           Case: 18-14835   Date Filed: 11/22/2019   Page: 1 of 12


                                                          [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-14835
                       ________________________

                 D.C. Docket No. 1:17-cv-00247-MW-GRJ


KEYTON BENSON,
                                                            Plaintiff-Appellant,


                                  versus

HARTFORD LIFE & ACCIDENT
INSURANCE COMPANY,
                                                           Defendant-Appellee.


                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      ________________________


                            (November 22, 2019)

Before JILL PRYOR, GRANT and ANDERSON, Circuit Judges.

PER CURIAM:
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      In this appeal, Keyton Benson challenges the district court’s grant of

summary judgment in favor of Hartford Life and Accident Insurance Company,

which affirmed Hartford’s decision to deny Benson long-term disability benefits.

Because we conclude that Hartford’s decision was not “wrong,” we affirm.

      We have had the benefit of oral argument and have carefully reviewed the

briefs of the parties and the administrative record. Because we write only for the

benefit of the parties, who are familiar with the facts and proceedings at issue, we

include in our discussion only those facts necessary to understand our decision.

      Benson’s claim for long-term disability benefits is governed by a policy

issued by Hartford to Benson’s employer, Tower Hill Insurance Group, which in

turn is governed by the Employee Retirement Income Security Act of 1974, 29

U.S.C. §§ 1001–1461. Hartford’s policy provides that it will pay a monthly benefit

to the individual policyholder if they:

      1)   become Disabled while insured under The Policy;
      2)   are Disabled throughout the Elimination Period;
      3)   remain Disabled beyond the Elimination Period; and
      4)   submit Proof of Loss to Us.

(emphasis added). The Policy defines “disability” or “disabled” as follows:

      Disability or Disabled means You are prevented from performing one
      or more of the Essential Duties of:
      1) Your Occupation during the Elimination Period;
      2) Your Occupation, for the 2 years following the Elimination Period,
      and as a result Your Current Monthly Earnings are less than 80% of
      Your Indexed Pre-disability Earnings; and
      3) after that, Any Occupation.

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Accordingly, subject to the terms of the policy, Benson is only entitled to a long-

term disability benefit if he can prove that he was disabled throughout the entire

Elimination Period. In other words, Benson cannot prevail merely by proving that

he was disabled at some point during the Elimination Period. Rather, he must

prove that he was disabled throughout the entire Elimination Period, a requirement

that he does not dispute. The parties agree that, for the purposes of this case, the

Elimination Period extended from May 15, 2016, to August 27, 2016.

      We review de novo a district court’s ruling reviewing a plan administrator’s

ERISA benefits decision. As did the district court, in our review of Hartford’s

decision, we apply the standard set out by our decision in Blankenship v.

Metropolitan Life Ins. Co.:


      (1) Apply the de novo standard to determine whether the claim
      administrator’s benefits-denial decision is “wrong” (i.e., the court
      disagrees with the administrator’s decision); if it is not, then end the
      inquiry and affirm the decision.

      (2) If the administrator’s decision in fact is “de novo wrong,” then
      determine whether he was vested with discretion in reviewing claims;
      if not, end judicial inquiry and reverse the decision.

      (3) If the administrator’s decision is “de novo wrong” and he was
      vested with discretion in reviewing claims, then determine whether
      “reasonable” grounds supported it (hence, review his decision under
      the more deferential arbitrary and capricious standard).




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       (4) If no reasonable grounds exist, then end the inquiry and reverse
       the administrator’s decision; if reasonable grounds do exist, then
       determine if he operated under a conflict of interest.

       (5) If there is no conflict, then end the inquiry and affirm the decision.

       (6) If there is a conflict, the conflict should merely be a factor for the
       court to take into account when determining whether an
       administrator’s decision was arbitrary and capricious.

644 F.3d 1350, 1355 (11th Cir. 2011) (quotation omitted).

       Accordingly, because it is ultimately dispositive of our resolution of this

case, the primary issue before us is whether Hartford’s decision denying long-term

disability benefits to Benson was “wrong.” Put another way, because it is

undisputed that, to be entitled under the policy to such benefits, Benson had to

prove that he was disabled throughout the entire Elimination Period, the issue is

whether Hartford was “wrong” in finding that Benson failed to prove that he was.

       Based primarily on the opinions of two doctors who conducted a file review

of the medical evidence, 1 Hartford determined that the clinical evidence indicated

that Benson was not “disabled,” as defined by its policy, from May 15, 2016, to

July 19, 2016, the date of his knee replacement surgery. It also determined that

Benson would have sufficiently recovered from the knee surgery at least by August




       1
         Hartford sought the opinion of Dr. Benjamin Kretzmann, a board-certified
rheumatologist, as well as Dr. Laurie Molina, a board certified internist. Both the doctors
reviewed the medical evidence, including the contemporaneous treatment notes of the treating
physicians.


