiry is “whether the evidence presents a sufficient disagreement to

require submission to a jury or whether it is so one-sided that one party must prevail as a

matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, (1986). Rule 56

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mandates summary judgment against a party who fails to establish the existence of an

element essential to the party's case and on which that party bears the burden of proof at

trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

The moving party bears the initial burden of showing the absence of a genuine issue

of material fact. Celotex, 477 U.S. at 323. Once the moving party meets this burden, the

non-movant must come forward with specific facts showing that there is a genuine issue

for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In

evaluating a motion for summary judgment, the evidence must be viewed in the light most

favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).

The Court “must lend credence” to the non-moving party’s interpretation of the disputed

facts. Marvin v. City of Taylor, 509 F.3d 234, 238 (6th Cir. 2007) (citing Scott v. Harris, 127

S.Ct. 1769, 1775 (2007)). The non-moving party may not rest upon its mere allegations,

but rather must set out specific facts showing a genuine issue for trial. See, Fed. R. Civ.

P. 56(c)(1). The mere existence of a scintilla of evidence in support of the non-moving

party's position will not suffice. Rather, there must be evidence on which the jury could

reasonably find for the non-moving party. Hopson v.DaimlerChrysler Corp., 306 F.3d 427,

432 (6th Cir. 2002).

IV. ANALYSIS

A. Plaintiff’s Challenge to Defendant’s Decision

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The ultimate question in any disability case on “arbitrary and capricious” review “is

whether the plan can offer a reasoned explanation, based on the evidence, for its judgment

that a claimant was not ‘disabled’ within the plan's terms.” Elliott v. Metro. Life Ins. Co., 473

F.3d 613, 618 (6th Cir. 2006). Here, since Plainitff had already received twenty-four

months of LTD benefits under the Mental Disorder provision, she carried the burden of

showing “disability” under the “Any Occupation Definition of Disability.” (0032; 0042-43;

0126); see also, Donatiello v. Hartford Life and Acc. Ins. Co., 344 F.Supp.2d 575, 580 (E.D.

Mich. 2004) (Plaintiff bears the burden of proving disability under the ERISA Plan).

Defendant concluded that Plaintiff failed to carry that burden because she did not submit

clinical exam findings documenting specific functional limitations to support her claimed

inability to perform sedentary work. (Doc. 104 at 3). Defendant also explains it denied her

claim because she failed to satisfy the Policy’s requirement of obtaining ongoing care and

treatment by a rheumatologist. Id. Plaintiff asks the Court to review that decision.

The Court begins by organizing Plaintiff’s varied objections into five general

categories. First, she contends that a structural conflict of interest unfairly influenced

Defendant’s decision. Second, she argues that Defendant’s reviewing consultants were

biased against her claim. Third, she challenges Defendant’s analysis of the medical

evidence. Fourth, she accuses Defendant of arbitrarily interpreting the Policy’s “Care of

Physician” provision. Finally, Plaintiff suggests there is evidence outside the AR that

supports her claim.

1. Conflict of Interest

Though Defendant made its decision to deny Plaintiff’s LTD claim under a structural

conflict of interest, it does not follow that the Court should automatically reverse that

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decision. Plaintiff provides no evidence of Defendant’s rate of claims denials, no evidence

that Defendant based its decision on the costs associated with paying out her LTD claim,

and no evidence that Defendant portrayed Plaintiff in a negative light to the reviewing

consultants, Dickerman and Ingram. See, DeLisle, 558 F.3d 440, 445 (6th Cir. 2009);

Cochran v. Trans-General Life Ins. Co., 12 F.App’x. 277, 281 (6th Cir. 2001) (“mere

allegations of the existence of a structural conflict of interest are not enough; there must

be some evidence that the alleged conflict of interest affected the plan administrator's

decision to deny benefits.”). Moreover, the AR severely weakens the conflict of interest

argument. Defendant paid six months of STD benefits, twenty-four months of LTD benefits,

and actively assisted Plaintiff in extending her LTD claim based on her AS symptoms.

Notably, Defendant considered all of the evidence that Plaintiff submitted. See, Killian v.

