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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

EVA FANT,

Plaintiff,

vs Case No: 09-12468

Honorable Victoria A. Roberts

HARTFORD LIFE AND ACCIDENT

INSURANCE COMPANY, ET AL,

Defendant.

________________________________/

ORDER

I. INTRODUCTION

Plaintiff Eva Fant (“Fant”) brings this action against Defendants Hartford Life and

Accident Insurance Company (“Hartford”) and L & W, Inc. (“L & W”), under the

Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq.,

to challenge Defendants’ denial of her claim for long-term disability (“LTD”) benefits. 

The matter now is before the Court on Plaintiff’s Amended Motion for Judgment on the

Administrative Record [Dkt #28] and Defendants’ Motion for Entry of Judgment Affirming

the Denial of Long Term Disability Benefits [Dkt #26]. This Court has jurisdiction under

ERISA, 29 U.S.C. § 1132(e), (f). For the reasons stated, Plaintiff’s Motion is DENIED;

Defendants’ Motion is GRANTED.

II. FINDINGS OF FACT

A. The Parties

Plaintiff Eva Fant is a 48-year old, married woman. She is a high school
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graduate and has some college-level training. Fant was hired by L & W in February

1999 and last worked full time as an Inventory Analyst at L & W Engineering. Fant’s

position required her to perform data entry, cycle counts, label making and charting; the

physical requirements of her job were sedentary to light. As an active full-time

employee, Fant was a beneficiary under L & W’s Group Long Term Disability, Life and

Supplemental Life Plan (“the Plan”). 

Defendant L & W was Fant’s employer, as well as the Plan Sponsor and Plan

Administrator. L & W administers the Plan and provides benefits in accordance with the

plan provisions.

Defendant Hartford insures L & W employees eligible for LTD benefits under

Group Insurance Policy No. GLT-674400 (“the Policy”). Hartford is the designated

Claims Fiduciary for benefits provided under the Policy. The Plan grants Hartford “full

discretion and authority to determine eligibility for benefits and to construe and interpret

all terms and provisions of the Policy.” 

B. The Pertinent Plan Provisions

The Plan is an employee welfare benefits plan within the meaning of ERISA, 29

U.S.C. § 1002(1)(2)(A). The Plan provides LTD benefits to eligible employees who

become disabled from a covered accidental bodily injury, sickness or pregnancy. See

AR, p. 46. Eligible employees include all active full-time associates who are U.S.

citizens or U.S. residents, excluding temporary and seasonal associates. Id.

The Plan specifically defines a “Disability” or “Disabled” as follows:

“Disability or Disabled” means that during the Elimination Period and for

the next 24 months you are prevented by:
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1. accidental bodily injury;

2. sickness;

3. Mental illness;

4. Substance Abuse; or 

5. pregnancy,

from performing one or more of the Essential Duties of Your Occupation,

and as a result your Current Monthly Earnings are no more than 80% of

your Indexed Pre-disability Earnings.

After that, you must be so prevented from performing one or more of the

Essential Duties of Any Occupation.

See AR, p. 59. Thus, for the first 24 months, to be disabled, a plan participant must

only be unable to perform one or more of the essential duties of their occupation. After

24 months, he or she must be unable to perform one or more of the essential duties of

any occupation. 

Under the Plan, an “Essential Duty” means a duty that:

1. is substantial, not incidental;

2. is fundamental or inherent to the occupation; and

3. cannot be reasonably omitted or changed.

To be at work for the number of hours in your regularly scheduled

workweek is also an Essential Duty.

See AR, p. 59.

“Your Occupation” is defined as:

your occupation as it is recognized in the general workplace. Your

Occupation does not mean the specific job you are performing for a

specific employer or at a specific location.
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See AR, p. 62.

“Any Occupation” is defined as:

an occupation for which you are qualified by education, training or

experience, and that has an earnings potential greater than an amount

equal to the lesser of the product of your Indexed Pre-disability Earnings

and the Benefit Percentage for which you enrolled and the Maximum

Monthly Benefit shown in the Schedule of Insurance.

See AR, p. 59.

