                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 15a0650n.06

                                           No. 14-2188

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                                                FILED
VICKI KONING,                                        )                    Sep 24, 2015
                                                     )                DEBORAH S. HUNT, Clerk
                                                     )
       Plaintiff – Appellant,                        )
                                                     )
v.                                                   )    ON APPEAL FROM THE UNITED
                                                     )    STATES DISTRICT COURT FOR
UNITED OF OMAHA LIFE INSURANCE                       )    THE WESTERN DISTRICT OF
COMPANY,                                             )    MICHIGAN
                                                     )
Defendant – Appellee.                                )
                                                     )
___________________________________                                       OPINION


       Before: ROGERS and McKEAGUE, Circuit Judges; SARGUS, District Judge*

       SARGUS, District Judge. Plaintiff Vicki Koning sued defendant United of Omaha Life

Insurance Company (“the Plan”), alleging that the Plan denied her claim for long-term disability

(“LTD”) benefits in violation of the Employee Retirement Income Security Act of 1974, 29

U.S.C. § 1132(a)(1)(B), (“ERISA”). The district court granted summary judgment to the Plan,

finding the Plan had properly denied Koning benefits. Because the Plan did not properly

consider Koning’s appeal in the first instance, we remand to the district court with instructions to




*
 The Honorable Edmund A. Sargus, Jr., Chief United States District Judge for the Southern
District of Ohio, sitting by designation.
No. 14-2188, Konig v. United of Omaha Life Ins. Co.


remand to the Plan for appropriate consideration of Koning’s claim in accordance with this

opinion.1

                                      I.      BACKGROUND

       Koning is a 53-year-old woman who was employed as the Human Resources Manager

for American Metal & Plastics, Inc., in Grand Rapids, Michigan, until she stopped working as a

result of chronic neck and back pain. Koning was covered under the Plan, which served as the

provider of group long term disability insurance for American Metal & Plastics, Inc.

(“American”).

       A. Medical History

       The administrative record shows that Koning’s leg and back pain began in 1999, and

despite progressive treatments including anti-inflammatory medications, courses of physical

therapy, nerve-blocks, and spinal surgeries, her back pain ultimately was not resolved, and in

time she also experienced neck pain of her cervical spine in addition to lumbar back pain.

A recitation of her medical issues follows.

       In 1999, while in her late thirties, Ms. Koning was a hairdresser, and owned a beauty

shop. She underwent spine surgery on her lower back in 2002. 2 In June, 2004, she was referred

to Dr. John Ehlert, an orthopaedic and spinal surgeon, for a spinal consultation “regarding

problems of lower back pain and bilateral, right greater than left, leg pain.” After examining her

MRI scan, Dr. Ehlert opined that she had a herniated L4-5 disc, and a herniation of the L5-

S1disc. He explained various treatment options, and she started with a non-surgical treatment

option, taking a high-dose anti-inflammatory medication and stopping physical therapy. Dr.



1
  We do not address or resolve defendant’s pre-existing conditions defense raised by the Plan
below but not addressed by the district court.
2
  The record does not clearly establish the precise date or nature of the procedure.
                                                2
No. 14-2188, Konig v. United of Omaha Life Ins. Co.


Ehlert explained that “she has a degenerative disc at this level and another below and with a

central disc herniation the risk of recurrent disc herniation is higher and there are long term

complications.” He recommended a Medrol Dose Pak followed up by Celebrex, and then a re-

evaluation. If the medication did not help, he recommended an epidural, and if those treatments

failed, her recommended surgical intervention. (R. 13-3, PageID 151-53).

         On September 24, 2004, Ms. Koning was referred to the Holland Community Hospital

Pain Management Center for a consultation with Dr. Keith Javery, regarding "a 4-year history of

persistent back pain, frequent lower extremity pain, right worse than left, down the lower

extremities as well as neck pain and right arm pain.” (R. 13-5, PageID 403). Dr. Javery noted

that she “demonstrated significant range of motion difficulties both actively and passively. She

had positive facet provocative testing throughout the neck at C3 to C7 and throughout the lumbar

spine at L2 to L5 bilaterally.” He was able to reproduce her chief complaint with “disc loading

maneuvers,” and then administered an epidural treatment to her spine.          Because the “disc

provocative testing” remained “quite positive” he suggested continuation of the epidural

injection therapy. The second treatment was not as successful in treating her pain. Dr. Javery

referred her to Dr. Lowry for a surgical consultation. Dr. Lowry was not in her insurance group,

and her insurance company directed her to Dr. Jurgen Luders. (R. 13-5, Page ID 404-410).

         On January 25, 2005, at age 42, Ms. Koning had surgery for her herniated discs. Dr.

Luders performed a lumbar laminectomy.3 He found that “[i]maging demonstrated a very large




3
    The Mayo Clinic discusses the effect of a laminectomy:

         Most people report measurable improvement in their symptoms after
         laminectomy, but the benefit may lessen over time as the spine continues to age or
         if there is a recurrence of arthritis. Laminectomy is more likely to improve leg
         pain caused by a compressed nerve than back pain. Because laminectomy can't
                                                 3
No. 14-2188, Konig v. United of Omaha Life Ins. Co.


L4-5 central herniated disk causing significant compression of the thecal sac and a left

paracentral L5-S1 herniated disk.” Dr. Luders removed “a very large disk fragment” at the L4-5

level. “A diskectomy was performed on the left side at L5-S1 in the same manner.” (R. 13-2,

PageID 167). The surgery provided relief, and Ms. Koning returned to work. On August 18,

2005, she returned to Dr. Luders for a follow-up visit, and for pain radiating up into the area

above her right ear. Dr. Luders performed a nerve block in the office. (R. 13-5, PageID 359).

Ms. Koning found she could no longer be on her feet as a hairdresser, and she modified her

position to manager of the salon. Ultimately, on December 16, 2006, Ms. Koning took a position

as the Human Resources Manager at American Metal & Plastics. From 2006 through 2012, Ms.

Koning performed her job as Human Resources Manager. On July 10, 2012, she stopped

working due to back pain and physical limitations and began receiving short term disability

benefits.

       B.     Dr. Fitzgerald’s medical opinion of disability

       From 1999, when Koning was in her late thirties, to 2013, when Koning was in her early

fifties, her pain continued to require management, her back condition continued to deteriorate,

and she began to experience neck pain.       From 2004 on, she was treated at the Holland

Community Hospital Pain Management Center by Dr. Keith Javery, and then by his partner, Dr.

Kevin Fitzgerald. After years of increased pain and physical limitations, she was ultimately

deemed disabled by her treating physician, Dr. Kevin Fitzgerald.

       She applied for short-term disability benefits, which United paid up to January 11, 2013.

On January 31, 2013, Dr. Fitzgerald completed a “Physician’s Statement” indicating a primary


       stop the buildup from osteoarthritis that caused the nerve compression in the first
       place from happening again, symptoms may come back over time.