Healthsource Provident Adm'rs, Inc., 152 F.3d 514, 521 (6th Cir. 1998) (finding that a plan

administrator was improperly influenced by a structural conflict of interest when it refused

to consider evidence submitted by a claimant). In fact, on multiple occasions Defendant

reached out to Plaintiff’s doctors in a search for medical records that could support her

claim. Also, Defendant reviewed Plaintiff’s LTD claim six times. The record provides no

indication that the structural conflict of interest improperly influenced Defendant’s final

decision.

2. Bias

Both parties accuse their opponent’s doctors of prejudicial bias. (Doc. 102 at 17-20;

Doc. 112 at 4-5). Plaintiff describes Dickerman as Defendant’s “go to guy” when it comes

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to disability claims. She explains his financial connection with Defendant (Dickerman

earned about thirty four percent of his income from Defendant in 2006 and 2007) and

argues, “presumably,” that he issues disability opinions in Defendant’s best interest.

Regarding Ingram, Defendant was one of two sources of her medical income during 2006

and 2007 and that since September 2009, Ingram has been an employee of Defendant

(Assistant Medical Director). Plaintiff claims Dickerman and Ingram are Defendant’s

employees, not “independent” contractors. On the other hand, Defendant characterizes

Engelmann as a twice bankrupt general practitioner who has a financial incentive to act as

Plaintiff’s disability advocate.

Consulting physicians who are repeatedly retained by benefits plans “may have an

incentive to make a finding of ‘not disabled’ in order to save their employers money and to

preserve their own consulting arrangements.” Elliott v. Metro. Life Ins., 473 F.3d 613, 620

(6th Cir. 2006) (internal quotations marks and citations omitted). However, the Supreme

Court has explained that a claimant's treating physician may also have an incentive to

make a finding of “disabled.” Black & Decker Disability Plan v. Nord, 538 U.S. 822, 832

(2003). In Black & Decker, the Court considered these dueling motivations before

ultimately refusing to read into ERISA cases a “treating physician rule,” which would require

a plan administrator to accord a patient's treating physician's opinion special deference.

Id. at 831-32. Relatedly, the Sixth Circuit has said that in order to support an allegation of

plan-chosen reviewer bias, a party must provide statistical evidence that the reviewer

consistently opined that claimants were not disabled. Kalish v. Liberty Mutual/Liberty Life

Assur. Co. of Boston, 419 F.3d 501, 508 (6th Cir. 2005).

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Neither party has a convincing bias argument. Defendant’s suggestion that

Engelmann‘s financial condition influenced his disability opinion is without evidentiary

support. Likewise, Plaintiff presents no evidence that Defendant monetarily influenced

Dickerman and Ingram to deny her claim. Further, she presents no evidence that

Dickerman or Ingram “consistently” issued opinions adverse to disability claimants. See,

Morris v. American Electric Power Long-Term Disability Plan, 2010 WL 4244120 (6th Cir.

Oct. 15, 2010) (“Kalish requires evidence that reviewers consistently opine that claimants

are not disabled....” (emphasis in original)). Also, Plaintiff’s statement that Ingram read

Dickerman’s report before she conducted her review, thereby improperly influencing her

opinion, is misleading. (Doc. 110 at 6). In Ingram’s “Physician Consultant Memo,” she

acknowledges only that Plaintiff’s file contained two memos drafted by Dickerman. (0407).

Plaintiff’s citations to the AR do not support her argument that Ingram read those memos

or was influenced by them - Ingram simply acknowledged their existence. The competing

conclusory allegations of bias carry little weight in the Court’s analysis.

3. Medical Evidence

The record reveals that Defendant denied Plaintiff LTD benefits after it reviewed her

claim multiple times. Dickerman reviewed her file three times. The ARU reviewed and

remanded her file for additional records. After Defendant obtained those additional records,

the ARU had Ingram review her file. Henry conducted a sixth and final review pursuant to

MCL 500.2213(c). Defendant explains it denied her claim because she failed to submit

clinical exam findings and objective test results documenting specific function limitations

to support a claim that her AS prevented her from performing the “Material Duties” of “Any

Occupation.” 

