     Case: 13-20196      Document: 00512601317         Page: 1    Date Filed: 04/18/2014




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

                                                                                 FILED
                                      No. 13-20196                           April 18, 2014
                                                                            Lyle W. Cayce
CYNTHIA SPENRATH                                                                 Clerk


                                                 Plaintiff - Appellant
v.

THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA

                                                 Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CV-1979


Before JONES, SMITH, and OWEN, Circuit Judges.
PER CURIAM:*
       Cynthia Spenrath appeals from the district court’s grant of summary
judgment upholding the denial of her claim for long-term disability benefits.
We find no error of fact or law and affirm, and we add an award of appellate
attorney’s fees.
       Spenrath worked at Protect Controls, Inc. as an order entry manager. In
2005, Spenrath started having seizure-like episodes in which she would be non-


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   No. 13-20196
responsive for about five minutes.        She asserted that the episodes were
accompanied by swishing in her ears, limb weakness, and an inability to move
or speak. Spenrath’s primary care physician, Dr. Michael DiTeresa, referred
her to two neurologists, Dr. Balbir Singh and Dr. J. William Lindsey. Neither
neurologist made a definitive diagnosis, but they mentioned the possibility of
multiple sclerosis based on abnormal MRI results and recommended
additional testing. Spenrath did not undergo additional testing. Though she
continued to take anticonvulsant medication, Spenrath did not visit the
neurologists after 2005.
      In 2008, Spenrath experienced difficulty doing her job, with a diminished
ability to focus and type information into the computer. When she failed to
complete several assignments, she was given a negative performance review
and a salary reduction. Shortly after the negative review, she ceased working
on February 22, 2008. On May 7, Spenrath submitted a claim for long-term
disability   benefits   under   the   company’s     ERISA   Plan, and     claimed
commencement of disability as of February 22, 2008.
      The    Plan’s     administrator,   Guardian    Life   Insurance   Company
(“Guardian”) began a review of the long-term disability claim. Under the Plan,
Guardian has “discretionary authority to determine eligibility for benefits and
to construe the terms of the [Plan] with respect to claims.” In order to receive
long-term disability payments, the plan sets forth several requirements:
      (a)    You must (i) become disabled while insured by this plan; and
      (ii) remain disabled for this plan’s [ninety-day] elimination period.

      (b)   You must be: (i) under a doctor’s regular care for the cause
      of your disability, starting from the date you were first disabled;
      and (ii) receiving medical care appropriate to the cause of your
      disability and any other sickness or injury which exists during your
      disability.



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                                 No. 13-20196
      (c)   You must send us written documentation of: (i) medical
      evidence in support of the limits causing your disability . . . .
The Plan defines “disability or disabled” as “physical, mental or emotional
limits caused by a current sickness or injury” that preclude the full time
performance of the major duties of the claimant’s occupation. The ninety-day
elimination period is the length of time a claimant must be disabled prior to
becoming eligible for long-term disability.
      Guardian requested and reviewed medical records from multiple
sources, including Dr. DiTeresa, and conducted interviews with Spenrath’s
mother, her power of attorney/representative, and her employer. After the
initial review, Guardian determined that it had not been provided with medical
evidence of a condition that functionally impaired and limited Spenrath
throughout the elimination period (February 22-May 22, 2008). Guardian sent
a denial letter on December 2, 2008, which also informed Spenrath of the
additional information and documentation that would be necessary if Spenrath
desired to request reconsideration.
      Spenrath appealed the denial on December 31, and informed Guardian
that she would provide supplemental documentation.              She submitted
additional medical and pharmacy records in April 2009. After it received the
additional documentation, Guardian sent the appeal for Multi-Disciplinary
Review (MDR). The MDR panel comprised an independent board certified
neurologist, an independent board certified psychiatrist, and an independent
board certified cardiologist.   Following review of the medical records and
conversations with Spenrath’s medical providers, each member of the MDR
panel found that the medical records submitted did not support a finding that
Spenrath was unable to perform her occupation after February 21, 2008.
Based on the recommendation of the MDR panel, Guardian upheld its decision
to deny long-term disability benefits.

