                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-21-2005

Cerneskie v. Mellon Bank Long
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1908




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      No. 04-1908

                          CAROL A. CERNESKIE, Appellant

                                            v.

                 MELLON BANK LONG TERM DISABILITY PLAN


                    On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                                (D.C. Civil No. 01-1814)
                    District Judge: The Honorable David S. Cercone
                                    ______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 10, 2005

                    Before: SLOVITER and FISHER, Circuit Judges,
                             and POLLAK,* District Judge.

                                  (filed: June 21, 2005)
                                     _____________

                              OPINION OF THE COURT
                                  ______________




      *
       Honorable Louis H. Pollak, Senior District Judge for the United States District
Court of the Eastern District of Pennsylvania, sitting by designation.
POLLAK, District Judge:

       Carol Cerneskie (“Cerneskie”) challenges the District Court’s grant of summary

judgment against her on her claim that appellee Mellon Bank Long Term Disability Plan

(“the Plan” or “Mellon”) wrongfully denied her long term disability (“LTD”) benefits.

Reviewing the administrative record, the District Court found that the Plan had not acted

arbitrarily and capriciously in denying Cerneskie the benefits she sought, under Black &

Decker Disability Plan v. Nord, 538 U.S. 822 (2003), and that the Plan’s decision must

therefore be upheld. Cerneskie argues that the Plan did act arbitrarily and capriciously,

and that the District Court erred as a matter of law by applying Black & Decker to find

that the Plan had not so acted. We conclude that the District Court did not err, and

accordingly we will affirm.

                                               I.

       Before this dispute arose, Cerneskie was employed as a Personal Banker at Mellon

Bank. Cerneskie ceased work after November 26, 1997, claiming to be totally disabled

by depression, anxiety, and neck and back pain. She received short term disability

benefits from the company through early May 1998. Her psychiatrist, Dr. Rodney S.

Altman, noted steady improvement during this period, and released her to return to work

as of May 4, 1998. However, she did not return to work on that date, but instead

submitted a note, from a Dr. K. N. Shetty, stating that she would not return to work

pending further evaluation of her condition.



                                               2
       Cerneskie submitted a claim for LTD benefits to Mellon Bank on June 1, 1998. In

support of this claim, she submitted a June 6, 1998, report by Dr. Shetty declaring that

Cerneskie was unable to work in any occupation. Likewise, in a report dated June 18,

1998, Dr. Altman diagnosed Cerneskie with major depression, and gave it as his opinion

that she was unable to perform any occupation. This report was issued on a two-page

form, and did not provide any detailed analysis of Cerneskie’s condition, or its likely

duration.

       In November 1998, Dr. Altman submitted to Mellon his notes of two additional

office visits with Cerneskie. At a visit on September 3, 1998, Dr. Altman found

Cerneskie still unable to work, because of fatigue. On October 13, 1998, Dr. Altman

noted that Cerneskie’s “appetite [was] OK,” that she was “sleeping OK,” and that she had

no panic. She had no delusions, hallucinations, or anxiety, and her mood was moderate.

Her anxiety was controlled with medication, and Dr. Altman found that she was “doing

well.” He did not comment on her ability to work at that time.

       Neither Dr. Shetty nor Dr. Altman returned to Mellon the company’s physical

ability assessment, psychiatric impairment form, or disability questionnaire. Dr. Altman’s

supplemental office notes, described above, appear to be the only additional evidence

submitted concerning Cerneskie’s mental status.

       The Plan denied Cerneskie’s claim for LTD benefits on January 13, 1999. After

Cerneskie appealed this decision under the Plan’s internal review procedures, the Plan



                                             3
granted Cerneskie LTD benefits for the period of May 27, 1998 through October 13,

1998, based on her claim of depression. The Plan reserved judgment on benefits after

that date, pending an independent medical exam it required Cerneskie to complete. Based

on the results of that exam, which included findings that Cerneskie demonstrated

“inconsistent effort” and appeared to overstate her pain and physical limitations, the Plan

ultimately found that Cerneskie was not eligible for benefits after October 13, 1998.

       Cerneskie filed an action protesting this denial of benefits in the Court of Common

Pleas of Beaver County, Pennsylvania, naming Mellon Bank as defendant. Mellon Bank

removed to the United States District Court for the Western District of Pennsylvania, and

moved to dismiss the case on the ground that the Plan was the only proper defendant.

After Cerneskie amended her complaint to name the Plan as defendant, the Plan and

Cerneskie both filed motions for summary judgment in May 2002. In March 2004, the

District Court granted the Plan’s motion for summary judgment and denied Cerneskie’s

motion.1

                                             II.

       We have jurisdiction to review this final disposition of Cerneskie’s claim under 28

U.S.C. § 1291. We review the District Court’s grant of summary judgment de novo,

using the same legal standard applicable in the District Court: summary judgment is




       1
        Judge Cindrich presided over the earlier stages of the case. In 2004, the case was
re-assigned to Judge Cercone, who decided the summary judgment motions.

                                             4
warranted only if there are no genuine issues of material fact and one party is entitled to

judgment as a matter of law. Samaroo v. Samaroo, 193 F.3d 185, 189 (3d Cir. 1999).

       The District Court found that, based on the medical evidence before it, the Plan

had not acted arbitrarily and capriciously in denying Cerneskie’s claim for LTD benefits,

and summary judgment was warranted. The District Court also found that the Supreme

Court’s decision in Black & Decker precluded Cerneskie’s argument that the Plan had not

given proper weight to the opinions of Cerneskie’s treating physicians.

       Cerneskie’s first challenge is to the District Court’s use of the “arbitrary and

capricious” standard to evaluate the Plan’s actions. This is the standard ordinarily used to

review decisions by plan administrators vested with discretion under the terms of a plan.