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Plaintiff attacks Defendant’s review of the medical evidence on many fronts. First,

she objects to Dickerman and Ingram’s rejection of Engelmann’s disability opinion and

questions their interpretation of her medical records. As the Supreme Court has explained,

nothing in ERISA “suggests that plan administrators must accord special deference to the

opinions of treating physicians. Nor does the Act impose a heightened burden of

explanation on administrators when they reject a treating physician's opinion.” Black &

Decker, 538 U.S. 822, 831 (2003). In the Sixth Circuit, however, a plan may not summarily

reject the opinions of a claimant's treating physician, but must instead give reasons for

adopting an alternative opinion. Elliott v. Metro. Life Ins., 473 F.3d 613, 620 (6th Cir. 2006).

An administrator' need not credit the disability opinion of a claimant’s treating physician if

that opinion lacks objective medical evidence. See, Boone v. Liberty Life Assur. Co. of

Boston, 161 F.App'x 469, 473 (6th Cir. 2005). Moreover, “[r]equiring a claimant to provide

objective medical evidence of disability is not irrational or unreasonable.” Cooper v. Life

Ins. Co. of N. Am., 486 F.3d 157, 166 (6th Cir. 2007).

Here, Defendant did not arbitrarily reject Engelmann’s disability opinion nor

capriciously review the available medical records. Dickerman and Ingram’s written opinions

show they used a deliberate and principled reasoning process to arrive at their conclusions.

(0638-639; 0538-541; 0503-506; 0407-0415). Throughout eighteen pages, the consultants

methodically reviewed Plaintiff’s entire claim file. The Court specifically notes the following

observations:

[N]o evidence submitted to indicate that [Plaintiff] has any specific

limitations or restrictions secondary to the diagnosis of AS or any other

physical diagnosis. (July 2007, 0639).

[T]he available records, regardless of a diagnosis for this pain, do not

provide documentation of a significant pain disorder or specific limitations or

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restrictions that would, at any point, provide limitations and restrictions to

prevent full-time sedentary work activities. (October 2007, 0540).

[N]o documentation of significant pain disorder, as reflected in the

interventions performed. (December 2007, 0505).

While it is probable that [Plaintiff] has been symptomatic from her AS

for a long time, these records do not support that this is significantly

physically limiting from a full-time sedentary occupation from February 2005

through July 2007, particularly since there are no physical exams, speciality

evaluations, nor actual observations of functional limitations. (February

2008, 0413).

Ultimately, the reviewing consultants concluded that though Plaintiff’s file contained multiple

reports of pain, objective medical evidence did not support those subjective complaints.

Also, Defendant’s seven page letter sent to Plaintiff clearly explains the specific reasoning

behind its decision to deny her claim. (0126-133). Defendant’s explanations were clearly

reasonable given the AR. 

Next, Plaintiff objects to Defendant’s “file only review” of her claim. There is nothing

“inherently objectionable about a file review by a qualified physician in the contest of a

benefits determination.” Calvert v. Firstar Fin., Inc., 409 F.3d 286, 296 (6th Cir. 2005); see

also, Bennett v. Kemper Nat. Services, Inc.,514 F.3d 547, 555 (6th Cir. 2008) (file

reviewers should adequately explain why they reach decisions contrary to record evidence

and if they rely on adverse credibility findings, explain why there is reason to doubt the

applicant's credibility); Davis v. Unum Life Ins. Co. of America, 444 F.3d 569 (7th Cir. 2006)

(“In such file reviews, doctors are fully able to evaluate medical information, balance the

objective data against the subjective opinions of the treating physicians, and render an

expert opinion without direct consultation.”). However, a “file only review” is a factor in the

Court's review. Smith v. Continental Cas. Co., 450 F.3d 253, 263 (6th Cir. 2006). 

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In this case, Defendant’s “file only review” was sufficient. As discussed above,

Dickerman and Ingram thoroughly explained why they disagreed with Engelmann’s

disability opinion - the sole treating doctor who opined that Plaintiff was disabled. They had

unrestricted access to the available medical records; there is no evidence Defendant held

anything back. Defendant’s aggressive record search twice caused Dickerman to

supplement his original decision. The consultants’ opinions reasonably questioned the

severity of Plaintiff’s pain and functional limitations by pointing out: (1) the lack of objective

medical records; (2) the fact that she did not see a rheumatologist, and (3) the pharmacy

records which suggest that Plaintiff’s prescription fill rate was not indicative of someone

who had severe pain. 

