              Case: 14-15259    Date Filed: 07/10/2015    Page: 1 of 24


                                                               [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 14-15259
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 4:13-cv-01947-VEH

GREG OLIVER,

                                                                  Plaintiff-Appellant,

                                       versus

AETNA LIFE INSURANCE COMPANY,
FEDERAL EXPRESS CORPORATION LONG TERM DISABILITY PLAN,

                                                                Defendant-Appellee.

                           ________________________

                    Appeal from the United States District Court
                       for the Northern District of Alabama
                           ________________________

                                   (July 10, 2015)

Before JORDAN, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM:

      This appeal arises from the denial of a claim for long-term disability

benefits. Plaintiff-appellant Greg Oliver (“Oliver”) appeals the district court’s
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grant of summary judgment to defendant-appellee Aetna Life Insurance Company

(“Aetna”) on Oliver’s claim, brought under § 1132(a)(1)(B) of the Employee

Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq., that Aetna

wrongfully denied him benefits.

I.    BACKGROUND

      Oliver worked as a courier for the Federal Express Corporation (“FedEx”),

and participated in its Long Term Disability Plan (“the Plan”). In addition to being

the sponsoring employer of the Plan, FedEx is its administrator. Aetna, however,

is the claims-paying administrator of the Plan, and is responsible for making

benefits determinations.

      Oliver has a long history of bone and joint problems, including degenerative

disc disease in his spine and osteoarthritis in his knee. In 1991, he tore his left

anterior cruciate ligament, after which he developed severe arthritis in that knee.

An examination of his knees in July 2009 revealed that

      His range of motion [in the left knee] was near to complete extension
      to one-hundred twenty degrees of flexion. There was positive patellar
      crepitus, negative instability, and positive medial and lateral joint line
      tenderness. Three x-ray views of the bilateral knees showed mild
      degenerative disease of the right knee and some patellofemoral
      disease. The left knee showed the prior anterior cruciate ligament
      screws in the femur and tibia. The femoral screw was protruding
      laterally, and the tibial screw was penetrating in the joint. There was
      also medial compartment sclerosis as well as patellofemoral disease.
      The assessment noted osteoarthritis, left knee.
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At that time, Oliver reported that his knee pain was exacerbated by walking or

standing for more than half an hour. He has had three surgeries on the left knee,

the most recent being an October 2010 total knee replacement.1 This last surgery

has alleviated, but not eliminated, what had been a persistently painful condition.

      Oliver has had less luck in treating his lower back pain, from which he has

suffered since 2005. Examinations from October 2009 to February 2010 revealed

numerous structural and functional abnormalities in his spine, lumbar-area

tenderness, and muscle spasms. Oliver had limited ranges of motion involving his

lower back, and experienced pain in performing those lower-back movements. His

reports of back pain varied from examination to examination. He reported pain

“while performing daily activities and certain motions.” Long periods spent

walking around and repetitive movements exacerbated his pain. Various non-

invasive treatments were performed, such as electrical stimulation of the tissues,

and Oliver was instructed in proper sleep positioning and other ways to alleviate

his pain.

      In addition to his longstanding knee and back problems, Oliver was injured

on the job on August 15, 2009. 2 Following that injury, Oliver received short-term


      1
          Elsewhere it is reported that Oliver has had four knee surgeries.
      2
          The record does not reveal the specifics of this injury.
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disability benefits under the Plan from August 24, 2009 to February 21, 2010. This

was followed by long-term occupational disability benefits from February 22,

2010 to February 21, 2012. That 24-month period was the maximum allowed

under the Plan for long-term occupational disability.

      Before the expiration of Oliver’s long-term occupational disability benefits,

Aetna notified him that he would have to qualify for long-term total disability

benefits under the Plan to continue receiving benefits after the 24-month period.

To receive the long-term total disability benefits, he would have to meet a more

demanding definition of disability than that required for long-term occupational

disability benefits: he would have to show a “complete inability . . . to engage in

any compensable employment for twenty-five hours per week.”

      Oliver applied for long-term total disability benefits to begin on February

22, 2012, when his long-term occupational disability benefits were to terminate.

