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

                             FOR THE TENTH CIRCUIT                            September 26, 2018
                         _________________________________
                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
MICHAEL GREEN,

      Plaintiff - Appellant,

v.                                                             No. 17-1383
                                                      (D.C. No. 1:16-CV-02366-RBJ)
LIFE INSURANCE COMPANY OF                                       (D. Colo.)
NORTH AMERICA,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, SEYMOUR, and HOLMES, Circuit Judges.
                   _________________________________

       Michael Green brought this action against Life Insurance Company of North

America (“LINA”), alleging that LINA incorrectly denied his claim and his subsequent

appeals for long-term disability benefits under the Employee Retirement Income Security

Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq. After reviewing the administrative

record, the district court affirmed LINA’s denial of benefits. Mr. Green appeals the

district court’s order, arguing that (1) his pre-existing condition did not cause his long-

term disability and that (2) LINA impermissibly rewrote Green’s plan to deny him long-




       *
         This order and judgment is not binding precedent, except under the doctrines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.
term benefits. We examine these arguments after performing our own review of the

administrative record, and accordingly affirm.

                                                 I.

       Michael Green was a truck driver for McLane Company, Inc. (“McLane”). In

December 2014, Mr. Green began experiencing cloudy and foggy vision. Aplt App. at

245. He visited Dr. Kenneth Van Amerongen, who diagnosed Mr. Green with posterior

vitreous detachment (“PVD”) in his right eye. Id. After concluding that Mr. Green had

no bleeds or tears in his eye, Dr. Amerongen sent Mr. Green back to work,

recommending that he see a retinal specialist if his condition worsened or failed to

improve. Id.

       On February 25, 2015, Mr. Green saw Dr. Justin Kanoff, a retina specialist, who

diagnosed Mr. Green with macula-off retinal detachment of the right eye. Id. at 916.

After three unsuccessful surgeries to correct this condition, Mr. Green suffered

permanent vision loss, rendering him unable to work as a truck driver. Green v. Life Ins.

Co. of N. Am., No. 16-cv-02366-RBJ, 2017 WL 4337675, at *1 (D. Colo. Oct. 30, 2017).

       McLane provides its employees a group disability plan administered by LINA

(“the Plan”). Aplt. App. at 12. LINA is both the administrator and “fiduciary for the

review of claims for benefits under the Plan.” Id. at 45. This gave LINA the “authority,

in its discretion, to interpret the terms of the Plan, . . . to decide questions of eligibility for

coverage or benefits under the Plan; and to make any related findings of fact.” Id.




                                                2
       The parties agree that Mr. Green would be entitled to LTD benefits for his

vision loss if not for the Pre-Existing Condition limitation, which is at issue in this

appeal. This limitation states:

       We will not pay for benefits for any period of Disability caused or
       contributed to by, or resulting from, a Pre-existing Condition. A ‘Pre-
       existing Condition’ means any Injury or Sickness for which you
       incurred expenses, received medical treatment, care or services
       including diagnostic measures, or took prescribed drugs or medicines
       within 3 months before your most effective date of insurance.

Id. at 22.

       After the period for Mr. Green’s short-term benefits expired and it became

clear that he would be unable to return to work, his claim was transferred to the LTD

benefits claim department for evaluation. Id. at 177. LINA denied Mr. Green’s

claim for LTD benefits based on the following:

       You were treated with Dr. Amerogen [sic] . . . on December 4, 2014
       reporting cloudy and foggy vision. Dr. Amerogen diagnosed you with
       PVD (Posterior Ventrous [sic] Detachment).

       The information outlined above falls within the pre-existing time frame
       and is related to your current disability, and therefore your claim has
       been denied.

Id. at 483.

