                             NOT RECOMMENDED FOR PUBLICATION
                                    File Name: 16a0495n.06

                                                  No. 16-3043

                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                                                                                      FILED
CHRISTINA SAUNDERS,                                                )                          Aug 23, 2016
                                                                   )                      DEBORAH S. HUNT, Clerk
         Plaintiff-Appellant,                                      )
                                                                   )
                                                                            ON APPEAL FROM THE
v.                                                                 )
                                                                            UNITED STATES DISTRICT
                                                                   )
                                                                            COURT FOR THE
PROCTER & GAMBLE HEALTH AND LONG-                                  )
                                                                            SOUTHERN DISTRICT OF
TERM DISABILITY BENEFIT PLAN,                                      )
                                                                            OHIO
                                                                   )
         Defendant-Appellee.                                       )
                                                                   )



BEFORE:           BATCHELDER and KETHLEDGE, Circuit Judges; LEVY, District Judge*

         ALICE M. BATCHELDER, Circuit Judge.                            Former Procter & Gamble (P&G)

employee Christina Saunders has an unexplained chronic pain condition. From April 2012 until

July 2013, Saunders received disability benefits from the P&G Health and Long-Term Disability

Benefit Plan (the Plan) for a claimed “total disability.” But when the Plan switched third-party

administrators, the new administrator concluded that Saunders had not furnished objective

medical evidence establishing her disability. Accordingly, it terminated her payments. Saunders

lost her administrative appeal and at summary judgment below. We AFFIRM.


                             I. FACTS AND PROCEDURAL HISTORY

         Saunders’s health problems began in April 2012, when she underwent surgery for a

ruptured ectopic pregnancy. Although her surgeon originally scheduled her to return to work on

         *
          The Honorable Judith E. Levy, United States District Judge for the Eastern District of Michigan, sitting by
designation.
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Saunders v. Procter & Gamble Health and Long-Term Disability Plan

April 30, 2012, Saunders began experiencing additional, unexplained pain and did not go back to

work. She sought a diagnosis and effective treatment for over a year, to no avail. No doctor

officially extended Saunders’s work restrictions, but the Plan’s third-party administrator, Reed

Group, continually approved her disability benefits.


        In July 2013, the Plan switched third-party administrators to GENEX Services, Inc.

GENEX contacted Saunders’s doctors to confirm her eligibility for benefits. On August 1, 2013,

Dr. Scott Long, a physical therapist who treated Saunders from June 2012 through July 2013,

indicated that there were no medical restrictions on Saunders’s ability to work “at this time.”1


        Subsequent follow-up with Saunders and with her other doctors’ offices failed to reveal

any work restrictions on file. Without a doctor’s note stating that Saunders could not work, the

GENEX case manager recommended terminating Saunders’s disability benefits.


        The Plan sent Saunders a letter, dated September 17, 2013, informing her that her

benefits were terminated effective July 20, 2013. The letter detailed GENEX’s failed attempts to

obtain from Saunders’s physicians “objective medical documentation” that Saunders was

“unable to work.” From this the Plan concluded that “there is insufficient objective medical

information to support your claim for disability as defined by the Plan.” The letter included the

Plan’s definition of total disability, stated the requirement that Saunders “furnish . . . additional

objective medical records, clinical notes or testing results to indicate that [she was] disabled as




        1
          In this same response, Dr. Long erroneously stated that Saunders was “[c]urrently working.” This error,
Saunders suggests, indicates that Dr. Long must have gotten her records confused with another patient’s.
Appellant’s Br. at 41. However, Saunders herself submitted records from a July 2013 visit with Dr. Long in which
Dr. Long noted that Saunders “[w]orks as a PR manager.” Dr. Long may have been mistaken about Saunders’s
work status, but this is enough to refute Saunders’s speculation that he was referring to someone else.

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Saunders v. Procter & Gamble Health and Long-Term Disability Plan

defined by the Plan,” and outlined her right to appeal the decision to the Plan’s Board of

Trustees.2


        Saunders appealed pro se.          She stated that “[t]he information from Dr. Long was

inconsistent with the restrictions imposed by [her] treating physician, Dr. Kelly,” who

“specifically state[d]” that Saunders was “unable to work.” Saunders attached the records from

her recent visits with Dr. Kelly, as well as records from a psychiatrist (Dr. Kelso), her

acupuncturist, and Dr. Long.


        These new records contained evidence of pain, but little to indicate how that pain restricts

Saunders’s abilities. For example, Dr. Kelly—who saw Saunders in August, October, and

November 2013—diagnosed Saunders with “[a]typical pain syndrome, of uncertain etiology,”

based on “tender[ness] to light/medium touch throughout the right hemithorax.” He concluded

that “because of the severity of her pain, and relative refractoriness to treatment, . . . she is

unable to remain mentally focused enough to perform any form of work activities.” But Dr.

