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

                           FOR THE TENTH CIRCUIT                      December 17, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
KENT D. MENGE,

             Plaintiff - Appellant,

v.                                                         No. 14-1210
                                              (D.C. No. 1:11-CV-00728-PAB-KLM)
AT&T, INC., a Delaware corporation;                         (D. Colo.)
AT&T UMBRELLA BENEFIT PLAN
NO. 1; AT&T OPERATIONS, INC.,
a Delaware corporation; THE AT&T
DISABILITY INCOME PROGRAM,

             Defendants - Appellees.


                            ORDER AND JUDGMENT*


Before HOLMES, BACHARACH, and McHUGH, Circuit Judges.


      Kent D. Menge appeals pro se from a district court order that upheld the denial

of his claim for short-term disability benefits under the Employee Retirement Income

Security Act (ERISA). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.



*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                     BACKGROUND

      Mr. Menge began working for AT&T in April 2007 as an account manager.

His “core responsibilities [were] to answer calls and emails from his [assigned]

customers,” and he was required to “develop[ ] and appl[y] knowledge of the

clients[’] business drivers and goals and [create] innovative solutions to address the

customers[’] need[s].” R., Vol. I at 73, 74.

      As an AT&T employee, Mr. Menge was covered by the company’s Umbrella

Benefit Plan No. 1. That plan includes a Disability Income Program (DIP), which

provides short-term disability benefits, here, for twenty-six weeks, when an employee

is “unable to perform all of the essential functions of [the] job or another available

job assigned by [AT&T] with the same full-time or part-time classification for which

[the employee is] qualified.” Id. at 315.

      Although AT&T funds and administers the DIP, it has delegated its claims

administration responsibilities to Sedgwick Claims Management Services. To fulfill

its responsibilities, Sedgwick operates an Integrated Disability Service Center (IDSC)

and a Quality Review Unit (QRU). AT&T gives Sedgwick “sole discretion to

interpret the [DIP]” and it insulates Sedgwick’s coverage and benefits determinations

from attack unless they are arbitrary and capricious. Id. at 347.

      On September 26, 2007, Mr. Menge was driving his car into the AT&T

parking lot, when he was rear-ended by another vehicle. He suffered a mild




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concussion and he developed neck pain. He underwent physical therapy for several

weeks but discontinued it in November 2007.

      In January 2008, Mr. Menge saw his primary-care physician, Kari Kearns,

M.D., for depression, insomnia and anxiety. He also submitted a short-term

disability claim under the DIP, as directed by his supervisor. The IDSC denied his

claim, and Mr. Menge returned to work in early February 2008. The QRU

subsequently denied Mr. Menge’s appeal, citing a progress note by Dr. Kearns

indicating that Mr. Menge was “overall feeling much better” and that his depression

was “slowly improving.” Id., Vol. VII at 140.

      Mr. Menge began seeing Evan Katz, D.C., for continuing neck pain. Dr. Katz

opined that Mr. Menge “had a loss of cervical lordosis,” “facet injury,” and a “slight

disc bulge with some disc herniation in [the] low back, which [would] cause some

significant pain with radicular-type symptoms.” Id. at 619. Orthopedist Elizabeth

Yurth, M.D., evaluated Mr. Menge and found cervical inflammation with pain, in

addition to concentration and memory deficits, headaches, and “probable mild

traumatic brain injury.” Id. at 410.

      In April 2008, Mr. Menge submitted another claim for short-term disability

benefits. The IDSC granted the claim, but for only a one-month period: April 18,

2008, through May 18, 2008. In denying benefits subsequent to that period, the

IDSC stated that it had reviewed medical records from Drs. Kearns, Katz, and Yurth,

and despite the presence of depression, “some suicidal ideations,” “distracted and


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delayed response[s] to questions,” “mild disc protrusion at C5-6,” and “capsular

distention [of the facet joints] at C3-4, C4-5, and C5-6,” there was no data or

documentation showing “significant emotional or cognitive deficits” or physical

limitations that would preclude the performance of Mr. Menge’s job duties.

Id. at 464.

       When his disability benefits expired, Mr. Menge took unpaid leave under the

Family and Medical Leave Act until July 10. He notified AT&T that he would be

unable to return to his job, and he then utilized vacation and personal days for the

remainder of the month. AT&T responded, granting him the opportunity at full

salary and benefits to search for another job until September 14, 2008. Mr. Menge

was unable to find a new position, and he was terminated on September 15, 2008.

       Mr. Menge continued consulting with various medical professionals. His

psychiatrist, Dr. Frederick Sakamoto, proffered an additional diagnosis of bipolar

disorder. He recommended that Mr. Menge not work due to problems with “memory,

concentration, focusing, depression, [and] anxiety.” Id. at 452. But Dr. Sakamoto

noted improvements in Mr. Menge’s mood and anxiety during July and August 2008

visits, and he later questioned whether Mr. Menge may have exaggerated answers to

cognitive questions.

       Mr. Menge also saw neuropsychologist Mark Zacharewicz, Ph.D., who opined

that Mr. Menge was “experiencing symptoms consistent with a persistent post

concussion syndrome and associated psychological adjustment issues.” Id. at 642.