See www.mayoclinic.org/tests.../laminectomy/.../results/prc-2000
                                               4
No. 14-2188, Konig v. United of Omaha Life Ins. Co.


diagnosis of lumbar radiculopathy, with symptoms of back and lower extremity pain, based on

the objective findings of “disc degeneration and bulging discs” with a secondary contributing

condition of lumbar degenerative disc disease and lumbar spondylosis. He restricted her from all

work through March 11, 2013, when she would be re-evaluated. (R. 17-1, Page ID 1224). On

April 15, 2013, the Plan denied Ms. Koning’s claim, stating in its letter of denial that the medical

documentation on file “does not support restrictions and limitations that would preclude you

from performing the material duties of your regular occupation as a human resources manager.”

(R. 15-2, PageID 701).

       Meanwhile, Dr. Fitzgerald ordered a functional capacity evaluation (FCE), which was

performed by a physical therapist on April 3, 2013. (R. 15-2, PageID 728 through R. 15-3,

PageID 764). The physical therapist used the Physical Demand Characteristics of Work chart,

Light (PDL) to evaluate her ability to do her predominantly sedentary office job,4 opining that

Koning’s “tolerance for dynamic sitting is 30 minutes, dynamic standing 10 minutes/standing

5 minutes and walking 10 minutes, sitting with ability to change positions as needed and walking

at her own pace.” (R. 15-2, PageID 733). In his General Neurological Comments, he noted that

Ms. Koning had “Wide spread pain, poor tensed posture, muscle tension and fatigue, restricted

ROM [range of motion], diffuse right sided weakness, disturbed gait, chronic headaches, de-

conditioning, poor tolerance to ADLs [activities of daily living].” (R. 15-3, PageID 757).

He also posited that “[p]ossible fear of re-injury may be affecting the test results.” (R. 15-3,

PageID 757).




4
 “Sedentary work involves sitting most of the time, but may involve walking or standing for
brief periods of time.” (R. 15-4, PageID 840).
                                                 5
No. 14-2188, Konig v. United of Omaha Life Ins. Co.


       C. Disability Plan

       The Plan provides for an initial 180-day “elimination period” during which LTD benefits

will not be paid to a disabled person under the policy. During the elimination period, American

is self-funded for short-term disability benefits and pays them on a weekly basis. American paid

short-term disability payments to Koning in their available entirety up until January 11, 2013.

After the short-term disability benefits run out, an employee may be eligible for LTD benefits.

To be eligible for such benefits, an employee must have, because of “an injury or sickness, a

significant change in . . . mental or physical functional capacity” such that she is “prevented from

performing at least one of the material duties of [her] regular occupation on a part-time or full-

time basis . . . .” (R. 13-1, PageID 73). After a benefit has been paid for 24 months, the

definition of “disability and disabled” means “you are unable to perform all of the material duties

of any gainful occupation. Disability is determined relative to your ability or inability to work.

It is not determined by the availability of a suitable position with your employer.” (Id.).

The Plan reads as follows:

       Definition of Disability: Disability and Disabled means that because of an Injury
       or Sickness, a significant change in Your mental or physical functional capacity
       has occurred in which You are:

      Prevented from performing at least one of the Material Duties of Your Regular
       Occupation on a part-time or full-time basis; and

      Unable to generate Current Earnings which exceed 99% of Your Basic Monthly
       Earnings due to that same Injury or Sickness.

       After a Monthly Benefit has been paid for 24 months, Disability and Disabled
       mean You are unable to perform all of the Material Duties of any Gainful
       Occupation. Disability is determined relative to Your ability or inability to work.
       It is not determined by the availability of a suitable position with your employer.

(RE 13-1, Page ID # 73).




                                                 6
No. 14-2188, Konig v. United of Omaha Life Ins. Co.


       The Plan may “sometimes require that a claimant be examined by a Physician or

vocational rehabilitation expert of our choice,” but will “not require more than a reasonable

number of examinations.”      (Id., at PageID 96).     The Plan provides for an “Initial Claims

Decision” by the Plan, and an administrative appeal to the Plan from an “Adverse Benefit

Determination.”    (R. 13-1, PageID 97-99).         In deciding an appeal based on a “medical

judgment,” consultation will be made with “a health care professional” with “appropriate

training in the field of medicine involved” in the judgment. (Id., at PageID 99).

       D. Short-Term Disability Benefits

       Ms. Koning applied to the Plan for short-term disability benefits after she was determined

by her physician, Dr. Kevin Fitzgerald, a board-certified anesthesiologist, to be medically unable

to work.5 Her last day worked was July 10, 2012, and she was granted benefits up to January 11,

2013. (R. 16-2, PageID 1168). When these benefits expired, Koning applied for LTD benefits,

and included in her application a “Physician’s Statement” from Dr. Fitzgerald, placing her “off

work” through “3-11-13” and with a “prognosis for recovery” of “unknown – will evaluate next

appointment.” (R. 17, PageID 1223-24). Her employer, American, confirmed to the Plan that

Koning was off work on “doctor’s orders.” (R. 17, PageID 1227-28). In its “Long-Term

Disability Claim Employer’s Statement,” American stated that Ms. Koning had been “given

remote access and worked from home sometimes” in answer to the question of whether there

were “any changes to the employee’s job responsibilities due to the disabling condition before

the employee became fully disabled.” In response to the question of “[h]ow long will the

employee’s job be held open?” the response was “no time – position must be filled



5
 The administrative record (“R.”) is filed under seal, and consists of R. 13 (Page ID 59-414); R.
14 (Page ID 415-623); R. 15 (Page ID 624-904); R. 16 (Page ID 905-1214); and R. 17 (Page ID
1215-1257).
                                                7
No. 14-2188, Konig v. United of Omaha Life Ins. Co.


immediately.” (R. 17-1, PageID 1226-27). Ms. Koning’s employment was terminated when her

short-term disability ended on January 18, 2013. (R. 16-5, Page ID 1187).

       E. Long-Term Disability Benefits

       When her short-term disability benefits expired, Koning filed with the Plan all of the

documents necessary to perfect her application for LTD benefits under the Policy, including the

“Long-Term Disability Claim Physician’s Statement” signed by Dr. Fitzgerald on January 31,

2013, (R. 17-1, PageID 1223-1224); the “Long-Term Disability Claim Employer’s Statement”

and “Job Analysis” signed by American’s representative on January 16, 2013, (R. 17-1, PageID

1226-1228); the “Long-Term Disability Claim Employee’s Statement” signed by Koning on

January 18, 2013, (R. 17-1, PageID 1230-1231); and hundreds of pages of medical records

detailing back surgeries, physical therapy, and numerous pain treatment programs. On April 15,

2013, a member of the Plan’s “Group Insurance Claims Management,” wrote to Koning advising

her “we have determined that we are unable to approve benefits and your claim has been

denied.” (R. 15, PageID 694-703). The letter based the denial primarily on a “review” by an

unnamed “Medical Consultant” performed March 6 and March 19, 2013, and an “Occupational

Analysis” by an unnamed “Vocational Rehabilitation Consultant,” leading the Plan to conclude

that “the medical documentation on file does not support restrictions and limitations that would

preclude you from performing the Material Duties of your Regular Occupation as a human

resources manager.” (R. 15, PageID 701).

