               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 17a0250n.06

                                       Case No. 16-4225

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                           FILED
STANLEY D. ROTHE,                                     )                 May 02, 2017
                                                      )             DEBORAH S. HUNT, Clerk
       Plaintiff-Appellant,                           )
                                                      )        ON APPEAL FROM THE
v.                                                    )        UNITED STATES DISTRICT
                                                      )        COURT FOR THE SOUTHERN
DUKE ENERGY LONG TERM DISABILITY                      )        DISTRICT OF OHIO
PLAN;  DUKE     ENERGY    BENEFITS                    )
COMMITTEE; LIBERTY LIFE ASSURANCE                     )
COMPANY OF BOSTON,                                    )
                                                      )                          OPINION
       Defendants-Appellees.


BEFORE:        COLE, Chief Judge; SUTTON and KETHLEDGE, Circuit Judges.

       COLE, Chief Judge. Stanley Rothe brought this case under the Employee Retirement

Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., after Liberty Life Assurance

Company of Boston (“Liberty”) denied his claim for long-term disability benefits. Rothe argues

that Liberty’s determination was arbitrary and capricious. The record establishes that Liberty

conducted a reasoned decision-making process and that its decision is supported by substantial

evidence. Accordingly, Liberty’s decision was not arbitrary and capricious. We, therefore,

affirm the district court’s grant of summary judgment to Liberty.
No. 16-4225, Rothe v. Duke, et al.


                                       I. BACKGROUND

       Rothe worked as a gas controller for Duke Energy Corporation (“Duke”). Rothe filed a

claim for long-term disability (“LTD”) benefits, with a disability start date of January 3, 2013.

Rothe’s claim was based on his various chronic, degenerative medical conditions, including

“Spinal fusion” and “Backache NOS.” (Administrative Record, R. 11, PageID 135.) Rothe

submitted his claim pursuant to Duke’s Group Disability Income Policy. Under the policy,

Liberty determines eligibility for benefits and then pays those benefits.

       The policy sets forth the relevant terms, defining “Disability” and “Disabled” under

Section 2(a)(i) as follows:

       [I]f the Covered Person is eligible for the 24 Month Own Occupation
       benefit, “Disability” or “Disabled” means that during the Elimination
       Period and the next 24 months of Disability the Covered Person, as a
       result of Injury or Sickness, is unable to perform the Material and
       Substantial Duties of his Own Occupation.

(Id. at 101.) Section 2 also defines “Own Occupation” as follows:

       “Own Occupation” means the Covered Person’s occupation that he was
       performing when his Disability or Partial Disability began. For the
       purposes of determining Disability under this policy, Liberty will consider
       the Covered Person’s occupation as it is normally performed in the
       national economy.

(Id. at 103.) As part of Liberty’s review of Rothe’s claim, Vocational Case Manager Ellen

Levine determined as part of her “Occupational Analysis/Vocational Review” that Rothe’s “own

occupation” as performed in the national economy is most analogous to “Gas Dispatcher,” as

listed in the Department of Labor’s Dictionary of Occupational Titles (“DOT”). Levine also

concluded that this occupation is most often performed at a sedentary work level. Levine

referenced the Department of Labor’s definition of sedentary work, which classifies such work

as exerting up to ten pounds of force up to one third of the time and a negligible amount of



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No. 16-4225, Rothe v. Duke, et al.


force—in lifting, carrying, pushing, pulling, or otherwise moving objects—between one and two

thirds of the time. The definition also requires that the job involve sitting most of the time,

although it may involve standing or walking occasionally.

       The appeal review consultant considered medical reports from Rothe’s attending

physicians, Drs. Michael Rohmiller, Justin Kruer, Gregory Delorenzo, and Robert Noelker, to

supplement his claim. Rohmiller concluded that Rothe was permanently disabled from his job as

a gas controller at Duke. Kruer determined that Rothe had severe physical restrictions and

limitations that would affect him in the workplace. Noelker reported that Rothe’s mental status

would prevent him from performing the essential elements of his job. Liberty had Dr. Alvin

Gallanosa conduct an independent medical examination of Rothe. In addition, Dr. Jamie Lee

Lewis conducted a peer review, and Dr. David Monti conducted a clinical case review. Liberty’s

medical experts concluded that Rothe was capable of performing sedentary work.

