                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 10a0632n.06

                                       Nos. 08-5973 and 08-6369

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT

                                                                                           FILED
JANICE F. CURRY,                            )                                          Sep 20, 2010
                                            )                                    LEONARD GREEN, Clerk
     Plaintiff-Appellant/Cross-Appellee,    )
                                            )
v.                                          )                    ON APPEAL FROM THE
                                            )                    UNITED STATES DISTRICT
EATON CORPORATION and BROADSPIRE )                               COURT FOR THE WESTERN
SERVICES, INC.,                             )                    DISTRICT OF KENTUCKY
                                            )
     Defendants-Appellees/Cross-Appellants. )



Before:          BOGGS and COOK, Circuit Judges; COLLIER, Chief District Judge.*

          PER CURIAM. In this consolidated appeal, Janice F. Curry (“Curry”) appeals from two

orders of the district court: one granting summary judgment to Eaton Corporation and Broadspire

Services, Inc. (“Eaton” and “Broadspire,” respectively) in her ERISA denial-of-benefits claim, and

one denying her subsequent Motion to Alter, Amend, or Vacate that summary judgment order. The

appellees have appealed the district court’s decision to extend the time permitted to Curry to file her

notice of appeal.

          Because the district court did not abuse its discretion in analyzing the considerations relevant

to granting a motion to extend the time permitted for a party’s filing of a notice of appeal, and

because the appellees did not act arbitrarily and capriciously in determining that Curry had not met



          *
       The Honorable Curtis L. Collier, Chief United States District Judge for the Eastern District
of Tennessee, sitting by designation.
Nos. 08-5973 and 08-6369
Curry v. Eaton Corporation, et al.

the definition of “disabled” under Eaton’s long-term disability plan, we affirm the district court in

all respects.

                                                   I

        The Eaton Corporation Long Term Disability Plan (“Plan”) is a self-insured plan

administered by Eaton. Broadspire is the Plan’s claims administrator. Under the Eaton Plan, a

participant may be eligible for monthly long-term disability (“LTD”) benefits if the participant

cannot work due to an illness or injury, the participant has a covered disability as defined by the Plan,

and the participant is under the continuous care of a physician who verifies to the satisfaction of the

claims administrator that the participant is totally disabled.

        The Plan has a two-tiered definition of “covered disability”:

        You are considered to have a covered disability . . . under the Plan if:

        •       During the first 24 months of such disability, inclusive of any period
                of short term disability, you are totally and continuously unable to
                perform the essential duties of your regular position with the
                Company, or the duties of any suitable alternative position with the
                Company, and

        •       During the continuation of such total disability following the first 24
                months, you are totally and continuously unable to engage in any
                occupation or perform any work for compensation or profit for which
                you are, or may become, reasonably well fitted by reason of
                education, training or experience—at Eaton Corporation or
                elsewhere.

        The Plan further provides that:

                Objective findings of a disability are necessary to substantiate the
                period of time your physician indicates you are disabled. Objective
                findings are those that can be observed by your physician through
                objective means, not just from your description of the symptoms.

                                                  -2-
Nos. 08-5973 and 08-6369
Curry v. Eaton Corporation, et al.

       The Plan also requires periodic certification of the participant’s disability status, which can

include independent medical examinations and/or functional capacity tests.

       Curry, who lives in Edmonton, Kentucky, was employed by Eaton Corporation from October

17, 1985, until July 7, 1997, as an assembly line machine operator. In 1993 to 1994, she began

suffering low-back pain which, in mid-1996, led her to see neurosurgeon George Raque. Shortly

after seeing Dr. Raque, Curry applied for and was awarded short-term disability benefits under the

Plan with diagnoses of cervical-disc herniation, cervical- and lumbar-disc bulges, and fibromyalgia.

       Curry received short-term disability benefits under the Eaton Corporation Short Term

Disability Program from July 8, 1996, through January 3, 1997. She then applied for LTD benefits

under the first-tier criteria of the LTD Plan, and those benefits were approved effective January 4,

1997. Curry was thereafter approved for LTD benefits under the LTD Plan’s second-tier criteria.

Pursuant to a clause in the Plan requiring long-term disability claimants to apply for Social Security

Disability benefits, Curry applied for and was awarded benefits by the Social Security

Administration (“SSA”), which found her to have been totally disabled since June 27, 1996.

In response to a request from the Claims Administrator for an update of her condition, Curry

submitted a Resources Questionnaire dated June 4, 2003, and a Medical Provider List dated June 13,

2003. She indicated that she could cook, do dishes, do laundry, and dust, but that she did not drive

and instead was driven by her husband. She also indicated that she had trouble sleeping due to pain.

Curry stated that her last visit with Dr. Feltner was May 24, 2003, but that she could not remember

her last visit with Dr. Raque.



                                                -3-
Nos. 08-5973 and 08-6369
Curry v. Eaton Corporation, et al.

        On November 13, 2003, Vaughn Cohan, a neurologist, reviewed Curry’s claim file and

concluded that she was capable of sedentary work. On November 18, 2003, Russell Superfine, an

internal medicine specialist, reviewed Curry’s claim file, coming to the same conclusion as Dr.

Cohan. After receiving those reports, Broadspire arranged for an independent Functional Capacity

Evaluation (“FCE”) of Curry on December 18, 2003. Laura Goulbourne, a physical therapist,

reviewed the Cohan and Superfine reports, conducted an in-person evaluation of Curry, and

concluded that Curry qualified for the “sedentary” work category.

        In a letter dated April 23, 2004, Broadspire informed Curry that, based upon a review of the

records provided, she was capable of returning to work, she was not disabled under the “any

occupation” standard as defined by the LTD plan, and her LTD benefits would cease as of June 1,

2004. Curry formally appealed Broadspire’s decision to discontinue her benefits on October 18,

2004.

        By letter dated January 28, 2005, to Broadspire, Curry enclosed medical documentation and

an affidavit purporting to support her appeal. The affidavit, dated October 15, 2004, attested to

Curry’s work experience, her disability, her pain and side effects from pain medication, her

experience with the FCE, and her daily activities and treatment. The medical documentation

included updated records of her treating physicians: Dr. Feltner’s notes from December 27, 2003,

through October 14, 2004; Dr. Raque’s notes from July 30, 2004, through September 17, 2004; a

“residual functional capacity assessment” by Dr. Raque dated October 4, 2004; an evaluation by Dr.

Victor Tirabasso dated August 19, 2004; and a report by Curry’s own vocational expert, Stephen

Schnacke, dated November 29, 2004.

                                                -4-
Nos. 08-5973 and 08-6369
Curry v. Eaton Corporation, et al.

        Broadspire subsequently engaged physicians specializing in physical medicine, rehabilitation,

and neurosurgery to review Curry’s file. These physicians, like Drs. Cohan and Superfine before

them, concluded that the objective findings of Curry’s treating physicians were not sufficient to

support a finding of “disabled” under the Plan’s “any occupation” standard. In a letter dated April

20, 2005, Broadspire informed Curry that, after a review of the file, its original decision to

discontinue LTD benefits was upheld.

        By letter dated October 10, 2005, Curry requested reconsideration of Broadspire’s decision.

She again forwarded updated notes from her treating physicians, and again Broadspire had those

notes reviewed by its own doctors. After receiving her request for reconsideration, Broadspire sent

Curry’s file to Dr. Eddie Sassoon, a pain-management specialist; Dr. Sheldon Meyerson, a

neurosurgeon; Dr. Tamara Bowman, an internal-medicine specialist; Dr. Jamie Wancier, a

neurosurgeon; Dr. Lucy Cohan, a specialist in physical medicine and rehabilitation; and to two

physicians employed by the Medical Review Institute of America (“MRIoA”)—a neurologist and

an orthopedic surgeon—whose identities were kept confidential according to MRIoA policy. All

of the file reviewers came to the same conclusion as that reached earlier by Drs. Vaughn Cohan and

Russell Superfine: that insufficient objective evidence had been provided to meet the Plan’s

definition of “disabled,” because the evidence was consistent with a capacity to perform sedentary

work.