His claim was denied on January 12, 2012, and he filed an appeal to the Aetna

Appeal Review Committee (“AARC”). On March 13, 2012, Oliver was notified

by Aetna representative Linda Bizzarro that his appeal had been denied the day

before, “because there [wa]s a lack of significant objective findings to substantiate

a claim under the Plan for Total Disability.”




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       In the meanwhile, on January 17, 2012, Oliver had received a favorable

disability decision from the Social Security Administration (“SSA”), which found

that he had become disabled for purposes of the Social Security Act as of August

15, 2009, the date at which Oliver had been injured on the job. See 42 U.S.C.

§§ 416(i); 423(d). The AARC had been notified of this favorable SSA

determination on February 28, 2012, and made note of it in denying Oliver’s

appeal. The AARC explained, however, that “the criteria utilized by the [SSA] for

. . . disability awards are different from the definition for Total Disability set forth

in the Plan.” Thus, the intervening SSA determination did not dictate the outcome

of the AARC review of the initial denial of long-term total disability benefits.

       Oliver filed for suit against Aetna for its denial of long-term total disability

benefits on September 11, 2013 in the Circuit Court of Etowah County, Alabama.

Aetna removed the case to the Northern District of Alabama on October 22, 2013,

because the case raised a federal question under ERISA and ERISA gives the

district courts and state courts concurrent jurisdiction over actions brought under

29 U.S.C. § 1132(a)(1)(B).3 See 28 U.S.C. § 1331; 29 U.S.C. § 1132(e)(1). In an

order ruling on various motions, the district court granted Aetna’s motion for


       3
          A participant in, or beneficiary of, an ERISA-governed plan has a private right of
action “to recover benefits due to him under the terms of his plan . . . .” 29 U.S.C.
§ 1132(a)(1)(B).

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summary judgment, holding that its denial of long-term total disability benefits to

Oliver was not wrong. 4

       Oliver filed this appeal from the district court’s grant of summary judgment

to Aetna. Oliver argues that the district court incorrectly placed the burden of

proof on him to show that Aetna’s denial of benefits decision was wrong. From

there, he says, the court erred in finding no error in Aetna’s denial of benefits. In

particular, the court allegedly erred by accepting Aetna’s argument that because its

definition of long-term disability used “different criteria” than those used by the

SSA, the favorable SSA ruling did not control Aetna’s determination. Oliver

further argues that the district court applied an incorrect standard of review in its

alternative holding 5 that, even if wrong, Aetna’s denial of benefits was not

arbitrary and capricious. Rather than this more deferential standard, which the

district court held would apply, Oliver contends that a de novo standard applies.

Finally, Oliver argues that the doctrine of judicial estoppel should have applied to

prevent the termination of his benefits.
       4
         The district court also held in favor of Aetna on its counterclaim for $5,912.63 in
overpaid long-term disability benefits, due it to offset the benefits paid to Oliver by the SSA.
Oliver has not argued on appeal that this was error.
       5
         Because the district court did not find the denial of benefits to be wrong under its initial
de novo review, it did not have to address the standard of review that would have been
appropriate if Aetna’s decision had been deemed to be incorrect. Nonetheless, in the interest of
completeness, it determined that, given the discretion afforded the administrator, the arbitrary
and capricious standard would apply in this scenario, and that the decision was not arbitrary or
capricious.
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II.   STANDARD OF REVIEW

      We review de novo a district court’s decision affirming an ERISA plan

administrator’s determination regarding benefit eligibility, applying the same

standards as the district court. Blankenship v. Metro. Life Ins. Co., 644 F.3d 1350,

1354 (11th Cir. 2011). Our review considers only “the material available to the

administrator at the time it made its decision.” Id.

      Because ERISA does not set out a standard of review for challenges to the

denial of benefits brought under 29 U.S.C. § 1132(a)(1)(B), this Court has

developed a multi-part test, relying on the Supreme Court’s opinions in Firestone

Tire & Rubber Company v. Bruch, 489 U.S. 101, 109 (1989), and Metropolitan

Life Insurance Company v. Glenn, 554 U.S. 105, 111 (2008). We proceed in the

following manner:

      (1) Apply the de novo standard to determine whether the claim
      administrator’s benefits-denial decision is “wrong” (i.e., the court
      disagrees with the administrator’s decision); if it is not, then end the
      inquiry and affirm the decision.

