United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 10-3206

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Don Carrow, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the Eastern

* District of Missouri.

Standard Insurance Company, *

*

Appellee. *

 ___________

Submitted: September 19, 2011

 Filed: January 11, 2012 

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Before LOKEN, BEAM, and MURPHY, Circuit Judges.

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BEAM, Circuit Judge.

Don Carrow appeals the district court's adverse grant of summary judgment in

favor of Standard Insurance Company in this Employee Retirement Income Security

Act (ERISA), 29 U.S.C. §§ 1001 et seq., benefits case. We affirm.1

1

The Honorable Henry E. Autrey, United States District Judge for the Eastern

District of Missouri.
I. BACKGROUND

Carrow began employment with Jager Industries in January 2000 as a technical

sales representative. As a full-time employee of Jager, Carrow was eligible for

disability benefits under the Group Long Term Disability Insurance Policy (the Plan). 

The underwriter and Plan administrator is Standard. As relevant, the Plan defines

"disability" as being disabled from the claimant's "own occupation" (for the first

twenty-four months of benefits) and thereafter, being disabled from "any occupation"

for which the claimant is "reasonably fitted by education, training, and experience." 

The Plan gives Standard full discretion to interpret the terms of the Plan.

In February 2005, Carrow was unable to work due to a diagnosis of avascular

necrosis of the right hip, and he underwent a subsequent core decompression surgical

procedure on February 16, 2005. Carrow applied for and was approved for short-term

disability (STD) benefits on March 2, 2005, and began receiving a weekly STD

stipend. Carrow was scheduled to return to work in April 2005, but was unable to do

so due to pain and complications following the surgical procedure. Because of the

complications and the unsuccessful results of the surgery, Carrow's STD benefits were

extended until May 2005, at which time his claim was converted to a long-term

disability (LTD) claim. 

On September 30, 2005, Carrow underwent a total hip replacement at BarnesJewish Hospital, performed by Dr. Burnett. On February 23, 2006, at a post-operative

visit, Dr. Burnett found that Carrow's right hip replacement was "doing great," and

that he had bilateral knee osteoarthritis, gout, and left hip osteonecrosis. Dr. Burnett

found Carrow had no disability and Burnett thought Carrow would be a reasonable

candidate to return to work at normal duties. In March 2006, Carrow did return to

work and was able to work until June 1, 2006. At that point, Carrow claimed he could

no longer work due to progressive pain in his knees, left hip and spine. On June 16,

2006, Dr. Mullen, Carrow's primary treating physician, completed a statement

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indicating Carrow's diagnosis of median neuropathy; osteoarthritis of the knees, hip

and spine; dysesthesia; hypoesthesia; pain in the knees, hip and spine and

radiculopathy. Dr. Mullen opined that Carrow could sit, stand and walk four hours

a day, occasionally bend/stoop, and alternate between standing and sitting six hours

a day. Dr. Mullen also checked a box indicating his opinion that Carrow could

"never" return to work.

Carrow was again approved for disability benefits on July 12, 2006. On August

18, 2006, Carrow's claim and medical records were reviewed by a nurse/vocational

consultant for Standard, who determined that benefits were appropriate after

reviewing the medical records. During July and August 2006, Carrow received

injections into both knees as treatment for his osteoarthritis. He received additional

injections in September and October 2006. Also during this time, Carrow was

diagnosed with bilateral carpal tunnel. On November 6, 2006, Carrow called Dr.

Mullen complaining of numbness in his hands. Dr. Mullen recommended a referral

for carpal tunnel repair. Carrow indicated that he wanted to wait until after deer

season to have carpal tunnel surgery performed. On January 3, 2007, Carrow was

seen by Dr. Strecker regarding the carpal tunnel problem, and Carrow subsequently

underwent a bilateral carpal tunnel decompression and release. Dr. Strecker's

treatment notes from January 17, 2007, indicate that Carrow's symptoms were

resolved. Carrow was also approved for Social Security Disability benefits, beginning

in January 2007, for which he had applied as required by the Plan.

As previously noted, the Plan provided that twenty-four months after the first

LTD2

 payment, the definition of disability changed from the inability to perform one's

2

The point at which Carrow's claim ceased being an own-occupation claim and

became instead an any-occupation claim does not appear to be in dispute. And,

indeed, the Plan indicates that a period of "temporary recovery"–i.e., when Carrow

returned to work in March 2006–does not affect the maximum benefit period of

twenty-four months for own-occupation benefits.

