                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 15a0327n.06

                                          No. 14-5777                                FILED
                                                                                May 05, 2015
                                                                            DEBORAH S. HUNT, Clerk
                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

SHELLEY BROWN,                                          )
                                                        )
        Plaintiff-Appellant,                            )
                                                        )
v.                                                      )
                                                        )       ON APPEAL FROM THE
FEDERAL EXPRESS CORPORATION;                            )       UNITED STATES DISTRICT
FEDERAL EXPRESS CORPORATION SHORT                       )       COURT FOR THE
TERM DISABILITY PLAN; FEDERAL                           )       WESTERN DISTRICT OF
EXPRESS CORPORATION LONG TERM                           )       TENNESSEE
DISABILITY PLAN,                                        )
                                                        )
        Defendants-Appellees.                           )
                                                        )



BEFORE:        SILER, BATCHELDER, and ROGERS, Circuit Judges

        ALICE M. BATCHELDER, Circuit Judge.                  This Employee Retirement Income

Security Act (“ERISA”) case stems from a denial of disability benefits by employer Federal

Express Corporation (“FedEx”).      Plaintiff Shelley Brown, a FedEx employee, applied for

disability benefits, contending that several doctors had diagnosed her with Lyme disease and

thyroiditis.   FedEx, and its claims-paying administrator Aetna Life Insurance Company

(“Aetna”), denied her request for benefits, due to the contradiction between negative lab results

and her doctors’ diagnoses. Brown challenged FedEx’s determination in federal district court.

The district court held that FedEx’s denial of benefits was not arbitrary and capricious. Finding

no error in the district court’s determination, we AFFIRM.
No. 14-5777
Brown v. FedEx

                                                  I.

       FedEx established its Short Term Disability (“STD”) Plan to provide for the payment of

short-term disability benefits for its employees. [R. 10-8 at ID# 629] FedEx acts as the

administrator of the plan.    [Id. at 630]       The plan designates Aetna as its claims-paying

administrator. [R. 10-7 at 528] It further provides that “[u]pon receipt by the Claims Paying

Administrator of proof that a Covered Employee has incurred a Disability, such Covered

Employee shall be entitled to receive a Disability Benefit subject to the limitations and

conditions set forth herein.” [R. 10-8 at 640]

       The plan requires that a disability be “substantiated by significant objective findings

which are defined as signs which are noted on a test or medical exam and which are considered

significant anatomical, physiological or psychological abnormalities which can be observed apart

from the individual’s symptoms.” [R. 10-8 at 631-32] It specifically states in bold-face type: “It

is important to remember pain alone is not proof of disability.” [R. 10-7 at 533] The burden of

proof for establishing a disability is on the employee. [R. 10-8 at 652] If Aetna determines that

the employee cannot substantiate his disability, “such Employee may be required to submit

himself to an examination by a Practitioner selected by [Aetna].” [Id.]

       Shelley Brown was a senior strategic sales specialist with FedEx from 2005 to 2012. [R.

10-5 at 300] Among other job responsibilities, a senior strategic sales specialist uses “advanced

business analysis skills, computer modeling techniques, database tools and/or approaches to

develop innovative, high quality, and/or customer centric results.”       [Id.]   Brown claimed

disability benefits under FedEx’s STD plan beginning on February 8, 2012. [R. 10-2 at 56]

Prior to that date, she visited a doctor at least once, on January 20, 2012, claiming pelvic pain,




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Brown v. FedEx

back pain, swollen lymph nodes, and urination difficulty. [R. 10-4 at 234] The treating doctor

detected no abnormalities at that time. [Id.]

       On March 29, 2012, Brown visited Dr. Wallace of The Family Physicians Group to

discuss the possibility of her having Lyme disease.         [Id. at 262]   Dr. Wallace drafted an

Attending Physician Statement a few days later in which he said that Brown was unable to work

in any capacity until April 30, 2012. [Id. at 261] His diagnosis, however, was not Lyme disease

but fibromyalgia and post-partum depression. [Id.]

