1

At the defendant’s request, (Doc. 26 at 5-6), the Court has not considered the

plaintiff’s affidavit.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

HERMAN OLDS, )

 )

Plaintiff, )

 )

v. ) CIVIL ACTION 09-0192-WS-N

 )

RETIREMENT PLAN OF )

INTERNATIONAL PAPER COMPANY, )

INC., )

 )

Defendant. )

ORDER

This matter is before the Court on the defendant’s motion for summary judgment. 

(Doc. 21). The parties have filed briefs and evidentiary materials in support of their

respective positions, (Docs. 22-23, 25-26), and the motion is ripe for resolution. After

carefully considering the foregoing and other relevant material in the file,1

 the Court

concludes that the motion is due to be denied.

BACKGROUND

The plaintiff was employed by International Paper Company (“IP”) for many years

in a heavy-duty capacity. He last worked in March 2006 and underwent a total knee

replacement in April 2006. In December 2006, he applied for retirement disability

benefits, but the defendant (“the Plan”) denied them. The plaintiff appealed and was

again denied. The single count of the complaint alleges that the Plan wrongfully denied

the plaintiff’s claim for disability and thereby violated ERISA. (Doc. 1).

The plaintiff’s application left blank the line asking him to state the cause of his

Case 2:09-cv-00192-WS-N Document 27 Filed 03/30/10 Page 1 of 11
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The Plan describes Dr. Romeo as the plaintiff’s treating physician, (Doc. 26 at 4),

but his report identifies him as a certified independent medical examiner.

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disability, but it did disclose that he had been awarded Social Security disability benefits. 

(Doc. 23, Exhibit C, Part II at Olds 168-72). The Plan received in December 2006 a copy

of an agency letter to the plaintiff advising him of the award and his monthly benefit. 

(Id., Part I at Olds 70-71). 

The governing definition of “disability” is as follows:

“Disability” or “Disabled” means a total disability which is a medically

determinable physical or mental impairment or diagnosed terminal illness 

which renders the Participant incapable of performing any occupation or 

employment for which the Participant is qualified by education, training 

or experience and which is likely to be permanent during the remainder 

of the Participant’s life, provided that the Plan Administrator finds, and a 

physician or physicians designated by the Plan Administrator certify, that 

the Participant is Disabled.” 

(Doc. 23, Exhibit B, Part II at Plan 160; accord id. Part I at Plan 7-8). 

Along with his application, the plaintiff submitted documents from an independent

medical examination by Dr. Romeo dated November 21, 2006. (Doc. 23, Exhibit C, Part

I at Olds 64-69, 72-76).2

 The plaintiff’s chief complaints were bilateral knee pain and

swelling extending to the ankles and feet, and right shoulder pain provoked. He had no

other subjective complaints. Medical history included a left total knee replacement,

which other records reflect occurred in April 2006. Physical examination revealed trace

effusion of the right knee, greater effusion of the left, both without synovitis, tenderness

or laxity. Extremities showed no edema. A range of motion study found no limitations

other than knee flexion (120 degrees in both knees rather than the normal 150 degrees). 

Dr. Romeo summarized his relevant findings as bilateral knee pain status post left total

knee arthroplasty and with osteoarthritis on the right, along with morbid obesity.

As part of his examination, Dr. Romeo completed a functional assessment. He

found that the plaintiff, in an eight-hour work day, could stand/walk 5-8 hours, sit 5-8

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hours, lift 20 pounds frequently and 45 pounds occasionally, bend frequently, and stoop

and climb occasionally. Based on the Directory of Occupational Titles, Dr. Romeo

categorized the plaintiff as Class II, meaning capable of medium manual activity. Dr.

Romeo found no mental impairment in any of a host of work-related tasks, and he

concluded that the plaintiff has the qualification by reason of education, training or

experience to perform the limited duties for which he is physically capable. 