       On April 23, 2014, Liberty denied Rothe’s claim because it found that he was not

disabled under the policy. Rothe administratively appealed and submitted additional materials.

On appeal, Liberty retained Drs. Milton Klein and Peter Sugerman, who conducted a file review

of the physician reports and determined that Rothe would be able to perform at a sedentary work

level. On December 23, 2014, Liberty upheld its denial.

       On March 30, 2015, Rothe filed this case with the district court under ERISA, claiming

that Liberty acted arbitrarily and capriciously in denying his LTD benefits. Both parties filed

motions for summary judgment. On September 30, 2016, the district court denied Rothe’s

motion and granted summary judgment to Liberty. Rothe timely appealed to this court.




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No. 16-4225, Rothe v. Duke, et al.


                                          II. ANALYSIS

       A. Standard of Review

       We review de novo a decision “granting judgment in an ERISA disability benefit action

based on an administrative record, and apply the same legal standard as did the district court.”

Glenn v. MetLife, 461 F.3d 660, 665–66 (6th Cir. 2006) (citation omitted). “In this case, the

district court appropriately reviewed the record under the ‘arbitrary and capricious’ standard,

because the plan at issue granted the plan administrator discretionary authority to interpret the

terms of the plan and to determine benefits.” See id. at 666 (citing Firestone Tire & Rubber Co.

v. Bruch, 489 U.S. 101, 111–15 (1989)).

       A plan administrator’s decision will not be deemed arbitrary or capricious so long as “it

is possible to offer a reasoned explanation, based on the evidence, for a particular outcome.”

Evans v. UnumProvident Corp., 434 F.3d 866, 876 (6th Cir. 2006) (quoting Killian v.

Healthsource Provident Adm’rs, Inc., 152 F.3d 514, 520 (6th Cir. 1998)). This standard “is the

least demanding form of judicial review of administrative action.” Watson v. Solis, 693 F.3d

620, 623 (6th Cir. 2012) (quoting Farhner v. United Transp. Union Discipline Income Prot.

Program, 645 F.3d 338, 342 (6th Cir. 2011)). We will uphold a decision “if it is the result of a

deliberate, principled reasoning process and if it is supported by substantial evidence.” Baker v.

United Mine Workers of Am. Health & Ret. Funds, 929 F.2d 1140, 1144 (6th Cir. 1991) (per

curiam).

       B. Conflict of Interest

       Rothe claims that Liberty has a conflict of interest in this case because it both determines

eligibility for benefits and pays them.




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No. 16-4225, Rothe v. Duke, et al.


       “[A] conflict of interest exists for ERISA purposes where the plan administrator evaluates

and pays benefits claims, even when, as here, the administrator is an insurance company and not

the beneficiary’s employer.” DeLisle v. Sun Life Assurance Co. of Canada, 558 F.3d 440, 445

(6th Cir. 2009). Conflicts of interest do not change the standard of review, but, where one exists,

we weigh it in determining whether the benefits decision was arbitrary and capricious. Peruzzi v.

Summa Med. Plan, 137 F.3d 431, 433 (6th Cir. 1998). We give more weight to the conflict in

circumstances that suggest a higher likelihood that it affected the benefits decision. DeLisle,

558 F.3d at 445. Relevant circumstances include whether the administrator repeatedly retains

the same physician, id., both decides claims and pays benefits, id., or uses in-house consultants,

Helfman v. GE Group Life Assur. Co., 573 F.3d 383, 393 (6th Cir. 2009).

       Here, Liberty retained reviewing physicians, decided the claim, would be responsible for

paying benefits, and used an in-house vocational expert. Accordingly, we weigh Liberty’s

conflict in deciding whether its decision was arbitrary and capricious.

       C. Liberty was not Arbitrary and Capricious in Denying Rothe’s Claim

       Liberty denied Rothe’s claim for LTD benefits because it determined that he could

perform his “own occupation” as defined by the policy. Rothe argues that this determination was

arbitrary and capricious because Liberty disregarded his actual job requirements, the applicable

federal regulations, and substantial medical testimony.

