           Case: 15-15586   Date Filed: 07/01/2016    Page: 1 of 18


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-15586
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 8:15-cv-00716-JSM-EAJ



RASSEKH SOBH,

                                                Plaintiff - Appellant,

versus

HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY,
a Foreign Corporation,

                                                Defendant - Appellee.

                       ________________________

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

                               (July 1, 2016)

Before HULL, MARCUS, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      This is an appeal from the entry of summary judgment in an action for long-

term disability benefits pursuant to the Employee Retirement Income Security Act

of 1974, 29 U.S.C. § 1001, et seq. (“ERISA”). Plaintiff-Appellant Rassekh Sobh

brought suit in the district court to obtain reversal of Defendant-Appellee Hartford

Life and Accident Insurance Company’s (“Hartford”) decision, as a claim

administrator for an employee welfare benefit plan, to discontinue benefits. After

consideration, we affirm the district court’s entry of summary judgment in favor of

Hartford.

                                         I.

      Sobh worked for JPMorgan Chase Bank (“Chase”) as a Technical

Operations Lead and had long-term disability coverage as a participant in an

employee welfare benefit plan (“the Plan”) sponsored by Chase. The Plan was

funded by an insurance policy (“the Policy”) issued to Chase by Hartford, which

served as a claim administrator for the Plan. Under the terms of the Plan, Hartford

“has full discretion and authority to determine eligibility for benefits and to

construe and interpret all terms and provisions of the Group Insurance Policy.”

                                        A.

      The Policy makes long-term disability benefits payable to a participant who

becomes disabled while covered by the Policy, where that participant supplies

satisfactory proof of disability to Hartford. As relevant here, the Policy defines


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“disabled” as occurring when, for the first twenty-four months, the employee is

unable to perform one or more of the essential duties of his own occupation; after

the first twenty-four months, in order for the employee’s eligibility for benefits to

continue, the employee must be unable to perform the essential duties of any

occupation. “Any occupation,” in turn, is defined as “an occupation for which [the

insured is] qualified by education, training, or experience” with a specified

minimum earnings potential.

      But long-term disability coverage is available to active employees only, and

coverage terminates on the date the employee ceases to be considered an active

employee. Once an employee receives long-term disability benefits, those benefits

terminate at the occurrence of the first of certain possible events, including, among

others, the date the employee is no longer disabled or the failure of the employee to

supply requested proof of disability.

                                         B.

      Before claiming disability, Sobh was employed by Chase as a Technical

Operations Lead—a sedentary position that required sitting most of the day—until

he stopped working as of August 5, 2009, due to back pain. On November 24,

2009, Sobh underwent back surgery. Orthopedic surgeon Joseph Dryer, M.D.,

Sobh’s treating physician, performed the operation.




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      On January 14, 2010, Sobh applied for long-term disability benefits under

the Policy. Based on medical information that it received, Hartford found Sobh

disabled under the Policy and approved his long-term disability claim, with

benefits effective February 3, 2010.

      On three occasions between March 24, 2010, and March 11, 2011, Dr. Dryer

examined Sobh and reported his findings to Hartford. Each time, based on Dr.

Dryer’s findings, Hartford concluded that it was “reasonable” that Sobh could not

“perform frequent sitting” or return to work. As a result, Hartford continued to

fund benefits for Sobh.

      On July 19, 2011, Sobh underwent another surgery.          Again, Dr. Dryer

performed the surgery.

      In 2012, Sobh applied for Social Security disability benefits citing his back

injuries as proof of disability.       The Social Security Administration (“SSA”)

approved Sobh’s request for disability benefits on January 13, 2012.

      Sobh received long-term disability benefits under the Plan, but as of

February 3, 2012, when the initial two-year benefit period expired, Sobh was

required to prove that he was unable to perform the essential duties of any

occupation, not just his occupation, in order to continue receiving benefits.

Towards this end, on August 9, 2012, Hartford sent Dr. Dryer a questionnaire

seeking information regarding Sobh’s current medical and functional status,


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together with a request for updated treatment records.                 Although Dr. Dryer

completed and returned the questionnaire, stating that Sobh was “unable to work at

any job” and was “permanently disabled,” Dr. Dryer did not supply any updated

treatment records to Hartford.          Following several requests with no response,

Hartford terminated Sobh’s benefits effective January 1, 2013, for failure to

provide requested proof of his ongoing disability. Hartford notified Sobh of its

decision in correspondence dated December 31, 2012.

