                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a1151n.06

                                           No. 10-6549

                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT

                                                                                   FILED
DEBBIE ALLEN,                                        )                         Nov 07, 2012
                                                     )                   DEBORAH S. HUNT, Clerk
       Plaintiff-Appellant,                          )
                                                     )
v.                                                   )        ON APPEAL FROM THE UNITED
                                                     )        STATES DISTRICT COURT FOR
LIFE INSURANCE COMPANY OF NORTH                      )        THE WESTERN DISTRICT OF
AMERICA,                                             )        KENTUCKY
                                                     )
       Defendant-Appellee.                           )
                                                     )




       Before: SILER and COOK; Circuit Judges; STEEH, District Judge.*


       STEEH, District Judge. This appeal arises from an Employee Retirement Income Security

Act (“ERISA”) benefit action. Appellant Debbie Allen asks this court to reverse the district court’s

grant of summary judgment and hold that Appellee Life Insurance Company of North America’s

denial of long-term disability benefits to Allen was arbitrary and capricious. The administrative

record shows, however, that Allen failed to prove that she was incapable of performing material

duties of her occupation as an investment broker by virtue of a physical disability. For this reason

and based upon the following analysis, we AFFIRM.




       *
       The Honorable George C. Steeh, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 10-6549
Allen v. Life Ins. Co. of North America

                          I. FACTS AND PROCEDURAL HISTORY


        Appellant Allen was an investment broker for A.G. Edwards. While employed at A.G.

Edwards, Allen participated in a long-term disability (“LTD”) plan issued and administered by

Appellee Life Insurance Company of North America (“LINA”). Benefits are payable under the plan

only if LINA receives “due proof” that “the Employee became Totally Disabled while insured” and

that the “Total Disability has continued for a period longer than the Benefit Waiting Period.” An

employee is considered totally disabled if, because of injury or sickness, she is unable to perform all

the material duties of her regular occupation. The insurance policy also contains a mental illness,

alcoholism, and drug abuse limitation that provides, in pertinent part, as follows: “The Insurance

Company will pay Monthly Benefits for no more than 24 months during an Employee’s lifetime for

Total Disability caused or contributed to by any one or more of the following conditions: ... Bipolar

affective disorder (manic depressive syndrome)... Depressive disorders...Anxiety disorders...Mental

illness.”


        Allen submitted an LTD claim to LINA for mental illness. Dr. Marshall, Allen’s treating

psychiatrist, diagnosed Allen with bipolar disorder, depression, post-traumatic stress disorder, and

hypothyroidism due to suppression by Prozac therapy. In its letter approving Allen’s claim for LTD

benefits, LINA stated that “the insurance company will pay monthly benefits for no more than 24

months . . . during the employee’s lifetime for total disability caused or contributed to by mental

illness while the employee is not confined to a hospital.” One year later, LINA informed Allen that

her benefits would expire in twelve months.

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No. 10-6549
Allen v. Life Ins. Co. of North America

       Three months prior to her benefits expiring, Allen informed LINA that she suffered from late-

stage Lyme disease, resulting in a physical, rather than a mental disability. The administrative record

showed that Allen failed to corroborate her claim with objective medical evidence. LINA, therefore,

terminated Allen’s benefits, claiming that her medical condition, Bipolar Affective Disorder with

Depression, only had a twenty- four (24) month maximum limit for payment.


       Throughout the course of several appeals of LINA’s decision, Allen submitted medical

records to support her claim that she suffered from Lyme disease, including a statement from her

treating physician, Dr. Lisner, justifying his diagnosis. In Dr. Lisner’s opinion, Allen’s mental

illness was a mistaken diagnosis that was corrected by a Lyme disease diagnosis. Dr. Lisner stated

that because “several neurological as well as laboratory tests have been found to be positive, it is my

believe [sic] as well as the belief of an independent physician, that the patient has Lyme disease and

requires active treatment.” Dr. Lisner’s Physical Ability Assessment indicated that Allen was

homebound due to “numerous neurological deficits, peripheral nerve damage, balance difficulties,

loss of vision, blurred vision, patient undergoing extensive IV Therapy, damage to left hand–left side

of body.” Dr. Lisner further indicated that the results of the brain SPECT confirmed and supported

the diagnosis of Chronic Neurological Dysfunction. Allen also submitted a neuropsychological

evaluation, in which Dr. Olivia opined that Allen suffered from mild to moderate impairment of

functions normally associated with central nervous system dysfunction. Dr. Olivia also determined

that Allen experienced a dramatic drop in performance level from her prior function levels, even

though her test scores were generally average. (Id.)


