1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TROY COCHRAN,

Plaintiff,

v. Case No. 09-cv-11752

United States District Judge Paul D. Borman

HARTFORD LIFE AND ACCIDENT

INSURANCE COMPANY,

Defendant.

__________________________________/

OPINION AND ORDER 

(1) GRANTING DEFENDANT’S MOTION FOR ENTRY OF JUDGMENT AFFIRMING THE

DENIAL OF LONG TERM DISABILITY BENEFITS (DKT. NO. 18) and 

(2) DENYING PLAINTIFF’S MOTION TO REVERSE BENEFITS DECISION (DKT. NO. 20)

This matter is before the Court on Defendant Hartford Life and Accident Insurance

Company’s (“Hartford”) Motion for Entry of Judgment Affirming Denial of Long Term Disability

Benefits (Dkt. No. 18) and Plaintiff’s Motion to Reverse Benefits Decision (Dkt. No. 20) . Plaintiff

has filed a response (Dkt. No. 24) and a reply (Dkt. No. 26). Hartford has filed a response (Dkt. No.

23) and a reply (Dkt. No. 25). Pursuant to Local Rule 7.1(e)(2), the Court has decided the parties’

cross-motions without a hearing. Having considered the entire record, reviewed the parties’

respective briefs and for the reasons that follow, the Court GRANTS Hartford’s Motion for Entry

of Judgment Affirming Denial of Long Term Disability Benefits and DENIES Plaintiff’s Motion

to Reverse Benefits Decision. 

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1 Citations to “AR” are to the Administrative Record which was filed under seal with the Court on

October 6, 2009 (Dkt. No. 16) pursuant to stipulation of the parties (Dkt. No. 15). Pursuant to the

Stipulated Case Management Order entered by this Court on August 28, 2009, the parties were

required to file any disputes regarding the completeness of the Administrative Record on or before

September 28, 2009. (Dkt. No. 12 ¶ 3.) No objections to the record’s completeness were filed by

either party. As this Court noted in its August 28, 2009 Stipulated Case Management Order, “this

matter is governed solely by the administrative record, and discovery is neither sought nor permitted

in this action.” (Dkt. No. 12 ¶ 2.) As the parties have stipulated that the record is complete, this

Court does not consider any matters presented by the parties in their cross-motions which are not

a part of the Administrative Record. See Wilkins v. Baptist Health Care Sys., Inc., 150 F.3d 609,

614 (6th Cir. 1998) (district court is confined to the record that was before the Plan administrator);

Peruzzi v. Summa Medical Plan, 137 F.3d 431, 433-34 (6th Cir. 1998) (only materials considered

by the plan administrator may be considered in determining whether denial of coverage was

arbitrary and capricious). 

2

I. BACKGROUND

Plaintiff was employed as a warehouse/shipping associate at Saint-Gobain Corporation and

was a beneficiary under an employee welfare plan that provided both short (“STD”) and long

(“LTD”) term disability benefits. On March 26, 2006, Plaintiff injured his ankle in a non-workrelated automobile accident, in connection with which he was cited for driving while intoxicated.

(AR 00603-605.)1 Plaintiff applied for and received STD benefits effective March 28, 2006 and

continued to receive STD benefits until September 26, 2006, the maximum amount of time that such

benefits are permitted under the applicable plan. (AR 00704, 00701, 00649.) Plaintiff was informed

that if he expected his disability to continue beyond September 26, 2006, he should apply for LTD

benefits. (AR 00649.) 

Plaintiff did apply for LTD benefits, which he received until September 28, 2008, based upon

a determination that he was not able to perform the essential duties of his own job as a warehouse

shipping associate. Plaintiff was informed on January 24, 2007, that under the terms of the

applicable plan, Plaintiff would not be considered disabled after September 28, 2008, if he was not

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prevented from performing one or more of the essential duties of any occupation for which he was

trained and qualified and which offered the requisite earnings potential. (AR 00572.) Based upon

the record evidence, including both medical and vocational documentation, Hartford made the

determination that Plaintiff was no longer disabled as of September 28, 2008 from performing the

essential duties of “any occupation” under the terms of the plan. (AR 00426-430.) It is Hartford’s

determination on Plaintiff’s eligibility for LTD benefits under the “any occupation” standard that

Plaintiff now challenges in this Court.