      A few weeks later, however, after receiving the requested records from Dr.

Dryer on January 22, 2013, Hartford reinstated Sobh’s benefits on the basis that the

“medical evidence on file continues to support an inability to perform occupational

duties of even a sedentary nature at this time.” Another year passed with Sobh

receiving benefits.

                                              C.

      In January 2014, at Hartford’s request, an investigative firm conducted video

surveillance of Sobh. In the surveillance, which was taken over two days, Sobh

spent 45 minutes and 55 minutes, respectively, in a gym located in his residential

community clubhouse. According to the surveillance, each day, Sobh walked to

the clubhouse, displaying no visible impairment and without the use of any

assistive devices.1 Hartford forwarded the video surveillance to Dr. Dryer with a


      1
          The surveillance video, however, does not depict Sobh inside the gym.
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request for his assessment of Sobh’s functional capacity in light of the videos, but

Hartford received no response, despite several follow-up requests.

       Hartford also arranged for William Dinenberg, M.D., board certified in

orthopedic surgery, to conduct an independent medical examination of Sobh. In

addition to his examination of Sobh, Dr. Dinenberg reviewed Sobh’s medical

records and the surveillance video. On April 18, 2014, he reported that Sobh was

“capable of employment” that involved sitting for no greater than twenty minutes

at a time, and for up to six hours total in an eight-hour workday with frequent

positional changes. Dr. Dinenberg also opined that Sobh could stand for an hour

and walk for an hour in an eight-hour work day.                      Hartford forwarded Dr.

Dinenberg’s report to Dr. Dryer on May 1, 2014, with a request for his comments

regarding Dr. Dinenberg’s findings. Dr. Dryer did not respond.

       On June 6, 2014, Hartford conducted an Employability Analysis using a

computer program called the “Occupational Access System.” 2 Hartford concluded

that five sedentary managerial occupations were suitable for Sobh based on his

qualifications and the physical capabilities described by Dr. Dinenberg.




       2
         Hartford describes this system as “a computerized job-matching program that cross-
references an individual’s capabilities and qualifications with 12,791 occupations as classified by
the United States Department of Labor’s Dictionary of Occupational Titles.”
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                                         D.

       Hartford notified Sobh of its decision to terminate benefits effective June 17,

2014, because it concluded, based on the information from Dr. Dinenberg, the lack

of response from Dr. Dryer, and the Employability Analysis, that Sobh had become

capable of performing an “occupation.”         In the notice, Hartford specifically

acknowledged Sobh’s receipt of Social Security disability benefits and noted that it

is possible to qualify for such benefits without continuing to qualify for private

long-term disability benefits from Hartford.       The notice also explained why

Hartford reached a different conclusion than the Social Security Administration

regarding disability benefits.

       Sobh appealed the benefits termination decision on August 25, 2014,

stressing that his injury was “a chronic condition” that rendered him “totally and

completely disabled.” Additionally, he emphasized his receipt of Social Security

disability benefits as alleged evidence of his continuing eligibility for long-term

disability benefits under the Policy. Significantly, though, Sobh did not claim to

be disabled by any alleged cognitive impairment arising from medication side

effects.

       In response to Sobh’s appeal, Hartford sought an independent peer review,

which Dr. James Boscardin, M.D., board certified in orthopedic surgery,

conducted. In connection with his review, Dr. Boscardin also consulted with Dr.


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Dryer on October 27, 2014, over the telephone. Dr. Dryer “expressed the opinion

that . . . Sobh was capable of a fulltime sedentary position with sitting restricted to

one hour at a time.” Dr. Dryer also indicated that Sobh did not appear to have any

issues with his long-standing use of medications. Following his review of the

medical records and surveillance video, Dr. Boscardin concurred with Dr. Dryer

that Sobh was “capable of a sedentary level of activity,” sitting up to one hour at a

time and lifting no more than ten pounds. Dr. Boscardin provided this opinion on

November 17, 2014.