      (2) If the administrator’s decision in fact is “de novo wrong,” then
      determine whether he was vested with discretion in reviewing claims;
      if not, end judicial inquiry and reverse the decision.

      (3) If the administrator’s decision is “de novo wrong” and he was
      vested with discretion in reviewing claims, then determine whether
      “reasonable” grounds supported it (hence, review his decision under
      the more deferential arbitrary and capricious standard).

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       (4) If no reasonable grounds exist, then end the inquiry and reverse
       the administrator’s decision; if reasonable grounds do exist, then
       determine if he operated under a conflict of interest.

       (5) If there is no conflict, then end the inquiry and affirm the
       decision.

       (6) If there is a conflict, the conflict should merely be a factor for
       the court to take into account when determining whether an
       administrator’s decision was arbitrary and capricious.

Blankenship, 644 F.3d at 1355.

III.   ANALYSIS

       Our analysis in this case begins and ends at the first step of the test. Upon

our de novo review, we conclude that Aetna’s determination that Oliver is not

entitled to long-term disability benefits was not “wrong.” “A decision is ‘wrong’

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

‘the court disagrees.’” Glazer v. Reliance Standard Life Ins. Co., 524 F.3d 1241,

1246 (11th Cir. 2008) (quoting Williams v. BellSouth Telecomms., Inc., 373 F.3d

1132, 1138 & n.8 (11th Cir. 2004)). We consider, “based on the record before the

administrator at the time [the] decision was made, whether [we] would reach the

same decision as the administrator. If [we] determine[] that the plan administrator

was right, the analysis ends and the decision is affirmed.” Id. at 1246–47.

Contrary to Oliver’s assertions, it is the law in this Circuit that when appealing the

plan administrator’s denial of long-term disability benefits, the plaintiff bears the
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burden to prove that he is disabled. Doyle v. Liberty Life Assur. Co. of Boston, 542

F.3d 1352, 1362 (11th Cir. 2008); Glazer, 524 F.3d at 1247; see also 29 U.S.C.

§ 1132(a)(1)(B) (2014). Oliver has not carried that burden.

      A.     “Total Disability” Under the Plan and the SSA Test

      Because Oliver’s argument relies in large part on the fact that the SSA

determined that he was totally disabled, we begin our analysis by comparing the

SSA test for total disability with that of the Plan. “A district court may consider

the [SSA’s] determination of disability in reviewing a plan administrator’s

determination of benefits.” Kirwan v. Marriott Corp., 10 F.3d 784, 790 n.32 (11th

Cir. 1994). However, we have held that “the approval of disability benefits by the

[SSA] is not considered dispositive on the issue of whether a claimant satisfies the

requirement for disability under an ERISA-covered plan.” Whatley v. CNA Ins.

Companies, 189 F.3d 1310, 1314 n.8 (11th Cir. 1999) (citing Paramore v. Delta

Air Lines, Inc., 129 F.3d 1446, 1452 n.5 (11th Cir. 1997)).

      The SSA test consists of a five-step sequence that the administrative law

judge (“ALJ”) follows in determining the claimant’s eligibility for long-term

disability benefits.

      At step one, the [ALJ] must determine whether the claimant is
      engaging in substantial gainful activity (20 CFR 404.1520(b)).
      Substantial gainful activity (SGA) is defined as work activity that is
      both substantial and gainful. If an individual engages in SGA, he is
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not disabled regardless of how “severe” his physical or mental
impairments are and regardless of his age, education or work
experience. If the individual is not engaging in SGA, the analysis
proceeds to the second step.

At step two, the [ALJ] must determine whether the claimant has a
medically determinable impairment that is “severe” or a combination
of impairments that is “severe” (20 CFR 404.1520(c)).               An
impairment or combination of impairments is “severe” within the
meaning of the regulations if it significantly limits an individual’s
ability to perform basic work activities. If the claimant does not have
a “severe” medically determinable impairment or combination of
impairments, he is not disabled. If the claimant has a “severe”
impairment or combination of impairments, the analysis proceeds to
the third step.

At step three, the [ALJ] must determine whether the claimant’s
impairment or combination of impairments is of a severity to meet or
equal the criteria of an impairment listed in 20 CFR Part 404, Subpart
P, Appendix 1 (20 CFR 404.1520(d), 404.1525, and 404.1526). If the
claimant’s impairment or combination of impairments is of a severity
to meet or equal the criteria of a listing and meets the duration
requirement (20 CFR 404.1509), the claimant is disabled. If it does
not, the analysis proceeds to the next step.