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                                 No. 13-20196
      Spenrath filed suit to recover long-term disability benefits under the
Plan. The district court granted summary judgment in favor of Guardian. On
appeal, Spenrath argues that her claim was based upon substantial evidence
and that Guardian refused to credit some evidence while relying on other
evidence that misstated portions of the factual record.
                          STANDARD OF REVIEW
      We review a district court’s grant of summary judgment de novo in the
ERISA context, applying the same standard as the district court. See Corry v.
Liberty Life Assurance Co. of Bos., 499 F.3d 389, 397 (5th Cir. 2007). Where
the benefits plan “gives the administrator or fiduciary discretionary authority
to determine eligibility for benefits or to construe the terms of the plan” we
review only for an abuse of discretion. Firestone Tire & Rubber Co. v. Bruch,
489 U.S. 101, 115 (1989); see also Anderson v. Cytec Indus., Inc., 619 F.3d 505,
512 (5th Cir. 2010). The plan administrator’s factual determinations are also
reviewed for abuse of discretion. See Lafleur v. La. Health Serv. and Indem.
Co., 563 F.3d 148, 159 (5th Cir. 2009). The plaintiff carries the burden of
proving abuse of discretion on the part of the plan administrator. See Dowden
v. Blue Cross & Blue Shield of Tex., Inc., 126 F.3d 641, 644 (5th Cir. 1997) (per
curiam).
      Under this standard, “[i]f the plan fiduciary’s decision is supported by
substantial evidence and is not arbitrary and capricious, it must prevail.” Ellis
v. Liberty Life Assurance Co. of Bos., 394 F.3d 262, 273 (5th Cir. 2004).
“Substantial evidence is more than a scintilla, less than a preponderance, and
is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. (citation and internal quotation marks omitted). “A
decision is arbitrary if it is made without a rational connection between the
known facts and decision.” Anderson, 619 F.3d at 512. “Ultimately, [this
court’s] review of the administrator’s decision need not be particularly complex
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                                 No. 13-20196
or technical; it need only assure that the administrator’s decision fall[s]
somewhere on a continuum of reasonableness—even if on the low end.” Corry,
499 F.3d at 398 (citation and internal quotation marks omitted).
                                DISCUSSION
I.     Substantial Evidence Standard.
       Spenrath argues that Guardian abused its discretion when it determined
that she was not disabled even though she provided substantial evidence of her
disability within the terms of the Plan. The question whether there was
substantial evidence of the claimaint’s disability is not relevant under our
review.     “The law requires only that substantial evidence support a plan
fiduciary’s decisions, including those to deny or to terminate benefits, not that
substantial evidence (or, for that matter, even a preponderance) exists to
support the employee’s claim of disability.” Ellis, 394 F.3d at 273. Thus, an
administrative record could contain both substantial evidence of an employee’s
disability and substantial evidence supporting the plan fiduciary’s decision to
deny benefits. Accordingly, Spenrath’s argument that her position is also
supported by substantial evidence is misplaced.
II.    Failure to Credit Evidence.
       A.     Objective Evidence.
       Spenrath contends that Guardian failed to credit the medical evidence
contained in the record. Guardian responds that its decision was based on the
entire administrative record, including Spenrath’s medical evidence. In its
final rejection letter, Guardian specifically discussed much of Spenrath’s
medical evidence. The evidence was also thoroughly considered in the opinions
of the three independent medical specialists, upon which Guardian relies.
       Specifically, Guardian notes that the neurologists, Dr. Singh and
Dr. Lindsey, failed to diagnose Spenrath after they examined her in 2005.
Although the neurologists recommended additional testing, Spenrath declined
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                                 No. 13-20196
the recommendation and never underwent additional testing to confirm a
neurological condition. Guardian also notes that the record fails to account for
Spenrath’s continued ability to work from 2005 to 2008. The board certified
neurologist who reviewed Spenrath’s claim could not determine what would
have caused Spenrath suddenly to become disabled in 2008.
      Because Spenrath was not under the treatment of a neurologist,
Guardian and the MDR panel focused on the treatment records of the primary
care physician, Dr. DiTeresa. They found that the tersely written treatment
notes provided little information regarding Spenrath’s condition, complaints,
or limitations. Dr. DiTeresa’s disability letters failed to explain the basis for
the doctor’s assertion that Spenrath was no longer fit to return to work.
Dr. DiTeresa also failed to account for his previous letter stating that Spenrath
would return to work on March 10, 2008. Guardian concluded that the records
and letters furnished insufficient support for Spenrath’s disability claim.
      Spenrath also relies on a letter from her therapist, Angela Soper, who
stated that Spenrath was unable to work. Guardian noted that the letter was
not a medical record, and that as a counselor, Soper was not in a position to
provide a medical diagnosis. The letter also highlighted other issues such as
Spenrath’s stress at work and depression, but these issues are unrelated to the
seizure disorder.
      Guardian did not fail to credit the evidence Spenrath provided; instead,
it concluded that that evidence was not sufficient. ERISA requires that all
evidence “actually be taken into account in an administrator’s determination.”
Love v. Dell, Inc., 551 F.3d 333, 337 (5th Cir. 2008). It does not require that
the opinions of treating physicians be preferred over those of other physicians
reviewing a file. Id. Because Guardian weighed the evidence and exercised its
discretion, this court may not second guess its determination.


