United States Court of Appeals
For the First Circuit
No. 05-2668
KATHERINE L. TSOULAS,
Plaintiff, Appellant,
v.
LIBERTY LIFE ASSURANCE COMPANY OF BOSTON,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Torruella, Circuit Judge,
Hug,* Senior Circuit Judge,
and Lynch, Circuit Judge.
Arthur J. Greif, with whom Julie D. Farr and Gilbert & Greif,
P.A. were on brief, for appellant.
Eric J. Uhl, with whom Moon, Moss & Shapiro, P.A. was on
brief, for appellee.
July 11, 2006
*
Of the Ninth Circuit, sitting by designation.
TORRUELLA, Circuit Judge. In February 1998, Plaintiff
Katherine L. Tsoulas ("Tsoulas") became an employee of Medaphis
Corporation ("Medaphis") as a Manager of Educational Services. A
benefit of her employment was insurance coverage under a group
disability policy ("the Plan") provided by Liberty Life Assurance
Company of Boston ("Liberty"). Liberty is both the insurer for the
Plan and the claims fiduciary.1 Tsoulas applied for and received
short-term disability benefits beginning on September 15, 1998
because symptoms of Multiple Sclerosis ("MS") had rendered her
unable to work. In March 1999, she applied for and received long-
term disability benefits until Liberty discontinued them on
March 31, 2004.
Tsoulas filed this action in Maine Superior Court against
defendant Liberty, alleging the wrongful termination of her
benefits under 29 U.S.C. § 1132, the civil enforcement section of
the Employee Retirement Income Security Act ("ERISA"). Liberty
removed the action to federal court on November 8, 2004. The
United States District Court for the District of Maine granted
Liberty's Motion for Judgment on the Stipulated Record on
October 27, 2005. Tsoulas now appeals.
1
Throughout her brief, Tsoulas refers to Liberty as the "plan
administrator" rather than the "claims fiduciary," although the
latter is technically correct. The distinction has no legal
implications for the purposes of this opinion.
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I. Facts
We describe the stipulated facts of record. In April
1998, Dr. Kathryn Isaac ("Dr. Isaac"), a staff physician in the
Department of Neurosciences at the Stanford University Medical
Center, performed the first neurological evaluation of Tsoulas.
Dr. Isaac's evaluation revealed that Tsoulas was experiencing
"worsening tremors" and blackouts. Other symptoms included
"numbness down the right leg and arm" and "fatigue." Dr. Isaac
reported that Tsoulas's tremor "appears to be psychogenic" and
opined that she would "clearly need psychiatric consultation as
well." Magnetic Resonance Imaging (MRI) scans from 1995 and 1997
exhibited two to three brain lesions of unclear etiology. Dr.
Isaac reviewed them with a neuro-radiologist, who concluded that
the lesions were "not completely typical for multiple sclerosis."
Dr. Isaac concluded that she did not believe Tsoulas's symptoms
were consistent with a diagnosis of MS.
Dr. Leslie Dorfman ("Dr. Dorfman"), Professor of
Neurology and Director of the MS Clinic at the Stanford University
Medical Center, examined Tsoulas in May of 1998 and concluded that
"[a]lthough the diagnosis is not completely certain, I think it is
likely on the basis of the clinical history and the MRI findings
that this woman has relatively mild multiple sclerosis, relapsing-
remitting form." In addition, Dr. Dorfman determined that Tsoulas
was "suffering from an anxiety disorder, and that some of the
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symptoms which are currently most troublesome to her are related to
this, rather than to her MS." Dr. Dorfman recommended follow-up by
a neurologist for MS, potential use of corticosteroids for MS
exacerbations, and "ongoing concurrent treatment for her anxiety
disorder."
In September of 1998, Tsoulas saw Dr. Annette Langer-
Gould ("Dr. Langer-Gould"), Acting Director of Stanford University
Medical Center's MS Clinic. Dr. Langer-Gould concluded that
"although she clearly has multiple sclerosis, she also has a
psychiatric condition for which she needs to continue seeking
treatment. Initially she refused to do this and . . . vehemently
denied that she had any psychological problems." One month later
in a follow-up visit, Dr. Langer-Gould wrote that Tsoulas was
suffering from MS and a conversion disorder.2 Although Tsoulas was
"clearly . . . under tremendous psychological stress," Dr. Langer-
Gould told her it was appropriate for her to return to work on a
part-time basis. Tsoulas responded that she had discussed the
possibility of part-time work with her employer and that it was not
an option.
