                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                    File Name: 16a0411n.06

                                       CASE NO. 15-6006

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                    FILED
                                                                                  Jul 21, 2016
 MONICA L. CROX,                                      )
                                                                             DEBORAH S. HUNT, Clerk
                                                      )
       Plaintiff-Appellant,                           )
                                                      )   ON APPEAL FROM THE
                v.                                    )   UNITED STATES DISTRICT
                                                      )   COURT FOR THE EASTERN
 UNUM GROUP, CORP.,                                   )   DISTRICT OF TENNESSEE
                                                      )
       Defendant-Appellee.                            )
                                                      )

Before: BOGGS, SILER, and BATCHELDER, Circuit Judges.

       ALICE M. BATCHELDER, Circuit Judge. In this ERISA action challenging the

denial of long-term disability benefits, the district court accepted and adopted the magistrate

judge’s report and recommendation (R&R), and consequently dismissed the plaintiff’s complaint

with prejudice. The plaintiff appeals but, finding no merit to her appeal, we affirm.

                                                I.

       Monica Crox was a nurse. When her divorce led to emotional distress with physical and

medical manifestations, she quit working and sought disability benefits from her ERISA Plan.

Defendant Unum Group is both Plan payer and administrator and paid Crox benefits for two

years. Under the terms of the Plan, in order to continue to receive benefits beyond that point,

Crox had to show that she was incapable of engaging in even a purely sedentary occupation.

       Unum determined, based on several specific findings, that Crox could perform a

sedentary occupation. Crox’s file contained multiple MRIs that revealed no degenerative back

problem that would explain or support her claims of a disabling back condition. A “neurological

and movement disorder” specialist (Dr. Stover), acting on referral by Crox’s treating physician
No. 15-6006, Crox v. Unum Group


because Crox claimed an autonomic dysfunction, had diagnosed Crox with conversion

disorder—a mental-health condition in which a person shows psychological stress in physical

ways—and had prescribed psychotherapy, but Crox refused psychiatric treatment.              Two of

Unum’s medical consultants reviewed Crox’s full medical record and agreed with the diagnosis

of conversion disorder, concluding that even if Crox was disabled due to mental illness she was

not precluded from sedentary work as required to receive benefits under the Plan.

       Unum also contacted the treating physicians from Crox’s medical records as well as some

others whom Crox had named. Five of those physicians told Unum that Crox was capable of

working full time in a sedentary job while five others declined to comment because they were

not actually treating Crox.     One physician (Dr. Trudell) delegated the task to his nurse

practitioner (Jennifer Sparks), who said that Crox’s “hand tremor makes it difficult to work with

her hands; worsens with activity,” but concerning restrictions or limitations, said, “I have only

seen this patient once and I am unsure.” When Unum followed up with several telephone calls

seeking elaboration or clarification, neither Dr. Trudell nor Nurse Sparks responded.

       Unum had a vocational-rehabilitation specialist review Crox’s file;           the specialist

identified several sedentary jobs suitable to Crox and available in the geographic area. Finally,

Unum obtained video surveillance of Crox in her daily activities; driving, walking, smoking,

using her cell phone, and doing other routine activities, all without assistance and showing no

obvious symptoms of dizziness, tremors, or pain. Based on these findings, Unum denied Crox’s

claim and discontinued her benefits. Unum later denied her administrative appeal. Crox sued in

federal court, pursuant to ERISA, and the court delegated the case to a magistrate judge.

       Crox argued two issues to the magistrate judge: (1) that a de novo standard of review

should apply and (2) that Unum erred by finding her capable of sedentary work. Crox argued for

de novo review by claiming that the Plan is self-contradictory in that, while it gives discretion to
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No. 15-6006, Crox v. Unum Group


the administrator, it denies discretion by requiring the administrator to be “reasonable.” The

magistrate judge answered that “reasonableness [is] the touchstone of the arbitrary and

capricious standard,” so the Plan is not contradictory and the proper standard of review is

arbitrary-and-capricious, not de novo. As for Crox’s second argument, the magistrate judge

compiled and considered all of Unum’s record evidence in a lengthy R&R, and concluded:

       After a review of the evidence and, given that [Crox] has not produced an opinion
       from a single physician to dispute the numerous opinions that [Crox] is not
       precluded from sedentary work by her physical impairments, the undersigned
       [magistrate judge] concludes that Unum’s decision to deny benefits was not
       arbitrary and capricious; rather, it was reasonable.

