                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT           FILED
                        ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                               No. 10-15387                    MAY 29, 2012
                           Non-Argument Calendar                JOHN LEY
                         ________________________                CLERK

                 D. C. Docket No. 3:09-cv-01042-HWM-MCR


CAROLYN SMITH,

                                                              Plaintiff-Appellant,

                                        versus

THE PENSION COMMITTEE OF
JOHNSON & JOHNSON,
d.b.a. Reed Group,

                                                             Defendant-Appellee.

                         ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                       ________________________

                                (May 29, 2012)


Before EDMONDSON, MARTIN and BLACK, Circuit Judges.


PER CURIAM:

     Plaintiff-Appellant Carolyn Smith appeals the district court’s decision
affirming the termination of her long-term disability benefits. No reversible error

has been shown; we affirm.

       Smith is a former employee of Johnson and Johnson Care, Inc. Johnson and

Johnson offers eligible employees of participating companies the opportunity to

participate in the long term disability plan for Johnson and Johnson and affiliated

companies (the “Plan”). The ERISA Plan document provided the Plan

administrator1 with discretionary authority to determine eligibility for benefits, to

construe the terms of the Plan and to make binding benefit determinations based

on its construction of the Plan. The Plan is funded exclusively by contributions

made by Plan participants; Johnson and Johnson neither funds nor insures benefits

under the Plan.

       Plaintiff began to receive long term disability benefits under the Plan in

February 1996; the disabling diagnosis was bipolar affective disorder, depressed.2

In 2004, Plaintiff underwent a comprehensive psychological examination by Dr.

Reynolds; and in November 2006, Plaintiff was required to undergo an adult

       1
         Under the Plan, the Johnson & Johnson Pension Committee (the “Pension Committee”)
acts as the Plan Fiduciary. The Plan allows the Pension Committee to delegate responsibilities to
a claims service organization (“CSO”) to administer the Plan. The Pension Committee delegated
to Reed Group -- as the appointed CSO -- responsibility for making claim determinations.
       2
        In September 2000, Plaintiff’s diagnosis included: Personality Disorders, Unspecified;
Pathological Personality NOS; Personality Disorder NOS; Psychopathic: Constitutional State;
Bipolar Disorders, Other and Unspecified; Bipolar II Disorder; and Manic Depressive Psychosis,
Mixed Type.

                                                2
psychiatric evaluation by Dr. Pruitt. Dr. Pruitt was of the opinion that Plaintiff

was unlikely to improve and that her disability was permanent. In June 2008,

Plaintiff’s attending physician -- Dr. Groble -- provided Reed, the claims service

organization appointed by the Pension Committee, with an updated statement on

Plaintiff’s condition. Dr. Groble was of the opinion that Plaintiff was unable to

return to work under any circumstances. But Dr. Groble also informed Reed for

the first time that Plaintiff was not complying with treatment recommendations.

Defendant states that the receipt of this new information about non-compliance

triggered their request that Plaintiff submit to a comprehensive neuropsychological

evaluation to allow the development of a full diagnosis and treatment plan.

      Plaintiff was angry about submitting to a neuropsychological evaluation;

Plaintiff had a fear of psychotherapy because of a bad experience of which Reed

was aware. Reed advised Plaintiff that the Plan required her cooperation; Reed

warned specifically that her “failure to attend, put forth reasonable effort or

otherwise fully cooperate in this evaluation will result in the termination of your

disability benefits.” Although Plaintiff initially stated she would submit to no

further exam or therapy, she finally agreed to the exam but continued to maintain

she would allow no therapy.




                                          3
      Dr. Glen performed Plaintiff’s neurological evaluation on 10 July 2008. Dr.

Glen concluded that the scores on tests she administered were invalid: Plaintiff put

forth suboptimal effort and appeared to exaggerate intentionally her cognitive

symptoms. According to Dr. Glen, Plaintiff was “fairly oppositional” during the

test; her extremely poor performance on the tests was in marked contrast to

observations and reports of current functioning. Dr. Glen opined that Plaintiff’s

test- taking behavior was highly unusual and much more impaired than that of

other patients she had seen with severe brain injury. Dr. Glen saw no evidence of

cognitive impairment; Plaintiff’s “behavior seemed to reflect personality style and

oppositional interactions rather than any underlying psychiatric dysfunction.”

Because of “characterological and pyschosocial” challenges, Dr. Glen did not

believe that Plaintiff could maintain a full-time job; she also did not believe

Plaintiff’s limitations were due to an underlying psychiatric dysfunction. After all

tests results were received and after consideration of Plaintiff’s file, Dr. Glen was

of the opinion that Plaintiff’s performance was likely due to malingering.

      Reed notified Plaintiff that her benefits were being terminated based on her

failure or refusal to cooperate and to put forth her best effort during testing. The

termination letter advised Plaintiff specifically that she should provide Reed with

an explanation of her test performance if she wished to challenge the termination.

                                          4
      In her appeal of the termination decision, Plaintiff submitted only a letter

from her treating psychiatrist, Dr. Groble. Dr. Groble’s letter took issue with Dr.

Glen’s diagnoses and functional abilities assessment. About the stated reason for

the termination -- Plaintiff’s failure to cooperate and malingering -- Dr. Glen said

only that Plaintiff was

             emotionally distrustful and traumatized by past
             professional contacts including a social worker divulging
             “confidential information leading to the loss of custody
             of her children. The patient has been afraid, as a result,
             to even be in any further counseling that might have
             improved her adjustment emotionally and potentially
             allowed rehabilitation.

