               Case: 13-11619        Date Filed: 04/15/2014      Page: 1 of 16


                                                                      [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 13-11619
                                 Non-Argument Calendar
                               ________________________

                      D.C. Docket No. 3:10-cv-00192-MMH-TEM

KIMBERLY HOWARD,

                                                                   Plaintiff - Appellant,


                                                versus


HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY,
a corporation,
a.k.a. Hartford Life,
d.b.a. The Hartford,

                                                                   Defendant - Appellee.

                                  ________________________

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

                                          (April 15, 2014)

Before TJOFLAT, FAY, and ALARCÓN, ∗ Circuit Judges.


       ∗
        Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
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PER CURIAM:

      In this Employee Retirement and Income Security Act (“ERISA”) 1 action,

Kimberly Howard appeals from the district judge’s order granting Hartford Life

and Accident Insurance Company’s (“Hartford”) motion for summary judgment

and motion to strike exhibits supporting Howard’s motion for summary judgment.

We affirm.

                                    I. BACKGROUND

A. Howard’s Employment and the Plan

      Howard was employed at Fidelity National Financial, Inc. (“Fidelity”), as a

Business Strategy Manager. Her job required her to sit for six hours per day, walk

or stand for two hours per day, “frequently” lift up to 10 pounds, and

“occasionally” lift between 10 and 20 pounds. Her occupation also required “full

use of the upper extremities, such as with fingering and handling, computer use

and typing.” R at 1001.

      While employed at Fidelity, Howard was a participant in the Fidelity

National Financial Inc. Group Benefit Plan (the ERISA “Plan”), which Hartford

issued, insured, and underwrote. Hartford also funded and administered the Plan.

Under the terms of the Plan, a participant is entitled to receive long-term disability




      1
          29 U.S.C. §§ 1001-1461.
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(“LTD”) benefits if she meets the definition(s) of disability. 2 R at 30. For the first

24 months of a claimed disability, eligibility for long-term disability benefits is

conditioned on a participant’s submission of proof that she was prevented by an

illness or injury from performing, on a full-time basis, “one or more of the

Essential Duties of [her] Occupation.” R at 55. “Essential Duty” is defined as “a

duty that: 1. is substantial, not incidental; 2. is fundamental or inherent to the

occupation; and 3. [cannot] be reasonably omitted or changed.” R at 55.

According to the Plan terms, Hartford has “full discretion and authority to

determine eligibility for benefits and to construe and interpret all terms and

provisions of the [Plan].” R at 54.

B. Howard’s Medical History and Benefits Award

       In April 2005, Howard stopped working and applied for disability benefits.

Her treating physician, Dr. Gary Decker, submitted to Hartford an Attending

Physician’s Statement, stating he had been treating Howard for “many years” and,

in his opinion, “she should qualify for total disability” based upon her “multiple

debilities.” R at 1443. Dr. Decker reported Howard was 5’6” and weighed over

300 pounds. He made a primary diagnosis of lupus, fibromyalgia, and severe joint



       2
         The Plan defines “Disability or Disabled” to mean “during the Elimination Period and
for the next 24 months [a participant] [is] prevented by: 1. accidental bodily injury; 2. sickness;
3. Mental Illness; 4. Substance Abuse; or 5. pregnancy, from performing one or more of the
Essential Duties of [her] Occupation, and as a result [her] Current Monthly Earnings are no more
than 80% of [her] Indexed Pre-disability Earnings.” R at 55.
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pain, as well as secondary diagnoses of depression, short-term memory loss, and

asthma. R at 1437. Dr. Decker concluded Howard “became unable to work due to

impairment” on April 29, 2005. R at 1438. He listed Howard’s impairments to

include walking, sitting, lifting/carrying, pushing, pulling, driving, and keyboard

use. In a second Attending Physician’s statement, Dr. Decker listed his primary

diagnosis as lupus and his secondary diagnosis as fibromyalgia. He reported

Howard was precluded from performing several of the functions of her job,

including standing or walking for more than a few minutes at a time and sitting for

longer than an hour. Based on this information, Hartford approved Howard’s

claim for Short Term Disability benefits, which expired on November 3, 2005.