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       B.     Subjective Evidence.
       Spenrath contends that Guardian failed to consider subjective evidence
of her seizures.      She suggests that two unpublished opinions support her
position: Audino v. Reytheon Co. Short Term Disability Plan, 129 F. App’x. 882
(5th Cir. 2005) (per curiam) and Schully v. Cont’l Cas. Co., 380 F. App’x. 437,
439 (5th Cir. 2010) (per curiam). Not only are these unpublished opinions non-
precedential, they are also easily distinguishable. In both Audino and Schully
this court held that ERISA plan administrators had abused their discretion by
not according weight to subjective complaints of pain. In those cases, however,
unlike Spenrath’s, the complaints were corroborated by objective medical
evidence, Schully, 380 F. App’x. at 438-39, or documented in medical reports,
Audino 129 F. App’x. at 885.
       Spenrath argues that Guardian’s failure to specifically acknowledge her
subjective complaints in its final denial letter is an abuse of discretion. We
have never so held. 1 The record in this case exceeds seven hundred pages, and
it would be impractical to require the plan administrator to mention each piece
of evidence it considered in reaching its conclusion. In any event, Guardian
did consider the subjective evidence. Guardian asked the independent medical
specialists on the MDR panel to determine whether there was a disparity
between objective findings and Spenrath’s subjective complaints. All three
members of the panel found discrepancies. Guardian also states in its denial
letters that it twice reviewed the entire record, which, of course, contained the
subjective evidence of Spenrath’s seizures.              Guardian did not abuse its
discretion.