Before considering step four of the sequential evaluation process, the
[ALJ] must first determine the claimant’s residual functional capacity
(20 CFR 404.1520(e)). An individual’s residual functional capacity is
his ability to do physical and mental work activities on a sustained
basis despite limitations from his impairments. In making this
finding, the [ALJ] must consider all of the claimant’s impairments,
including impairments that are not severe (20 CFR 404.1520(e) and
404.1545; SSR 96-8p).

Next, [the ALJ] must determine at step four whether the claimant has
the residual functional capacity to perform the requirements of his
past relevant work (20 CFR 404.152(f)). The term past relevant work
means work performed (either as the claimant actually performed it or
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      as it is generally performed in the national economy) within the last
      15 years. In addition, the work must have lasted long enough for the
      claimant to learn to do the job and have been SGA (20 CFR
      404.1560(b) and 404.1565). If the claimant has the residual
      functional capacity to do his past relevant work, the claimant is not
      disabled. If the claimant is unable to do any past relevant work or
      does not have any past relevant work, the analysis proceeds to the
      fifth and last step.

      At the last step of the sequential evaluation process (20 CFR
      404.1520(g)), [the ALJ] must determine whether the claimant is able
      to do any other work considering his residual functional capacity, age,
      education, and work experience. If the claimant is able to do other
      work, he is not disabled. If the claimant is not able to do other work
      and meets the duration requirement, he is disabled. Although the
      claimant generally continues to have the burden of proving disability
      at this step, a limited burden of going forward with the evidence shifts
      to the Commissioner of the Social Security Administration. In order
      to support a finding that an individual is not disabled at this step, the
      Commissioner is responsible for providing evidence that demonstrates
      that other work exists in significant numbers in the national economy
      that the claimant can do, given the residual functional capacity, age,
      education, and work experience (20 CFR 404.1512(g) and
      404.1560(c)).

       “Disability” under the SSA test, means “inability to engage in any

substantial gainful activity by reason of any medically determinable physical or

mental impairment or combination of impairments that can be expected to result in

death or that has lasted or can be expected to last for a continuous period of not

less than 12 months.”

      By contrast, the Plan here describes the following procedure for providing

disability benefits:
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      Section 5.1. Proof of Disability. No Disability Benefit shall be paid
      under the Plan unless and until the claims Paying Administrator has
      received an application for benefits and information sufficient for the
      Claims Paying Administrator to determine pursuant to the terms of the
      Plan that a Disability exists. Such determination shall be made in a
      fair and consistent manner for all participants in the Plan. Such
      information may, as the Claims Paying Administrator shall determine,
      consist of a certification from the Covered Employee’s attending
      Practitioner, in a the form of personal references, narrative reports,
      pathology reports, x-rays and any other medical records or other
      information as may be required by the Claims Paying Administrator.
      In addition, a Covered Employee may be required, as the Claims
      Paying Administrator shall determine, to submit to continuing proof
      of Disability in the form of the information described above, as well
      as evidence that he continues to be under the care and treatment of a
      Practitioner during the entire period of Disability. If, in the opinion of
      the Claims Paying Administrator, the Practitioner selected by the
      Covered Employee cannot substantiate the Disability for which a
      claim is being made or benefits are being paid hereunder, such
      Employee may be required to submit himself to an examination by a
      Practitioner selected by the Claims Paying Administrator. The burden
      of proof for establishing a Disability is on the Covered Employee.

Under the Plan, determinations of “disability” require “significant objective

findings which are defined as signs which are noted on a test or medical exam and

which are considered significant anatomical, physiological or psychological

abnormalities which can be observed apart from the individual’s symptoms.” The

Plan further defines “total disability” as “the complete inability . . . because of a

medically-determinable physical or functional impairment . . . to engage in any

compensable employment for twenty-five hours per week.”