Plan participants are subject to an “Elimination Period”:

The Elimination Period is the period of time you must be Disabled before 

benefits become payable. It is the last to be satisfied of the following:

1. the first 180 consecutive day(s) of any one period of Disability if you

are enrolled for Option 1; or

2. the first 180 consecutive day(s) of any one period of Disability if you

are enrolled in Option 2; or 

3. with the exception of benefits required by state law, the expiration

of any Employee sponsored short term disability benefits or salary

continuation program.

See AR, p. 47.

C. Plaintiff’s Injury and Claim for Disability Benefits

Fant treated with Dr. Norbert Roosen (“Dr. Roosen”) on September 1, 2004, due

to complaints of neck, shoulder, and right arm pain and severe headaches. On January

18, 2005, Fant had an anterior cervical discectomy and fusion surgery at C5-C6 and

C6-C7. Despite the surgery, Fant continued to have neck pain and subsequently began

treating with Dr. Hi Chul Song (“Dr. Song”), a physical medicine specialist. She also

treated in the pain management clinic and used prescription pain killers. On July 21,
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2006, Fant stopped working due to a diagnosis of cervicalgia. She applied for and

received short term disability benefits from Hartford through January 26, 2007.

Fant applied for LTD benefits through Hartford on December 6, 2006. Hartford

approved Fant’s LTD claim on January 4, 2007, with an effective date of January 27,

2007. Pursuant to the Plan, Fant’s monthly benefit was $1,846.00, which represented

60% of her monthly income, coordinated with other income benefits that she received or

was entitled to receive. Under the Plan, Fant was required to and did apply for Social

Security Disability (“SSD”) benefits.

Fant underwent a second cervical discectomy, a C6-C7 fusion “redo”, and a

refusion at C6-C7 for pseudoarthrosis on February 22, 2007. Her diagnoses were

chronic neck, shoulder, and right upper extremity pain, pseudoarthrosis at C6-C&, and

intractable pain with extensive pain clinic management.

Hartford notified Fant by letter on August 10, 2007, that it received her Payment

Options and Reimbursement Agreement Form, in which she requested that Hartford

postpone reducing her LTD benefits until SSD benefits were actually rewarded. The

letter also notified Fant that if she received SSD benefits retroactively, she likely would

have a sizable overpayment of LTD benefits due to Hartford.

On August 1, 2008, Hartford notified Fant by letter that, under the terms of the

Plan, as of January 27, 2009, she would only be entitled to receive continued LTD

benefits if her condition prevented her from performing one or more of the essential

duties of any occupation. The letter instructed Fant to complete and return the Work &

Education History Form, and have her physician’s office complete and return the

Attending Physician’s Statement to Hartford. 
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On August 21, 2008, Fant submitted the Work & Educational History Form; she

indicated that she was a high school graduate and attended Dorsey Business School for

approximately three months. She also indicated that she worked at L & W Engineering

since 1997, in the capacity of Shop Packet Administrator (6/97 - 2/7/99) and Shop

Packet Administrator/Inventory Analyst (2/8/99 - 7/21/06).

On August 22, 2008, Dr. Song submitted to Hartford an Attending Physician’s

Statement of Continued Disability (“APS”). Hartford notified Fant by letter on September

5, 2008, that Dr. Song’s APS was incomplete because it did not include specific

restrictions or limitations for all activities. On September 12, 2008, Dr. Song

resubmitted the APS. On September 15, 2008, Hartford notified Fant by letter that Dr.

Song’s second APS was also incomplete, for the same reasons. On September 19,

2008, Dr. Song again re-submitted the APS. This time, Dr. Song stated that Fant could

sit eight hours per day for one hour at a time, could stand one hour for two hours per

day, and could walk for a half hour for two hours per day. Dr. Song also stated that

Fant could reach at waist or desk level occasionally, and could finger, handle and reach

below waist or desk level frequently.

Following an appeal, Fant was awarded SSD benefits on September 19, 2008,

with an effective date of January 1, 2007. Fant notified Hartford of the award on

November 11, 2008. On November 20, 2008, Hartford notified Fant that as a result of

her award of SSD benefits, an LTD benefit overpayment of $17,116.34 had occurred.