       1 In Corry, supra, this court determined that the mention of subjective evidence in the
final rejection letter demonstrated that the administrator had considered the evidence.
499 F.3d at 399-400. Corry did not hold that mentioning the subjective evidence in the final
rejection letter was required.
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                                  No. 13-20196
III.    Expert Opinions.
        Spenrath contends that Guardian abused its discretion by relying on
expert opinions that misstated or mischaracterized the evidence. Perhaps an
administrator’s reliance on erroneous medical opinions may be an abuse of
discretion, particularly where the erroneous opinion is the primary basis upon
which the administrator denied a claim. See, e.g., Audino, 124 F. App’x at 884
(rejecting the conclusion of an administrator that relied on a medical opinion
that misstated the content of the record); Martin v. SVC Disability Income
Plan, 257 F. App’x. 751, 754-55 (5th Cir. 2007) (rejecting claim administrator’s
reliance on medical opinion that ignored testing conducted by other
physicians); Scheueurmann v. Unum Life Ins. Co. of Am., 384 F. App’x. 422
(5th Cir. 2010) (per curiam) (rejecting administrator’s reliance on a medical
report that misread the claimant’s MRI and misstated the number of back
surgeries he had undergone).       None of the alleged errors in the expert
testimony in this case undermine Guardian’s ultimate conclusion or affect the
substantial nature of the evidence in its support.
        Spenrath first asserts that Dr. Jares, the neurologist on the MDR panel,
erroneously concluded that there was only one witnessed seizure.             The
argument is based on Dr. Jares’s statement that “[t]he diagnosis of seizures is
a clinical diagnosis based upon the claimant’s history and eye witnessed
observation.” Dr. Hertzberg, another of the MDR experts, stated in his report
that “Dr. Jares noted that there had been no eyewitness to claimant’s seizures
aside from the therapist who noted an episode in June 2008.” Dr. Jares’s full
opinion demonstrates, however, that he was aware that Spenrath alleged
many seizure-like episodes, and that he considered the statements of
eyewitnesses.     In any event, the number of eyewitness accounts does not
undermine Dr. Jares’s conclusion that there was no medical documentation to
support the treating physician’s diagnosis.
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                                  No. 13-20196
      Spenrath also criticizes Dr. Jares’s statement that “Dr. Diteresa’s (sic)
documentation is quite limited, but he did mention on occasion that [Spenrath]
did have an occasional seizure here and there.” Spenrath claims that Dr. Jares
improperly characterized the occurrence of the seizures as “occasional,” but, in
the period at issue, Spenrath can point to only four instances where
Dr. DiTeresa’s treatment notes mentioned seizures.              Dr. DiTeresa did
repeatedly identify a seizure disorder on patient visit forms, but merely
relisting a diagnosis from a previous visit is not evidence of additional seizures.
Dr. Jares’s characterization was accurate.
      Spenrath next criticizes Guardian’s reliance on the opinion of
Dr. Hertzberg. Spenrath argues that Dr. Hertzberg knew of the inaccuracies
in Dr. Jares’s report and failed to correct them, misstated evidence of a
neurological disorder, misstated the reasons for the decreased frequency of
Spenrath’s visits to her therapist, and misstated the record concerning
Spenrath’s functional limitations. These arguments are all without merit.
      As has been discussed, any alleged inaccuracies in Dr. Jares’s report
were minor, and Dr. Hertzberg was under no obligation to correct them.
Dr. Hertzberg concluded that Spenrath’s condition was not neurological
because there was no documentation or objective evidence of a neurological
disorder.    Spenrath points to no objective evidence that contradicts
Dr. Hertzberg’s conclusion. Dr. Hertzberg correctly stated that Spenrath’s
therapist cut down on sessions because Spenrath appeared to her therapist to
be more emotionally stable.      Dr. Hertzberg also stated that there was no
documentation     that     Spenrath   had    any    cognitive   difficulties   with
concentration, memory, or focus.       Spenrath contends that his statement
conflicts with the opinions of Spenrath’s doctor and therapist. In context, it is
likely that Dr. Hertzberg was referring to a lack of medical testing
documenting Spenrath’s condition. Even if his statement was inaccurately
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                                  No. 13-20196
phrased, Dr. Hertzberg personally spoke with Spenrath’s therapist and was
aware of all of the evidence in the record.
        In the face of conflicting opinions, Guardian gave more weight to the
conclusions of the independent experts than to Spenrath’s primary care
physician and therapist. Doing so was not arbitrary and capricious, and there
was substantial evidence supporting Guardian’s decision. See Corry, 499 F.3d
at 401; Anderson, 619 F.3d at 515.
        Finally, Spenrath argues that Guardian’s failure specifically to identify
her symptoms and how they affect her ability to perform her job was an abuse
of discretion. She cites the non-precedential decision in Audino in support of
her assertion. In Audino, the medical expert ignored relevant subjective and
objective evidence corroborating the claimant’s complaints and therefore
neglected to determine the effect of her condition on her ability to perform her
job. 129 F. App’x. at 884-85. Here, the medical experts did not ignore relevant
evidence, and they considered how Spenrath’s limitations would affect her
ability to perform her occupation. There is no independent requirement that
plan administrators list a claimant’s occupational responsibilities. The experts
concluded on the basis of the entire record that there was insufficient evidence
to substantiate Spenrath’s disability claim. Guardian credited the experts’
opinions and denied Spenrath’s claim based on substantial evidence. This was
not an abuse of discretion.
IV.     Attorney’s Fees.
        In her initial brief, Spenrath does not challenge the award of attorney’s
fees below, but merely asks for an award of attorney’s fees in her favor.
Accordingly, she has waived any argument regarding the appropriateness of
the district court’s grant of attorney’s fees to Guardian in this case. Valle v.
City of Hou., 613 F.3d 536, 544 n.5 (5th Cir. 2010) (argument is waived if not
raised in a party’s opening brief).
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                                 No. 13-20196
      Guardian has also requested the attorney’s fees it has incurred on appeal
under 29 U.S.C. § 1132(g).       An award of attorney’s fees on appeal is
discretionary, Hogan v. Kraft Foods, 969 F.2d 142, 146 (5th Cir. 1992), and a
“fees claimant must show some degree of success on the merits.” Hardt v.
Reliance Standard Life Ins. Co., 560 U.S. 242, 255 (2010). Guardian has
succeeded on the merits, and given the weak nature of Spenrath’s arguments
on appeal and her failure to object, we conclude that Guardian is entitled to an
award of $6,000.00 as appellate attorney’s fees.
      For the foregoing reasons, the judgment of the district court is
AFFIRMED; Attorney’s Fees Awarded.




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