Plaintiff next suggests that Defendant should have ordered an independent physical

exam. Though the Policy gives Defendant that option, this circuit has never held that a plan

administrator must hire a physician to undertake an independent review of an applicant's

records before denying benefits. See, Yeager v. Reliance Standard Life Ins. Co., 88 F.3d

376 (6th Cir. 1996); see also, Wages v. Sandler, O'Neill & Partners, L.P., 37 F.App’x 108

(6th Cir. 2002). Plaintiff carried the burden of showing she was disabled under the Policy.

As the AR demonstrates, Defendant helped shoulder that burden by actively assisting

Plaintiff with the development of her claim. She cannot explain away her ultimate failure

to establish disability by arguing that Defendant should have also ordered an independent

exam. 

The Court need not respond to Plaintiff’s varied arguments that the AR contains

medical evidence that supports her claim. This case is not on de novo review. The Sixth

Circuit teaches that even if a claimant has some evidence that “may be sufficient to support

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a finding of disability, if there is a reasonable explanation for the administrator's decision

denying benefits in light of the plan's provisions, then the decision is neither arbitrary nor

capricious.” Schwalm, 626 F.3d at 308. Even assuming that Plaintiff has some evidence

that supports her claim, after reviewing the quantity and quality of the medical evidence,

the Court finds that Defendant has offered a reasonable explanation for its decision to deny

Plaintiff LTD benefits. Accordingly, Defendant’s final decision is neither arbitrary nor

capricious. 

4. Policy Interpretation

In addition to the lack of objective medical evidence, Defendant has a second reason

to explain its denial of Plaintiff’s claim - she did not obtain ongoing care by a rheumatologist

as required under the Policy’s “Care of Physician” provision. That provision specifies:

You must be under the ongoing care of a Physician in the appropriate

specialty as determined by us during the benefit waiting period. No LTD

Benefits will be paid for any period of Disability when you are not under the

ongoing care of a physician in the appropriate specialty as determined by us.

(0042). After Plaintiff began her LTD claim based on her AS in June 2007, Defendant

determined that the appropriate medical specialist for treatment of AS is a rheumatologist.

The record shows that Wilkinson referred Plaintiff to a rheumatologist and that Wilkinson

told Engelmann of that referral in early December 2004. (0629). Though Plaintiff

acknowledged that she had been advised to consult with a rheumatologist, for personal

reasons, she admits that has she never obtained any care by a rheumatologist. (0181).

Since Plaintiff never obtained the appropriate care, Defendant concluded she was ineligible

for LTD benefits by operation of the “Care of Physician” provision.

Plaintiff disagrees with Defendant’s interpretation of that provision. She says

Defendant failed to determine the “appropriate specialty” within her “benefit waiting period,”

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which was between February 2, 2005 and July 31, 2005. She argues that Defendant failed

to inform her of what speciality it chose in a timely fashion. She also claims that an

ophthalmologist is an “appropriate specialty” for treatment of AS and that she complied with

that provision having seen Wilkinson (an ophthalmologist) several times. 

A reviewing court “must accept a plan administrator's rational interpretation of a plan

even in the face of an equally rational interpretation offered by the participants.” Gismondi

v. United Techs. Corp., 408 F.3d 295, 298 (6th Cir. 2005) (citations omitted). Defendant’s

interpretation is rational. The provision clearly states that no LTD benefits will be paid for

any period of disability when a claimant is not under care of an appropriate specialist.

Defendant reasonably concluded that a rheumatologist was an appropriate specialist.

(0412-413). Defendant’s ARU, before conducting a review of her claim, informed her that

a rheumatologist is that appropriate specialist and that a consultation with such a specialist

could help support her claim. (0181). Despite that advice, Plaintiff never saw a

rheumatologist. The Court cannot say that Defendant’s interpretation of the “Care of

Physician” was irrational. Furthermore, even if the Court were to agree that the

“appropriate specialist” was an ophthalmologist, Wilkinson’s treatment notes undermine

Plaintiff’s claim. Those notes clearly show that Plaintiff’s uveitis (an AS symptom)

continuously improved throughout 2005. (0671, 0673, 0675). Also, when she returned to

Wilkinson in May 2007, after not seeing him for nearly two years, the doctor’s assessment

was dry eyes and myopia/presbyopia, which he treated with eye drops. (0669). Such a

diagnosis does not support a finding of disabled under the Policy.