        Broadspire also had Curry’s file evaluated by Chau Nguyen-truong, a Broadspire “Field Care

Manager,” who conducted an Employability Assessment Report (“EAR”) and a Labor Market

Survey (“LMS”) to determine what job skills Curry possessed and whether there were positions

                                                -5-
Nos. 08-5973 and 08-6369
Curry v. Eaton Corporation, et al.

available in her local area that she could perform, given those job skills and her medical condition.

Nguyen-truong, using the reviewing doctors’ recommendation that Curry be limited to sedentary

work, identified several positions in the Louisville and Cincinnati areas that were open and that he

believed Curry could occupy. However, both the EAR and the LMS indicated that Louisville and

Cincinnati were both within a 50-mile radius of Curry’s home in Edmonton, Kentucky, when in fact

the former is approximately 125 miles away and the latter is approximately 225 miles away.

       Eaton, as plan administrator, issued a final determination dated January 6, 2006, upholding

Broadspire’s denial of continued LTD benefits after May 31, 2004. The letter indicated the

following basis for determination:

              Ms. Curry’s medical records do not support a finding of disability. Ms.
       Curry’s medical records reflect that she appears to suffer from a number of medical
       conditions, including chronic back pain, fibromyalgia, thyroid disease and
       depression.

              With respect to depression, the Disability Plan provides that, in order to be
       deemed disabled due to mental illness, the determination must be made by a
       psychiatrist. Ms. Curry’s records do not reflect any treatments by a psychiatrist.

              None of the records provide evidence of Ms. Curry’s inability to perform
       sedentary work.

              Although the medical records make reference to fibromyalgia, there are no
       physical findings or history documented to support or describe the diagnosis.

              With respect to her back pain, the reviewer notes that she has MRI evidence
       of degenerative disc disease, but that such degenerative disc disease occurs with
       aging. In addition, physical examinations related to back pain have been sporadic
       and mostly negative with only a few descriptions of limited range of motion. Ms.
       Curry has indicated that the pain is not significant enough to require surgery.

              Although Ms. Curry’s physicians have opined that she is unable to work, they
       do not provide any objective clinical medical evidence to support these opinions.

                                                -6-
Nos. 08-5973 and 08-6369
Curry v. Eaton Corporation, et al.

       Further, each medical reviewer of Ms. Curry’s information concluded that the
       objective information did not support a finding that Ms. Curry was unable to perform
       any occupation. A March 8, 2004 functional capacity evaluation reflected an ability
       to work at the sedentary level. The independent medical reviewers retained by the
       Plan Administrator concluded that, based on the available medical information, Ms.
       Curry would not be disabled from any occupation on June 1, 2004 . . . . The
       independent medical reviewers’ conclusions were based on their review of the
       medical records.

       Having exhausted her internal appeals, Curry filed suit on January 4, 2007, seeking a

reinstatement of her LTD benefits. On October 30, 2007, the district court granted summary

judgment to Eaton and Broadspire, holding that the basis for their January 6, 2006, denial letter had

not been arbitrary and capricious. On June 24, 2008, Judge Russell denied Curry’s motion, filed

under Federal Rule of Civil Procedure 59(e), to alter or amend his order granting summary judgment.

       On July 22, 2008, counsel for Curry apparently attempted to file a notice of appeal with the

Western District of Kentucky’s electronic docketing system, the use of which is mandatory in that

district. Although he received notification that his payment of the filing fee had been accepted, he

did not receive final confirmation that the filing itself had been accepted and, unbeknownst to him,

the notice of appeal was not docketed. The deadline for filing the notice of appeal expired on July

24, 2008. On July 29, 2008, Curry filed a Motion for Leave to File Notice of Appeal, which Judge

Russell granted on October 8, 2008. Eaton and Broadspire timely appealed that order.

Before us now are appeals from Judge Russell’s order granting summary judgment to Eaton and

Broadspire, his order denying Curry’s Rule 59(e) motion to alter or amend, and his order granting

Curry’s motion for leave to file notice of appeal.




                                                -7-
Nos. 08-5973 and 08-6369
Curry v. Eaton Corporation, et al.

                                                   II

       The sole basis for the appellees’ appeal in No. 08-6369 is their argument that the district

court abused its discretion in granting Curry’s Motion for Leave to File Notice of Appeal.

       Ordinarily, a party’s notice of appeal in a civil case must be filed with the district clerk within

30 days after entry of the judgment or order from which the party is appealing. Fed. R. App. P.

4(a)(1)(A). Compliance with the time limits of that rule is mandatory and jurisdictional. Budinich

v. Becton Dickinson & Co., 486 U.S. 196, 203 (1988); Searcy v. City of Dayton, 38 F.3d 282, 287

(6th Cir. 1994). However, a district court is empowered to grant an extension of up to thirty

additional days in which to file a notice of appeal if “a party so moves no later than 30 days after the

time prescribed by this Rule 4(a) expires” and “that party shows excusable neglect or good cause.”

Fed. R. App. P. 4(a)(5)(A). We review a district court’s grant of such an extension for abuse of

discretion. Baker v. Raulie, 879 F.2d 1396, 1399 (6th Cir. 1989).

       Where, as here, the motion for extension of time is filed after the time for filing the notice

of appeal has run, the motion may only be granted upon a showing of “excusable neglect;” showings

of “good cause” are relevant only when the motion is filed before the expiration of the initial appeal

period. Zack v. United States, 133 F.3d 451, 453 n.1 (6th Cir. 1998) (citing Fed. R. App. P. 4(a)(5)

advisory committee’s note (1979 Amendment)).

       “Neglect,” in this context, encompasses both simple, faultless omissions to act and omissions

caused by carelessness. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 388

(1993); see also United States v. Thompson, 82 F.3d 700, 702 (6th Cir. 1996). Whether such neglect

is “excusable” is fundamentally an equitable determination, taking account of all relevant

                                                  -8-
Nos. 08-5973 and 08-6369
Curry v. Eaton Corporation, et al.

circumstances surrounding the party’s omission. Pioneer, 507 U.S. at 395. These relevant

circumstances include (1) the danger of prejudice to the other party, (2) the length of the delay and

its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was

within the reasonable control of the movant, and (4) whether the movant acted in good faith. Ibid.

Should a district court find excusable neglect, the court must then examine the questions of prejudice

and bad faith; if there is any indication of bad faith or any evidence of prejudice to the appellee or

to judicial administration, the district court may then choose to exercise its discretion and deny the

requested extension. Thompson, 82 F.3d at 702 (citing Pioneer, 507 U.S. at 397-98).

       In this case, the district judge was well within his discretion in finding that the relevant

circumstances justified an extension of the deadline for notice of appeal. The district judge found

no significant danger of prejudice to the appellees, and indeed the appellees did not argue that any

such danger existed; moreover, the delay was for a relatively brief period of time, corrected as soon

as the appellant’s counsel discovered the error, and there was no sign of bad faith. Ultimately, the

appellees argue only that the appellant’s counsel should have understood that the response he

received from the district court’s electronic docketing system was not a confirmation of filing. We

reverse for abuse of discretion, however, only where we have a “definite and firm conviction that

the trial court committed a clear error in judgment.” United States v. City of Warren, 138 F.3d 1083,

1095 (6th Cir. 1998). Given that the district court is in a far superior position to understand the

challenges of those seeking to comply with its electronic docketing system, we lack such a

conviction that this presents a sufficiently “extraordinary” case for reversal.



                                                -9-
Nos. 08-5973 and 08-6369
Curry v. Eaton Corporation, et al.

                                                  III

                                                   A

       We “review de novo the decision of a district court granting judgment in an ERISA disability

benefit action based on an administrative record.” Glenn v. MetLife, 461 F.3d 660, 665 (6th Cir.

