               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 20a0047n.06

                                       Case No. 19-3466

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                 FILED
                                                                              Jan 23, 2020
JESSE BRUTON,                                        )                    DEBORAH S. HUNT, Clerk
                                                     )
       Plaintiff-Appellant,
                                                     )
                                                     )        ON APPEAL FROM THE
v.
                                                     )        UNITED STATES DISTRICT
                                                     )        COURT FOR THE SOUTHERN
AMERICAN UNITED LIFE INSURANCE
                                                     )        DISTRICT OF OHIO
CORPORATION,
                                                     )
       Defendant-Appellee.                           )
                                                     )                             OPINION



BEFORE:       COLE, Chief Judge; SILER and MURPHY, Circuit Judges.

       COLE, Chief Judge. Jesse Bruton held a managerial job in the field of information

technology when he was afflicted by severe back and leg pain that prevented him from sitting for

any extended period of time. Unable to work, he sought benefits from his company’s employee

disability benefits plan. The plan administrator determined that Bruton was not entitled to long-

term disability benefits. Bruton, contending that the plan administrator wrongfully denied his

application for benefits, sought relief under the Employee Retirement Income Security Act of 1974

(ERISA). The district court affirmed the determination of the plan administrator. Bruton now

appeals. We review the appeal de novo, and for the reasons that follow, we reverse the district

court and enter judgment granting Bruton long-term disability benefits.
Case No. 19-3466, Bruton v. Am. United Life Ins. Co.


                                       I. BACKGROUND

       Jesse Bruton was employed starting in July 2006 as a “Technology Development Manager”

with Resource Ventures, LTD, a management firm in Columbus, Ohio. Resource Ventures

contracted with defendant American United Life Insurance Corporation to provide short-term and

long-term disability benefits to its employees. American United, in turn, contracted with a claims

administrator, Disability RMS (referred to in briefing and hereafter as DRMS), to manage

disability claims. DRMS reviews claims and determines whether an applicant qualifies for

benefits under the Resource Ventures employee disability benefits plan (the Plan). DRMS

determined that Bruton qualified for short-term disability, but ultimately denied his long-term

disability application. He appealed that determination, and DRMS denied the appeal. He then

filed this ERISA suit. The district court also determined that he was not eligible for Long Term

Disability benefits under the Plan. He now appeals to this court.

       A.      Plan Terminology

       To qualify either for short-term or long-term disability, Bruton must establish that he is

“totally disabled” under the terms of the Plan. The Plan provides that a person is “totally disabled”

if:

               [B]ecause of Injury or Sickness:
                       1) a Person cannot perform the Material and Substantial Duties of his
                       Regular Occupation; and
                       2) a Person is not working in any occupation; and
                       3) after the Monthly Benefit has been paid for the number of years stated in
                       the Subscription Agreement, a Person cannot perform the duties of any
                       Gainful Occupation for which he is reasonably fitted by training, education,
                       or experience; and
                       4) a Person is under the Regular Attendance of a Physician for that Injury
                       or Sickness.



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Case No. 19-3466, Bruton v. Am. United Life Ins. Co.


(R. 18 at PageID 81). Relevant here are the first and fourth factors, which the Plan further defines.

The term “Regular Occupation” under the Plan “means a person’s occupation as it is recognized

in the general workplace and according to industry standards. A person’s occupation does not

mean the specific job tasks he does for a Participating Unit or at a specific location.” (Id. at PageID

80). The Plan defines “Regular Attendance” to mean that an applicant for benefits:

               1) personally visits a Physician as medically required according to standard
                  medical practice, to effectively manage and treat his Disability;
               2) is receiving the most appropriate treatment and care that will maximize his
                  medical improvement and aid in his return to work; and
               3) is receiving care by a Physician whose specialty or clinical experience is
                  appropriate for the Disability.

(Id.). Finally, the Plan provides that an applicant is no longer entitled to benefits when either the

person “ceases to be Disabled” or the person is “no longer under the Regular Attendance and care

of a Physician.” (Id. at PageID 103).

       B.      Bruton’s Occupation

       Because the question whether Bruton is “totally disabled” depends on whether Bruton can

“perform the Material and Substantial Duties of his Regular Occupation” (R. 18 at PageID 81),

the details of Bruton’s occupation are relevant to our analysis. According to the job description

posted by Resource Ventures, the “Technology Development Manager” role has both technical

elements and client-facing elements, including business development. (R. 18-1, PageID 488). The

position requires not only “managing the technical project team,” but also “interact[ing] with the

variety of resources within the organization including application architects, designers,

information architects, and client services managers to help insure the successful delivery of the




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Case No. 19-3466, Bruton v. Am. United Life Ins. Co.


entire project.” (Id.). The position also requires travel: up to 20% of working hours might include

visits to client sites, as well as conferences, seminars, and training.