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      Thus, the Plan’s test for total disability differs in several ways from that of

the five-step SSA test. First, the SSA test categorizes as disabled one who cannot

perform “substantial gainful activity.” Under the Plan, however, total disability

means “the complete inability . . . to engage in any compensable employment for

twenty-five hours per week.” Thus, the Plan imposes a higher standard upon a

claimant. Second, the fifth step of the SSA test precludes a finding of disability,

even for a person able to perform work, unless the SSA Commissioner can prove

the existence of jobs, in significant numbers, that the claimant can do, given not

only his impairment, but also his age, education, and work experience. In contrast,

the Plan does not take the availability of jobs into consideration. Third, the SSA

test, as interpreted by this Circuit, recognizes that “pain alone can be disabling,

even when its existence is unsupported by objective evidence.” Francis v.

Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985). The Plan, by contrast, requires

“significant objective findings . . . which can be observed apart from the

individual’s symptoms.” Or, as Aetna explained to Oliver, “Pain, without

significant objective findings, is not proof of disability.” Finally, although a court

must give special weight to the opinions of a claimant’s treating physician in social

security cases, the same deference does not apply to disability determinations




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under employee benefit plans governed by ERISA. Black & Decker Disability

Plan v. Nord, 538 U.S. 822, 825 (2003).

      Thus, based on our precedent and the manifestly different criteria of the SSA

and the Plan, Oliver cannot simply rely on the determination by SSA in

challenging Aetna’s denial of benefits. Rather, the question of whether the denial

of benefits was wrong must turn on the evidence of disability itself. We turn now

to that evidence.

      B.     The Evidence Presented in Support of Oliver’s Claim

      Oliver bore the burden of producing evidence to show his entitlement to

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

F.3d 1038, 1040 (11th Cir. 1998). Our analysis therefore turns to the evidence

submitted by Oliver to Aetna in support of his claim for long-term total disability

benefits. See Glazer, 524 F.3d 1246-47. We summarize the key portions of that

record.

      On January 12, 2010, orthopedic surgeon Dr. Lawrence J. Lemak stated in a

clinic note that, “[g]iven the extent of [Oliver’s] arthritic change in his knee and

the demands of his profession as a FedEx truck driver, we supported [Oliver’s]

thoughts of heading down application route [sic] for disability . . . [W]e do not feel

he would be able to effectively perform his job as a truck driver.”

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      A June 7, 2010 office note from neurosurgeon Dr. Joel O. Pickett appeared

to show some responsiveness to treatment. Dr. Pickett stated that Oliver’s “leg

pain has resolved with an epidural steroid injection, although he still has some

lower back pain. Overall he seems to be doing better and is getting about well

[sic].” Dr. Pickett noted that Oliver appeared to have stenosis of the L4-5

vertebrae, for which he recommended epidural steroid injections and physical

therapy. If those treatments failed to resolve his back pain, Dr. Pickett would

“look into this further with a lumbar myelogram and possibly proceed with

surgery.”

      On October 11, 2010, Oliver underwent total knee replacement surgery on

his left knee, which seemed to improve his condition considerably. Dr. Lemak’s

office notes from December 14, 2010 recorded Oliver’s progress since that

surgery. Dr. Lemak described Oliver as “doing extremely well. He is advised to

continue his range of motion and muscle strengthening exercises. He will follow

up in 4 months.”

      On January 21, 2011, however, Dr. Lemak submitted a physician’s report on

Oliver, indicating that, due to his osteoarthritis, Oliver could neither work “Full

Duty” nor “with Restrictions.” Dr. Lemak did indicate that Oliver’s condition had




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not reached a “PERMANENT & STATIONARY status.” He advised that Oliver

should perform “no work until re-evaluated on 4/5/2011.”

       On April 8, 2011, Oliver underwent an MRI of his lumbar vertebrae, which

was evaluated by Dr. Arthur A. Jones and Dr. David Simmons. Those physicians

summarized that “[t]here is a diffusely narrowed central canal throughout the

lumbar spine with accompanying short pedicles. There are disc herniations at L4-5

and L5-S1 that are slightly asymmetric to the right with narrowing of the right

lateral recesses at these two levels and probable nerve root impingement of L5 and

S1.” They made no note of how this might affect his work ability.

       On April 11, 2011, Dr. Faulkner, an orthopedic surgeon and colleague of Dr.

Lemak, produced a clinic note on Oliver after reviewing his medical history,

performing a physical exam, and evaluating x-rays of his spine. Dr. Faulkner

concluded that Oliver had “Degenerative disc disease at multiple levels.” Dr.

