     Case: 19-30254      Document: 00515226955         Page: 1    Date Filed: 12/06/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals

                                      No. 19-30254
                                                                              Fifth Circuit

                                                                            FILED
                                                                     December 6, 2019

ANNE WITTMANN,                                                         Lyle W. Cayce
                                                                            Clerk
              Plaintiff - Appellant

v.

UNUM LIFE INSURANCE COMPANY OF AMERICA,

              Defendant - Appellee


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:17-CV-9501


Before KING, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
       Anne Wittmann appeals a denial of long-term disability benefits under
the Employee Retirement Income Security Act (“ERISA”) § 502(a), contending
that her plan administrator abused its discretion. We find no such abuse and
AFFIRM.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 19-30254   Document: 00515226955      Page: 2   Date Filed: 12/06/2019



                                No. 19-30254
                              BACKGROUND
     The Plaintiff-Appellant, Anne Wittmann, is an attorney with a disability
insurance plan. The plan provides long-term disability benefits under these
terms:
     You are disabled when Unum determines that due to your sickness
     or injury:

     1. You are unable to perform the material and substantial duties
     of your regular occupation and are not working in your regular
     occupation or any other occupation . . . .

     MATERIAL AND SUBSTANTIAL DUTIES means duties that:

           -are normally required for the performance of your
           regular occupation; and
           -cannot be reasonably omitted or modified, except that
           if you are required to work on average in excess of 40
           hours per week, Unum will consider you able to
           perform that requirement if you are working or have
           the capacity to work 40 hours per week. . . .

     The lifetime cumulative maximum benefit period for all
     disabilities due to mental illness is 24 months. . . .

     MENTAL ILLNESS means a psychiatric or psychological
     condition classified in the Diagnostic and Statistical Manual of
     Mental Health Disorders (DSM), published by the American
     Psychiatric Association, most current as of the start of a disability.
     Such disorders include, but are not limited to, psychotic, emotional
     or behavioral disorders, or disorders relatable to stress. . . .

     On April 7, 2014, Wittmann filed a claim for disability benefits, asserting
that she had been unable to work since December 31, 2013 and listing her
medical condition as “unknown – other than fibromyalgia and pericarditis.”
Over the next few months, she submitted various medical records to her
insurer, Unum Life Insurance Company of America (“Unum”). On October 3,
2014, Unum denied her claim.
                                       2
    Case: 19-30254   Document: 00515226955     Page: 3   Date Filed: 12/06/2019



                                No. 19-30254
      As explanation, Unum reported that two physicians who had reviewed
her records identified “no significant abnormalities” and received no evidence
of “tender point testing to support a diagnosis of Fibromyalgia” or of “pain
behavior during any office visits.” The two reviewing physicians were Dr. Tony
Smith, an Unum physician board-certified in family medicine, and Dr. James
Bress, an Unum consulting physician board-certified in internal medicine.
      In late January 2015, Wittmann appealed. A third physician, Dr. Chris
Bartlett, an Unum consultant board-certified in family medicine, reviewed the
appeal. Based on this review, Unum recognized that Wittmann may have
fibromyalgia, but was unconvinced that cognitive issues prevented Wittmann
from performing her work as an attorney. In a letter dated May 29, 2015,
Unum notified Wittmann of its decision, but invited her to submit additional
information.
      Wittmann accepted that invitation.       She submitted new records,
including a neuropsychological evaluation by Dr. Michael Chafetz, Ph.D. in
Neuropsychology. These latest submissions were reviewed by Dr. Bartlett and
also by Dr. Jana Zimmerman, Unum’s psychologist. Based on their review,
Unum reaffirmed its decision because “results d[id] not support reported
memory and concentration problems and/or problems with disconnection or a
history of neuropathology as Dr. Chafetz explained.” In the letter announcing
this decision, dated July 20, 2015, Unum advised Wittmann that she had
exhausted administrative remedies and that she had a right to sue under
ERISA § 502(a).
      Wittman did not sue immediately. Instead, on October 24, 2016, she
informed Unum that she had been awarded Social Security Disability Income
benefits, as conveyed in enclosed documentation from the Social Security
Administration (“SSA”), dated October 3, 2015.     The SSA correspondence