2006), aff’d, Metro. Life Ins. Co. v. Glenn, 128 S. Ct. 2343 (2008). If the plan administrator is

vested with discretion to interpret the plan, we review the administrator’s denial of benefits under

the “arbitrary and capricious” standard. Ibid. at 666 (citing Firestone Tire & Rubber Co. v. Bruch,

489 U.S. 101, 111-15 (1989)). Though highly deferential, this standard nevertheless requires “some

review of the quality and quantity of the medical evidence and the opinions on both sides of the

issues” and does not require us merely to rubber-stamp the administrator’s decision. McDonald v.

Western–Southern Life Ins. Co., 347 F.3d 161, 172 (6th Cir. 2003). Ultimately, we will uphold the

administrator's decision “if it is the result of a deliberate, principled reasoning process and if it is

supported by substantial evidence.” Glenn, 461 F.3d at 666 (quoting Baker v. United Mine Workers

of Am. Health & Ret. Funds, 929 F.2d 1140, 1144 (6th Cir.1991)). This is true regardless of whether

an equally rational interpretation is offered by the plan participant. Gismondi v. United Techs. Corp.,

408 F.3d 295, 298 (6th Cir. 2005).

       In pertinent part, the plan here at issue reads:

       You are considered to have a covered disability . . . under the Plan if:

       [. . .]

       During the continuation of such total disability following the first 24 months, you are
       totally and continuously unable to engage in any occupation or perform any work for


                                                 - 10 -
Nos. 08-5973 and 08-6369
Curry v. Eaton Corporation, et al.

       compensation or profit for which you are, or may become, reasonably well-fitted by
       reason of education, training or experience—at Eaton Corporation or elsewhere.

Once the Administrator makes a judgment as to whether a claimant has a “covered disability,” its

determination is entitled to deference unless it is arbitrary and capricious. That is, if Eaton’s

determination that an individual can perform any occupation “is the result of a deliberate, principled

reasoning process and if it is supported by substantial evidence,” it will not be disturbed. See Glenn,

461 F.3d at 666 (internal quotation marks and citation omitted).

                                                  B

       Notwithstanding the deference afforded a plan administrator under arbitrary-and-capricious

review, courts must evaluate potential conflicts of interest and consider them as factors in

determining whether the decision to deny benefits was arbitrary and capricious. Gismondi, 408 F.3d

at 298. For ERISA purposes, a conflict of interest is present when the same entity both funds the

plan and evaluates the claims. Glenn, 128 S. Ct. at 2348; DeLisle v. Sun Life Assur. Co. of Canada,

558 F.3d 440, 445 (6th Cir. 2009). In such cases, the arbitrary-and-capricious standard still applies,

but application of the standard should be shaped by the circumstances of the inherent conflict of

interest. Borda v. Hardy, Lewis, Pollard & Page, P.C., 138 F.3d 1062, 1069 (6th Cir. 1998).

Accordingly, for example, a long history of biased claims administration may render the conflict

more important, but where a claims administrator has taken “‘active steps to reduce potential bias

and to promote accuracy,’ the conflict ‘should prove less important.’” Helfman v. GE Grp. Life

Assur. Co., 573 F.3d 383, 392-93 (6th Cir. 2009) (quoting Glenn, 128 S. Ct. at 2351).




                                                - 11 -
Nos. 08-5973 and 08-6369
Curry v. Eaton Corporation, et al.

        Curry concedes that the plan document in this case “grants the plan administrator and/or its

claim administrator, Broadspire, the discretion to determine eligibility for benefits and to construe

any and all terms of the plan,” and that, as a consequence, the proper inquiry for the trial court was

whether the benefit determination at issue was arbitrary or capricious. Curry nevertheless argues that

the plan is both self-funded and retains the ultimate decision-making authority over whether to deny

or approve a claimant’s benefits, placing it in the position contemplated by our conflict-of-interest

rules. The district court agreed, but discounted any potential conflict because Curry had not provided

evidence that Eaton’s denial of LTD benefits was actually motivated by its alleged conflict of

interest.

        A lack of evidence that a purported conflict of interest motivated a particular benefits

decision at issue has, in the past, been sufficient in our circuit to avoid consideration of that conflict

in conducting arbitrary-and-capricious review. We have previously rejected an argument that the

apparent conflict of interest that exists when an administrator both decides whether an employee is

eligible for benefits and pays those benefits requires the conclusion that the administrator necessarily

has a conflict in a specific case. Cooper v. Life Ins. Co. of N. Am., 486 F.3d 157, 165 (6th Cir.

2007). In Cooper, the employer’s long-term disability plan made both the initial determination that

the employee did not qualify and, after referring her to independent consulting physicians, denied

her internal appeals. When Cooper asserted that a district court was required to take that conflict

into account when evaluating the plan administrator’s actions, the district court noted that an ERISA

plaintiff is required “not only to show the purported existence of a conflict of interest, but also to



                                                  - 12 -
Nos. 08-5973 and 08-6369
Curry v. Eaton Corporation, et al.

provide ‘significant evidence’ that the conflict actually affected or motivated the decision at issue.”

Ibid. We affirmed, pointing out that

        Cooper provided no evidence whatsoever that LINA’s denial of benefits was
        motivated by its alleged conflict of interest. She simply asserted and continues to
        assert that because LINA both decides whether an employee is eligible for disability
        benefits and then pays those benefits, LINA necessarily has a conflict. But such
        conclusory statements, without more, do not suffice to render the district court’s
        determination incorrect.

Ibid.

        As was the case in Cooper, Curry has merely asserted that the nature of the plan-

administrator relationship is sufficient to find a conflict of interest, without providing any indication

that the denial of his benefits specifically was motivated in any part by that conflict. We therefore

apply “ordinary” arbitrary-and-capricious review to this case.

                                                   C

        We turn now to the Plan’s treatment of the medical evidence in this case, beginning with the

evidence submitted by Curry herself.

                                                   1

        Generally speaking, a plan may not summarily reject the opinions of a beneficiary’s treating

physician, but must instead give reasons for adopting an alternative opinion. Elliott v. Metro. Life

Ins., 473 F.3d 613, 620 (6th Cir. 2006). Giving greater weight to a non-treating physician’s opinion

for no apparent reason lends force to the conclusion that a plan administrator’s decision is arbitrary

and capricious. Ibid. Plan administrators, however, “are not obliged to accord special deference to

the opinions of treating physicians.” Black & Decker Disability Plan v. Nord, 538 U.S. 822, 825


                                                 - 13 -
Nos. 08-5973 and 08-6369
Curry v. Eaton Corporation, et al.

(2003). Though ERISA and federal regulations under the Act “require ‘full and fair’ assessment of

claims and clear communication to the claimant of the ‘specific reasons’ for benefit denials[,] . . .

these measures do not command plan administrators to credit the opinions of treating physicians over

other evidence relevant to the claimant’s medical condition.” Ibid. (citing 29 U.S.C. § 1133; 29

C.F.R. § 2560.503-1 (2002)). To that extent, a lack of objective medical evidence upon which to

base a treating physician’s opinion has been held sufficient reason for an administrator’s choice not

to credit that opinion. See, e.g., Boone v. Liberty Life Assur. Co. of Boston, 161 F. App’x 469, 473

(6th Cir. 2005).

       The Plan provides that “[o]nce you are approved for benefits, you will be required to

periodically submit updated medical information regarding your continuing disability for benefit

payments to continue.” Under the heading “When Long Term Disability Benefits End,” the Plan

further indicates that “[i]f you have a covered disability and begin receiving long term disability

benefits, your benefits will end when . . . [y]ou no longer have a covered disability under the Plan,

as determined by the Claims Administrator . . . [or] [t]he first day for which you are unable to

provide satisfactory evidence of a covered disability.” As indicated above, this evidence must also

be “objective.”

       Curry argues on appeal that the record was “replete” with objective evidence of her

limitations, including (1) positive straight-leg-raising tests discussed by her treating physician, the

functional-capacity evaluator, and the pain-management specialist she saw at Spring Valley Hospital;

(2) her MRI results showing a cervical-disc herniation and disc bulges; (3) materials from her

neurologist, Dr. Raque, in which he concluded that Curry could stand or sit daily at a work station

                                                - 14 -
Nos. 08-5973 and 08-6369
Curry v. Eaton Corporation, et al.

for less than two hours, could not drive, and would be expected to miss five or more days of work

per month; and (4) findings of multiple physicians that she experienced muscle spasms and

tenderness. According to Curry, the appellees’ decision to terminate her long-term benefits was

arbitrary and capricious because they did not accord appropriate weight to her treating physicians’

opinions and objective findings of impairment, and the file reviewers that Eaton relied upon to

evaluate her claim did not address and explain their rejection of Curry’s treating physicians’

opinions.

