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Nall v. Hartford Life & Accident Ins. Co.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order

filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate

Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a

document filed with this court, a party must cite either the Federal Appendix or an

electronic database (with the notation “summary order”). A party citing a summary order

must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit,

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the

City of New York, on the 16 th day of March, two thousand twenty

‐ three.

PRESENT: Reena Raggi,

Richard C. Wesley,

Steven J. Menashi,

Circuit Judges.

____________________________________________

ASHLEY NALL,

Plaintiff

‐ Appellant

,

v. No. 22

‐ 49

HARTFORD LIFE AND ACCIDENT INSURANCE

COMPANY,

Defendant

‐ Appellee

.

____________________________________________2 For Plaintiff

‐ Appellant : H UDSON T. E LLIS (R. Chandler Wilson, on the

brief ), Eric Buchanan & Associates, PLLC,

Chattanooga, TN.

For Defendant

‐ Appellee : G REGORY J. B ENNICI (Patrick W. Begos, on the

brief ), Robinson & Cole LLP, Stamford, CT.

Appeal from a judgment of the United States District Court for the District

of Connecticut (Covello, J.).

Upon due consideration, it is hereby ORDERED

, ADJUDGED

, and

DECREED that the judgment of the district court is AFFIRMED

.

In 2019, Plaintiff

‐ Appellant Ashley Nall filed for long

‐ term disability

benefits under the terms of her employer’s Group Long Term Disability Policy (the

“Plan”) with insurer and Plan administrator Defendant

‐ Appellee Hartford Life

and Accident Insurance Company (“Hartford”). Nall reported that her diagnosis

of Meniere’s disease—a disorder of the inner ear—caused debilitating vertigo, ear

congestion, and migraines that rendered her unable to perform her occupation as

an intake coordinator. Hartford denied Nall’s benefits request, finding that her

condition was not so severe as to render her disabled within the meaning of the

Plan. Nall then brought this ERISA suit seeking to recover benefits under the Plan.3 The district court granted summary judgment to Hartford, concluding that it

properly exercised its discretion in denying Nall’s claim under the Plan. This

appeal followed. We presume the parties’ familiarity with the facts and procedural

history.

The Supreme Court has explained that “a denial of benefits challenged

under [ERISA § 502(a)(1)(B)],” such as this action, “is to be reviewed under a de

novo standard 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 & Rubber Co. v. Bruch

, 489 U.S. 101, 115 (1989). However,

“[i]f the insurer establishes that it has such discretion, the benefits decision is

reviewed under the arbitrary and capricious standard.” Krauss v. Oxford Health

Plans, Inc.

, 517 F.3d 614, 622 (2d Cir. 2008). Nall concedes that the Plan granted

Hartford such discretion. Accordingly, we review Hartford’s denial of Nall’s claim

under the arbitrary and capricious standard.

A decision by a plan administrator such as Hartford is arbitrary and

capricious when it is “without reason, unsupported by substantial evidence or

erroneous as a matter of law.” Fay v. Oxford Health Plan

, 287 F.3d 96, 104 (2d Cir.4 2002) (quoting Kinstler v. First Reliance Standard Life Ins. Co.

, 181 F.3d 243, 249 (2d

Cir. 1999)). In evaluating whether a plan administrator’s decision is “without

reason,” we are mindful that the question is not whether the plan administrator

made the “correct” decision but whether it had a “reasonable basis for the decision

that it made.” Hobson v. Metropolitan Life Ins. Co.

, 574 F.3d 75, 89 (2d Cir. 2009).

Substantial evidence is “such evidence that a reasonable mind might accept as

adequate to support the conclusion reached by the decisionmaker and requires

more than a scintilla but less than a preponderance.” Miller v. United Welfare Fund

,

72 F.3d 1066, 1072 (2d Cir. 1995) (alterations omitted) (quoting Sandoval v. Aetna

Life & Cas. Ins. Co.

, 967 F.2d 377, 382 (10th Cir. 1992)).

Hartford’s denial of Nall’s claim for benefits under the Plan was not without

reason, was supported by substantial evidence, and was not erroneous as a matter

of law. Hartford relied on medical records provided by Nall’s own treating

physician, who concluded on several occasions that Nall could reach, sit, engage

in keyboarding, and walk or stand. That physician also repeatedly represented to

Hartford that Nall could return to work in the near future. Furthermore, Nall

admitted during an interview with Hartford that she could take care of herself5 independently, go for walks, perform light household chores, attend movies, do

crafts, cook, do laundry, and grocery shop. She also reported that she was able to

swim and babysit her niece. Finally, Hartford relied on the opinion of four medical

professionals. Three nurses reviewed Nall’s records when she initially applied for

benefits, and each nurse concluded that Nall was not disabled. Moreover, when

Nall appealed the denial of benefits, Hartford hired an outside physician—Dr.