                                      3
    Case: 19-30254     Document: 00515226955      Page: 4    Date Filed: 12/06/2019



                                   No. 19-30254
included a Consultative Psychological Evaluation Report prepared by
Dr. William Fowler, a board-certified psychologist.
      This report did not include the basis for the SSA entitlement, but it did
include Dr. Fowler’s summary of Wittmann’s self-reported symptoms and
Dr. Fowler’s concerns that Wittman would have “some difficulty performing
work related tasks . . . even simple job tasks in a stable, reliable manner.”
Dr. Fowler’s reported diagnostic impressions were “Major Depressive
Episode,” “Anxiety NOS,” and “Rule out pseudo dementia secondary to
depression.”
      In light of this new report, Unum changed course, against the advice of
its psychologist. Dr. Zimmerman maintained her diagnosis of psychological
contribution, but not impairment, and expressed doubts about the sufficiency
of Dr. Fowler’s data to support psychiatric diagnostic impressions or other
medical judgments. Nevertheless, according to a letter dated January 24,
2017, “[i]n giving significant weight to the Social Security Administrator’s
finding of disability,” Unum “determined benefits [were] payable” for the
policy-maximum       period   of   two   years,   “through   June 30,    2016    for
Ms. Wittman[n]’s mental illness disability.” Unum also indicated willingness
to reevaluate what other benefits might be due.
      Wittmann, protesting this grant of short-term, mental-illness-based
benefits, submitted updated medical records and continued to seek long-term
disability benefits for a physical disability. In response, Unum retained a
surveillance company to assess Wittman’s activity level and asked Drs. Bress
and Smith each to review the updated Wittmann case. In a letter dated
July 31, 2017, Unum informed Wittmann’s attorney that “benefits are not
payable beyond the 24 month mental illness limitations of [Wittmann’s] policy”
because “[w]e have determined that . . . Anne Wittmann is able to perform the
duties of her occupation, Attorney.”
                                         4
    Case: 19-30254    Document: 00515226955    Page: 5   Date Filed: 12/06/2019



                                No. 19-30254
      Wittmann sued under ERISA § 502(a)(1)(B) for denial of her long-term
disability claim. While pursuing that remedy, she also requested another
administrative appeal from Unum, but that appeal failed. After a year in
district court, both Wittmann and Unum sought summary judgment. In a
lengthy, detailed, and persuasive opinion, the district court ruled in favor of
Unum, and Wittmann timely appealed. Before this court, she seeks judgment
in favor of her claim for long-term disability and contends that Unum abused
its discretion.
                         STANDARD OF REVIEW
      “Standard summary judgment rules control in ERISA cases.” Ramirez
v. United of Omaha Life Ins. Co., 872 F.3d 721, 725 (5th Cir. 2017). Thus, this
court will review summary judgment de novo, “applying the same standards
as the district court. Summary judgment is warranted if the pleadings, the
discovery and disclosure materials on file, and any affidavits show that there
is no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law.” DePree v. Saunders, 588 F.3d 282, 286 (5th Cir.
2009) (internal citations and quotation marks omitted). “[T]he nonmoving
party cannot defeat summary judgment with conclusory allegations,
unsubstantiated assertions, or only a scintilla evidence.” Hathaway v. Bazany,
507 F.3d 312, 319 (5th Cir. 2007) (internal quotation marks omitted).
      “[W]hen an administrator has discretionary authority with respect to the
decision at issue”—as is undisputed in this case—"the standard of review
should be one of abuse of discretion.” Conn. Gen. Life Ins. Co. v. Humble
Surgical Hosp., L.L.C., 878 F.3d 478, 483 (5th Cir. 2017). “Under ERISA, an
administrator abuses its discretion when there is not ‘substantial evidence’ in
the record to support its decisions, including those to deny or to terminate
benefits.” George v. Reliance Standard Life Ins. Co., 776 F.3d 349, 354 (5th
Cir. 2015) (punctuation omitted). Even if there is substantial evidence, an
                                      5
    Case: 19-30254      Document: 00515226955   Page: 6   Date Filed: 12/06/2019



