                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0994n.06
                           Filed: December 20, 2005

                                          No. 05-1090

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


MONIKA J. BOONE,                                )
                                                )
       Plaintiff-Appellant,                     )
                                                )
v.                                              )    ON APPEAL FROM THE UNITED
                                                )    STATES DISTRICT COURT FOR THE
LIBERTY LIFE ASSURANCE COMPANY                  )    WESTERN DISTRICT OF MICHIGAN
OF BOSTON,                                      )
                                                )
       Defendant-Appellee.                      )




       Before: NELSON, DAUGHTREY and SUTTON, Circuit Judges.


       SUTTON, Circuit Judge. In this appeal, Monika Boone challenges the district court’s

resolution of her claim against Liberty Life Assurance Company for long-term disability benefits

under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001 et seq.

As Liberty’s decision to deny benefits was neither arbitrary nor capricious, we affirm.


                                                I.


       On June 14, 2001, Boone suffered a whiplash injury from a car accident. She tried to return

to her job at Steelcase, Ltd. the next day but found herself to be in too much pain. Her personal

physician, Dr. J.D. Maskill, diagnosed her as having a “cervical strain” and filled out a form to
No. 05-1090
Boone v. Liberty Life Assurance Co.

excuse her from work from June 24 to July 9, 2001. He issued similar doctor’s notes on July 16,

August 7, August 24, September 7, September 21 and October 19 of 2001.


       The Steelcase disability plan has three tiers. For the first six months after an injury, Steelcase

self-insures a short-term disability program administered by Liberty. After that period, Steelcase self-

insures, and Liberty administers, the initial six months of the long-term disability plan. In those first

six months of long-term coverage, a participant is “disabled” if she “is unable to perform the

Material and Substantial Duties of [her] Own Occupation.” JA 80. After these six months (after, in

other words, a full year from the disabling injury), Liberty insures and administers the remainder of

the long-term disability coverage. “Disability” under this portion of the plan is defined as an

“inability to perform the usual duties of Any Occupation or any other suitable job that meets [her]

restrictions, or for Any Occupation for which [she] is or may reasonably become qualified based on

[her] education, training or experience.” Id.


       From June 2001 to December 2001, Liberty approved Boone for short-term disability benefits.

During that time, Dr. Maskill referred her to physical therapy, where Boone reported continued pain

measuring 80 on a scale of 100 “in the right shoulder to the middle of the neck to the head” and

“difficulty with sleeping secondary to pain, soreness in the morning, increased pain with computer

work and with reading, pain and difficulty with driving the car secondary to problems turning the

head.” JA 231. Boone ended physical therapy on November 21, 2001, with the therapist noting that

Boone had “plateaued” and that the “max[imum] benefit [had already been] achieved.” JA 241.




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       On November 27, 2001, Dr. Maskill referred Boone to Dr. Peter Herkner, an orthopedic

specialist, who noted that she reported that “sitting, standing, lying down, twisting, and lifting[]

aggravate her symptoms.” JA 201. After examining her, Dr. Herkner noted that while Boone is

“quite guarded” in her spinal movements, “[s]he is not tender to palpation,” “[t]here is no appreciable

spasm . . . in the paracervical muscles,” there is “no visible atrophy in the upper extremities,” “[s]he

has intact biceps, triceps” and “[t]here are no strength or sensory deficits in the upper extremities.”

JA 202. He observed that her x-rays showed “some narrowing at C5–6,” but he indicated that “the

alignment is satisfactory,” there are “no erosive or destructive changes” and there is “no evidence of

subluxation or alignment pathology.” Id. He finally diagnosed her with cervical spondylosis, a

common degenerative disease of the spine, and called for an MRI, but noted that treatment would

likely focus on helping Boone “deal with the dilemma, as opposed to offering her a cure.” JA 203.

To that end, Dr. Herkner stated that his plan for the patient was to enroll her in the PEAK Program

at Rehab Professionals, a pain management program that combines physical and mental therapy with

medication and other courses of treatment.


       While Boone was waiting to have an MRI and to begin the PEAK program, Steelcase’s short-

term disability program expired and Liberty considered her eligibility for the first six months of long-

term disability. On January 9, 2002, Liberty requested medical records from Boone’s doctors. Dr.