       The Plan obtained the review from employees at “University Disability Consortium,” a

commercial entity in Massachusetts.      The “Occupational Analysis” was performed by an

employee with a Master’s of Science degree. Her brief report made no reference to Koning’s

particular medical conditions, and did not explain what part of Koning’s treating physician’s



                                               8
No. 14-2188, Konig v. United of Omaha Life Ins. Co.


professional medical opinion was discredited, and why. She conceded that she did not examine

or meet Koning personally. (R. 14, PageID 542-544). Similarly, the “Medical Record Review”

by the same commercial group was performed by a registered nurse with a Bachelor’s of Science

and nursing degree, who also did not examine or meet Koning personally. She reached the

conclusion that the “medical records available for review fail to support any restrictions or

limitations from a sedentary demand level,” and that “[n]o impairments are supported.” (R. 15-

5, PageID 854-863).     Again, the report does not explain what part of Koning’s treating

physician’s professional medical opinion was discredited, and why. The denial letter advised

that Koning could direct a written appeal to the Plan within 180 days. The appeal policy states:

       APPEALS OF ADVERSE BENEFIT DETERMINATIONS
       You may appeal within 180 days following Your receipt of notification of an
       Adverse Benefit Determination.
                                                ...
       You will have the opportunity to submit written comments, documents, records,
       and other information relating to the claim.
                                                ...
       Our review will not give deference to the initial Adverse Benefit Determination.
                                                ...
       In deciding an appeal of any Adverse Benefit Determination that is based in
       whole or in part on a medical judgment, the individual conducting the appeal will
       consult with a health care professional:

   (a) who has appropriate training and experience in the field of medicine involved in
       the medical judgment; and

   (b) who is neither an individual who was consulted in connection with the Adverse
       Benefit Determination that is the subject of the appeal, nor the subordinate of any
       such individual.

(R. 13-1, PageID 99) (emphasis supplied).

       Koning obtained counsel, and in her appeal, attached again several hundred pages of her

medical records, dating from 2004. Included in the submission was an updated “Physician

Statement of Disability” by Koning’s treating anesthesiologist, Dr. Fitzgerald, confirming his


                                                9
No. 14-2188, Konig v. United of Omaha Life Ins. Co.


medical judgment that he “continue[s] to keep Mrs. Koning off work,” and continues in his

“medical judgment” to consider her “disabled from her regular occupation as a Human

Resources Manager and any other full-time occupation at this time.” Dr. Fitzgerald’s updated

medical opinion reported the following:

                        PHYSICIAN STATEMENT OF DISABILITY

       1.     My name is Kevin Fitzgerald. I am a Medical Doctor licensed by the State of
              Michigan, Certified in Anesthesiology with a primary specialty in Pain
              Management.

       2.     My address is Michigan Pain Consultants, 2147 Health Drive, Wyoming,
              Michigan 49519.

       3.     Vicki Koning is a long standing patient of Michigan Pain Consultants. Prior to
              my treatment, Mrs. Koning was a patient of my former partner, Keith Javery,
              D.O.

       4.     Mrs. Koning has been diagnosed with the following neck and back conditions for
              which I provide pain management:

                     Spinal stenosis
                     Degenerative disc disease L3-4, L4-5, L5-S1
                     Degenerative disc disease C4-5, C5-6
                     Post laminectomy pain syndrome
                     Lumbar spondylosis with radicullitis
                     Lumbosacral spondylosis
                     Cervical spondylosis with radiculitis
                     C7-8 radiculopathy
                     Large central disc protrusion L4-5
                     Disc Bulge L5-S1
                     Bilateral L5 radicular syndrome
                     Lumbar canal stenosis C4-5
                     Spondylosis C2-3, C4-5, C5-6
                     Chronic cervicalgia due to facet arthropathy at the 4th, 5th and 5th cervical
                      segments;
                     Cervicogenic headaches.

       5.     It is my understanding that Mrs. Koning underwent spine surgery in 2002;
              followed by a lumbar laminectomy and discectomy at L4-5 on January 25, 2005;
              and a right posterior cervical lymph node excision on August 12, 2005. Despite
              surgical intervention, courses of physical therapy, epidural injections, cervical


                                                10
No. 14-2188, Konig v. United of Omaha Life Ins. Co.


               facet injections, nerve root block and rhizotomies, Mrs. Koning continues to
               experience:

                  Chronic and severe back pain;
                  Chronic and severe neck pain;
                  Bilateral lower extremity pain;
                  Bilateral shoulder and arm pain;
                  Pain that radiates into her back buttocks and legs;
                  Inability to sleep due to her physical pain.
                  Unable to sit, stand and/or bend for any significant period of time.

       6.      As a result of her medical conditions, I agreed that Mrs. Koning should
               discontinue working as a Human Resources Manager for American Metal &
               Plastics and I understand her last day worked was on July 10, 2012.

       7.      In accordance with her employment, I am aware that Mrs. Koning applied for
               long term disability benefits the United of Omaha Insurance Company, which
               were denied on April 15, 2013, on the basis of a functional capacities evaluation
               (which I ordered) by Sakari Perttula, P.T.

       8.      I have reviewed Mr. Perttula’s functional capacities evaluation report as well as
               the United of Omaha’s April 15th correspondence.

       9.      I have considered Mr. Perttula’s findings and conclusions and continue to keep
               Mrs. Koning off work.

       10.     It is my medical opinion that Vicki Koning is disabled from her regular
               occupation as a Human Resources Manager and any other full-time occupation at
               this time.

( RE 13-2, Page ID # 158 - 159).

The doctor also attested that, to the extent that the Plan based any of its denial on the functional

capacity examination of Koning conducted by a physical therapist pursuant to his orders, he

disagreed with the Plan’s interpretation of the examination findings. (R. 13, PageID 158-159).

       In response to Koning’s appeal, the Plan again did not engage a physician to assess Dr.

Fitzgerald’s opinion, despite the Plan’s provision that:

       In deciding an appeal of any Adverse Benefit Determination that is based in
       whole or in part on a medical judgment, the individual conducting the appeal will
       consult with a health care professional:


                                                 11
No. 14-2188, Konig v. United of Omaha Life Ins. Co.


       (c) who has appropriate training and experience in the field of medicine involved
           in the medical judgment . . . .

(R. 13-1, PageID 99) (emphasis supplied).

At no time did the Plan consult a board-certified pain management doctor. Rather, the evidence

in the record shows that the Plan sent medical records to a “nurse case manager” with the

following instructions:

       Please review and identify any restrictions and limitations supported by the
       documentation in [sic] file, with the understanding if something is not listed as a
       restriction or limitation, they would be capable of performing the function.

       Does the indicated activity level appear to be in accordance with the
       documentation in the file? Please indicate how it does or does not.

       Please provide any guidelines concerning the time frame to update medical
       records. For instance, should medical records be updated every month, every
       three months or is this a condition that would require an update in four to six
       months?

(R. 17-1, PageID 1247-1252).