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He conducted a four-day neuropsychiatric evaluation of Mr. Menge and concluded

that the results “clearly reflect[ed] that he is experiencing very significant levels of

psychological distress including significant levels of depression and anxiety.” Id. at

654-55. Dr. Zacharewicz further noted, however, that during the evaluation

Mr. Menge had shown “poor or variable effort” on one day due to family-health

problems and that there were some signs of “possible symptom exaggeration.” Id. at

653, 655. Further, he attributed some of Mr. Menge’s neuropsychological difficulties

to a medication change, pain, fatigue, psychological issues, and psychosocial issues.

In regard to Mr. Menge’s ability to work, Dr. Zacharewicz stated that “Mr. Menge’s

current neuropsychological presentation and his reported physical symptoms strongly

indicate that he is currently unable to be reliably employed in most competitive work

environments at this time [September 2008].” Id. at 656.

       In November, Mr. Menge appealed the denial of benefits. The QRU denied

the appeal in February 2009, finding that he had not established a qualifying

disability for the period of May 19, 2008, through July 10, 2008. In doing so, the

QRU reviewed Mr. Menge’s medical records from January to October 2008 and

obtained the opinions of five independent physician advisors that Mr. Menge was not

disabled.

       In 2011, represented by counsel, Mr. Menge filed suit against AT&T, the

Umbrella Benefit Plan and the DIP concerning the denial of benefits subsequent to




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May 18, 2008. The district court reviewed the QRU’s decision and concluded that

the decision was not arbitrary and capricious.

                                     DISCUSSION

                               I. Standards of Review

      “We review a plan administrator’s decision to deny benefits to a claimant, as

opposed to reviewing the district court’s ruling.” Holcomb v. Unum Life Ins. Co. of

Am., 578 F.3d 1187, 1192 (10th Cir. 2009). Because AT&T granted a third party,

Sedgwick, discretion to determine benefits eligibility and to construe the terms of the

DIP, we review the decision denying Mr. Menge benefits to determine only if it was

arbitrary and capricious. See Murphy v. Deloitte & Touche Grp. Ins. Plan, 619 F.3d

1151, 1157 (10th Cir. 2010). Under that standard, “there is no requirement that the

basis relied upon be the only logical one or even the superlative one.” Eugene S. v.

Horizon Blue Cross Blue Shield of N.J., 663 F.3d 1124, 1134 (10th Cir. 2011)

(internal quotation marks omitted). Rather, the decision need only be “reasonable

and made in good faith.” Id. at 1133 (internal quotation marks omitted).

      In deciding whether the decision to deny Mr. Menge benefits was arbitrary and

capricious, we must also take into account the fact that AT&T both funds and

administers the plan. See Cardoza v. United of Omaha Life Ins. Co., 708 F.3d 1196,

1202 (10th Cir. 2013). But such an inherent conflict of interest has little bearing in

this case, given that (1) the QRU relied on the medical opinions of independent

physician advisors in upholding the denial of benefits, and (2) the QRU was operated


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by Sedgwick, rather than AT&T. See Holcomb, 578 F.3d at 1193 (giving limited

weight to conflict of interest because plan administrator sought independent

examination of claimant and independent review of her records); Eugene S., 663 F.3d

at 1133 (observing that when “an insurer delegates its authority to review claims to

an independent third-party plan administrator[,] [s]uch a delegation can mitigate what

otherwise would be a dual-role conflict of interest”).1

                    II. Denial of Short-Term Disability Benefits

      Mr. Menge challenges the benefits decision on a number of grounds. First, he

claims that the neuropsychologist and the physiatrist who reviewed his case

“submit[ed] [in]accurate statements on [his] physical and mental conditions” because

they tried, but were unable, to teleconference with Dr. Yurth and Dr. Zacharewicz.

Aplt. Opening Br. at 3. But Mr. Menge fails to indicate how a teleconference would

have provided information different than what the independent physician advisors

reported following their review of his medical records. Further, a plan administrator

may reasonably rely on the opinions of its own doctors who have reviewed the


1
       To the extent Mr. Menge argues that he is entitled to a de novo standard of
review based on Colo. Rev. Stat. § 10-3-1116(3), he is mistaken. Although that
statute requires Colorado issued disability-benefit plans to include a de novo
review provision, the statute was enacted in August 2008—sixteen months after
Mr. Menge’s coverage began. Thus, even if the statute encompasses plans like
AT&T’s Umbrella Benefit Plan, the statute is not retroactive. See McClenahan v.
Metro. Life Ins. Co., 416 F. App’x 693, 696 (10th Cir. 2011); Mustain-Wood v. Nw.
Mut. Life Ins. Co., 938 F. Supp. 2d 1081, 1084-85 (D. Colo. 2013). Because we
conclude that the statute is inapplicable here, we need not decide whether it is
preempted by ERISA.


                                          -7-
claimant’s medical file but not consulted with the claimant’s treating physicians.

