              Case: 13-12184    Date Filed: 08/13/2014   Page: 1 of 29




                                                              [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 13-12184
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 8:12-cv-00908-VMC-TGW



JOHN S. OATES,

                                                               Plaintiff-Appellant,

                                      versus

WALGREEN COMPANY,
a foreign profit corporation,

                                                              Defendant-Appellee.

                           ________________________

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

                                 (August 13, 2014)

Before TJOFLAT, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:
                Case: 13-12184       Date Filed: 08/13/2014       Page: 2 of 29


       Plaintiff John S. Oates appeals from the entry of final judgment against him

in a suit to recover benefits allegedly due to him under the terms of the Walgreen

Income Protection Plan for Pharmacists and Registered Nurses (“the Plan”). “We

review de novo a district court’s ruling affirming or reversing a plan

administrator’s ERISA benefits decision, applying the same legal standards that

governed the district court’s decision.” Blankenship v. Metro. Life Ins. Co., 644

F.3d 1350, 1354 (11th Cir. 2011) (per curiam).

I.     BACKGROUND

       A.      Relevant Plan Terms

       The Summary Plan Description (“SPD”) states that it “is the official Income

Protection Plan governing document for purposes of describing the various plan

provisions.”1 According to the SPD, defendant Walgreen Company (“Walgreens”)

is the designated Plan Administrator, benefits are paid from Walgreens assets, and

Walgreens is directly responsible for the final adjudication of disability claims.

According to the SPD, a third party called Sedgwick CMS (“Sedgwick”) is the

Claim Administrator who handles initial claims determinations and appeals.

       According to the SPD, both Walgreens and Sedgwick have authority to

“construe and interpret the Plan and make benefit determinations, including claims


1
         For the first time on appeal, Oates argues that the Summary Plan Description does not
accurately describe the terms of the Plan. We decline to consider this argument made for the
first time on appeal. See infra Part II.

                                                2
                Case: 13-12184     Date Filed: 08/13/2014   Page: 3 of 29


and appeals determinations.” That authority is exercisable “as [Walgreens and

Sedgwick] deem appropriate in their sole discretion.” According to the SPD,

Sedgwick’s benefit determinations are binding on all parties, “except to the limited

extent to which [Sedgwick’s] decisions are subject to further review by

[Walgreens].” The SPD provides for further review by Walgreens if either

Walgreens or Sedgwick “determines that the appeal presents material issues that

are outside the expertise or purview of [Sedgwick] (such as hours worked,

employment status or new or unique procedural or Plan interpretation issues).”

         Below, Walgreens submitted a sworn declaration from a Sedgwick

employee stating that, based on the declarant’s personal knowledge and her review

of Sedgwick’s business records, “[u]nder the Plan, Sedgwick performs claims

evaluations and makes determinations on specific claims . . . . Walgreens only

provides information regarding the general eligibility for Plan benefits and

regarding the duties and compensation of Walgreens employees participating in the

Plan.”

         Under the terms of the Plan, participants are required both to apply for

Social Security disability benefits and also to appeal any denial of those benefits.

If awarded, the Social Security disability benefits reduce the amount of benefits

awarded under the Plan.

         B.    Sedgwick’s Determination That Oates Was No Longer Entitled to
               Long-Term Disability Benefits
                                            3
               Case: 13-12184       Date Filed: 08/13/2014      Page: 4 of 29


       As relevant on appeal, Sedgwick terminated Oates’s long-term disability

benefits claim effective May 22, 2011. Oates twice appealed to Sedgwick, but

both times Sedgwick upheld the termination. 2 Walgreens was not involved with

either the initial benefits determination or the appeals, and Oates never sought

review by Walgreens.

       Under the terms of the Plan, Oates was eligible for continued long-term

disability benefits if, inter alia, as a “direct result” of sickness or accidental injury

he was “unable to earn more than 60% of [his] indexed pre-disability earnings

from any employer in [his] local economy at any gainful occupation for which [he

was] reasonably qualified, taking into account [his] training, education, experience,

and pre-disability earnings.” Sedgwick maintains that Oates did not satisfy this

criterion because he was able to work full-time in a sedentary capacity.

       On appeal, Oates argues that Sedgwick failed to give due weight to evidence

that he suffers from cognitive problems as a result of his medications, has

problems with his hands, and is unable to sit for long periods of time. See infra

Part IV. Oates also argues that Sedgwick failed to give due weight to the Social

Security Administration’s (“SSA’s”) determination that Oates was entitled to




2
        Sedgwick first upheld the termination by letter dated October 11, 2011. Sedgwick upheld
the termination a second time by letter dated February 21, 2012.

                                              4
               Case: 13-12184       Date Filed: 08/13/2014       Page: 5 of 29


Social Security disability benefits. See infra Part V. We summarize a subset of the

evidence relevant to Oates’s contentions on appeal.

              1.      Dr. Sweeney (Oates’s Treating Physician)

       Oates’s treating physician, Dr. Sweeney, opined that Oates had been

permanently and totally disabled since May 2009 and was unable to work safely in

any capacity. Oates submitted letters from Dr. Sweeney, addressed “to whom it

may concern,” and records of multiple office visits between January 2010 and

November 2011. These documents indicate that Oates regularly took multiple

medications for chronic pain, anxiety, and depression. In these documents, Dr.