The nurse reviewed documents in the file, and reported that, in her “Medical Analysis”“[t]here

was no observable change in the CH’s physical status from a spine or pain standpoint from prior

to last day worked to current available notes.” She asserts:

       Exams have revealed no loss of strength, ambulation assistance or neurological
       deficits. She consistently appears in no acute distress with stable vital signs,
       which is not reflective of significant pain causing a systemic issue. The CH
       present unaccompanied at visits signifying she is driving and transferring
       independently. The FCE on 4/03/13 determined the CH’s perception of her
       capacity of functioning is lower than what she is capable of performing. It was
       suggested she could perform at the “light” physical capacity level.
                                               ...
       In my opinion the CH would be precluded from lifting/carrying > 20 pounds,
       repetitive bending and twisting at the waist. She would require the ability to
       make routine position change every 1-hour for 5 minutes or the use of a sit-to-
       stand work station to change position at will.

Id. at 1250.



                                                12
No. 14-2188, Konig v. United of Omaha Life Ins. Co.


The “Medical Analysis” was prepared without ever examining Koning, or consulting with her

physician, a board certified pain management doctor. Having no independent knowledge, the

nurse, for example, could have no idea how far Koning had driven for the appointment or

whether she was, in fact, in acute pain.

                                 II. STANDARD OF REVIEW

        The de novo standard of review was employed by the district court, and is the appropriate

standard of review on appeal. The Sixth Circuit set forth the standard of review in Wilkins v.

Baptist Healthcare Sys., Inc., 150 F.3d 609 (6th Cir. 2005):6

        The standards of review for determining ERISA denial-of-benefits claims are
        well-established. See Firestone, 489 U.S. at 115, 109 S.Ct. 948; see also Rowan,
        119 F.3d at 435. In cases in which a plan administrator is given no discretionary
        authority by the plan, review of the plan administrator's decision by the district
        court—as well as the court of appeals—is de novo, with respect to both the plan
        administrator's interpretation of the plan and the plan administrator's factual
        findings. See Firestone, 489 U.S. at 115, 109 S.Ct. 948; Rowan, 119 F.3d at 435.4
        When conducting a de novo review, the district court must take a “fresh look” at
        the administrative record but may not consider new evidence or look beyond the
        record that was before the plan administrator. See Perry 900 F.2d at 966; see also
        Rowan, 119 F.3d at 437.7

Id. at 618.
                                           II. ANALYSIS

              A. Merits

        After reviewing the record, we conclude that the Plan failed to adequately evaluate the

evidence presented. The Plan ignored favorable evidence submitted by her treating physician(s),



6
  As of March 1, 2007, Michigan law prohibits policies containing discretionary authority
clauses that would trigger the arbitrary and capricious standard of review, MICH. ADMIN.
CODE R. 500.2201-02 (2011), and this Court has upheld the provision. See Am. Council of Life
Insurers v. Ross, 558 F.3d 600, 609 (6th Cir. 2009) (the Michigan rules fall within the ambit of
ERISA’s savings clause and are not preempted by ERISA).
7
  Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989);
Rowan v. Unum Life Ins. Co., 119 F.3d 433 (6th Cir.1997); Perry v. Simplicity Engineering,
900 F.2d 963 (6th Cir.1990).
                                                13
No. 14-2188, Konig v. United of Omaha Life Ins. Co.


selectively reviewed the evidence it did consider from the treating physicians, failed to conduct

its own physical examination, and heavily relied on non-treating nurses and other non-

physicians.

               1. Ignoring Favorable Evidence from Koning’s Treating Physicians

       “[P]lan administrators are not obliged to accord special deference to the opinions of

treating physicians.” Black & Decker Disability Plan v. Nord, 538 U.S. 822, 825 (2003).

However, they “may not arbitrarily refuse to credit a claimant’s reliable evidence, including the

opinions of a treating physician.” Id. at 834. “[A] plan may not reject summarily opinions of a

treating physician, but must instead give reasons for adopting an alternative opinion.” Shaw v.

AT&T Umbrella Benefit Plan No. 1, __F.3d__, 2015 WL 4548232 (6th Cir July 29, 2015), Op.

13, citing Elliott v. Metro. Life Ins. Co., 473 F.3d 613, 620 (6th Cir. 2006). In Shaw, this Court

found that the Plan acted arbitrarily and capriciously where a claimant’s medical records and

functional capacity evaluation showed that he was unable to sit or stand for more than

30 minutes, and had to lie down to recuperate. The Court explained that a Plan cannot ignore

favorable evidence from a treating physician, but must ‘“give reasons” for rejecting a treating

physician’s conclusions”’.    Id., citing Hayden v. Martin Marietta Materials, Inc. Flexible

Benefits Program, 763 F.3d 598, 608-09 (6th Cir. 2014) (finding that the plan acted arbitrarily

and capriciously in denying benefits for a mental disorder in part because the plan failed to

‘“give reasons’ for rejecting a treating physician’s conclusions.”).

       Here, as in Shaw, the Plan ignored favorable evidence from Koning’s treating physicians.

In rejecting Koning’s claim for LTD benefits, the Plan stated “the medical documentation in the

file does not support restrictions and limitations that would preclude you from performing the




                                                 14
No. 14-2188, Konig v. United of Omaha Life Ins. Co.


Material Duties of your Regular Occupation as a human resources manager.” (R. 15, PageID

701). Specifically, the Plan based its denial on the findings of the records reviewer, stating that:

       Ms. Koning’s occupation as a Human Resources Manager is a sedentary strength
       occupation. A sedentary strength occupation requires Ms. Koning to exert up to
       10 lbs. of force occasionally and or negligible amount of force frequently to lift,
       carry, push, pull, or otherwise move objects.
                                                 …
       [A]fter submitting Ms. Koning’s file for a medical review, we believe that
       although Ms. Koning’s MRI results have revealed mild discogenic degenerative
       change at the C4-5 and C5-6 levels, the examinations have demonstrated no loss
       of strength, ambulation assistance or neurological deficits. Ms. Koning was
       constantly noted to be in no acute distress with stable vital signs, which is not
       reflective of significant pain causing a systemic issue. Additionally, the FCE that
       was completed on April 3, 2013, indicated Ms. Koning could perform in the light
       physical capacity level. Therefore, Ms. Koning would not be restricted from
       performing her sedentary strength occupation as a Human Resources Manager.

(R. 13-2, PageID 135-137).

This brief analysis does not address Dr. Fitzgerald’s medical opinion that Koning has “chronic

and severe back pain; chronic and severe neck pain; bilateral lower extremity pain; bilateral

shoulder and arm pain; pain that radiates into her back, buttocks, and legs; inability to sleep due

to her physical pain; and [is] unable to sit, stand and/or bend for any significant period of time.”

(R. 13-2, PageID 158). The Plan cites no medical evidence in conflict with Dr. Fitzgerald’s

conclusions.