A. The Provisions of the Plan

Plaintiff’s employer, Saint Gobain, sponsored a Long Term Group Disability Benefit Plan

(“the Plan”). (AR 00006-00061.) The Plan is insured by Hartford through Policy No. GLT-675408

(“the Policy”). (AR 00009-00010.) The Plan benefits are subject to the Policy’s terms and

provisions, which are incorporated into, and form a part of, the Plan. (AR 00036.) The Plan

designates Plaintiff’s employer, Saint-Gobain Corporation, as the Plan sponsor and administrator.

(AR 00036.) The Plan designates Hartford as the claims fiduciary for benefits under the Policy and

grants Hartford “full discretion and authority to determine eligibility for benefits and to construe and

interpret all terms and provisions of the Policy.” (AR 00036.) Hartford utilized the services of

Disability Management Alternatives LLC (“DMA”) to assist with claims administration. 

The Plan provides LTD benefits to covered employees who become disabled while insured

under the Plan. (AR 00013.) The Plan defines “disability” and “disabled” in pertinent part as

follows:

“Disability or Disabled” means:

1. during the Elimination Period, you are prevented from performing one or

more of the Essential Duties of Your Occupation;

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2. for the 24 months following the Elimination Period, you are prevented from

performing one or more of the Essential Duties of Your Occupation, and as

a result your Current Monthly Earnings are less than 80% of your Predisability Earnings;

3. after that, you are prevented from performing one or more the Essential

Duties of Any Occupation. 

(AR 00023.) The Plan defines “Essential Duty” as a duty that (1) is substantial, not incidental, (2)

is fundamental or inherent to the occupation, and (3) can not be reasonably omitted or changed. (AR

00023.) Thus, under the Plan, for the first 24 months the standard for disability is the employee’s

ability to perform the essential duties of his or her “own” occupation. After the first 24 months, the

standard for disability is the employee’s ability to perform the essential duties of “any” occupation.

The Plan defines “Any Occupation” as follows:

Any Occupation means 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 Pre-disability Earnings and the Benefit

Percentage and the Maximum Monthly Benefit shown in the Schedule of Insurance.”

(AR 00022.) For Plaintiff, an occupation would meet the Plan’s earnings potential requirement if

it would provide an expected income of $2,100.32 per month or $12.12 per hour on a full-time basis.

(AR 00022, 00474, 00627.) 

The Plan sets forth the process for filing a claim, and includes a requirement that a claimant

provide initial and continuing Proof of Loss (documentation of disability). (AR 00019-00020.) The

Plan also describes the denial and appeal process, and allows a claimant to request all of the material

relied upon by Hartford in support of its denial. (AR 00021, 00039.) The Plan provides for appeal

of an initial benefit determination and Hartford commits to review on appeal “all comments,

documents, records and other information submitted by [the claimant] relating to the claim, without

regard to whether such information was submitted or considered in the initial benefit determination.”

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(AR 00039.)

B. Plaintiff’s Receipt of Benefits Under the Plan and Training by Hartford in His

Chosen Vocation of Tattoo Artist

Following his March 26, 2006 automobile accident and ankle fracture, Plaintiff was unable

to work and was approved for receipt of STD benefits effective March 28, 2006. Plaintiff continued

to receive STD benefits until September 26, 2006, the maximum allowable time under the Plan.

(AR 000649, 00701, 00704.) Plaintiff was informed on September 5, 2006 that he would have to

apply for LTD benefits under the Plan if he expected that his disability would continue beyond the

expiration of his STD benefits on September 26, 2006. (AR 00649.) Plaintiff did apply for LTD

benefits and was approved under the “own occupation” standard, effective September 28, 2006.

(AR 00571-00574.) Plaintiff was informed at the time he was approved under the 24 month “own

occupation” standard that as of September 28, 2008 he would be required to meet the more

discerning “any occupation” standard, under which he would continue to meet the definition of

“disabled” under the Plan only if he was prevented from performing one or more of the Essential

Duties of “any occupation.” (AR 000572.)

In September 2006, Plaintiff indicated an interest in possible retraining in computer

technology. (AR 00351.) In January, 2007 Plaintiff indicated that he was interested in vocational

training assistance. (AR 00270.) In April, 2007, DMA referred Plaintiff’s case to Seacoast

Rehabilitation, LLC to obtain a Labor Market Survey based on Plaintiff’s interest in computer

training and his intent to obtain a Microsoft Certified Professional Certification. (AR 00242.) The

Labor Market Survey disclosed numerous jobs in the relevant market, at the relevant pay grade.