Faulkner recommended against surgery, but believed Oliver should “get on a home

exercise program.”

       Dr. Lemak concluded on September 9, 2011, after evaluating Oliver, “it’s

my professional opinion that he will be unable to return to Federal Express as a

Courier, secondary to total knee replacement.” 6 Dr. Lemak examined Oliver three

       6
        As mentioned, Oliver underwent total knee replacement on October 11, 2010, which
Dr. Lemak recognizes in his December 14, 2010 note and again in his December 15, 2011 note.
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months later, and in his clinical notes stated that Oliver was “doing well. He does

not have any pain. He will occasionally feel soreness if he has been on it for a

while.” The clinic notes record that “[a]t this time, we will recommend him to

continue his strengthening exercises for his left knee as well as range of motion. In

regards to his work, since his work involve [sic] lot [sic] of walking around, which

might affect the longevity of his knee, we would like to keep him off work.” On that

basis, Dr. Lemak, in response to an inquiry from Aetna, stated that in his opinion

Oliver was “unable to work at any compensable employment for a minimum of

twenty-five hours per week.”

       Aetna referred these materials to an orthopedic surgeon, Dr. Lawrence

Blumberg, on December 23, 2011, for independent review.7 After summarizing

the records, Dr. Blumberg gave his opinion on January 8, 2012 that Oliver could

engage in some compensable employment for a minimum of 25 hours per week,

explaining:

       The claimant’s physical examination findings for the left knee
       revealed a well-healed incision with no effusion. There was
       essentially normal range of motion and a stable knee. The x-rays

It is thus not clear what Dr. Lemak means by “secondary to total knee replacement” in the
September 9, 2011 note.
       7
         Dr. Blumberg reviewed the following materials: (1) “Office note from Dr. Joel Pickett,
Neurosurgeon dated 6/7/10”; (2) “Office note from Dr. Faulkner, Orthopedic Surgeon dated
4/21/11”; (3) “Office notes from Dr. Lemak dated 12/14/10, 4/21/11 and 12/15/11”; and (4)
“Work Status Letter from Dr. Lawrence Lemak, Orthopedic Surgeon dated 12/15/11.”
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       revealed good alignment of the total knee components. There was no
       evidence the claimant couldnot [sic] stand, sit, or ambulate. There is
       no evidence the claimant could not lift up to ten pounds. He is
       therefore capable of at least any occupation/sedentary activities for a
       minimum of 25 hours per week.

Based on Dr. Blumberg’s review, Aetna denied Oliver’s claim for long-term total

disability benefits on January 12, 2012, and Oliver appealed.

       On February 17, 2012, Aetna submitted the records Dr. Blumberg reviewed,

along with further medical records produced by Oliver, to Dr. Martin

Mendelssohn, another orthopedic surgeon, to review for Oliver’s appeal.8 Dr.

Mendelssohn came to the same conclusion that Oliver could work some

compensable employment for a minimum of 25 hours per week, explaining:

       This claimant has chronic problems in his low back but is not a
       surgical candidate although he has degenerative changes and
       abnormalities at multiple levels with MRI, his clinical examination is
       nonfocal and it was determined by his spine surgeon that he is not a
       surgical candidate. In the past he has received an epidural injection
       which resolved his leg symptomatology, but the claimant continues to
       have axial back pain without neurological findings. With respect to
       his left knee, he underwent a total knee arthroplasty. There has been
       no documentation any complication [sic]. He has functional range of
       motion, no instability. X-rays reveal the components are in excellent
       position without evidence of loosening, and there is no evidence
       documented that the claimant would not be able to stand, sit, or

       8
          In addition to the materials submitted to Dr. Blumberg, Dr. Mendelssohn was presented
with (1) “General Peer Review Dr. Blumberg 12/27/11”; (2) “Note from Dr. Pickett 05/10/10”;
(3) “Physician Report Dr. Lemak 01/21/11”; (4) “MRI Lumbar Spine 04/08/11”; (5) “MRI
Result Sheet 04/21/11”; (6) “Patient Pain Drawing 04/21/11”; (7) “Patient Referral 04/21/11”;
(8) “Dictation Tracking Sheet 04/21/11”; (9) “Correspondence from Dr. Lemak 09/09/11”; and
(10) “Surgery & Diagnostic Order Sheet undate [sic].”
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      ambulate nor would be unable to lift a minimum of ten pounds and
      therefore, the claimant is able to function in a sedentary occupation
      for a minimum of 25 hours per week.