Herkner replied that the MRI “shows slight narrowing and dessication at 4–5” and “Monika has

failed the traditional approach to her symptomatic cervical spondylosis.” JA 448. Based largely on




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Dr. Herkner’s ongoing treatment, Liberty approved Boone for the first six months of long-term

disability coverage.


       Boone began the PEAK program at the end of May 2002 and was discharged on June 28,

2002, for lack of progress. Her physical therapist, Sharon Leeder, wrote in the discharge summary:

“We had repeatedly established plans in which the patient was involved in identifying goals to be

achieved throughout the week with functional improvements to take place. There was very little

follow through from a functional standpoint and significant increase in subjective complaints.” JA

197. Leeder also indicated that there was little “progress with the patient with regard[] to increasing

her ability to manage things.” Id. She noted that Boone and her husband were resistant to aiming

for a return to work until Boone could better manage herself at home. “I do not recommend,” Leeder

concluded, “any further physical therapy at this time secondary to very limited follow through and

feel that the patient should continue with her stretching and conditioning regimen[].” Id. Dr. Michael

Jakubowski, the head of PEAK, added that Boone “is not following through functionally with basic

day-to-day activities at home. She is not performing those or filling out the logs or bringing back to

us concerns about particular difficulties she is having with them. She just states that she cannot do

them.” JA 198. He concluded that “[i]n the face of this lack of progress, there is no reasonable

reason to pursue further treatment here. I cannot ascribe all of her findings to physiologic causes.”

Id.


       On April 30, 2002, with the first six months of long-term disability approaching an end (on

June 30, 2002), Liberty sent a letter to Boone informing her that the definition of disability for the

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Boone v. Liberty Life Assurance Co.

program would change and that the company would be contacting her doctors for records to

determine if she remained eligible for coverage. In response, Dr. Herkner noted that he had last seen

Boone on January 18, 2002, and that he had recommended her for PEAK. Asked whether the patient

had responded to the treatment plan, Herkner replied, “Yes, patient is going to PEAK program.” JA

364. He also noted that Boone “may not work at all” until such time as “to be determined pending

[the] PEAK eval[uation].” Id. Dr. Maskill returned a similar restrictions form, diagnosing Boone

with “chronic cervical strain” and stating that she was “unable to work secondary to pain.” JA 298.

The form noted that she had not responded to the treatment plan of “ortho[pedic] referral [and]

med[ication].” Id.


       From June 7 until June 24, 2002, Liberty hired a surveillance firm to observe Boone’s daily

activities. The resulting report noted that Boone “does not appear to be physically handicapped nor

does she wear any visible back brace or cervical collar” and that she “engaged in physical activities

including turning her head in a normal fashion.” JA 318. Video footage compiled by the firm

showed Boone walking, standing, carrying flowers and entering a vehicle in a normal fashion.


       On July 25, 2002, Liberty denied Boone’s application for continued benefits. While Liberty

acknowledged that she had a “certain amount of neck pain,” the company concluded in a letter sent

to Boone that “we do not know your restrictions and limitations, nor your treatment plan.” JA 303.

The letter reserved the right to make further determinations based on any other information provided.




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Boone v. Liberty Life Assurance Co.

       On September 12, 2002, Boone administratively appealed the decision. Liberty asked Susan

Terry, a registered nurse, to evaluate the appeal. Terry obtained Boone’s PEAK file as well as the

old x-rays, MRI, doctors’ notes and restriction forms. She concluded that Boone suffered “what is

essentially a whiplash injury” but that there “is no objective medical evidence of any cervical disc,

spinal cord or nerve root pathology.” JA 117. The report noted that Boone had spondylosis of C5–6,

which is “part of the normal aging process [and] is consistent with her age.” Id. The report

proceeded to note that Drs. Jakubowski and Herkner had observed that Boone’s subjective reports

of pain could not be explained based only on physiology. The report concluded that “there is a

distinct lack of any positive physical findings that indicate any significant impairment” and “no

objective medical evidence of impairment that substantiates an inability to perform meaningful

physical activity on a consistent, dependable basis.” Id. Based on this report, Liberty upheld its

denial of coverage, adopting Terry’s conclusion as the reason.


