                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                         June 21, 2018
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
JOHN DARDICK,

      Plaintiff - Appellant,

v.                                                         No. 17-1412
                                              (D.C. No. 1:16-CV-02838-LTB-KLM)
UNUM LIFE INSURANCE COMPANY                                 (D. Colo.)
OF AMERICA, a Maine corporation;
FIRST UNUM LIFE INSURANCE
COMPANY, a New York corporation,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, MATHESON, and EID, Circuit Judges.
                  _________________________________

      John Dardick brought this action under the Employee Retirement Income

Security Act (ERISA) after being denied long-term disability benefits by Unum Life

Insurance Company of America and First Unum Life Insurance Company (Unum).

He claimed benefits under a group disability benefits plan provided by his former




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
employer, Westcon Group, Inc. (Westcon). The district court entered judgment for

Unum, and Mr. Dardick appeals. We affirm.

   I.      BACKGROUND

        Mr. Dardick worked for Westcon as a Vice President of Cloud Services until

August 21, 2015, when he stopped working due to chronic coronary artery disease

and related conditions. He applied for disability benefits in early August 2015.

Unum approved short-term benefits through December 23, 2015, after considering

Mr. Dardick’s coronary artery disease and the recovery periods required for two

surgeries he underwent in late 2015.

        Mr. Dardick applied for long-term disability benefits based on the opinions of

Dr. Bradley Fanestil, an internist, and Dr. Nelson Trujillo, a cardiologist, who stated

that he could not perform his job due to his chronic coronary artery disease, angina,

stress, depression, and anxiety. Unum denied long-term benefits on January 12,

2016, concluding that the medical records did not support restrictions that would

prevent Mr. Dardick from performing his regular sedentary occupation.

        Mr. Dardick filed an administrative appeal on April 22, 2016, and provided a

report from Dr. Fanestil. Dr. Fanestil stated that Mr. Dardick should not return to

work, noting that the stress of work was contributing to his cardiovascular problems.

Dr. Fanestil also started Mr. Dardick on a trial of bupropion to treat depression, but

he was unable to tolerate the bupropion, so he stopped taking it after a couple of

weeks. Unum had Susan Grover, a nurse clinical consultant, review the file. She

found no support for a finding of disability. In addition, Unum sought advice on

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Mr. Dardick’s job requirements from Richard Byard, a vocational consultant. Mr.

Byard modified the initial classification of Mr. Dardick’s position as Systems Project

Manager to Cloud Solution Manager, and determined that it required sedentary

activity. He recognized that Mr. Dardick claimed his particular occupation required

extensive travel, but as normally performed, the position did not require extensive

travel. Based on Ms. Grover’s and Mr. Byard’s reports, Unum denied benefits.

         Mr. Dardick filed a further administrative appeal. He included reports from

Drs. Fanestil and Trujillo, both of whom opined that Mr. Dardick was unable to

return to his previous occupation. Unum had the additional evidence reviewed by

Mr. Byard and Ms. Grover. Mr. Byard further revised his determination of

Mr. Dardick’s occupational requirements, and again determined that it required

sedentary physical exertion and occasional travel. Ms. Grover requested additional

review of the medical evidence, which was performed by Dr. Chris Bartlett. Dr.

Bartlett concluded that the medical evidence did not support a finding of disability.

Unum therefore denied the second appeal.

   II.       THE DISABILITY PLAN

         The relevant portions of the disability plan (Plan) provided that UNUM would

pay Mr. Dardick 60% of his earnings if he became disabled. Aplt. App. at 322.

Under the Plan, disability was defined as follows:

         -   you are limited from performing the material and substantial duties of
             your regular occupation due to your sickness or injury; and
         -   you have a 20% or more loss in your indexed monthly earnings due to
             the same sickness or injury.

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      After 24 months of payments, you are disabled when UNUM determines
      that due to the same sickness or injury, you are unable to perform the duties
      of any gainful occupation for which you are reasonably fitted by education,
      training or experience.
Id. at 341. The relevant terms were defined as follows:

      MATERIAL AND SUBSTANTIAL DUTIES means duties that:
      -   are normally required for the performance of your regular occupation;
          and
      -   cannot be reasonably omitted or modified.
      ....

      REGULAR OCCUPATION means the occupation you are routinely
      performing when your disability begins. Unum will look at your
      occupation as it is normally performed in the national economy, instead of
      how the work tasks are performed for a specific employer or at a specific
      location.
      ....

