                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-6-2004

Stratton v. EI DuPont de Nemours
Precedential or Non-Precedential: Precedential

Docket No. 03-2609




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"Stratton v. EI DuPont de Nemours" (2004). 2004 Decisions. Paper 754.
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                     PRECEDENTIAL            Stella L. Smetanka
                                             Jonathan Will (Argued)
   UNITED STATES COURT OF                           Law Student Specially Admitted
APPEALS FOR THE THIRD CIRCUIT                       Pursuant to Third Cir. LAR 46.3
                                             University of Pittsburgh School of Law
                                             210 South Bouquet Street
              No. 03-2609                    Sennott Square - Room 5220
                                             Pittsburgh, PA 15260

      MELANIE STRATTON;                             Attorneys for Appellants
  JEFFREY STRATTON, her husband
                                             Raymond M. Ripple (Argued)
                            Appellants       Donna L. Goodman
                                             E.I. DuPont de Nemours & Company
                    v.                       Legal Department
                                             Wilmington, DE 19898
 E. I. DUPONT DE NEMOURS & CO.
                                                    Attorneys for Appellee

   On Appeal from the United States
District Court for the Western District of          OPINION OF THE COURT
              Pennsylvania
         (D.C. No. 02-cv-02131)
 District Judge: Hon. Arthur J. Schwab
                                             SLOVITER, Circuit Judge.
                                                    Appellant Melanie Stratton appeals
         Argued March 8, 2004                from the order of summary judgment
                                             entered on behalf of defendant E.I. DuPont
  Before: SLOVITER, NYGAARD,                 de Nemours & Co. (“DuPont”). Stratton
  Circuit Judges and OBERDORFER,             filed this suit pursuant to the Employee
             District Judge*                 Retirement Inc om e S ec ur ity A ct
                                             (“ERISA”), 29 U.S.C. § 1132(a)(1)(B),
          (Filed April 6, 2004 )             seeking repayment of medical benefits she
                                             incurred for a surgical procedure to treat
                                             her temporomandibular joint dysfunction
                                             (“TMJ”).1 We have jurisdiction to hear
                                             this appeal under 28 U.S.C. § 1291.

   *
        Hon. Louis F. Oberdorfer, Senior
                                                1
District Judge, United States District               Stratton also included a bad faith
Court for the District of Columbia,          claim under Pennsylvania law that is not
sitting by designation.                      at issue in this appeal.
                    I.                            these treatments met with only temporary
                                                  relief, Dr. Donald J. Macher, an oral
        Stratton had health insurance
                                                  surgeon, suggested that Stratton undergo
through an employer-sponsored health
                                                  arthroplasty surgery for her TMJ. The
plan of DuPont, her husband’s employer.
                                                  full medical term for this surgery is
The plan covering Stratton excludes
                                                  “Right and Left Temporomandibular
“[c]harges for services or supplies not
                                                  Joint Reconstructive Arthroplasty,” J.
medically necessary for the diagnosis and
                                                  App. at 156, and it is an invasive
treatment of the illness or injury.” J.
                                                  procedure that involves repositioning
App. at 26.2 It defines the term
                                                  discs, lysis of adhesions, and the
“medically necessary” as a “service or
                                                  insertion of a previously constructed
supply which is reasonable and necessary
                                                  splint into the mouth.
for the diagnosis or treatment of an
illness or injury, in view of the customary               On or about November 13, 1999,
practice in the geographical area, and is         Aetna initially denied coverage for the
given at the appropriate level of care.” J.       surgery but in late December requested
App. at 15. It is undisputed that first           that Stratton submit an updated magnetic
Aetna U.S. Healthcare (“Aetna”), the              resonance image (“MRI”) so that her
insurance carrier for DuPont, and                 request could be further considered. The
ultimately DuPont had discretion to               most recent MRI in Stratton’s record
administer the plan with regard to                until that date was taken February 8,
medically necessary services and                  1990; at Aetna’s request, Stratton
supplies.                                         obtained an updated MRI on January 3,
                                                  2000. Stratton submitted the updated
       The facts set forth hereafter are
                                                  MRI, which a specialist at Aetna, Dr.
taken from the record on the summary
                                                  George Koumaras, reviewed. On
judgment motion and are not in dispute.
                                                  January 6, 2000, Aetna denied coverage
       In 1990, Stratton’s doctors                for the requested surgery on the ground
diagnosed her with TMJ, and for the next          that there were more conservative and
ten years she suffered from headaches             medically appropriate treatments
and the inability to open and close her           available, such as arthrocentesis or
mouth, chew, yawn, and laugh without              arthroscopic surgery. Arthrocentesis
pain. She underwent many forms of                 involves anesthetizing the affected TMJ
conservative treatment, including splint          and then flushing the joint with a sterile
therapy, orthodontia, dental work,                solution to lubricate the joint surfaces
analgesics and muscle relaxants. After            and reduce inflammation, see American
                                                  Academy of Orofacial Pain, at
                                                  http://www.aaop.org/info_arthro.htm;
   2
       We use “J. App.” to cite to the            arthroscopy involves inserting an
Joint Appendix, and “App.” to cite to             imaging and therapy device into the
Appellants’ Appendix.