       Additionally, the cited FCE used the Physical Demand Characteristics of Work chart,

Light (PDL) to evaluate Koning’s ability to do her predominantly sedentary office job, and the

therapist found that she could not sit for more than 30 minutes at a time, and had “[w]ide spread

pain, poor tensed posture, muscle tension and fatigue, restricted ROM [range of motion], diffuse

right sided weakness, disturbed gait, chronic headaches, de-conditioning, poor tolerance to ADLs

[activities of daily living].” (R. 15-2, PageID 733; R.15-3, PageID 757). These conclusions are

also at odds with the Plan’s statement that Koning’s “examinations have demonstrated no loss of

                                                 15
No. 14-2188, Konig v. United of Omaha Life Ins. Co.


strength.” (R. 13-2, PageID 135-137). The Plan simply contradicts the medical findings without

explaining why, and without offering any evidence to contradict these medical observations,

even though a functional capacity evaluation “is generally a reliable and objective method of

gauging the extent one can complete work-related tasks.” Shaw, __F.3d, 2105 WL 4548232, at

*8. This is particularly unconvincing in light of the fact that Dr. Fitzgerald specifically stated

that he had considered the findings and conclusions of the FCE in determining that Koning

cannot perform any full-time occupation at this time. Instead of offering adequate medical

evidence to rebut Dr. Fitzgerald’s opinions, the Plan’s non-physician file reviewers simply

concluded that Koning could perform sedentary work.

               2. Selectively Reviewing Treating Physician Evidence

       This Court has held that a plan administrator acts arbitrarily and capriciously when it

“engages in a selective review of the administrative record to justify a decision to terminate

coverage.” Metro. Life Ins. Co. v. Conger, 474 F.3d 258, 265 (6th Cir. 2007) (internal quotation

marks omitted).    Here, the Plan’s file reviewers engaged in a selective review when they

concluded that Koning was not disabled, without adequate medical evidence to refute her

treating physician’s diagnoses. The records review specifically discounts her pain.

       For example, a review of one of her physical therapy notes would show that her cervical

range of motion is “restricted.” Her therapist reported “Flexion: 35 degrees/pain on the right;

Extension: 30 degrees/pain on the right; Rotation (left): 50 degrees/pain on the right; Rotation

(right): 50 degrees/pain on the right. Palpation and tenderness was found right neck and upper

back. Mobility testing reveals hypo mobility at OA and upper thoracic. Ms. Koning reports the

pain being related to turning.” “She has not achieved the set goals of decreased pain and




                                               16
No. 14-2188, Konig v. United of Omaha Life Ins. Co.


irritation and functional ROM.” (R. 16-2, PageID 1038). However, the nurse reviewing the

medical records for the Plan states in her “Medical Analysis”:

       The claimant has numerous somatic8 reports of pain that is [sic] in excess of
       physical or diagnostic findings. While there is note of the claimant having
       cervical lumbar pain, there is no current documented diagnostic testing, such as
       demonstrating subulaxation, MRI or CT, demonstrating spinal or foraminal
       stenosis, or EMG/NCS, demonstrating radiculopathy. Furthermore, there is no
       documented pathological reflexes, muscle weakness, atrophy, hypertrophy,
       fasciculation’s [sic], decreased sensation to light touch pinprick vibration or
       proprioception. There is no documentation of any pathology of station of the
       head or neck with forward flexion, nor is there any documentation of the claimant
       having unkempt hair supporting her report of pain. There is no documentation of
       antalgic gait, no spinal instability documented on x-rays, no erythema, edema,
       synovitis, no palpable muscle spasms.

(R. 15-5, PageID 858).

       This conclusion ignores evidence of Koning’s restricted range of motion, her prior spinal

surgeries, the MRI results and other tests documenting degenerative disk disease, her reported

and documented chronic pain, and her treating physician’s findings.

       Courts have held this type of selective review to be arbitrary and capricious, and have

pointed out the concern for conclusions based on “logical leaps.” In Blajei v. Sedgwick Claims

Management Services, Inc., 721 F. Supp. 2d 584, 604-05 (E.D. Mich. 2010), the district court


8
 “Somatic” pain and “chronic pain” is discussed in the medical literature, and differs from “acute
pain”:

       In general . . . there are three types of pain, based on where in the body the pain is
       felt: somatic, visceral, and neuropathic. Pain of all three types can be either acute
       or chronic. Acute pain is short lasting and usually manifests itself in ways that
       can be easily described and observed. Chronic pain is defined as pain lasting
       more than three months. It is much more subjective and not easily described as
       acute pain. The three pain types can be felt at the same time or singly and at
       different times. The different types of pain respond differently to the various pain
       medications. Somatic and visceral pain are easier to treat than neuropathic pain. .
       . .Generally speaking, somatic pain is usually aggravated by activity and relieved
       by rest.

http://calder.med.miami.edu/pointis/typepain.html
                                                17
No. 14-2188, Konig v. United of Omaha Life Ins. Co.


held that a plan administrator’s decision to terminate a claimant’s benefits based on conclusory

reports from medical consultants was arbitrary and capricious, finding that the file review

physician’s report indicated that the physician had “selectively cherry-picked” the medical

records to support his non-disability finding.

        Further, Dr. Pick appears to have at best haphazardly selected, and at worst
        cherry-picked, a handful of objective reports (MRI, CT, x-ray, EMG, etc. reports)
        to comment upon. Dr. Pick mentions an August 2005 lumbar x-ray that “has an
        impressive successful fusion at L5-S1; but does not comment upon a June 2005
        cervical MRI which found “[c]ervical spondylosis . . . contributing to left greater
        than right stenosis.”

Id. In finding that the file reviewing physicians’ reports “are conclusory and fail to adequately

discuss, let alone rebut, the diagnoses of Plaintiff’s treating physicians,” the court noted that the

reports are also “tainted with other indicia of unreliability,” including the “logical leap” that

because Plaintiff can drive, she can work at a computer for 8 hours per day.” Id. at 606. 9

        Defendants are correct that Section 1133 does not require a denial letter to
        describe every detail relating to the decision to deny benefits; however, a letter
        completely devoid of any discussion of a claimant’s medical evidence submitted
        to support disability, or why an IME physician’s conclusions were being favored
        over a claimant’s physician’s conclusions, does not comport with ERISA’s
        procedural requirements. See Majeski v. Metropolitan Life Ins. Co., 590 F.3d
        478, 484 (7th Cir. 2009).

Id. at 611.

        This case has similarly fallen short of providing the full and fair review of the record

required by ERISA.

               3. Failing to Conduct its Own Physical Evaluation

        “[T]here is nothing inherently improper with relying on a file review, even one that

disagrees with the conclusions of a treating physician.” Calvert v. Firstar Fin. Inc., 409 F.3d



9
 In this case, the nurse file reviewer includes an opinion there is no “documentation of the
claimant having unkempt hair supporting her report of pain.” (R. 15-5, PageID 858).
                                                 18
No. 14-2188, Konig v. United of Omaha Life Ins. Co.


286, 297 n.6 (6th Cir. 2005). However, we have held that the failure to conduct a physical

examination, where the Plan document gave the plan administrator the right to do so, “raise[s]

questions about the thoroughness and accuracy of the benefits determination.” Helfman v. GE

Grp. Life Assurance Co., 573 F.3d 383, 393 (6th Cir. 2009) (quoting Calvert, 409 F.3d at 295).

