     14-3931
     Tansey v. Anthem Health Plan, Inc.

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 15th day of October, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                RAYMOND J. LOHIER, JR.,
 8                              Circuit Judges,
 9                GEOFFREY W. CRAWFORD,*
10                              District Judge.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       NEIL TANSEY and CATHERINE TANSEY,
14                Plaintiffs-Appellants,
15
16                    -v.-                                               14-3931
17
18       ANTHEM HEALTH PLANS, INC. d/b/a ANTHEM
19       BLUE CROSS AND BLUE SHIELD and ANTHEM
20       UM SERVICES, INC.,
21                Defendants-Appellees.
22       - - - - - - - - - - - - - - - - - - - -X
23


                *
               The Honorable Geoffrey W. Crawford, of the United
         States District Court for the District of Vermont, sitting
         by designation.
                                                  1
 1   FOR APPELLANTS:            PHILIP E. MURRAY, JR., Murray,
 2                              Kelly & Bertrand, P.C., Woburn,
 3                              Massachusetts.
 4
 5   FOR APPELLEES:             MICHAEL G. DURHAM, MATTHEW H.
 6                              GEELAN, Donahue, Durham &
 7                              Noonan, P.C., Guilford,
 8                              Connecticut.
 9
10        Appeal from a judgment of the United States District
11   Court for the District of Connecticut (Covello, J.).
12
13        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
14   AND DECREED that the judgment of the district court be
15   AFFIRMED.
16
17        Plaintiffs Catherine Tansey and her father appeal from
18   the judgment of the United States District Court for the
19   District of Connecticut (Covello, J.), granting judgment on
20   the administrative record in favor of Anthem Health Plans,
21   Inc. d/b/a Anthem Blue Cross and Blue Shield, and Anthem UM
22   Services, Inc. (collectively, “Anthem”). We assume the
23   parties’ familiarity with the underlying facts, the
24   procedural history, and the issues presented for review.
25
26        1.   We review the district court’s grant of judgment
27   on the administrative record de novo and apply the same
28   standard as the district court. Hobson v. Metro. Life Ins.
29   Co., 574 F.3d 75, 82 (2d Cir. 2009). Anthem denied health
30   care benefits, under an ERISA1 benefit plan, for Ms.
31   Tansey’s residential treatment in a substance abuse
32   facility. The denial must be upheld unless it was arbitrary
33   and capricious--that is, unless it was “without reason,
34   unsupported by substantial evidence or erroneous as a matter
35   of law.” Pagan v. NYNEX Pension Plan, 52 F.3d 438, 442 (2d
36   Cir. 1995) (internal quotation marks and citation omitted).
37   “Substantial evidence . . . is such evidence that a
38   reasonable mind might accept as adequate to support the
39   conclusion reached by the decisionmaker and requires more
40   than a scintilla but less than a preponderance.” Miller v.
41   United Welfare Fund, 72 F.3d 1066, 1072 (2d Cir. 1995)
42   (internal quotation marks, alterations, and citation
43   omitted).


         1
           The Employee Retirement Income Security Act of 1974,
     29 U.S.C. § 1132.
                                  2
 1
 2        2.   Ms. Tansey was covered under the group health
 3   benefit plan issued to her father’s employer. She was
 4   eligible for benefits for covered services only for
 5   “Medically Necessary Care,” defined as “health care services
 6   . . . that are,” inter alia, “[c]linically appropriate, in
 7   terms of type, frequency, extent, site and duration and
 8   considered effective for the patient’s illness, injury or
 9   disease; and . . . not more costly than an alternative
10   service or sequence of services at least as likely to
11   produce equivalent therapeutic or diagnostic results as to
12   the diagnosis or treatment of that patient’s illness, injury
13   or disease.” Benefits for “confinement in a Residential
14   Treatment Facility” in connection with mental health and
15   substance abuse services are provided only when “the insured
16   has a Medically Necessary, serious mental or nervous
17   condition that . . . cannot appropriately, safely or
18   effectively be treated in an acute care, partial
19   hospitalization, intensive outpatient or outpatient
20   setting.”
21
22        3.  Anthem denied the claim on the grounds that it was
23   not medically necessary. This determination is not
24   irrational or legally erroneous, and is supported by
25   substantial evidence from which Anthem could have determined
26   that residential treatment was not clinically appropriate,
27   and/or that recovery could have occurred as effectively and
28   safely at a lower level of care (including partial
29   hospitalization or intensive outpatient treatment).
30
31        A.  Prior to Ms. Tansey’s admission to Fulshear Ranch
32   Academy (“Fulshear”), the only treatment she had attempted
33   in her home environment had included 10 psychotherapy
34   sessions and an 8-day afterschool program in April or May of
35   2009, which she described as being “about ‘normal teenage
36   stuff.’” Immediately prior to her admission to Fulshear,
37   Ms. Tansey had participated in a 2-month wilderness program.
38   She had never received partial hospitalization or intensive
39   outpatient treatment in her home environment.
40
41        B.  The therapist at the wilderness program stated
42   that Ms. Tansey had “addressed all of her various treatment
43   goals.” At discharge, her mood was “fairly stable.” A
44   psychological evaluation conducted during the program
45   indicated that symptoms of depression and anxiety were not
46   sufficient in number or intensity to amount to Major


                                  3
 1   Depressive or Anxiety Disorder. Nor did Ms. Tansey meet the
 2   full criteria for either anorexia or bulimia.
 3
 4        The Fulshear admission application indicated that Ms.
 5   Tansey had not used drugs or alcohol since the start of the
 6   wilderness program. An initial assessment conducted upon
 7   admission indicated that she reported no significant medical
 8   or mental health issues. Ms. Tansey scored a “high
 9   probability” of substance abuse disorder, although the
10   assessment noted it “likely that she could have
11   ‘embellished’ on some of the scores . . . in order to make
12   sure she is seen as having an alcohol/drug problem.”
13
14        C.  Four physicians opined that residential
15   rehabilitation treatment was not medically necessary--
16   including one outside consultant and one consultant retained
17   by an independent, impartial review organization, with no
18   connection to Anthem. Plaintiffs object to the opinions as
19   unreasoned or irrational. They contend that the initial
20   review and second-level appeal physicians’ opinions relied
21   on “erroneous facts” because, inter alia, they referenced
22   marijuana as Ms. Tansey’s drug-of-choice, and noted that she
23   reported bulimic symptoms three years prior but not at that
24   time. There is record support for the facts referenced in
25   the physicians’ opinions. Even if (as plaintiffs argue) the
26   physicians who provided the initial review and first-level
27   appeal opinions incorrectly considered medical necessity
28   pursuant to Anthem’s 2010 Adult Substance Abuse Subacute/RTC
29   Rehabilitation criteria, those who performed the second-
30   level and external reviews indisputably were provided with
31   and applied the four criteria that Plaintiffs argue might
32   apply. The treating therapists and physicians offered
33   contrary opinions, but in an ERISA benefits dispute, no
34   “special weight” is given to the opinions of treating
35   sources. Hobson, 574 F.3d at 90 (“[A plan administrator] is
36   not required to accord the opinions of a claimant’s treating
37   physicians ‘special weight,’ especially in light of contrary
38   independent physician reports.” (quoting Black & Decker
39   Disability Plan v. Nord, 538 U.S. 822, 834 (2003))).
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                                  4
 1        For the foregoing reasons, and finding no merit in the
 2   Tanseys’ other arguments, we hereby AFFIRM the judgment of
 3   the district court.
 4
 5                              FOR THE COURT:
 6                              CATHERINE O’HAGAN WOLFE, CLERK
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