                                              2
affected TMJ. See id. at                                 to a slightly less deferential
http://www.aaop.org/info_surgery.htm.                    standard because of the
Stratton nevertheless went ahead with the                slight conflict of interest.
arthroplasty surgery on January 13, 2000                 But even under a
and covered the cost of $9,829.05                        heightened standard of
herself.                                                 review, the record before
                                                         the administrator (Aetna)
       Following her surgery, Stratton
                                                         and, on appeal to the
continued to appeal the denial of benefits
                                                         DuPont Medical Care Plan,
within Aetna, which waited to review the
                                                         supports the denial of
post-operative report and any other
                                                         coverage for plaintiff’s
information pertinent to the surgery
                                                         TM J surgery.
before making a final decision on her
appeal. Aetna had three physicians                App. A at 6 (District Court Opinion).
review her claim, including Dr. Hendler
                                                          On appeal, we must consider
– an independent physician from the
                                                  whether the District Court properly
University of Pennsylvania who is Board
                                                  reviewed the denial of coverage under a
Certified in Oral and Maxillofacial
                                                  “slightly less deferential” arbitrary and
Surgery, specializes in TMJ, and was not
                                                  capricious standard, App. A at 6, and
involved in the original decision. Dr.
                                                  whether it properly granted the summary
Hendler also decided that less invasive
                                                  judgment motion. We exercise plenary
surgeries would have been more
                                                  review over a district court’s grant of
appropriate. Aetna denied Stratton’s
                                                  summary judgment. Skretvedt v. E.I.
claim on February 10, 2000.
                                                  DuPont de Nemours & Co., 268 F.3d
       Stratton appealed to DuPont.               167, 173-74 (3d Cir. 2001). Summary
DuPont reviewed the documents on                  judgment is proper if there is no genuine
which Aetna had based its denial and its          issue of material fact and if the moving
own files to see how similar cases had            party is entitled to judgment as a matter
been handled in the past to ensure that its       of law when viewing the facts in the light
plan was being administered consistently.         most favorable to the non-moving party.
On the basis of the record before it,             Fed. R. Civ. P. 56(c); Celotex Corp. v.
DuPont upheld Aetna’s denial of                   Catrett, 477 U.S. 317 (1986). We apply
coverage and informed Stratton of this            the same standard that the District Court
decision on April 18, 2000. The District          should have applied. Farrell v. Planters
Court held that the plan grants discretion        Lifesavers Co., 206 F.3d 271, 278 (3d
to determine eligibility for benefits,            Cir. 2000).
       which triggers the arbitrary                      Because the District Court
       and capricious standard of                 reviewed the claim under the appropriate
       review, diminished perhaps                 standard and did not err as a matter of