On November 28, 2008, Hartford Medical Clinical Case Manager conducted a

review of Fant’s claim. She determined the restrictions and limitations indicated in Dr.

Song’s APS were supported by the medical information and should be used to
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determine whether Fant met the definition of Disability as of January 27, 2009.

On December 5, 2008, a Rehabilitation Case Manager conducted an

Employability Analysis Report (“EAR”) regarding Plaintiff. Hartford’s EAR revealed nine

occupations that Plaintiff could perform with her restrictions and limitations, and that met

the Plan’s requirement of having earnings potential equal to or greater than 60% of

Fant’s Indexed Pre-Disability Earnings of $1,888.46 per month. The four best

occupations included: (1) Insurance Clerk; (2) Wire-Transfer Clerk; (3) Referral clerk,

Temporary Help Agency; and (4) Surveillance System Monitor. 

On December 9, 2008, Hartford notified Fant that her check in the amount of

$17,116.34 had been credited to her account and it reduced her overpayment balance

for LTD benefits to zero.

On December 11, 2008, Hartford notified Fant that her LTD claim was denied

because she no long met the definition of Disability as noted in the Plan. The decision

was based on the policy language and all documents in Fant’s file. The letter advised

Fant that no benefits would be payable beyond January 26, 2009.

On December 18, 2008, Dr. Song submitted a fourth APS in which he indicated

that Fant had permanent restrictions and could never participate in vocational

rehabilitation services. Dr. Song restricted Fant to no lifting or carrying, no reaching

above shoulder level or at waist or desk level, and no fingering or handling. Dr. Song

said Fant could occasionally drive and reach below waist or desk level. Fant’s

diagnoses included chronic low back pain, neck pain and cervical fusion. In a medical

report also dated December 18, 2008, Dr. Song said he mistakenly reported Fant’s

sitting, standing and walking capabilities on the August 22, 2008 APS.
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On January 15, 2009, Hartford received Fant’s appeal regarding her claim for

long term disability benefits. Hartford conducted a review of Fant’s file, which included

an independent medical record review by MCCM and its physician specialist, Dr. John

Nemunaitis.

On February 26, 2009, Dr. Nemunaitis opined by letter that there was a lack of

objective evidence to validate no functional capability, and that the medical

documentation provided did not support Dr. Song’s opinion of Fant’s inability to work. 

Dr. Nemunaitis further opined that Fant was able to: (1) sit one hour at a time with five

minute breaks every hour to allow for stretching, for a total of eight hours per day; (2)

stand intermittently one-half hour at a time for a total of two hours per day; (3) walk

intermittently, one half hour at a time, for a total of two hours per day; (4) lift/carry 1-10

pounds frequently and 11-20 pounds occasionally; (5) bend at the waist and

kneel/crouch occasionally; (6) drive frequently; and (7) reach at the waist/desk level

frequently, but above shoulder or below waist/desk level occasionally. Dr. Nemunaitis

concluded that Fant “should be able to work eight hours a day five days a week at a

sedentary work capacity with the restrictions and limitations as described.”

On March 23, 2009, Hartford denied Fant’s administrative appeal and upheld the

termination of LTD benefits. Hartford’s final decision stated that “[b]ased on the

contractual provisions of the LTD policy for L & W, Inc., the medical documentation on

file and the information received on appeal, you did not meet the Any Occupation

definition of Disability as of January 27, 2009.”

After exhausting administrative appeals, on June 23, 2009, Fant filed this suit. 

She moves for Judgment on the Administrative Record. Defendants move for entry of
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Judgment affirming the denial of long term disability benefits.

III. STANDARD OF REVIEW

A participant or beneficiary of an ERISA plan may bring suit in federal district

court to recover benefits allegedly due under the terms of the plan. See 29 U.S.C. §

1132(a)(1)(B). Pursuant to the Sixth Circuit's direction, actions regarding the denial of

ERISA benefits are resolved using motions for judgment on the administrative record.

Wilkins v. Baptist Healthcare System, Inc., 150 F.3d 609, 619 (6th Cir. 1998). 

