13-1926-cv
St. Onge v. Unum Life Ins. Co. of Am.


                                  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
ASUMMARY 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 13th day of March, two thousand fourteen.

PRESENT: REENA RAGGI,
                 GERARD E. LYNCH,
                                 Circuit Judges,
                 COLLEEN McMAHON,
                                 District Judge.*
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JOANNE ST. ONGE,
                                 Plaintiff-Appellant,

                               v.                                        No. 13-1926-cv

UNUM LIFE INSURANCE COMPANY OF AMERICA,
ALLMERICA FIN VOLUNTARY EMP, BENEFIT
PLAN,
                                 Defendants-Appellees.
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APPEARING FOR APPELLANT:                         RYAN P. BARRY, Barry & Barall LLC,
                                                 Manchester, Connecticut.

*
 The Honorable Colleen McMahon, of the United States District Court for the Southern
District of New York, sitting by designation.
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APPEARING FOR APPELLEES:                   PATRICK W. BEGOS, Begos Brown & Green
                                           LLP,     Southport,   Connecticut, for
                                           Defendant-Appellee Unum Life Insurance
                                           Company of America.

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

Connecticut (Alfred V. Covello, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on April 11, 2013, is AFFIRMED.

       Plaintiff Joanne St. Onge challenges the award of summary judgment in favor of

defendant Unum Life Insurance Company of America (“Unum”), asserting that Unum’s

decision as administrator of the Allmerica Financial Voluntary Employees Benefit Plan

(“Plan”) finding St. Onge not disabled was arbitrary and capricious because Unum

(1) abused its discretion by selectively reviewing the administrative record, (2) committed

legal error by applying the lifting standards of a sedentary level position, and (3) was

affected by a conflict of interest.

       Under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29

U.S.C. § 1001 et seq., “we review the district court’s grant of summary judgment based on

the administrative record de novo and apply the same legal standard as the district court.”

Hobson v. Metro. Life Ins. Co., 574 F.3d 75, 82 (2d Cir. 2009). “[A] plan administrator’s

underlying benefits determination is reviewed de novo unless, as here, the plan grants the

administrator discretionary authority to determine eligibility for benefits or to construe the

terms of the plan.” Miles v. Principal Life Ins. Co., 720 F.3d 472, 485 (2d Cir. 2013)
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(citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)). Thus, we may

upset Unum’s determination that St. Onge was not disabled only if it was “arbitrary and

capricious,” i.e., if it was “without reason, unsupported by substantial evidence or

erroneous as a matter of law.” Id. at 485–86 (internal quotation marks omitted). In so

reviewing, we assume the parties’ familiarity with the facts and the record of prior

proceedings, which we reference only as necessary to explain our decision to affirm.

1.    Unum’s Review of the Record

      St. Onge asserts that Unum abused its discretion in determining that she was not

disabled by ignoring evidence favorable to her claim and misconstruing the record. We

disagree.

      To determine whether Unum’s decision is supported by substantial evidence, we

ask whether there is “such evidence that a reasonable mind might accept as adequate to

support the conclusion reached by the administrator[, which] requires more than a scintilla

but less than a preponderance.” Durakovic v. Bldg. Serv. 32 BJ Pension Fund, 609 F.3d

133, 141 (2d Cir. 2010) (internal quotation marks omitted). “[W]e are not free to

substitute our own judgment for that of the insurer as if we were considering the issue of

eligibility anew.” Hobson v. Metro. Life Ins. Co., 574 F.3d at 83–84 (internal quotation

marks and alterations omitted).

      The district court correctly determined that Unum conducted a thorough review of

St. Onge’s medical records, which provided ample support for its non-disability


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determination. Notably, Unum sought opinions from two independent, board-certified

physicians, including Dr. Richard Kaplan, who stated that St. Onge was not disabled. In

reaching this conclusion, Dr. Kaplan, a physiatrist, reviewed records, MRI, EMG, and

other test results, and consulted with St. Onge’s treating physician, Dr. Paula Cullinane.

Further, Unum commissioned an independent testing agency to conduct a functional

capacity evaluation (“FCE”), which found St. Onge capable of functioning in the light

physical demand category for a full eight-hour work day. Unum also relied on its

vocational department’s determination that St. Onge could perform her job duties despite

her back troubles. Viewed as a whole, this was sufficient evidence to support Unum’s

rejection of St. Onge’s disability claim. See Durakovic v. Bldg. Serv. 32 BJ Pension

Fund, 609 F.3d at 141.

      In urging otherwise, St. Onge argues that Unum deliberately ignored competing

evidence, including the opinion of Dr. Cullinane.      To the contrary, Dr. Cullinane’s

opinion was consistent with Unum’s ultimate decision as she indicated that St. Onge could

perform her job so long as she was not required to lift more than ten pounds, an

accommodation that Unum and Allmerica, her employer, were willing to provide. In any

event, Unum was not required to give the treating physician’s opinion “special weight,”

particularly where independent, reviewing physicians disagreed.        Black & Decker

Disability Plan v. Nord, 538 U.S. 822, 834 (2003).




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       Nor did Unum improperly reject St. Onge’s subjective complaints of severe pain

and side effects from medication. Subjective claims of disability are an “important factor

to be considered in determining disability” and may not be rejected out of hand. Miles v.

Principal Life Ins. Co., 720 F.3d at 486 (internal quotation marks omitted). But so long as

a plan administrator provides “‘adequate notice in writing . . . setting forth the specific

reasons for such denial,’” it may reject subjective complaints. Id. (quoting 29 U.S.C.

§ 1133(1)) (alteration in original).

