           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         December 7, 2007

                                       No. 06-11324                   Charles R. Fulbruge III
                                                                              Clerk

DANA MARTIN

                                                  Plaintiff-Appellant
v.

SBC DISABILITY INCOME PLAN

                                                  Defendant-Appellee



               Appeal from the United States District Court for the
                   Northern District of Texas, Dallas Division
                            USDC No. 3:05-cv-00729


Before DAVIS, STEWART, and OWEN, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:*
       Plaintiff Dana Martin appeals the judgment of the district court granting
summary judgment in favor of defendant SBC Disability Income Plan and
dismissing her claims for disability benefits against defendant. For the reasons
set forth below, we reverse and remand.
                                             I.
       For more than nineteen years, Dana Martin was employed by SBC
Advanced Solutions, Inc. as a data center technician. In February 2004, she


       *
          Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                       No. 06-11324

sought short-term disability benefits under the SBC Disability Income Plan
(“SBC DIP”) for psychiatric problems. Claims under this plan are processed by
the SBC Medical Absence & Accommodation Resource Team (“SMAART”). After
a series of requests for information, submission of medical records, denials and
appeals, SBC DIP approved short term disability payments for Martin through
July 26, 2004.**       Benefits after that date were denied because “clinical
information does not document a severity of your condition(s) that support your
inability to perform your occupation as a Data Services Technician from
7/26/2004 through your return to work date.” The determination was based on
a review of medical documentation provided by Martin’s treating physician, Dr.
Lucas, on July 21, 2004. The letter notes the following bases for the denial:
       Dr. Lucas does report symptoms of agitation with impaired focus
       and attention span. You also appear agitated and worried. The
       treatment plan involves referral to a appropriate day program.
       Participation in a day program has not taken place at this time.

       Your claim file was forwarded to our Physician Advisor for review.
       An attempt was made to schedule a verbal review of your file with
       Dr. Lucas, but was unsuccessful. However a review of your file did
       show no at risk behavior, your judgment and thought processes are
       noted as intact and your speech is normal.

The denial letter notes that for Martin to perfect a claim, she should contact Dr.
Lucas for additional medical information, which may include “a detailed Mental
Status Exam, testing that may support cognitive dysfunction and a detailed
treatment plan.” The Physician Advisor referred to in the letter was Dr.
Goldman.




       **
          Much of the facts set forth in the briefs deal with Martin’s medical records for the
period prior to July 26, 2004. However, as Martin’s appeal relates to the period after July 26,
2004, during which disability benefits were largely denied, we focus on the medical records
relating to that period.

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      Martin appealed and submitted a letter from one of her treating doctors,
Dr. Lucas, dated June 18, 2004, in support. On September 7, 2004, Martin was
hospitalized after a suicide attempt (drug overdose). She remained hospitalized
for approximately three weeks. Medical records submitted in support of Martin’s
disability claim for the period after July 26, 2004 include
      *     documentation of her hospital stay,
      *     progress notes from Dr. Lucas for July 7, 2004 to August 30, 2004,
      *     a September 29, 2004 report from Dr. Donaldson (to whom Martin
            was referred by Dr. Lucas), and
      *     progress notes from Dr. Lucas for a visit with Martin on September
            29, 2004.
Dr. Donaldson’s report states
      Results of the clinical interview, observations made during therapy
      sessions and telephone calls, and test results obtained from
      administering the Minnesota Multiphasic Personality Inventory-II
      (MMPI-II), all support the diagnosis of Bipolar II Disorder, Most
      Recent Episode Depressed, and Posttraumatic Stress Disorder.

The report lists the symptoms exhibited by Ms. Martin to support each
diagnosis. Dr. Donaldson described Martin as “agitated, depressed and tearful,
appearing barely able to function, and only able to perform the most basic
activities of daily living.” Donaldson concluded
      In my clinical opinion, patient is unable to work at this time or in
      the foreseeable future. Her work includes interacting with the
      public, driving a company vehicle, multiple responsibilities and
      detailed recordkeeping. These duties would be difficult for her to
      perform due to her impaired ability to concentrate.