Davis v. Unum Life Ins. Co. of Am., 444 F.3d 569, 577 (7th Cir. 2006).

      Next, Mr. Menge argues that in other contexts he has been found disabled

“based upon the same medical records.” Aplt. Opening Br. at 3. Specifically, he

points out that the Social Security Administration awarded him disability-insurance

benefits and that the Department of Education discharged his student loan due to

disability. He also states that he obtained a personal-injury settlement for the injuries

he suffered in the car accident.

      But Mr. Menge’s social-security award did not occur until ten months after the

QRU denied his appeal. Thus, the award could not even have been considered by the

QRU as evidence of a disability under the DIP. Mr. Menge does not indicate when

he received the personal-injury settlement or when the Department of Education

discharged his student loan, and, based on our review of the administrative record,

those matters are absent from the record. “[I]n reviewing a plan administrator’s

decision under the arbitrary and capricious standard, the federal courts are limited to

the administrative record.” Murphy, 619 F.3d at 1157 (internal quotation marks

omitted).

      Mr. Menge also contends that the benefits denial is arbitrary and capricious

because the QRU “did not obtain a release or ‘return to work’ statements from any of

[his] medical providers,” and instead, it relied on the opinions of the independent

physician advisors. Aplt. Opening Br. at 7. But ERISA does not require plan


                                          -8-
“administrators automatically to accord special weight to the opinions of a claimant’s

physician[s].” Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003).

Indeed, plan administrators may, without explanation, “credit reliable evidence that

conflicts with a treating physician’s evaluation.” Id.

        Next, Mr. Menge maintains he was denied “a full and fair assessment of [his

disability] claims” because the independent physician advisors “cherry picked”

information in his medical records to find him not disabled. Aplt. Opening Br. at 7.

Granted, an administrator can act arbitrarily and capriciously by selectively

reviewing the administrative record in order to justify a decision to deny benefits.

See Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 118 (2008). But that did not happen

here.

        Specifically, the internal-medicine advisor acknowledged Mr. Menge’s

anxiety, neck pain, and concentration difficulties, but concluded that they were

insufficient “from an internal medicine standpoint to disable [him].” R., Vol. VII

at 696. The neuropsychologist advisor extensively recounted Mr. Menge’s medical

history and Dr. Zacharewicz’s test results, but observed, as did Dr. Zacharewicz, that

Mr. Menge’s neuropsychological difficulties were partially attributable to medication

changes, pain, fatigue, psychological issues, and psychosocial stresses, and that there

were effort problems and symptom exaggeration during testing. The psychiatrist

advisor noted Mr. Menge’s depression, anxiety, head injury, and suicidal ideation,

but he questioned the severity of those conditions given the evidence of symptom


                                          -9-
exaggeration, which was echoed by Dr. Sakamoto during a teleconference. The

chiropractor advisor recognized Mr. Menge’s neck pain, loss of cervical lordosis, and

muscle spasms, but concluded, based on Dr. Katz’s examination data, that Mr. Menge

was suffering from no more than “a moderate strain/sprain.” Id. at 708. Finally, the

physiatrist advisor referenced Mr. Menge’s cervical and lumbar spine issues and his

head injury, but he found no “specific diagnosis anatomically to explain”

Mr. Menge’s reports of pain. Id. at 719.

      We cannot conclude that the independent physician advisors selectively

reviewed Mr. Menge’s medical records so as to render the denial of benefits arbitrary

and capricious. An administrator’s decision to deny benefits need not be the most

logical decision available. Nance v. Sun Life Assurance Co., 294 F.3d 1263, 1269

(10th Cir. 2002). So long as the decision “falls somewhere on a continuum of

reasonableness—even if on the low end”—we cannot disturb it. Id. Because the

QRU’s denial of Mr. Menge’s short-term disability benefits was a reasonable

decision, it must stand.2


2
       Mr. Menge’s request that AT&T be ordered to pay long-term benefits is not
properly preserved in this court, as he has included no argument that long-term
benefits were arbitrarily and capriciously withheld. See Adler v. Wal–Mart Stores,
Inc., 144 F.3d 664, 679 (10th Cir. 1998) (“Arguments inadequately briefed in the
opening brief are waived.”). And even without waiver, we note that under AT&T’s
DIP, long-term disability benefits are available only if the claimant has “[r]eceived
the [m]aximum [d]uration of [s]hort-[t]erm [d]isability [b]enefits”—here, twenty-six
weeks. R., Vol. I at 325. Because we conclude that Mr. Menge was not arbitrarily
and capriciously denied short-term benefits, any argument in support of long-term
benefits would necessarily fail.


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                                   CONCLUSION

      The judgment of the district court is affirmed. Mr. Menge’s motion for leave

to proceed in forma pauperis is granted. Mr. Menge’s request for appointed appellate

counsel is denied. AT&T’s motion to submit its answer brief under seal, which was

provisionally granted on September 3, 2014, is hereby permanently granted. We note

too that on August 5, 2014, this court ordered that Volume VII of the Record remain

sealed.

                                                Entered for the Court


                                                Carolyn B. McHugh
                                                Circuit Judge




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