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26, 2016, and was not disabled then or thereafter. In sum, Hartford found that

Benson was not disabled throughout the entire Elimination Period, as required

under the policy.

      Our careful review of the evidence before Hartford at the time it rendered

that decision convinces us that Hartford’s decision was not “wrong,” because

Benson failed to prove that he was disabled throughout the Elimination Period.

We base this conclusion on (1) the substance of Benson’s claims for both short-

term and long-term disability benefits, (2) the contemporaneous treatment notes

from Benson’s physicians, and (3) the ability of Benson to perform the essential

duties of his job. Each is addressed in turn.

      First, Benson’s claims for short- and long-term disability benefits paint a

conflicting picture of his alleged disability. The argument Benson presented to the

district court—and that he makes to us now—is that he was disabled by the pain

and fatigue that he experienced as a result of his polymyalgia rheumatica

(“PMR”).2 We find it significant, however, that PMR was never identified as a

disabling condition in his initial applications for short- and long-term disability

benefits. Benson’s claim for short-term disability benefits (which Hartford granted

in full from May 15, 2016, through August 27, 2016) was predicated solely on the

knee injury that occurred on May 15, 2016, and necessitated a knee replacement


      2
          PMR is a rheumatic disease that causes muscle pain and stiffness.


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surgery on July 19, 2016. Benson’s claim for long-term disability benefits, which

he submitted on August 2, 2016, was initially predicated on a similar rationale. Dr.

Celal Erbay, Benson’s primary-care physician, submitted an attending physician’s

statement in support of Benson’s claim for long-term benefits. In that statement,

Dr. Erbay identified Benson’s “Primary condition” as “Knee Replacement” and his

subjective symptoms as “knee pain; ‘clicking’ sounds; [and] swelling.”

       In that attending physician statement, Dr. Erbay made no mention of any

current disabling symptoms related, directly or indirectly, to Benson’s PMR

diagnosis. It was only after an August 24, 2016, inquiry from Hartford that Dr.

Erbay “clarified” that Benson’s disability was due primarily to stiffness, pain, and

fatigue from his PMR—not from his knee. 3

       Second, we conclude that the contemporaneous treatment notes kept by

Benson’s physicians indicate that he was not disabled for substantial parts of the

Elimination Period. None of the treatment notes made by Dr. Erbay, between May




       3
          The contemporaneous notes of Benson’s treating physicians also indicate that Benson
was not disabled on account of his knee for considerable periods of time during the Elimination
Period. From May 15, 2016, the day of the knee injury, to July 19, 2016, the day of the knee
replacement, there is no indication in the treatment notes of either Dr. Erbay or Dr. Andrew
Rocca, the orthopedic surgeon who performed Benson’s knee replacement, that Benson was
disabled on account of the knee. We can assume that there may have been some time
immediately after the surgery that Benson may have been disabled. But Dr. Rocca’s August 25,
2016, attending physician statement, submitted in support of Benson’s claim for long-term
disability benefits, certified that Benson’s knee had sufficiently recovered such that it is clear, at
least as early as August 25, 2016, Benson was no longer disabled on account of his knee.



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15, 2016, and July 19, 2016, indicates any disability attributable to PMR or any

other cause or causes. During Benson’s visits to Dr. Erbay during this time, his

complaints were chiefly about his knee, and mentioned PMR symptoms only

secondarily or tertiarily, if at all. For example, on May 26, 2016, Dr. Erbay’s notes

indicate that Benson reported increased fatigue and early-morning stiffness

(“EMS”) of only fifteen to twenty minutes. 4 There is no suggestion in Dr. Erbay’s

notes that Benson was disabled as of May 26, 2016, by PMR or otherwise. Dr.

Erbay’s notes from Benson’s June 3, 2016, appointment with him paint a similar

picture.

      This trend continued after Benson’s knee replacement surgery. On July 26,

2016, at Benson’s first visit with Dr. Erbay after his successful surgery, Dr. Erbay

noted that Benson felt “great” about his PMR and was not experiencing headaches

or fatigue. On August 5, 2016, Dr. Erbay indicated that Benson was on a reduced

dose of Prednisone but was still not experiencing major PMR symptoms like

fatigue.