       Under Elliott and Black & Decker, Eaton is not entitled to simply ignore the opinions

provided by Curry’s treating physicians, but it can resolve conflicts between those opinions and the

opinions of its own file reviewers if it provides reasons—including a lack of objective evidence—for

adopting the alternative opinions that are consistent with its responsibility to provide a full and fair

review of Curry’s claim. In its final decision letter, Eaton indicated that its determination to deny

Curry’s appeal was “based on the definition of disability in the Disability Plan, the need for

objective, clinical medical findings to support a finding of disability, a review of Ms. Curry’s

medical records, and the conclusion of the independent medical professionals retained by the Plan

Administrator to assist in making this determination.” It further noted that “[a]lthough Ms. Curry’s

physicians have opined that she is unable to work, they do not provide any objective clinical medical

evidence to support these opinions. Further, each medical reviewer of Ms. Curry’s information

concluded that the objective information did not support a finding that Ms. Curry was unable to

perform any occupation.” We conclude that this determination was not arbitrary and capricious.



                                                 - 15 -
Nos. 08-5973 and 08-6369
Curry v. Eaton Corporation, et al.

Curry’s evidence of her physical limitations comes from four sources: Dr. William Feltner, her

osteopath; Dr. George Raque, her neurologist; Dr. Victor Tirabasso, a pain-management specialist

she saw at Spring View Hospital; and her own affidavit. We discuss each in turn.

       The record contains two reports from Dr. Feltner, one dated September 23, 2002, and the

other dated June 22, 2003. Both reports include a diagnosis of fibromyalgia. On the former

occasion, Dr. Feltner’s findings included decreased range of motion in Curry’s back, while on the

latter occasion he described her as having “muscle tenderness/dysphoria.”

Broadspire’s initial peer review of Dr. Feltner’s findings was done by Dr. Russell Superfine, an

internal-medicine specialist, on November 13, 2003. Dr. Superfine reviewed the report of June 22,

2003, and Dr. Feltner’s notes of an office visit of May 24, 2003. Dr. Superfine’s notes acknowledge

that Dr. Feltner’s objective findings included muscle tenderness and dysphoria, but pointed out that

on May 24, 2003, “[h]er musculoskeletal exam revealed that she had normal range of motion.” Dr.

Superfine concluded that, while her diagnosis was fibromyalgia, the submitted physical and

diagnostic findings “would not support a functional impairment which would preclude the claimant

from performing the duties of any occupation.” Dr. Superfine indicated that Curry could at least

perform sedentary activities, with limitations that could not be determined from the materials

submitted, and advised that additional relevant documentation would include a complete physical

examination and a functional-capacity evaluation.

       Broadspire then had Dr. Feltner’s notes reviewed by Dr. Sheldon Meyerson, a neurologist,

as part of a comprehensive review Dr. Meyerson performed of Curry’s entire medical file. With

respect to the diagnosis of fibromyalgia specifically, Dr. Meyerson advised that:

                                               - 16 -
Nos. 08-5973 and 08-6369
Curry v. Eaton Corporation, et al.

       Fibromyalgia is a very difficult diagnosis to substantiate, usually requiring a
       rheumatologist, which is a specialty that does deal in this condition and delves
       deeply into the history and physical findings to substantiate that diagnosis. In the
       claimant’s case, the diagnosis was essentially mentioned several times by the
       primary care physician with no physical findings or significant history to support the
       diagnosis. She had myalgias and some muscle tenderness mentioned. There is no
       significant information regarding the fibromyalgia that would prevent her from
       performing any type of work in the records reviewed.

Dr. Feltner’s reports were also reviewed on November 9, 2005, by Dr. Tamara Bowman, an internal

medicine specialist and endocrinologist. Dr. Bowman indicated that Curry had been diagnosed with

fibromyalgia and given a Class 5 level of physical restriction by Dr. Feltner, but that “there is no

documentation of objective clinical findings to support this degree of impairment.” She further

noted that Curry

       has been noted on occasion to have some diffuse muscle tenderness, but there is no
       documentation of decreased range of motion, objective muscle weakness, signs of
       radiculopathy, sensory examination findings, joint deformity or effusion, or
       synovitis. Her gait is documented to be normal. There is no evidence of collagen
       vascular disease, rheumatoid arthritis, or other inflammatory arthritis in the
       claimant. There is no documentation of positive serologic markers of inflammation.
       . . . There is no documentation of objective physical examination findings,
       laboratory anomalies, or diagnostic study results to support a functional deficit in the
       claimant that would preclude work.

               . . . Therefore, from an internal medicine standpoint, there are insufficient
       objective clinical findings documented to support a level of functional impairment
       that would render the claimant unable to perform “any occupation” from 06/01/04
       onward.

               . . . From an internal medicine standpoint, there is no documentation of
       objective clinical findings to support any restrictions or limitations on the part of the
       claimant.




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Curry v. Eaton Corporation, et al.

       Broadspire also had Dr. Feltner’s records reviewed by an orthopedic surgeon as part of its

review of Curry’s final appeal.1 As part of the orthopedic surgeon’s review, he indicated that Curry

“has a diagnosis of fibromyalgia but none of her clinical exams mention multiple trigger points

which is a hallmark of this disorder. There is no record of an evaluation by a rheumatologist.”

       Taken together, the reviews of Dr. Superfine, Dr. Meyerson, Dr. Bowman, and the MRIoA

orthopedic provided the appellees with sufficient reason to discount the findings of Dr. Feltner.

While Dr. Feltner did provide objective findings to support his diagnosis under the Plan’s definition

by indicating that Curry had decreased range of motion and muscle tenderness, the reviewing

physicians’ reports address those findings head-on by pointing out that (1) Dr. Feltner’s office notes

dated May 24, 2003, indicated that Curry had a normal range of motion, and (2) the amount of

muscle tenderness, as documented, did not appear to be sufficient to restrict Curry from sedentary

work. Thus, Eaton did not arbitrarily ignore Dr. Feltner’s findings, but rather considered them in

light of contradictory conclusions that its own reviewers came to after the reviewers themselves took

into account the objective data.

       Dr. Raque first saw Curry on July 8, 1996, on referral from Dr. Feltner. At that time, Dr.

Raque’s notes indicate that Curry had a history of lower-back pain, but had recently been

experiencing more constant pains in her back and persistent pain in her neck and shoulder. However,

according to the doctor’s notes, “[s]he has a good range of motion of her neck without obvious


       1
         The orthopedic surgeon reviewer was an employee of the Medical Review Institute of
America (“MRIoA”), which Broadspire retained to conduct independent reviews. Consistent with
MRIoA’s policy, the orthopedic surgeon’s identity was kept confidential; neither Curry nor the
appellees were told his or her name.

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Curry v. Eaton Corporation, et al.

discomfort. Straight-leg raising test is negative to 90 degrees bilaterally, and she has good range of

motion of her back without discomfort.”

       Dr. Raque ordered an MRI exam for Curry, which apparently demonstrated a disc herniation

at the C6-7 level and a bulge at C5-6. On September 9, 1996, he reported that Curry had a “strong

desire to avoid surgery” and would not consider any invasive treatment, and that she “remain[ed]

disabled from the standpoint of work because of her cervical and lumbar disc disease.” On

November 11, 1996, he noted that Curry’s “exam remains non-focal. In particular there is no motor

deficit, reflex change or evidence of long track signs.” In terms of the possibility of her returning

to work, Dr. Raque wrote that “it is becoming more and more apparent that there is nothing we are

going to do that is going to get this woman in a shape that she could go back to work because of the

heavy nature of her job.” (emphasis added).