                                 No. 19-30254
administrator might yet have abused its discretion if other factors so indicate.
One factor that must be considered is the conflict of interest in a dual role as
both payor and administrator of an ERISA plan. Metro. Life Ins. Co. v. Glenn,
554 U.S. 105, 112, 128 S. Ct. 2343, 2348 (2008). Such a conflict is only a factor
to be considered, though, and its weight varies on a case-by-case basis. Id. at
117-18, 2351; McCorkle v. Metro. Life Ins. Co., 757 F.3d 452, 458 n. 17 (5th Cir.
2014). Also to be considered are “the factual background of the determination
and any inferences of lack of good faith.” Humble, 878 F.3d at 484.
                                 DISCUSSION
      Wittmann argues on four grounds that Unum’s denial of long-term
disability benefits was an abuse of discretion. First, she avers that Unum
lacked substantial evidence for its decision. Second, she posits that Unum’s
grant of mental illness benefits indicates bad faith. Third, she proposes that
Unum’s decision was otherwise arbitrary. Fourth, she contends that Unum’s
conflict of interest affected its benefits decision. None of these arguments
succeeds, however; therefore, Wittmann fails to establish that Unum abused
its discretion.
                            I. Substantial Evidence
      Unum denied Wittmann long-term disability benefits “[b]ecause [she] is
not disabled according to the policy,” particularly because she “is able to
perform the duties of her occupation, Attorney.”       According to Wittmann,
“Unum’s benefits decisions are not supported by substantial evidence,” but she
fails to establish this point.
      The argument that Wittmann directs against the substantiality of
Unum’s evidence is that “[t]he testing results of Drs. Chafetz and Fowler
establish the type of focus and concentration issues Wittmann has consistently
maintained preclude her from full time employment as an attorney.” In other
words, Wittmann contends that there is good evidence for her claim. This
                                       6
     Case: 19-30254       Document: 00515226955         Page: 7    Date Filed: 12/06/2019



                                      No. 19-30254
contention is beside the point, 1 however, for “no law . . . requires a district court
to rule in favor of an ERISA plaintiff merely because he has supported his
claim with substantial evidence, or even with a preponderance.”                    Ellis v.
Liberty Life Assur. Co. of Bos., 394 F.3d 262, 273 (5th Cir. 2004).
       “The law requires only that substantial evidence support a plan
fiduciary’s decisions,” id., and in this case, substantial evidence supported
Unum’s decision. “An administrator does not abuse its discretion when it relies
on the medical opinion of a consulting physician whose opinion conflicts with
the claimant’s treating physician . . . even if the consulting physician only
reviews medical records and never physically examines the claimant.”
Gothard v. Metro. Life Ins. Co., 491 F.3d 246, 249 (5th Cir. 2007). Unum relied
on two such medical opinions, at least, 2 and so did not lack substantial
evidence.
                             II. Inference of Bad Faith
       Still, Wittmann suggests Unum lacked good faith. She contends that
“Unum’s award of mental illness disability benefits . . . [was] an egregious and
transparent attempt to limit its exposure” to a claim for long-term disability
benefits. Wittman bases this view, first, on the fact that Unum’s psychologist
denied that Wittman had a mental illness and, second, on the conclusion that
Unum lacked any evidence for its award of mental illness benefits. Even if
Unum were to have awarded mental illness benefits without good reason,



       1  In itself, the argument faces other obstacles. First, Dr. Chafetz does not actually
conclude that Wittmann cannot work as an attorney. Instead, he notes his impression that
Wittmann’s “memory and concentration problems . . . are not borne out by testing or a history
of neuropathology.” Second, although Dr. Fowler does conclude that Wittman seemingly
“would have” or “may” have difficulties working, he does not explicitly attribute these
difficulties to a physical illness.