      Treatment records from other physicians are similarly illustrative. On June

27, 2016, on a visit to Dr. Seldon Longley, Benson’s rheumatologist, the doctor’s

treatment notes indicate that Benson’s PMR was “well controlled” by his

Prednisone prescription. Dr. Rocca observed on August 2, 2016 (the day that


      4
           EMS was one of the PMR symptoms on which Benson based his claim of disability.


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Benson filed his claim for long-term disability benefits), that Benson was

recovering well from his surgery. Like Dr. Erbay, he noted no symptoms of

PMR. 5

       Only on August 31, 2016, several days after the Elimination Period and after

Dr. Erbay’s August 24, 2016, “clarification” to Hartford, do Dr. Erbay’s treatment

notes indicate any meaningful increase in Benson’s PMR symptoms. At that visit,

he noted that Benson’s knee pain was tolerable but that he was experiencing

increased stiffness (three to four hours of EMS) and fatigue. 6 Accordingly, Dr.

Erbay increased Benson’s Prednisone dosage. Dr. Erbay saw Benson again on

September 8, 2016, when Benson again reported his knee pain as tolerable; he said

his EMS was not better, but nonetheless reported that it decreased to one hour.

       We conclude that these notes support a finding that, at most, Benson was

disabled for a short period of time while recovering from his knee replacement

surgery on July 19, 2016. Accordingly, we further conclude that Benson was not

disabled throughout the entire Elimination Period.




       5
          At this August 2, 2016, appointment, Dr. Rocca also reported that Benson was “doing
well,” “walking quite a bit,” and “not requesting any pain medicine.” Although we need not so
decide, it is likely that Benson’s knee was no longer disabling much earlier than August 25,
2016, possibly as early as August 2, 2016.
       6
          Thus, Dr. Erbay’s treatment notes provide support for significant PMR symptoms only
after the Elimination Period ended, thus falling short of the proof Benson needs—i.e., disability
throughout the entire Elimination Period.


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      Third, after reviewing the above information, we compare it with the

physical demands of Benson’s job. According to a physical demands analysis

submitted by Benson’s employer, his job was largely sedentary. His daily tasks

required him to sit for a maximum of two hours at a time, stand or walk for thirty

minutes at a time, and did not require him to lift anything heavy. Each day, he was

required to sit for seven hours, stand for thirty minutes, and walk for thirty

minutes.

      We compare these physical demands with the August 25, 2016, attending

physician’s statement submitted by Dr. Rocca to Hartford. Dr. Rocca certified that

Benson could sit and stand for eight hours at a time and walk for thirty minutes at a

time for up to six to eight hours per day. These endorsements square neatly with

the physical demands of Benson’s job. Therefore, at least as early as August 25,

2016, it is clear that Benson’s knee did not prevent him from performing the

essential duties of his job. And as noted above, the contemporaneous notes of

Benson’s treating physicians indicate that Benson was not disabled—by his knee,

complications from PMR, or otherwise—for significant periods of time during the

Elimination Period.

      Ultimately, we agree with Hartford—and Doctors Kretzmann and

Molinda—in finding that Benson was not entitled to long-term disability benefits.

Our best judgment, based on a review of all of the medical evidence, is that Benson



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was not disabled from May 15, 2016, until the surgery on July 19, 2016, and for

some period of time after he sufficiently recovered from the knee surgery—at least

after August 25, 2016, when Dr. Rocca indicated that, with respect to his knee, he

was clearly capable of performing what his job required. We conclude that it is

more reasonable to rely upon the clear indications in the contemporaneous

treatment notes that Benson was not disabled—on account of his knee, PMR

symptoms, or otherwise—in preference to Benson’s arguments about his increased

pain and fatigue from PMR and in preference to the later characterizations of

Benson’s symptoms by Dr. Erbay.

      For the foregoing reasons, our de novo review persuades us that the decision

of Hartford denying Benson’s claim for long-term disability benefits was not

“wrong.” Under our Blankenship standard, that ends our inquiry.

      We note that even if we did continue the Blankenship analysis, we would

nonetheless also affirm the judgment of the district court and uphold Hartford’s

decision. Even if we believed that Hartford’s decision was “wrong,” and even if

we pursued steps 3–6 of the Blankenship analysis, 644 F.3d at 1355, we would still

conclude that Hartford’s decision was not arbitrary and capricious. It is undisputed

that the policy gives Hartford the necessary discretion. But it is also undisputed

that Hartford makes the eligibility decision and pays the benefits awarded, so

Hartford has a structural conflict of interest. It is obvious from our discussion



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above that Hartford’s decision was amply supported by reasonable grounds (steps

3 and 4). Because there is a conflict of interest (step 4), that is a factor in the

determination of whether Hartford’s decision was arbitrary or capricious (step 6).

Even factoring in that conflict of interest, the reasonableness of Hartford’s decision

is so clear that we readily conclude it was not arbitrary and capricious.