      Beginning in July 2005, Hartford sent further inquiries to Dr. Decker and

requested more information about Howard’s health and limitations. He

acknowledged Howard’s lab work did not support lupus, but she was diagnosed

“per Rheumatology.” R at 1346. He also stated Howard was unable to work in

sedentary to light positions because of “[s]evere joint pain” in her hips and hands,

difficulty with handwriting, and “lower extremity swelling.” R at 1346. Hartford

later sent Dr. Decker a second questionnaire, based on a rheumatologist’s findings

that Howard was not experiencing spasms, severe joint pain, or other symptoms

limiting her function. In response to Hartford’s question as to how Dr. Decker

determined Howard was having “severe problems” and “severe symptoms,” he

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stated his determinations were based on Howard’s own reports of pain and

multiple exams.

      On October 22, 2005, Howard filed for LTD benefits. Dr. Decker provided

Hartford with an Attending Physician’s Statement of Continued Disability, again

reporting his primary diagnosis of lupus and fibromyalgia and his secondary

diagnosis of severe joint pain, asthma, and depression. He also completed a

Physical Capacities Evaluation Form stating Howard could not sit for more than an

hour at a time and could not stand for more than five minutes. Additionally,

Howard submitted a statement reporting she (1) was unable to multi-task because

of short-term memory problems and chronic fatigue; (2) had suffered a loss of fine-

motor skills; (3) was unable to life or carry more than 2 to 3 pounds; (4) could not

stand or walk without support for more than a few minutes; (5) could not write

more than a sentence or two without severe pain; and (6) had memory deficits,

sometimes causing her to become confused or disoriented.

      On November 1, 2005, Hartford advised Howard her claim for LTD benefits

had been approved, effective November 4, 2005. She also was advised an

Independent Medical Examination (“IME”) would be performed. Dr. Mark

Hofmann performed the IME and concluded, based on Howard’s self-reported

pain, Howard probably had fibromyalgia. He provided restrictions of “[n]o lifting

or carrying greater than 10 pounds occasionally, less than one hour per day of

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keyboarding and repetitive hand motion, [and] avoidance of . . . standing/walking

more than 10 minutes at a time.” R at 1236. Based on the IME and Dr. Decker’s

submissions, Howard’s LTD benefits were continued beyond November 2005.

C. Investigation and Termination of Benefits

      Hartford initiated surveillance in March 2006 “[t]o better understand

[Howard’s] capabilities.” R at 995. A total of 60 hours of surveillance was

conducted over six days: March 30 to April 1 and May 8-10, 2006. The

surveillance showed Howard running errands for extended periods of time, driving

approximately 248 miles over one day, driving her daughter to and from school,

sitting in her vehicle for 33 minutes, carrying groceries, and walking with and

without her cane.

      A Hartford investigator interviewed Howard, who gave a detailed statement

regarding her condition, restrictions, and limitations. In her interview, she

reiterated that she was prevented from working by chronic pain, she suffered

“extreme fatigue” because of her fibromyalgia, she was not able to sit for more

than one hour, she was able to stand only for 5 to 10 minutes and walk for 5 to 10

minutes, she could drive for only 30 minutes or less and not farther than 15 to 20

miles, and she used a cane to walk “90% of the time.” R at 2482-90.

      Subsequently, Hartford sent Howard’s medical records, surveillance video,

and surveillance reports to Dr. William Sniger, a Board-certified Physician in

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Physical Medicine and Rehabilitation. After reviewing the file, Dr. Sniger made

several observations, including that the activities seen in the video were “in excess

of [Howard’s] stated limitations,” and “the preponderance of objective information

does not appear to support the severity of the claimant’s subjective symptoms or

alleged inability to perform full-time work.” R at 1013, 1014. Dr. Sniger

concluded: “Based upon the subjective and objective information available to me,

it is my opinion with a reasonable degree of medical certainty that the

preponderance of information does not support the claimant’s alleged inability to

perform full-time work from a physical perspective.” R at 1014.