Based on her physicians' recommendations, Tsoulas saw
Joyce Brothers Kart, M.F.C.C. ("Ms. Kart") for psychotherapy on
2
A conversion disorder is a "rare psychiatric illness in which
emotional stress or conflict is expressed through physical
symptoms."
http://www.mayoclinic.com/health/conversion-disorder/AN00622.
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four occasions beginning in January 1999 and ending in March 1999.
Ms. Kart observed that "[i]t has been extremely difficult for her
to function normally . . . . It is very unclear when she will be
able to resume active employment due to her symptoms." There is no
evidence that Ms. Kart or any other mental health professional has
evaluated Tsoulas since March 5, 1999.
In July 1999, Dr. Cathleen Miller ("Dr. Miller") examined
Tsoulas and concluded that Tsoulas had "relapsing/remitting
multiple sclerosis," but that Tsoulas was "alert and attentive with
normal speech and language, and no gross cognitive deficits." Her
self-reported symptoms included "episodic worsening of her
tremulousness associated with heightened anxiety and bowel
incontinence as well as fatigue and impaired balance." Dr. Miller
observed that "her current tremor is difficult to characterize, and
there is a degree of embellishment noted on examination today."
Nevertheless, Dr. Miller wrote to Tsoulas's primary care physician,
Dr. Leslie Finder ("Dr. Finder"), that Tsoulas was "greatly
disabled at this time of our first meeting."
In October 1999, Liberty sent a questionnaire to Dr.
Finder seeking information about Tsoulas's disability. Dr. Finder
reported that Tsoulas's primary diagnosis was MS, and that he
expected that she would "never" regain either full or modified
function. In February 2001, Liberty sent a nurse, Christine
Entrekin ("Nurse Entrekin"), to conduct a home visit with Tsoulas
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to assess her ongoing disability. Nurse Entrekin observed that
Tsoulas was "significantly impaired due to physical limitations as
well as [Tsoulas's] own assertions of deteriorating mental status.
Prognosis for recovery does not appear favorable."
In August 2001, Tsoulas began to receive chiropractic
care from Dr. Deborah Baker ("Dr. Baker"). Dr. Baker placed some
restrictions on Tsoulas's ability to reach, grasp, pull, push,
climb, kneel, bend, squat, walk, stand, conduct repetitive motions,
and lift between ten and forty pounds. The only complete
restriction she imposed was against lifting forty or more pounds.
In October 2001, Dr. Susan O'Connor ("Dr. O'Connor"), a
surgeon, examined Tsoulas in connection with a palpable abnormality
of her left breast. Dr. O'Connor removed the abnormality on
October 26, 2001, and the diagnosis of breast cancer was confirmed.
After the third and final post-operative checkup on August 21,
2002, Dr. O'Connor reported that Tsoulas no longer had any physical
restrictions in connection with her breast cancer diagnosis.
As part of its ongoing review of Tsoulas's claim for
continued long-term disability benefits, Liberty began planning to
conduct surveillance in January 2004. Byers Confidential
Investigations ("BCI") conducted the first surveillance on five
consecutive days from February 10 through February 14, 2004. On
February 12, while the BCI surveillance was ongoing, Tsoulas
submitted responses to a routine activities questionnaire
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indicating the following: 1) she was completely unable to walk or
stand without the assistance of a cane, a wheelchair, or a scooter;
2) she spent fourteen to eighteen hours in bed each day; 3) she was
able to drive a car only "very little"; 4) she left the house "zero
to one" times per week; 5) she never left the house on weekends; 6)
she never went shopping at the mall; and 7) she accomplished
grocery shopping only with the aid of her son.
The surveillance videos revealed that between February 10
and 14, Tsoulas 1) drove her car unassisted; 2) walked without the
aid of a cane, wheelchair, or scooter; 3) completed errands by
herself and without any assistive devices; 4) walked down a few
steps; 5) conducted banking activities without any assistance; 6)
shopped at the mall and the video store; and 7) went grocery
shopping, pushed a grocery cart, and loaded and unloaded groceries.
Because there appeared to be significant discrepancies
between Tsoulas's self-reported limitations and the video footage,
Liberty determined that additional surveillance was necessary.
Omega Insurance Services ("Omega") conducted surveillance from
March 10 to March 14, 2004. Omega's report revealed Tsoulas: 1)
traveling to a tanning salon, a bank, a donut shop, a nail salon,
and back to her residence in a single day; 2) walking, driving,
entering and exiting a car, and entering and exiting various
establishments without the assistance of any braces, supports, or
other devices; 3) traveling to a hotel, a parking garage, a
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restaurant, a comedy club, a night club, and back to the hotel on
a single day; 4) traveling to a restaurant, a furniture store,
various gift shops, a coffee shop, and a residence in a single day.