See Firestone Tire & Rubber Co. v. Bruch, 498 U.S. 101, 111 (1989). However, although

she apparently did not do so in the District Court, Cerneskie now contends that the

District Court should have applied a heightened form of arbitrary and capricious review,

because the Plan was operating under a conflict of interest. See Pinto v. Reliance

Standard Ins. Co., 214 F.3d 377 (3d Cir. 2000). Even if this issue is properly before us,

which is not entirely clear, Cerneskie has failed to offer any evidence of a conflict that

would justify reduced deference to the Plan’s benefit determinations.2 Therefore, we will


       2
        The plan documents establish that the Plan is funded by a trust that is dedicated
exclusively to the Plan and may not revert to Mellon Bank under any circumstances.
Although CIGNA Group Insurance provided certain forms used by the Plan, and appears
to have performed some administrative tasks, Cerneskie has not offered any persuasive
evidence that CIGNA was anything but a technical administrator for the Plan.

                                              5
apply the ordinary arbitrary and capricious standard.

       Applying that standard to the record before us, we find that there is no basis for

finding that the Plan acted arbitrarily and capriciously in denying Cerneskie LTD

benefits. Cerneskie contends that, given Dr. Altman’s June 18, 1998, finding that she was

incapacitated due to major depression, the Plan improperly failed to credit her argument

that she is psychologically disabled due to depression. However, Dr. Altman made no

finding that Cerneskie was or would be permanently disabled, and he failed to provide the

Plan with a requested update of his opinion. Also, Dr. Altman’s notes from earlier in

1998, which indicate steady improvement in Cerneskie’s condition, and his release for her

to return to work in May 1998, all of which were in the record considered by the Plan,

indicate that Cerneskie’s condition had been at least somewhat variable. In light of this

overall pattern of her illness, and the absence of contrary records, Dr. Altman’s office

notes from autumn of 1998, on which the Plan relied in denying benefits after October 13,

1998, are arguably more persuasive than they might otherwise be.3 Although Dr.


       3
        Cerneskie offers Skretvedt v. E.I. Dupont de Nemours & Co., 268 F.3d 167 (3d
Cir. 2001), for the sweeping proposition that a plan administrator cannot dismiss a claim
on the basis of a physician’s office notes. Skretvedt is not so broad. The court in
Skretvedt found that “even under the deferential arbitrary and capricious standard,
Dupont’s denial of Skretvedt’s incapability benefits claim must be rejected because it was
unsupported by substantial evidence.” Id. at 184. However, the evidence Skretvedt
presented was far more powerfully favorable than the evidence Cerneskie has presented
here. Skretvedt had seen multiple doctors, who unanimously agreed that he was disabled
and likely to remain so, and later re-affirmed their original findings of disability, re-
emphasizing the intractability of Skretvedt’s condition. The court refused to dismiss this
medical consensus on the basis of a few minor quibbles raised by the plan, including

                                             6
Altman’s notes might be equally consistent with a finding of continued disability, we

cannot say that, in context, the Plan’s decision to reject that view was arbitrary or

capricious.

       Cerneskie also argues that the District Court misapplied Black & Decker. In Black

& Decker, the Court declined to extend to ERISA benefits claims the “treating physician

rule” applicable in Social Security cases, under which deference is due to the opinion of a

claimant’s regular treating physician. The Court found that, while the rule is proper in the

context of Social Security claims, the courts may not transfer it to ERISA claims, which

arise under a very different statutory framework.

       Black & Decker found that, under ERISA, no special deference was due to treating

physicians. As Justice Ginsburg wrote, “[n]othing in the Act [ERISA] itself, however,

suggests that plan administrators must accord special deference to the opinions of treating

physicians. Nor does the Act impose a heightened burden of explanation on

administrators when they reject a treating physician’s opinion.” Black & Decker, 538

U.S. at 831. The Court held that “courts have no warrant to require administrators




some based on office notes. This fact-specific refusal does not mean that a plan may
never rely on office notes in making a benefits determination.
       Also, to the extent that Skretvedt might imply approval of a treating physician rule
for ERISA cases, it would conflict with Black & Decker, discussed in the text. Skretvedt,
268 F.3d at 184 (“We have long recognized that in the analogous area of disability
benefits determinations under the Social Security Act, the opinions of a claimant’s
treating physicians are entitled to substantial and at times even controlling weight.”
(quotation and alterations omitted)).

                                              7
automatically to accord special weight to the opinions of a claimant’s physician; nor may

courts impose on plan administrators a discrete burden of explanation when they credit

reliable evidence that conflicts with a treating physician’s evaluation.” Id. at 834. We

have no warrant to disregard this plain guidance from the Court.

       Cerneskie contends that Black & Decker prohibits the Plan from rejecting the

opinion of her treating physician – Dr. Altman – on the basis of his notes of subsequent

office visits. Cerneskie points to the Court’s statement in Black & Decker that, although

no special deference is due, “[p]lan administrators, of course, may not arbitrarily refuse to

credit a claimant’s reliable evidence, including the opinions of a treating physician.” Id.

at 834. The Plan did not “refuse to credit” Dr. Altman’s June 1998 opinion, however.

The Plan paid benefits through October 1998, based on Dr. Altman’s finding of disability

due to depression. Cerneskie had the opportunity to provide supplemental medical

reports or opinions before the final denial of her claim, but failed to do so. Based on the

record before us, we cannot say that the District Court erred in concluding that the Plan

did not act arbitrarily in refusing to accept Dr. Altman’s opinion as irrefutable proof of

permanent total disability.

                                             IV.

       The District Court properly granted summary judgment to the Plan, and its

judg ment will be affirmed.




                                              8