Hootan Zandifar—to provide his medical opinion. Zandifar reviewed Nall’s

treating physician’s notes and the results of several objective tests, and he

ultimately concluded that Nall retained “the functional capacity for at least Light

Level work activity.” App’x 795. With these materials in the record, we conclude

that Hartford had a “reasonable basis for the decision that it made,” Hobson

, 574

F.3d at 89, and that this evidence is “adequate to support [Hartford’s] conclusion,”

Miller

, 72 F.3d at 1072.

Nall offers several counter arguments. First, Nall contends that Zandifar’s

report was inaccurate and that it was unreasonable for Hartford to rely on it. Nall

notes, for example, that Zandifar said she exhibited no “gait abnormalities,” App’x

795, yet her treating physician noted an unsteady gait in January 2019. But6 Zandifar’s review expressly concerned “the time period of

... 5/27/19 and

forward,” which explains why his report did not mention the January note. Id. Nall

also objects to Zandifar’s conclusion that her physical exams were

“unremarkable,” id. at 741, because certain objective tests suggested results

outside “normal limit[s],” id. at 326. But Nall’s treating physician had access to the

same test results, which evidently did not prevent him from stating repeatedly

that Nall could return to work. Consequently, Nall’s arguments do not indicate

that it was unreasonable for Hartford to rely on the Zandifar report.

Second, Nall says that Hartford did not take into account that the vertigo

resulting from her Meniere’s disease was episodic, occurring several times per

week but not every day. According to Nall, she was therefore able to take care of

herself and engage in some recreation—such as swimming—but the regular

occurrence of the vertigo prevented her from working. Hartford, however, did

take into consideration the episodic character of Nall’s vertigo. For example, the

Zandifar report noted that Nall had experienced four vertigo spells in the last few

weeks of May 2019, App’x 793, and a letter Hartford sent to Nall acknowledged

that she “experience[ed] severe/disabling vertigo episodes multiple times per7 week,” id. at 404. Nall has submitted no evidence indicating that her episodes were

so frequent that any reasonable factfinder would be compelled to conclude that

she could not work at all.

Third, Nall contends that Hartford disregarded her subjective complaints of

pain. But the Zandifar report made several references to such subjective

complaints. We have held that it is “not unreasonable for ERISA plan

administrators to accord weight to objective evidence that a claimant’s medical

ailments are debilitating in order to guard against

... unsupported claims of

disability.” Hobson

, 574 F.3d at 88. Nall relies on Miles v. Principal Life Ins. Co.

, 720

F.3d 472 (2d Cir. 2013), for the proposition that Hartford is prohibited from

disregarding her subjective complaints. Nall’s reliance on Miles is misplaced. We

said in that case only that a plan administrator may not reject evidence simply

because it is subjective. Id. at 487. Here, Hartford did not reject Nall’s complaints

of pain simply because those complaints were subjective. Rather, it put forth

reasons based on other evidence why those subjective complaints were not

dispositive.8 Fourth, Nall claims that it was arbitrary and capricious to rely on the

conclusions of the Zandifar report over the statement of her treating physician,

who opined in September 2019—late in the administrative appeals process—that

Nall was disabled and could not work. But the Supreme Court has rejected the

notion that administrators must defer to statements by treating physicians.

“[C]ourts have no warrant to require administrators automatically to accord

special weight to the opinions of a claimant’s physicians; nor may courts impose

on plan administrators a discrete burden of explanation when they credit reliable

evidence that conflicts with a treating physician’s evaluation.” Black & Decker

Disability Plan v. Nord

, 538 U.S. 822, 834 (2003). Hartford did not “arbitrarily refuse

to credit” Nall’s treating physician’s opinion. Id. That opinion—offered for the first

time in September 2019—was accompanied by no new evidence, and Zandifar’s

report considered Nall’s treating physician’s earlier examinations and tests.

Fifth, Nall contends that Hartford was obligated to investigate her claim

more fully yet failed to do so. Nall did not raise this argument before the district

court and offers no reason for failing to do so. Accordingly, we consider the

argument waived. See In re Nortel Networks Corp. Secs. Litig.

, 539 F.3d 129, 133 (2d9 Cir. 2008) (noting that we decline to consider an argument on appeal when the

litigant “has offered no reason for its failure to raise this argument to the district

court”). In any event, Nall has provided no authority from this circuit establishing

that Hartford had such an obligation here. To the contrary, we have said that when

a claimant fails “to produce sufficient objective evidence supporting her benefits

claim,” it is not arbitrary and capricious for an administrator to “exercise[] its

discretion to decline to pursue” additional investigation into the claimant’s

condition. Hobson

, 574 F.3d at 91.

Sixth, Nall notes that the record contains evidence supporting the

conclusion that she is disabled. We take no position on whether that may be; the

relevant question before us is only whether Hartford had a “reasonable basis” for

denying her benefits under the Plan. Id. at 89. For the reasons stated above, we

conclude that Hartford had such a basis.

* * *10 We have considered Nall’s remaining arguments, which we conclude are

without merit. For the foregoing reasons, we affirm the judgment of the district

court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Cou 

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