(AR 00242-249.) Plaintiff, however, decided that he was no longer interested in pursuing computer

training. (AR 00168.) 

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Plaintiff ultimately decided that he wanted to be trained as a tattoo artist and DMA again

commissioned Seacoast LLC to conduct a Labor Market Survey for tattoo artists, which disclosed

multiple employment opportunities in the relevant market area, suitable to Plaintiff’s functional

capabilities and wage requirements. (AR 00447-00454.) Several of the businesses indicated stable

hiring activity over the past year and some expected growth in the business and were specifically

looking for new hires. (AR 00448-00454.) 

Plaintiff entered into an Apprenticeship Training Agreement with Hartford that specifically

designated a full-time position as a Tattoo Artist as Plaintiff’s vocational goal. (AR 00515-00519.)

Plaintiff’s Return to Work Plan under the Apprenticeship Training Agreement included Plaintiff’s

participation in a 312-hour apprenticeship program and his attendance at an OASHA Blood Borne

Pathogen course, which was required by many of the businesses identified in the Labor Market

Survey. (AR 000515-00516.) Under the Return to Work Plan, Hartford agreed to pay the cost of

the apprenticeship and the OASHA course, in addition to purchasing tools and equipment for

Plaintiff, investing approximately $6,500.00 in Plaintiff’s training and preparation for his chosen

vocation. (AR 00516.) Plaintiff acknowledged in the Return to Work Plan that he would “be

considered reasonably employable at the completion or near completion of the Apprenticeship

program.” (AR 00516.) Plaintiff’s job duties during his apprenticeship included set up and

maintenance of his own tattoo station and application of tattoos to customers. (AR 00461, 00466,

00481, 00488, 00499.) Plaintiff performed well throughout the apprenticeship program, receiving

marks of “excellent” from his mentor, without notation of any physical difficulties in performing

the work. (AR 00466.) 

C. Plaintiff’s Ability to Perform the Essential Functions of “Any Occupation” 

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Hartford explained to Plaintiff when it approved his receipt of disability benefits under the

“own occupation” standard, if Plaintiff remained disabled after September 28, 2008, he would be

considered disabled under the terms of the Plan only if he could demonstrate that he met the more

exacting “any occupation” standard. (AR 00572.) Pursuant to the Plan, Hartford continued to

monitor Plaintiff’s disabled status, regularly requesting documentation and medical information

from both his treating physician and his rehabilitation counselor. 

Plaintiff’s treating physician, Dr. Tudor Tien, indicated in a November 13, 2007 “Attending

Physician’s Statement of Disability” that Plaintiff had no limitations on use of hands or arms, no

limitations on driving or repetitive hand motions, no limitations on sitting and was capable of

minimal reaching and working overhead. (AR 00505-00506.) In an April 25, 2008 Attending

Physician’s Statement of Functionality, Dr. Tien indicated that Plaintiff could sit for 8 hours, could

stand for 2 hours and walk for 3 hours each day, with the use of a cane. (AR 00484-00485.) The

April 25, 2008 functionality report also indicated that Plaintiff could lift and carry up to 10 pounds

frequently, could occasionally bend at the waist, never crouch, could drive without limitation and

reach, finger and handle occasionally. (AR 00485.)

Upon completion of his tattoo apprenticeship program, Plaintiff’s vocational rehabilitation

counselor contacted Plaintiff’s treating physician, Dr. Tien, for an acknowledgment that Plaintiff

was in fact capable of physically performing the day to day tasks of his chosen vocation as a tattoo

artist. In a June 12, 2008 letter to Dr. Tien seeking his opinion, the vocational rehabilitation

counselor explained:

As you may be aware, Mr. Cochran recently completed his vocational training as

certified Tattoo Artist and is currently working.

The occupation as a Tattoo Artist is sedentary with some occasional standing and

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walking which is consistent with the functional capacities form completed by you on

04/25/2008. The occupation also requires frequent to constant reach, handle and

finger.

Given the fact that Mr. Cochran is currently working and performing frequent to

constant reach, handle and finger, do you agree that he is capable at this level work?

