                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 17-2048
                                     _____________

                                  KENNETH BAKER,
                                              Appellant
                                        v.

                 SUN LIFE AND HEALTH INSURANCE COMPANY

                                    ______________

                      On Appeal from United States District Court
                              for the District of New Jersey
                             (D. C. Civil No. 2-13-cv-01445).
                   District Court Judge: Honorable Susan D. Wigenton
                                     ______________

                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on
                                     May 16, 2018
                                   ______________

                Before: McKEE, AMBRO, and SCIRICA, Circuit Judges

                              (Opinion filed: April 25, 2019)

                               _______________________

                                      OPINION*
                               _______________________




*
 This disposition is not an opinion of the full Court and under I.O.P. 5.7 does not
constitute binding precedent.
McKEE, Circuit Judge.

       Kenneth Baker appeals the district court’s grant of summary judgment in favor of

Sun Life Insurance Company on Baker’s claim that Sun Life erroneously terminated his

long term disability benefits. For the following reasons we will affirm the district court.1

                                                    I.

       Where, as here, “the [disability plan] administrator has discretionary authority to

determine eligibility for benefits,” the decision to deny those benefits “must be reviewed

under an arbitrary and capricious standard.”2 “Under this ‘highly deferential’ standard, an

administrator’s interpretation of a plan may be disturbed ‘only if it is without reason,

unsupported by substantial evidence or erroneous as a matter of law.’”3 Therefore, we do

not “substitute [our] own judgment for that of the [plan administrator,]”4 and only

overturn the grant of summary judgment where the administrator’s decision was “without

reason.”5

       The district court correctly determined that the dispute centers on Baker’s

cognitive impairment and “whether [Baker] is able to perform the duties of ‘Any

Occupation,’” which is defined under the plan as “[a]ny gainful occupation that [the



1
  The district court had jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 29 U.S.C. §
1132(e)(1). We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
2
  Doroshow v. Hartford Life & Acc. Ins. Co., 574 F.3d 230, 233 (3d Cir. 2009). As Appellant
recognizes, “[i]t is axiomatic that the arbitrary and capricious standard of review is extremely
deferential.” Appellant Br. at 19.
3
  Felker v. USW Local 10-901, 697 F. App’x 746, 749 (3d Cir. 2017) (quoting Courson v. Bert
Bell NFL Player Ret. Plan, 214 F.3d 136, 142 (3d Cir. 2000)).
4
  Doroshow, 574 F.3d at 233.
5
  Felker, 697 F. App’x at 749 (citations omitted).

                                                2
claimant is] qualified for on the basis of education, training or experience.”6 Sun Life

relied primarily upon two sources for its decision that Baker was able to perform the

duties of any occupation: (1) the conclusions of its experts, Dr. Barr, Dr. Ross, and Dr.

Pier, whose testing concluded that Baker was not cognitively impaired; and (2)

surveillance which showed Baker working from home, going on-site to conduct business,

and meeting with employees behind the counter at a Dunkin’ Donuts location.7 Sun Life

also performed a vocational evaluation and concluded that Baker could work as a

business owner, operations manager and retail store manager.8 Accordingly, the district

court appropriately concluded that Sun Life’s decision to terminate benefits was not

“without reason.”

       Baker argues that the district court erred by “completely dismiss[ing] the opinions

of Plaintiff’s treating physicians[,] all of whom had been treating and clinically

evaluating Mr. Baker for years . . . and therefore were in the best position to attest to and

observe the cognitive decline.”9 Far from ignoring the opinions of Baker’s treating

physicians, however, the court considered their opinions but rejected them because none

of Baker’s doctors specialized in cognitive care. Accordingly, the court found Sun Life

could appropriately credit the opinions of its experts over Baker’s because “the treating

physicians . . . did not specialize in cognitive functioning and they did not provide


6
  Baker v. Sun Life & Health Ins. Co., No. 13-1445, 2015 WL 12880571 at *7 (D.N.J. Feb. 4,
2015).
7
  Id. at *2.
8
  Id. at *3.
9
  Appellant Br. at 22.

                                              3
sufficient support for their conclusions regarding [Appellant’s] alleged cognitive

decline.”10

       Baker also contends that the court erroneously accepted the conclusions of Sun

Life’s expert Dr. Barr, who allegedly “issued a report which was fundamentally

inconsistent with the results of his own neuropsychological testing.”11 However, the court

considered Baker’s experts’ contrary conclusions,12 but neither Sun Life nor the district

court was required to credit these opinions over those of the insurer.13 As the court noted,

Dr. Barr, a neuropsychologist, performed testing on Baker and concluded that Plaintiff

showed no signs of cognitive impairment.14 Dr. Barr’s conclusions were supported by Dr.