       Meanwhile, Aetna had referred Brown’s claim to Dr. Wendy Weinstein. [Id. at 279] Dr.

Weinstein prepared a report and noted no abnormalities in Brown’s record. [R. 10-5 at 282] In

the report, she recounted a conversation she had had with Dr. Wallace:

       [Dr. Wallace] indicated that [Brown] was insistent that something was wrong with
       her but he noted a thorough evaluation had been done and there was no
       documentation of an underlying diagnosis other than her depression and increased
       emotionality . . . . He indicated that all of the studies he checked were normal and
       he had no explanation for her symptoms. He noted that she told him that one of
       the specialists had indicated she had Hashimoto’s thyroiditis. However, Dr.
       Wallace said he had checked her TSH and free T4 and they were normal and he
       had no indication that this was a real diagnosis.

[Id. at 283] Dr. Weinstein further reported Dr. Wallace’s saying that “he gave the claimant time

off work based on her request and her concerns that there was really something wrong with her

other than depression and fibromyalgia.”        [Id.]   Based on this information, Dr. Weinstein

concluded:

       The presented clinical information fails to support functional impairments from
       the claimant’s sedentary occupation from 2/8/12 forward. The claimant has had
       multiple evaluations by multiple providers for subjective complaints. However,
       the records have not documented specific physical examination abnormalities or
       underlying abnormal diagnostic studies that would support functional
       impairments from sedentary work.

[Id.]. She recommended that Aetna deny Brown’s claim. [Id.]



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No. 14-5777
Brown v. FedEx

       On April 13, 2012, Brown visited Dr. Callaghan in order to be tested for Lyme disease.

[R. 10-2 at 82] The test came back negative under all standards. [Id. at 82-83] That being said,

Dr. Callaghan wrote on Brown’s test results: “Although a negative test, having 2 positive and 3

indeterminate bands plus your multitude of symptoms causes me to diagnose you with ‘clinical

lyme disease.’” [Id. at 82] Further, because of a different test which revealed high thyroglobulin

levels, Dr. Callaghan also diagnosed Brown with Hashimoto’s thyroiditis which, in his words,

could, “on any given day,” cause “hypo or hyperthyroid symptoms [including] sick like fatigue,

memory loss and muscle aches.” [R. 10-4 at 263] A few days later, he wrote a letter to Aetna,

which was still reviewing Brown’s case. In it, he noted that “Shelley Brown has come to me

with multiple complaints including extreme fatigue, multiple joint pains…frequent nausea,

tremors, heart palpitations, severe headaches and insomnia.” [R. 10-2 at 92] After seeing her on

April 13, he wrote, he had determined “she also has autoimmune thyroiditis and is very likely to

have lyme disease based on my clinical impressions.” [Id.] He concluded that he has found

“this patient to be quite ill and unable to work due to all of the above issues.” [Id.]

       Brown submitted to Aetna the information about her visit with Dr. Callaghan, as well as

the test results. [R. 10-5 at 285] Dr. Weinstein reviewed all of the relevant additional material

and supplemented her initial report with an addendum on May 14, 2012. [Id. at 286] As to

Brown’s supposed thyroiditis, Dr. Weinstein noted:

       The claimant’s laboratory studies have documented normal thyroid-stimulating
       hormone levels with no indication of hyperthyroidism or hypothyroidism.
       Additional testing noted an increased thyroglobulin level and the physician wrote
       on the note that the claimant had Hashimoto thyroiditis which could cause her
       altering symptoms of being hyperthyroid or hypothyroid and it was noted she
       could have symptoms of fatigue, memory loss, and muscle aches related to these
       findings. Next to claimant’s cortisol result, the provider wrote, “You must be
       exhausted.” Once again, this is reference to the claimant’s subjective complaint
       which the physician assumed she would have based on this laboratory finding.