      Then, on November 23, 2014, Hartford performed another Employee

Analysis based on the restrictions and limitations recommended by Dr. Boscardin

and agreed to by Dr. Dryer. The five previously identified sedentary occupations

were again deemed appropriate for Sobh to perform. Two days later, by letter

dated November 25, 2014, Hartford notified Sobh of its decision to uphold on

appeal the termination of benefits effective June 17, 2014. In its letter, Hartford

again expressly acknowledged Sobh’s Social Security disability award and

explained that the receipt of benefits from Hartford is determined under a different

definition of disability than that used by the Social Security Administration.

Additionally, Hartford explained that it had accounted for key evidence that was

not considered by the Social Security Administration in 2012, such as the

surveillance material and the fact that “Sobh’s treating physician, Dr. Dryer,” had


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confirmed agreement that Sobh retained “the capacity to perform full-time

sedentary work.”

      Two months later, on January 15, 2015, Sobh, through his counsel, provided

Hartford with a report from Dr. Dryer dated January 9, 2015. Sobh’s counsel

indicated that there were “significant new findings that have led Dr. Dryer to

conclude that . . . Sobh is now disabled from any type of employment.” While

counsel acknowledged that Dr. Dryer’s “prior conclusion was that . . . Sobh could

perform a sedentary job with sitting restricted to one hour at a time,” he noted that

Dr. Dryer “has now found him to be totally disabled.” Based on Dr. Dryer’s more

recent report, Sobh’s counsel requested that Hartford “withdraw its prior denial

and resume the payment of Sobh’s long-term disability benefits immediately.” In

the report attached to counsel’s letter, Dr. Dryer acknowledged his October 27,

2014, telephone conversation with Dr. Boscardin in which he stated that Sobh was

“capable of a fulltime sedentary position.” But Dr. Dryer explained that, given his

new findings, his opinion had “changed” and that “Sobh is disabled from any type

of employment.”

      Hartford forwarded Dr. Dryer’s January 9, 2015, report to Dr. Boscardin,

who reviewed it and conferred with a staff member from Dr. Dryer’s office over




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the telephone.3 In an addendum dated February 4, 2015, Dr. Boscardin advised

Hartford that the restrictions provided in his previous report remained applicable

for the period of June 17, 2014, through January 9, 2015. In this regard, Dr.

Boscardin reiterated his belief that Sobh was capable of full-time sedentary work

from June 17, 2014, through January 9, 2015. But Dr. Boscardin agreed that Sobh

was “precluded from sedentary function” after January 9, 2015.

       On February 16, 2015, Hartford advised Sobh that the decision to terminate

his long-term disability benefits effective June 17, 2014, remained unchanged.

Hartford acknowledged the opinions of Dr. Boscardin and Dr. Dryer that Sobh was

precluded from sedentary work as of January 9, 2015. But Hartford emphasized

that both doctors agreed that Sobh was able to perform full-time sedentary work

between June 17, 2014, and January 9, 2015. Accordingly, Sobh did not meet the

definition of “disabled” during that timeframe, and his benefits were properly

terminated. And because Sobh was no longer covered by the Policy on January 10,

2015, since he was not employed by Chase at that time, he was not entitled to

benefits.

                                              II.

       3
         An issue of fact exists as to whether the person with whom Dr. Boscardin spoke on the
phone was a nurse or a medical secretary. Hartford has moved to strike the portions of the reply
brief where this reference is made. Similarly, Sobh has moved for the Court to take judicial
notice of the website LinkedIn to establish that the person with whom Dr. Boscardin spoke was a
medical secretary, not a nurse. The distinction makes no difference to our analysis, so we
DENY both motions.
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      Sobh filed suit against Hartford, challenging Hartford’s decision to terminate

his long-term disability benefits. In his complaint, Sobh asserted a claim that the

termination decision was de novo wrong, that the decision was unreasonable in

light of Hartford’s alleged conflict of interest, and that the case should be

remanded to the administrator.

      Hartford and Sobh each moved for summary judgment on all claims. The

district court granted summary judgment to Hartford and denied summary

judgment to Sobh.       Sobh now appeals all adverse summary-judgment rulings

against him.

                                           III.

      We review a district court’s grant of summary judgment de novo, applying

the same standard used by the district court. Blankenship v. Metro. Life Ins. Co.,

644 F.3d 1350, 1354 (11th Cir. 2011). The review of an ERISA benefits decision

is “limited to consideration of the material available to the administrator at the time

it made its decision.” Id.