The Plan forwarded the information from Dr. Romeo for a transferable skill

assessment (“TSA”). Based on his functional assessment, the TSA concluded the

plaintiff could no longer perform his prior job, which was classified as heavy duty. 

However, within the limitations identified by Dr. Romeo, the TSA identified two lightduty occupations for which the plaintiff is qualified by education, training or experience:

router and order caller. (Doc. 23, Exhibit C, Part II at Olds 148-49).

Based on the information from Dr. Romeo and the TSA, the Plan denied the

plaintiff’s claim. (Doc. 23, Exhibit C, Part II at Olds 145-47). The plaintiff appealed the

denial, identifying the source of his disability as swelling in his legs caused by bad veins

allowing blood to pool and causing unbearable pain. This pain rendered it almost

impossible for the plaintiff to stand or sit more than two hours at a time, and only by lying

down and elevating his legs could he relieve the swelling and thus the pain. The plaintiff

in his appeal reminded the Plan that he had been approved for Social Security disability. 

(Id., Part I at Olds 61-62). The appeal included additional medical records and prompted

a series of reviews.

Among the additional medical records was a functional capacity evaluation

(“FCE”) performed at the request of IP in July 2006. (Doc. 23, Exhibit C, Part II at Olds

132-38). The plaintiff ranked his pre-test bilateral knee pain at 6 and his post-test pain at

8-9, and he terminated walking, kneeling, stair climbing and crawling tests with

complaint of pain in one or both knees. Both knees could flex to approximately 130

degrees, with good stability. The FCE indicated the plaintiff can kneel occasionally and

Case 2:09-cv-00192-WS-N Document 27 Filed 03/30/10 Page 3 of 11
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bend and crouch frequently. He had some lifting limitations, attributed to a right shoulder

weakened by a motor vehicle accident some years previous and restricting him to a light

to medium class of work. 

The additional records also included progress notes and related papers from the

files of Dr. Kirkland, the plaintiff’s treating physician. (Doc. 23, Exhibit C, Part I at Olds

81-96; id. Part II at Olds 97-129). Those records reflect a diagnosis of “chronic venous

stasis” as of April 2006, with further references to this condition in November 2006 and

January 2007, the most recent record available. (Id. at Olds 119, 128-29). 

The Plan sent its records to Dr. Chmell, an orthopedic surgeon, and requested him

to perform an independent medical review (“IMR”). (Doc. 23, Exhibit C, Part I at Olds

45-48). Dr. Chmell concluded that the plaintiff is not disabled under the Plan definition. 

The Plan sent the same records to Dr. Gross for an internal medicine IMR and to Dr.

Marion for a physical medicine and rehabilitation IMR. (Id. at Olds 37-44). Dr. Marion

concluded that the plaintiff’s residual knee discomfort, while clinically significant, would

not have precluded him from performing the routine duties of a light duty job as of June

2006. (Id. at 39). Dr. Gross concluded that the plaintiff’s diabetes, congestive heart

failure, chest wall pain and epigastric pain would not impose any functional limitations. 

(Id. at 42-44). 

The Plan denied the plaintiff’s appeal in June 2007, (Doc. 23, Exhibit C, Part I at

Olds 6-7), and this lawsuit followed.

 

DISCUSSION

Summary judgment should be granted only if “there is no issue as to any material

fact and the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). The party seeking summary judgment bears “the initial burden to show the district

court, by reference to materials on file, that there are no genuine issues of material fact

that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.

Case 2:09-cv-00192-WS-N Document 27 Filed 03/30/10 Page 4 of 11
3

E.g., Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998) (“The

district court has discretion to go beyond the referenced portions of these [summary

judgment] materials, but is not required to do so.”); accord Jones v. Sheehan, Young &

Culp, P.C., 82 F.3d 1334, 1338 (5th Cir. 1996); Street v. J.C. Bradford & Co., 886 F.2d

1472, 1479-80 (6th Cir. 1989); Lawson v. Sheriff of Tippecanoe County, 725 F.2d 1136,

1139 (7th Cir. 1984); Karlozian v. Clovis Unified School District, 2001 WL 488880 at *1

(9th Cir. 2001); see also Local Rule 7.2.