       On February 9, 2004, Boone filed this lawsuit under ERISA, 29 U.S.C. § 1132, claiming a

breach of fiduciary duty by Liberty and a right to recover benefits. Liberty moved for judgment on

the administrative record. See Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609 (6th Cir. 1998).

The district court concluded that “Liberty Life’s denial of benefits was rational in light of both the

medical evidence and the Policy’s provisions.” D. Ct. Op. at 11, JA 65.




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                                                 II.


       When an ERISA disability plan gives the administrator discretionary authority to determine

eligibility for benefits, as this one does, we evaluate a challenge to the administrator’s eligibility

determination not for mere error but for arbitrary and capricious error. See Gismondi v. United Tech.

Corp., 408 F.3d 295, 298 (6th Cir. 2005); Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115

(1989). In this case, the relevant portion of the plan states that “[t]he benefit will be paid for the

period of Disability if the Covered Person gives to Liberty Proof of continued: 1. Disability; 2.

Regular Attendance of a Physician; and 3. Appropriate Available Treatment.” JA 90. Proof is

defined in part as “the provision by the attending Physician of standard diagnosis, chart notes, lab

findings, test results, x-rays and/or other forms of objective medical evidence in support of a claim

for benefits.” JA 83 (emphasis added).


       On appeal, Boone claims that the pain in her back and neck is so severe that she qualifies as

disabled under Steelcase’s long-term disability plan.     She complains that movement in general

(including walking) and postural stresses in particular (including sitting, standing, lying down,

twisting and lifting) aggravate her pain to the point where she cannot work. The only objective

records of Boone’s pain made available to Liberty, however, were the June 2001 x-rays taken

immediately after her accident, the November 2001 x-rays taken by Dr. Herkner and the January

2002 MRI. In analyzing these tests, Nurse Terry concluded that Boone had “minor spondylosis at

C5–6,” which is “normal for aging.” JA 118. She also noted “disc bulging at C5–6 without nerve




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Boone v. Liberty Life Assurance Co.

or cord compression.” JA 118. “[T]here is no objective medical evidence,” she concluded, “of any

cervical disc, spinal cord or nerve root pathology.” JA 117.


       Aside from unsupported and unexplained statements from her doctors that Boone “[is] unable

to work secondary to pain,” that she “may not work at all” and that she has “intolerable pain in neck,”

JA 298–300, Boone has not refuted Terry’s conclusion, and indeed many of her doctors’ diagnoses

are consistent with Terry’s analysis. For example, Boone’s orthopedic specialist, Dr. Herkner,

diagnosed her with “cervical spondylosis with discogenic mechanical neck pain.” JA 202. The

analysis of the January 2002 MRI lists the spondylosis as “mild,” JA 204, and Dr. Herkner noted in

his review that there was no “significant compression,” JA 199. In reviewing the x-rays, he noted

that “[n]o erosive or destructive changes are identified.” JA 202. Dr. Maskill diagnosed her with

“chronic cervical strain” but he reported no objective evidence upon which to base his diagnosis. JA

298. Finally, the specialists, Drs. Herkner and Jakubowski, each could not meaningfully connect

Boone’s complaints of pain to the physical conditions that they observed. See JA 203 (“The etiology

of the patient’s pain remains obscure.”); JA 198 (“I cannot ascribe all of her findings to physiologic

causes.”).


       In addition, PEAK’s psychologist noted “some symptom magnification.” JA 195. The

physical therapists in the PEAK program reported that Boone was resistant to talking about returning

to work even when her symptoms appeared to be abating. They also reported that her husband

demanded that she return to doing all household chores and be “back to normal” before returning to

work. JA 169–70. “She tends to think,” the PEAK doctors noted, “that there will be no activities she

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Boone v. Liberty Life Assurance Co.

can perform which are enjoyable if she cannot find some way to be rid of 100% of her pain.” JA 166.

Independent observations by a surveillance firm hired by Liberty—showing Boone walking, carrying

flowers, getting into and out of cars, and leaving the house for extended periods of time—also

undermined Boone’s application. In the end, Terry concluded that an evaluation of Boone’s file

showed a “distinct lack of any positive physical findings that indicate any significant impairment.”