      We use a six-step test to review a plan administrator’s benefits decision:

               (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
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             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).

             (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.

Id. at 1355 (citing Capone v. Aetna Life Ins. Co., 592 F.3d 1189, 1195 (11th Cir.

2010).

      The parties do not dispute that the Plan vests Hartford with discretion. In

this regard, the Plan states, “We have full discretion and authority to determine

eligibility for benefits and to construe and interpret all terms and provisions of the

Group Insurance Policy.” Because Hartford both funded and administered the

Policy, the district court concluded correctly that the heightened arbitrary-and-




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capricious 4 standard of review applied if, after de novo review, it determined that

the claim administrator’s benefits-denial decision was wrong. See Metro. Life Ins.

Co. v. Glenn, 554 U.S. 105, 128 S. Ct. 2343 (2008) (where plan administrator is

itself a professional insurance company, a conflict of interests exists); Blankenship,

644 F.3d at 1355.

       As noted above, however, when we agree with the decision of the

administrator, we need not decide whether a conflict exists.                Only when we

disagree with the decision to deny benefits do we look for a conflict, and when we

find one, we reconsider the decision in light of this conflict. See Maracek v.

BellSouth Telecomm., Inc., 49 F.3d 702, 705 (11th Cir. 1995); Blankenship, 644

F.3d at 1355.

                                             IV.

       We begin by undertaking a de novo review of the administrator’s decision to

determine whether the administrator’s benefits denial was wrong. “A decision is

wrong if, after a review of the decision of the administrator from a de novo

perspective, the court disagrees with the administrator’s decision.”              Glazer v.

Reliance Standard Life Ins. Co., 524 F.3d 1241, 1246 (11th Cir. 2008) (citation and

internal quotation marks omitted).

       4
        We equate the arbitrary-and-capricious standard with the abuse-of-discretion standard.
Doyle v. Liberty Life Assurance Co. of Boston, 542 F.3d 1352, 1356, n.1 (citing Jett v. Blue
Cross & Blue Shield of Ala., Inc., 890 F.2d 1137, 1139 (11th Cir. 1989)).

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      Under ERISA, Sobh has the burden of proving his entitlement to contractual

long-term disability benefits. See Horton v. Reliance Standard Life Ins. Co., 141

F.3d 1038, 1040 (11th Cir. 1998). Sobh must show that he was “disabled” within

the meaning of the Plan at the time benefits were terminated to demonstrate that

Hartford’s decision was “wrong.” See Glazer, 524 F.3d at 1247.

      As we have noted, under the Plan’s definition of “disabled,” to receive long-

term disability benefits during the initial twenty-four months, a participant must

demonstrate that he is unable to perform his own occupation. For a participant to

continue receiving benefits after this initial twenty-four-month period, however, he

must show that he cannot perform any occupation. Here, the initial twenty-four-

month period is not relevant because Sobh applied for and received those benefits.

Rather, we focus our analysis on whether Sobh could perform any occupation

following the initial twenty-four month period—the period following February 3,

2010. Here, we look to whether Sobh could perform any occupation as of June 17,

2014, when Hartford terminated his benefits.

      Hartford based its June 17, 2014, termination of benefits primarily on an

independent medical examination that Dr. Dinenberg conducted in April 2014.

Hartford did not arrange for Dr. Dinenberg’s examination of Sobh until after Dr.

Dryer failed to respond to Hartford’s request for an updated assessment of Sobh’s

functionality in light of the videotape surveillance of Sobh. We find no error in


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Hartford’s reliance on Dr. Dinenberg’s conclusion that Sobh had the capacity to

engage in full-time work, particularly in light of the surveillance video and Dr.

Dryer’s lack of response. See Blankenship, 644 F.3d at 1356 (administrator acted

reasonably in relying on independent medical opinions).

      And, although Hartford was entitled to rely on Dr. Dinenberg’s report, we

note that Hartford made yet another attempt to obtain Dr. Dryer’s input before

terminating benefits. More particularly, Hartford provided Dr. Dryer with Dr.

Dinenberg’s report and again requested his comments regarding Sobh’s capability

to perform work. Once again, though, Dr. Dryer did not respond. Hartford also

conducted an Employability Analysis, finding that Sobh could be employed in five

managerial positions.