          Here, the Plan specifically reserved the right to conduct its own examination, but chose

not to.     This is especially troubling because the Plan’s file reviewers “second-guess[ed]

[Koning’s] treating physicians” and made “credibility determinations.” Judge v. Metro. Life Ins.

Co., 710 F.3d 651, 663 (6th Cir. 2013). Unlike Judge, this is not a case where a nurse file

reviewer’s findings “simply echo those of [the claimant’s] own doctors.” Id.

          The Plan second-guessed Koning’s treating physician when it credited the assumption of

the file reviewer that Koning’s FCE showed she could do sedentary work over Dr. Fitzgerald’s

conclusion that she cannot (and despite the FCE’s finding that she cannot sit for more than

30 minutes at a time). In its letter denying Koning’s LTD benefits, the Plan relied primarily on

the FCE as a reason for its decision to deny her benefits. However, the entire issue before the

Plan was whether Koning could perform sedentary work, and Koning’s treating physician,

Dr. Fitzgerald, concluded that she cannot – and the FCE results supported the conclusion in its

clinical assessment that she could not sit for more than 30 minutes at a time. Given that her

“sedentary strength occupation” consists primarily of sitting most of the time, the Plan should

have explained the basis for refusing to credit Dr. Fitzgerald’s medical opinion. The above

review of the Plan’s decision-making process indicates that the Plan’s denial of Koning’s LTD

benefits was in error. “While none of the factors alone is dispositive, we find that, as a whole,

they support a finding that [the Plan] did not engage in a deliberate and principled reasoning




                                                 19
No. 14-2188, Konig v. United of Omaha Life Ins. Co.


process.” Helfman, 573 F.3d at 396. We are mindful that judicial review of these matters cannot

be a “rubber stamp.” Cox v. Standard Ins. Co., 585 F.3d 295, 302 (6th Cir. 2009).

               4. Significant Change in Physical Functional Capacity

       The district court below concluded that the Koning did not carry her burden to prove that

she has suffered a significant change in her physical functional capacity, stating “plaintiff must

establish more than a change in her subjective experience of a long-term problem with back pain;

rather she must demonstrate some real, objective change in her actual capacity.” (R. 29, PageID

1418). However, Koning may be able to meet this burden. She has sufficiently shown that she

was able to work with her back pain for years, and when she needed to take on increasingly

sedentary jobs, she did – moving from hair dresser, to salon manager, to human resources

manager. When she took the position of human resources manager at American, she was able to

work, and did for years. But, as Dr. Fitzgerald observed, Koning discontinued her work in this

position as a result of her medical conditions that left her disabled. (R. 13-2, PageID 1585).

That was a significant change in her functional capacity, as shown by objective evidence –

hundreds of pages of medical records detailing back surgeries, physical therapy, and numerous

pain treatment programs, and MRI’s and other tets documenting degenerative disk disease.

       Courts have addressed the fact that pain is an inherently subjective condition, but no less

capable of being disabling. In an unpublished decision, James v. Liberty Life Assur. Co. of

Boston, 582 Fed. App’x 581 (6th Cir. 2014), this Court affirmed the district court’s award in

favor of the participant. Her board-certified doctor treated her back pain with, among other

modalities, epidural injections. Throughout treatment, he found the participant was unable to

return to work. The plan administrator ordered independent medical examinations (“IMEs”) by

board certified doctors, one of whom examined the participant, and found an “absence of any



                                               20
No. 14-2188, Konig v. United of Omaha Life Ins. Co.


objective clinical findings to substantiate her ongoing complaints,” and that she could return to

work. Id. at 583. The plan denied her claim for long-term disability benefits, based on the IME

doctors’ opinions, and also in part on the review of a vocational rehabilitation company that

performed an occupational analysis and reported that the sedentary nature of her work made her

able to perform “the material and substantial duties of her occupation within the restrictions

given by [the doctor].” Id.     The participant filed an administrative appeal, and submitted

additional medical opinions. The plan hired two additional doctors to conduct file reviews, and

they considered her “self-reports of pain, the MRIs, and her symptoms and concluded that the

medical evidence did not support impairment or the need for restrictions or limitations.” Id. at

585. The plan denied her appeal, “citing a lack of objective evidence” that her conditions

“precluded her from performing her job.” Id.

       The district court entered judgment in the participant’s favor, finding that the

preponderance of the evidence supported a conclusion that the participant was disabled from

performing her regular job. On de novo review, this Court affirmed the district court, finding the

participant “produced ample subjective and objective evidence that she was unable to return to

work.” Id. at 587. The Court specifically explained that, “[c]omplaints of pain necessarily are

subjective as they are specific to the patient and are reported by the patient.” Id. See Pierzynski

v. Liberty Life Assur. Co. of Boston, No. 10–14369, 2012 WL 3248238, at *4 (E.D.Mich. Aug. 8,

2012) (“by its very nature, pain is subjective, and the [plan] cannot ignore subjective

complaints”). Furthermore, the Court found that the participant produced sufficient objective

evidence to support her claim. “MRIs, records of her physical examinations, chart notes, lab and

other test results, and physician diagnoses, all . . . qualify as objective medical evidence under

the Policy.” Id.



                                                21
No. 14-2188, Konig v. United of Omaha Life Ins. Co.


           B. Remedy

       This case is similar to the case in Helfman, 573 F.3d at 396:

               ‘[W]here the problem is with the integrity of the plan’s decision-making
               process, rather than that a claimant was denied benefits to which he was
               clearly entitled,’ remand to the plan administrator is the appropriate
               remedy. Cooper v. Life Ins. Co. of N. Am., 486 F.3d 157, 171 (6th Cir.
               2007) (quoting Elliott v. Metro. Life Ins. Co., 473 F.3d 613, 622 (6th Cir.
               2006).


                                       V. CONCLUSION

       For the foregoing reasons, we AFFIRM the judgment of the district court in part, insofar

as the district court held that the plan is subject to ERISA, and REVERSE AND REMAND

insofar as the district court upheld the denial of benefits by the Plan, with instructions to remand

to the plan administrator for a full and fair review consistent with this Court’s opinion.




                                                 22
No. 14-2188, Konig v. United of Omaha Life Ins. Co.


        McKEAGUE, Circuit Judge, concurring. I reluctantly agree with the majority that we

should remand to the district court to instruct the Plan to conduct a full review and evaluate

Koning’s claim more thoroughly. I write separately for two reasons. First, I believe Koning

must have presented evidence of disability around 2012, when she claims she became disabled,

rather than presenting the entire record as evidence of disability—including several years where

she was able to work. Second, the majority places too much weight on the opinion of Koning’s

treating physician and certain favorable aspects of Koning’s medical record. I would emphasize

that Koning bears the burden of proving she was disabled, and I identify what I see as Koning’s

evidence of disability that the Plan must evaluate on remand.