       For the foregoing reasons, 7 we affirm the judgment of the district court and

uphold the decision of Hartford denying Benson’s claim for long-term disability

benefits.


       7
          On appeal, Benson makes several additional arguments, all of which we conclude are
without merit. Benson’s arguments about objective evidence being unnecessary in the context of
a disability claim based on subjective symptoms—and his related arguments like the asserted
need for an independent examination and/or an evaluation of Benson’s credibility—are wholly
without merit. As stated in the text, the gist of the decision denying disability benefits in this
case is that Benson’s claims of disabling pain and fatigue are simply inconsistent with the
contemporaneous notes taken by his treating physicians at the time of the office visits.

         Benson also argues that Hartford’s final decision denying his claim on administrative
appeal was based on a new and different rationale (as compared to its initial denial), thus
depriving him of the opportunity of an appeal to challenge the new rationale. Benson argues that
the initial denial was based on his failure to prove his disability on a particular date—August 28,
2016—whereas the final decision on appeal was based on his failure to prove that he was
disabled throughout the entire Elimination Period. Benson’s argument is meritless. The initial
decision made amply clear that the Policy required him to prove that he was disabled throughout
the entire Elimination Period. Indeed, the initial decision found that Benson was capable of
performing full-time work for approximately the same periods of time that the final decision so
found. We conclude that Benson had ample opportunity and notice to address the precise basis of
the final decision.

        In his initial brief on appeal, Benson mentions—but does not develop—an argument that,
after he requested reconsideration of Hartford’s denial of his appeal, Hartford’s claim process
was not principled because it failed to consider Dr. Erbay’s July 21, 2017, letter and the July 24,
2017, letter from Donald C. Matz, Benson’s supervisor at Tower Hill Insurance Group. Erbay’s
letter purported to respond to the conclusions made by Drs. Kretzmann and Molina, whereas
Matz’s letter attested to Benson’s honesty and integrity, as well as Matz’s personal perspective



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       AFFIRMED.




of Benson’s alleged disability. Benson complains that Hartford failed to provide these letters to
Drs. Kretzmann and Molina. Hartford responds that the letters were untimely, having been
submitted after a final decision was rendered on Benson’s administrative appeal and therefore
Hartford was not required to provide them to the reviewing doctors. We find the record to be
consistent with Hartford’s position and thus find no error on its part.

         As an initial matter, the remedy Benson seeks—a remand to Hartford for reconsideration
in light of this evidence—is unavailable to him. He concedes in his reply brief that he failed to
request a remand before the district court. As such, we conclude that this argument was not
properly raised before the district court and is therefore waived because “we will not entertain [a]
request for relief for the first time on appeal.” S.F. Residence Club, Inc. v. 7027 Old Madison
Pike, LLC, 583 F.3d 750, 755 (11th Cir. 2009).

        In any event, we conclude that neither letter would have changed the outcome here. Dr.
Erbay’s opinions about this case were amply represented in earlier communications from him
that were considered by Hartford and Drs. Kretzmann and Molina. His letter added little to the
administrative record that was not already there. Matz’s letter is similarly unhelpful to Benson’s
case. Benson’s attorney inadvertently omitted Matz’s letter in the communication to Hartford on
July 24, 2017, which included Erbay’s letter. We note that Benson did not request
reconsideration on the basis of Matz’s letter at any point and did not mention the letter at all in
his September 22, 2017, letter to Hartford that sought reconsideration or in his initial complaint
filed with the district court. We need not decide whether Hartford did in fact consider the
letter—though its August 24, 2017, letter to Benson suggests that it did not—because the failure
to consider the letter would not warrant a remand for further consideration in any event. Matz’s
letter dealt with his evaluation of Benson’s job performance after the crucial Elimination Period,
which is the only period of time at issue in this case. Accordingly, we determine that the failure
to consider either letter does not provide grounds for a remand, a remedy that Benson waived
anyway.

         Finally, we can assume arguendo, but not decide, that the evidence that Benson
uncovered in discovery in the district court—evidence of Hartford’s policies and guidelines, the
deposition of Hyndman (Hartford’s appeals specialist), and the information about Dr. Ayyar—
would be admissible to show that Hartford’s claims process was biased or otherwise not full and
fair. We have considered Benson’s arguments in this appeal and have considered the evidence to
which he points. We conclude that Benson has failed to make even an arguable showing of bias
or that the process was not full and fair. This is especially true in light of our own review of the
evidence and our own conclusion that the contemporaneous treatment notes of Benson’s treating
physicians do not support a conclusion that plaintiff was disabled throughout the entire
Elimination Period.


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