Sweeney opined that Oates exhibited “[c]ognitive dysfunction secondary to

medication” and was restricted to “no critical thinking due to side effects of

medications.”3

       Dr. Sweeney’s letters and records also indicate that Oates had some hand

trouble. For example, Dr. Sweeney described a “trigger finger phenomenon” in

Oates’s right thumb. Elsewhere, Dr. Sweeney stated that Oates “cannot do

repetitive hand motion due to severe spasm and pain of his hands as well.” In

another record, Dr. Sweeney reported that both of Oates’s hands had erythema, 4


3
        Elsewhere, Dr. Sweeney described Oates as “[a]lert and oriented” during one particular
office visit.
4
       Erythema is “[r]edness due to capillary dilation.” Stedman’s Medical Dictionary (27th
ed. 2000).

                                               5
               Case: 13-12184        Date Filed: 08/13/2014      Page: 6 of 29


that Oates experienced moderate pain in his right hand with motion, and that

Oates’s left hand had a moderately reduced range of motion. 5

              2.      Dr. Puentes (Oates’s Treating Chiropractor)

       In a letter dated November 18, 2011, addressed “[t]o whom it may concern,”

Oates’s treating chiropractor, Dr. Puentes, reported the following.

       This office continues to see the above-mentioned patient for his severe
       osteoarthritic, [sic] and degenerative conditions of the spine,
       neurogenic claudication of the lower extremities, chronic limitations
       and swelling of the knees, hands, and feet.

       Mr. Oates is unable to perform any type of repetitive movements, long
       periods of standing, sitting, or lifting due to the patients [sic]
       permanent disability. The patients [sic] mental capacity is also
       severely limited due to the side effects of his medication. The patient
       becomes very lethargic, forgetful, and unable to perform the most
       basic procedures without modification.

       The patient is [sic] and never will be able to perform his chosen
       profession or any other type of employment in a safe capacity for
       himself as well as for the public safety.

       [Oates’s] physical condition will continue to worsen with time. He
       has been permanently and totally disabled since 2009.

The record also contains notes from two of Oates’s visits to Dr. Puentes’s office

in May 2010.

              3.      Dr. Kutner (the SSA’s Independent Medical Evaluator)




5
       Dr. Sweeney’s records also state that Oates reported drinking beer daily, in the amount of
a few beers per episode.

                                                6
               Case: 13-12184       Date Filed: 08/13/2014      Page: 7 of 29


       As required under the terms of the Plan, Oates applied for Social Security

disability benefits. Oates was ultimately awarded monthly Social Security

disability benefits beginning in November 2009. Oates was notified of this award

by a Notice of Award letter dated March 7, 2011. Oates provided the Notice of

Award letter to Sedgwick.

       As part of his application for Social Security disability benefits, Oates was

required to visit an independent medical evaluator named Dr. Kutner. In a report

dated January 28, 2011, Dr. Kutner concluded that Oates “would not be able to do

any type of work that requires him to be on his feet for long periods, no frequent

bending, stooping or climbing.”6 Dr. Kutner offered no opinion about Oates’s

capacity to perform sedentary work or work involving light physical exertion. Dr.

Kutner indicated that Oates’s chief complaint was “pain in knees, back pains and

difficulty standing up” and that Oates reported “difficulty doing any activities of

daily living.” Dr. Kutner also observed that Oates had driven to the clinic alone

and was “alert, oriented pleasant and cooperative,” although he “appeare[ed] to be

somewhat depressed over his situation.” Dr. Kutner observed “no evidence of any




6
        The record indicates that Sedgwick requested a copy of Dr. Kutner’s report before
terminating Oates’s benefits, but Oates failed to provide a copy. Oates later mailed a copy to
Sedgwick during his first appeal. The record indicates that Sedgwick provided a copy of Dr.
Kutner’s report to every independent physician adviser who reviewed Oates’s file during Oates’s
first and second appeals. See infra Part I.B.4.

                                               7
               Case: 13-12184       Date Filed: 08/13/2014       Page: 8 of 29


arthritis in any of [Oates’s] extremities” and that the range of motion in Oates’s

hands was “within normal limits with no limitations.”

              4.      Sedgwick’s Seven Independent Physician Advisers

       At various points in the process, Sedgwick had Oates’s file reviewed by

multiple independent physician advisers. None of these physicians observed Oates

directly, but some communicated directly with Oates’s treating physicians. Each

independent physician adviser stated in his or her report that he or she was not

operating under a conflict of interest. 7

       In a report dated November 13, 2009, an orthopedic surgeon named Dr.

Mendelssohn concluded that, based on then-existing medical documentation, Oates

“can certainly function in a sedentary-to-light physical exertion level provided he

can change positions as needed and does not have to climb ladders, stand for an

extended period of time, or walk long distances.” As part of his review, Dr.

Mendelssohn spoke with Dr. Sweeney by telephone. In his report, Dr.

Mendelssohn rejected Dr. Sweeney’s opinion that Oates “cannot return to any

gainful employment because of pain and the need for medications which may

affect his cognitive ability.” Dr. Mendelssohn asserted that “there is no

documentation provided that [Oates’s] cognitive ability has been hampered.”


7
       A Sedgwick employee also stated, in a sworn declaration submitted by Walgreens below,
that “Walgreens has no role in the selection or retention of these reviewing medical personnel.”

                                               8
              Case: 13-12184     Date Filed: 08/13/2014   Page: 9 of 29


      In a report dated November 13, 2009, a pain medicine specialist named Dr.

J. Lewis concluded that, from a pain medicine perspective, the then-existing

medical documentation did not support a conclusion that Oates was disabled from

performing sedentary work.