                                              3
law, we will affirm its decision.                  discretion.” Id. at 115 (internal quotation
                                                   and citation omitted).
                    II.
                                                           Attempting to distill this direction
A. Standard of Review
                                                   into a workable standard, we have held
        Stratton’s first argument on appeal        that “when an insurance company both
is that the District Court should have             funds and administers benefits, it is
used a heightened arbitrary and                    generally acting under a conflict that
capricious standard, but it is unclear that        warrants a heightened form of the
this would entail closer scrutiny of the           arbitrary and capricious standard of
decision of the employer than the                  review.” Pinto v. Reliance Standard Life
“slightly less deferential” arbitrary and          Ins. Co., 214 F.3d 377, 378 (3d Cir.
capricious standard of review employed             2000). This “heightened” form of review
by the District Court in the instant case.         is to be formulated on a sliding scale
App. A at 6. The standard of review in             basis, which enables us to “review[ ]the
cases brought under ERISA for benefits             merits of the interpretation to determine
denied is not always easy to apply. In the         whether it is consistent with an exercise
seminal case on this issue, the Supreme            of discretion by a fiduciary acting free of
Court stated that “a denial of benefits            the interests that conflict with those of
challenged under [ERISA, 29 U.S.C.] §              beneficiaries.” Pinto, 214 F.3d at 391
1132(a)(1)(B) must be reviewed under a             (quoting Doe v. Group Hospitalization &
de novo standard unless the benefit plan           Med. Servs., 3 F.3d 80, 87 (4th Cir.
expressly gives the administrator or               1993)). In employing the sliding scale
fiduciary discretionary authority to               approach, we take into account the
determine eligibility for benefits or to           following factors in deciding the severity
construe the plan’s terms.” Firestone              of the conflict: (1) the sophistication of
Tire & Rubber Co. v. Bruch, 489 U.S.               the parties; (2) the information accessible
101, 102 (1989). In cases where an                 to the parties; (3) the exact financial
administrator exercises discretion,                arrangement between the insurer and the
“[t]rust principles make a deferential             company; and (4) the status of the
standard of review appropriate” and the            fiduciary, as the company’s financial or
Court suggested that we review such                structural deterioration might negatively
exercises of discretion under the arbitrary        impact the “presumed desire to maintain
and capricious standard. Id. at 111-12.            employee satisfaction.” Pinto, 214 F.3d
The Supreme Court continued, “[o]f                 at 392.
course, if a benefit plan gives discretion
                                                           Our examination of the factors set
to an administrator or fiduciary who is
                                                   forth in Pinto in light of the
operating under a conflict of interest, that
                                                   circumstances in this case leads us to
conflict must be weighed as a factor in
                                                   conclude that the District Court did not
determining whether there is an abuse of
                                                   err in holding that the instant case

                                               4
“triggers the arbitrary and capricious             949 F.2d 1323, 1335 (3d Cir. 1991).
standard of review, diminished perhaps             However we have noted that a situation
to a slightly less deferential standard            in which the employer “establish[es] a
because of the slight conflict of interest.”       plan, ensure[s] its liquidity, and create[s]
App. A at 6. We assume there was a                 an internal benefits committee vested
sophistication imbalance between the               with the discretion to interpret the plan’s
parties. There is no reason why Stratton           terms and administer benefits” does not
would have had ERISA or claims                     typically constitute a conflict of interest.
experience, whereas DuPont, a large,               Pinto, 214 F.3d at 383. This describes in
successful company with many                       large part the mechanism DuPont chose
employees, had numerous such claims.               to fund and administer its benefits plan.
In fact, DuPont reviewed its record of             Although the case-by-case
claims before denying Stratton’s claim.            decisionmaking, which as Stratton points
It follows that this factor weighs in favor        out means that each claim dollar avoided
of heightening the standard. Regarding             is a dollar that accrues to DuPont, may
information accessibility, Stratton has            leave room for some bias, the fact that
alleged no information imbalance, nor              DuPont structured the program by using
should one be inferred. A review of the            Aetna to hear the claim initially provides
record shows a conscientious effort on             the safeguard of neutral evaluation. In
the part of Aetna to keep Stratton                 fact, the physicians to whose opinions
apprised of the information it had at its          Stratton objects were affiliated with
disposal and the reasons animating its             Aetna, not DuPont. This factor thus
decision to deny benefits. This second             counsels for only a slightly heightened
factor does not alter the arbitrary and            standard.
capricious standard.
                                                           The final factor regarding the
        The third factor, the exact                status of the fiduciary is not relevant.
financial arrangement between the                  Stratton alleges no facts regarding the
insurer and the company, requires more             financial health or long term plans of the
attention. The conflict alleged is that the        company that would undermine the
plan is funded by the employer, DuPont,            “presumed desire to maintain employee
on a case-by-case basis instead of on a            satisfaction.” Pinto, 214 F.3d at 392.3
fixed price basis that has been actuarially
determined. Theoretically, then, DuPont
                                                      3
may have some incentive to deny                           At oral argument DuPont argued,
coverage on individual requests,                   pursuant to Romero v. SmithKline
assuming that it has no interest in                Beecham, 309 F.3d 113, 118 (3d Cir.
“avoid[ing] the loss of morale and higher          2002), that the $9,829.05 claim is
wage demands that could result from                sufficiently de minimus compared to
denials of benefits.” Nazay v. Miller,             DuPont’s profits to negate any inference
                                                   of conflict. Because this was not