Based upon Dr. Mendelssohn’s review, the AARC denied Oliver’s appeal on

March 13, 2012.

      Upon this Court’s de novo review of the record, we conclude that Aetna was

not wrong in denying long-term disability benefits to Oliver. First, as discussed,

the Plan sets a more demanding standard for total disability than what the SSA test

imposes. Therefore, Aetna’s denial of disability is not necessarily called into

question by the SSA ruling. Second, the records submitted to Aetna fail to

establish that Oliver can perform no compensable employment for a minimum of

25 hours per week. The clinical notes from Oliver’s treating physicians

consistently show that his back pain was treatable, probably with physical therapy

rather than surgery, and there was no indication that the pain Oliver suffered from

his back condition would prevent him from performing various, probably non-

manual labor, jobs. The record of his knee problems likewise provide no basis for

concluding that Oliver could not perform some form of sedentary employment.

Further, Dr. Lemak gave no reasons for the change of prognosis between

September 2011, when he stated that Oliver would be unable to return to work as a

courier, and December 2011, when he stated that Oliver could perform no

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compensable work for 25 hours a week. Lemak’s own clinical notes from that

period record that Oliver experiences “no pain” unless he is using the leg for some

period of time, and that work as a courier was to be avoided, because it involved a

lot of moving around, which could interfere with Oliver’s recovery. It did not

explain why sedentary employment would be problematic.

      Because Oliver’s SSA determination was submitted to the AARC for its

review, and therefore constitutes part of the record we review, we note from the

ALJ’s order certain facts that support the AARC’s decision to deny benefits to

Oliver. At the SSA hearing, Oliver testified about his daily routine, which the ALJ

summarized:

      [H]e arises at 6:00 in the morning, gets coffee, and is then from the
      bed to the couch, due to stiffness. He testified that he eats breakfast at
      8:00, and assists with getting the children off to school. He testified
      that he takes a one-hour class two days per week, and becomes stiff in
      class, he is able to get up and move around during class. He reported
      being at the hearing for two hours increased his pain level. He
      testified that he drives approximately twenty to twenty-five miles per
      week. He also testified that he attends church on Sundays. The
      claimant testified that he takes Lortab and Robaxin as needed but that
      the Lortab causes drowsiness, sweating, and sometimes keeps him
      awake. He further testified that two or three times weekly, he has to
      elevate his knee for one hour at a time; and that he has trouble
      manipulating steps and stairs at times. He testified that he received
      steroidal treatments to the knee and epidurals to his back; and is
      currently in physical therapy where he performs stretching exercises.
      In addition, the claimant testified that he is able to walk twenty-five
      yards; and if necessary, could walk goal post to goal post. He also
      testified that he is able to stand for twenty minutes, and sit for thirty
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       minutes to an hour. He testified that he is able to lift ten pounds. He
       testified that his father-in-law and wife perform the yard work. He
       testified that golf and softball were prior hobbies, but he had not
       played in two years. He testified that his girls participate in sports
       activities, and he occasionally attends the functions, but has
       difficulties climbing the steps in the sports arenas, and has to
       frequently stand, until he is no longer able to stand comfortably. He
       also testified that the heat and cold temperatures worsen the pain. He
       testified that he is unable to return to work at his prior job as a
       courier, because it required a lot of lifting, walking, and driving. He
       testified that he feels his [sic] is unable to work a forty-hour week
       because his back will not hold up.

       Oliver’s SSA testimony thus reveals that, although he experiences pain and

has difficulties in getting around, he is able to participate in various activities:

getting his children ready for school; attend classes, church, and sporting events;

drive a car; walk short distances; and participate in physical therapy. This level of

activity that Oliver testified that he can manage is consistent with many part-time,

fairly sedentary jobs.9

       For these reasons, we determine, upon de novo review, that Aetna was not

wrong in denying long-term disability benefits to Oliver because, based on the

evidence Oliver presented to Aetna and the AARC, the latter’s conclusion that




       9
         Further, the determination of the ALJ was that “[m]edical improvement is expected
with appropriate treatment. Consequently, a continuing disability review is recommended in 12
months.” Thus, as the district court noted, “Oliver, at best, has established a period of non-
permanent total disability under the SSA as of January 17, 2012.”