      In a report dated September 20, 2011, a specialist in physical medicine and

rehabilitation named Dr. M. Lewis concluded that “[s]edentary type of work may

be applicable in this situation.” Dr. M. Lewis stated that Oates’s primary diagnosis

was severe knee arthritis, which limited “his ability to be able to stand or walk for

prolonged periods of time.” Dr. M. Lewis found no evidence, however, that Oates

was “disabled from any occupation for which he might be qualified by education,

training, or experience during the time period in question.” He specifically

documented, inter alia, his review of Dr. Kutner’s assessment for the SSA, as well

as several failed attempts to reach Dr. Kutner. Dr. M. Lewis also documented his

review of Dr. Sweeney’s statements regarding Oates’s purported cognitive

dysfunction and hand problems, although he did not directly address these

statements in his analysis.

      In a report dated September 20, 2011, a specialist in occupational medicine

named Dr. Ayyar concluded that Oates

      would not be able to perform prolonged standing and walking and
      heavy lifting, kneeling, stooping, squatting, etc. He can, however, do
      sedentary work. There is no compelling evidence that Mr. Oates is
      disabled from any occupation for which he might be qualified by
                                          9
             Case: 13-12184     Date Filed: 08/13/2014    Page: 10 of 29


      education, training, or experience . . . [from May 22, 2011,] through
      present.

Dr. Ayyar recounted a conversation with Dr. Sweeney in which Dr. Sweeney

stated that Oates’s principal diagnosis supporting disability was “bilateral knee

osteoarthritis” but that, in Dr. Sweeney’s mind, Oates was “disabled from any

number of conditions.” Dr. Ayyar also specifically documented, inter alia, a

review of Dr. Kutner’s report for the SSA, as well as several failed attempts to

reach Dr. Kutner. Dr. Ayyar specifically documented a review of Dr. Sweeney’s

statements regarding Oates’s purported hand problems and cognitive dysfunction,

although Dr. Ayyar did not address these statements in his analysis.

      In a report dated February 7, 2012, a psychiatrist named Dr. Rigaud

concluded that, from a strictly psychiatric perspective, Oates “was not disabled

from the ability to perform any occupation for which he may be qualified by

education, training or experience as of May 22, 2011[,] to return to work date.”

Dr. Rigaud stated that there was “no evidence from the available information to

support a disabling psychiatric diagnoses [sic]” and that “[r]eported cognitive

dysfunctions/limitations and inability to engage in critical thinking are not

validated by findings of a mini mental status examination or direct clinical

observations.” Dr. Rigaud documented a phone conversation with Dr. Puentes,

who



                                          10
               Case: 13-12184        Date Filed: 08/13/2014       Page: 11 of 29


       reported observing [that Oates] was lethargic and in [Oates’s] own
       words “loopy” at times. [Dr. Puentes] believes this is due to pain
       medications and not to alcohol or other illicit substances.[8] . . . Dr.
       Puentes stated that [Oates] has no problem driving to the office—that
       is a short distance from his home. He noted that [Oates] has difficulty
       with his gait and his speech is a “little slurred.” Dr. Puentes has not
       observed evidence of problems with concentration such as loss of
       train of thoughts. Dr. Puentes has not had to write down instructions
       for [Oates]; who seems to retain instructions and directions he
       received from Dr Puentes. [Dr. Puentes] emphasized primarily
       [Oates’s] physical limitations.

Dr. Rigaud did not specifically address Dr. Kutner’s report for the SSA.

       In a report dated February 7, 2012, a specialist in physical medicine and

rehabilitation and pain medicine named Dr. Kaplan concluded, after a thorough

review of the records before him, that they “[did] not validate that this claimant is

disabled from performing any occupation for which he may be qualified from May

22, 2011[,] to return to work date.” 9 According to Dr. Kaplan, Oates had a “partial

impairment, but is not disabled from all work.” Dr. Kaplan opined that “the

records contain very limited objective functional assessment of [Oates’s] physical


8
        Dr. Rigaud had before her a Vocational Evaluation Report created by one Ms. Pennachio,
see infra Part I.B.6, which indicates that Oates reported drinking eight to ten beers per day. Dr.
Rigaud specifically referred to this statement in her report.
9
        At the time of his review, Dr. Kaplan had before him the Vocational Evaluation Report
created by Ms. Pennachio, see infra Part I.B.6. Dr. Kaplan discounted the Vocational Evaluation
Report to the extent that Ms. Pennachio relied on subjective reports of Oates’s abilities that were
not based on physical examination or functional assessment data. For the first time on appeal,
Oates argues that it was improper to discount Ms. Pennachio’s findings on the basis that she
relied on Oates’s self-reports. See Oliver v. Coca Cola Co., 497 F.3d 1181, 1196 (11th Cir.),
vacated in part on other grounds, 506 F.3d 1316 (11th Cir. 2007). We decline to consider this
argument raised for the first time on appeal.

                                                11
              Case: 13-12184       Date Filed: 08/13/2014      Page: 12 of 29


ability.” Dr. Kaplan also noted that “cognitive deficits from medications are

potentially treatable” and that “the records are unclear regarding the specific cause

of [Oates’s] perceived cognitive symptoms.” He recounted conversations with Dr.

Sweeney and Dr. Puentes in which both reported that Oates often “appears

drowsy” 10 and in which Dr. Sweeney reported that Oates had severe intractable

pain in his, inter alia, hands. Dr. Kaplan referred to Oates’s Social Security

disability benefits award but did not specifically address it in his analysis.