       2Unum points to additional evidence, such as a note by one of Wittmann’s treating
physicians that “[D]r. Chafetz’s report will probably not help [Wittmann] to be ‘disabled.’”
                                             7
    Case: 19-30254      Document: 00515226955        Page: 8   Date Filed: 12/06/2019



                                      No. 19-30254
however, it would not necessarily follow that Unum’s denial of physical
disability benefits was in bad faith. Perhaps for this reason, Wittmann strives
to establish a complete dearth of support for Unum’s award of mental illness
benefits.
      In fact, though, Unum had reason to think that the Social Security
Administration based an award of disability benefits to Wittmann on a
determination that she had a mental illness. To start, Unum had Dr. Fowler’s
report,     which   plainly   lists   impressions    of   depression   and   anxiety.
Furthermore, as Unum contends, “Social Security Disability does not have any
limitations to benefits based on type of medical condition.” Finally, because
SSA based its decision in part on Dr. Fowler’s report, Unum had reason to
think that, although SSA “based its decision on the information [Wittmann]
provided,” it did not base its decision solely on that information. On these
grounds, and in light of its own judgment that Wittmann lacked fibromyalgia-
induced physical disability, Unum might have rationally concluded that SSA
determined that Wittmann had a mental illness.
      Still, Wittmann would urge that Unum acted in bad faith because it
acted contrary to its own psychologist’s opinion regarding Wittmann’s mental
health. To act contrary to an in-house expert’s opinion in favor of what one
takes to be the best interpretation of an SSA decision, however, is not an act of
bad faith. Instead, it is a decision based on, and certainly “giving significant
weight to,” SSA’s finding of disability—which is what Unum claimed to do.
Unum’s award of mental illness benefits is weak evidence for the contention
that Unum denied long-term disability benefits in bad faith.




                                           8
    Case: 19-30254    Document: 00515226955     Page: 9   Date Filed: 12/06/2019



                                 No. 19-30254
                  III. Further Grounds of Arbitrariness
      In addition to arguing lack of substantial evidence and bad faith,
Wittmann raises further grounds to conclude that Unum behaved arbitrarily
in denying her claim.     First, Unum “ignored the totality of the medical
evidence.” Second, Unum lacked “valid, conflicting professional opinions” and
therefore lacked reason not “to credit the opinions of her treating physicians.”
These proposed grounds for finding an abuse of discretion lack substantiation,
however.
      Wittmann’s allegation that Unum ignored all medical evidence in its
final review fails for being conclusory. Wittmann herself notes that “Unum’s
May 29, 2015 denial letter outlines [her] medical history.” Then, Unum’s final
decision letter reports that two physicians reviewed Wittmann’s medical file
and explains why Unum’s decision differs from the SSA decision, drawing on
Dr. Fowler’s report. These two letters alone are evidence that Unum actively
studied Wittmann’s medical evidence. Wittmann counters that Unum’s review
in May 29, 2015 did not produce her favored outcome, which she deems
“consistent with,” but not absolutely required by, the evidence. She offers
nothing more to substantiate her assertion that Unum ignored her medical
evidence in reaching its final decision in 2017.     Wittmann “cannot defeat
summary judgment with conclusory allegations, unsubstantiated assertions,
or only a scintilla evidence.” Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir.
2007) (internal quotation marks omitted).
      As a last resort, Wittmann contends that Unum’s “reviewing physicians
were not qualified independent medical experts” and could not provide “valid,
conflicting professional opinions.” Yet, this ground is no more solid. The
reviewing physicians were board-certified, and “[s]o long as the Plan
Administrator’s decision is rationally related to the evidence, we do not require
the Plan Administrator to credit a particular area of expertise when deciding
                                       9
   Case: 19-30254     Document: 00515226955       Page: 10   Date Filed: 12/06/2019