Kelly’s examination revealed that Saunders’s “[m]entation [was] clear,” and she had “[g]ood

recent and remote recall” with “[n]ormal affect.” Her muscle tone and gait were normal. Dr.

Kelly also noted that Saunders was “able to take care of” her two-year-old child.


        Similarly, Dr. Kelso’s intake exam in September 2013 was unremarkable, although

Saunders’s thought process was “[n]ormal but pr[e]occupied with her experience of pain.” At a

subsequent visit, Dr. Kelso indicated that Saunders appeared “[a]nxious and exhibit[ed] pain

behaviors such as wincing and moaning.” Saunders’s acupuncturist stated that Saunders’s “pain

level is so extreme that it is hazardous to her physical function and mental-emotional being.”

        2
          Contrary to Saunders’s assertions, therefore, this letter did inform Saunders what type of objective
evidence was necessary to support her claim.

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Saunders v. Procter & Gamble Health and Long-Term Disability Plan

Records from her visits with Dr. Long added nothing to these pain assessments, nor did they

indicate a consistent diagnosis. For example, in June 2013 Dr. Long diagnosed Saunders with

myalgia, myositis, and chronic pain disorder, stating, “I do not see objective data to support a

diagnosis of CRPS (complex regional pain syndrome).”                But less than a month later, his

diagnosis had changed to complex regional pain syndrome. None of these records indicated any

physical restrictions on Saunders’s activities.


        Before the Board decided Saunders’s appeal, GENEX sought an opinion from

independent reviewer Dr. Philip Marion. Dr. Marion acknowledged the lack of “specific clinical

documentation that [Saunders’s] condition ha[d] changed,” but he nonetheless concluded that

“there is not objective medical information documented to substantiate an inability to work in

any capacity, including sedentary, at P&G or with another employer.” The Board subsequently

denied Saunders’s appeal on January 22, 2014.


        Saunders then sued the Plan in federal district court, bringing a single claim for benefits

under ERISA. See 29 U.S.C. § 1132(a). The parties filed cross-motions for judgment as a

matter of law on the administrative record. The district court granted the Plan’s motion and

denied Saunders’s motion. Saunders then filed this appeal.


                                            II. ANALYSIS


        We review the Board’s decision using the same standard of review as the district court

was required to use. Whitaker v. Hartford Life & Accidental Ins. Co., 404 F.3d 947, 949 (6th

Cir. 2005). Here, the parties dispute whether the district court should have reviewed the Board’s

decision for abuse of discretion or de novo. We need not resolve that debate because, even under

de novo review, Saunders did not meet her burden of presenting objective evidence to support a


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Saunders v. Procter & Gamble Health and Long-Term Disability Plan

finding that she is disabled within the terms of the Plan. See Javery v. Lucent Techs., Inc. Long

Term Disability Plan for Mgmt. or LBA Emps., 741 F.3d 686, 700 (6th Cir. 2014) (“To succeed

in [a] claim for disability benefits under ERISA, Plaintiff must prove by a preponderance of the

evidence that he was ‘disabled,’ as that term is defined in the Plan.”).

         The Plan defines “total disability” as

         a mental or physical condition resulting from an illness or injury which is
         generally considered totally disabling by the medical profession and for which the
         Participant is receiving regular recognized treatment by a qualified medical
         professional. Usually, total disability involves a condition of such severity as to
         require care in a hospital or restriction to the immediate confines of the home.

In her briefing, Saunders does not directly argue that she is disabled according to this definition.

She identifies her condition as “complex regional pain syndrome,” but does not specifically

explain how this condition disables her. For example, she does not dispute her ability to drive or

perform other activities of daily living.3 See Appellant’s Br. at 44. Saunders does cite several

forms of objective evidence to support her diagnosis: (1) the results of “several objective tests”

that “demonstrated a physical disorder”; (2) her doctors’ findings regarding her pain; (3) the

medications she was prescribed; and (4) her doctors’ multiple referrals to neurologists and pain

specialists. Id. at 39–40. Otherwise, her arguments merely attack the Board’s reasoning rather

than its ultimate decision.


         Accepting that Saunders suffers from unexplained, severe, and constant pain, we still

must assess whether Saunders has submitted objective evidence that she is disabled as defined by

the Plan. In other words, her objective evidence must show that her pain is “considered totally

disabling” and that she “is receiving regular recognized treatment” for it. Since Saunders’s pain

         3
           In contrast to the Plan’s definition of total disability, the Plan defines “partial disability” to include
impairments that do not prevent a person “from performing useful tasks, utilizing public or private transportation, or
taking part in social or business activities outside the home.” Saunders’s claim has always been for total disability.