After Omega's surveillance was completed, Liberty
referred Tsoulas's file to independent consulting physician Dr.
John Holbrook ("Dr. Holbrook"), who concluded, based on his
examination of her clinical file and the surveillance information,
that the diagnosis of MS had "not been conclusively established"
and that the majority of Tsoulas's symptoms were "either self-
reported, unwitnessed, or unable to be objectively validated." He
stated that although she might have undergone a period of
psychological stress between 1998 and 1999, recent evidence
suggested that she had recovered sufficient functional capacity to
be "capable of at least full-time light work."
In March of 2004, Liberty wrote a letter to Tsoulas,
terminating her long-term disability benefits, effective March 31.
The letter detailed the discrepancies between Tsoulas's self-
reported limitations and her actual abilities, as captured by the
surveillance videos. The letter also summarized Dr. Holbrook's
findings.
On April 30, Tsoulas appealed the termination of her
benefits and submitted new material to Liberty to bolster her
claim. Liberty then forwarded Tsoulas's file to a second
independent consulting physician, Dr. Eric Erlbaum ("Dr. Erlbaum").
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Dr. Erlbaum reviewed the file and the surveillance videos,
concluding that "the primary diagnosis is most likely psychiatric
in nature" and the "second diagnosis is a mild form of multiple
sclerosis." Dr. Erlbaum opined further that the surveillance video
"would suggest that the claimant is available for full time work of
her choosing" and that "her physical condition appears to play a
very small role, if any, in limiting her physical capacity." In a
letter dated August 17, Liberty denied Tsoulas's appeal of its
termination of her long-term disability benefits. Liberty pointed
out that although Tsoulas might have significant psychiatric
issues, she had not presented a psychiatric record and she was not
claiming a disability based on a psychiatric impairment. Without
such a record, Liberty was unable to determine whether she had a
psychiatric impairment preventing her from meeting her
responsibilities "as an Education/Training Manager" at Medaphis.
II. Analysis
Tsoulas claims that the district court erred by granting
judgment for Liberty on the stipulated record. First, she
maintains that the district court applied the wrong standard of
review to Liberty's termination of her benefits. Second, she
argues that Liberty's decision to terminate her benefits was not
supported by substantial evidence. We will address each argument
separately.
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Our standard of review is governed by the fact that the
parties submitted this case to the district court based on a
stipulated record. Ordinarily, because summary judgment motions
require the trial judge to make legal determinations, we review
summary judgment decisions de novo. Reich v. John Alden Life Ins.
Co., 126 F.3d 1, 6 (1st Cir. 1997). However, we have held that,
"[i]n a nonjury case, when the basic dispute between the parties
concerns only the factual inferences that one might draw from the
more basic facts to which the parties have agreed . . . '[t]he
standard for appellate review . . . shifts from de novo review to
clear-error review.'" García-Ayala v. Lederle Parenterals, Inc.,
212 F.3d 638, 643-44 (1st Cir. 2000) (quoting United Paperworkers
Int'l Union, Local 14 v. Int'l Paper Co., 64 F.3d 28, 31 (1st Cir.
1995)). The Supreme Court has articulated the clearly erroneous
standard thus:
If the district court's account of the
evidence is plausible in light of the record
viewed in its entirety, the court of appeals
may not reverse it even though convinced that
had it been sitting as the trier of fact, it
would have weighed the evidence differently.
Where there are two permissible views of the
evidence, the factfinder's choice between them
cannot be clearly erroneous.
Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573-74
(1985). We review the district court's legal conclusions de novo,
Lockheed Martin Corp. v. RFI Supply, Inc., 440 F.3d 549, 552 (1st
Cir. 2006), but we will set aside the district court's factual
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inferences "only if they are clearly erroneous." United
Paperworkers, 64 F.3d at 31.
A. Arbitrary and Capricious Standard
When a denial of insurance benefits is challenged under
ERISA, courts review the insurer's decision de novo "unless the
benefit plan gives the administrator or fiduciary discretionary
authority to determine eligibility for benefits." Firestone Tire
and Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). Where, as here,
the plan confers such authority upon the fiduciary, the decision is
upheld "unless it is 'arbitrary, capricious, or an abuse of
discretion.'" Wright v. R.R. Donnelley & Sons Co. Group Benefits
Plan, 402 F.3d 67, 74 (1st Cir. 2005) (quoting Doyle v. Paul Revere
Life Ins. Co., 144 F.3d 181, 183 (1st Cir. 1998)).