(AR 00473.) On June 16, 2008, Dr. Tien signed the letter, indicating that in his opinion, Plaintiff

was capable of the work as described, including specifically “constant reach, handle and finger.” 

Hartford also commissioned an Employability Analysis Report (“EAR”) which was issued

on June 19, 2008, and identified two occupations (eyeglass frames polisher and lens-block gauger)

that met the relevant functionality and wage requirements for Plaintiff’s employability and also were

found to be “prevalent” and within Plaintiff’s skill range. (AR 00433.) The EAR utilized the

Occupational Access System (“OAS”), a computerized job matching system that cross references

an individual’s “qualifications profile” with over 12,000 occupations classified by the Department

of Labor in the Dictionary of Occupational Titles (“DOT”). (AR 00432.) The Report noted that

these two occupations were in addition to the occupation of tattoo artist, which also was determined

to meet the applicable earnings and functionality requirements. (AR 00432-00433.) The EAR

concluded: “Results of the employability analysis determined that Mr. Cochran possesses

transferable skills required to perform at least 3 occupations that he has education and training for

within 67% of his pre-disability indexed wages. This determination is based on the preponderance

of medical evidence provided to me from Mr. Cochran’s file. Please note that this Employability

Analysis Report is based solely on Mr. Cochran’s residual physical function.” (AR 00432.) All of

the “Profile Adjustments/Considerations” relied on in the Employability Analysis Report came

directly from conclusions contained in Dr. Tien’s evaluations of November 13, 2007, April 25,

2008 and June 12, 2008. (AR 00432-00433.)

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D. Hartford’s Decision That Plaintiff Did Not Meet the “Any Occupation”

Standard

On July 31, 2008, Hartford notified Plaintiff that he did not meet the policy definition of

disability beyond September 27, 2008, i.e. that he did not meet the “any occupation” standard. (AR

00426-00430.) Hartford explained the reasoned basis for its decision:

We based our decision to terminate your claim on policy language. All the papers

contained in your file were viewed as a whole. This included:

* The Long Term Disability Income Benefits Questionnaire received on September

11, 2006;

* The Attending Physician’s Statement signed by Dr. Tudor Tien on April 25, 2008;

* Office notes and medical records from Dr. Tudor Tien form March 31, 2006

through May 2, 2008;

* Employability Analysis information completed by a Vocational Rehabilitation

Clinical Case Manager on June 19, 2008;

* Labor Market Survey completed by a Vocational Rehabilitation Consultant on July

11, 2007; and

* Your education, training and experience described on the History of Work and

Education with Pension Questionnaire form received on May 5, 2008.

(AR 00428-00429.) The letter further indicated that Hartford reviewed all of the medical

information in Plaintiff’s file to decide if Plaintiff continued to meet the definition of disability. (AR

00429.) 

Hartford determined, based upon the evidence reviewed, that Plaintiff was qualified to work

in sedentary occupations, including by way of example the occupations of eyeglass frames polisher

and lens-block gauger, and that those occupations met the earnings potential required under the

Policy. (AR 00429.) Hartford also determined, based on the July 11, 2007 Labor Market Survey

for Tattoo Artists, that positions existed in the relevant geographic area for Tattoo Artist and that

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Plaintiff met the functional capability and training requirements of that occupation, which also met

the earning potential required under the Policy. The letter concluded: “Based on this information,

we have concluded that you are not prevented from performing the essential duties of Any

Occupation. Because of this, you will not meet the policy definition of Disability as of September

28, 2008 and your LTD benefits will terminate on that date.” (AR 00429.) 

The letter informed Plaintiff of his rights under ERISA to pursue an appeal of Hartford’s

decision, which Plaintiff did by letter dated January 5, 2009. (AR 00198.) Despite the fact that the

Plan invited Plaintiff to submit with his appeal “any written comments, documents, records, and

other information” relating to his claim, and although Plaintiff’s attorney indicated in his January

5, 2009 letter that further information from Dr. Tien would be forthcoming, Plaintiff never submitted

anything further in support of his appeal and never identified a basis for his appeal or his reasons

for challenging Hartford’s decision. (AR 00198.) 