      SICKNESS means an illness or disease. Disability must begin while you
      are covered under the plan.
Id. at 354-56. The Plan further provided that Unum was a claims fiduciary for the

Plan, id. at 362, and “[b]enefits are administered by the insurer and provided in

accordance with the insurance policy issued to the Plan,” id. at 357. The parties

agree that the Plan served as both insurer and Plan administrator.

   III.   STANDARDS OF REVIEW

      Where, as here, a “benefit plan gives the administrator or fiduciary

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

the plan,” the decision is subject to the arbitrary and capricious standard. DeGrado v.

Jefferson Pilot Fin. Ins. Co., 451 F.3d 1161, 1167 (10th Cir. 2006) (internal


                                            4
quotation marks omitted). Under this standard, “this court upholds [the

administrator’s] determination so long as it was made on a reasoned basis and

supported by substantial evidence.” Van Steen v. Life Ins. Co. of N. Am., 878 F.3d

994, 997 (10th Cir. 2018). “The district court’s determination of whether an ERISA

benefits decision is arbitrary and capricious is a legal conclusion subject to de novo

review.” Id. at 996 (internal quotation marks omitted).

       Unum’s dual role as administrator and payer of benefits “creates a conflict of

interest [such that] a reviewing court should consider that conflict as a factor in

determining whether the plan administrator has abused its discretion in denying

benefits,” Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 108 (2008). “When there

exists such a conflict of interest, we undertake a sliding scale analysis, where the

degree of deference accorded the Plan Administrator is inversely related to the

seriousness of the conflict.” DeGrado, 451 F.3d at 1167-68 (internal quotation marks

omitted). We “take a hard look at the evidence and arguments presented to the plan

administrator to ensure that the decision was a reasoned application of the terms of

the plan to the particular case, untainted by the conflict of interest.” Id. at 1168

(internal quotation marks omitted).

       Mr. Dardick contends that Unum’s conflict of interest was demonstrated by its

treatment of the evidence in his case. He does not allege any circumstances, such as

“a history of biased claims administration,” that might indicate “a higher likelihood

that [the conflict of interest] affected the benefits decision,” Metro. Life Ins. Co.,



                                             5
554 U.S. at 117. We apply these standards to our consideration of UNUM’s denial of

benefits.

    IV.     ANALYSIS

    A. Medical Evidence

      Mr. Dardick asserts Unum’s treatment of the medical evidence demonstrated

that the denial of benefits was arbitrary and capricious. First, he argues that Unum

limited the duration of his short-term disability benefits based on the anticipated

recovery time for his late-2015 percutaneous coronary intervention and bicep

surgeries, even though his disability claim was not based on those procedures but on

his chronic coronary artery disease. Thus, he asserts he was required to file two

administrative appeals to convince Unum to consider his disabling cardiac condition.1

      Unum recognized that the initial application for benefits was based on

Dr. Trujillo’s diagnosis of coronary artery disease. See Aplt. App. at 286 (initial

denial decision). Unum acknowledged Mr. Dardick’s surgeries and stated that

benefits were approved based on the expected surgery-recovery duration. In

addition, Unum reviewed the notes from Dr. Trujillo’s recent examination, which

showed an echocardiogram result of 50-55%, stable angina, and a physical exam


1
       Mr. Dardick makes a conclusory statement that Unum elevated the opinions of
its own medical experts over those of his physicians. We decline to consider “issues
adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation,” United States v. Wooten, 377 F.3d 1134, 1145 (10th Cir. 2004)
(internal quotation marks omitted). Mr. Dardick also points out that Unum argued in
the district court that the frequency of his medical visits did not support a disability
determination. But we are here concerned with the reasons Unum relied on to deny
benefits, rather than on arguments made to the district court.
                                           6
within normal limits. Accordingly, Unum concluded that the medical records did not

demonstrate ongoing restrictions that would prevent Mr. Dardick from performing

his regular sedentary occupation. Mr. Dardick’s argument that Unum’s initial

benefits decision was based solely on surgery recovery times, rather than on his

coronary artery disease, is not supported by the record.

      Mr. Dardick also complains that Unum initially requested only his recent

medical records. But since Unum ultimately received and considered all of the

relevant records, we do not find that this circumstance renders Unum’s decision

arbitrary and capricious.