       On December 26, 1996, Dr. Raque filled out a “Disability Continuation Statement” for Eaton

in which he indicated that Curry had a diagnosis of cervicodorsal spondylosis, but that she had

improved and was ambulatory.          Further, Dr. Raque indicated in a “Physical Limitation

Questionnaire” on that same date that Curry could stand or walk for four hours at a time, eight hours

total per day, could sit for an unlimited amount of time, could frequently bend and occasionally

squat, kneel, climb, and reach.

       Curry’s next visit with Dr. Raque appears to have been on March 8, 1999, when the doctor

described her as “more or less the same.” On examination, she showed “an absent right Achilles

reflex and a positive straight leg raising test at 60º and decreased [range of motion] of her back.” At



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Nos. 08-5973 and 08-6369
Curry v. Eaton Corporation, et al.

some point thereafter,2 Dr. Raque filled out an “Attending Physician’s Statement that classified Curry

as having a Class 5 physical impairment, “severe limitation of functional capacity/incapable of

sedentary work.” On July 30, 2004, Dr. Raque examined Curry and found that “reflexes are 2+ and

equal. Motor testing is normal. Sensation is intact. She has no long track signs. She has positive

straight leg raising test on the left, negative on the right. Gait is normal.” Dr. Raque sent her for an

MRI of her lumbar spine, which was conducted on August 9, 2004, and found degenerative disc

disease and bulging discs in her lumbar spine.

        Dr. Raque reviewed the MRI results and, in a note dated August 12, 2004, indicated that the

findings might explain Curry’s symptoms of low-back pain and leg pain but that they were “certainly

not anything that is dangerous.” On a follow-up visit dated October 4, 2004, Dr. Raque conducted

a physical examination, and found her “reflexes [were] 2+ at the knees and 1+ at the ankles. There

[was] no clonus. Motor testing in the lower extremity [was] normal and sensation [was] intact.”

Also on October 4, 2004, Dr. Raque filled out a “Residual Functional Capacity Assessment” that

indicated Curry could stand daily at a work station for less than two hours, sit for less than two hours,

work with a sit or stand option with short breaks for less than four hours, and had various other

physical restrictions. However, no indication was given on this form of the objective bases for these

conclusions. Curry’s penultimate visit with Dr. Raque occurred on December 27, 2004, when she

was described as “more or less the same.” On physical examination, Dr. Raque’s notes read




        2
        The Attending Physician’s Statement is undated, but it indicates that the most recent date
Curry was treated was March 8, 1999.

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Curry v. Eaton Corporation, et al.

“reflexes are 2+ and equal. Motor testing is normal. Sensation is intact. She has no long tract signs.

Gait is normal. Straight leg raising test is negative.”

        Finally, Curry saw Dr. Raque on August 22, 2005, at which time she was again described as

“more or less the same.” At that time, she was again examined physically, with a physical exam

finding “reflexes are 1+ at the knees and ankles. There is no clonus. Motor testing is normal.

Sensation is intact. She has no long tract signs and she has a negative straight leg test at 90 degree[s]

bilaterally. Her gait is normal.” Interestingly, Dr. Raque’s notes also disclose that, on this occasion,

        [w]e discussed the possible return to work but apparently the plant she worked at is
        closed now. They replaced what she used to do with handling truck parts, therefore
        I do not think that she is able to go back to work. Even sedentary jobs will require
        prolong[ed] sitting which she is incapable of. I believe [it] is my opinion therefore
        based on reasonable medical probability that the patient will never return to work.

        Thus, Dr. Raque’s objective findings appear to have included MRI results disclosing a

cervical herniation in 1996, an additional MRI in 2004 that showed degenerative disc disease in her

lumbar spine, and a series of relatively unremarkable physical exam findings. Although Dr. Raque’s

work-limitation recommendations grew progressively more severe over the years, it is unclear what

these limitations were based on other than Curry’s subjective complaints of pain—which, under the

terms of the Plan, were insufficient to support a finding of disability.

        Broadspire’s reviewing neurologists appear to have considered the objective evidence relied

upon by Dr. Raque and come to a different conclusion. On November 18, 2003, neurologist Dr.

Vaughn Cohan discussed the notes of her most recent visit to Dr. Raque (that of July 14, 2003),

including findings relating to her reflexes, motor testing, straight-leg testing, and gait, and pointed

out that “[t]here is no evidence of impaired cognitive function or impaired function of the upper

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Curry v. Eaton Corporation, et al.

extremities and there is no evidence of problems with gait, coordination, or endurance for performing

work while seated at a desk.” Dr. Cohan indicated that Curry would be appropriately restricted to

sedentary work, but that she was not precluded from performing “any occupation.”

       Dr. Meyerson, in a comprehensive file review dated April 15, 2005, agreed. Dr. Meyerson

appears to have been provided with both MRI reports and all of the office notes submitted by Dr.

Raque (along with the notes of Curry’s other treating physicians). During a chronological recap of

Curry’s treatment, Dr. Meyerson points to Dr. Raque’s March 1999 findings that Curry had a

positive straight-leg-raising sign of 60 degrees and diminished range of motion in her back as being

“the first and just about the only significant physical findings in the entire review of the chart.” Dr.

Meyerson pointed out that Curry’s relatively infrequent visits to Dr. Raque demonstrated that there

was “no pattern of pain being severe enough to require frequent visits,” and that, generally, the

physical examinations had been negative. Having reviewed all the documents, Dr. Meyerson

concluded that the information did not support a functional impairment from “any occupation.”

       Curry’s neurology diagnoses were also addressed by Dr. Jaime Wancier in still another file

review, this one dated November 7, 2005. Dr. Wancier, who was also provided with Dr. Raque’s

notes, the MRI results, and various other portions of Curry’s file, generally did not address the bases

for her diagnosis; rather, Dr. Wancier appears primarily to have simply related Curry’s history of

treatment and concluded that the information provided did not preclude Curry from performing the

activities of a sedentary occupation. However, Dr. Wancier did make one pertinent observation with

respect to the MRI findings, noting that, while the August 2004 exam revealed degenerative disc

disease, stenosis, and disc bulges, those findings “are to be considered by many to be within normal

                                                 - 22 -
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Curry v. Eaton Corporation, et al.

limit[s] for a person of this age bracket. Review of the literature reveals that in MRIs of similar

findings, the overwhelming majority of patients were asymptomatic.”

       The final file review concerning Curry’s neurological diagnoses was performed by an MRIoA

reviewer. That reviewer also concluded that there was no documentation to support a finding of

disability, and that, based on the objective evidence, Curry should be able to perform sedentary work.

According to that reviewer, the MRI findings would not preclude Curry from working at a sedentary

occupation, as “[n]o evidence of a herniated disc is reported, and there is only mild to moderate

spinal stenosis. Neuroforaminal stenosis is present at only one level and reported as mild.”

       As was the case with her diagnosis of fibromyalgia, Curry’s neurological diagnoses appear

to have been addressed rationally by the reviewing physicians and, by extension, by Eaton. Although

a 1996 MRI demonstrated a herniated cervical disc, it does not appear that her complaints were of

neck pain; indeed, at the time of her 1996 MRI she was described as having a good range of motion

of her neck, and Dr. Raque’s later reports focused on her problems with her lower back. The more

recent MRI of the lumbar spine, meanwhile, appears to have shown some degeneration and bulging,

but, at least in one reviewer’s opinion, not more than might be expected for someone of the

claimant’s age. The other objective evidence, in the form of Dr. Raque’s physical exam findings,

appears not to have supported a finding that Curry was disabled from “any occupation” in that the

findings were mostly normal, or at least of unspecified significance. In its final denial letter, Eaton

concluded:

       With respect to [Curry’s] back pain, the reviewer notes that she has MRI evidence
       of degenerative disc disease, but that such degenerative disc disease occurs with
       aging. In addition, physical examination related to back pain have been sporadic

                                                - 23 -
Nos. 08-5973 and 08-6369
Curry v. Eaton Corporation, et al.

       and mostly negative with only a few descriptions of limited range of motion. Ms
       Curry has indicated that the pain is not significant enough to require surgery.