In a letter dated February 9, 2009, Plaintiff was notified of the appeal committee’s decision,

based upon a “complete and independent review,” to uphold Hartford’s denial of benefits: “Based

upon the comprehensive review of the available information we have determined that the

Company’s decision to terminate benefits as of September 27, 2008 was correct.” (AR 00178-

00179.) The appeal committee’s decision specifically noted Dr. Tien’s findings and conclusions

regarding Plaintiff’s functional capabilities, the independent vocational and labor market surveys

that were conducted, and Plaintiff’s training and work as a tattoo artist in reaching its conclusion that

Plaintiff’s condition did not prevent him from performing one or more of the essential duties of “any

occupation.” (AR 00178-00179.)

II. STANDARD OF REVIEW

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Generally, a challenge to a denial of benefits under the Employment Retirement Income

Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., is reviewed de novo, “unless the benefit

plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits

or to construe the terms of the plan.” Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115

(1988). Where a plan administrator has discretionary authority to determine benefits, courts will

“review a decision to deny benefits under ‘the highly deferential arbitrary and capricious standard

of review.’” Sanford v. Harvard Indus., Inc., 262 F.3d 590, 595 (6th Cir. 2001) (quoting Yeager v.

Reliance Standard Life Ins. Co., 88 F.3d 376, 380 (6th Cir.1996)). 

The Plan in the instant case designates Hartford as the claims fiduciary for benefits under

the Policy and grants Hartford “full discretion and authority to determine eligibility for benefits and

to construe and interpret all terms and provisions of the Policy.” (AR 00036.) Courts have

consistently held that this type of unequivocal plan language vests the plan administrator with the

discretionary authority that mandates review under the arbitrary and capricious standard. See

Osborne v. Hartford Life and Acc. Ins. Co., 465 F.3d 296, 299 (6th Cir. 2007) (citing Yeager, supra).

“‘[T]he arbitrary and capricious standard is the least demanding form of judicial review of

administrative action. When applying the arbitrary and capricious standard, the Court must decide

whether the plan administrator’s decision was rational in light of the plan’s provisions. Stated

differently, when it is possible to offer a reasoned explanation, based on the evidence, for a

particular outcome, that outcome is not arbitrary and capricious.’” McDonald v. Western-Southern

Life Insurance Co., 347 F.3d 161, 169 (6th Cir. 2003) (quoting Williams v. Int’l Paper Co., 227 F.3d

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2 Plaintiff implies that the Policy language (Plaintiff does not identify which Policy language) is

somehow ambiguous, inferring that the principle of contra proferentem, under which ambiguities

in a contract are construed against the drafter, should be applied to interpret the terms of the Plan.

(Pl.’s Br. 7.) However, plan administrators are given great latitude in interpreting ambiguous terms

when the plan vests them with discretionary authority to determine eligibility for benefits. Moos v.

Square D Co., 72 F.3d 39, 42 (6th Cir. 1995). See also Peach v. Ultramar Diamond Shamrock, 229

F. Supp. 2d 759, 766 (E.D. Mich. 2002) (recognizing that the doctrine of contra proferentem is

inconsistent with the deferential arbitrary and capricious standard under which the plan

administrator’s decision is reviewed) (citing Admin. Comm. of the Sea Ray Employees’ Stock

Ownership & Profit Sharing Plan v. Robinson, 164 F.3d 981, 986 (6th Cir. 1999)).

12

706, 712 (6th Cir. 2000).2

 

While courts have recognized that when the plan authorizes the fiduciary to both determine

eligibility and provide benefit payments there is a potential for a conflict of interest, the Sixth Circuit

has expressly held that this potential is simply a factor to be considered and does not alter the

deferential “arbitrary and capricious” standard of review. See Peruzzi, supra at 433 (conflict of

interest is a factor to be considered but does not change the standard of review); Osborne, supra at

300 (requiring “significant evidence” that an alleged conflict of interest affected the administrator’s

decision). 

III. ANALYSIS

A. Hartford’s Obligations to Plaintiff Under the “Any Occupation” Standard

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, supra at 172. It is true, as Plaintiff points out, that the “any occupation” standard

“cannot be construed so narrowly that an individual must be utterly helpless to be considered

disabled and that nominal employment, such as selling peanuts or pencils which would only yield

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a pittance, does not constitute a ‘business or occupation.’” Id. A plan administrator is obligated to

inquire into a claimant’s skill set and the transferability of those skills as well as the claimant’s

functional ability to perform any potential identified occupations: “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 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). 