       Mr. Green submitted an administrative appeal to LINA. He produced medical

documentation from Dr. Kanoff noting that “[w]hile a posterior detachment is

certainly a risk factor for developing a retinal detachment, [PVD] was not the

ultimate cause of [Mr. Green’s] visual loss.” Id. at 916. On March 3, 2016, LINA

denied Mr. Green’s appeal, stating:


                                            3
      Based on the review of all medical information reviewed, it was
      determined by [Dr. Sami Kamjoo, LINA-hired independent peer
      reviewer,] that Mr. Green’s visual loss was due to the macula-off retinal
      detachment which he was diagnosed with on February 25, 2015. The
      posterior vitreous detachment that he developed on December 4, 2014,
      was highly likely to have caused a retinal tear and was the initial event
      that led to a retinal tear which subsequently led to the development of
      the retinal detachment and vision loss.

Id. at 1108.

      Mr. Green then requested a second appeal in accordance with his rights under

ERISA. He provided LINA with a report authored by Dr. Ronald Wise, who found

that PVD “was not the cause of Mr. Green’s vision loss in his right eye, but rather

[was] an event prior to presumably the retinal tear, which to a reasonable degree of

medical probability led to the rhegmatogenous retinal detachment.” Id. at 1119. Dr.

Wise noted that PVD is not “listed as a risk factor for rhegmatogenous retinal

detachments in the [American Academy of Ophthalmology] literature reviewed.” Id.

Mr. Green also provided another letter from Dr. Kanoff, who stated that “I read the

previous denial letter, and I have to strongly disagree with its conclusions . . .

posterior vitreous detachment was not the cause of his vision loss; the retinal

detachment was the cause of the patient’s vision loss.” Id. at 1145. The letters

notwithstanding, LINA denied Mr. Green’s second appeal, holding:

      [Dr. George Yanik, LINA-hired independent peer reviewer,] opined the
      macula-off retinal detachment diagnosed on February 25, 2015 was
      caused or contributed to by the posterior vitreous detachment diagnosed
      on December 4, 2014. Retinal detachments frequently begin with a
      posterior vitreous detachment which allows the vitreous gel to separate
      from the retina causing a retinal tear. This tear allows vitreous fluid to
      enter causing an eventual detachment of the retina.


                                            4
Id. at 1166. After the district court denied Mr. Green’s appeal, he appealed to this

court.

                                                II.

         On appeal, we review “the plan administrator’s decision to deny benefits to a

claimant, as opposed to reviewing the district court’s ruling.” Foster v. PPG Indus.,

Inc., 693 F.3d 1226, 1231 (10th Cir. 2012) (citation and internal quotation marks

omitted). “In reviewing the administrator’s actions, we are limited to the

administrative record—the materials compiled by the administrator in the course of

making his decision.” Id. (citation and internal quotation marks omitted).


         The standard of review for a denial of benefits covered by ERISA is de novo

unless the plan gives the administrator discretionary authority to determine

eligibility. Eugene S. v. Horizon Blue Cross Blue Shield of New Jersey, 663 F.3d

1124, 1130 (10th Cir. 2011). “Where the plan gives the administrator discretionary

authority, however, we employ a deferential standard of review, asking only whether

the denial of benefits was arbitrary and capricious.” Id. (citation and internal

quotation marks omitted). “Under this arbitrary-and-capricious standard, our review

is limited to determining whether the interpretation of the plan was reasonable and

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


         The parties disagree over how much we should defer to LINA’s judgment in

light of its dual role capacity as both plan administrator and funder of LTD benefits.

Mr. Green argues that LINA’s conflict of interest compels close scrutiny of LINA’s

                                            5
actions, essentially foregoing the “reasonable and made in good faith” standard.

LINA argues that we should give less weight to its conflict of interest.