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"own occupation" to the inability to perform "any occupation." In anticipation of the

change in Carrow's claim from an own-occupation claim to an any-occupation claim,

on February 27, 2007, Chris Caiazzo, a Standard claims administrator, forwarded a

medical questionnaire to Carrow to update his condition. The medical questionnaire

was answered by Dr. Mullen, who stated Carrow's primary diagnosis as "total hip

replacement" and the secondary diagnosis was multiple degenerative joint disease. 

Dr. Mullen stated that Carrow had degenerative osteoarthritis in his knees and hip

which made ambulation painful and prevented the use of stairs. Mullen further

reported that Carrow was not able to lift, pull or carry and that sitting was painful. Dr.

Mullen rated Carrow at 70%–meaning Carrow cares for himself but is unable to carry

on normal activity or do active work. Dr. Mullen stated Carrow's ability to stand, sit

and walk was reduced to only one and two hours per day, but suggested he could push

and pull, lift and carry as much as 50 pounds occasionally to frequently, and opined

that Carrow was "[n]ot capable of return to 40 [hour] work week."

On June 23, 2007, Dr. Handelsman, D.O., a Standard consultant, reviewed

Carrow's file. Dr. Handelsman noted, erroneously, that Carrow had been out of work

since February 15, 2005, and that he should have returned to work as of February 23,

2006, as per Dr. Burnett's note.3

 Dr. Handelsman noted that Carrow postponed carpal

tunnel surgery until "after deer season," thus the condition could not have been

"bothering the claimant too much." In July 2007, a vocational case manager assessed

Carrow's education, training and experience as follows: a Bachelor of Science degree;

acceptable salary level is $3,019.37 per month; and physical limitations of no

prolonged standing or walking without the ability to rest, no repetitive climbing, no

squatting, crouching, crawling or kneeling. The report listed several sedentary

occupational alternatives comparable with Carrow's abilities, education, training and

experience.

3

In fact, Carrow returned to work from March 2006 through June 2006.

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On July 31, 2007, Standard notified Carrow that he did not meet the "any

occupation" disability definition. Carrow appealed this determination. On August 8,

2007, Dr. Mullen wrote a letter to Standard indicating that Carrow continued to be

totally and permanently disabled due to degenerative changes throughout his entire

skeletal system, and the letter set forth Carrow's limitations. On August 20, 2007, Dr.

Handelsman was asked to review Dr. Mullen's August 8, 2007, letter and consider a

telephone call with Dr. Mullen. Dr. Handelsman wrote a note on the bottom of the

request indicating there was no new information. On September 18, 2007, a second

physician consultation was completed by Hans Carlson, M.D., who stated that a

person of Carrow's age and with his limitations should be able to perform sedentary

work. In October 2007, Carrow underwent an MRI of his lumber spine, which

showed mild L4-5 and L5-S1 disc bulges. Dr. Mullen sent another letter, dated

October 19, noting Carrow's knee problems and bulging discs, pointing out the 2005

total hip replacement, the carpal tunnel surgery, and that Carrow also had gouty

arthritis of his feet. Dr. Mullen stated that Carrow had atherosclerotic vascular disease

of the aorta and that Carrow had difficulty sleeping due to chronic pain and stress. Dr.

Mullen concluded by adding that, while none of Carrow's ailments were disabling "in

and of themselves," when viewed in combination, Carrow was disabled from doing

even sedentary work.

In response to Dr. Mullen's October 19 letter, Standard asked Dr. Carlson to

respond to the conclusions in Dr. Mullen's October 19 letter. Dr. Carlson concluded

that based upon Carrow's current ailments–mild degenerative changes in the spine,

mild (right) and moderate (left) knee arthritis, and successful hip and carpal tunnel

surgery–Carrow was capable of doing sedentary work. Dr. Carlson also noted that the

sleep and stress problems noted by Dr. Mullen could be further evaluated to determine

whether these issues might have an effect on Carrow's disability status. Standard

consulted with another physician, Dr. Fancher, regarding Dr. Mullen's reference to

vascular disease, stress and chronic pain. Upon review of the medical records in the

administrative record, Dr. Fancher concluded that Carrow's prior office notes with Dr.

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Mullen did not reflect a diagnosis or referral for cardiovascular disease, sleep

problems or stress.