       C.      Bruton’s Medical History Prior to Initial Application for Disability

       Because we review Bruton’s application de novo, we surveyed the entirety of his medical

history in his claims file. The pertinent history begins when Bruton started to experience back

pain in 2007–2008. It was not precipitated by any acute injury. It nevertheless evidently caused

Bruton a great deal of suffering: by 2016, he reported “dull and aching” pain that began “below

his hips and above his tailbone” and radiated through his right buttock and shot down his leg to

his knee. (R. 18-2 at PageID 1346). He attempted to address his pain with medication: first

through over-the-counter medications like Tylenol and ibuprofen, then eventually through

prescribed drugs like gabapentin and oxycontin. He also attempted other treatments such as

physical therapy and transcutaneous electrical nerve stimulation. Neither worked. He developed

sciatica and had to stop working in 2014, but evidently was able to return to work after treating

the pain with radiofrequency ablation and spinal epidurals.

       In January 2015, Bruton received a lumbar MRI, which revealed “mild lower lumbar

spondylosis” and “mild acquired central canal stenosis” which had “minimally increased” from an

MRI he had had in 2010. (R. 18-1 at PageID 427). It also showed “moderately prominent facet

and to a lesser degree ligamentous hypertrophy” with a “broad-based posterior disk protrusion”

that was also “not significantly changed” from 2010. (Id.)

       Bruton’s last day of work was February 6, 2015. On February 12, his primary care

physician, Dr. Jennifer Briones, provided a statement to DRMS that Bruton suffered from lower

back pain with radiation and that his MRI revealed spondylosis and spinal stenosis. She noted that

he had attempted treating the back pain through medications, transcutaneous electrical nerve



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Case No. 19-3466, Bruton v. Am. United Life Ins. Co.


stimulation, epidural injections, and a facet block injection. Dr. Briones assessed that Bruton had

the capacity to perform sedentary activity but could not do work where he would have to bend,

twist, be on his feet all day, or sit for more than one hour. She released him to return to work on

May 8, 2015.

       D.      Application for Short-Term Disability Benefits

       On February 13, 2015, Bruton filed an application for short-term disability benefits.

A nurse employed by DRMS wrote that, based on Bruton’s claim that his lower back pain had

worsened over time and his diagnosis of spinal stenosis from the MRI, it would be reasonable to

afford him disability benefits while Bruton obtained updated medical information.          DRMS

ultimately approved benefits through May 11, 2015—the maximum duration for short-term

disability benefits—and advised him that he may be eligible for long-term disability benefits.

       E.      Treatment During Short-Term Disability Period

       During his short-term disability period, Bruton continued seeking medical treatment. The

record reflects the following pertinent interactions with medical professionals:

       On February 16, 2015, Bruton saw Dr. Rebecca Brightman, a neurosurgeon to whom he

had been referred by Dr. Briones. Dr. Brightman wrote a diagnostic letter to Dr. Briones and

indicated that she had reviewed Bruton’s MRI and diagnosed Bruton with “[m]oderate spinal

stenosis.” (R. 18-1 at PageID 437). Dr. Brightman’s letter concluded: “I thought at this point I

might have him see my partner, Dr. [Kirk] Whetstone, who is a medical spine specialist, to see if

he could help him, and he is amenable to this.” (Id.).

       Bruton saw Dr. Briones again on March 10, March 16, and March 23, 2016. The exam

notes from those visits reveal that Bruton was in severe pain, and that Dr. Briones attempted to

manage that pain by changing his medication.



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Case No. 19-3466, Bruton v. Am. United Life Ins. Co.


       Bruton then received a call from a Managed Disability Analyst affiliated with DRMS on

March 20. During that call, Bruton reported that his pain was “about the same” and that physical

therapy had not been working. He also indicated that he was “bedridden” without pain medication,

but that with the medication he was “out of it” and could not drive. (R. 18-1 at PageID 508).

       On March 27, 2015, he saw a physical therapist, Emily Naderer. Bruton told Ms. Naderer

that his pain level out of ten was two while at rest, and eight with activity. She formulated a course

of physical therapy with the goal of reducing his maximum pain level to two, and assessed that he

had “[g]ood rehab potential to reach the established goals.” (R. 18-1 at PageID 363).