      Here, Sobh’s assertion that Hartford disregarded his treating physician’s

opinion in favor of Dr. Dinenberg’s is simply not supported by the record. The

record demonstrates that Hartford did accord Dr. Dryer’s opinion weight. Hartford

relied on Dr. Dryer’s opinion as a basis for awarding Sobh benefits for many years.

Hartford turned to an independent physician only when Dr. Dryer failed to respond

to repeated requests for information.     ERISA claim administrators “need not

accord extra respect to the opinions of a claimant’s treating physicians,” but rather

may credit “independent medical opinions” instead. Blankenship, 644 F.3d at

1356. Under the terms of the Policy, Hartford could terminate benefits if requested


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proof of disability was not provided. Here, the lack of response from Dr. Dryer, in

conjunction with the surveillance video, the opinion of Dr. Dinenberg, and the

Employability Analysis sufficiently substantiated Hartford’s decision to terminate

Sobh’s benefits.

       Moreover, even after Hartford ended Sobh’s benefits, after Sobh appealed

Hartford’s decision, Dr. Dinenberg reached out to Sobh’s treating physician, Dr.

Dryer to obtain his opinion with respect to Sobh’s abilities. Significantly, when

Dr. Dinenberg spoke to Dr. Dryer in October 2014, Dr. Dryer agreed that Sobh

was able to perform sedentary work. So when Hartford issued its final decision in

November 2014, it relied on the opinions of Sobh’s treating orthopedic surgeon,

Dr. Dryer, and a board-certified independent medical consultant, Dr. Boscardin.

Both doctors agreed that Sobh was capable of full-time sedentary work in

October/November 2014.5          In light of this evidence, we find no error in the

administrator’s decision to terminate benefits. At the latest, Sobh was no longer

disabled as of October/November 2014, and Hartford properly discontinued his

benefits.

       Because Sobh was able to perform sedentary work as of the Fall 2014, his

reliance on Dr. Dryer’s January 2015 opinion cannot help him reestablish disability

benefits. We recognize that Dr. Dryer reported “significant new findings” that

       5
        Dr. Dryer expressly confirmed, both verbally and in writing, that he considered Sobh to
be “capable of a full-time sedentary position” on October 27, 2014.
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“changed” his opinion as to Sobh’s disability. But in his January 2015 report, Dr.

Dryer acknowledged his prior conclusion that Sobh could perform a sedentary job.

The Policy specifically provides that Sobh’s long-term disability benefits would

continue only while he remained both disabled and eligible for benefits. The fact

that Sobh became disabled again as of January 9, 2015, does not change the fact

that his disability coverage terminated, at the latest, in November 2014. And

because Sobh’s benefits were properly terminated in 2014, he was not eligible

under the Plan in January 2015, when he became disabled again, since he was no

longer employed by Chase. Under these facts, we find Hartford’s termination

decision was not de novo wrong. We therefore affirm the district court’s decision

upholding Hartford’s denial of benefits.

       Finally, the fact that the Social Security Administration granted disability

benefits to Sobh in 2012 does not alter our conclusion. First, the determination of

“disability” under the Plan differs in significant respects from the framework that

the Social Security Administration applies when it considers whether an individual

is disabled. 6 Second, the circumstances that caused Hartford to conclude that Sobh

was no longer disabled did not occur until two years after the Social Security

Administration’s determination. The Social Security Administration did not have
       6
        Unlike ERISA claim administrators, whose disability assessments are governed by plan
documents, the Social Security Administration employs a highly particularized, five-step
“sequential evaluation process” prescribed by federal regulations. See 20 C.F.R. § 404.1520(b)-
(g).

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before it at the time it made its disability determination, the surveillance video

recordings or Sobh’s treating physician’s opinion that Sobh was able to perform

sedentary work. Accordingly, the Social Security Administration’s determination

from over two years earlier is of little consequence. Compare Melech v. Life Ins.

Co. of N. America, 739 F.3d 663 (11th Cir. 2014).

                                       V.

      For all of these reasons, we affirm the district court’s order granting

Hartford’s motion for summary judgment. We also affirm the district court’s

denial of Sobh’s motion for summary judgment.

      AFFIRMED.




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