      SMAART submitted Martin’s records to Dr. Robert Polsky for review. Dr.
Polsky concluded that
      There was no clear clinical documentation indicating her to pose any
      acute risk to self or others, be psychotic or be unable to perform the


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      activities of daily living. There are no formal mental status
      examination findings that would substantiate problems with
      memory, cognition, or concentration. . . . Therefore the findings do
      not support an inability for Ms. Martin to perform job duties from
      07/26/04 to the present.

      Appeals specialist Pat Melycher, who reviewed Dr. Polsky’s report and
Martin’s other medical records for SMAART, approved benefits from September
6 through September 27, 2004, to cover the period of Martin’s hospitalization
following her suicide attempt. However, other benefits were denied because
      Medical documentation does not support your inability to perform
      your essential job duties from 7/26/04 through 9/5/04 and from
      9/28/04 through your return to work date. It was noted that after
      reviewing all medical documentation that there were no objective
      clinical findings to support your inability to perform your essential
      job duties during the denied period of that time. Medical
      documentation does not state that you were a danger to yourself or
      others, were psychotic, or unable to perform your activities of daily
      living. There were no findings from a formal mental status
      examination to substantiate that you were, or are, having problems
      with memory, cognition, or concentration.

      Although some findings on examination are evident, none are
      documented to be so severe as to prevent you from performing the
      job duties of Data Service Technician or any other available job
      assigned by the Company from 7/26/04 to 9/5/04 through your return
      to work.

      Because Martin had no further avenue to appeal this decision with SBC
DIP, she filed suit. The district court decided the case on SBC DIP’s motion for
summary judgment. It granted judgment in favor of SBC DIP on the basis that
      Martin has failed to point to evidence in the record that shows any
      abuse of discretion on the part of the defendant. Even if the court
      were to give the administrator’s decision less than usual deference,
      there is a rational connection between the decision to deny Martin’s
      benefits and the recommendation of Dr. Polsky, which was based on
      all of the medical submissions regarding Martin’s claim. Therefore,


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      Martin has failed to establish a genuine issue of material fact
      relating to any abuse of discretion on the part of the defendant.

Martin appeals.
                                         II.
      The district court decided this case on summary judgment. Summary
judgment is proper when the pleadings and evidence before the court show that
no genuine issue exists as to any material fact, and that the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56 (c). In this circuit, an
ERISA plan administrator’s factual determinations are reviewed for abuse of
discretion. Vercher v. Alexander & Alexander Inc., 379 F.3d 222, 226 (5th Cir.
2004).   A plan administrator abuses its discretion if it acts arbitrarily or
capriciously. Meditrust Financial Services Corp. v. Sterling Chemicals, Inc., 168
F.3d 211, 214 (5th Cir. 1999). When reviewing to determine whether the
administrator’s decision was arbitrary or capricious, the court should affirm the
decision if it is supported by “substantial evidence.” Id. at 215. A decision is
arbitrary, and thus not supported by substantial evidence, if “made without a
rational connection between the known facts and the decision or between the
found facts and the evidence.” Id., (citing Bellaire General Hospital v. Blue
Cross Blue Shield, 97 F.3d 822, 828-29 (5th Cir. 1996)).
      SBC DIP’s decision to deny benefits to Martin for most of the period
following July 26, 2004 is based on what it views as an absence of evidence to
support a finding of disability. The denial letter cites a lack of “objective clinical
findings to support your inability to perform your essential job duties,” and an
absence of “findings from a formal mental status examination to substantiate
that you were, or are, having problems with memory, cognition, or
concentration.” The letter also cites that “[m]edical documentation does not
state that you were a danger to yourself or others, were psychotic, or unable to
perform your activities of daily living.” The denial letter was based on Dr.