JA 117.


       In reviewing a plan administrator’s denial of benefits, we of course are not a “rubber stamp.”

Moon v. Unum Provident Corp., 405 F.3d 373, 379 (6th Cir. 2005). But the determination must be

upheld if the “decision regarding eligibility for benefits . . . is rational in light of the plan’s

provisions.” Spangler v. Lockheed Martin Energy Sys., Inc., 313 F.3d 356, 361 (6th Cir. 2002)

(quotations omitted). On this record, we cannot conclude that Liberty acted irrationally in denying

Boone’s appeal on the ground that there is a “lack of any positive physical findings that indicate any

significant impairment that would substantiate an inability to perform any occupation.” JA 133.


       Attempting to forestall this conclusion, Boone argues that Liberty has “arbitrarily

disregard[ed] the assessments and instructions of [her] medical doctors.” Boone Br. at 21. Liberty,

true enough, has not embraced the disability conclusions of these doctors. But it has not “arbitrarily

disregarded” them: It chose not to credit them because they were not supported by objective medical

evidence, which is what the plan requires. In the context of an ERISA disability plan, moreover,

neither courts nor plan administrators must give special deference to the opinions of treating

physicians. See Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003) (“[C]ourts have

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no warrant to require administrators automatically to accord special weight to the opinions of a

claimant’s physician; nor may courts impose on plan administrators a discrete burden of explanation

when they credit reliable evidence that conflicts with a treating physician’s evaluation.”).


       Boone next argues that Liberty did not engage an independent physician to undertake an

analysis of her claim but relied on a nurse (Terry) to do so. But this circuit has never held that a plan

administrator must hire a physician to undertake an independent review of an applicant’s records

before denying benefits. See, e.g., Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376 (6th Cir.

1996); see also Wages v. Sandler, O’Neill & Partners, L.P., No. 00-5994, 2002 U.S. App. LEXIS

3535 (6th Cir. March 1, 2002). And the circuit has upheld the decision of a plan administrator where

a nurse reviewed the medical evidence. See Wages, 2002 U.S. App. LEXIS 3535, at *4. At all

events, Boone has not explained what reports and diagnoses submitted in support of her application

would have been appreciated by a doctor but were beyond the ken of Nurse Terry.


       Boone next points out that Liberty granted her disability benefits in January 2002 but denied

them in July 2002 even though there was no discernible change in her physical condition during these

six months. A significant difference in the plan’s definition of disability, however, provides one

explanation for the two decisions. During the first six months of long-term coverage under the plan,

a participant is “disabled” if she “is unable to perform the Material and Substantial Duties of [her]

Own Occupation,” while after six months the plan requires the applicant to show that she is unable

“to perform the usual duties of Any Occupation or any other suitable job that meets [her] restrictions,

or for Any Occupation for which she is or may reasonably become qualified based on [her] education,

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Boone v. Liberty Life Assurance Co.

training or experience.” JA 80. Her plan of treatment provides another explanation for the

difference: In January 2002 Boone still was pursuing an appropriate course of treatment (the PEAK

program), something that was no longer true in July 2002.


       Boone, lastly, claims that another inconsistency undermines the plan administrator’s decision

—namely, that between the initial July 2002 decision and the December 2002 appeal, Liberty

changed its reason for denying her benefits. Liberty’s reason for initially denying benefits (a failure

to provide sufficient medical data) was indeed different from its later decision to uphold the denial

of benefits (an absence of objective medical evidence establishing disability). Yet the record

supports the change. Much of the data that Liberty requested from Boone’s physicians on May 24,

2002, and then requested again on July 9, 2002, was not received until after Liberty’s July 2002

determination. Liberty initially denied the claim because all that it had received, despite repeated

requests, was a partially filled out restrictions sheet, which provided none of the medical information

that Liberty required. Once Liberty received sufficient information to evaluate Boone’s medical

claims, it performed a review of the records, which failed to establish objective evidence of a

disabling condition. There is, in short, no arbitrary inconsistency between the two decisions.


                                                 III.


       For these reasons, we affirm.




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