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Oliver was not totally disabled, as defined by the Plan, was not incorrect. 10

       C.      Does Judicial Estoppel Apply?

       Oliver’s final argument is that Aetna should be judicially estopped from

disagreeing with the SSA’s conclusion that Oliver was totally disabled. Oliver

argues that because its plan required him to apply for SSA benefits, Aetna

implicitly endorsed the SSA criteria of total disability, and its findings. But the

Eleventh Circuit case relied upon by Oliver—Melech v. Life Insurance Company

of North America, 739 F.3d 663 (11th Cir. 2014)—does not support his

argument. 11

       In Melech, while considering claimant Melech’s claim for disability benefits

under the employee plan, the plan administrator had required Melech to apply for

SSA benefits. Yet, in ultimately deciding to deny benefits under its plan, the

administrator refused to consider any evidence from the SSA process, making its


       10
          As noted, the district court sustained Aetna’s finding of no disability on the alternative
ground that the Plan gave AARC discretion over the decision whether Oliver was disabled and,
that being so, even a “wrong” decision by AARC would not be reversible unless that decision
was arbitrary and capricious. The court concluded that AARC’s decision was neither arbitrary
nor capricious. Although we perceive nothing faulty about the district court’s reasoning on this
point, we do not have to firmly decide this matter, given our conclusion that, even under a de
novo review, Aetna’s decision that there was no qualifying disability was not a “wrong”
decision.
       11
           The district court held that because Oliver only raised his judicial estoppel argument at
summary judgment, rather than in his complaint, it was procedurally improper. The court
nonetheless held that the argument failed on the merits. Because we agree with the district court
that the judicial estoppel argument is meritless, we affirm on that ground.
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decision on a record that excluded any information that was available from that

agency. Id. at 673. The district court held that the administrator’s decision was

correct based on the record before it, but again this record did not include any of

the SSA information.

      We reversed, but not because we concluded that, having required the

claimant to simultaneously pursue SSA benefits, the administrator was judicially

estopped from doing anything but adhering to the SSA’s decision. Instead,

explaining that the administrator “is not free to selectively use evidence in this

manner,” id. at 675, and that “an administrator’s decision to deny benefits must be

based on a complete administrative record,” id. at 676, we reversed because we

concluded that the administrator had acted in a way that created “procedural

unfairness” to Melech. Id.

      Indeed, had we concluded that the administrator was judicially estopped

from contesting a finding of disability by the SSA, we would have simply reversed

and directed a judgment for Melech. But we did not do that. We remanded the

case, requiring only that the administrator “decide Melech’s claim with the full

benefit of the results generated by the SSA process that it helped to set in motion.”

Id. at 676-77. Indeed, we were quite explicit that we were not “prejudg[ing] the

ultimate outcome” on remand, stating “We do not imply that the SSA’s ultimate

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conclusion that Melech was ‘disabled’ under the SSA standard creates a

presumption that she is eligible for benefits under the Policy.” Id. at 676 and n.21.

      Unlike the administrator in Melech, the administrator in this case did take

Oliver’s SSA determination into account when it considered his appeal. Thus, the

concern about procedural unfairness that troubled the Melech court does not arise

in this case. Second, because the favorable SSA determination did not create a

presumption of disability under the Plan and because Aetna explained to Oliver

that the Plan imposed a different definition of disability than that used in the SSA

test, there is no reason to conclude that Aetna was acting arbitrarily and

capriciously when it reached a different decision than did the SSA. See Whatley,

189 F.3d at 1314 n.8. We therefore reject Oliver’s judicial estoppel argument.

IV.   CONCLUSION

      For the above reasons, we affirm the district court’s grant of summary

judgment in favor of Aetna. In doing so, we conclude, based on our de novo

review of Aetna’s denial of benefits to Oliver, that its decision was not wrong. We

further reject Oliver’s argument that judicial estoppel operates to require Aetna to

follow the SSA’s determination that Oliver is totally disabled.

      AFFIRMED.




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