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Polsky’s report which concluded that Martin was not disabled from 7/26/04 to the
date of the report, despite a three week hospitalization resulting from a suicide
attempt during that interval. Dr. Polsky concluded that Martin was not disabled
because there were “no formal mental examination findings that would
substantiate problems with memory, cognition, or concentration” and “no clear
clinical documentation” that she was “unable to perform the activities of daily
living.”
      Based on our review of the record, these conclusions do not reflect a
rational connection between the known facts and the decision to deny benefits.
The primary direct evidence of Martin’s condition from July 26, 2004 to the date
further benefits were denied was the report of Dr. Donaldson, the physician who
was treating Martin during that time.          Martin underwent a Minnesota
Multiphasic Personality Inventory-II test. Based on that test and her clinical
findings Dr. Donaldson diagnosed Martin’s condition as Bipolar II Disorder,
Most Recent Episode Depressed, and Posttraumatic Stress Disorder. The report
lists sysmptoms exhibited by Martin that support these diagnoses.              Dr.
Donaldson’s observations are consistent with Martin’s other doctor, Dr. Lucas.
The report states that Martin has outbursts of anger and difficultly
concentrating, is barely able to function and only able to perform the most basic
activities of daily living. It also notes that Martin is unable to work because the
basic functions of her job, interacting with the public, driving a company vehicle,
multiple responsibilities and detailed record keeping, would be difficult for
Martin to perform because of her impaired ability to concentrate.             It is
impossible to reconcile Dr. Polsky’s report and the denial letter’s complaint of
lack of objective evidence supporting Martin’s inability to perform her job with
Dr. Donaldson’s report.
      This is not a situation in which the reviewing physician reached a different
medical conclusion from the medical evidence in the beneficiary’s file or where


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other evidence of the claimant’s condition contradicts the diagnosis of the
treating physician. For example in Sweatman v. Commercial Union Insurance
Co., 39 F.3d 594 (5th Cir. 1994), the reviewing physician found that the patient’s
lab work refuted a diagnosis of rheumatoid arthritis. In addition, a private
investigator observed the patient taking care of her wheelchair bound spouse
and moving with no apparent restrictions or obvious signs of impairment. Under
those facts, the insurer did not abuse its discretion in denying benefits based on
its own investigation and the reports of its medical consultants. In Vercher v.
Alexander & Alexander Inc., 379 F.3d 222 (5th Cir. 2004), the reviewing
physician found that the claimant’s file contained no objective evidence of the
claimed neuromuscular or psychiatric impairment which precluded continued
employment. Additional evidence also supported the plan administrator’s denial
of disability benefits.   Vercher claimed disability resulting from injuries
sustained in a prior auto accident. Her own physicians had recommended
medical retirement. However the reviewing physician found that Vercher had
put forth less than maximal effort during a Functional Capacity Assessment.
The administrator also noted that Vercher had worked for more than four years
after her initial injury in the auto accident, during which time she accepted a
promotion, performed in her new position for nearly two years while taking
minimal days off for her claimed injuries.       This court found no abuse of
discretion in the denial of long-term disability benefits for Vercher.
      In this case, it is clear that the claim of no objective clinical findings to
support Martin’s claim of disability by the plan administrator and reviewing
physician is inconsistent with the medical records SBC DIP admits having
during its review of Martin’s claim.        SBC DIP did not reasonably and
appropriately rely on Dr. Polsky’s report because it clearly did not accurately
reflect the facts in Martin’s medical record. In addition, there is no medical
evidence in the record related to the period after July 26, 2004, when Martin’s


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claim for disability was largely denied, that refutes or undermines the reports
of Martin’s treating physician. Neither the plan administrator nor the reviewing
physician dispute the diagnosis of the treating physicians and they present no
evidence that contradicts the treating physician’s conclusion that Martin is
barely able to function and cannot perform her work duties. Under the facts of
this case, SBC DIP abused its discretion in denying disability benefits to Martin
and the district court erred in granting summary judgment in favor of SBC DIP
on this record.
                                       III.
      For the foregoing reasons the summary judgment of the district court
rejecting Martin’s claim for short term disability benefits is reversed. We
remand this case to the district court for further proceedings consistent with this
opinion.
REVERSED and REMANDED.




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