                                                       I

        The question before us is whether Koning proved she became disabled around 2012. “To

succeed in [a] claim for disability benefits under ERISA, [a p]laintiff must prove by a

preponderance of the evidence that [s]he was ‘disabled,’ as that term is defined in the plan.”

Javery v. Lucent Techs., Inc. Long Term Disability Plan for Mgmt. for LBA Employees, 741 F.3d

686, 700–01 (6th Cir. 2014) (citation omitted).               Here, the Plan defined “disabled” as “a

significant change” in “physical functional capacity” which prevented Koning from performing

at least one of the material duties of her job.1 R. 13-2, Policy, Page ID 134–35. Koning

presented evidence of physical problems beginning in the early 2000s and continuing until she

quit working in July 2012. Critically, Koning continued to work during that entire period.

Moreover, Koning did not present evidence that she was unable to perform any of her job duties

at any point prior to 2012. From this, we can reasonably infer that, despite her physical


1
 The parties present this inquiry in different ways: Koning focuses on whether she could perform all the material
duties of her job, while the Plan focuses on whether Koning had a “significant change” in her physical functional
capacity. Regardless of how we frame the question, this case still comes down to whether Koning presented
evidence of her disability around 2012.

                                                       23
No. 14-2188, Konig v. United of Omaha Life Ins. Co.


problems, Koning was able to perform all the duties of her job and was not disabled until around

2012. As a result, Koning must have presented evidence that her condition worsened around

2012 to the point that she became disabled.

       I believe the majority and I agree on this point, see Maj. Op. at 19–21, but I want to

emphasize the relevant time period before us. Because Koning continued to work, her physical

condition in the years leading up to 2012 cannot be persuasive evidence that she became disabled

in 2012. If anything, it serves as evidence that Koning was not disabled in July 2012 unless her

physical condition had changed. In my view, her prior condition only provides a baseline to

evaluate what may have changed in her physical condition that rendered her unable to work, and

our focus should remain on the period leading up to July 2012.

                                               II

       With that in mind, although I agree that the Plan’s review was inadequate, I disagree with

the majority’s characterization of some of the evidence. The majority identified the following

deficiencies in the Plan’s review: (1) the Plan “ignored” favorable evidence from Koning’s

treating physician; (2) the Plan failed to conduct its own physical examination and relied on the

opinions of nurse file reviewers; and (3) the Plan selectively reviewed Koning’s medical record,

particularly her Functional Capacity Evaluation (FCE).

       Koning’s Treating Physician. If a plan administrator adopts an opinion that conflicts

with that of a treating physician, it must provide reasons for doing so. Shaw v. AT&T Umbrella

Benefit Plan No. 1, 795 F.3d 538, 548–49 (6th Cir. 2015).          Plan administrators may not

arbitrarily reject or refuse to consider the opinion of a treating physician, but they “are not

obligated to accord special deference to the opinions of treating physicians.” Black & Decker

Disability Plan v. Nord, 538 U.S. 822, 825 (2003). Accordingly, courts may not “impose on



                                               24
No. 14-2188, Konig v. United of Omaha Life Ins. Co.


plan administrators a discrete burden of explanation when they credit reliable evidence that

conflicts with a treating physician’s evaluation.” Id. at 834.

        In my opinion, the majority gives too much credit to the opinion of Dr. Fitzgerald,

Koning’s treating physician. Dr. Fitzgerald recommended Koning quit working in 2012, but his

only explanation was that “as a result of her medical conditions, I agreed that Mrs. Koning

should discontinue working.” R. 13-2, Disability Statement, Page ID 159. Dr. Fitzgerald listed

Koning’s symptoms, her diagnoses, and her history of back problems before concluding she was

“disabled.” Id. at 158–59. But he did not explain why Koning was disabled as of July 2012

when she was not disabled at any point prior to that. My concern is that Dr. Fitzgerald’s

conclusion seems to come from the same medical evidence that had been in the record for years

when Koning was not disabled.2 So why did Dr. Fitzgerald conclude Koning was disabled in

2012? Did he diagnose her with a new ailment that prohibited her from working? Did her back

problems get worse, or did he simply credit his patient’s otherwise unsupported report that her

previously tolerated symptoms had become unbearable? What changed in Koning’s physical

condition from the time when she could work with her back problems—and was therefore not

disabled—to when she couldn’t?             Dr. Fitzgerald did not say, and without more I find his

conclusion unconvincing. See Creech v. UNUM Life Ins. Co., 162 Fed. App’x 445, 454–56 (6th

Cir. 2006) (per curiam) (finding treating physician’s opinion unpersuasive when he “fail[ed] to

support his opinion with data or useful analysis”).

        The majority claims the Plan “ignored” favorable evidence from Dr. Fitzgerald in

denying Koning’s claim and “cite[d] no medical evidence in conflict with Dr. Fitzgerald’s

conclusions.” Maj. Op. at 14–15. But, as far as I can tell, the Plan only disagreed with Dr.

2
 Dr. Fitzgerald had been treating Koning since 2009, and his practice had been treating Koning since 2004. Dr.
Fitzgerald’s statement does not mention any changes in Koning’s condition from when he first began treating her in
2009 to when he concluded she was disabled in 2012.

                                                       25
No. 14-2188, Konig v. United of Omaha Life Ins. Co.


Fitzgerald’s ultimate conclusion that Koning was disabled. Koning needed to present evidence

that she became disabled around 2012. It would have been difficult, then, for the Plan to cite

evidence to refute Dr. Fitzgerald’s opinion when Dr. Fitzgerald himself provided no evidence

that Koning’s condition changed around 2012. In other words, I find it hard to identify what

evidence the majority could expect the Plan to adduce to refute Dr. Fitzgerald’s unsupported and

unexplained opinion.

       The majority seems to regard Dr. Fitzgerald’s conclusion as convincing evidence that

must be rebutted. See Maj. Op. at 14–16. Although I agree that the treating physician’s opinion

is a factor to consider, see Shaw, 795 F.3d at 548–49, I do not believe a conclusory opinion like

Dr. Fitzgerald’s should carry much weight. And I certainly do not think we should treat it as

near-determinative evidence (as the majority seems to) that Koning was disabled. The burden, of

course, remains on Koning to establish disability—not on the Plan to affirmatively counter every

unsubstantiated conclusion she asserts.

       The Plan’s Failure to Conduct a Physical Examination. The majority also takes issue

with the Plan’s use of nurse file reviewers and faults the Plan for not conducting its own physical

examination. Maj. Op. at 18–19. The failure to conduct a physical exam, especially when a plan

reserves the right to do so, “may, in some cases, raise questions about the thoroughness and

accuracy of the benefits determination.” Calvert v. Firstar Fin., Inc., 409 F.3d 286, 295 (6th Cir.

2005). However, “there is nothing inherently improper with relying on a file review, even one

that disagrees with the conclusions of a treating physician.”        Id. at 297 n.6.    And plan

administrators are permitted to conduct a file-only review instead of a physical exam so long as

the review considers the evidence from the treating physician. This is particularly true when file




                                                26
No. 14-2188, Konig v. United of Omaha Life Ins. Co.


reviewers do not make credibility determinations or second-guess treating physicians. See Judge

v. Metro Life Ins. Co., 710 F.3d 651, 660 (6th Cir. 2013); Creech, 162 Fed. App’x at 454–55.