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Allen v. Life Ins. Co. of North America

         While Drs. Lisner and Olivia opined that Allen suffered from physical impairments due to

Lyme disease, Dr. Shadowen, another treating physician, did not accept the Lyme disease diagnosis.

Dr. Shadowen questioned whether Allen’s medical records supported a Lyme disease diagnosis due

to inconsistent lab results and the fact that no physician saw the alleged tick bite and rash that

triggered the onset of the disease.


         In response to Allen’s appeal, LINA obtained two independent file reviews from internal

disease specialists, Drs. Mendez and Stumacher. Dr. Mendez concluded that the information LINA

provided him substantiated the clinical diagnosis of Lyme disease, but he could not confirm the

diagnosis because he was unable to contact Dr. Lisner. Dr. Stumacher indicated in the “strictest

sense, Ms. Allen has no evidence to support a diagnosis of tertiary Lyme disease, although she has

had objective illness, including fever, peripheral neuropathy, multiple and recurrent skin lesions, as

well as an abnormal SPECT scan of the central nervous system.” Dr. Stumacher opined that Allen

was probably physically impaired to some degree, but could not state whether she was totally

disabled without additional objective testing. After reviewing the appeal and the additional

independent file reviews, LINA upheld its decision to deny additional LTD income benefits, stating

that “[b]ased on the fact that we have not received any additional medical information that would

support an ongoing, physically disabling condition due to Lyme disease as opposed to a mental

illness . . . we have determined that you are not eligible for continued Long Term Disability Benefits.

. . .”




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No. 10-6549
Allen v. Life Ins. Co. of North America

       Allen then instituted this action for review of her LTD claim. The district court found that

LINA’s decision that a mental illness caused or contributed to Allen’s total disability was arbitrary

and capricious. The district court remanded the claim to the plan administrator to determine whether

Allen qualified for LTD benefits due to a physical condition that rendered her totally disabled. After

remand, LINA denied Allen’s claim because she apparently refused to submit to the requested

Independent Medical Examination (“IME”). After concluding that LINA’s subsequent benefit denial

failed to comply with ERISA’s procedural requirements, the district court again remanded the case

to the plan administrator for a determination of Allen’s LTD claim.


       On the second remand, LINA obtained IMEs from Drs. Griffin, a neurologist, and Baig, a

board certified physician in endocrinology and metabolism. Dr. Griffin was unable to state with any

reasonable degree of medical certainty whether or not Allen had Lyme disease and felt that a board

certified infectious disease specialist was better qualified to make this determination. Dr. Baig’s

assessment of Allen listed the following conditions: hypothyroidism, Hashimoto’s thyroiditis, Lyme

disease, osteoarthritis, HHV6, and HHV7 disease. Relying on these IMEs and a review by LINA’s

medical director, LINA concluded that the records did not support the presence of Lyme disease or

any other physical condition.


       In response to a subsequent appeal, LINA obtained an independent file review from Dr.

Greenhood, an infectious disease specialist, who opined that Allen’s medical records did not support

a diagnosis of Lyme disease. Relying on Dr. Greenwood’s opinion, LINA denied Allen’s appeal

finding insufficient evidence to support Allen’s claim of a physical disability.

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No. 10-6549
Allen v. Life Ins. Co. of North America

        In an effort to exhaust her administrative rights on remand, Allen filed another appeal of

LINA’s denial of LTD benefits. Thereafter, LINA obtained an additional independent file review

from Dr. Martinello, an infectious disease specialist, who concluded that the laboratory test results

provided were not consistent with Lyme disease. Dr. Martinello further opined that there was

insufficient evidence in the medical records to conclude that there were any restrictions or limitations

due to Lyme disease. Relying in part on the medical record review of Dr. Martinello, LINA again

denied Allen’s appeal.