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No. 14-5777
Brown v. FedEx

[Id. at 286-87] As to Brown’s supposed Lyme disease, Dr. Weinstein stated that “[a] note next

to the claimant’s Lyme titers stated that although she had a negative test, the findings would

cause her to have a diagnosis of ‘clinical Lyme disease.’” [Id. at 287] Rejecting this diagnosis,

Dr. Weinstein concluded that the records “do not document physical examination abnormalities

and the submitted laboratory studies do not document significant findings that would support

functional impairments from the claimant’s sedentary occupation as well.” [Id.]

       On May 24, 2012, based on Dr. Weinstein’s report and an independent review of the

various documents, Aetna denied Brown short-term disability benefits. [R. 10-2 at 56] The

denial letter specifically noted that “Dr. Callahan [sic] submitted a letter that indicates you are

incapable of working related to possible autoimmune thyroiditis and most likely Lyme disease,

however, no abnormal examinations or neurological or musculoskeletal findings were

documented or submitted.” [Id. at 57]

       Upon hearing this news, Brown returned to Dr. Callaghan on May 26, 2012, for another

round of testing for Lyme disease. [Id. at 96] This test also returned negative results. [Id.] On

the results, however, Dr. Callaghan again noted: “Your tests are negative but again having

several lyme bands positive and intermediate raises the suspicion of lyme. With your clinical

picture I still consider you have probable ‘clinical lyme disease.’” [Id.]

       On June 28, 2012, Brown visited Dr. Crist in order to be tested for Lyme disease one

more time. [R. 10-3 at 157] This time, one of the tests came back positive. [Id.] This particular

Lyme test examines both the IgM and IgG antibody blots. [Id. at 157-58] Each blot returns a

result under the standards of both IGeneX (the company that produces the test) and the Centers

for Disease Control and Prevention (“CDC”). [Id.] Brown’s results yielded a positive IGeneX




                                                -5-
No. 14-5777
Brown v. FedEx

IgM result, but a negative result under the other three standards (the CDC IgM standard and both

IgG standards).

       Armed with the new test results and opinion letters from Drs. Callaghan and Crist, Brown

appealed Aetna’s decision on November 19, 2012. [R. 10-2 at 59] Aetna referred the appeal to

Dr. Steven Swersie for peer review.        [R. 10-5 at 289]      Dr. Swersie reviewed all the

documentation, including the new lab results, the opinion letters, and Dr. Weinstein’s reports.

Noting that Brown had complained of a vast array of symptoms, he concluded: “I will not

attempt to list those [symptoms] indicated and will limit my review to those notations made by

her providers, as well as the results of objective diagnostic tests.” [Id. at 291] Dr. Swersie’s

ultimate conclusion was that Brown’s case “is characterized by multiple subjective complaints

from the claimant with minimal objective findings. Unfortunately, she also had a multitude of

laboratory tests performed, several with obvious misinterpretations by her providers with this

misinterpretation conveyed to the claimant, only reinforcing her subjective symptoms.” [Id. at

294] He specifically rejected both the thyroiditis and Lyme disease diagnoses. As to thyroiditis,

he stated:

       [H]er provider indicated the elevated thyroglobulin level indicated chronic
       thyroiditis when this result may be seen with any type of thyroid enlargement or
       even in some normal circumstances. Her anti-peroxidase antibody level, on the
       other hand, was not elevated and significant elevation of this test is used to
       diagnose chronic thyroiditis or Hashimoto’s thyroiditis in the absence of an actual
       thyroid biopsy. There is therefore, based on the laboratory tests reported, no
       evidence to support a diagnosis of Hashimoto’s thyroiditis in this claimant.

[Id.] As to Lyme disease, he noted that “[t]he diagnosis of Lyme disease, either in the past or

recently, was not documented by the laboratory tests I reviewed with antibodies to both IgG and

IgM being negative.” [Id.]