      Next, Mr. Dardick claims that Unum ignored the stress of his job or

erroneously considered that all job stress is the same. He relies on statements from

Drs. Trujillo and Fanestil opining that stress can contribute to or precipitate coronary

artery disease. Id. at 396, 850; see also id. at 888 (Dr. Fanestil’s opinion that

Mr. Dardick’s “symptoms and diagnoses are undoubtedly related to chronic long

term stress”). Although Dr. Fanestil’s discussion of job stress made a general

reference to failed attempts to treat this condition with medication, he did not

describe any such attempts.

      Dr. Bartlett acknowledged that Mr. Dardick’s “job could indeed be stressful,”

but found that the “lack of any treatment” with appropriate medication was

inconsistent with a disabling intolerance of stress. Id. at 914. In denying benefits,

Unum determined that the following evidence refuted Mr. Dardick’s claim of

disabling stress: his physical activities, his normal physical and mental status exams,

                                            7
the absence of any behavioral health treatment, his normalized echocardiogram, and

his exercise test results. We conclude that substantial evidence supported Unum’s

determination.

      Mr. Dardick further claims that Unum erroneously equated an ejection fraction

of 55% with normal exercise tolerance. Although Dr. Trujillo stated that an ejection

fraction of 55% does not correlate to normal exercise tolerance, id. at 850,

Dr. Bartlett opined that the relevant test result showed improvement and was “now in

the normal range,” id. at 915. Unum’s decision did not rely exclusively on the

ejection-fraction result, but considered it with several other factors pertinent to

Mr. Dardick’s ability to perform the duties of his occupation, as noted above.

Therefore, even if Unum erred in its view of this test result and erroneously relied on

Dr. Bartlett’s opinion, the benefits decision was still supported by substantial

evidence.

      Mr. Dardick also faults Unum for relying on “normal” examination results

from Dr. Trujillo’s notes to find that “Mr. Dardick is in general good health as

opposed to simply relatively stable at the moment of examination.” Aplt. Opening

Br. at 29. We do not agree; Unum’s reliance on the doctor’s “normal” examination

results did not make its disability decision arbitrary and capricious.

      In addition, Mr. Dardick asserts that Unum unfairly relied on his ability to

exercise as evidence that he could tolerate the stress of his job. He cites to his own

statement that he expected to be able to increase his ability to exercise but not deal

with stress, Aplt. App. at 131, and to Dr. Fanestil’s statement that Mr. Dardick

                                            8
should “focus on exercise and stress reduction (work is opposite of stress reduction)

to help remain healthy and functioning,” id. at 396. These statements do not explain

how the types of stress differ and therefore do not establish that exercise and job

stress were so different as to render Unum’s treatment of Mr. Dardick’s stress claim

arbitrary and capricious.

      Mr. Dardick also contends that Unum failed to take his anxiety and depression

into account, despite references to those conditions by Drs. Fanestil and Trujillo. But

as Dr. Bartlett observed, the record does not reflect that Mr. Dardick received

treatment for depression and anxiety, other than a brief trial of bupropion for

depression in April 2016. Mr. Dardick argues that Unum’s reliance on a lack of

treatment and on medical treatment notes indicating that he denied anxiety or

depression constitutes “cherry picking” of evidence supporting a denial of benefits.

Although Drs. Fanestil and Trujillo stated in August 2016 that Mr. Dardick’s

symptoms were related to anxiety and depression, those statements did not refute the

earlier contemporaneous medical treatment notes stating that Mr. Dardick denied

anxiety and depression, nor did they indicate that Mr. Dardick received treatment.

Therefore, we reject the cherry-picking argument.

      Mr. Dardick argues that Unum’s reliance on his lack of medication to treat

depression impermissibly failed to take into account his intolerance to medical

therapies. Ms. Grover documented Mr. Dardick’s intolerance of bupropion.

Mr. Dardick does not claim he tried other medical therapies. Moreover, Dr. Bartlett

discussed the claimed side-effects of Mr. Dardick’s medications, concluding that “the

                                           9
available medical notes do not support that the ongoing medications prescribed are

causing side effects that rise to the level of impairment.” Id. at 914.