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1991). 

“If the party moving for summary judgment fails to discharge the initial burden,

then the motion must be denied and the court need not consider what, if any, showing the

non-movant has made. [citation omitted] If, however, the movant carries the initial

summary judgment burden ..., the responsibility then devolves upon the non-movant to

show the existence of a genuine issue of material fact.” Fitzpatrick v. City of Atlanta, 2

F.3d 1112, 1116 (11th Cir. 1993). “If the nonmoving party fails to make a sufficient

showing on an essential element of her case with respect to which she has the burden of

proof, the moving party is entitled to summary judgment.” Clark, 929 F.2d at 608

(internal quotes omitted).

There is no burden on the Court to identify unreferenced evidence supporting a

party’s position.3

 Similarly, “[t]here is no burden upon the district court to distill every

potential argument that could be made based upon the materials before it on summary

judgment.” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995). 

Accordingly, the Court’s review is limited to those exhibits, and those portions of

exhibits, to which the parties have specifically cited. The Court’s review is similarly

limited to those arguments they have expressly advanced.

The parties agree that the Plan should prevail on motion for summary judgment if

there is no genuine issue of material fact as to whether its decision to deny benefits was

de novo correct or, at least, not arbitrary and capricious. (Doc. 25 at 7-8; Doc. 26 at 1-2).

The plaintiff offers three reasons the Plan’s decision was not correct but arbitrary and

capricious: (1) it did not have before it evidence that the income the jobs of router and

Case 2:09-cv-00192-WS-N Document 27 Filed 03/30/10 Page 5 of 11
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order caller would command would be substantial and/or profitable; (2) the reviewers did

not deal with the plaintiff’s subjective complaints of continued pain; and (3) the reviewers

did not consider any information from Social Security. (Doc. 25 at 11-12).

A. Income or Profit. 

The Plan does not disagree that it denied benefits without any evidence of the

income or profit the plaintiff could earn from working as a router or order caller. Instead,

it states that, because the applicable definition of disability is silent as to any such

requirement, it was not required to consider what, if anything, the plaintiff could earn in

such work. (Doc. 26 at 2-3). The Plan has not adequately supported its position.

In Helms v. Monsanto Co., 728 F.2d 1416 (11th Cir. 1984), the Court stated that,

“[t]o bar recovery, under the terms of the [disability income plan], the earnings possible

must approach the dignity of a livelihood. [The plaintiff] is required to show physical

inability to follow any occupation from which he could earn a reasonably substantial

income rising to the dignity of an income or livelihood ....” Id. at 1421-22. The plaintiff

relies on Helms, but the Plan says it is inapposite because the definition of disability there

in play required a determination that the employee’s disability prevented him “from

engaging in any occupation or employment for remuneration or profit,” 728 F.2d at 1418

(emphasis added), while the instant definition is silent about income. The trouble is that

courts employing Helms have done so while ignoring language concerning remuneration

or profit. 

In VanderKlok v. Provident Life & Accident Insurance Co., 956 F.2d 610 (6th Cir.

1992), the plan defined disability as something preventing the employee “from engaging

in every business or occupation and from performing any work for compensation and

profit.” Id. at 614. The Sixth Circuit ruled that Helms applied — not because the

definition mentioned compensation and profit, but because “the phrase ‘prevented from

engaging in every business or occupation’ cannot be construed so narrowly that an

Case 2:09-cv-00192-WS-N Document 27 Filed 03/30/10 Page 6 of 11
4

It may be, as the Plan suggests in passing, that the Ninth Circuit does not impose

an income requirement on a policy that defines disability in terms of other jobs for which

-7-

individual must be utterly helpless to be considered disabled and that nominal

employment, such as selling peanuts or pencils which would yield only a pittance, does

not constitute a ‘business or occupation.’” Id. at 614-15. 