R. 31 at 17.    In reaching this conclusion, the magistrate judge had also addressed Crox’s

argument that the Social Security Administration (SSA) had declared her disabled, explaining

that neither Unum nor the court was bound by the SSA’s decision and, in any event, Unum had

specifically addressed and rejected the SSA decision in its denial when it explained that the SSA

had seen neither Dr. Stover’s diagnosis of conversion disorder nor the surveillance video. The

magistrate judge recommended that the court grant summary judgment to Unum.

       Crox filed objections to the magistrate judge’s report, arguing that: (1) a de novo standard

of review applied and (2) the magistrate judge failed to consider the conflict of interest resulting

from Unum’s both administering the Plan and paying benefits out of it. With respect to the

former argument, the court adopted the magistrate judge’s “well-reasoned conclusions” that the

reasonableness requirement did not make the Plan contradictory, so the court must apply the

arbitrary-and-capricious standard of review. With respect to the latter, the court recognized that

Unum had a facial conflict and that the magistrate judge had not expressly addressed it, but that

Unum had taken sufficient steps to overcome any bias and ensure accuracy, concluding:

       Unum contacted all of [Crox]’s physicians, not just those employed by Unum, to
       inquire about [Crox]’s ability to work. As stated above, none of these physicians
       opined that [Crox] was incapable of working full-time in a sedentary capacity.
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No. 15-6006, Crox v. Unum Group


       Even considering Unum’s conflict of interest, the [c]ourt finds that, given the
       dearth of evidence in [Crox]’s favor, Unum’s decision to deny [Crox] benefits
       was reasonable, and thus was neither arbitrary nor capricious.

R. 34 at 3-4. The district court dismissed Crox’s complaint with prejudice. Crox appealed.

                                                 II.

       We apply de novo review to questions of law, such as “the district court’s determination

[of] the proper standard [of review] to apply in its review of a plan administrator’s decision.”

Frazier v. Life Ins. Co. of N. Am., 725 F.3d 560, 565-66 (6th Cir. 2013) (quotation marks and

citation omitted). In reviewing “the district court’s judgment on [a] [p]laintiff’s ERISA claim,”

we “apply[] the same standard of review to the plan administrator’s action as required [of] the

district court.” Javery v. Lucent Techs., Inc. Long Term Disability Plan, 741 F.3d 686, 700 (6th

Cir. 2014). That is, when the “plan gives the administrator . . . discretionary authority to

determine eligibility for benefits or to construe the terms of the plan. . . , we review the denial of

benefits only to determine if it was arbitrary and capricious.” McClain v. Eaton Corp. Disability

Plan, 740 F.3d 1059, 1063-64 (6th Cir. 2014) (quotation marks and citation omitted). And,

within that review, we review for clear error the “district court’s factual findings inherent in

deciding an ERISA claim.” Frazier, 725 F.3d at 566 (quotation marks and citation omitted).

                                                 A.

       Crox urges us to review the denial of benefits de novo, despite the Plan provision’s plain

language: “The plan acting through the plan administrator, delegates to UNUM and its affiliate

UNUM Group discretionary authority to make benefit determinations under the plan.” She

argues that this provision does not actually grant discretionary authority because it also requires

that “[a]ll benefit determinations must be reasonable and based upon the terms of the plan,”

which, she contends, negates the grant of discretion. The district court disagreed, stating that “the

Sixth Circuit has often referred to reasonableness as the touchstone of the arbitrary and

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No. 15-6006, Crox v. Unum Group


capricious standard.” R. 31 at 15, PgID # 5485, citing, among others, Price v. Bd. of Trs. of Ind.

Laborer’s Pension Fund, 632 F.3d 288, 295 (6th Cir. 2011) (explaining arbitrary-and-capricious

review as requiring that “we must uphold the administrator’s decision if the administrator’s

interpretation of the Plan’s provisions is reasonable”); Morrison v. Marsh & McLennan Cos.,

439 F.3d 295, 300 (6th Cir. 2006) (same); Wooden v. Alcoa, Inc., 511 F. App’x 477, 482 (6th

Cir. 2013) (holding that, “[s]o long as there is evidence in the record to support a reasonable

explanation to deny benefits, the decision is not arbitrary and capricious”). Thus, the district

court concluded, the “use of the word ‘reasonable’ does not contradict the arbitrary and

capricious standard nor is it so vague as to require application of the de novo standard.”