       In April, he once again saw Dr. Briones. This time, Dr. Briones reported that Bruton had

“regressed” and that he was “house confined” and “unable to engage in stress situations or engage

in interpersonal relations.” (R. 18-1 at PageID 501). She therefore concluded that he was not fit

for any work activity—even sedentary activity—and that she did not expect “any significant

improvement in the future.” (Id.)

       Later in April, he saw Ms. Naderer again. She reported “[n]o improvements in symptoms”

since their March 27 appointment and that his maximum tolerance for sitting remained “less than

1 hour,” and that his “[p]ain has become so severe that [he] is unable to mentally focus on work

duties.” (R. 18-1 at PageID 366). Ms. Naderer recommended a trial of “aquatic therapy to

determine effectiveness.” (Id. at PageID 367). But eventually Bruton called Ms. Naderer to cancel

any additional physical therapy appointments because he was “in too much pain to tolerate

therapy.” (Id. at PageID 369).

       On May 26 and June 24, Bruton saw Dr. Briones again. After those examinations, she

concluded that although he had a prescription for oxycodone for pain management, Bruton




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Case No. 19-3466, Bruton v. Am. United Life Ins. Co.


“[r]eally struggles with even activities of daily living” and that “[m]inimal activity results in the

need to lay down for several hours.” (Id. at PageID 324, 236).

        In July, Dr. Briones submitted a letter to DRMS summarizing Bruton’s relevant medical

history. That letter provided that physical therapy “appears to be minimally effective” in treating

his pain but also noted that he had not yet tried the aquatic therapy that Ms. Naderer had suggested.

(Id. at PageID 323). Dr. Briones also wrote that Bruton had been referred to Dr. Whetstone but

noted that she had no record of the consultation. (Id.). She noted further that “[s]ince March of

this year his physical exam findings have progressed to demonstrate increasing left lower extremity

weakness, namely with hip flexion and toe dorsiflexion. I have encouraged a repeat MRI of the L

spine given these findings, however, he has declined due to the cost of the imaging and the unstable

nature of his income at this time, despite my recommendations given his changing findings.” (Id.).

Finally, she observed that Bruton “cannot sit or stand beyond 10 minutes without pain,” that the

pain medication he required “has and does seem to affect his memory and processing, [and]

therefore his ability to be productive at work,” and that she did not “believe returning to work even

in a sedentary capacity at this time is feasible.” (Id.).

        In addition to reviewing his medical records, DRMS continued to conduct interviews with

Bruton to assess his health and work capabilities. During a May 8 interview, Bruton reported that

he was prevented from performing his work duties due to back pain that had increased drastically

in recent years, and that he had been diagnosed with sciatica pain that made it “difficult to be

mobile without a lot of pain med[ication].” (Id. at PageID 299). Because of these medications,

his memory and his work performance suffered. He also reported that he was able to manage most

daily activities, but did not like to shower unless his wife was home because he had recently fallen.

He could do a few chores, but “nothing sustained,” and that although he tried to walk in his yard



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Case No. 19-3466, Bruton v. Am. United Life Ins. Co.


“once or twice a day” he “doesn’t do much of anything else.” (Id. at PageID 300–01). During a

June 17 interview, Bruton reported that his pain was getting worse, but that he was having

difficulties with his insurance in receiving treatment. According to Bruton, his insurance would

no longer pay for his oxycontin prescription, nor would it pay for the additional MRI that Dr.

Briones had prescribed. He also reported that he “fear[ed] having to spend the rest of his life in

bed.” (Id. at Page ID 356). Finally, during a July 14 interview, a DRMS representative asked

Bruton a series of questions about his treatment plan. (Id. at PageID 281). When asked why he

didn’t pursue aquatic therapy, Bruton responded that he believed his medical team thought it was

“unlikely to work” and that he therefore “didn’t see the reasoning to pay money” for it. (Id.).

When asked why he had not seen the pain management doctor, Dr. Whetstone, Bruton said that

there was a “three month wait” for an appointment. (Id.). The DRMS representative observed

that Bruton had actually scheduled an appointment with Dr. Whetsone for April 21, but failed to

show up at the scheduled time; to that, Bruton responded that he could not pay for the appointment

and was not optimistic that a pain management provider would do anything other than give him

injections, which had not worked in the past. (Id.). Finally, the DRMS representative asked

whether Bruton had scheduled the follow-up MRI recommended by Dr. Briones. (Id.). He replied

that his previous MRI cost $1,200 and that he could not afford another one out of pocket. (Id.).