      In a letter dated November 15, 2006, Hartford terminated Howard’s LTD

benefits. The letter detailed the information within Howard’s file and explained,

after considering all of the evidence, “the combined information . . . d[id] not show

that [Howard] [was] unable to perform the Essential Duties of [her] Occupation.”

R at 1002.

D. Howard’s Appeal and Review

      Howard appealed Hartford’s termination decision. With her appeal, she

submitted (1) a letter asserting some of her activities captured during surveillance

were necessary to assist family members and advising her condition was more

severe on some days than others, and (2) additional medical examination reports




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and Attending Physician Statements in Support of Disability completed by Dr.

Decker and Dr. Orlando Florete, a pain management physician. 3

       Hartford had Dr. Carol Walker, Ph.D., a neuropsychologist, review

Howard’s medical records. Dr. Walker concluded “there is no objective data to

support psychological or cognitive symptoms that would interfere with [Howard’s]

ability to work. . . . Cognitive and psychological issues have not been documented

as the focus of treatment by her medical providers.” R at 2293. Dr. Phillip

Marion, a physician, also reviewed Howard’s records and opined Howard’s

“continued complaints of incapacitating full body pain are inconsistent with her

observed functional independence.” R at 2297. Dr. Marion concluded Howard

could work as long as she avoided overhead lifting with the left upper extremity.

       Hartford thereafter notified Howard it was upholding the benefits

termination. Hartford explained Howard had been observed “performing activities

in excess of her reported limitations and as such, her report is not entirely reliable.

Thus, the restrictions and limitations imposed by her physicians, being rooted in

Ms. Howard’s report almost exclusively, is likewise an unreliable indicator of Ms.

Howard’s functionality.” R at 2275. Hartford concluded Howard was capable of

light-duty work and the demands of her employment were of a sedentary capacity;


       3
          Dr. Florete had diagnosed Howard with fibromyalgia, cervical degenerative disc
disease, systemic lupus erythematosus, bilateral carpal tunnel syndrome, and a left shoulder
rotator cuff tear, and described Howard as “totally and permanently disabled.” R at 2025.
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therefore, “the weight of the evidence continues to support Ms. Howard’s capacity

to perform her occupation on a full-time basis.” R at 2275.

      Howard then filed suit against Hartford under ERISA and sought to reverse

Hartford’s decision to discontinue payment of her LTD benefits. The parties filed

cross motions for summary judgment. In support of her motion for summary

judgment, Howard attached 30 exhibits. These exhibits included a “Declaration of

Howard’s Counsel” regarding the exhibits, transcripts of depositions taken after

Howard filed suit, interrogatory answers in this suit, deposition transcripts,

interrogatory answers, and discovery documents from lawsuits against Hartford to

which Howard was not a party, articles and information obtained from the internet,

and contracts between Hartford and medical consultant vendors. Because none of

the exhibits were available or considered by the Plan administrator, Hartford filed a

motion to strike the exhibits.

      The district judge construed the motion to strike as a motion in limine,

granted the motion, and entered summary judgment for Hartford. The judge

concluded Hartford’s decision was reasonable, based on the evidence, and the

challenged benefits decision was not arbitrary and capricious. Howard v. Hartford

Lift & Acc. Ins. Co., 929 F. Supp. 2d 1264 (M.D. Fla. 2013). On appeal, Howard

argues the district judge erred by refusing to consider the exhibits attached to her




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motion for summary judgment and failing to consider properly evidence regarding

Hartford’s financial conflict of interest.

                                 II. DISCUSSION

      We review orders granting summary judgment in an ERISA case de novo

and apply the same judicial standard to the administrator’s decision used by the

district judge. Blankenship v. Metro. Life Ins. Co., 644 F.3d 1350, 1354 (11th Cir.