                                               -6-
No. 14-5777
Brown v. FedEx

         Based on Dr. Swersie’s report and an independent review of the documentation, Aetna

upheld the denial of short-term disability benefits on February 8, 2013. [R. 10-1 at 48] The

letter concluded that the committee “considered all submitted documentation, noted the

conclusions of peer physicians, and determined there are no significant objective findings to

substantiate that a functional impairment exists that would render your client unable to perform

her sedentary job duties.” [Id. at 50] Specific to Lyme disease, the letter from Aetna noted:

         Although your client has reported back and leg pain, fatigue and abdominal pain
         and her providers are of the opinion she has clinical Lyme disease, there are no
         objective findings that support a functional impairment such as diagnostic sensory
         testing revealing neurological deficits or formal cognitive testing that reveals
         impairment in concentration or thinking.

[Id.] This concluded the appeals process for Brown’s claim.

         In June 2013, Brown filed a complaint in federal district court against FedEx, the FedEx

Short Term Disability Plan, and the FedEx Long Term Disability Plan.1 [R. 1]. She sought a

remedy under ERISA, specifically 29 U.S.C. § 1132(a)(1)(B), which allows a civil action to be

brought “to recover benefits due to [a beneficiary] under the terms of his plan.” On February 18,

2014, the defendants filed a motion for summary judgment. [R. 20] The district court granted

the motion for summary judgment on May 28, 2014. [R. 25] Brown timely appealed to this

court.




1
 Although the Long Term Disability Plan is technically a party in this appeal, Brown has waived any arguments
against it. As a preliminary matter, Brown was not even eligible for long-term benefits. The STD Plan provides
benefits from the point of proof of disability for a maximum of twenty-six weeks. [R. 10-5 at 295-96] The Long
Term Disability Plan, on the other hand, commences “following the conclusion of all benefits payable to the
Disabled Covered Employee pursuant to the Federal Express Corporation STD Plan on account of the same
condition.” [Id. at 296] Because Brown never received short-term benefits, she would not have been eligible for
long-term benefits. Either way, the district court explicitly held that the denial of long-term benefits was not
arbitrary and capricious. As FedEx points out, there is only a passing reference to Brown’s long-term benefits claim
in her statement of facts, but no actual argument about the district court’s decision in that regard. Any argument
about the long-term plan, therefore, is waived because, as we have frequently observed, “[a]n appellant waives an
issue when he fails to present it in his initial briefs.” Marks v. Newcourt Credit Grp., Inc., 342 F.3d 444, 462 (6th
Cir. 2003).

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No. 14-5777
Brown v. FedEx

                                                II.

       We review de novo denials of benefits challenged under 29 U.S.C. § 1132(a)(1)(B)

unless, as here [see R. 10-8 at 657], “the benefit plan gives the administrator or fiduciary

discretionary authority to determine eligibility for benefits or to construe the terms of the plan.”

McClain v. Eaton Corp. Disability Plan, 740 F.3d 1059, 1063 (6th Cir. 2014) (quoting Firestone

Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)). “If a plan affords such discretion to an

administrator or fiduciary, we review the denial of benefits only to determine if it was ‘arbitrary

and capricious.’” Marks v. Newcourt Credit Grp., Inc., 342 F.3d 444, 456 (6th Cir. 2003). Put

another way, on appeal, “we review de novo the district court’s finding that the administrator’s

denial was not arbitrary and capricious.” McClain, 740 F.3d at 1064.