        Allen requested that the district court return the case to the active docket for further judicial

review of LINA’s denial of her LTD claim. The parties filed cross-motions for summary judgment

on the administrative record. The district court granted LINA’s motion for summary judgment.

Allen timely appealed.


                                           II. ANALYSIS


        We review“de novo the decision of a district court granting judgment in an ERISA disability

action based on the administrative record.” Delise v. Sun Life Assurance Co., 558 F.3d 440, 444

(6th Cir. 2009). If, as here, the insurance plan administrator is vested with discretion to interpret the

plan, we review the denial of benefits under the arbitrary and capricious standard. Glenn v. MetLife,

461 F.3d 660, 666 (6th Cir. 2006). This requires “review of the quality and quantity of the medical

evidence and opinions on both sides of the issues.” McDonald v. Western -Southern Life Ins. Co.,

347 F.3d 161, 172 (6th Cir. 2003). The plan administrator’s decision should be upheld if it is the


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No. 10-6549
Allen v. Life Ins. Co. of North America

result of a deliberate, principled reasoning process and supported by substantial evidence. Glenn,

461 F.3d at 666. We consider several factors in reviewing a plan administrator’s decision, including

the existence of a conflict of interest, the plan administrator’s consideration of the Social Security

Administration determination, if applicable, and the quality and quantity of medical evidence and

opinions. Id.


       A. Conflict of Interest


       A conflict of interest exists for ERISA purposes where the plan administrator evaluates and

pays benefits claims. MetLife v. Glenn, 554 U.S. 105, 111 (2008); Delise v. Sun Life Assurance Co.,

558 F.3d 440, 445 (6th Cir. 2009). We give more weight to the conflict “where circumstances

suggest a higher likelihood that it affected the benefits decision . . .” Delise, 558 F.3d at 445. For

example, although the treating physician rule does not apply in ERISA cases, the Supreme Court has

acknowledged that “physicians repeatedly retained by benefits plans may have an incentive to make

a finding of ‘not disabled’ in order to save their employers money and preserve their own consulting

arrangements.” Black & Decker Disability Plan v. Nord, 538 U.S. 822, 8632 (2003); Delise, 558

F.3d at 445. We recognized that when a plan administrator both decides claims and pays benefits,

it has a “clear incentive” to contract with consultants who are “inclined to find” that a claimant is

not entitled to benefits. Kalish v. Liberty Mutual/Liberty Life Assurance Co. of Boston, 419 F.3d

501, 507 (6th Cir. 2005).




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No. 10-6549
Allen v. Life Ins. Co. of North America

         In this case, LINA is both the decision-maker and payor under the insurance policy. One

yearly payment of LTD benefits to Allen is approximately $46,000. Considering Allen’s age,

payment of this claim beyond the twenty four (24) month limitation period would amount to a

substantial expense for LINA. Thus, LINA has a significant financial incentive to terminate

coverage or deny a claim.


         Allen offers more than conclusory allegations of bias. On remand, LINA obtained IMEs of

Drs. Griffin and Baig. While Dr. Griffin deferred to a board certified infectious disease doctor for

diagnosis, Dr. Baig found that Allen suffered from Lyme disease. However, relying on these IMEs

and a review by LINA’s medical doctor, LINA concluded that the record did not support the

presence of Lyme disease or any physical disability. This suggest that LINA was unable to make an

objective determination when presented with evidence from its own physician that supported Allen’s

claim.


         In response to a subsequent appeal, LINA obtained further IMEs from Dr. Greenhood and

Dr. Martinello, who both opined that Allen did not suffer from Lyme disease. We view these

opinions with skepticism in light of LINA’s conflict of interest and evidence from both IMEs and

Allen’s treating physician that Allen may have suffered from Lyme disease. With this in mind,

LINA’s ruling that Allen did not suffer from Lyme disease is not completely baseless. The record

reveals that Allen consistently failed objective medical laboratory tests for Lyme disease. Dr.