                                               5
Stratton alleges no facts that would give                decision without reason,
rise to an inference of conflict other than              unsupported by substantial
the fact that DuPont both funds and                      evidence or erroneous as a
ultimately administers its own plan after                matter of law. Once the
outsourcing the initial phases of                        conflict becomes a factor
administration. Given this, the District                 however, it is not clear how
Court properly heightened the arbitrary                  the process required by the
and capricious standard slightly to                      typical arbitrary and
accommodate what appears to be a                         capricious review changes.
potential, even if negligible, chance of                 Does there simply need to
conflict.                                                be more evidence
                                                         supporting a decision,
        It is easier to decide which
                                                         regardless of whether that
standard to use than to apply it because it
                                                         evidence was relied upon?
is not clear how to employ a slightly
heightened form of arbitrary and
capricious review.
                                                  Pinto, 214 F.3d at 392 (internal
       We acknowledged that                       quotations omitted).
       there is something
                                                         Finding this wanting, we decided
       intellectually unsatisfying,
                                                  that “we can find no better method to
       or at least discomforting, in
                                                  reconcile Firestone’s dual commands
       describing our review as a
                                                  than to apply the arbitrary and capricious
       heightened arbitrary and
                                                  standard, and integrate conflicts as
       capricious standard. . . .
                                                  factors in applying that standard,
       The routine legal meaning
                                                  approximately calibrating the intensity of
       of an arbitrary and
                                                  our review to the intensity of the
       capricious decision is . . . a
                                                  conflict.” Id. at 393. We concluded that
                                                  we “will expect district courts to consider
                                                  the nature and degree of apparent
discussed in the briefs, and because there        conflicts with a view to shaping their
is no evidence of record regarding                arbitrary and capricious review of the
DuPont’s financial health, we decline to          benefits determinations of discretionary
discuss the issue here. We noted in Pinto         decisionmakers.” Id.
“that when more money was at stake–i.e.,
                                                          Taking our cue from the
when a large class of beneficiaries
                                                  somewhat enigmatic Pinto language, we
requested and was denied benefits–the
                                                  will scrutinize carefully any allegations
potential conflict might invite closer
                                                  that Aetna erred in the manner in which
scrutiny.” Pinto, 214 F.3d at 386. No
                                                  it reviewed Stratton’s claim, as such
such large sum of money is at stake in
                                                  errors might confirm Stratton’s
the instant case.

                                              6
contention that there was a conflict of            invasive treatments had not worked for
interest. This would comport with the              Stratton in the past, and finally that they
sliding scale inquiry used in the Fourth           failed to accord sufficient deference to
Circuit, which gives the fiduciary                 the opinion of her treating physician.
decision “some deference, but this                 These arguments are unpersuasive.
deference will be lessened to the degree
                                                           In her briefs and during oral
necessary to neutralize any untoward
                                                   argument, Stratton asserts that an e-mail
influence resulting from the conflict.”
                                                   submitted by Dr. Koumaras, which
Group Hospitalization & Medical Servs.,
                                                   stated, “studies have shown that 85% of
3 F.3d at 87.
                                                   those cases operated on regarding
B. Summary Judgment                                respositioning of the disc do fail and the
                                                   disc usually relocates itself to the
        Of particular significance is our
                                                   dislocated position,” J. App. at 200,
precedent holding that a court may not
                                                   demonstrates that Aetna made its
substitute its own judgment for that of
                                                   determination of benefits based on a
plan administrators under either the
                                                   generalized review not focused on
deferential or heightened arbitrary and
                                                   Stratton’s individual experience.
capricious standard. Smathers v. Multi-
                                                   However, the statistical likelihood that
Tool, Inc./Multi-Plastics, Inc., 298 F.3d
                                                   the surgery will be successful is relevant
191, 199 (3d Cir. 2002) (citation
                                                   to deciding whether it is “medically
omitted). Even under the heightened
                                                   necessary.” Also, Dr. Koumaras’
standard, “a plan administrator’s decision
                                                   medical opinion was based on his
will be overturned only if it is clearly not
                                                   experience in and knowledge of the field,
supported by the evidence in the record
                                                   an important predicate for
or the administrator has failed to comply
                                                   recommendation of individual treatment.
with the procedures required by the
                                                   Furthermore, there are documents of
plan.” Id. at 199 (quoting Orvosh v.
                                                   record that show that Stratton’s claim did
Program of Group Ins. for Salaried
                                                   receive individualized attention. One
Employees of Volkswagen of Am., Inc.,
                                                   such document, a letter in which Dr.
222 F.3d 123, 129 (3d Cir. 2000)).
                                                   Koumaras quotes the independent
Stratton does not argue that either Aetna
                                                   physician Dr. Hendler, indicates that the
or DuPont deviated from required
                                                   Aetna physicians scrutinized the medical
procedures.
                                                   evidence at least as closely, if not more,
       Stratton makes three principal              than did Dr. Macher. It noted,
arguments with regard to DuPont’s
                                                          Plain films [of an MRI
denial of her claim: that Aetna’s
                                                          taken in 1990] did not
physicians did not give Stratton’s claim
                                                          indicate any evidence of
individualized review, that these same
                                                          degenerative joint disease .
physicians failed to consider that less
                                                          . . . A recent MRI was