The plan administrator’s obligations are not, however, without limits and there is no

requirement that “a full-blown vocational evaluation” be done in every instance. McDonald, supra

at 172. See also Silvey v. FMC Corp. Long-Term Disability Plan, No. 95-6251, 1996 WL 690156

(6th Cir. Nov. 27, 1996) (unpublished) (finding that no court has suggested “that it is incumbent on

plan administrator to conduct a detailed review of available jobs in order to demonstrate that a

plaintiff is employable”). Many courts recognize that the “any” occupation standard is not

particularly demanding and in many cases have found that no vocational evidence is required,

particularly where the claimant is capable of light to sedentary work. Cf. Block v. Pitney Bowes,

Inc., 952 F.2d 1450, 1455 (D.C. Cir. 1992) (failure to identify jobs in the relevant geographic that

were actually available not arbitrary and capricious where no provision of the policy required Pitney

Bowes to ensure availability of an alternative job and claimant, who suffered a knee injury, was not

terribly medically limited); Richey v. Hartford Life & Accident Ins. Co., 608 F. Supp. 2d 1306, 1312

(M.D. Fla. 2009) (holding that determining benefits eligibility under an “any occupation” standard

does not require vocation evidence to establish occupational availability).

The facts of a particular case will dictate the specifics of the plan administrator’s obligations,

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but under no circumstances is there a duty imposed on the plan administrator to actually find a

claimant a job or guarantee a claimant’s actual marketability. See Duhon v. Texaco, Inc., 15 F.3d

1302, 1309 (5th Cir. 1994) (finding that Texaco’s disability benefits plan was “not a form of

employment insurance” and that it was not incumbent on the plan administrator “to insure the

availability of an alternative job” before terminating benefits). See also Perez v. Aetna Life Ins. Co.,

No. 95-1111, 2000 WL 191904 at * 3 (6th Cir. Feb. 10, 2000) (unpublished) (“[N]othing in the

disability policy requires that plaintiff be competitively employable or be actually able to find a job.

. . . [H]e need only be shown to be able to perform jobs that other people with similar education,

training and experience are performing.”); Biljan v. Aetna Life Ins. Co., 189 F. App’x 423, 426 (6th

Cir. 2006) (holding that Aetna must consider whether claimant is qualified and able to work at a

“reasonable occupation” considering claimant’s training and experience but that “[n]othing requires

Aetna actually to provide the claimant with a job”); Jestings v. New England Telephone and

Telegraph Co., 757 F.2d 8, 10 (1st Cir. 1985) (holding that “incapable” of performing under the any

occupation standard refers to ability or capacity, not opportunity).

B. Hartford’s Decision to Terminate Plaintiff’s Benefits Under the “Any

Occupation” Standard

In reaching its conclusion that Plaintiff was not disabled under the “any occupation”

standard, Hartford fulfilled its obligation to inquire into Plaintiff’s skill set, and the transferability

of those skills, and to assess Plaintiff’s functional capabilities to perform the jobs that it identified.

This is particularly true with respect to Hartford’s efforts to prepare Plaintiff to return to work in his

chosen profession of tattoo artist. Hartford considered all of the relevant medical evidence, which

amounted to the statements and notes of Plaintiff’s own treating physician. (AR 00484, 00473,

00476, 00484-00485, 00505-00506, 00544-00545, 00644-00646,00652-00654, 00671, 00677,

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3 Plaintiff states in his brief that none of the tattoo shops identified in the survey were hiring but this

is contradicted by the evidence. The Emporium Tattoo, Inc. indicated that hiring had been stable

but that “there could be an opening within the near future if demands continue to rise.” (AR 00448.)

Indian Ink Tattoos indicated that they “will need someone within the near future, as the shop will

be moving to a bigger area.” (AR 00450.) Liquid Tattoo Body Piercing indicated that “they are

always interested in new applicants and apprenticeship programs.” (AR 00451.) Precision Ink

Tattoo, where Plaintiff did his apprenticeship, indicated that they were planning to have Plaintiff set

up shop there and grow his own business. (AR 00461.) Plaintiff states that he was “let go” from

Precision because there was no work for him, but there is no evidence in the record that this

15

00690, 00695-00697). Plaintiff never contested any of Dr. Tien’s conclusions and never offered any

competing medical evidence or opinions. There was no “battle of the experts” and although given

the opportunity to provide additional evidence in the appeal process of his claimed disability under

the “any occupation” standard, Plaintiff offered nothing to supplement this record. 

