                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 11a0176n.06

                                           No. 09-2602
                                                                                          FILED
                                                                                      Mar 23, 2011
                                                                                 LEONARD GREEN, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


PATRICIA KONDRATOWICZ,                             )
                                                   )
       Plaintiff-Appellant,                        )
                                                   )
v.                                                 )
                                                   )    ON APPEAL FROM THE UNITED
NORTHWEST AIRLINES, INC. and                       )    STATES DISTRICT COURT FOR THE
NORTHWEST AIRLINES, INC.                           )    EASTERN DISTRICT OF MICHIGAN
RETIREMENT PLAN FOR UNION                          )
REPRESENTED EMPLOYEES,                             )
                                                   )
       Defendants-Appellees.                       )




BEFORE:        KEITH, MERRITT, and MARTIN, Circuit Judges.


       MERRITT, Circuit Judge. In this ERISA case, Patricia Kondratowicz argues that she is

entitled to disability retirement benefits under her pension plan with her former employer, Northwest

Airlines, Inc. The plan requires both “total” and “permanent” disability; that is, in order for

Kondratowicz to qualify, she must suffer from a disability that permanently prevents her from being

able to perform any job at Northwest. None of the five medical experts who assessed Kondratowicz

found her to meet both requirements. Accordingly, the decision to deny her benefits was proper.

We AFFIRM the district court’s grant of summary judgment to Northwest.
No. 09-2602
Kondratowicz v. Northwest Airlines, Inc.

                                                  I.

       Kondratowicz, a former customer-service agent for Northwest, is a participant in the

Northwest Airlines Pension Plan for Contract Employees, which Northwest administers. After she

stopped working for Northwest, she filed an application for disability retirement benefits; her stated

bases for her disability were mental disorder, depression, anxiety, stress, chronic neck and back pain,

and a bulging disc. The plan defines “disability” as the “total and permanent disability which renders

the Participant incapable of any employment with [Northwest].”

       Northwest forwarded Kondratowicz’s application to America’s IME, a company that assists

Northwest with processing disability benefits. Dr. Thomas Gratzer, a practicing psychiatrist,

reviewed Kondratowicz’s medical records but did not examine her in person. Dr. Gratzer issued a

report concluding that Kondratowicz’s psychiatric condition did not cause her to be either totally or

permanently disabled. After reviewing both Dr. Gratzer’s report and Kondratowicz’s claim,

Northwest denied Kondratowicz’s application for disability retirement benefits.

       Kondratowicz instituted an administrative appeal. America’s IME gave Kondratowicz and

Northwest the resumes of three physicians and two psychologists so that they could select one

physician to assess Kondratowicz’s claim of physical disability and one psychologist to assess her

claim of psychological disability. Dr. Joseph Salama, whom the parties selected as the physician,

personally examined Kondratowicz and reviewed 167 pages of her medical history. Dr. Salama

concluded that Kondratowicz was neither totally nor permanently disabled, and that she could

perform a job “that requires no excessive bending or twisting, and no lifting more than 30 pounds

repetitively.” For the psychologist, the parties chose Dr. Kenneth Podell. Dr. Podell personally

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No. 09-2602
Kondratowicz v. Northwest Airlines, Inc.

examined Kondratowicz and issued a twelve-page report. Although Dr. Podell concluded that

Kondratowicz was totally disabled—her “stress and anxiety at work” would prevent her “from any

type of gainful employment with Northwest”—Dr. Podell also concluded that Kondratowicz was not

permanently disabled. “[W]ith the appropriate treatment,” Dr. Podell opined, “she will be able to

return to gainful employment.” Northwest received both Dr. Salama’s and Dr. Podell’s reports,

which effectively denied Kondratowicz’s application for disability retirement benefits.

       Kondratowicz filed suit in federal district court. She argued that the records of her own two

treating physicians, who examined her before she applied for disability benefits, demonstrated her

total and permanent disability. One of those treating physicians was Dr. Linda Balogh, who

diagnosed Kondratowicz with anxiety, chronic neck pain, and tension headaches, among other

things. Dr. Balogh prescribed several medications and gave Kondratowicz a note for work

suggesting that she lift nothing heavier than twenty-five pounds. Kondratowicz’s other treating

physician, Dr. William Penn, reported that the MRI of Kondratowicz’s spine supported her

complaints of pain in her neck and lower back. Dr. Penn opined that “Ms. Kondratowicz remains

disabled” and that “[her] prognosis for the future appears guarded at best.” But his only specific

recommendation was that Kondratowicz “should not be returned to her previous employment

wherein she was required to lift up to 70 pounds of freight and baggage.”

       Northwest moved for summary judgment, which the district court granted after the magistrate

judge so recommended. Kondratowicz now appeals.

                                                II.



                                                -3-
No. 09-2602
Kondratowicz v. Northwest Airlines, Inc.

       The ERISA laws permit a plan participant to bring a civil action “to recover benefits due to

[her] under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B). For Kondratowicz to be entitled to

disability retirement benefits under her plan, she must satisfy her plan’s definition of

“disability”—that is, “total and permanent disability which renders [her] incapable of any

employment with [Northwest].” Accordingly, in order for Kondratowicz to survive summary

judgment, there must be a genuine dispute of material fact regarding whether Kondratowicz is both

totally and permanently disabled. See Fed. R. Civ. P. 56(a).