       The “arbitrary and capricious” standard “is the least demanding form of judicial review

of administrative action . . . . When it is possible to offer a reasoned explanation, based on the

evidence, for a particular outcome, that outcome is not arbitrary and capricious.” Perry v. United

Food & Commercial Workers Distrib. Unions 405 & 422, 64 F.3d 238, 242 (6th Cir. 1995)

(citations and internal quotation marks omitted). The standard requires that the decision “be

upheld if it is the result of a deliberate, principled reasoning process and if it is supported by

substantial evidence.” Baker v. United Mine Workers of Am. Health & Ret. Funds, 929 F.2d

1140, 1144 (6th Cir. 1991). Although this extremely deferential standard is “not without some

teeth, it is not all teeth. An ‘extremely deferential review,’ to be true to its purpose, must

actually honor an ‘extreme’ level of ‘deference’ to the administrative decision.”         McClain,

740 F.3d at 1064.




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No. 14-5777
Brown v. FedEx

                                                 A.

       Brown’s first contention is that FedEx acted arbitrarily and capriciously by rejecting the

opinions of three treating sources as to her disability. The district court held that “[b]ecause her

physicians’ diagnoses were based on the combination of Plaintiff’s subjective reporting of her

symptoms, two negative lab tests, and one positive but questionable lab test, the Court finds that

Aetna’s conclusion that this evidence failed to adequately substantiate Plaintiff’s alleged

disability was not arbitrary and capricious.”       [R. 25 at 1110].     We find no error in this

determination.

       The STD plan conditions benefits on “significant objective findings” substantiating the

claimed disability. The plan defines “significant objective findings” as “signs which are noted

on a test or medical exam and which are considered significant anatomical, physiological or

psychological abnormalities which can be observed apart from the individual’s symptoms.” [R.

10-8 at 631-32] The plan does not say what makes a finding or a physiological abnormality

“significant”; it gives the administrator discretion to interpret “significant” and all other terms in

the plan. [Id. at 657] This court, therefore, must defer to Aetna’s interpretation of the STD plan

so long as that interpretation is neither arbitrary nor capricious. Jones v. Metro. Life Ins. Co.,

385 F.3d 654, 660 (6th Cir. 2004).

       Turning first to her alleged Lyme disease, Brown contends that three different doctors

considered her disabled and so Aetna was arbitrary and capricious by denying her benefits.

Aetna, however, did not act arbitrarily and capriciously in concluding that the opinions of Dr.

Wallace, Dr. Callaghan, and Dr. Crist did not establish—or were not based on—“significant

objective findings.” With respect to Dr. Wallace, none of the objective evaluative measures

employed by him revealed any abnormalities. [R. 10-5 at 282-83] Dr. Wallace even told Dr.



                                                 -9-
No. 14-5777
Brown v. FedEx

Weinstein that he had no diagnosis to explain Brown’s subjective complaints and had only given

her “time off work based on her request and her concerns that there was really something wrong

with her other than depression and fibromyalgia.” [Id. at 283] His opinion, therefore, was in no

way supported by “significant objective findings.”

       With respect to Dr. Callaghan, his diagnosis also did not rest on “significant objective

findings.” As he explained to Brown, his diagnosis was predicated on two considerations:

(1) Brown’s “multitude of symptoms”; and (2) the indeterminacy of the results of Brown’s blood

tests. [R. 10-2 at 82] Aetna was not obligated to credit the first consideration, since the STD

plan clearly states that observable symptoms may not be the basis for a finding of disability. As

to the second consideration, Aetna could rationally conclude that indeterminate results are not

the same thing as “significant objective findings.”      It may be true, as Brown argues, that

irregularities in her blood test results indicated some “physiological abnormalities.”       But

coverage under the STD plan requires “significant physiological abnormalities.” The fact that

both sets of Brown’s test results were uniformly negative for Lyme disease might reasonably be

understood to mean that the test results were not significant.