Likewise, in Townsend v. Delta Family-Care Disability and Survivorship Plan,

295 Fed. Appx. 971 (11th Cir. 2008), the definition excluded disability if the employee

were capable of “engaging in any occupation whatsoever for compensation or profit,

including part-time work.” Id. at 976. The Eleventh Circuit ignored the clause “for

compensation or profit,” targeted the phrase “any occupation,” and invoked Helms for the

proposition that a plan “cannot define eligibility for benefits so narrowly that it ‘would

deny benefits [if the claimant] should engage in some minimal occupation, such as selling

peanuts or pencils, which would yield only a pittance.’” Id. (quoting Helms, 728 F.2d at

1421)).

In Hammond v. Fidelity and Guaranty Life Insurance Co., 965 F.2d 428 (7th Cir.

1992), the plan defined disability as the inability “to perform the chief job duties of his

job or any job which [sic] he may be fitted by (1) training; (2) education; or (3)

experience,” with no reference to income, profit or remuneration. Id. at 428. The Court

relied on Helms for the proposition that under this definition — substantively

indistinguishable from the one at issue here — “the insured should be entitled to recover

provided he or she is unable to perform all the substantial and material acts necessary to

the prosecution of some gainful business or occupation.” Id. at 431.

VanderKlok, Townsend and Hammond thus indicate that Helms is not limited to

policies that expressly mention income, profit or remuneration but extends to any policy

that would exclude disability even when the employee is unable to earn an income “rising

to the dignity of an income or livelihood.” The Plan has not shown this reading of Helms

to be wrong,4

 and under it the Plan cannot prevail simply by declaring it need not consider

Case 2:09-cv-00192-WS-N Document 27 Filed 03/30/10 Page 7 of 11
the employee is qualified by training, education or experience. See Madden v. ITT Long

Term Disability Plan, 914 F.2d 1279, 1285-86 (9th Cir. 1990); see also Pannebecker v.

Liberty Life Assurance Co., 542 F.3d 1213, 1219-20 (9th Cir. 2008). The question,

however, is what the Eleventh Circuit requires, and the Plan has not distinguished, or

even addressed, the cases cited in text. Nor has it performed the hard work of

demonstrating why the Eleventh Circuit would adopt the Ninth Circuit rule. 

-8-

what, if any, income the plaintiff could earn in alternative employment.

B. Pain.

The plaintiff asserts that the Plan did not deal with his subjective complaints of

pain. The Plan’s only response is that, because Dr. Romeo mentioned pain and swelling

as the plaintiff’s chief complaint, and because the reviewers “considered” Dr. Romeo’s

records, the Plan adequately “evaluated” the plaintiff’s pain. (Doc. 26 at 3-4). The Plan

has failed to establish that it adequately considered the plaintiff’s pain.

It is clear from the record that the plaintiff attributed his inability to work to pain;

that this pain resulted from swelling of his legs, feet and ankles; that this swelling derived

from a venous condition; and that the resultant pain precluded him from standing or

sitting (requirements of most jobs) for more than two hours. Dr. Romeo found the

plaintiff capable of standing 5-8 hours a workday and sitting a comparable amount, but he

focused on the plaintiff’s knee issues rather than his lower leg pain secondary to swelling. 

Perhaps the plaintiff did not adequately express to Dr. Romeo his problem, or perhaps Dr.

Romeo did not detect any issue because the plaintiff did not during examination exhibit

edema, but in any event it is far from clear that Dr. Romeo adequately addressed the

primary cause of the plaintiff’s alleged disability.

By the time of the plaintiff’s appeal, any doubt as to his allegation had

disappeared, since that document explicitly attributed his disability to unbearable pain

caused by swelling in his legs due to a venous condition allowing blood to pool in his

lower extremities, a condition exacerbated by standing or sitting. The submitted records

Case 2:09-cv-00192-WS-N Document 27 Filed 03/30/10 Page 8 of 11
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of his treating physician confirm that the plaintiff was subject to chronic venous stasis, a

term that refers precisely to the condition the plaintiff described.