The Court is to: (1) review Defendant’s denial of Plaintiff’s request for benefits

based solely upon the administrative record, (2) apply the applicable standard of review,

and (3) render findings of fact and conclusions of law accordingly. Id. The Court is

"confined to the record that was before the Plan Administrator," and "may not admit or

consider any evidence not presented to the administrator."Id. The pertinent record is

not limited solely to the evidence before the administrator at the time of its initial

decision, but also includes materials considered during the administrative appeals

process. Miller v. Metropolitan Life Ins. Co., 925 F.2d 979, 986 (6th Cir. 1991).

District Courts review a denial of benefits challenged under 29 U.S.C.

§1132(a)(1)(B) under a de novo standard, unless the benefit plan gives the plan

administrator or fiduciary discretionary authority to determine eligibility for benefits or to

construe the terms of the plan. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101,

115, 103 L. Ed. 2d 80, 109 S. Ct. 948 (1989). When the plan administrator has the

discretionary authority to construe and interpret the benefit plan, the standard of review

is “arbitrary and capricious.” Id.

The arbitrary-and-capricious standard "is the least demanding form of judicial
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review of administrative action." Williams v. Int’l Paper Co., 227 F.3d 706, 712 (6th Cir.

2000). This deferential standard requires a court to uphold the benefit determination if

the plan administrator offers a reasoned explanation based on the evidence. University

Hospitals v Emerson Electric Co., 202 F.3d 839, 846 (6th Cir. 2000). The Court judges

reasonableness by whether the plan administrator's interpretation adheres to the

language of the plan "as it would be construed by an ordinary person." Morgan v. SKF

USA, Inc., 385 F.3d 989, 992 (6th Cir. 2004) (citing Shelby County Health Care Corp. v.

Southern Council of Indus. Workers Health and Welfare Trust Fund, 203 F.3d 926, 934

(6th Cir. 2000). And, the Court “must accept a plan administrator's rational interpretation

of a plan even in the face of an equally rational [differing] interpretation." Id. (citing Ross

v. Pension Plan for Hourly Employees of SKF Indus., Inc., 847 F.2d 329, 334 (6th Cir.

1988)). 

However, merely because the Court’s review must be deferential does not mean

it must also be inconsequential. Moon v. Unum Provident Corp., 405 F.3d 373 (6th Cir.

2005). The arbitrary and capricious standard does not require the Court to merely

rubber stamp the administrator’s decision. Jones v. Metropolitan Life Ins. Co., 385 F.3d

654, 661 (6th Cir. 2004) (citing McDonald v. Western-Southern Life Ins. Co., 347 F.3d

161, 172 (6th Cir. 2003). The Court must “review the quantity and quality of the medical

evidence and the opinions on both sides of the issue.” McDonald, 347 F.3d at 172.

The Court’s deferential review is also guided by another important principle: 

Where the employer "is authorized both to decide whether an employee is eligible for

benefits and to pay those benefits[,] [t]his dual function creates an apparent conflict of

interest." Glenn v. Metropolitan Life Insurance Co., 461 F.3d 660, 666 (6th Cir. 2006). 
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"If a benefit plan gives discretion to an administrator or fiduciary who is operating under

a conflict of interest, that conflict must be weighed as a 'facto[r] in determining whether

there is an abuse of discretion.'" Firestone Tire & Rubber Co., 489 U.S. at 115 (quoting

Restatement (Second) of Trusts § 187 cmt. d (1959)). 

Plaintiff argues that the de novo standard of review applies because while the

Plan grants Hartford the discretion to determine eligibility in accordance with the plan

terms, L & W retained authority to decide claims. Plaintiff says L & W could have added

a provision granting Hartford the discretion to determine claims, but it did not. 

Defendants counter that the arbitrary and capricious standard applies because the Plan

vests Hartford with total discretion in interpreting the terms of the Policy and making

benefits decisions.

In determining whether a plan vests discretionary authority on the plan

administrator, the Supreme Court directed lower courts to focus on the breadth of the

administrator’s power – its authority to determine eligibility for benefits or to construe the

terms of the plan. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. at 115.