       With respect to Dr. Crist, his diagnosis was apparently based on the results of the blood

test he ordered for Brown in June 2012. Dr. Crist ordered that Brown’s blood be tested for Lyme

disease using two methods: the IgG Western Blot test and the IgM Western Blot test. The lab

that conducted the testing, in turn, provided results under each of two standards: the CDC

standard and the lab’s standard. The IgG Western Blot test came back negative under both the

CDC standard and the testing lab’s standard. [R. 10-3 at 158] The IgM Western Blot test also

came back negative under the CDC standard, but came back positive under the testing lab’s

standard. [Id. at 157] Aetna could reasonably determine that those mixed results did not



                                                -10-
No. 14-5777
Brown v. FedEx

constitute “significant objective findings.” Under three of the four measures, including both

CDC measures, Brown was negative for Lyme disease—results consistent with every one of the

tests ordered by Dr. Callaghan.2 Against that evidence, just a single measure indicated that

Brown had Lyme disease. The weight of the evidence, then, pointed decisively against Brown’s

having Lyme disease, and militated against giving too much credence to the lone result

suggesting otherwise. Thus, Aetna could reasonably conclude that the results of the test ordered

by Dr. Crist were not “significant objective findings.”

        Further, FedEx was not arbitrary and capricious in relying on the opinions of Drs.

Weinstein and Swersie—who did not examine Brown—over her examining doctors. Although

the Plan allowed FedEx to require its employee to submit to a physical examination, it did not

mandate that a physical examination be performed.                “[T]he failure to conduct a physical

examination—especially where the right to do so is specifically reserved in the plan—may, in

some cases, raise questions about the thoroughness and accuracy of the benefits determination.”

Calvert v. Firstar Fin., Inc., 409 F.3d 286, 295 (6th Cir. 2005). But “reliance on a file review

does not, standing alone, require the conclusion that [a plan administrator] acted improperly.”

Id. “[W]hen a plan administrator chooses to rely upon the medical opinion of one doctor over

that of another in determining whether a claimant is entitled to ERISA benefits,” this decision

“cannot be said to have been arbitrary and capricious because it would be possible to offer a

reasoned explanation, based upon the evidence, for the plan administrator’s decision.”

McDonald v. Western-Southern Life Ins. Co., 347 F.3d 161, 169 (6th Cir. 2003). It does not

matter that this choice is between a non-treating and a treating physician. See Black & Decker

Disability Plan v. Nord, 538 U.S. 822, 825 (2003) (holding that “plan administrators are not


2
 Brown contends that use of the CDC standards is inappropriate because the CDC standards were not entered into
the administrative record. But Brown’s results under the CDC standards are indeed in the record.

                                                    -11-
No. 14-5777
Brown v. FedEx

obliged to accord special deference to the opinions of treating physicians”). FedEx was not

arbitrary and capricious, therefore, in according more weight to Aetna’s peer-review physicians.

       As for Brown’s alleged Hashimoto’s thyroiditis, the only objective evidence that she had

this disorder was from Dr. Callaghan, who diagnosed her with the disease after a test revealed

high thyroglobulin levels. [R. 10-4 at 263] Dr. Wallace, however, tested Brown for thyroiditis

because she had told him that another specialist had diagnosed her with the disease, and he found

that her levels were “normal and he had no indication that this was a real diagnosis.” [R. 10-5 at

283] Further, Dr. Swersie criticized Dr. Callaghan’s methodology. He noted that although

Brown had high thyroglobulin levels, that can happen with “any type of thyroid enlargement or

even in some normal circumstances.” [Id. at 294] In fact, he noted that the more relevant

measurement level for determining thyroiditis was “not elevated.” [Id.] Given the legitimate

criticism of Dr. Callaghan’s scientific methodology, it was not arbitrary and capricious for

FedEx to determine that Brown was not disabled with thyroiditis. Even if it were, however,

there is an uncontroverted statement from Dr. Weinstein in the record that a diagnosis of

thyroiditis “in and of itself would not preclude the claimant from performing her sedentary

occupation.” [Id. at 284] Because FedEx’s decision to deny benefits because of a lack of

objective evidence of Lyme disease was not arbitrary and capricious, even a diagnosis of

thyroiditis would not entitle Brown to benefits.