       In a report dated February 7, 2012, a specialist in physical medicine and

rehabilitation and pain medicine named Dr. Marion concluded that Oates was “able

to work full time at the sedentary job level.” Dr. Marion recounted a conversation

with Dr. Sweeney in which the latter acknowledged that “he had not specifically

performed a cognitive evaluation or assessment and had not restricted [Oates] from

driving a motor vehicle.” In that conversation, Dr. Sweeney also indicated that

Oates had complaints of severe pain in his, inter alia, hands. Dr. Marion

specifically documented his review of Dr. Kutner’s report for the SSA.

              5.     Mr. Percic’s (Sedgwick’s) Transferable Skills Analysis

       At Sedgwick’s request, a Mr. Percic completed an analysis of Oates’s

“transferable skills.” Mr. Percic’s report is dated May 20, 2011. According to his

report, Mr. Percic reviewed, inter alia, the reports of Dr. J. Lewis and Dr.
10
       According to Dr. Kaplan, it appeared from the medical records that Oates had “the
diagnosis of sleep apnea as well as chronic pain.”

                                              12
             Case: 13-12184     Date Filed: 08/13/2014    Page: 13 of 29


Mendelssohn, as well as a letter from Dr. Sweeney dated January 25, 2011, and a

note from Oates’s visit to Dr. Sweeney’s office on January 20, 2011. Mr. Percic

also reviewed a Training, Education, and Experience statement submitted by

Oates, which indicated, for example, that Oates had worked for over twenty years

as a pharmacist and had a Bachelor of Science degree in Pharmacy.

      Based on Dr. Mendelssohn’s report, Mr. Percic discounted Dr. Sweeney’s

assertion that Oates was restricted to “no critical thinking due to side effects of

medications.” Mr. Percic also asserted that there was “no additional medical to

support the statement of Dr. Sweeney that Mr. Oates is unable to perform repetitive

hand motions due to severe spasm and pain of his hands.” Mr. Percic consequently

assumed, for the sake of his analysis, that Oates was able to work in a “sedentary

or light physical exertion level occupation in which he is able to change positions

as needed and not require [sic] long distance walking, standing for extended

periods of time, climbing stairs or ladders, or bending, stooping, and kneeling.”

      Mr. Percic also concluded—apparently based on Oates’s reports of his own

training, education, and experience—that Oates had demonstrated transferable

skills including, but not limited to, “knowledge of drugs and drug interactions,

basic medical knowledge, customer service skills, good communication skills,

supervisory skills, management skills, good arithmetic skills, organizational

ability, computer skills, typing skills, and good judgment and decision-making


                                          13
             Case: 13-12184     Date Filed: 08/13/2014    Page: 14 of 29


skills.” Using the SkillTRAN online computer database, Mr. Percic identified

several vocational alternatives for Oates in his geographic area with a mean annual

wage of $113,844.80—substantially more than 60% ($67,392.00) of Oates’s pre-

disability annual earnings, which was the threshold established by the applicable

Plan eligibility standard. See supra.

             6.     Ms. Pennachio’s (Oates’s) Transferable Skills Analysis

      As part of his second appeal, Oates submitted his own Vocational

Evaluation report dated December 12, 2011, which was prepared by one Ms.

Pennachio. The report contains a lengthy review of Oates’s medical records.

According to the report, Ms. Pennachio met with Oates on November 18, 2011,

and recorded his own description of his “perceptions of his physical capabilities,”

including that he could sit for only “1 hour, but . . . must sit forward for comfort.”

The report contains a transferable skills analysis that was conducted using OASYS

software, “taking into account at least sedentary restrictions.” The analysis

produced zero vocational alternatives, let alone any in which Oates could earn at

least 60% of his pre-disability earnings. It is not entirely clear why Ms.

Pennachio’s analysis yielded zero vocational alternatives while Mr. Percic’s

yielded several, but it appears that Ms. Pennachio believed Oates had fewer

transferable skills. In her report, Ms. Pennachio specifically challenged each of

Mr. Percic’s proposed vocational alternatives on the ground that Oates was either


                                          14
             Case: 13-12184     Date Filed: 08/13/2014    Page: 15 of 29


underqualified, disabled, or both. Ms. Pennachio concluded that Oates “does not

have the ability to perform any occupation for which he may be qualified by

education, training or experience within his physical capabilities.”

      C.     The Instant Lawsuit

      Oates filed suit against Walgreens in federal district court, attaching the SPD

as an exhibit to his complaint. In a motion to, inter alia, limit discovery to the

existing administrative record, Walgreens made three relevant assertions. First,

Walgreens expressed its belief that there was no dispute regarding which

documents governed the Plan. Second, Walgreens—arguing from the SPD—

asserted that the Plan vested Sedgwick with sufficient discretion such that

Sedgwick’s benefits determinations should be reviewed under an “arbitrary and

capricious” standard. See, e.g., Blankenship v. Metro. Life Ins. Co., 644 F.3d

1350, 1355 (11th Cir. 2011) (per curiam). Third, Walgreens asserted that there

was no structural conflict of interest because the entity paying the claims,

Walgreens, was not the same as the entity evaluating the claims, Sedgwick.

      Oates apparently did not submit a written response to Walgreens’s motion.

At a subsequent hearing, however, Oates asserted that the SPD was merely a

summary and that he “[did] not concede that that is the Plan.” Oates did not

challenge Walgreens’s assertion that the Plan vested Sedgwick with discretion.