       No such genuine dispute exists in this case.1 As Kondratowicz conceded at oral argument,

none of the five medical experts in the record opined that Kondratowicz was both totally and

permanently disabled. Both Dr. Gratzer and Dr. Salama expressly concluded that Kondratowicz was

neither totally nor permanently disabled. Dr. Podell concluded that Kondratowicz’s stress and

anxiety rendered her totally disabled, but he expressly opined that her disability was treatable rather

than permanent. Dr. Balogh did not opine as to whether Kondratowicz was totally or permanently



       1
        Kondratowicz’s appeal fails under any standard of review, so we need not decide what
degree of deference is due where, as here, the administrative benefits determination was made by
independent medical experts to whom binding decisionmaking authority was delegated from the plan
administrator under the plan, rather than by the plan administrator itself. Compare Moos v. Square
D Co., 72 F.3d 39, 41 (6th Cir. 1995) (holding that the benefits decision made by an ERISA plan
administrator must be reviewed under the arbitrary-and-capricious standard when the plan expressly
grants the plan administrator discretionary authority to determine eligibility for benefits), and
Solomon v. Med. Mut. of Ohio, No. 09-4152, 2011 WL 13907, at *3 (6th Cir. Jan. 4, 2011)
(unpublished opinion) (same, even when an independent medical expert’s opinion is an integral
component of the benefits determination, so long as the plan’s procedures permit the opinion and
the plan retains final decisionmaking authority), with Shelby Cnty. Health Care Corp. v. Majestic
Star Casino, 581 F.3d 355, 365 (6th Cir. 2009) (holding that a benefits decision made by an
unauthorized third party must be reviewed de novo).

                                                 -4-
No. 09-2602
Kondratowicz v. Northwest Airlines, Inc.

disabled, but Dr. Balogh concluded that Kondratowicz could perform any jobs that did not require

lifting more than twenty-five pounds. Similarly, although Dr. Penn stated without elaboration that

Kondratowicz “remain[ed] disabled,” his one recommendation was that Kondratowicz should not

lift more than seventy pounds. Assuming that Northwest has many jobs that do not require heavy

lifting, Dr. Balogh’s and Dr. Penn’s opinions imply that Kondratowicz’s disability was not total.

       Kondratowicz makes much of the fact that Dr. Salama only opined on her health as of June

15, 2006, the date on which he examined her, rather than July 24, 2003, the date on which she had

to be disabled to recover under the plan. Dr. Salama’s refusal to project his opinion backward in

time, Kondratowicz argues, prevents his opinion from being “final and conclusive.” However, if Dr.

Salama believed that Kondratowicz was not permanently disabled in June 2006, then he could not

have believed that Kondratowicz was permanently disabled at any time earlier, including in July

2003. Dr. Salama’s opinion on the permanency of Kondratowicz’s condition is no less conclusive

because he opined on Kondratowicz’s health as of June 2006 rather than as of July 2003.

       Relatedly, Kondratowicz contends that a series of emails between Christina Wolf (the plan

administrator) and Sherry Stimson (a representative of America’s IME) indicates that the plan

administrator “breached her duty owed to [Kondratowicz] to protect [Kondratowicz’s] rights under

the plan.” In these emails, Ms. Wolf requested that Dr. Salama complete an addendum opining on

Kondratowicz’s health as of July 2003. A review of the emails makes clear that no impropriety or

breach of duty occurred. By requesting Dr. Salama to opine on Kondratowicz’s health as of the

relevant date under the plan, Ms. Wolf was acting to protect Kondratowicz’s interests, not to breach



                                                -5-
No. 09-2602
Kondratowicz v. Northwest Airlines, Inc.

the duty she owed to them. Moreover, there is no indication in the record that Ms. Wolf, or any other

Northwest employee, attempted to improperly influence the administrative appeals process.

       In a final effort, Kondratowicz argues that the plan requires the medical expert for

administrative appeals to be a “doctor of medicine,” and that Dr. Podell (one of the two medical

experts who reviewed Kondratowicz for her administrative appeal) was a Ph.D. psychologist rather

than a physician. Assuming that the plan indeed contemplated a physician rather than anyone with

a doctoral degree in a medical field, any technical error here was de minimis. The administrative

appeal provided Kondratowicz with two medical experts: a physician to assess her physical pains,

and a psychologist to assess her psychological ones. So Kondratowicz was reviewed by one

physician during the administrative appeal. Moreover, Kondratowicz agreed to be examined by Dr.

Podell, the psychologist, despite full knowledge of his credentials at the time.

                                                 III.

       In conclusion, none of the five medical experts in the record found Kondratowicz to be totally

and permanently disabled, as she must be in order to recover under her plan. There is no genuine

dispute of material fact on an essential element of her case, so Northwest is entitled to judgment as

a matter of law. This result obtains regardless of the proper standard of review for the administrative

decision to deny benefits or any de minimis flaws that may have occurred during the administrative

process. We AFFIRM the district court’s grant of summary judgment for Northwest Airlines.




                                                 -6-