                                                   B.

       Brown’s second contention on appeal is that FedEx acted arbitrarily by “denying her

disability benefits while refusing to allow her to bring her prescribed intravenous antibiotics into

the workplace.” [Brown Br. 17] Sometime around May 2012, Dr. Callaghan placed Brown on

an intravenous antibiotic regimen to treat what he had diagnosed as Lyme disease. [See R. 10-1



                                               -12-
No. 14-5777
Brown v. FedEx

at 49] According to Brown, this regimen involved infusing intravenous antibiotics three times a

day. [R. 10-2 at 72] Brown submitted into the administrative record an unsworn statement

detailing FedEx’s alleged treatment of her as she attempted to return to work following her

diagnosis. According to this statement, she received a letter from FedEx notifying her of the

denial of benefits and mandating that she return to work on June 4, 2012. [Id.] Not wanting to

lose her job, she enlisted the aid of her fiancé to help her bring her medical supplies into the

office. [Id.] She informed her supervisor via text message that she was coming into work with

her medical supplies. [Id. at 73] When she arrived, her supervisor was blocking the entrance to

her cubical and demanded that Brown follow her to the supervisor’s office. [Id.] During a

subsequent meeting, Brown alleges that various FedEx employees told her that, according to

FedEx policy, she could not bring any medical supplies to work and so she had to leave the

premises.   [Id.]   She left the premises and was eventually terminated.        [Id. at 74]    She

characterized the entire experience as “intensely dehumanizing and considerably humiliating.”

[Id.] Her fiancé also submitted into the administrative record an unsworn statement which

corroborated all the major details of Brown’s story. [See id. at 75]

       Other than noting that Dr. Callaghan prescribed intravenous antibiotics for Brown, there

is scant mention of the antibiotics in the administrative record. The only mention of it in the

final Aetna report is the terse statement that “[w]hile it is recognized your client was prescribed

I.V. antibiotics to be self-administered three times a day, there is nothing in the submitted

documentation that indicates the schedule of administration could not be done around a work

schedule so this would not interfere with your client’s ability to work.” [R. 10-1 at 50] Brown

contends that this statement is “entirely contrary” to her own testimony, and thus arbitrary and

capricious. [Brown Br. 18]



                                               -13-
No. 14-5777
Brown v. FedEx

       As an initial matter, “the ultimate issue in an ERISA denial of benefits case is not

whether discrete acts by the plan administrator are arbitrary and capricious but whether its

ultimate decision denying benefits was arbitrary and capricious.” McClain, 740 F.3d at 1066

(quoting Spangler v. Lockheed Martin Energy Sys., Inc., 313 F.3d 356, 362 (6th Cir. 2002)). The

argument as formulated by Brown—that FedEx acted arbitrarily and capriciously by denying

Brown disability benefits while refusing to allow her to bring her antibiotics into the

workplace—is thus a red herring. FedEx had already denied Brown disability benefits by the

time the events alleged in Brown’s statement occurred. Even if unsworn statements from the

allegedly disabled employee could establish objective evidence of disability, Brown’s statements

document an event that took place after the denial of benefits. Her allegations might have been

better suited for an Americans with Disabilities Act claim, which she did not bring here.

       Brown’s argument might be styled as one contending that FedEx acted arbitrarily and

capriciously by denying her benefits because the intravenous antibiotic program by itself was

objective evidence of disability. This, however, improperly shifts the burden of proof to FedEx.

Brown, as the claimant, had the burden of proving disability through the entire claim process.

She submitted into the record no objective evidence that would contradict Aetna’s conclusion

that the regimen could be compatible with her work schedule. Because she did not meet her

burden of proof, therefore, FedEx’s decision to deny benefits despite the intravenous antibiotic

regime was not arbitrary and capricious.

                                               III.

       For the foregoing reasons, we AFFIRM the judgment of the district court.




                                               -14-