2011). ERISA does not provide a standard for courts to review administrators’

plan determinations, but “the Supreme Court articulated a framework for judicial

review, which this circuit has distilled into a six-part test.” Melech v. Life Ins. Co.

of N. Am., 739 F.3d 663, 672 (11th Cir. 2014) (citing Firestone Tire & Rubber Co.

v. Bruch, 489 U.S. 101, 109, 109 S. Ct. 948, 956-57 (1989); Williams v. BellSouth

Telecomms., Inc., 373 F.3d 1132, 1138 (11th Cir. 2004)). Our test requires a

reviewing judge to:

      (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.

Blankenship, 644 F.3d at 1355 (citation omitted). “The phrase ‘arbitrary and

capricious’ and ‘abuse of discretion’ are used interchangeably.” Melech, 739 F.3d

at 672 n.14 (citing Blankenship, 644 F.3d at n.5).

      It is well established a district judge’s review of an administrator’s

discretionary benefits decision is confined to the evidence that was before the plan

administrator. Blankenship, 644 F.3d at 1354. The burden is on the claimant to

prove she is disabled and the administrator’s decision was an abuse of discretion.

Id. at 1355. When the administrator makes eligibility decisions and pays benefits,

a structural conflict of interest exists and a judge must reach step 6 wherein “the

burden remains on the [claimant] to show the decision was arbitrary; it is not the

[administrator’s] burden to prove its decision was not tainted by self-interest.” Id.

(citation and internal quotation marks omitted). Structural conflict of interest is

only one factor in determining whether there was an abuse of discretion. Glenn,

554 U.S. at 108, 128 S. Ct. at 2346; Blankenship, 644 F.3d 1355.




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      There is no dispute Hartford had discretionary authority to construe the Plan

and determine Howard’s eligibility. Review of Hartford’s decision is governed by

the deferential “arbitrary and capricious” standard. Blankenship, 644 F.3d at 1355.

Because Hartford determines and pays the Plan benefits, the district judge must

take into account any conflicts of interest in determining whether Hartford’s denial

was supported reasonably by the record before the administrator. Id.

      After reviewing the administrative record, the district judge concluded

Hartford’s termination of benefits was “entirely reasonable,” and the structural

conflict of interest did not warrant reversal of the decision. Howard, 929 F. Supp.

2d at 1302. We agree. Howard’s disability primarily was based on her diagnosis

of fibromyalgia and lupus. As we previously have recognized, fibromyalgia “often

lacks medical or laboratory signs, and is generally diagnosed mostly on a[n]

individual’s described symptoms.” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th

Cir. 2005). Furthermore, the severity of fibromyalgia symptoms is “entirely

subjective.” Leger v. Tribune Co. Long Term Disability Benefits Plan, 557 F.3d

823, 835 n.8 (7th Cir. 2009). Howard’s lupus symptoms similarly were subjective,

because her lab work failed to support such a diagnosis. Given the subjective

nature of Howard’s diagnoses, credibility in this case is of utmost importance. See

Moore, 405 F.3d at 1211, 1212 (recognizing, because fibromyalgia’s “hallmark” is




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the “lack of objective evidence,” credibility determinations are critical to claims of

impairment).

      In terminating Howard’s benefits, Hartford reviewed “all documents in [her]

claim file . . . as a whole” and concluded she had “the ability to perform a

sedentary to light occupation.” R at 993, 1002. Hartford reviewed the surveillance

of Howard that showed her performing activities she had claimed she was unable

to perform. As the district judge noted, Howard’s credibility was “seriously called

into question by the surveillance video which shows her engaging in activities

grossly inconsistent with her description of her abilities, and in stark contrast to her

own treating physicians’ assessments, which were based on Howard’s subjective

complaints.” Howard, 929 F. Supp. 2d at 1299-300.