       Taking into consideration the file reviewers’ discussions of Dr. Raque’s findings, Eaton’s

conclusions are supported by substantial evidence and cannot be said to have been arbitrary and

capricious.

       In addition to seeing Drs. Feltner and Raque, Curry also saw Dr. Victor Tirabasso, of the

Spring View Hospital Pain Clinic, for a consultation on August 19, 2004. On that date, Dr.

Tirabasso conducted a physical examination, with the following findings:

       Examination of the back reveals no palpable bony abnormalities and no significant
       tenderness to palpation. The erector spinae muscles are symmetric and nontender.
       The sacroiliac joint on the left side is somewhat tender, but nontender on the right.
       Bowstring test is essentially negative bilaterally. Straight leg test causes pain at
       approximately 75 degrees on the right and approximately 65 degrees on the left.
       These symptoms are radicular in nature. Bowstring test is negative bilaterally.
       Strength against resistance to hip flexion, knee flexion and knee extension, and dorsi
       and plantar flexion show good symmetry and strength and no problems with range
       of motion or elicitation of symptoms. The knee joint reflexes are brisk and
       symmetric. Of note – the patient does have swelling in her left ankle. She had an
       ankle fracture with ORIF performed years ago and there is persistent swelling and
       decrease[d] range of motion in this ankle.

Dr. Tirabasso concluded that Curry had multilevel degenerative disc changes, ligamentum flavum

hypertrophy with lumbar facet hypertrophy, and L5-S1 bilaterial neuroforaminal stenosis.

       Broadspire had Dr. Tirabasso’s findings reviewed by Dr. Meyerson, who discussed the

findings and pointed out that the straight-leg sign “is not significant at the degrees [Dr. Tirabasso]

mentions.” Dr. Wancier’s review of November 7, 2005, agreed, indicating that Dr. Tirabasso “did

not mention any significant range of motion deficits.” Dr. Sassoon’s review of April 19, 2005 also

took Dr. Tirabasso’s findings into account, concluding that they revealed “no significant loss of

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Nos. 08-5973 and 08-6369
Curry v. Eaton Corporation, et al.

motion [or] strength of some severity as to preclude sedentary functional activity.” Again, these

conclusions would seem to go directly to the question of whether the objective evidence described

by Curry’s physician was sufficient to meet the standard for disability contained in the Plan, and

provide a rational basis for concluding that it did not.

       Curry also submitted an affidavit in support of her claim for continued disability, dated

October 15, 2004, in which she described her subjective experiences with her disability. By the

plan’s terms, however, such subjective complaints are specifically excluded from consideration in

evaluating whether a claimant is disabled. Therefore, Eaton was not required to consider the

affidavit, and was not arbitrary and capricious in according it little or no weight.

                                                  2

       In addressing the Plan physicians’ evaluations of her medical condition, Curry initially argues

that the reports of the independent medical reviewers are “suspect,” because they “were prepared by

employees of Broadspire,” and that in this particular case skepticism is particularly appropriate

because (1) the appellees provided these reviewers with copies of the prior denial letters and (2) the

reviewers did not address and explain their rejection of Curry’s treating physicians’ opinions. Curry

provides no analysis, however, of why providing a copy of the denial letter to the reviewing

physicians would be particularly damaging or would prevent these physicians from fairly evaluating

her medical status.

       Additionally, Curry appears to be simply wrong in terms of her assertion that the reviewers

did not address her treating physicians’ opinions. As indicated above, the reviewers appear to have

squarely discussed the objective findings of Curry’s treating physicians. While they may not have

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Nos. 08-5973 and 08-6369
Curry v. Eaton Corporation, et al.

specifically referred to particular comments opining as to appropriate restrictions for Curry, it seems

clear that the file reviewers came to their own conclusions based on the evidence they were provided

by the Plan for consideration, including the physical exam findings of Drs. Feltner, Raque, and

Tirabasso. To the extent that the limitations proposed by Curry’s treating physicians were based on

anything else, such as Curry’s own reports of pain, they were outside the scope of the materials that

the plan required to be considered.

       Curry also argues that Broadspire’s reviewing physicians should have been accorded less

weight because our circuit recognizes that “physicians repeatedly retained by benefits plans may have

an incentive to make a finding of ‘not disabled’ in order to save their employers money and to

preserve their own consulting arrangements.” Elliott, 473 F.3d at 620 (internal quotations marks and

citations omitted). This conflict is heightened, Curry argues, by the fact that none of the peer

reviewers actually examined her, but rather relied upon the record provided to them by Broadspire.

However, the Supreme Court has also said that a patient’s treating physician may also have an

incentive to make a finding of “disabled.” Black & Decker, 538 U.S. at 832. Indeed, in Black &

Decker the Supreme Court considered these dueling motivations before ultimately refusing to read

into ERISA cases a “treating physician rule” by which a plan administrator would be required to

accord a patient’s treating physician’s opinion special deference. Id. at 831-32. Moreover, we have

said that conclusory allegations of bias with respect to a plan-chosen reviewer, without statistical

evidence that the reviewer consistently opined the claimants were not disabled, could not permit a

conclusion that relying on that reviewer’s opinion was arbitrary and capricious. Kalish v. Liberty

Mut./Liberty Life Assur. Co. of Boston, 419 F.3d 501, 508 (6th Cir. 2005). Curry attempts to support

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Curry v. Eaton Corporation, et al.

her assertion of bias by pointing to the results of “a simple Westlaw search” that found multiple

examples of other cases in which the reviewing physicians hired by Broadspire provided peer

reviews. As Curry herself points out, however, “[i]t must be remembered that the above cases are

only the reported cases, and do not include any additional peer reviews requested of these physicians

by Appellees.” The question under Black & Decker and Kalish is not, after all, whether a given

reviewer has worked for the plan administrator before, but rather whether he or she is so consistent

in making a finding of “not disabled” that those findings become evidence of bias. Curry provides

no statistical analysis to put her “simple Westlaw search” into context; we have no idea if the cases

she cites represent a consistent trend on the reviewers’ part to find “not disabled,” or if they merely

reflect the fact that the reviewers have seen a large number of files.

       Curry contends that the file reviewers made critical credibility determinations without

examining her personally, but it is uncertain what credibility determinations would even be relevant

under the Plan’s definition of “disabled.” To the extent that a finding of “disabled” can only be

based on objective evidence, and subjective complaints of pain and physical limitation are not

considered, credibility would not seem to make a difference one way or another. In her opening

brief, Curry argues that “[s]ome of Appellants’ reviewers made credibility determinations regarding

Appellant’s complaints of pain based solely upon the medical records they reviewed, and reliance

upon such conclusions in the absence of a physical examination may be considered inadequate.”

However, she neither identifies the specific instances of such determinations, nor explains their

impact on her particular case. In her reply brief, she indicates that “Drs. Myerson [sic] and Wancier

suggested that the objective medical findings did not support the symptoms reported by Curry and

                                                - 27 -
Nos. 08-5973 and 08-6369
Curry v. Eaton Corporation, et al.

her physicians, apparently making credibility determinations without having examined” her. This

may be true, insofar as the doctors’ conclusion that the objective medical findings did not support

the symptoms reported by Curry could lead one to believe that they considered her subjective

complaints incredible, but such a credibility finding is merely incidental under the plan at issue.

Regardless of whether the reviewing physicians believed that the discrepancy between objective and

subjective evidence was due to Curry’s deceit or, for example, a dearth of testing, the plan only asks

whether sufficient objective evidence exists to support a finding of “disabled.” Nothing in the record

indicates that Eaton, Broadspire, or any of the reviewing physicians relied upon a credibility

determination at all in coming to that conclusion.

       Curry additionally argues that “the two initial in-house reviews [by Drs. Cohan and

Superfine], the Functional Capacity Evaluation, and the in-house vocational reports were all prepared

by individuals provided select information,” effectively accusing the appellees of “cherry picking”

her file in the hopes of obtaining favorable reports from their reviewers. An administrator acts

arbitrarily and capriciously when it “engages in a ‘selective review of the administrative record’ to

justify a decision to terminate coverage.” Metro Life Ins. Co. v. Conger, 474 F.3d 258, 265 (6th Cir.