5. Evidence Outside the AR

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Plaintiff asks the Court to consider three documents outside the AR in its review of

Defendant's decision: (1) an "Employee Statement," allegedly faxed to Defendant on April

15, 2005, in which Plaintiff describes her AS symptoms (Doc. 106; Ex. C; Ex. D); (2) her

favorable Social Security Decision (Doc. 102 at 24), and (3) Engelmann's transcribed notes

(Doc. 102 at 15). 

“A court may consider only that evidence presented to the plan administrator at the

time he or she determined the employee's eligibility in accordance with the plan's terms.

The court's review is thus limited to the administrative record.” Schwalm, 626 F.3d 299 at

309 (citing Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 618 (6th Cir.1998)). 

“The only exception to the ... principle of not receiving new evidence at the district court

level arises when consideration of that evidence is necessary to resolve an ERISA

claimant's procedural challenge to the administrator's decision, such as an alleged lack of

due process afforded by the administrator or alleged bias on its part.” Wilkins, 150 F.3d

at 618.

The Court cannot consider the proffered documents in its review because they are

not in the AR. The Wilkins exception does not apply here because Plaintiff presented

virtually no evidence of procedural violations. Plaintiff's complaint does not allege a lack

of due process, administrator bias, or any other procedural deficiency, such as a failure to

follow plan notice provisions. Nor does she challenge the process in which Defendant used

to obtain her medical records. See, Moore v. Lafayette Life Insurance. Co., 458 F.3d 416,

430 (6th Cir. 2006). Notably, Plaintiff never filed a motion to supplement the AR with the

proffered documents. Instead, she spreads her request throughout motion briefs. In the

context of those briefs, it becomes clear that Plaintiff seeks to include these documents as

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further medical evidence of her LTD claim. As such, they are substantive in nature and do

not fall within the narrow Wilkins exception. 

Relatedly, Plaintiff's eleventh-hour allegation that Defendant failed to produce the

entire AR is an insufficient basis upon which to challenge the legitimacy of that record.

(Doc. 106 at 2; Doc. 110 at 5). Despite having the AR for five months before filing the

instant action, she did not include this procedural challenge in her complaint. She did not

include her "incomplete production" theory in her amended complaint. By that time, she

had been in possession of the AR for over one year. She did not even include this

argument in her principal motion, rather, it appears for the first time in her responsive briefs.

Nearly every ERISA claimant could comb the AR for an ambiguous entry and suggest that

a plan administrator has not produced the entire AR. See, Fendler v. CNA Group Life

Assur. Co., 247 F.App’x 754, 758 (6th Cir. 2007). 

Regarding the "missing" April 15, 2005 "Employee Statement," assuming it should

have been included, and thus Dickerman and Ingram's review was based upon an

incomplete record, Plaintiff must show how that shortcoming ultimately made Defendant's

denial arbitrary and capricious. See, Moon v. Unum Provident Corp., 405 F.3d 373, 381

(6th Cir.2005) (the court must “ask whether, in light of the administrative record as a whole,

the explanation for the decision to deny or terminate benefits is rational.”). Plaintiff failed

to make that showing. In light of the entire record, even assuming the AR should have

included that document, it is clear that the missing "Employee Statement" did not

fundamentally undermine the consultants' disability opinions nor prevent her from

developing a LTD claim based on her AS symptoms. 

B. Defendant's Counterclaim

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Defendant is entitled to a $23,332.00 judgment on its counterclaim. The Policy's

"Deductible Income" provision states that any long term disability benefits payable to a

participant will be reduced by any amount received by the participant because of that

participant’s disability under The Federal Social Security Act. (0037). The Policy requires

a participant to notify Defendant of the amount of SSD benefits after the Social Security

Administration has approved such a claim and expressly states: "You must repay us for the

resulting overpayment of your claim.” (0038).