       Meanwhile, Nancy Gilpatrick, a Vocational Rehabilitation Counselor employed by DRMS,

analyzed Bruton’s “Regular Occupation” and determined that the occupation is “highly skilled”

and performed at a sedentary level, which includes “[e]xerting up to 10 pounds of force

occasionally” and/or a “negligible amount of force frequently.” (Id. at PageID 345). It also

involves “sitting most of the time, but may involve walking or standing for brief periods of time”;




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Case No. 19-3466, Bruton v. Am. United Life Ins. Co.


“occasional reaching, handling, and fingering”; “frequent talking”; acuity in hearing and vision;

“dealing with people”; and “making judgements and decisions.” (Id.).

       In the final days of the claim evaluation process, medical professionals affiliated with

DRMS reviewed Bruton’s entire claim file. On July 9, nurse Linda Waterman and Dr. Karyn

Tocci concluded that the lumbar abnormalities to which Dr. Briones attributed Bruton’s pain were

“minimal” but “appear[ed] to be progressing” in May and June. (R. 18-2 at PageID 2178). They

also highlighted the inconsistency in Bruton’s story as to his ability to book an appointment with

Dr. Whetstone. (Id.). They collectively concluded that Bruton should undergo a functional

capacity evaluation and recommended surveillance for “definitive examination of function.” (Id.)

DRMS never ordered a functional capacity evaluation. The next day, Ms. Waterman and Dr. Tocci

met with the file manager and a claims analyst. Although they had recommended an in-person

evaluation the previous day, on July 10 they reversed course and determined that Bruton was not

eligible for long-term disability. This was so, they reasoned, because he had failed to meet with

the pain management specialist, failed to pursue aquatic therapy, and failed to undergo a repeat

MRI. His treatment was therefore not “most appropriate to maximize medical improvement.” (R.

18-1 at PageID 283.)

       Shortly after, in a letter dated July 17, 2015, DRMS denied Bruton’s claim. DRMS

concluded that Bruton did not meet the definition of “Total Disability” under the plan for two

reasons. First, it determined that he did not satisfy the requirement of being under the “Regular

Attendance” of a physician for his condition because his treatment was not “most appropriate to

maximize medical improvement.” (R. 18-1 at PageID 307). DRMS based this determination on

the following facts: he did not undergo an MRI as recommended by Dr. Briones during his May

26 and June 24 appointments; he did not pursue aquatic therapy as recommended by Ms. Naderer;



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Case No. 19-3466, Bruton v. Am. United Life Ins. Co.


and he did not visit Dr. Whetstone, the pain management specialist. Second, it determined that

Bruton did not satisfy the requirement of being impaired from his “Regular Occupation which has

been determined to be performed in the sedentary physical demand level in the general economy”

because he was medically capable of performing sedentary work. (Id.).

       F.       Medical Treatment Pending Appeal of Denial of Benefits

       Following the initial denial of long-term disability benefits, Bruton continued to seek

medical treatment. He was admitted to the hospital on July 19 for “nausea, vomiting, abdominal

pain, and altered mental status.” (R. 18-1 at PageID 1034). Dr. Chelsey Petz at OhioHealth

concluded that these symptoms were likely due to his having stopped taking his oxycodone; she

therefore prescribed him medicine to reduce symptoms of opioid withdrawal. The records from

that hospital visit also indicated that Bruton had traveled to New Mexico in April and had visited

a farm the weekend prior to his hospital admission and “walk[ed] along a stream.” (R. 18-1 at

PageID 1030.)

       He followed up with Dr. Briones in August. She summarized that his hospitalization was

due to an ileus resulting from use of prescription opioids and “mental status changes” and

continued his prescription of oxycodone with a recommendation to follow-up with a psychiatrist.

(Id. at PageID 954).

       Later in August, Bruton saw Dr. Michael Simek, who had a lengthy discussion with Bruton

as to his treatment options for his chronic back pain. Dr. Simek observed that Bruton had had

“extensive treatment with trials of medications” as well as “physical therapy, a home exercise

program, injections including a previous radiofrequency ablation and epidural steroid injections

and has seen a spine surgeon . . . for evaluation. His pain persists nonetheless.” (R. 18-1 at PageID




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Case No. 19-3466, Bruton v. Am. United Life Ins. Co.


632). He also observed that Bruton’s range of motion was “[e]xtremely limited” in his lumbar

spine. (Id.).