2007) (quoting Moon v. Unum Provident Corp., 405 F.3d 373, 381 (6th Cir. 2005)). On this point,

however, her brief is somewhat confusing. For example, she complains that “[t]here is no indication

that Ms. Goulbourne [the FCE examiner] received any medical documentation from Appellant’s

physicians which included their restrictions as to sitting and standing or any MRI results.” However,

the MRI of Curry’s lower back and the restrictions on sitting and standing that she appears to



                                                - 28 -
Nos. 08-5973 and 08-6369
Curry v. Eaton Corporation, et al.

reference were produced after the FCE and the reviews of Drs. Cohen and Superfine. Moreover, as

the district court pointed out,

        [w]hile none of the peer reviewers physically examined Curry, each physician
        reviewed all of the documentation submitted to date in the case, and in their
        opinions they all list and describe the data they used to reach their conclusions.
        After each review step Curry had the opportunity to submit additional medical
        documentation to support her claim, and Broadspire never denied Curry’s requests
        for extensions to submit documentation.

Curry v. Eaton Corp., No. 1:07CV-5-R, 2007 WL 3231553, at *10 (W.D. Ky. Oct. 30, 2007).

        Finally, Curry argues that her Functional Capacity Evaluation, performed after a personal

examination by Laura Goulbourne, was flawed in that it failed to test Curry’s ability to function over

the course of an entire day, “much less an entire work week,” and that it did not take into

consideration Curry’s education, training, and mental health. However, there is nothing in the Plan’s

definition of “disability” that requires any kind of prolonged testing of a claimant’s physical

capacities, nor did it appear that a complete vocational assessment was the point of the FCE. Rather,

the burden of producing objective evidence under the plan was on Curry; the FCE results were used

in conjunction with the analysis provided by the reviewing physicians to conclude that the totality

of the objective evidence available did not demonstrate a disability.

                                                  D

        Curry next argues that the plan administrator acted arbitrarily and capriciously by failing to

address the disability findings made by the Social Security Administration.

In Bennett v. Kemper National Services, Inc., we indicated that

        if the plan administrator (1) encourages the applicant to apply for Social Security
        disability payments; (2) financially benefits from the applicant’s receipt of Social

                                                - 29 -
Nos. 08-5973 and 08-6369
Curry v. Eaton Corporation, et al.

        Security; and then (3) fails to explain why it is taking a position different from the
        SSA on the question of disability, the reviewing court should weigh this in favor of
        a finding that the decision was arbitrary and capricious.

514 F.3d 547, 553 (6th Cir. 2008). The Bennett court, in turn, was relying on Glenn, 461 F.3d at

667-68. According to Glenn, the rationale for according this factor any weight is that it serves as a

form of quasi-estoppel:

        The grant of social security disability benefits . . . brings the case within the
        penumbra of the doctrine of judicial estoppel–that if a party wins a suit on one
        ground, it can’t turn around and in further litigation with the same opponent repudiate
        the ground in order to win a further victory. . . . If we reflect on the purpose of the
        doctrine, which is to reduce fraud in the legal process by forcing a modicum of
        consistency on a repeating litigant, we see that its spirit is applicable here. To lighten
        the cost to the employee welfare plan of Ladd’s disability, the defendants encouraged
        and supported her effort to demonstrate total disability to the Social Security
        Administration . . . . To further lighten that cost, it then turned around and denied
        that Ladd was totally disabled . . . . In effect, having won once the defendants
        repudiated the basis of their first victory in order to win a second victory.

Ibid. (quoting Ladd v. ITT Corp., 148 F.3d 753, 756 (7th Cir. 1998)) (citations omitted by 6th

Circuit).

        Under the Plan, a participant’s “monthly long term disability benefit from the Plan for any

period of disability is reduced by the total amount[] of . . . [a]ny disability and/or old age benefits

for which you are eligible under the federal Social Security laws . . . .” The plan requires participants

to apply for Social Security benefits, to re-apply if Social Security denies the initial application, and

to appeal if a re-application is denied. If a Plan beneficiary does not submit satisfactory evidence

that she applied for Social Security benefits, her long-term disability benefits are reduced by an

estimate of the amount she would be eligible to receive.



                                                  - 30 -
Nos. 08-5973 and 08-6369
Curry v. Eaton Corporation, et al.

       Janice Curry did, in fact, apply for Social Security disability benefits, and was eventually

granted disabled status by the Social Security Administration on March 27, 1998. According to the

Administrative Law Judge who decided Curry’s appeal after her original applications were denied,

Curry was suffering from bipolar disorder, as well as degenerative-disc disease with chronic back

pain and sciatica. These ailments were considered “severe” under the Social Security Act.

Additionally, the ALJ found that Curry’s impairments prevented her from sustaining even sedentary

work on a full-time basis, that she was unable to perform her past relevant work, that she did not

have transferable skills to perform other work within her physical and mental functional capacity,

and that, based on her residual functional capacity and vocational factors, there were no jobs existing

in significant numbers that she could perform.

       After Curry was awarded benefits by the SSA in 1998, Eaton benefitted financially; in

addition to reducing Eaton’s prospective financial burden under the terms of the Plan, it demanded

and received reimbursement totaling $9,301.81 of disability benefits previously paid to Curry. There

appears to be no explanation in any of the appellees’ denial letters to Curry regarding decision to take

a different position on her disability from that adopted by the SSA; therefore, under Bennett, we

“should weigh this in favor of a finding that the decision was arbitrary or capricious.”

       Given that we weigh the failure to explain the decision, however (as opposed to the failure

being arbitrary or capricious per se), we may give it greater or lesser weight, depending on the

circumstances. In particular, it is notable that Bennett itself involved a situation in which a woman

with multiple sclerosis was denied disability status by a claims administrator under the any-

occupation standard less than a month before the Social Security Administration determined that she

                                                 - 31 -
Nos. 08-5973 and 08-6369
Curry v. Eaton Corporation, et al.

was disabled within the meaning of the Social Security Act. In Glenn, meanwhile, the claimant was

told that her long-term disability benefits were to be terminated less than two years after she had,

with the plan’s help, succeeded in obtaining Social Security disability benefits. Given that the

purpose of weighing a failure to explain a plan’s decision to take a contrary position from the SSA

is to prevent it, as an interested party, from effectively committing fraud on the court by taking

inconsistent positions to minimize its financial exposure, it makes perfect sense that a court should

weigh an unexplained inconsistency heavily when those positions are taken in quick succession.

        In this case, however, the contrast between the Plan’s encouragement of Curry’s Social

Security claim and its subsequent denial of benefits is not nearly as stark, because six years elapsed

from the time the SSA awarded benefits before Broadspire discontinued Curry’s long-term disability

benefits. Taking into consideration the quasi-estoppel nature of the rationale at issue, it seems

unlikely that a plan would encourage a claimant to apply for Social Security disability benefits, bide

its time for six years while paying its own share of disability benefits, and then cut those benefits off

for no reason. More likely, it would seem, is the possibility that a 1998 decision as to a claimant’s

disability is simply not very relevant with respect to a 2004 decision on the same issue, particularly

when numerous reports have been compiled in the interim.

        Because a previous Social Security disability determination is a factor to be weighed, and not

evidence of arbitrariness per se, and because the appellees in this case obtained a significant amount

of new information about Curry’s disability from numerous sources, we therefore consider Curry’s

SSA benefits determination to be a factor in her favor, but not a particularly significant one.



                                                 - 32 -
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Curry v. Eaton Corporation, et al.

                                                  E

       Curry’s final argument with respect to the district court’s decision on summary judgment is

that Eaton acted arbitrarily and capriciously in denying her long-term benefits by relying in part upon

two in-house vocational reports, an Employability Assessment Report and a Labor Market Report,

that in turn were based on a limited subset of the medical information available at the time and made

significant mistakes as to the geographic area in which Curry lived.