                                               7
             obtained after                                  . . .”
             recommendations by
                                               J. App. at 100.
             [Aetna] reviewers . .
             . . Performing                            Careful scrutiny of the record
             surgery of this                   reveals that the criticism that Aetna paid
             magnitude without a               insufficient attention to Stratton’s claim
             current MRI would,                is unwarranted. The record here is
             in fact, be a                     detailed and comprehensive because
             deviation of                      DuPont and Aetna took many steps in
             standard of care.                 considering Stratton’s claim: Aetna
             On January 3, 2000,               invited additional information and
             a MRI revealed                    medical history by Stratton, Dr. Macher,
             minimal disc                      and her previous treating physician, Dr.
             displacement. 4 In                R.H. Tallents, after first denying
             light of the patient’s            coverage, reviewed the TMJ post-
             failure to respond to             operative report, and finally had three
             conservative                      physicians, one of whom was not
             (nonsurgical)                     involved in the original decision, review
             therapy and based                 the information submitted before finally
             on the clinical                   denying Stratton’s request. Aetna’s
             findings offered in               request of an updated MRI which it then
             Dr. Macher’s                      reviewed rebuts Stratton’s contention
             records, less                     that its consideration of her claim was
             invasive                          general as opposed to individual.
             arthrocentesis
                                                     It is undisputed that Stratton
             and/or arthroscopic
                                               attempted neither arthrocentesis 5 nor
             surgery would be
             considered the
             procedure of choice.                 5
                                                      Appellants’ counsel asserted
                                               during oral argument that because there
                                               is no medical finding of record that
   4
        At oral argument, Stratton’s           Stratton’s joint contained excess fluid, a
counsel argued that Koumaras                   recommendation that she undergo
incorrectly characterized the 2000 MRI         arthrocentesis was medically
as showing disc displacement only on the       inappropriate. But arthrocentesis is not a
left side. However, the observation of         fluid-draining procedure; it is a
the “normal temporomandibular joint            procedure in which a sterile solution is
disc-condyle relationship on the right”        inserted into the joint and then drained
referred to the 1990 MRI, not the 2000         away. This discussion is of no moment,
MRI. J. App. at 182.                           however, because this argument