        Bruton saw Dr. Briones again in October. She observed that his pain was “poorly

controlled on current therapy” and once again recommended that he start aquatic therapy and

consider a referral to a pain management specialist. (Id. at PageID 624). A nurse practitioner in

Dr. Briones’s office saw Bruton in January 2016; she advised that he “must” follow up with a pain

specialist and referred him to one such specialist, Dr. Dwight Mosley. (Id. at PageID 622).

        In February, Bruton saw Dr. Mosley. Dr. Mosley concluded after administering physical

testing that Bruton did indeed demonstrate axial lower back pain. He also observed that Bruton

did not exhibit Waddell signs—a test used to detect malingering. Because more conservative

therapies had failed—including ice, heat, opioids, NSAIDs, anti-seizure medications,

radiofrequency ablations, and epidural injections—Dr. Mosley determined his “next option is

surgery or a spinal cord stimulator.” (R. 18-2 at PageID 1350).

        G.      DRMS’s Decision Denying Long-Term Disability Benefits on Appeal

        DRMS then considered Bruton’s appeal with the additional medical and surveillance

evidence in his claims file. A nurse affiliated with DRMS reviewed Bruton’s file and expressed

concern that Bruton had not seen Dr. Whetstone, the pain management specialist. She also

expressed the belief that the severity of his reported pain was inconsistent with the MRI findings

and with his travels to New Mexico and to a farm.

        Next, Dr. Stewart Russell, a physician-consultant certified in occupational medicine hired

by DRMS reviewed Bruton’s claim. Dr. Russell concluded that “[b]ased on a lack of physical

exam findings, coupled with an unchanged MRI evaluation for the last 5 years, there is no

condition present that would preclude full-time sedentary activity. [Bruton’s] pain complaints are



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Case No. 19-3466, Bruton v. Am. United Life Ins. Co.


in excess of what would be expected based on the lack of findings.” (R. 18-1 at PageID 681). Dr.

Russell also commented that Bruton’s opioid prescription would not have long-term cognitive

effects that would preclude full-time sedentary work.

       On May 26, 2016, DRMS denied the appeal. The denial letter concluded that Bruton was

not “totally disabled” under the Plan because he was “capable of performing sedentary physical

demand level work.” (R. 18-1 at PageID 580).

       H.      Procedural History of Litigation

       Bruton then filed a complaint in district court, seeking to appeal DRMS’s determination

under ERISA. The parties filed cross-motions for judgment on the administrative record. After a

de novo review of the record, the district court concluded that Bruton had failed to prove by a

preponderance of the evidence that he was “totally disabled” under the terms of the Plan, which

required that he be in “Regular Attendance of a Physician” and be unable to “Perform the Material

and Substantial Duties of his Regular Occupation.” (R. 29 at PageID 2419). The district court

opined that Bruton failed to meet the “Regular Attendance” requirement of the Plan for five

reasons: First, he failed to follow standard medical practice to manage his pain as he “was

prescribed increasing doses of opiate pain medication despite largely normal physical exam

findings, with no pain contract or drug testing”; second, he failed to undergo an updated MRI as

Dr. Briones recommended; third, he failed to pursue aquatic therapy as recommended by his

physical therapist; fourth, he failed to follow through with the referral to the physical medicine

and rehabilitation specialist, Dr. Whetstone; and fifth, he had expressed worsening pain complaints

even as Dr. Briones prescribed him greater and greater doses of opioids. (R. 29 at PageID 2401–

07). The district court also concluded that Bruton failed to established that he could not perform

the “Material and Substantial Duties of his Regular Occupation” because there was a “lack of



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Case No. 19-3466, Bruton v. Am. United Life Ins. Co.


objective medical and other evidence to support Dr. Briones’s opinion that plaintiff is incapable

of his regular sedentary employment . . . .” (Id. at PageID 2414). Bruton now appeals.

                                II.     LAW AND ANALYSIS

   A. Standard of Review

       To succeed in his claim for disability benefits under ERISA, Bruton must “prove by a

preponderance of the evidence that he was ‘disabled,’ as that term is defined in the Plan.” Javery

v. Lucent Techs., Inc. Long Term Disability Plan for Mgmt. or LBA Employees, 741 F.3d 686,

700–01 (6th Cir. 2014) (citing Tracy v. Pharmacia & Upjohn Absence Payment Plan, 195 F. App’x

511, 516 n.4 (6th Cir. 2006); Rose v. Hartford Fin. Servs. Grp., Inc., 268 F. App’x 444, 452 (6th

Cir. 2008)). Bruton must therefore establish by a preponderance of the evidence both that he was

in “Regular Attendance of a Physician” for his injury and that he “cannot perform the Material and

Substantial Duties of his Regular Occupation.” (R. 18 at PageID 81).