       The Plan’s language grants the Plan administrator discretion (though not discretion to act

unreasonably) and, therefore, the district court properly reviewed that decision for whether it was

arbitrary and capricious. See McClain, 740 F.3d at 1064-65. Crox’s claim is meritless.

       Crox also presses a tangential argument, claiming that the Plan’s language—being

contradictory—was misleading and “had she been aware of the gravity of the standard of review

used by Unum during the administrative proceedings, [she] could have developed a more

complete record of her disability early in the claims process.” Given that the Plan language was

not contradictory, and correspondingly not misleading, this contention fails for lack of a valid

premise. Any failure to develop a more complete record was Crox’s own.

                                                B.

       Crox contends that the district court failed to disprove the presumptive conflict of interest

in Unum’s being both Plan payer and administrator, and cites four reasons: it considered only the

opinions of Unum’s doctors; it did not give enough weight to Nurse Sparks’s statement about

Crox’s hand tremors’ making it difficult for Crox to work with her hands; it did not give enough



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No. 15-6006, Crox v. Unum Group


weight to the SSA determination of disability; and it gave too much weight to Dr. Stover’s

diagnosis of conversion disorder. We disagree.

       Unum requested medical opinions from at least 11 doctors, each of whom was either

Crox’s treating physician or a doctor she had suggested. Five said she could work and five

others declined to opine because they were not actually treating her. The district court relied on

these responses.

       One doctor (Dr. Trudell) delegated the response to his nurse practitioner, Jennifer Sparks,

who said that Crox’s “hand tremor makes it difficult to work with her hands [and] worsens with

activity,” but also said “I have only seen this patient once and I am unsure” whether Crox had

any restrictions or limitations. Neither Dr. Trudell nor Nurse Sparks would respond to clarify or

support this answer.    Neither Unum nor the court was obliged to defer to (or even grant

persuasive weight to) this isolated, vague, and equivocal statement by a single nurse.

       The court did consider the SSA determination and, after explaining that it was not

determinative, further explained that it was based on incomplete information and that the missing

information (Dr. Stover’s diagnosis and the video surveillance) was persuasive. Finally, Dr.

Stover’s diagnosis—which was not, as Crox contends, the only or dispositive evidence—was

fully supported and explained, and Unum’s doctors agreed with it after their own review.

       The district court’s determination was reasonable and correct.

                                                 C.

       Finally, Crox argues that the district court should have (1) faulted Unum for failing to

order an independent medical exam (IME), (2) accepted the SSA disability award as controlling,

and (3) reconsidered Crox’s entire medical record for itself in the light that Crox would have

construed it. We find no support for or merit in these arguments.



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No. 15-6006, Crox v. Unum Group


         Neither the Plan nor ERISA mandates an IME and Crox has pointed to nothing in the

record that would indicate that an IME was required here. In fact, from our review of the record,

this appears to be the first such reference to an IME, suggesting that Crox’s claim is actually that

the district court committed plain error by failing to sanction Unum sua sponte for failing to

order an unrequested, unrequired, and apparently unnecessary IME. This claim lacks any legal

basis.

         Next, as we have already noted, the district court did consider the SSA determination and

explained why it was not persuasive. In any event, the SSA determination is not controlling.

Whitaker v. Hartford Life & Accident Ins. Co., 404 F.3d 947, 949 (6th Cir. 2005) (“[W]e hold

that an ERISA plan administrator is not bound by an SSA disability determination when

reviewing a claim for benefits under an ERISA plan.”).

         Finally, Crox’s claim that the court should have reconsidered her medical record for itself

is just a restatement of the “de novo review” argument raised at the outset, which we have

already rejected.    Moreover, the magistrate judge did reconsider the medical record and

determined that Crox’s physical impairments did not preclude her doing sedentary work and,

therefore, Unum’s decision to deny her benefits was reasonable.

                                                III.

         For the foregoing reasons, we AFFIRM the judgment of the district court.




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