       Here, Unum addressed, but ultimately found unpersuasive, St. Onge’s subjective

complaints. For instance, Unum referenced the findings of Dr. Alain Couturier, a board

certified doctor in occupational medicine, who acknowledged that St. Onge’s MRI and

EMG tests indicated that pain “may be present.” Dr. Kaplan’s findings, however, which

Unum incorporated into its denial of St. Onge’s appeal, expressly rejected the severity of

St. Onge’s subjective complaints of pain and problems with medication as inconsistent

with her continued driving, attending physician reports, and other portions of her medical

history. Thus, Unum did not dismiss St. Onge’s complaints merely because they were

subjective, but rather properly considered and rejected them for specific reasons supported

by the record. See id. at 487 (stating that plan administrator “must do more than simply

point to the subjective nature of the evidence when denying his claim[, i.e.,] either assign

some weight to the evidence or provide a reason for its decision not to do so”).




                                             5
       Finally, St. Onge’s disputes over the FCE are insufficient to upset Unum’s disability

ruling. Unum was not obligated to request any independent medical examination, see

Hobson v. Metro. Life Ins. Co., 574 F.3d at 90–91, so its decision to commission an FCE in

direct response to Dr. Kaplan’s suggestion that one would provide useful information was

not unreasonable, cf. Kosiba v. Merck & Co., 384 F.3d 58, 67 (3d Cir. 2004) (criticizing

employer’s intervention in administrative appeal and request for additional medical

evaluation where all other evidence supported disability finding). St. Onge’s challenges

to the substance of the FCE, including her reliance on Dr. Cullinane’s conflicting opinions,

are also not persuasive. The FCE is a four-hour exam designed to predict a person’s

capacity for physical exertion. It is therefore irrelevant that, during the actual test, St.

Onge was not asked to perform the specific tasks that later might be required. The test

results, adopted by Dr. Kaplan, were sufficiently objective and reliable to enter into

Unum’s ultimate decision. See Hobson v. Metro. Life Ins. Co., 574 F.3d at 83–84 (stating

that “we are not free to substitute our own judgment for that of the insurer” (internal

quotation marks and alteration omitted)).

       Accordingly, we reject St. Onge’s factual challenges to Unum’s finding that she was

not disabled.

2.     Light Level Work Versus Sedentary Occupation

       St. Onge asserts that Unum committed legal error by improperly applying the

criteria of a Claims Examiner—a sedentary position that requires a worker occasionally to


                                             6
lift 10 pounds—when her actual job duties corresponded to that of a Claims Adjustor,

which was a light level work occupation that required the ability to lift 20 pounds. We are

not persuaded.

      First, assuming arguendo that St. Onge’s job qualified as a Claims Adjustor, the

FCE found her capable of performing those duties. St. Onge notes that during the FCE,

she never actually lifted 20 pounds, but the FCE ultimately concluded that she was capable

of doing so.

      Second, even if we were to identify any error in Unum’s reliance on the FCE, it is

irrelevant whether St. Onge’s position was classified as light level or sedentary because

Unum and Allmerica established that St. Onge was not disabled within the meaning of the

Plan. The Plan defined long term disability to include the inability to perform “material

and substantial duties,” which in turn were defined as those that “cannot be reasonably

omitted or modified.” Plan, Glossary 2, Sealed App. 1474. In September 2005, in

accordance with the initial recommendation of Dr. Cullinane, Unum offered, and

Allmerica agreed, to cap St. Onge’s lifting obligations at ten pounds. St. Onge and Dr.

Cullinane rejected this accommodation, instead asserting that she could not work because

of her 45-minute commute. Thus, regardless of whether St. Onge’s job qualified as light

level or sedentary, Unum did not commit legal error.




                                            7
3.     Conflict of Interest

       Finally, St. Onge asserts that the conflict of interest created by Unum’s status as the

entity that both determines eligibility and pays disability claims rendered its decision

arbitrary and capricious.

       Such conflicts “are but one factor among many that a reviewing judge must take

into account” in reviewing a plan administrator’s denial of benefits. Metropolitan Life

Ins. Co. v. Glenn, 554 U.S. 105, 116 (2008). “Following Glenn, a plan under which an

administrator both evaluates and pays benefits claims creates the kind of conflict of interest

that courts must take into account and weigh as a factor in determining whether there was

an abuse of discretion, but does not make de novo review [of the administrator’s decision]

appropriate.” McCauley v. First Unum Life Ins. Co., 551 F.3d 126, 133 (2d Cir. 2009).

“The weight properly accorded a Glenn conflict varies in direct proportion to the likelihood

that the conflict affected the benefits decision . . . .” Durakovic v. Bldg. Serv. 32 BJ

Pension Fund, 609 F.3d at 139 (internal quotation marks and alteration omitted).

       We agree with the district court that there is no evidence that the conflict affected

the disability decision, and, therefore, that this factor warranted little, if any, weight in

determining whether Unum’s decision was arbitrary and capricious. For instance, St.

Onge put forth no evidence that Unum “has a history of biased claims administration.”

Metropolitan Life Ins. Co. v. Glenn, 554 U.S. at 117. Further, Unum employed numerous

independent physicians and vocational evaluators, commissioned an FCE conducted by an


                                              8
independent company, and consulted with St. Onge and her treating physician. We will

not construe a plan administrator’s decision to seek clarification and gather further

evidence as evidence of bias.

      For these reasons, we reject St. Onge’s claim that a conflict of interest affected

Unum’s disability determination.

      We have considered St. Onge’s remaining arguments and conclude that they are

without merit. We therefore AFFIRM the judgment of the district court.

                                   FOR THE COURT:
                                   CATHERINE O=HAGAN WOLFE, Clerk of Court




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