       The parties agree that, because American United delegated its discretionary authority under

the Plan to DRMS, our review is de novo. Shelby Cty. Health Care Corp. v. Majestic Star Casino,

LLC, 581 F.3d 355, 365 (6th Cir. 2009). Under this standard, “we take a ‘fresh look’ at the

administrative record, . . . giving proper weight to each expert’s opinion in accordance with

supporting medical tests and underlying objective findings, and ‘accord[ing] no deference or

presumption of correctness’ to the decisions of either the district court or plan administrator.”

Javery, 741 F.3d at 700 (quoting Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 616 (6th

Cir. 1998), and Hoover v. Provident Life & Accident Ins., 290 F.3d 801, 809 (6th Cir. 2002)).

   B. The Preponderance of Evidence Supports the Conclusion that Bruton was in
      “Regular Attendance” of a Physician.

       Under the terms of the Plan, to establish “Regular Attendance,” an applicant for benefits

must show both that he “personally visit[ed] a Physician as medically required according to
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Case No. 19-3466, Bruton v. Am. United Life Ins. Co.


standard medical practice, to effectively manage and treat his Disability”; and that he “is receiving

the most appropriate treatment and care that will maximize his medical improvement and aid in

his return to work.” (R. 18 at PageID 80). The parties hold radically different views as to what

this requirement obligates an applicant to do. In American United’s view, despite the great deal

of contact Bruton had with medical professionals, he was not in “Regular Attendance” under the

terms of the Plan because he “failed to obtain recommended medical care including a repeat MRI,

aqua therapy, and treatment for his chronic pain complaints with pain specialist Dr. Whetstone[.]”

(Appellee Br. at p. 27). Bruton argues that he satisfies the requirement because he received

medical treatment routinely from competent physicians, and no evidence suggests that those

treatments fell below the standard of care. (Appellant Br. at p. 32–33).

       Many courts have concluded that a benefits plan clause that obligates a claimant to be under

the “regular care” or in “regular attendance” of a physician does not empower an administrator to

micromanage a claimant’s medical care—instead, it exists merely to prevent malingering and

fraud. Eichacker v. Paul Revere Life Ins., 354 F.3d 1142, 1148 (9th Cir. 2004); Heller v. Equitable

Life Assurance Soc’y of U.S., 833 F.2d 1253, 1257 (7th Cir. 1987); Russell v. Prudential Ins. Co.

of Am., 437 F.2d 602, 607 (5th Cir. 1971); Sullivan v. N. Am. Accident Ins. Co., 150 A.2d 467, 472

(D.C. 1959). But here, unlike in those cases, the provision obligates a claimant to “receiv[e] the

most appropriate treatment and care” that is designed to “maximize his medical improvement and

aid in his return to work.” (R. 18 at PageID 80). Some courts—including one in this circuit—

have concluded that when a “regular attendance” requirement specifies that a claimant must

receive treatment “appropriate for the condition causing the disability,” it implies an affirmative

duty on the part of the insured to seek and accept care designed to enable the insured to return to

his former employment. See, e.g., Reznick v. Provident Life & Accident Ins. Co., 364 F. Supp. 2d



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Case No. 19-3466, Bruton v. Am. United Life Ins. Co.


635, 638 (E.D. Mich. 2005) (“A disability policy that requires an insured claiming benefits to be

‘under the care and attendance’ of a physician cannot reflect an intent of the parties that the insurer

will be obligated to pay benefits even if the insured stubbornly refuses the only appropriate ‘care’

recommended.” (citation omitted)); see also Mack v. Unum Life Ins. Co. of Am., 471 F. Supp. 2d

1285, 1290–1291 (S.D. Fla. 2007); Provident Life & Accident Ins. v. Henry, 106 F. Supp. 2d 1002,

1004–1005 (C.D. Cal. 2000); Doe v. Provident Life & Accident Ins., No. Civ. A. 96–3951, 1997

WL 799439 at *4 (E.D. Pa. Dec. 30, 1997). In Reznick, we affirmed the district court’s decision

upholding denial of benefits pursuant to a clause that obligated a patient to receive care

“appropriate for the condition causing the disability.” Reznick v. Provident Life & Acc. Ins. Co.,

181 F. App’x 531, 534–35 (6th Cir. 2006). We reasoned that the clause required that, “to be

eligible for benefits under the policy, one must both be totally disabled and receiving care that is

appropriate for a person who is totally disabled.” Id. (emphasis in original).