Here, the Plan designates and names Hartford as the claims fiduciary for benefits

provided under the Policy. The Plan grants Hartford full discretion and authority to

determine eligibility for benefits and to construe and interpret all terms and provisions of

the Policy. See AR, p. 79, 87.

Thus, the Plan language includes both grants of authority. Additionally, the Plan

requires participants to submit a “Proof of Loss” which fully describes the nature and

extent of the claim. Proof of Loss may be requested throughout a period of Disability. 

The Plan expressly states that “[a]ll proof submitted must be satisfactory to us.” See AR,
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p. 56-57. Lastly, with regards to when payment checks are issued, the Plan states:

“‘[w]hen we determine that you are Disabled and eligible to receive benefits, we will pay

benefits at the end of each month that you are Disabled.” See AR, p. 57.

 The only reasonable interpretation is that Hartford has authority to determine

whether a participant is Disabled in accordance with the Plan language, and thus

whether he or she is eligible and entitled to benefits under the Plan. Given that the Plan

grants Hartford such discretionary authority, the arbitrary and capricious standard of

review applies. See Noland v. Prudential Ins. Co. Of Am., 187 Fed. Appx. 447, 452 (6th

Cir. 2006) (finding that policy language stating that the insurance company "determines"

whether the conditions of disability have been met grants discretion such that the

arbitrary and capricious standard applies).

The Court now addresses whether the Plan Administrator acted arbitrarily and

capriciously. 

IV. CONCLUSIONS OF LAW

A. Denial of Benefits

1. Conflict of Interest

Fant argues that Hartford had a conflict of interest because it was the payor of

benefits and the decision maker. "[A] conflict of interest exists for ERISA purposes

where the plan administrator evaluates and pays benefits claims, even when the

administrator is an insurance company and not the beneficiary's employer." DeLisle v.

Sun Life Assur. Co. of Can., 558 F.3d 440, 445 (6th Cir. 2009). Various circumstances

affect the weight that courts accord the conflict Glenn v. Metro. Life Ins. Co., 461 F.3d
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660, 666 (6th Cir. 2006), aff'd, 128 S. Ct. 2343, 2351, 171 L. Ed. 2d 299 (2008)). 

The conflict of interest due to Hartford both determining eligibility for benefits and

paying those benefits will be considered by this Court. Moon v. Unum Provident Corp.,

405 F.3d 373, 381-82 (6th Cir. 2005).

2. Social Security Administration Benefits Determination

Second, Fant argues that Hartford failed to give any weight to her award of SSD

benefits, despite requiring her to apply for and pay more than $17,000 from the award

for LTD overpayments. Defendants say the SSD award was considered, and thus the

Court cannot properly consider the SSA determination in deciding whether Defendants’

decision was arbitrary and capricious. 

While it is true that "an ERISA plan administrator is not bound by an SSA

disability determination when reviewing a claim for benefits under an ERISA plan,"

Whitaker v. Hartford Life and Acc. Ins. Co., 404 F.3d 947, 949, 121 Fed. Appx. 86 (6th

Cir. 2005), the mere mention of the decision is not the same as a discussion about why

the administrator reached a different conclusion from the SSA. Bennett v. Kemper Nat'l

Servs., 514 F.3d 547, 554 (6th Cir. 2007).

“[I]f the plan administrator (1) encourages the applicant to apply for Social

Security disability payments; (2) financially benefits from the applicant's receipt of Social

Security; and then (3) fails to explain why it is taking a position different from the SSA

on the question of disability, the reviewing court should weigh this in favor of a finding

that the decision was arbitrary or capricious.” Id. at 554 (citing Glenn, 461 F.3d at 669). 

The case for arbitrariness is especially strong where failure to explain the deviation from

the SSA findings is coupled with some degree of conflicting interests. DeLisle, 558 F.3d
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at 446 (citing Glenn, 128 S. Ct. at 2352).

Hartford’s final denial letter says its uses different definitions of disability and

different criteria for awarding disability benefits than the SSA. Although Hartford

apparently had no information regarding the evidence the SSA relied upon in reaching

its decision or how the SSA analyzed that evidence regarding Fant’s functional

limitations, Hartford’s denial does not contain any substantive explanation of why its

findings differed from the SSA's. This tends to support a finding that Hartford’s

decision-making process was arbitrary and capricious. 