         First, I see no problem with two registered nurses and a vocational expert evaluating

Koning’s claim. The Plan provided that it would consult with “health care professional[s],” and

to my knowledge this Court has never required that a file review be conducted by a physician.

See Frazier v. Life Ins. Co. of N. Am., 725 F.3d 560 (6th Cir. 2013) (affirming denial of disability

benefits on basis of file review conducted by nurse case manager); Judge, 710 F.3d at 663

(affirming denial of benefits based on nurse file review); Iley v. Metro. Life Ins. Co., 261 Fed.

App’x 860, 864 (6th Cir. 2008) (“[T]his court has never held that a file review by a nurse is an

insufficient form of review.”).

         Second, from this record, I cannot conclude the file reviewers made a credibility

determination or second-guessed the medical evidence of Dr. Fitzgerald. The majority classifies

the Plan’s disagreement with Dr. Fitzgerald’s conclusion that Koning was disabled as second-

guessing. See Maj. Op. at 19. But while the Plan disagreed with Dr. Fitzgerald’s conclusion, it

did not second-guess any of the medical evidence he referred to.3 The Plan’s reviewers were

looking for evidence that Koning’s condition changed in 2012, and (as explained above) Dr.

Fitzgerald failed to cite any medical evidence to support a change in Koning’s condition. In

other words, there was no evidence—aside from Dr. Fitzgerald’s unsupported conclusion—to




3
  The majority argues that the Plan “did not address Dr. Fitzgerald’s medical opinion” because the Plan did not offer
medical evidence to contradict Koning’s symptoms. Maj. Op. at 15. Again, the Plan was not evaluating whether
Koning had symptoms of back pain, but rather whether Koning became disabled around 2012. The Plan denied
Koning’s claim because it concluded none of these symptoms or diagnoses had changed from the time she was able
to work to the time she claimed she was disabled. If Koning’s symptoms were, in fact, the same in 2012 as in years
past, then the Plan would not need to “address” or disagree with them to conclude Koning was not disabled.


                                                         27
No. 14-2188, Konig v. United of Omaha Life Ins. Co.


second-guess.4 As such, I cannot fault the Plan for disagreeing with the unsupported conclusion

of Koning’s treating physician.

        Ultimately, this case hinges on the actual medical evidence in the record that could show

Koning became disabled around 2012. As such, I agree with the majority that the Plan’s

evaluation of Koning’s claim left much to be desired. However, I would be clear as to what the

Plan needs to evaluate on remand.

        Koning’s Medical History and FCE.                The majority criticizes the Plan for ignoring

Koning’s “prior spinal surgeries, [her] MRI results and other tests documenting degenerative

disk disease, her reported and documented chronic pain, and her treating physician’s findings.”

Maj. Op. at 17. But much of Koning’s medical history, including surgeries in 2002 and 2005

and diagnoses from years past, cannot be persuasive evidence that she became disabled around

2012. Accordingly, we must review the Plan’s evaluation in light of Koning’s evidence from

around 2012—her MRIs, her FCE, and her subjective reports of increased pain—always keeping

in mind that Koning bears the burden of proving she was disabled.

        I agree with the majority that the Plan failed to adequately explain whether Koning’s

MRI results and other medical evaluations evidenced a change in her condition. Koning’s July

2012 MRI indicated mild degenerative change at the C4/C5 and C5/C6 levels. R. 16-2, MRI

Report, Page ID 1052. While that could be evidence of a change in condition, Koning’s 2012

MRI results seem very similar to her August 2006 MRI results. R. 13-2, MRI Report, Page ID

177, 178, 190. The Plan makes no comparison between the two MRIs, and the Plan’s reviewers

drew at least one inconsistent conclusion from the July 2012 MRI. Despite the 2012 MRI report

clearly indicating “mild right neural foraminal narrowing at C4-5,” the Plan’s reviewer found no

4
 While the majority asserts the Plan second-guessed Dr. Fitzgerald by crediting the “assumption” that Koning could
do sedentary work, the Plan’s reviewer relied on the FCE’s actual description of Koning’s activity level as
sedentary. See R. 15-3, FCE, Page ID 963–64.

                                                       28
No. 14-2188, Konig v. United of Omaha Life Ins. Co.


evidence of “foraminal stenosis [or narrowing]” in the record. R. 15-5, Medical Record Review,

Page ID 858. Based on this record, Koning may have provided evidence that her physical

condition changed around 2012. But we are not medical professionals, and this discrepancy is

insufficient to enable conclusive evaluation of the Plan’s decision.

       Similarly, Koning’s FCE could be evidence of disability.          “A functional capacity

evaluation is generally a reliable and objective method of gauging the extent one can complete

work-related tasks.” Shaw, 795 F.3d at 548 (citation omitted); see also Brooking v. Hartford Life

& Accident Ins. Co. 167 Fed. App’x 544, 549 (6th Cir. 2006) (describing an FCE as “objective

evidence” of claimant’s back pain). The majority concludes the Plan selectively reviewed

Koning’s file by failing to account for physical limitations and restrictions found during

Koning’s FCE. See Maj. Op. at 16–18. Fair enough; the FCE does list physical limitations that

could be evidence Koning became disabled around 2012. But the majority omits one glaring

detail about Koning’s FCE: it appears to conclude Koning can work, at least in some capacity.

R. 15-3, FCE, Page ID 963–64. According to the Plan’s vocational expert, Koning’s job was

classified as “sedentary,” and the FCE suggested Koning could work at the sedentary level. R.

15-4, Occupational Analysis, Page ID 838–40; R. 15-3, FCE, Page ID 963. So while I agree the

Plan’s decision did not fully account for the FCE’s restrictions and limitations, the majority

misstates the FCE’s significance. I find the FCE inconclusive at best.

       Finally, I do not discredit Koning’s reports of pain as providing some evidence that she

was unable to work. See Maj. Op. at 20–21. As the majority explains, pain can be evidence of

disability despite being inherently subjective.      See James v. Liberty Life Assurance Co. of

Boston, 582 Fed. App’x 581, 582 (6th Cir. 2014). However, the court awarded benefits in James

because the claimant “produced ample subjective and objective evidence that she was unable to



                                                29
No. 14-2188, Konig v. United of Omaha Life Ins. Co.


return to work.” Id. at 587 (emphasis added). That brings us back to our starting point: Koning

bears the burden to demonstrate she is disabled—that is, that her physical condition changed

around 2012 to the point where she became disabled. Although I depart from the majority’s

view on much of this evidence, I agree that a remand is appropriate for the Plan to consider all

the evidence of disability that the Plan appears to have failed to address.

                                                 III

       Koning still bears the burden of proving that she became disabled around 2012, and on

this record I am not convinced she has done so. However, I concur in remanding to the Plan to

conduct a more thorough review of Koning’s evidence.




                                                 30