      Defendant sent Plaintiff’s claim for a physician’s file review to determine if

medical documentation supported a finding of a cognitive impairment that would

impair Plaintiff’s ability to participate in testing. Dr. Marie-Claude Rigaud

concurred in Dr. Glen’s conclusions: the objective medical findings showed no

cognitive impairment which would adversely affect Plaintiff’s ability to complete

psychological and neuropsychological testing.

      Plaintiff’s first appeal was denied by Reed. Plaintiff exercised her right to a

second appeal and submitted -- in addition to Dr. Groble’s letter -- the results of an

orthopedic exam she had in connection with litigation in which she was a




                                          5
claimant. The results of the orthopedic exam failed to address Plaintiff’s ability to

cooperate; and it noted no failure to cooperate in the orthopedic exam.

       Plaintiff’s second appeal was considered by the Pension Committee. The

Pension Committee concluded that the documentation for Plaintiff’s claim

contained substantial evidence to support Reed’s benefit denial determination

because she failed to cooperate during required testing and failed further to

provide evidence that her failure to cooperate was the result of cognitive deficits.3

       ERISA itself provides no standard for review of the benefits decision of

plan administrators. Firestone Tire & Rubber Co., v. Bruch, 109 S.Ct. 948, 953

(1989). Based on Supreme Court guidance in Firestone and Metropolitan Life Ins.

Co. v. Glenn, 128 S.Ct. 2343, 2348 (2008), we have established a multi-step

framework for review of ERISA benefit decisions:



       (1) Apply the de novo standard to determine whether the claim
       administrator’s benefits-denial decision is “wrong” (i.e., the court
       disagrees with the administrator’s decision); if it is not, then end the
       inquiry and affirm the decision.




       3
         The Pension Committee also noted that Plaintiff did not satisfy the definition of total
disability under the Plan because clinical assessments showed she was able to work a less than
eight-hour day. The district court only reviewed the reasonableness of the termination on the
failure-to-cooperate basis specified. We, too, only review that basis.

                                                6
         (2) If the administrator’s decision in fact is “de novo wrong,” then
         determine whether he was vested with discretion in reviewing claims;
         if not, end judicial inquiry and reverse the decision.

         (3) If the administrator’s decision is “de novo wrong” and he was
         vested with discretion in reviewing claims, then determine whether
         “reasonable” grounds supported it (hence, review his decision under
         the more deferential arbitrary and capricious standard).

         (4) If no reasonable grounds exist, then end the inquiry and reverse
         the administrator’s decision; if reasonable grounds do exist, then
         determine if he operated under a conflict of interest.

         (5) If there is no conflict, then end the inquiry and affirm the decision.

         (6) If there is a conflict, the conflict should merely be a factor for the
         court to take into account when determining whether an
         administrator’s decision was arbitrary and capricious.

Blankenship v. Metropolitan Life Insur. Co., 644 F.3d 1350, 1355 (11th Cir. 2011).

         The district court was of the opinion that Plaintiff’s long history of

established disability on the basis of psychological and emotional impairments

raised a question of fact about whether Defendant’s decision was de novo wrong.

But even if it was de novo wrong, the district court concluded that Defendant did

not abuse its discretion, and its decision was not arbitrary and capricious and, after

consideration of the entire record, termination was a reasonable determination. We

agree.




                                             7
      The Plan conditioned continued eligibility for disability benefits on

compliance with recommended treatment and cooperation during evaluations

requested pursuant to the Plan. We cannot say it was unreasonable to request a

comprehensive reevaluation of Plaintiff’s condition once Plaintiff’s physician gave

notice that Plaintiff failed to comply with treatment recommendations. According

to Drs. Glen and Rigaurd, Plaintiff refused to put forth her best efforts during that

comprehensive reevaluation; the testing results had no validity. Plaintiff was

offered the opportunity to submit additional documents to explain her test

performance. The documents submitted failed to show that Plaintiff was incapable

of participating and cooperating fully in the testing process. We cannot say that the

Pension Committee acted unreasonably or in an arbitrary and capricious manner

when it determined that Plaintiff’s eligibility for benefits under the Plan was

nullified by her non-cooperation during testing procedures.

      Plaintiff argues that the deferential arbitrary and capricious standard should

not apply because “procedural irregularities” attended the termination decision.

Plaintiff argues that three medical evaluations over a four-year period were abusive

and evidence Defendant’s bad faith. Also Plaintiff contends that Plaintiff’s failure

to follow treatment recommendations of her physician -- the purported reason for




                                           8
the last of these evaluations -- is unrelated to the intensive neuropsychological

testing that Plaintiff was forced to endure.

      Plaintiff does not contend that Defendant operated under a conflict of

interest, at least as conflict of interest is typically understood in this context:

Defendant had no financial interest in the benefit decision. Plaintiff’s protestations

to the contrary notwithstanding, the asserted “procedural irregularities” establish no

conflict sufficient to support Plaintiff’s argument that a heightened standard of

review should apply.

      Under the standard of review of benefit decisions set out in Blankenship v.

Metropolitan Life Insur. Co., Defendant’s termination of Plaintiff’s disability

benefits must be affirmed.

      AFFIRMED.




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