3. Medical Evidence

Fant next argues that Hartford’s reliance on a file review in lieu of a physical

examination, as well as it failure to take into account the non-objective evidence of her

chronic and severe pain and the effect of high dosage narcotic pain drugs,

demonstrates that Hartford’s decision was arbitrary and capricious. Defendants say

Fant’s arguments are contravened by the administrative record and the law.

There is "nothing inherently objectionable about a file review by a qualified

physician in the context of a benefits determination." Calvert v. Firstar Fin. Inc., 409

F.3d 286, 296 (6th Cir. 2005). However, "the failure to conduct a physical

examination--especially where the right to do so is specifically reserved in the

plan--may, in some cases, raise questions about the thoroughness and accuracy of the

benefits determination." Id. at 295. This is particularly true where a reviewer does not

explain why it disagrees with an SSA determination. Bennett, 514 F.3d at 555.

Here, Hartford specifically reserved the right, at its own expense and as

reasonably required, to have participants examined to determine if they are Disabled.
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See A.R. 57. It elected instead to conduct a file review. While Dr. Nemunaitis’ report

notes the absence of an IME report, based on the records he reviewed, Dr. Nemunaitis

concluded that Fant could work eight hours per day, five days per week at a sedentary

work capacity, with restrictions and limitations similar to those listed in Dr. Song’s

August 2008 APS. 

Dr. Nemunaitis said he based his opinion on a lack of documentation of a

neurological deficit or objective functional limitations associated with Fant’s pain. Thus,

Dr. Nemunaitis impliedly rejected Fant’s subjective complaints of pain and its effect on

her functional ability. He also did not mention or discuss why his opinion differed from

the SSA decision. Hartford, however, addressed both in its final denial, finding that

Fant’s symptoms were not severe enough to prevent her from performing any

occupation. 

Fant complains that Hartford did not consider her use of prescription pain drugs

and how they limit her ability to work. Dr. Nemunaitis noted that although Fant was

maintained on Oxycontin, Neurontin and Naproxen, there was no report of functional

impairment associated with them. In the second denial letter, Hartford noted that based

on Fant’s ability to drive, it did not appear that the medication caused impairments that

would prevent her from performing sedentary work. This explanation was reasonable in

light of Dr. Song’s records, in which Fant denied any drowsiness with her medications

and he noted no impairments.

Fant also complains that Defendants failed to give proper weight to Dr. Song’s

opinion that she was disabled. Defendants argue they were not required to accord

special deference to Dr. Song’s opinion and were free to credit reliable, conflicting
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evidence. 

Defendants correctly state that in the ERISA context, a plan administrator need

not defer to the opinions of treating physicians. Black & Decker Disability Plan v. Nord,

538 U.S. 822, 834, 123 S. Ct. 1965, 155 L. Ed. 2d 1034 (2003). By the same token, it

may not arbitrarily repudiate or refuse to consider the opinions of a treating physician.

Id.

Defendants say they only employed MCMC to review Fant’s file because after

Hartford’s initial denial, Dr. Song changed his findings relating to Fant’s restrictions and

limitations; they sought to determine whether there was objective evidence to support

the changed functional limitation findings. 

The Sixth Circuit held it is entirely reasonable for an insurer to request objective

evidence of a claimant's functional capacity. Cooper, 486 F.3d at 166 (citing Spangler v.

Lockheed Martin Energy Sys., Inc., 313 F.3d 356, 361 (6th Cir. 2002)). One method of

objective proof of disability is a functional capacity evaluation, a "reliable and objective

method of gauging" the extent one can complete work-related tasks. Cooper, 486 F.3d

at 176. 

Review of Dr. Song’s records reveals that his opinion was largely based on

subjective information from Fant; EMG studies were negative for radiculopathy; a nerve

conduction study was normal. Thus, while the Plan does not say that self-reported or

"subjective" factors should be accorded less significance than other indicators, it was

reasonable for Hartford to consider Dr. Song’s post-denial findings, and the absence of

an FCE, in crediting Dr. Neumunaitis’ opinion over Dr. Song’s. This is especially so in

light of Dr. Song’s admission to Dr. Neumunaitis, that an FCE might be useful to more
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objectively substantiate Fant’s work capacity.