       The district court explained that Curry’s points as to these two reports were well-taken, and

that a determination to deny benefits based on them would have been arbitrary and capricious.

However, the court concluded,

       . . . it appears [to] the Court that the EAR and LMS are meant as aids for Plan
       participants whose benefits are denied or discontinued, and who must therefore
       reenter the work force. The EAR and LMS were not prepared by a medical
       professional, and therefore would not have assisted the Defendants in reaching a
       conclusion regarding Curry’s disability. For these reasons, the inaccurate LMS and
       EAR are not determinative of the Court’s decision here.

Curry, 2007 WL 3231553, at *11. Curry attempts to escape the district court’s logic by pointing out

evidence that Broadspire was awaiting these reports before making its initial determination to

terminate benefits, and immediately terminated Curry’s benefits when the reports were received.

The record pages that Curry cites for support of this argument do contain a note dated April 21,

2004, by Isabel Venkatesan, the Claims Examiner, stating that “CE contacted Chau Nguyen-truong,

FCM assigned to do LMS to obtain info on LMS . . . of employers contacted who had any openings

available now. CE needs this info to be able to finish reviewing if EE is able to work or not.”




                                                - 33 -
Nos. 08-5973 and 08-6369
Curry v. Eaton Corporation, et al.

       As indicated above, however, our circuit merely requires that a plan offer a reasoned

explanation, based on the evidence, for its judgment that a claimant was not “disabled” within the

plan’s terms. Elliott, 473 F.3d at 617. The plan’s terms do not require Eaton to identify a particular

position that a claimant might fill before it determines that the claimant is not disabled, much less

that such a position exists in a given geographic area. To that extent, even if the Claims Examiner

had been waiting for the LMS results, there is no link between the conclusions contained therein and

the basis for determining Curry’s disability status.

       Moreover, the actual language of the LMS seems to support the district court’s interpretation.

The LMS performed by Nguyen-truong concluded that “[s]ince Ms. Curry is released to any

occupation within the Sedentary level, she should be able to do the following occupations: Cashier,

Assembler, Stringing-Machine Tender, Label Pinker, Bander Hand, Plastic-Design Applier and any

other appropriate positions that fall within her restrictions.” Thus, the LMS does not indicate that

the specific positions listed are the only ones that Ms. Curry could perform; rather, they are examples

of positions falling within the “sedentary level.” Because the Plan does not require the identification

of specific jobs within a claimant’s geographic area, their failure to do so does not render their

decision arbitrary or capricious here, in a situation where they have obtained through proper sources

a determination that the claimant can perform a broad range of jobs (i.e. sedentary work) and the

specific jobs listed are merely illustrations of what a claimant could perform.

       Curry further argues that the vocational reports prepared by Broadspire did not take into

account her education, training, or experience. She reasons that, because the Plan’s definition of

“covered disability” requires her to be “totally and continuously unable to engage in any occupation

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Curry v. Eaton Corporation, et al.

or perform any work . . . for which you are, or may become, reasonably well fitted by reason of

education, training or experience—at Eaton Corporation or elsewhere,” the Plan abused its discretion

when it denied her benefits without demonstrating that the jobs it believed her capable of were

available to someone with her education, training, and experience. In support of this proposition,

she points to the report of her own vocational consultant, Stephen Schnacke, who reviewed the notes

of Drs. Raque and Feltner, the FCE, the EAR, and the LMS. Schnacke’s report, dated December 2,

2004, concludes that (1) Curry could not perform “clerical” work, as she had never done so in the

past; (2) Edmonton, Kentucky is not within fifty miles of Louisville, Kentucky or Cincinnati, Ohio;

(3) Curry’s treating physicians’ assessments indicate that she would be precluded from “any kind of

full time employment;” (4) any gainful employment compatible with Curry’s vocational profile

would require that she attend work all day, nearly every day, which would be inconsistent with the

conclusions reached by Curry’s treating physicians and the results of the FCE; (5) the specific jobs

identified in the LMS did not exist in significant numbers in Curry’s area, and some of them were

not typically classified as sedentary; and (6) the assessments of functioning by Curry’s treating

physicians precluded the performance of the jobs identified in the EAR and the FCE.

       While Curry is correct that the Plan does specify that an occupation must be commensurate

with a claimant’s education, training, and experience, Broadspire appears to have taken those

characteristics into account when evaluating whether the claimant was disabled. The EAR and the

LMS, flawed as they were in their geographic scope, indicated that the assessor, Chau Nguyen-

truong, performed a “Transferable Skills Analysis” that included a computerized transferable skills

analysis application and a “transferability of work skills” worksheet. The report indicates that

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Nos. 08-5973 and 08-6369
Curry v. Eaton Corporation, et al.

“[t]hese vocational tools have been utilized to identify occupations that are feasible and within the

scope of Ms. Curry’s physical/functional capabilities and vocational background. The occupations

identified in this Transferable Skills Analysis will be further analyzed to determine their

appropriateness in regards to wage and location.” (emphases added). Thus, the occupations

identified by the EAR were appropriate given Curry’s education, training, and experience. Nguyen-

truong continued, “Ms. Curry’s employment experiences and transferable skills are good due to that

fact that she had been working in the production works and possesses a valid driver’s license. Her

employment history is consistent.” Although, as indicated above, Broadspire’s reports erred in

finding specific examples of sedentary work within Curry’s geographic region, it is nevertheless

clear that she was reasonably well fitted for the type of work they exemplified by her transferable

skills. Considering that “sedentary” work is an extremely broad category (as is “production work”),

appellees were not arbitrary and capricious in concluding that Curry’s education, training, and

experience qualified her to perform at least one kind of sedentary occupation. To the extent that her

vocational expert concluded otherwise, he appears to have been relying solely on the conclusions of

Curry’s treating physicians rather than on those of Broadspire’s reviewing physicians. For the same

reasons that Broadspire was entitled to discount the conclusions of Drs. Raque and Feltner, it was

also entitled to discount the conclusions of a vocational expert that relied solely on those conclusions

for information regarding the nature and extent of Curry’s impairments.




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Curry v. Eaton Corporation, et al.

                                                    F

        The appellees have offered a reasoned explanation, based on the evidence, for their judgment

that Curry was not “disabled” within the Plan’s terms. In examining the reports of the reviewing

physicians upon which the appellees relied, it appears that those reviewing doctors accepted the

objective findings of Curry’s treating physicians, came to a different conclusion as to their meaning,

and discussed their reasons for disagreeing with the treating physicians to the extent necessary to

satisfy our law. Although the appellee’s encouragement of Curry to apply for Social Security

benefits six years earlier weighs slightly in her favor, this is insufficient to outweigh the fact that she

did not produce the necessary objective evidence of an inability to perform “any employment” to

qualify as disabled under the Plan. The appellees were therefore not arbitrary and capricious in

denying continuation of her long-term benefits.

                                                   IV

        Finally, we address Curry’s appeal of the district court’s denial of her Rule 59(e) motion to

alter or amend its judgment. We generally review the denial of such a motion for an abuse of

discretion. Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 613 (6th Cir. 1998). When, as

here, the Rule 59(e) motion seeks review of a grant of summary judgment, however, we apply a de

novo standard of review. Ibid.

        “Motions to alter or amend judgment may be granted if there is a clear error of law, newly

discovered evidence, an intervening changing in controlling law, or to prevent manifest injustice.”

GenCorp, Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999) (internal citations



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Curry v. Eaton Corporation, et al.

omitted). Curry argues that the basis for her motion is “to correct clear errors of law and to prevent

a manifest injustice.”

       The “clear errors” of which Curry complains, however, seem to be identical with the issues

she raises in her appeal of the district court’s grant of summary judgment. Indeed, her initial brief

on appeal does not even discuss the denial of her Rule 59(e) motion separately, and her reply brief

contains no issue or analysis substantively different from her appeal of the summary judgment

decision. For the same reasons that the district court did not err in granting summary judgment to

the appellees, therefore, it also did not err in denying Curry’s motion to alter or amend its judgment.

                                                  V

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




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