       American United argues that Bruton failed to meet the “Regular Attendance” requirement

because he “did not obtain a recommended MRI, he did not comply with requests to see pain

management specialist Dr. Whetstone, he did not comply with recommendations for aqua therapy,

and he was only seeing a counselor and Psychiatrist . . . once per month.” (Appellee Br. at p. 24).

It seems that, in American United’s view, the failure to pursue any treatment recommended by any

medical professional with any level of confidence that the treatment would lead to medical

improvement puts the applicant outside the realm of “total disability”—even in circumstances

when a patient declined treatment that is prohibitively expensive, or experimental, or risky, or

painful.

       We do not read the “Regular Attendance” requirement so stringently. Instead, we read it

as we did in Reznick: to be in “Regular Attendance” of a physician under the Plan terms, a patient



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Case No. 19-3466, Bruton v. Am. United Life Ins. Co.


must pursue all care that is appropriate for a person who is totally disabled. Reznick, 181 F. App’x

at 534–35. And the preponderance of evidence suggests that Bruton has done so. Our march

through the record reveals that he received extensive treatment from medical professionals from

May 2014 to February 2016—including over a dozen visits with his primary care provider and

multiple visits with specialists ranging from neurosurgeons to neurologists to physical

rehabilitation doctors to pain management doctors. As for the treatments that Bruton declined to

pursue—a second MRI, aqua therapy, and an appointment with one specific pain management

specialist, Dr. Whetstone—the record offers little to no evidence that Bruton would have improved

his health outcomes had he pursued them. Bruton had received an MRI five months prior to Dr.

Briones’s recommendation and there is no reason to believe that an additional MRI would have

meaningfully altered his course of treatment; there is no basis to believe that aquatic therapy would

have been more successful than other physical therapy, particularly because his physical therapist

recommended it only “to determine effectiveness” (R. 18-1 at PageID 367); and although he failed

to see Dr. Whetstone he did see two other pain management specialists. In short, this is not the

type of case that concerned the court in Reznick, where the insured “stubbornly refuse[d] the only

appropriate ‘care’ recommended.” 364 F. Supp. 2d at 638 (emphasis added). This is instead a case

where the insured made reasonable decisions about his own care and pursued a quantum of

treatment one would expect of a person who is totally disabled. The preponderance of evidence

therefore supports the conclusion Bruton met the “Regular Attendance” requirement.1




1
 Because it is not necessary to our holding, we do not address Bruton’s alternate claim that DRMS
abandoned its “Regular Attendance” argument.

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Case No. 19-3466, Bruton v. Am. United Life Ins. Co.


   C. The Preponderance of Evidence Supports the Conclusion that Bruton was Unable to
      Pursue His “Regular Occupation” Due to Disability.

       The second basis upon which DRMS denied Bruton’s claim was his alleged failure to prove

that he was unable to perform the Material and Substantial Duties of his Regular Occupation. In

reaching this conclusion, it reasoned that his occupation of Technology Development Manager

was “performed at a sedentary level”—a conclusion Bruton does not dispute—and that the

“available data supports that Mr. Bruton is capable of performing full time sedentary physical

demand level work” (R. 18-1 at PageID 580)—a conclusion Bruton disputes ardently.

       In reviewing medical evidence in an ERISA case, courts may not conclude that the opinion

of treating physicians is entitled to more weight than that of non-treating physicians. Black

& Decker Disability Plan v. Nord, 538 U.S. 822, 830 (2003). But it is also true that “Plan

administrators . . . may not arbitrarily refuse to credit a claimant’s reliable evidence, including the

opinions of a treating physician.” Id. at 834. Moreover, a claimant’s documented limitations may

not simply be dismissed as being “subjective exaggerations,” particularly where—as here—the

individuals purporting to make that credibility determination did not meet or examine the claimant.

Calvert v. Firstar Fin., Inc., 409 F.3d 286, 296–97 (6th Cir. 2005).