Next, Fant complains that Hartford’s decision to cease benefits was arbitrary and

capricious because there was no evidence that her condition improved. Defendants say

that even if Fant’s condition had not changed, they properly limited their review to

whether she was disabled under the “any occupation” standard as of January 27, 2009. 

The Court finds Plaintiff’s argument unpersuasive. Because no right to receive

long-term benefits indefinitely accrued to Fant upon Hartford's initial determination that

she was entitled to LTD benefits, Ellis v. Liberty Life Assurance Co. of Boston, 394 F.3d

262, 274 (5th Cir. 2004), Hartford was entitled to review her eligibility based on the new

“any occupation” standard. 

In sum, Fant cannot demonstrate that Hartford’s review of the medical evidence

was arbitrary and capricious.

4. Employability Analysis Report

Fant argues that Hartford used the wrong job functions in determining that her

job was medium instead of sedentary work. Hartford counters that it recognized Fant’s

physical limitations in its review of the EAR, and says the relevant inquiry was whether

Fant’s condition prevented her from performing any occupation, not her occupation.

Under the "any occupation" standard, a plan administrator is "under a duty to

make a reasonable inquiry into the types of skills [a claimant] possesses and whether

those skills may be used at another job that can pay [him] the same salary range as [his

pre-disability earnings]." McDonald v. Western-Southern Life Insurance Co., 347 F.3d

161, 162 (6th Cir. 2003). "Just as a plan administrator must make some inquiry into the

nature and transferability of a claimant's job skills, a plan administrator must make some
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inquiry into whether the jobs selected are ones that the claimant can reasonably

perform in light of specific disabilities." Brooking v. Hartford Life and Accident Ins. Co.,

167 F. App'x 544, 549 (6th Cir. 2006).

Hartford commissioned the EAR, which concluded that Fant was employable at

the sedentary level in at least four identified occupations, considering her skills and

physical functionality as well as the prevalence of these occupations in her geographic

area. Hartford reasonably relied on this EAR, which utilized the OASYS job matching

system. Cochran v. Hartford Life & Accident Ins. Co., 2010 U.S. Dist. LEXIS 4182, at *

24-26 (E.D. Mich. 2010) citing Richey v. Hartford Life & Accident Ins. Co., 608 F. Supp.

2d 1306, 1312 (M.D. Fla. 2009) (recognizing that it was reasonable for the plan

administrator to rely on an employability analysis utilizing the OASYS system as

evidence that plaintiff was not incapable of working under the "any occupation"

standard). 

Although Fant argues the EAR listed her job title incorrectly and mischaracterized

her work at L & W, she does not deny that she was capable of performing the essential

duties of the four occupations identified by Hartford. Those occupations were based on

the restrictions and limitations provided by her own treating physician.

In reaching its conclusion that Fant was not disabled under the "any occupation"

standard, Hartford fulfilled its obligation to inquire into her skill set, and the transferability

of those skills, and to assess her functional capabilities to perform the jobs that it

identified. Fant, therefore, cannot demonstrate that Hartford was arbitrary and

capricious in relying on the EAR.

V. CONCLUSION
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Some of the factors identified by the Sixth Circuit that weigh against Plan

Administrators are present: (1) Hartford made both the decision regarding Fant’s

eligibility and paid her benefits; (2) Hartford disagreed with the SSA's disability

determination without sufficient explanation; and (3) Hartford relied almost exclusively

on a review of Fant’s records as opposed to a physical examination. Nonetheless,

Hartford’s decision followed a deliberate and principled reasoning process and thorough

review of Fant’s records. The Court finds the termination of benefits was not arbitrary

and capricious. 

Plaintiff’s Motion is DENIED; Defendants’ Motion is GRANTED.

IT IS ORDERED.

 /s/ Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: August 20, 2010

The undersigned certifies that a copy of this

document was served on the attorneys of

record by electronic means or U.S. Mail on

August 20, 2010.

s/Linda Vertriest 

Deputy Clerk