Shadowen, one of Allen’s own treating physicians, questioned a Lyme disease diagnosis. Just as

important, the record is far from clear as to the extent Allen was debilitated from any physical

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No. 10-6549
Allen v. Life Ins. Co. of North America

impairment. We conclude, therefore, that Allen failed to provide “due proof” to LINA that she is

totally disabled and unable to perform material duties of her former position due to a physical

impairment.


        B. Social Security Administration’s Determination of Total Disability


        A determination that a person meets the Social Security Administration’s (“SSA”) uniform

standards for disability benefits does not make her automatically entitled to benefits under an ERISA

plan, since the plan’s disability criteria may differ from the SSA’s criteria. Whitaker v. Hartford Life

& Accident Ins. Co., 404 F.3d 947, 949 (6th Cir. 2005). Nonetheless, the SSA’s decision is not

meaningless. Delise v. Sun Life Assurance Co., 558 F.3d 440, 446 (6th Cir. 2009). There is no

technical requirement to explicitly distinguish a favorable Social Security determination in every

case, but “[i]f the plan administrator (1) encourages the applicant to apply for Social Security

disability payments; (2) financially benefits from the applicant’s receipt of Social Security; and then

(3) fails to explain why it is taking a position different from the SSA on the question of disability,

the reviewing court should weigh this in favor of a finding that the decision was arbitrary and

capricious.” Bennett v. Kemper Nat’l Servs., 514 F.3d 547, 554 (6th Cir. 2008).


        In the present case, LINA encouraged Allen to apply for benefits with the SSA, and it

received a deduction based on those benefits. The Administrative Law Judge (“ALJ”) concluded

that “[t]he medical evidence establishes that the claimant has the following severe impairments:




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No. 10-6549
Allen v. Life Ins. Co. of North America

residuals from Lyme disease and an adjustment disorder with depression and anxiety.” However,

LINA explained why its decision was consistent with the SSA decision. LINA stated:


       The ALJ’s report concluded that she was not able to engage in sedentary work solely
       by virtue of her physical limitations; but the effects of her substantial impairment in
       the ability to maintain concentration and attention, tolerate work stress, adapt to
       changes in the work setting and interact with supervisors, co-workers and the general
       public combined to render her totally disabled. This conclusion is consistent with the
       logic behind our denial and the very wording of the Mental Illness Limitation.


       The SSA’s determination of Allen’s disability hinged on both physical and mental

disabilities. The ALJ’s report relies heavily on Allen’s mental, rather than her physical disabilities

in its determination. As such, LINA’s determination is consistent with the SSA’s disability

determination.


       C. Quality and Quantity of Medical Evidence


       There is conflicting evidence regarding whether Allen has Stage IV Lyme disease. Dr. Lisner

categorically stated that Allen has Lyme disease. Dr. Mendez concluded that the information LINA

provided him substantiates the clinical diagnosis of Lyme disease. Dr. Stumacher opined that Allen

had symptoms consistent with Lyme disease, but in the strictest sense, she did not have evidence of

the disease. Dr. Griffin deferred to an infectious disease specialist. Both Drs. Greenhood and

Martinello concluded that Allen did not have Lyme disease or any restrictions therefrom.

Additionally, Dr. Shadowen questioned whether Allen’s medical records supported a finding of




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No. 10-6549
Allen v. Life Ins. Co. of North America

Lyme disease. For reasons already presented, LINA’s position that Allen does not suffer from Lyme

disease is not baseless.


       Allen failed to provide LINA with “due proof” that she was totally disabled from Lyme

disease and unable to perform material portions of her former occupation. The only physician that

opined that Allen was totally disabled was Dr. Lisner. LINA was not required to rely solely on Dr.

Lisner’s opinion that Allen was totally disabled. None of the IMEs provided any evidence that Allen

was totally disabled as defined by Allen’s LTD plan. As such, LINA’s determination adequately

reflected the quality and quantity of medical evidence it received from Allen.


                                      III. CONCLUSION


       For the foregoing reasons, LINA’s determination was not arbitrary and capricious. We

therefore AFFIRM the district court’s decision.




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