Oates argued that there was a conflict of interest, however, because Walgreens had


                                          15
               Case: 13-12184       Date Filed: 08/13/2014       Page: 16 of 29


authority to be involved in benefits determinations and may have, at least,

participated in the decision to terminate Oates’s benefits. Oates sought to

supplement the administrative record with discovery regarding both whether there

was a conflict of interest and also how the claims benefits determinations were

actually made. 11

       The district court held that there was no conflict of interest and that the

administrator’s determination would be reviewed under an “arbitrary and

capricious” standard. The court permitted Oates to serve five interrogatories and

five requests for admission, limited in scope to the following four issues:

       1) the exact nature of the information considered by [Sedgwick] in
       making the decision; 2) whether Sedgwick was competent to evaluate
       the information in the administrative record; 3) how Sedgwick
       reached its decision; and 4) whether, given the nature of the
       information in the record, it was incumbent upon Sedgwick to seek
       outside assistance in addressing the claim.

Oates apparently never served any written discovery.

       Pursuant to the district court’s order, the parties submitted memoranda of

law in support of their respective positions. The district court reviewed the

termination of Oates’s long-term disability benefits pursuant to this Circuit’s six-

step test, which is as follows.


11
       Oates’s attorney stated that he sought both discovery “because of the conflict” and also
“Cerrito type discovery with regard to the actual claims decisions that were made.” The word
“Cerrito” is a reference to Cerrito v. Liberty Life Assurance Co. of Boston, 209 F.R.D. 663
(M.D. Fla. 2002).

                                               16
             Case: 13-12184      Date Filed: 08/13/2014    Page: 17 of 29


      (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.

      (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, 644 F.3d at 1355.

      The district court first concluded that Sedgwick’s decision was not “wrong.”

The court alternatively concluded that, even if Sedgwick made the “wrong”

decision, it was vested with sufficient discretion to invoke the “arbitrary and

capricious” standard of review, and its decision was supported by “reasonable”

grounds. Finally, the district court reiterated its conclusion that Sedgwick did not

operate under a conflict of interest and opined that, even if it did, that factor was

not so significant as to render the decision “arbitrary and capricious.” The court


                                           17
               Case: 13-12184         Date Filed: 08/13/2014        Page: 18 of 29


affirmed the termination of Oates’s long-term disability benefits and ordered the

entry of judgment in Walgreens’s favor. This appeal followed.

II.    STANDARD OF REVIEW

       For the first time on appeal, Oates challenges Walgreens’s assertion that the

Plan vested Sedgwick with sufficient discretion to invoke the “arbitrary and

capricious” standard of review. Oates makes this argument despite having asserted

multiple times below that the Plan gave both Walgreens and Sedgwick discretion

to make claims determinations. 12

       Oates also argues, for the first time on appeal, that it was improper for the

district court to draw conclusions about Sedgwick’s discretion under the Plan from

the SPD because the SPD had not been authenticated or entered into evidence.

Oates makes this argument despite having invited consideration of the SPD by

attaching a copy of it as an exhibit to the complaint.

       In addition, Oates argues that the district court’s discovery order 13 prevented

him from pursuing discovery that might have revealed “defects” in the SPD.14

Oates did not argue below for additional discovery on that ground.


12
        Oates made these assertions as part of his attempt to argue that Walgreens had
participated in the decision to terminate Oates’s benefits and that there was, therefore, a conflict
of interest.
13
        Walgreens observes that Oates did not mention the discovery order in his notice of appeal
and argues that Oates consequently may not challenge it on appeal. We disagree. “[T]he appeal
from a final judgment draws in question all prior non-final orders and rulings which produced
the judgment.” Barfield v. Brierton, 883 F.2d 923, 930 (11th Cir. 1989). Because the district
                                                 18
                Case: 13-12184         Date Filed: 08/13/2014         Page: 19 of 29


        We decline to consider these arguments raised for the first time on appeal.

See Ramirez v. Sec’y, U.S. Dep’t of Transp., 686 F.3d 1239, 1249–50 (11th Cir.

2012). We have reviewed Oates’s arguments and are not persuaded that our

refusal to consider them will result in a “miscarriage of justice.” Id. at 1250. We

consequently limit our review to the question of whether Sedgwick’s determination

was “arbitrary and capricious.” Blankenship, 644 F.3d at 1355. Oates bore the

burden to establish that it was. See id.

III.    WHETHER SEDGWICK OPERATED UNDER A CONFLICT OF
        INTEREST

        If a plan administrator operates under a conflict of interest, that conflict is a

factor to consider when determining whether the administrator’s decision was

arbitrary and capricious. Id. On appeal, Oates challenges the district court’s

conclusion that Sedgwick did not operate under a conflict of interest. Oates’s

primary argument is that Sedgwick has a financial incentive to deny claims. Oates


court’s discovery order was a step toward the final judgment, rather than an order “separate from
that progression,” we have jurisdiction to review the discovery order on appeal. See 16A
Charles Alan Wright et al., Federal Practice and Procedure § 3949.4, at 100–105 (4th ed. 2008)
(“A notice of appeal that names the final judgment suffices to support review of all earlier orders
that merge in the final judgment . . . , at least if the earlier orders are part of the progression that
led up to the judgment rather than being separate from that progression.”) (footnote omitted).
14
        Oates relies heavily on Wilson v. Walgreen Income Protection Plan for Pharmacists and
Registered Nurses, 942 F. Supp. 2d 1213, 1248–50 (M.D. Fla. 2013). The Wilson court
conducted a bench trial on the issue of “whether the grant of discretion to Sedgwick under [the]
Summary Plan Description . . . was effective to entitle Defendants to a review of Sedgwick’s
resolution of Plaintiff’s [long-term disability] claim under a deferential standard of review.” Id.
at 1217. Obviously the evidence and testimony introduced in the Wilson bench trial was not
before the district court in this case.