                                           8
arthroscopic surgery, both of which are         opened or closed her mouth, chewed,
less invasive treatments than the               yawned, or laughed. It was in light of
arthroplasty she chose to undergo and           this failure and “based on the clinical
both of which Aetna physicians                  findings offered in Dr. Macher’s
recommended in lieu of the arthroplasty.        records” that Aetna’s physicians
Stratton argues that “to say that [she]         recommended these two less invasive
refused conservative treatment is a gross       surgical procedures. J. App. at 122. We
mischaracterization of her medical              are not in a position, nor are we
history,” Appellant’s Br. at 14, because        permitted, to decide which of the three
over the years, she had undergone several       procedures was best tailored to Stratton’s
conservative courses of treatment,              case. But a review of the record shows
including an occlusal splint, analgesics,       that DuPont acknowledged and
and muscle relaxants. But this argument         considered that the more conservative
itself mischaracterizes the record.             treatments had not worked for Stratton in
DuPont notes in an affidavit of Jean            the past and that its suggestion that she
Opreska, a Health Care Benefits                 undergo less invasive procedures was not
Consultant and Qualified Benefits               based on oversight.
Consultant for DuPont, that “Aetna still
                                                        The final argument Stratton makes
recommended denial of benefits because
                                                is that Aetna, DuPont, and the District
Ms. Stratton refused more conservative
                                                Court failed to accord sufficient
medical treatment.” J. App. at 91.
                                                deference to the opinion of her treating
Because the only more conservative
                                                physician, Dr. Macher, who
medical treatments recommended by
                                                recommended the arthroplasty. Just last
Aetna were “less invasive arthrocentesis
                                                Term, the Supreme Court in Black &
and/or arthroscopic surgery,” J. App. at
                                                Decker Disability Plan v. Nord, 123 S.
100, we can assume that it was to these
                                                Ct. 1965, 1967 (2003), held that “plan
treatments that Opreska’s affidavit
                                                administrators are not obliged to accord
referred–not to the treatments previously
                                                special deference to the opinions of
undertaken by Stratton.
                                                treating physicians.” In so holding, the
       Aetna specifically acknowledged          Court also stated,
Stratton’s “failure to respond to
                                                       Plan administrators, of
conservative (non-surgical) therapy,” J.
                                                       course, may not arbitrarily
App. at 122, which presumably meant
                                                       refuse to credit a claimant’s
that she continued to suffer from
                                                       reliable evidence, including
headaches and other pain whenever she
                                                       the opinions of a treating
                                                       physician. But we hold,
                                                       courts have no warrant to
regarding the medical propriety of
                                                       require administrators
arthrocentesis was not mentioned in the
                                                       automatically to accord
Appellants’ briefs.

                                            9
               special weight to the              revert to prior position). A professional
               opinions of a                      disagreement does not amount to an
               claimant’s                         arbitrary refusal to credit.
               physician; nor may
                                                          The Supreme Court in Black &
               courts impose on
                                                  Decker Disability Plan, in discussing the
               plan administrators
                                                  relative inclinations of consulting
               a discrete burden of
                                                  physicians engaged by a plan and treating
               explanation when
                                                  physicians stated, of the latter, that “a
               they credit reliable
                                                  treating physician, in a close case, may
               evidence that
                                                  favor a finding” for the patient. 123 S.
               conflicts with a
                                                  Ct. at 1971. The Court eschewed
               treating physician’s
                                                  deciding whether “routine deference to
               evaluation.
                                                  the claimant’s treating physician would
Id. at 1972.                                      yield more accurate [claim]
                                                  determinations,” because such a
        As Stratton notes, Dr. Macher in
                                                  determination “might be aided by
his post-operative report stated that he
                                                  empirical investigation of the kind courts
“did not feel that arthroscopy or
                                                  are ill equipped to conduct.” Id. The
arthrocentesis would provide sufficient
                                                  professional disagreement between
mechanical relief of the problems within
                                                  Aetna’s consulting physicians and
the joint and thus [ ] discussed [with
                                                  Stratton’s physician seems grounded in
Stratton] the risks, benefits and
                                                  differing conclusions based on the
alternatives of TMJ arthroplasties.” J.
                                                  review of Stratton’s MRI, past medical
App. at 115. Aetna’s physicians did not
                                                  history, and the likelihood that the
arbitrarily refuse to credit this opinion;
                                                  chosen course of action would be
they simply disagreed with Dr. Macher’s
                                                  successful or not. Because Black &
recommended treatment. It appears that
                                                  Decker Disability Plan holds that plan
they may have been wary of Dr.
                                                  administrators are not obliged to defer to
Macher’s initial recommendation
                                                  the treating physician’s opinion, the
because he made that recommendation
                                                  District Court did not err in upholding
before he had an updated MRI. See J.
                                                  the decision of the plan administrators.
App. at 122. Aetna acknowledged that
Stratton had not responded to her                         Having carefully considered the
previous course of treatment but                  arguments put forth by Stratton that
concluded that less invasive forms of             Aetna and DuPont erred in denying her
surgery would be more appropriate                 claim, as the intensified degree of
because repositioned discs usually                scrutiny requires we do, we cannot hold
migrate back to their original position.          that the denial of benefits in this case
See J. App. at 200 (referring to studies          was “clearly not supported by the
that have shown that 85% of such cases            evidence in the record.” Smathers, 298

                                             10
F.3d at 199.
               CONCLUSION
       For the reasons set forth, we will
affirm the District Court’s order granting
summary judgment to DuPont.




                                             11