      Hartford also reviewed the opinions of Howard’s treating physicians as well

as the opinions of the reviewing physicians and health care professionals. Hartford

was entitled to rely on the reviewing health care professionals’ assessments of

Howard’s capabilities, which were based on her medical records and the

surveillance video. See Turner v. Delta Family-Care Disability & Survivorship

Plan, 291 F.3d 1270, 1274 (11th Cir. 2002) (recognizing an administrator was

entitled to rely on the opinion of an independent medical examiner in view of a

surveillance report). We previously have determined an administrator’s “use of

‘file’ reviews by independent doctors—instead of live, physical examinations” is

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not arbitrary and capricious, “particularly in the absence of other troubling

evidence.” Blankenship 644 F.3d at 1357. The reviewing physicians recognized

Howard’s physical limitations, but they also had observed her in the surveillance

video, examined her medical records, and determined she could perform her job.

Howard failed to submit evidence showing the reviewing health care providers

were tainted or biased, and Hartford’s reliance on their opinions was not arbitrary

or capricious. While there were some conflicting reports regarding Howard’s

condition, because Hartford based its decision on evidence in the administrative

record and concluded Howard was not precluded from “performing one or more of

the Essential Duties of [her] Occupation,” we do not conclude Hartford’s finding

was arbitrary or capricious. 4 See Turner, 291 F.3d at 1274 (holding an

administrator’s decision to terminate benefits that was based on the record was not

arbitrary or capricious regardless of whether “anyone else might reach a different

conclusion”).




       4
          Howard additionally challenges the district judge’s finding that Hartford’s interpretation
of the Plan’s “Own Occupation” definition of “disability” was not arbitrary or capricious. She
argues the Plan’s definition of disability required her to establish she was unable to perform only
one essential duty of her job and all physicians, including Hartford’s IME physician, advised she
was unable to type for extended periods of time. Howard, however, overlooks the fact that the
Plan defined “Own Occupation” to mean “as it is recognized in the general workplace. Your
Occupation does not mean the specific job you are performing for a specific employer or at a
specific location.” R at 57. Because we find the plain language of the Plan directed Hartford to
evaluate Howard’s ability to perform her occupation as a whole and not an isolated job
assignment, we find Howard’s argument to be meritless.
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      While Howard contends Hartford operated under a conflict and Hartford’s

decision to terminate her benefits was influenced by financial concerns, conflict of

interest is just one factor to consider. Blankenship, 644 F.3d at 1355. The district

judge recognized deference is given to the administrator’s “discretionary decision-

making” even where a conflict of interest exists. Howard, 929 F. Supp. 2d at 1301

(quoting Blankenship, 644 F.3d at 1355). Despite Howard’s argument to the

contrary, the district judge appropriately deferred to Hartford’s decision regarding

benefits while weighing the structural conflict of interest as one factor.

Blankenship, 644 F.3d at 1355.

      Finally, in her motion for summary judgment, Howard attached 30 exhibits,

which she alleged related to Hartford’s conflict of interest. Howard argues the

district judge erred in failing to consider her exhibits; however, we find it

unnecessary to resolve this argument, because the district judge did examine all

exhibits Howard tendered but concluded these exhibits did not justify another

result. The district judge stated:

             Here, Howard has submitted thirty exhibits, some of which she
      did not cite at all in her briefing, others she cited only by exhibit
      number despite the exhibit being hundreds of pages in length, and
      many of which are far-afield of Hartford’s decision regarding
      Howard’s specific LTD benefits eligibility. Only some of the exhibits
      were in existence at the time of the administrator’s decision, and most
      importantly, none establish that an inherent or case-specific bias
      affected the administrator’s decision in this case, or a higher
      likelihood that the structural conflict of interest affected the
      administrator’s benefits decision.
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Howard, 929 F. Supp. 2d at 1290-91 (footnote omitted). We conclude the district

judge did not err in her evaluation of the exhibits or in her conclusion that Howard

failed to establish a conflict of interest of “sufficient inherent or case-specific

importance.” Id. at 1291 (quoting Blankenship, 644 F.3d at 1357) (internal

quotation marks omitted). Therefore, we affirm both the district judge’s granting

summary judgment to Hartford and the motion to strike exhibits filed supporting

Howard’s summary judgment motion in this ERISA case.

      AFFIRMED.




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