Tsoulas claims that the district court improperly applied
the deferential "arbitrary and capricious" standard to Liberty's
termination of her benefits. Specifically, Tsoulas argues that
because Liberty is both the insurer and the claims fiduciary -- and
any finding of eligibility means Liberty will need to pay benefits
out of its own pocket -- its decision was compromised by an
inherent conflict of interest. Citing Wright, Tsoulas alleges that
Liberty's decision should have been subject to a heightened
standard of review because, "if a court concludes there is an
improper motivation amounting to a conflict of interest, the court
may cede a diminished degree of deference -- or no deference at all
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-- to the administrator's determinations." 402 F.3d at 74
(citation and internal quotation marks omitted).
We have held that no automatic conflict of interest
arises to elevate the standard of review where, as here, "a finding
of eligibility means that the insurer will have to pay benefits out
of its own pocket." Pari-Fasano v. ITT Hartford Life and Acc. Ins.
Co., 230 F.3d 415, 418 (1st Cir. 2000). Instead, under such
circumstances, courts should apply "the arbitrary and capricious
principle, with special emphasis on reasonableness, but with the
burden on the claimant to show that the [insurer's] decision was
improperly motivated." Id. (citation and internal quotation marks
omitted).
Tsoulas asserts two separate arguments to demonstrate
that Liberty was improperly motivated. First, she alleges that
Liberty undertook the surveillance for the purpose of terminating
her benefits. Second, she claims that Liberty engaged in a
"selective review" of the administrative record to the exclusion of
other evidence.
Tsoulas claims that because there was no change in her
condition that could have given rise to suspicion, Liberty must
have undertaken the surveillance efforts for the purpose of
terminating her benefits. Liberty in turn points out it has made
"consistent and continued efforts" to obtain objective evidence of
Tsoulas's functional limitations in light of the fact that
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Tsoulas's own medical providers have repeatedly made contradictory
findings regarding her condition. Liberty's claim examiner
suggested surveillance as early as September 2000 to "either
confirm or call into question" Tsoulas's condition, and Liberty's
claim file contains several other references to the need for
further information regarding Tsoulas's condition. Further, in its
letter to Tsoulas terminating her benefits, Liberty explained that
it initiated surveillance when -- despite her self-reported need
for a cane and her alleged memory and concentration difficulties --
she appeared in a January 2004 newspaper photograph standing
unaided by a cane and she wrote and submitted an article to the
National MS Society website. The district court dismissed
Tsoulas's allegation that Liberty initiated surveillance with an
improper motive as being "without merit," finding that it was
"equally, if not more likely . . . that Liberty initiated
surveillance to objectively document whatever her activity level
turned out to be." We agree. There is no indication that Liberty
undertook the surveillance with the intention of terminating her
benefits.
Tsoulas next claims that Liberty engaged in a "selective
review" of the medical evidence and the administrative record to
the exclusion of other evidence. She claims that Liberty "ignored"
the pattern of deterioration and "glossed over" her own doctors'
opinions of her disability. This argument is unavailing. The
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Supreme Court has held that "[n]othing in [ERISA] . . . suggests
that plan administrators must accord special deference to the
opinions of treating physicians." Black & Decker Disability Plan
v. Nord, 538 U.S. 822, 831 (2003). Further, it is not "for a court
to determine precisely how much weight [an insurer] should have
accorded [a particular piece of evidence] in its overall decision."
Gannon v. Metro. Life Ins. Co., 360 F.3d 211, 214 (1st Cir. 2004).
Tsoulas next claims that Liberty failed to share with Dr.
Erlbaum the supplemental materials she submitted to Liberty after
the termination of her benefits. This allegation appears to be
totally baseless. In fact, Dr. Erlbaum's report specifically
mentions at least two of the supplementary pieces of evidence in
question: a brain MRI report from August 2003 and a report from
neurologist Dr. T. Edward Collins. The district court inferred
from these references that Liberty had sent the entire file to Dr.
Erlbaum for review, and we find no error.
Tsoulas also alleges that Liberty itself "did not engage
in any substantive review" of that supplemental evidence, an
argument that appears similarly meritless. Liberty extended the
deadline to permit Tsoulas to submit additional information to
support her appeal, at one point noting that "[t]o date [Tsoulas
has] forwarded one medical report and several letters from various
persons describing [her] physical impairments caused by MS." The
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record simply does not support her contention that Liberty did not
evaluate the supplementary evidence.
As we have previously held, "[t]o affect the standard of
review . . . a conflict of interest must be real. A chimerical,
imagined, or conjectural conflict will not strip the fiduciary's
determination of the deference that otherwise would be due." Leahy
v. Raytheon Co., 315 F.3d 11, 16 (1st Cir. 2002). We find that
Tsoulas has not demonstrated that Liberty was improperly motivated
to terminate her benefits, and therefore, that the "arbitrary and
capricious" standard of review was appropriate.