Hartford also commissioned and relied on the EAR prepared by a vocational rehabilitation

clinical case manger, which concluded that Plaintiff was employable at the sedentary level in at least

three identified occupations, considering Plaintiff’s skills and physical functionality as well as the

prevalence of these occupations in Plaintiff’s geographic area. (AR 00432-00433). Hartford

reasonably relied on this EAR, which utilized the OASYS job matching system. See Richey, supra

at 1312 (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).

Hartford also commissioned and relied on a separate Labor Market Survey, specific to

Plaintiff’s chosen profession of tattoo artist. (AR 00447-00454.) This survey demonstrated that

the occupation of tattoo artist was within Plaintiff’s training and experience (which Hartford had

paid for), was prevalent in the community, and met the earning requirements under the Plan. (AR

00447-00454.)3

 Although Plaintiff claims that this survey was “flawed,” there is no evidence in the

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happened. There is evidence that Plaintiff needed to work on his “communication and listening

skills” in working with clients at Precision Ink, but this is clearly unrelated to his claimed disability.

(AR 00440.) If in fact Plaintiff did not set up shop at Precision Ink, as was the plan, we can only

speculate as to why as Plaintiff offers no evidence on this issue. Perhaps Plaintiff simply did not

put the effort in to developing his own book of business. Again, we can only speculate. There is

no evidence that Plaintiff applied for a tattoo job elsewhere, and was refused employment.

4 Plaintiff offers several “red herrings” in his briefs which merit only brief attention. One such

example is Plaintiff’s argument that under the reasoning of Kramer v. Paul Revere Life Ins. Co., 571

F.3d 499, 507 (6th Cir. 2009), Hartford was obligated to show an improvement in Plaintiff’s

condition to justify termination of benefits. (Pl.’s Br. 7.) Kramer does not stand for this proposition

and did not involve a change in standards under the plan at issue from the “own” to the “any”

occupation standard. The standard in Kramer remained “own” and the court found it was arbitrary

and capricious to terminate benefits without a demonstrated change in plaintiff’s condition. In the

instant case, under the terms of the Policy, the standard itself changed and Hartford concluded that

Plaintiff was no longer disabled under that new standard. 

5 Plaintiff criticizes the Employability Analysis Report (AR 00432-00438) (“EAR”), arguing that

Plaintiff was not qualified for the positions of eyeglass frames polisher and lens-block cleaner

identified in that report. (Pl.’s Br. 7-9.) First, the argument relies on evidence outside the

Administrative Record, i.e. an O*NET Online summary report for grinding, lapping etc. (Pl.’s Br.

Ex. 5.) This evidence was never considered by Hartford in its initial denial or in its appeal review

and there is no indication that it is even relevant to the occupations noted in the EAR. The Court

cannot consider evidence outside the agreed upon Administrative Record. See Wilkins, supra 150

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record to support this assertion and no evidence that Hartford’s reliance on that survey was arbitrary

and capricious. 

 Hartford’s reasonably concluded that Plaintiff was not disabled from performing one or

more of the essential functions of “any occupation” based upon the uncontradicted facts that: (1)

Plaintiff’s own treating physician opined that Plaintiff could sit for 8 hours a day, stand for 2 hours

a day, walk for 3 hours day with the use of a cane, frequently lift and carry up to 10 pounds, and

constantly reach, finger and handle;4

 (2) Plaintiff was trained and qualified for a position as a tattoo

artist and had been working effectively as a tattoo artist for approximately 8 months; (3) Plaintiff’s

own treating physician opined that Plaintiff was functionally capable of performing the vocational

requirements of a tattoo artist and of an eyeglass frames polisher and lens-block gauger;5

 and (4) a

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F.3d at 615. Second, Plaintiff cannot demonstrate that it was arbitrary and capricious for Hartford

to rely on the EAR’s independent analysis, which was based on the restrictions and limitations

provided by Plaintiff’s own treating physician, and which identified occupations for which Plaintiff

was qualified and which met the Plan’s earnings potential requirements. (AR 00432-00433, 00474.)