                                                  19
               Case: 13-12184        Date Filed: 08/13/2014       Page: 20 of 29


suggests that some unknown financial arrangement between Walgreens and

Sedgwick may give Sedgwick a direct financial incentive to deny claims. 15 Oates

also argues that Walgreens, as the payor, might prefer a claim administrator that

denies more claims, resulting in indirect pressure on Sedgwick to deny claims so

that it can keep its business with Walgreens.

       Again, Oates failed to make these arguments below. Oates argued that the

determination of his claim was tainted by a conflict of interest, but his argument

was that the payor, Walgreens, had somehow participated in or influenced the

decision. Oates did not argue, as he does now, that Sedgwick operated under a

conflict of interest because it had a financial incentive to deny claims. Oates had

the opportunity to make these arguments at the hearing on Walgreens’s motion to,

inter alia, limit discovery. In its motion, Walgreens had already argued that there

was no conflict of interest, and it was clear that that question would be discussed at

the hearing. Oates did not respond to Walgreens’s motion in writing and did not


15
        Oates relies only on Wilson, 942 F. Supp. 2d at 1227, to support this proposition. As
previously stated, supra note 14, the evidence and testimony before the Wilson court was not
before the district court in this case. As Walgreens points out, furthermore, the Wilson court did
not hold that Sedgwick operates under a conflict of interest when it acts as the Claim
Administrator for this Plan. In addition, the Wilson court’s discussion of the financial
arrangement between Walgreens and Sedgwick does not uniformly support the proposition that
Walgreens gives Sedgwick a direct financial incentive to deny claims. For example, the court in
Wilson recounted testimony that “Sedgwick is paid monthly for every open claim. Further, if [a
long-term disability] claim is granted, then the claim remains ‘open’ for purposes of calculating
the fee collected by Sedgwick.” Id. Therefore, even if we were to consider Wilson for the
purpose of determining whether Walgreens gives Sedgwick a direct financial incentive to deny
claims, it is not at all clear that Wilson supports Oates’s argument.

                                                20
              Case: 13-12184      Date Filed: 08/13/2014     Page: 21 of 29


make these arguments at the hearing. Nor did Oates make these arguments at any

other point before the district court. We decline to entertain these arguments made

for the first time on appeal.

       To the extent that Oates reasserts a version of the argument that he did make

below—i.e., that Walgreens had the authority to reverse Sedgwick’s decisions and

may have participated in the final decision to uphold the termination of Oates’s

benefits—that argument does not persuade us that there was reversible error.

According to the SPD, Sedgwick’s decisions are subject to further review by

Walgreens only if either Sedgwick or Walgreens “determines that the appeal

presents material issues that are outside the expertise or purview of [Sedgwick]

(such as hours worked, employment status or new or unique procedural or Plan

interpretation issues).” Even if the language regarding “new or unique . . . Plan

interpretation issues” indicates that Walgreens has the power to reverse

Sedgwick’s Plan interpretations, it does not indicate that Walgreens has the power

to reverse Sedgwick’s factual determinations. More specifically, it does not

indicate that Walgreens had the power to reverse Sedgwick’s factual

determinations with respect to Oates’s condition and transferable skills. It is those

determinations that Oates challenges on appeal. See infra Part IV.

       Finally, to the extent, if any, that Walgreens’s limited power of review

created a conflict of interest, the district court did not err in its alternative holding


                                            21
              Case: 13-12184       Date Filed: 08/13/2014     Page: 22 of 29


that the conflict was not significant enough to render Sedgwick’s decision

“arbitrary and capricious” in light of the other factors. A conflict of interest should

be weighed more heavily “where circumstances suggest a higher likelihood that it

affected the benefits decision.” Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 117,

128 S. Ct. 2343, 2351 (2008). The converse is also true. There is no indication

that the payor, Walgreens, directly influenced Sedgwick’s determination. 16 It is

possible that the mere prospect of reversal influenced Sedgwick’s decision, but the

district court was not required to attach great weight to this possibility in the

circumstances at bar. We note, in particular, the sworn declaration of a Sedgwick

employee that “[u]nder the Plan, Sedgwick performs claims evaluations and makes

determinations on specific claims . . . . Walgreens only provides information

regarding the general eligibility for Plan benefits and regarding the duties and

compensation of Walgreens employees participating in the Plan.”

IV.    WHETHER SEDGWICK IGNORED RELEVANT AND RELIABLE
       EVIDENCE THAT OATES’S MEDICATION CAUSED HIM
       COGNITIVE PROBLEMS, THAT OATES HAD PROBLEMS WITH
       HIS HANDS, AND THAT OATES WAS UNABLE TO SIT FOR
       LONG PERIODS OF TIME

       Where there is no conflict of interest, an administrator’s benefits decision is

not “arbitrary and capricious” if it has a “reasonable basis” in the material available

to the administrator at the time of the decision. See Blankenship, 644 F.3d at 1354.
16
      We note that Oates was permitted to serve written discovery on issues including “how
Sedgwick reached its decision[s],” but Oates apparently declined to do so.