This history makes plain that the plaintiff’s alleged pain incident to lower leg

swelling was the key to his claim of disability. The question, as posed by the Plan,

becomes how it “evaluated” the allegation and evidence of pain and the swelling that

precipitated it. Dr. Chmell noted, in passing, Dr. Kirkland’s ongoing treatment for lower

extremity venostasis, but his discussion focused entirely on the plaintiff’s knee issues,

with no mention of the reality, extent or impact of the plaintiff’s pain — understandable,

since the lower leg swelling and resultant pain were not orthopedic conditions. Dr.

Marion noted references to swelling by Drs. Romeo and Kirkland, but he incorrectly

characterized the medical records as addressing only knee swelling and so limited his

discussion to the effect of knee swelling on walking, without any reference to the effect of

lower leg swelling on standing or sitting, and without any reference to pain. 

Dr. Gross, the internist, noted the plaintiff’s diagnoses of diabetes and congestive

heart failure and concluded that these conditions, among others he identified, would not

impose any functional limitations. The Court recognizes that diabetes and congestive

heart failure can result in lower extremity swelling, but it is unable to conclude from Dr.

Gross’s brief statements that he considered the plaintiff’s swelling and consequent pain,

especially since he did not even acknowledge the existence of a diagnosis of chronic

venous stasis and complaints of pain therefrom. 

The Plan’s four-sentence argument provides no authority for the proposition that

the reviews described satisfy its legal obligations, and the Court will not attempt to supply

the deficiency.

C. Social Security Award.

The Plan admits that it knew, in or before December 2006, that the plaintiff had

been awarded disability benefits effective September 2006. (Doc. 22 at 6; Doc. 23,

Case 2:09-cv-00192-WS-N Document 27 Filed 03/30/10 Page 9 of 11
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Exhibit C, Part I at Olds 70-71; Doc. 26 at 4). The plaintiff asserts that the reviewers did

not consider this information. The Plan has failed to establish that it adequately

considered the Social Security award. 

The Plan argues that, because it forwarded a copy of the notice of award to the

reviewers, they must have considered it. (Doc. 22, ¶¶ 17, 19 21; Doc. 26 at 4). However,

the pages of their reports to which the Plan refers simply include a list of medical records,

including “S.S.,” which it “provided for review.” The Plan has thus not established that

the reviewers were even aware of the award, much less that they adequately considered

its ramifications. 

The Plan also suggests the notice of award is meaningless because it merely

advises the plaintiff that he has been approved for disability benefits, without identifying

the condition or conditions that resulted in the award or the rationale utilized in

determining that the plaintiff is disabled. The problem is that the Plan has not attempted

to show it has carte blanche to ignore a known Social Security disability award merely

because the employee does not produce documents detailing the agency’s analysis, and to

do so without making any effort to obtain such documents either from the employee or

the agency. Indeed, the Plan’s own disability retirement application, which the plaintiff

completed, requires submission only of the “notice of award,” not of any supporting

documents. (Doc. 23, Exhibit C, Part II at Olds 168). The plaintiff supplied that notice

and thereby satisfied the Plan’s only demand.

CONCLUSION

The plaintiff has identified three reasons the Plan’s denial of his claim was not

correct but arbitrary and capricious. The Plan has identified minimal grounds for

challenging the plaintiff’s assertion, and none of them is supported by either careful

analysis of the record or resort to adequate judicial authority. The Court neither has nor

expresses any opinion as to the ultimate validity of the plaintiff’s claim. On the limited

Case 2:09-cv-00192-WS-N Document 27 Filed 03/30/10 Page 10 of 11
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argument and authority provided, the Plan’s motion for summary judgment is denied.

DONE and ORDERED this 30th day of March, 2010.

s/ WILLIAM H. STEELE

UNITED STATES DISTRICT JUDGE

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