      The Supreme Court has held that the “dual role” of administering and funding

a plan “creates a conflict of interest; that a reviewing court should consider that

conflict as a factor in determining whether the plan administrator has abused its

discretion in denying benefits; and that the significance of the factor will depend

upon the circumstances of the particular case.” Metro. Life Ins. Co. v. Glenn, 554

U.S. 105, 108 (2008). “[This] conflict of interest affects the outcome at the margin,

when we waver between affirmance and reversal.” Hancock v. Metro. Life Ins. Co.,

590 F.3d 1141, 1155 (10th Cir. 2009). However, the conflict of interest “should

prove less important (perhaps to the vanishing point) where the administrator has

taken active steps to reduce potential bias and to promote accuracy.” Glenn, 554

U.S. at 117.


      Here, LINA properly dealt with its conflict of interest in its dual capacity role

by twice referring Mr. Green’s case to independent peer reviewers. In Mr. Green’s

initial appeal, LINA consulted Dr. Kamjoo, upon whose opinion it was able to state

that Mr. Green’s PVD “was highly likely to have caused a retinal tear and was the

initial event that led to a retinal tear which subsequently led to the development of

the retinal detachment and vision loss.” Aplt. App. at 1108. When Mr. Green

appealed to LINA a second time, LINA consulted Dr. Yanik, another independent

peer reviewer, whose analysis was the same. Id. at 1142.

                                            6
      Having dealt with its conflict of interest, LINA made a reasonable and good

faith determination that Mr. Green had a pre-existing condition (PVD) that caused or

substantially contributed to his vision loss. As the district court’s well-reasoned

opinion points out, LINA relied on five doctors’ opinions, two of whom were Mr.

Green’s own doctors, and all of whom agreed that PVD was a highly probable link to

Mr. Green’s ultimate vision loss. See Green, 2017 WL 4337675, at *5.


      Mr. Green argues that the causal relationship between PVD and his vision loss

is too tenuous. He points us to Fought v. Unum Life Ins. Co. of Am., 379 F.3d 997,

1003 (10th Cir. 2004), a case in which we held that a pre-existing condition “cannot

merely [] be one in a series of factors that contributes to the disabling condition; the

disabling condition must be substantially or directly attributable to the pre-existing

condition.” But PVD was not part of a long chain of ailments that eventually led to

Mr. Green’s vision loss; it led directly to his seeking further treatment and surgeries.

The medical experts all agree that PVD was a cause of Mr. Green’s vision loss.

Indeed, Mr. Green’s only reason for seeking a diagnosis of his PVD was vision

difficulties. A condition need not be the ultimate cause of a person’s claim for LTD

benefits to qualify as a pre-existing condition.


      Mr. Green’s argument that LINA impermissibly rewrote the Plan is also

without merit. The Plan provides that “a ‘Pre-existing Condition’ means any Injury

or Sickness for which you incurred expenses, received medical treatment, care or

services including diagnostic measures, or took prescribed drugs or medicines within

                                            7
3 months before your most effective date of insurance.” Aplt. App. at 22 (emphasis

added). Mr. Green contends “nothing in the Record demonstrates that [he] incurred

expenses, received medical treatment, or took prescribed drugs” during the Pre-

Existing Condition Look-Back Period. Id. at 1352. But Mr. Green admits that he

visited Dr. Amerongen after experiencing cloudy and foggy vision in December

2014. And Dr. Amerongen referred Mr. Green to a retinal specialist if Mr. Green’s

condition worsened (which it apparently did).


      We turn now to the final requirement of the limitation, that the condition

occurred during the look-back period. To qualify as a pre-existing condition

according to the Plan, Mr. Green must have received medical treatment for PVD,

including “diagnostic measures,” within three months before his most effective date

under the Plan. Id. at 22. The Plan became effective January 1, 2015. Id. at 1101.

Therefore, the look-back period occurred from October 1 to December 31, 2014. Mr.

Green sought treatment for his vision problems on December 4, 2014, and was

diagnosed by Dr. Amerongen with PVD. Id. at 245. As such, Mr. Green’s pre-

existing condition occurred during the look-back period, and LINA properly denied

Mr. Green’s application for LTD benefits.




                                            8
We AFFIRM.


             Entered for the Court


             Stephanie K. Seymour
             Circuit Judge




             9