                                             22
              Case: 13-12184     Date Filed: 08/13/2014     Page: 23 of 29


      Oates correctly observes that only Mr. Percic’s and Ms. Pennachio’s

transferable skills analyses applied the specific standard at issue in this case, i.e.,

whether as a “direct result” of Oates’s sickness or accidental injury he was “unable

to earn more than 60% of [his] indexed pre-disability earnings from any employer

in [his] local economy at any gainful occupation for which [he was] reasonably

qualified, taking into account [his] training, education, experience, and pre-

disability earnings.” Oates argues that it was arbitrary and capricious for Sedgwick

to rely on Mr. Percic’s May 2011 analysis because, inter alia, it did not incorporate

more recent medical evidence.

      We disagree. Sedgwick was not required to conclude that medical opinions

obtained subsequent to Mr. Percic’s analysis undermined the assumption on which

it was based—i.e., the assumption that Oates was able to work in a “sedentary or

light physical exertion level occupation in which he is able to change positions as

needed and not require [sic] long distance walking, standing for extended periods

of time, climbing stairs or ladders, or bending, stooping, and kneeling.” We are

likewise not persuaded that it was arbitrary and capricious for Sedgwick to favor

Mr. Percic’s transferable skills analysis over Ms. Pennachio’s more recent analysis.

      Oates argues that even if Mr. Percic’s analysis was not out of date, it was

nevertheless based on unreliable medical evidence. Specifically, Oates argues that

Sedgwick’s independent physician advisers—including Dr. Mendelssohn, upon


                                           23
               Case: 13-12184       Date Filed: 08/13/2014       Page: 24 of 29


whom Mr. Percic relied—gave insufficient weight to evidence of Oates’s cognitive

dysfunction, hand problems, and difficulty sitting for extended periods of time.

Oates argues that it was, therefore, arbitrary and capricious for Sedgwick to rely on

a transferable skills analysis that relied on Dr. Mendelssohn’s medical opinion.

       Again, we disagree. A plan administrator “may not arbitrarily refuse to

credit a claimant’s reliable evidence,” Black & Decker Disability Plan v. Nord, 538

U.S. 822, 834, 123 S. Ct. 1965, 1972 (2003), or “simply ignore[] relevant medical

evidence in order to arrive at the conclusion it desire[s],” Oliver v. Coca Cola Co.,

497 F.3d 1181, 1199 (11th Cir.), vacated in part on other grounds, 506 F.3d 1316

(11th Cir. 2007). A plan administrator is not categorically required, however, to

accept the opinions of the claimant’s treating physicians over those of independent

medical professionals who have reviewed the claimant’s file but have not directly

observed the claimant. See Blankenship, 644 F.3d at 1356. 17

       Mr. Percic crucially relied on Dr. Mendelssohn’s opinion. By the time

Sedgwick upheld the termination of Oates’s benefits for the second time, Sedgwick

had before it the reports of six other independent physician advisers who had

17
        In Black & Decker, the Supreme Court stated that “courts have no warrant to require
administrators automatically to accord special weight to the opinions of a claimant’s physician.”
538 U.S. at 834, 123 S. Ct. at 1972. Black & Decker involved a conflict between the opinions of
the claimant’s treating physicians and an independent physician who had examined the claimant.
See id. at 826–27, 123 S. Ct. at 1968. In Blankenship, however, we invoked Black & Decker in
a case involving a conflict between the opinions of the claimant’s treating physicians and
independent physicians who had merely reviewed the claimant’s file. See 644 F.3d at 1353,
1356.

                                               24
             Case: 13-12184     Date Filed: 08/13/2014   Page: 25 of 29


reviewed Oates’s file. These reports permitted Sedgwick to conclude that Dr.

Mendelssohn’s opinion was correct, at least in its crucial aspects. Specifically,

three of these other physicians—specialists in pain medicine, occupational

medicine, and physical medicine and rehabilitation—agreed that Oates was

capable of performing sedentary work, and none of them disagreed. Two of these

physicians—including a psychiatrist, Dr. Rigaud—agreed that evidence of Oates’s

cognitive problems was unpersuasive; two—again including Dr. Rigaud—

suggested possible alternative explanations for Oates’s purported cognitive

dysfunction, such as alcohol consumption or sleep apnea; and one stated that any

cognitive dysfunction resulting from Oates’s medications was potentially treatable.

In addition, four of these physicians specifically documented their consideration of

Dr. Sweeney’s statements that Oates suffered from hand problems (although

apparently none of them addressed these statements in their written analyses).

      In sum, Sedgwick had conflicting evidence before it, and evidence tending

to establish that Oates was able to perform sedentary work was not obviously

unreliable. We conclude that Sedgwick was permitted to deny Oates’s benefits on

the basis of this evidence. See Oliver, 497 F.3d at 1199 (stating that a plan

administrator may deny a claim “on the basis of conflicting, reliable evidence”).

V.    WHETHER SEDGWICK FAILED TO GIVE PROPER
      CONSIDERATION TO THE SOCIAL SECURITY
      ADMINISTRATION’S DISABILITY DETERMINATION


                                         25
               Case: 13-12184       Date Filed: 08/13/2014       Page: 26 of 29


       Oates additionally argues that Sedgwick’s determination was “arbitrary and

capricious” because it failed to give sufficient weight to the SSA’s determination

that Oates was entitled to disability benefits. “‘[A] district court may consider the

Social Security Administration’s determination of disability in reviewing a plan

administrator’s determination of benefits,’” but “the approval of disability benefits

by the Social Security Administration is not considered dispositive on the issue.”