       On review, the preponderance of the evidence in the administrative record supports the

conclusion that Bruton is unable to perform his Regular Occupation due to a combination of

debilitating back pain as well as the impairing cognitive effect of medication required to treat that

back pain. Bruton’s subjective level of pain is well-documented: he has been consistent in

reporting that his pain is debilitating and increasing. More than that, Bruton’s pain is documented

objectively. Dr. Briones performed monthly examinations and reviewed MRI results to reach her

determination that Bruton was disabled. Dr. Mosley, a specialist in pain medicine, administered a

number of tests to detect axial lower back pain, including the Gaenslens test, the Yeomans test,

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Case No. 19-3466, Bruton v. Am. United Life Ins. Co.


and the FABER test.2 He also searched for Waddell’s signs—a group of signs designed to detect

whether pain is attributable to a physical ailment. He detected none of those signs, suggesting that

Bruton was not malingering. It is true that DRMS-affiliated medical professionals reviewed

Bruton’s claims file and determined that the evidence contained therein was inconsistent with his

reported amount of pain. But there is no basis upon which to elevate the opinions of DRMS-

affiliated practitioners who did not observe or physically assess Bruton over those of his treating

practitioners. Indeed, as the Seventh Circuit has observed, when a patient undergoes a host of

pain-treatment procedures like Bruton did—including epidurals, spinal ablation, transcutaneous

electrical nerve stimulation, multiple consultations with specialists, physical therapy, and heavy

doses of strong drugs—it is highly improbable that he did so “merely in order to strengthen the

credibility of [his] complaints of pain and so increase [his] chances of obtaining disability

benefits.” Carradine v. Barnhart, 360 F.3d 751, 755 (7th Cir. 2004). So too is it improbable that

Bruton was a “good enough act[or] to fool a host of doctors and emergency-room personnel into

thinking []he suffers extreme pain, and the (perhaps lesser) improbability that this host of medical

workers would prescribe drugs and other treatment for h[im] if they thought []he were faking [his]

symptoms. Such an inference would amount to an accusation that the medical workers who treated

[Bruton] were behaving unprofessionally.” Id.

       Moreover, even if Bruton were not precluded from sedentary work based on his physical

health alone, DRMS may not ignore the “intellectual aspects” of Bruton’s job requirements.

Javery, 741 F.3d at 702. It is undisputed that Bruton’s position required a high degree of cognitive

capability.   DRMS’s own Vocational Consultant described his duties as “highly skilled,”




2
 All three of these tests are physical maneuvers performed on a patient to evaluate the pathology
of the sacroiliac joints.
                                               - 18 -
Case No. 19-3466, Bruton v. Am. United Life Ins. Co.


“requir[ing] frequent talking, hearing and near vision acuity,” and involving “directing

controlling[,] or planning the activities of others . . . dealing with people, and making judgments

and decisions.” (R. 18-1 at PageID 345). Dr. Briones concluded that the opioid medications

Bruton took were both “require[ed] . . . around the clock to stabilize and assist in managing his

pain” and also had the unfortunate effect of negatively impacting “his memory and processing,

therefore, his ability to be productive at work.” (R. 18-1 at PageID 323). And it was partially on

that basis that she concluded that “returning to work even in a sedentary capacity” was not feasible.

(Id.).

         American United urges this court to decline to credit Dr. Briones’s assessment, and instead

credit the opinion of Dr. Russell, a physician employed by DRMS who reviewed Bruton’s medical

records. Dr. Russell reasoned that the cognitive effect of opiates is “short-lived, generally less

than two weeks, as the patient adjusts to them” and that “[t]he only long-term side effect of opiates

is constipation . . . [which] would not preclude full-time sedentary work.” (R. 18-1 at PageID

681). But the preponderance of evidence in the record supports the conclusion that Bruton’s long-

term use of prescription opioids impacted his ability to perform the cognitive tasks of his job. Just

as we did in Wagner v. American United Life Insurance Company, we now observe that Dr.

Russell’s credibility determination was “entitled to little weight” because he “did a paper review

even though the policy gave American [United] ‘the right to have [the claimant] examined’ by an

independent doctor.” 731 F. App’x 495, 497–98 (6th Cir. 2018).

                                      III.   CONCLUSION

         The preponderance of evidence supports the conclusion that Bruton was both in “Regular

Attendance” of a physician and that disability prevented him from pursuing his “Regular

Occupation.” No further fact-finding is necessary. We therefore enter judgment in favor of Bruton


                                               - 19 -
Case No. 19-3466, Bruton v. Am. United Life Ins. Co.


and direct American United to pay Bruton disability benefits through the full 24-month period,

subject to any offset from Social Security Disability. Elliott v. Metro. Life Ins. Co., 473 F.3d 613,

622 (6th Cir. 2006).




                                               - 20 -