      Finally, Mr. Dardick challenges Unum’s reliance on its medical reviewers,

Ms. Grover and Dr. Bartlett. He argues that neither of them had the necessary

training or experience in advanced cardiac disease or mental health conditions related

to cardiac disease to offer an opinion. He relies on 29 C.F.R. § 2560.503-1(h)(3)(iii),

which provides that where an adverse benefit decision “is based in whole or in part

on a medical judgment,” the consulting health care professional must have

“appropriate training and experience in the field of medicine involved in the medical

judgment.” We agree with the district court that “Unum did not make a medical

judgment as to whether [Mr. Dardick] suffered from coronary artery disease or other

cardiac conditions identified by Dr. Trujillo but rather determined that [his] medical

record failed to establish that [he] was incapable of performing his job despite these

conditions.” Aplt. App. at 1043. Cf. Cooper v. Metro. Life Ins. Co., 862 F.3d 654,

662 (8th Cir. 2017) (collecting cases holding “the proper inquiry in analyzing a claim

administrator’s compliance with § 2560.503-1 is ‘substantial compliance,’ rather than

‘technical compliance’”). Consequently, Unum’s benefits decision was not arbitrary

and capricious due to its reliance on the opinions of Dr. Bartlett and Ms. Grover.

      Mr. Dardick asserts that it was improper for Unum to have Ms. Grover review

his file a second time. He relies on 29 C.F.R. § 2560.503-1(h)(3)(v), which states

that a health care professional consulted for the underlying denial of benefits shall

not be the same individual consulted for the appeal from that denial. But it was not

                                           10
Ms. Grover, but Kim Walker, R.N., who initially reviewed the medical records, and it

was Ms. Walker’s review on which Unum relied to deny benefits initially. Moreover,

even if having Ms. Grover review the file twice was irregular, we agree with the

district court that having Dr. Bartlett also review the medical evidence for the second

appeal cured any irregularity.

      B. Characterization of Occupation

        Mr. Dardick alleges that Unum mischaracterized the nature of his work as a

vice president for Westcon, which was a procedural irregularity demonstrating

arbitrariness. The Plan provided that an employee’s occupation would be viewed “as

it is normally performed in the national economy, instead of how the work tasks are

performed for a specific employer or at a specific location.” Aplt. App. at 355-56.

        Unum initially characterized Mr. Dardick’s position as Systems Project

Manager, a sedentary position. During the first appeal, Mr. Byard determined that

Mr. Dardick’s position was more consistent with a Cloud Solution Manager.

Mr. Byard acknowledged Mr. Dardick’s report that “his occupation includes travel all

over the country and long work hours,” id. at 409, which was considered “to be a job

specific requirement . . . and not necessarily representative of the manner in which

the overall occupation is performed throughout the national economy,” id. at 411. As

normally performed, this position contemplated “an occasional level of local business

related travel [and] ongoing work hours in excess of a standard 40 hour work week.”

Id.



                                          11
      During the second appeal, Mr. Byard again revised his assessment of

Mr. Dardick’s position, finding his duties to be more consistent with the combined

position of Vice President of Product Development and Vice President of Marketing.

Addressing the travel requirements of this position, Mr. Byard again determined that

as normally performed, the position required “an occasional level of local/regional

business related travel.” Id. at 899. And again, “work hours in excess of a standard

40 hour work week” were to be expected. Id.

      Mr. Dardick maintains that Unum did not in good faith adjust its assessment of

his occupation as it received additional information. Rather, he argues that Unum

knew his job title from the beginning. But he cites to various documents that

demonstrate an evolving picture of his occupation. See Reply Br. at 16. For

example, his initial application submitted in August 2015 described his occupation

only as “VP, Westcon Cloud Services.” Aplt. App. at 48. Much later, on August 17,

2016, his former supervisor provided an extensive description of his work, id. at

862-65, which Mr. Byard relied on to revise his assessment of Mr. Dardick’s

occupational duties. Thus, we conclude that Unum’s consideration of additional

evidence to modify Mr. Dardick’s job description did not demonstrate bad faith.

      Although Mr. Dardick emphasizes that as he performed it, his position was

very stressful and required extensive travel, he does not challenge either the Plan

language providing that his occupation would be viewed as it is normally performed

in the national economy or that the normal occupational requirements did not include

excessive stress or extensive business travel. Mr. Dardick’s citation to Unum’s

                                          12
claims manual directing that various job requirements, including travel, be

considered when evaluating an employee’s position does not nullify the overall Plan

provision that an employee’s position be viewed as it is normally performed in the

national economy. For example, in evaluating the demands of the positions he

identified for Mr. Dardick, Mr. Byard did consider the travel demands for those

positions. Therefore, we conclude that Unum’s assessment of Mr. Dardick’s

occupation was not arbitrary and capricious.

   V.      CONCLUSION

        We affirm the district court’s judgment.


                                            Entered for the Court


                                            Allison H. Eid
                                            Circuit Judge




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