See Richey, supra at 1312. Finally, Plaintiff does not deny that he was capable of performing the

essential duties of a tattoo artist, a separate and viable occupational option specifically chosen by

Plaintiff himself. Plaintiff cites no law to support the inferred argument that Hartford was obligated

to identify more than one occupation for which Plaintiff was qualified and which met the functional

capability and wage requirements under the Plan.

6 Plaintiff argues, with no citation to any record evidence, that the occupation of tattoo artist did not

meet the Plan’s earning potential requirements but this statement is directly contradicted by the

record evidence and Plaintiff offers nothing, other than unsupported opinion, to support his contrary

assertion. (Pl.’s Br. 9.) For Plaintiff, under the “any occupation” standard, an occupation was

required to provide an expected income of $2,100.32 per month or $12.12 per hour. (AR 00022,

00474, 00627.) The Labor Market Survey on which Hartford relied to determine that the occupation

of tattoo artist met that standard indicates clearly that expected incomes in that profession met or

exceeded that minimum. (AR 00447-454.) Indeed, many of the shops indicated potential earnings

well in excess of that minimum and as an apprentice at Precision Tattoo, Plaintiff earned $11.25 per

hour. (AR 00444, 00458, 00465.) The information supplied in the Labor Market Survey was

specific and credible and Plaintiff offered no evidence to contradict the survey’s conclusions.

Hartford reasonably relied on the Labor Market Survey regarding potential occupational

opportunities for Plaintiff in the tattoo artist market.

7 Plaintiff argues, again without citation to any case law, that Hartford had an obligation to train him

for the other two occupations which it identified in its EAR. (Pl.’s Br. 9.) Plaintiff cites no law for

the proposition that Hartford had any obligation to offer him any type of training, and in fact

Plaintiff chose to be trained, at Hartford’s expense, as a tattoo artist and set that as his “vocational

goal.” (AR 00515-00519.) Plaintiff never argued in his appeal of his denial of benefits that Hartford

failed to help him meet his vocational goals. Indeed, the evidence is to the contrary. Plaintiff

acknowledged that with training in his vocational choice he would be ready to return to work and

reasonably employable. (AR 00519.) 

17

Labor Market Survey indicated that several tattoo establishments within Plaintiff’s relevant

geographic area offered the potential earnings required under the Plan and that some of those were

in a position to hire.6

It is difficult to imagine what more Hartford could have done for Plaintiff, short of actually

securing him employment, which Hartford clearly had no legal obligation to do.7 Hartford made

a reasoned decision, based on the entire Administrative Record, that Plaintiff was capable of

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performing, based upon his functional limitations as described by his own treating physician, several

jobs that it identified in the relevant geographic area that promised the potential earnings required

under the Plan. Given the nature of Plaintiff’s injury and his capability, as defined by his own

treating physician, of performing light to sedentary work, this likely fulfilled Hartford’s obligation

under the Plan. However, Hartford went beyond this, conducted two separate vocational market

studies and engaged Plaintiff in, and fully funded, an apprenticeship training program, so that

Plaintiff would unquestionably be adequately trained and qualified in the occupation of his choice.

Plaintiff’s ability to actually secure a job was beyond Hartford’s responsibilities and likely beyond

Hartford’s control. At some point, it became incumbent on Plaintiff to take responsibility for

actually finding himself a job. Hartford, after all, guaranteed disability benefits, not unemployment

benefits. 

IV. CONCLUSION

Hartford conducted a careful, thorough and reasoned analysis of Plaintiff’s claim for LTD

benefits under the “any occupation” standard and concluded that Plaintiff was qualified by his

education, training and experience to perform the essential duties of an occupation which had an

earnings potential above that required by the Plan. Hartford’s decision to deny Plaintiff LTD

benefits beyond September 27, 2008 was not arbitrary and capricious. This Court GRANTS

Hartford’s Motion for Entry of Judgment Affirming the Denial of Long Term Benefits and DENIES

Plaintiff’s Motion to Reverse Benefits Decision.

IT IS SO ORDERED.

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S/Paul D. Borman 

PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE

Dated: January 20, 2010

CERTIFICATE OF SERVICE

Copies of this Order were served on the attorneys of record by electronic means or U.S. Mail on

January 20, 2010.

S/Denise Goodine 

Case Manager

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