               1. Own Occupation

       To receive LTD benefits under the policy, Rothe needed to prove that he (1) continues to

have a disability, (2) needs regular attendance by a physician, and (3) receives the appropriate

available treatment. The policy defines a disabled person as one who “as a result of Injury or

Sickness is unable to perform the Material and Substantial Duties of his Own Occupation.”



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No. 16-4225, Rothe v. Duke, et al.


(Administrative Record, R. 11, PageID 101.) The policy further defines “own occupation” as

“the Covered Person’s occupation as it is normally performed in the national economy.” (Id. at

103.)

        We have held that “own occupation” is a general term that refers to categories of work as

opposed to the employee’s particular duties. Osborne v. Hartford Life & Accident Ins. Co.,

465 F.3d 296, 299–300 (6th Cir. 2006). In Osborne, we held that it was not arbitrary and

capricious to look to sources such as the DOT to determine a person’s own occupation. Id. at

299. Levine determined that Rothe’s job tasks matched the position of “Gas Dispatcher” as

listed in the DOT. Rothe argues that Levine ignored his Duke Physical Job Evaluation Form,

which listed the physical requirements of a gas controller at Duke. However, the policy does not

define “own occupation” in terms of Rothe’s particular job; the policy defines it in terms of the

occupation as “performed in the national economy.” (Administrative Record, R. 11, PageID

103.) Levine reasonably compared Rothe’s duties, as described in his Duke job description, to

the DOT to determine the best comparison for Rothe’s job in the national economy.

               2. Federal Regulations

        Rothe further argues that Liberty acted arbitrarily and capriciously by failing to consider

whether the side effects of his medication would prevent him from complying with federal

regulations governing gas controllers. This argument is also unavailing. Rothe cannot dispute

that Liberty relied on substantial medical evidence in concluding that the side effects of Rothe’s

prescriptions do not preclude him from “perform[ing] the Material and Substantial Duties of his

Own Occupation.” (Administrative Record, R. 11, PageID 101.) Lewis, Monti, and Klein

reported that the medical evidence does not support Rothe’s claim that the medications cause

side effects that would make him unable to perform the duties of his occupation. Moreover,



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No. 16-4225, Rothe v. Duke, et al.


Rothe does not point to any contrary report from an expert regarding his side effects, relying

instead on the listing of common side effects for his prescribed medications. Liberty therefore

did not act arbitrarily and capriciously because it based its decision on substantial medical

evidence.

       Rothe also claims that his prescriptions for Norco (hydrocodone-acetaminophen) and

Ultram (tramadol) would cause him to fail a federally required drug test. See 49 CFR § 199.3.

However, this argument is precluded by our previous holding that Liberty was not arbitrary and

capricious in deeming Rothe’s “own occupation” to be that of a gas dispatcher and Rothe’s

admission that gas dispatcher is not a federally regulated position. (See Appellant Br. 26.)

               3. Medical Testimony

       Rothe argues that Liberty disregarded substantial medical testimony in finding that he

could “perform the Material and Substantial Duties of his Own Occupation.” (Administrative

Record, R. 11, PageID 101.) However, Rothe’s arguments are unpersuasive. He argues that

even though Liberty acknowledged the medical reports of Rohmiller, Kruer, Delorenzo, and

Noelker, they did not consider the “history and findings” in their reports. (Appellant Br. 39–40.)

But these were not the only medical reports in the record. The record also includes the reports of

Lewis, Gallanosa, Monti, Klein, and Sugerman.         The conclusions of each expert were not

uniform, and Liberty had to weigh the conflicting reports. See Cox v. Standard Ins. Co.,

585 F.3d 295, 302 (6th Cir. 2009) (recognizing that it is not arbitrary and capricious to deny

benefits “when, although the treating physician believed the claimant was totally disabled, other

medical evidence indicated that the claimant could perform sedentary work”) (internal quotation

marks omitted). Liberty relied on substantial medical testimony in making its decision and did




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No. 16-4225, Rothe v. Duke, et al.


not disregard any expert. Under the arbitrary and capricious standard of review, that is enough to

constitute a reasoned decision-making process.

                                      III. CONCLUSION

       The district court properly determined that Liberty did not act arbitrarily and capriciously

in denying Rothe’s claim for LTD benefits. Accordingly, we affirm the district court’s grant of

summary judgment.




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