Ross, also a neuropsychologist, who concluded that, based on “neuropsychological

evaluations and [Dr. Barr’s] raw data,” Baker’s cognitive test results were “consistent

with generally intact cognitive functioning[,] . . . [which] would not translate into a

permanent chronic impairment.”15 The district court concluded that Sun Life’s reliance

on these opinions was reasonable.



10
   Baker, 2015 WL 12880571 at *7.
11
   Appellant Br. at 20.
12
   See, e.g., Baker, 2015 WL 12880571 at *7 (considering but declining to credit the report of
Appellant’s expert Dr. Carnevale).
13
   Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003) (“[C]ourts have no warrant
to require administrators automatically to accord special weight to the opinions of a claimant’s
physician; nor may courts impose on plan administrators a discrete burden of explanation when
they credit reliable evidence that conflicts with a treating physician’s evaluation.”).
14
   Baker, 2015 WL 12880571 at *8.
15
   Id. Appellant’s expert Dr. Carnevale conducted a neurological examination on Baker and
concluded that Baker had chronic cognitive impairments. Id. at *7. However, Dr. Carnevale’s
conclusions were in turn called into question by Dr. Pier, another neuropsychologist, who found
that Dr. Carnevale did not assess effort and validity in his evaluation. Id.

                                               4
       Baker also argues that the district court failed to adequately consider Sun Life’s

conflict of interest. This contention is also without merit. The district court began its

analysis by acknowledging Sun Life’s conflict of interest as Sun Life both administered

and paid the Plan benefits.16 The court appropriately considered the conflict as one factor

in its decision,17 but concluded that Baker did not demonstrate a “sufficient causal link

between Sun Life’s financial incentives . . . and Plaintiff’s denial of benefits.”18

       Baker’s contention that the district court violated federal rule of civil procedure 56

by failing to draw all reasonable inferences in favor of the non-moving party also fails.

Under ERISA, we have explained that the arbitrary and capricious standard mandates that

the claim determination is affirmed if it is supported by “substantial evidence.”19 The

Plan administrator’s determination “will not be disturbed if reasonable.”20 The district

court analyzed the bases for Sun Life’s determination and found that Sun Life had

substantial evidence for its determination.21 Moreover, Sun Life’s expert’s opinions were

not the sole basis of its decision. Sun Life and the district court also relied on the results

of Sun Life’s investigation which showed that Baker was performing job functions:


16
   Id. at *7.
17
   Id. The district court correctly acknowledged “[i]f a ‘benefit plan gives discretion to an
administrator or fiduciary who is operating under a conflict of interest, that conflict must be
weighed as a factor in determining whether there is an abuse of discretion.’” Id. (citing Firestone
Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115); see also Metro. Life Ins. Co. v. Glenn, 554
U.S. 105, 115 (2008) (concluding that “a conflict should be weighed as a factor” in evaluating
ERISA claim) (internal quotations omitted).
18
   Baker, 2015 WL 12880571 at *7.
19
   Doroshow, 574 F.3d at 234.
20
   Mitchell v. Eastman Kodak Co., 113 F.3d 433, 437 (3d. Cir. 1997) (quoting Firestone, 489
U.S. at 114).
21
   Baker, 2015 WL 12880571 at *8.

                                                 5
visiting “Dunkin’ Donuts locations for two or more hours at a time, while carrying a

binder, standing behind the counter, and having discussions with employees.”22 A

Dunkin’ Donuts employee also indicated that Baker had been performing other job

functions.23

       Finally, Baker argues that the decision to deny partial disability benefits deprived

him of a full and fair review. The partial disability provision of Baker’s policy provides

that, after 24 months, a claimant will be considered “Partially Disabled” only if: he or she

is both “unable to perform the duties of Any Occupation; and [he or she is] performing at

least one of the material duties of [his or her] Regular or Any Occupation on a Full-time

Basis or Part-time Basis.”24 The court concluded that because the first condition was not

met – namely, because Sun Life found that Baker was not “unable to perform the duties

of Any Occupation” – he was not eligible for partial disability payments.25 The district

court’s reasoning is sound.

                                                   II.

       For the reasons stated above we will affirm the court’s grant of summary judgment

to Sun Life.




22
   Id. at *7.
23
   Id. “During this time, Dunkin’ Donuts employees indicated that Plaintiff was working either
from home, the stores, or on the road.” Id.
24
   Id. at *8.
25
   Id.
                                               6