                                 No. 19-30254
on an applicant’s prognosis.” Holland v. Int'l Paper Co. Ret. Plan, 576 F.3d
240, 249 (5th Cir. 2009). Moreover, this court does not discount a physician’s
opinion simply because he is “in-house.”      Gothard v. Metro. Life Ins. Co.,
491 F.3d 246, 249 (5th Cir. 2007). In sum, Unum’s physicians offered “valid,
conflicting professional opinions,” and Wittmann has not raised a genuine
dispute about the general arbitrariness of Unum’s denial of her benefits.
                           IV. Conflict of Interest
      Wittmann’s final argument that Unum abused its discretion is that
Unum operated under a conflict of interest. Wittmann recognizes, however,
that if a party fails to give evidence that the conflict influenced the decision,
little or no weight should be given to that factor, McCorkle v. Metro. Life Ins.
Co., 757 F.3d 452, 458 n. 17 (5th Cir. 2014). For this reason, presumably, she
strives to show that Unum’s procedure was unreasonable such that its conflict
of interest should be given weight in determining whether it abused its
discretion.
      Wittmann’s argument that Unum has a “practice of employing unfair
claim settlement practices” involves a few steps. First, she notes that Unum
was investigated in the early 2000s for engaging in “systemic unfair claim
settlement practices.” Next, she reports the “areas of concern” in Unum’s
procedures that investigators identified. Last, she contends that the present
case exemplifies all of those areas of concern.
      The difficulty for Wittmann’s argument comes just before the final step.
If this case had occurred in the early 2000s, Wittmann could perhaps rely on a
presumption that Unum’s claim settlement practice was unfair. Between then
and now, though, Unum underwent corrective action. Wakkinen v. Unum Life
Ins. Co. of Am., 531 F.3d 575, 582 (8th Cir. 2008).          In 2013, this court
recognized that Unum has “adopted new claims-handling practices that have
helped cure [its] history of biased claims administration.” Truitt v. Unum Life
                                       10
   Case: 19-30254     Document: 00515226955     Page: 11   Date Filed: 12/06/2019



                                 No. 19-30254
Ins. Co. of Am., 729 F.3d 497, 514 (5th Cir. 2013) (internal quotation marks
omitted). Thus, courts do not assume that Unum is biased every time it denies
a claim. Id. Instead, Wittmann must establish that Unum has engaged in
procedural irregularities on the strength of her own evidence.
      Wittmann alleges various irregularities. They are (1) use of in-house
physicians who      are not rheumatologists, (2) changed         stance   toward
Dr. Zimmerman’s judgment of Wittmann’s mental health, (3) choice of the
physicians who reviewed the first appeal as reviewers of the final appeal, their
past errors notwithstanding, (4) unfair construction of medical evaluations and
disregard for procedural requirements and evidence, and (5) placing an
inappropriate burden on Wittmann by first requesting “objective evidence” and
then rejecting the results of Dr. Chafetz’s and Dr. Fowler’s testing.
      Of these irregularities, only one has not been addressed above, namely
Unum’s use of the physicians who reviewed the first appeal as reviewers of the
final appeal. As stated, the practice is not obviously problematic, for it is
reasonable to capitalize on the familiarity with the case that the experienced
reviewer already possesses. Wittmann stresses, though, that these reviewers
had made mistakes in their initial review. Yet Unum had not acknowledged
these alleged mistakes, and it is hardly irregular to reuse reviewers whose
mistakes one has not recognized. In any event, Wittmann offers no evidence
implying that the physicians unfairly reconsidered her case. This alleged
procedural irregularity is unsubstantiated.
      Wittmann’s remaining “irregularities” are no stronger, and in light of all
the evidence, Wittmann has not established such procedural unreasonableness
as to render Unum’s conflict of interest weighty in determining an abuse of
discretion.




                                       11
   Case: 19-30254     Document: 00515226955      Page: 12   Date Filed: 12/06/2019



                                  No. 19-30254
                                CONCLUSION
      Unum had substantial evidence for its denial of Wittmann’s long-term
disability claim, and its award of mental illness benefits does not establish that
its decision here was in bad faith. Wittmann fails to establish that Unum acted
arbitrarily or so irregularly as to suggest that its conflicting interest
importantly affected its decision. Thus, Unum did not abuse its discretion, and
the district court did not err in granting Unum summary judgment. That
judgment is AFFIRMED.




                                       12