On December 12, 2007, Standard notified Carrow that his administrative appeal

was rejected. The notice stated that the "medical information in your claim file is

insufficient to support that you have limitations and or restrictions of a severity to

prevent you from performing the material duties of any gainful occupation for which

you are reasonably fitted by education, training or experience, and there are alternate

occupations available for which you qualify." Carrow appeals, arguing that Standard

abused its discretion in denying his claim for LTD benefits.

II. DISCUSSION

We review de novo the district court's grant of summary judgment regarding

an ERISA plan administrator's benefits determination. Manning v. Am. Republic Ins.

Co., 604 F.3d 1030, 1038 (8th Cir.), cert. denied, 131 S. Ct. 648 (2010). If, as here,

the Plan reserves discretionary power to construe terms or make eligibility

determinations, the administrator's decision is reviewed for an abuse of discretion. Id.

We will reverse if the Plan administrator's decision was inconsistent with Plan goals,

renders other terms meaningless, superfluous or internally inconsistent, conflicts with

the substantive or procedural requirements of ERISA, is inconsistent with prior

interpretations of the same words, or is contrary to the Plan's clear language. Jones

v. Reliastar Life Ins. Co., 615 F.3d 941, 945 (8th Cir. 2010). When, as here, a conflict

of interest exists because the Plan is both the decision-maker and the insurer, we take

that conflict into account and give it some weight in the abuse-of- discretion

calculation. Manning, 604 F.3d at 1038-39. 

The Plan administrator did not abuse its considerable discretion in this case. 

Our precedent indicates that the Plan administrator may rely upon the reports of

consulting, non-examining physicians over the reports of treating physicians. 

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Weidner v. Federal Express Corp., 492 F.3d 925, 930 (8th Cir. 2007). Although one

of Dr. Handelsman's reports contained a factual inaccuracy about Carrow's return-towork history, as discussed below, this was not the only consultant review or report

relied upon by Standard in denying benefits. And, Standard did credit the reports of

several treating physicians–the doctor who performed Carrow's hip replacement

surgery, Dr. Burnett; the doctor who performed Carrow's successful carpal tunnel

release in January 2007, Dr. Strecker; and another orthopedic doctor, Dr. Hulsey, who

treated Carrow's fractured finger in October 2006. Dr. Strecker reported that the

carpal tunnel release had "resolved" Carrow's night pains. In treating Carrow's

fractured finger in October 2006, Dr. Hulsey's treatment notes described Carrow as

an "active" 59-year-old male. Dr. Burnett did not believe Carrow was disabled in

February 2006. None of these doctors had a financial tie to Standard, ameliorating the

effect of the conflict of interest in this case.4

 Carrow argues that these doctors did not

treat his primary disability, which he alleges is his arthritic knees. However, in March

2007, Dr. Mullen reported that Carrow's "primary" diagnosis was "total hip

replacement" and that Carrow could not return to a forty-hour work week. In an

October 2007 letter, Dr. Mullen included "carpal tunnel" within the litany of Carrow's

disabling conditions, despite the treating surgeon's report that the carpal tunnel release

was successful. Standard was within its discretion to make comparisons and

credibility assessments among the reports of treating physicians. See Rutledge v.

Liberty Life Assurance Co. of Boston, 481 F.3d 655, 660-61 (8th Cir. 2007)

(upholding the denial of "any occupation" disability benefits where primary physician

insisted that claimant was disabled, while other treating physicians disagreed).

Further, Standard did more than simply rubberstamp the consulting physicians'

reports. Each time that Dr. Mullen sent another letter opining that Carrow was

completely disabled, Standard's consulting physicians reviewed the correspondence,

4

Pursuant to 1099-MISC forms provided by Standard as part of their discovery

responses, Standard paid Dr. Carlson $83,232.00 and Dr. Handelsman $184,091.68

in miscellaneous income for the 2007 tax year.

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and at one point, Standard asked Dr. Carlson to answer specific questions about Dr.

Mullen's recommendations. Standard apparently did not find Dr. Mullen persuasive,

but did not simply discount his opinion without making further inquiries into Carrow's

abilities. Finally, while the Social Security Administration (SSA) found that Carrow

was disabled within the meaning of its regulations, Plan administrators are not bound

by SSA findings of disability. Id. at 660. The reports of the consulting physicians and

Drs. Burnett, Strecker and Hulsey constitute substantial evidence supporting the Plan

administrator's decision. Under these circumstances, no abuse of discretion occurred.

III. CONCLUSION

We affirm the judgment of the district court.

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