After Plaintiff exhausted her administrative remedies, she received a retroactive

award of SSD benefits beginning January 2006 in the monthly amount of $1,228.00. (Doc.

104, Ex. B at 1). Defendant paid monthly disability benefits to Plaintiff for twenty-four

months, from August 1, 2005 through July 31, 2007, in the monthly amount of $8,950.00.

(0052). After applying the applicable provisions, Defendant calculated that it overpaid

Plaintiff's disability claim from January 2006 through July 2007 in the monthly amount of

$1,228, totaling $23,332.00. Plaintiff does not respond to Defendant's counterclaim

arguments.

An ERISA fiduciary may bring a civil action “to obtain other appropriate equitable

relief ... (ii) to enforce any provisions of ... the terms of the plan.” 29 U.S.C. §

1132(a)(3)(B). In Sereboff v. Mid Atlantic Medical Services, Inc., 547 U.S. 356, 361-69

(2006), the United States Supreme Court held that a claim for the reimbursement of

overpaid funds may, in certain circumstances, qualify as an equitable lien under ERISA and

an action for such recovery may be brought under § 502(a)(3)(B). In Sereboff, the Court

suggested that a fiduciary seeking enforcement of an equitable lien under ERISA must

base its repayment claim on an plan provision that has “specifically identified a particular

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fund, distinct from [the beneficiary's] general assets ... and a particular share of that fund

to which [the fiduciary] was entitled.” Id. at 364.

In Gilchrest v. Unum Life Ins. Co. of America, 255 F.App'x 38 (6th Cir. 2007), the

Sixth Circuit applied Sereboff to an ERISA case in which the fiduciary filed a counterclaim

under the terms of a plan against the plan participant seeking reimbursement of benefits

allegedly overpaid due to the participant's receipt of SSD benefits. The court concluded

that the reimbursement counterclaim was properly brought under § 502(a)(3)(B) because

the plan terms specifically permitted the fiduciary to recover overpaid benefits. Id. at 45-46.

The court found that the applicable plan provisions satisfied the requirements for equitable

relief in Sereboff because those provisions established “a right to recover from a specific

fund distinct from Gilchrest's general assets, the fund being the overpayments themselves,

and a particular share of that fund to which the plan was entitled, i.e., all overpayments due

to the receipt of Social Security benefits, but not to exceed the amount of benefits paid.”

Id.

The Court concludes that the Policy provisions regarding the right to reimbursement

of overpaid benefits enable Defendant to maintain its counterclaim to obtain equitable relief

based upon those terms. See also, Gutta v. Standard Select Trust Ins. Plans, 530 F.3d

614 624 (7th Cir. 2008) (holding that a counterclaim to recover overpaid benefits, based

on a nearly identical reimbursement provision, is a claim for equitable relief under

§502(a)(3)). The Policy terms here, as in Gilchrest, contain a provision asserting the right

to recover from the overpayment of benefits, including overpayment resulting from the

receipt of SSD benefits. Defendant’s equitable lien attaches to the overpaid disability

benefits paid by Defendant and not her SSD benefits. The fact that Plaintiff may have

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disbursed or commingled Defendant’s funds—thereby thwarting strict traceability—does

not defeat Defendant's counterclaim. See, Sereboff, 547 U.S. at 365. Accordingly, as

there are no factual disputes regarding the right to or the amount of overpayment, the Court

finds that Defendant is entitled to a judgment for $23,332.00 (plus post-judgment interest)

as a matter of law.

V. CONCLUSION

For the reasons stated above, Plaintiff’s Motion for Summary Judgment (Doc. 102)

is DENIED and Defendant's Motion for Judgment on the Administrative Record (Doc. 104;

Doc. 105) is GRANTED. 

IT IS SO ORDERED.

s/Marianne O. Battani 

MARIANNE O. BATTANI

UNITED STATES DISTRICT JUDGE

DATED: February 15, 2011

CERTIFICATE OF SERVICE

Copies of this Order were served upon counsel of record on this date by ordinary

mail and/or electronic filing.

 s/Bernadette M. Thebolt

 Case Manager

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