                                                         -5-
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Saunders v. Procter & Gamble Health and Long-Term Disability Plan

admittedly does not restrict her to her home environment, her task of demonstrating total

disability is that much harder. Notably, the Plan does not define “total disability” according to

whether Saunders can perform her job.


        The primary evidence supporting Saunders’s claim that she is totally disabled is Dr.

Kelly’s assessment that she is unable to focus enough to work. Saunders also presents plenty of

evidence that she has a chronic pain condition. But nothing in the record indicates that this pain

condition restricts her daily activities, and several of her treating physicians have specifically

indicated that Saunders can work. Dr. Kelly’s lone opinion that Saunders cannot work does not

establish her disability in light of the other evidence in the administrative record.


        Most prominent in the Board’s decision is Dr. Long’s statement on August 1, 2013, that

Saunders had work capacity and no medical restrictions. But Dr. Long is hardly alone in his

assessment. Nine months prior, Saunders’s then-treating physician, Dr. Katheryn Jadeed, stated,

“[G]iven the available info, I do not have any work restrictions for her, now or in the past . . . .”

And around the same time Dr. Jason Heil, a neurologist, indicated that he was “probably not the

best person to be filling out disability papers” since he could not identify “a clear neurological

cause for her pain.”4


        Saunders has no objective evidence with which to counter these opinions. For example,

she presents no evidence of any physical restrictions, such as on the length of time she may sit or

stand, or on the amount of weight she may lift. See, e.g., Koning v. United of Omaha Life Ins.

        4
            Saunders criticizes the Plan’s reference to Dr. Jadeed’s and Dr. Heil’s statements, arguing that they are
irrelevant because the Board did not rely on them and because they were made several months before the time frame
at issue in this case. Reply Br. at 3–4. Yet on a de novo review, we consider all evidence in the administrative
record without deference to the Board’s decision. Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 616 (6th
Cir. 1998) (“When conducting a de novo review, the district court must take a ‘fresh look’ at the administrative
record . . . .”). And given Saunders’s adamancy that her condition has not changed, her insistence that earlier
assessments are irrelevant rings hollow.

                                                        -6-
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Saunders v. Procter & Gamble Health and Long-Term Disability Plan

Co., 627 F. App’x 425, 434 (6th Cir. 2015) (finding a claimant disabled who was “unable to sit,

stand and/or bend for any significant period of time,” had restricted range of motion, chronic

headaches, and other physical incapacities).         Nor is Saunders taking any medications with

debilitating side effects. See, e.g., Godmar v. Hewlett-Packard Co., 631 F. App’x 397, 407 (6th

Cir. 2015) (holding that a denial of benefits was arbitrary and capricious because, among other

reasons, the plaintiff’s prescription pain medications prevented him from driving, a requirement

of his job). Overall, the record does not support a finding that Saunders’s pain condition renders

her totally disabled.


        The record accordingly supports Dr. Marion’s conclusion that, “from a physical medicine

and rehabilitation/pain management perspective, there remains no specific medical information

to substantiate [Saunders’s] inability to work with or without restrictions from [July 20, 2013,]

through [the] present.”           Dr. Marion emphasized Saunders’s “consistently normal”

musculoskeletal and neurological examinations. He contrasted Dr. Kelly’s opinion that Saunders

“is unable to remain mentally focused enough to” work with Dr. Long’s conclusion that she can.

He also noted that Dr. Kelly undermined his own opinion with the results of his physical

examination: “Mentation clear. Good recent and remote recall. Normal affect.” That the Plan

previously awarded benefits and her condition has not changed did not alter this conclusion.5


        Saunders is therefore left with the argument that, because her condition has not changed,

the Board erred in terminating her benefits after awarding them for over a year. But following

Saunders’s logic, no disability plan would ever be able to terminate benefits that had erroneously

been approved at some prior time. As Saunders stated, ironically, in her opening brief, “The best


        5
          For the same reasons—because the records from Saunders’s own doctors supported Dr. Marion’s
conclusion—the Board was not required to conduct an independent medical examination of Saunders.

                                                    -7-
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Saunders v. Procter & Gamble Health and Long-Term Disability Plan

that can be said of [GENEX’s] review of Saunders’[s] claim is that Saunders was never disabled

in the first place[.]” Appellant’s Br. at 37. Saunders actually did not present sufficient evidence

to support an award of disability benefits for over a year before her benefits were terminated.

The Plan was not required to continue paying out benefits to Saunders indefinitely without

objective evidence to support her disability simply because a prior third-party administrator had

done so and her non-disabling condition had not changed.


                                         III. CONCLUSION

        Because Saunders has not shown by a preponderance of the evidence that she is totally

disabled as defined by the Plan, we AFFIRM the judgment of the district court.




                                                    -8-