Whatley v. CNA Ins. Cos., 189 F.3d 1310, 1314 n.8 (11th Cir. 1999) (per curiam)

(quoting Kirwan v. Marriott Corp., 10 F.3d 784, 790 n.32 (11th Cir.1994)).

       We reject Oates’s argument that the mere failure to consider the award of

benefits rendered Sedgwick’s determination “arbitrary and capricious.” This is not

a case in which Sedgwick “ignore[d] the evidence generated by the SSA process.”

Melech v. Life Ins. Co. of N. Am., 739 F.3d 663, 675 (11th Cir. 2014). In a letter

memorializing the initial termination of Oates’s benefits, Sedgwick asserted that it

had previously requested a copy of the SSA’s Independent Medical Examination

and that Oates had failed to provide a copy. 18 Once Oates provided a copy of Dr.

Kutner’s report as part of his first appeal, Sedgwick provided it to each of the

independent physician advisers who reviewed Oates’s file during both his first and

his second appeals. Multiple advisers specifically referred to Dr. Kutner’s


18
        Oates does not argue that Sedgwick had either the power or a duty to request a copy of
this report directly from the Social Security Administration. Cf. Melech, 739 F.3d at 671.

                                               26
               Case: 13-12184        Date Filed: 08/13/2014        Page: 27 of 29


findings, which were not obviously inconsistent with the conclusion that Oates was

capable of working in a sedentary capacity. 19 Accordingly, the instant case is very

different from Melech, in which the plan administrator deemed irrelevant the SSA

award and the evidence on which it was based. Melech, 739 F.3d at 671–72. The

instant case does not involve the “procedural unfairness” which we found in

Melech. See id. at 676.

       We cannot conclude that Sedgwick, having considered Dr. Kutner’s report,

was also required to specifically consider either the Social Security award itself or

the contents of the Notice of Award letter. The Notice of Award letter contained

no information whatsoever about Oates’s condition or the process by which the

SSA had reached its decision. Sedgwick’s determination that Oates was not

disabled is, of course, in some discord with the SSA’s determination that he was,

which was made under a perhaps more stringent standard.20 An administrator


19
       Dr. Kutner’s bottom line was that Oates “would not be able to do any type of work that
requires him to be on his feet for long periods, no frequent bending, stooping or climbing.”
20
        According to Oates, the relevant definition of “disability” in the Social Security Act is the
inability “to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C.
§ 1382c(a)(3)(A). For the purpose of that provision,

       an individual shall be determined to be under a disability only if his physical or
       mental impairment or impairments are of such severity that he is not only unable
       to do his previous work but cannot, considering his age, education, and work
       experience, engage in any other kind of substantial gainful work which exists in
       the national economy, regardless of whether such work exists in the immediate
       area in which he lives, or whether a specific job vacancy exists for him, or
                                                 27
               Case: 13-12184       Date Filed: 08/13/2014       Page: 28 of 29


departing from the SSA may be well-advised, whenever possible, “to draw a

principled distinction between its own standards for granting disability benefits

under [a plan] and the SSA’s standards for awarding SSDI.” Id. at 676. But

having considered what is apparently the only substantive evidence generated by

the SSA process,21 and having found it not inconsistent with the opinions of its

independent physician advisers, Sedgwick did not act arbitrarily and capriciously

by failing to explain its departure from the SSA’s opinion. See Paramore v. Delta

Air Lines, Inc., 129 F.3d 1446, 1452 n.5 (11th Cir. 1997) (“[A]n award of benefits

by the Social Security Administration is not dispositive of the issue before us,

particularly given the measure of deference that we afford a plan administrator’s

decision.”).

       We note that it may have been difficult for Sedgwick to explain its decision

in light of the apparently limited evidence generated by the SSA process. We also

note that the SSA, unlike ERISA claim administrators, is generally required to give

more weight to the opinions of a claimant’s treating physicians. See Black &


       whether he would be hired if he applied for work. For purposes of the preceding
       sentence (with respect to any individual), “work which exists in the national
       economy” means work which exists in significant numbers either in the region
       where such individual lives or in several regions of the country.

Id. § 1382c(a)(3)(B). Walgreens does not challenge Oates’s assertion that the SSA’s eligibility
standard is more stringent than the Plan eligibility standard that is relevant on appeal.
21
       Oates does not assert either that the SSA process generated additional substantive
evidence or that Sedgwick was required to request additional information from the SSA.

                                               28
               Case: 13-12184       Date Filed: 08/13/2014       Page: 29 of 29


Decker, 538 U.S. at 829, 123 S. Ct. at 1969. Finally, we note that in both Melech

and Glenn v. MetLife, on which Oates primarily relies, the entity paying the claims

was the same as the entity evaluating the claims, which created a structural conflict

of interest. See Melech, 739 F.3d at 668 (“[E]very dollar the claimant gets from

the SSA is one less dollar [the defendant] has to pay.”); Glenn v. MetLife, 461

F.3d 660, 666 (6th Cir. 2006) (“[Defendant] is authorized both to decide whether

an employee is eligible for benefits and to pay those benefits.”), aff’d, 554 U.S.

105, 112, 128 S. Ct. 2343, 2348 (2008). As discussed, supra Part III, that was not

the situation in this case. 22

       AFFIRMED.




22
       Other arguments not addressed in this opinion are rejected without need for further
discussion.

                                               29