B. Substantial Evidence
Tsoulas next claims that the district court's finding
that Liberty's decision to terminate her benefits was not
arbitrary, capricious, or an abuse of discretion was flawed because
it was not supported by "substantial evidence." Under the
arbitrary and capricious standard, "the administrator's decision
must be upheld if it is reasoned and supported by substantial
evidence." Gannon, 360 F.3d at 213. We find evidence to be
substantial "if it is reasonably sufficient to support a
conclusion, and the existence of contrary evidence does not, in
itself, make the administrator's decision arbitrary." Id.
1. Occupational Requirements
Tsoulas claims that in assessing her job duties, Liberty
improperly relied solely on a Department of Labor Description for
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Manager, Education and Training based on the Dictionary of
Occupational Titles ("DOT"). Under the Plan,
a. If the Covered Person is eligible for the
Maximum Own Occupation Benefit, "Disability"
or "Disabled" means during the Elimination
Period and until the Covered Person reaches
the end of the Maximum Benefit Period he is
unable to perform all of the material and
substantial duties of his occupation on an
Active Employment basis because of an Injury
or Sickness.
The DOT describes the position of "Manager, Education and
Training," as requiring light work, including lifting, carrying,
occasional pushing or pulling of 20 pounds, frequent pushing or
pulling of lesser weights, frequent reaching, and constant talking.
Tsoulas asserts that in defining her occupation Liberty should have
acquired a more accurate job description from Medaphis and
conducted a more thorough investigation of the requirements of the
position. However, Tsoulas bore the "burden to provide evidence
that [she] was unable to perform the duties of [her] occupation,"
and "[a]n integral part of that evidence would be a statement of
what [her] job required." Wright, 402 F.3d at 77. Furthermore,
although Tsoulas claims that Liberty relied on the DOT description
with only "little information" from her, the record reflects that
Liberty actually contacted her directly for a description of her
job duties. She indicated that her responsibilities included
overseeing the department and hiring and firing staff, none of
which is inconsistent with the DOT description. In this situation,
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we adopt the Fourth Circuit's reasoning that "[a] general job
description of the DOT, to be applicable, must involve comparable
duties but not necessarily every duty." Gallagher v. Reliance
Standard Life Ins. Co., 305 F.3d 264, 272 (4th Cir. 2002). Tsoulas
does not allege that any of her actual occupational requirements
were not represented in the DOT description, nor does she identify
which, if any, of her job responsibilities she was unable to
perform. We find that Liberty did not err in relying on the DOT
definition of Manager of Educational Services.
2. Surveillance
Tsoulas claims the surveillance evidence "falls far
short" of establishing that she was able to perform her
occupational responsibilities as Manager of Educational Services at
Medaphis on a full time basis. To this end, she makes three
distinct, but related, arguments. First, she contends that the
video is not inconsistent with her self-reported limitations.
Second, she insists that even if the video does suggest possible
discrepancies, it does not provide a basis for determining that she
was capable of returning to work full time. Third, she claims that
Liberty acted unreasonably by relying solely upon surveillance
evidence in terminating her benefits.
Although Tsoulas reported in her February 12, 2004
Activities Questionnaire that she was unable to walk or stand
without an assistive device such as a cane, wheelchair, or scooter,
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that she could not climb stairs, that her ability to drive a car
was "very little," and that she could not go grocery shopping,
carry groceries, or put them away, a surveillance video recorded on
February 11 (one day prior to her completion of the questionnaire)
depicts her standing, walking, and driving without assistance,
shopping for groceries, and lifting groceries into her car.
Similarly, although she indicated on the questionnaire that she
spent 14-18 hours in bed each day, that she "never" left the house
on weekends or went shopping at the mall, that she went outdoors
only in "summers and fall," and that her daily routine consisted of
showering, eating meals, resting, writing emails, and watching
television, surveillance videos taken between March 10 and 14
reveal that on those days she drove, stood, and walked unassisted
as she went to a bank and a coffee shop and visited a beauty salon.
Also during this period, she and her boyfriend drove from Bangor to
Portland for a multi-day trip during which she went to restaurants
and nightclubs, and to a mall.
Tsoulas first argues that any discrepancies between her
questionnaire responses and the video footage is attributable to
the ambiguity of the questionnaire. The questionnaire asked "how
many hours a day" she walks, and Tsoulas responded "0" to each. In
her brief to us she claims that she understood the question to mean
"recreational walking" rather than the "minimally necessary walking
to get to and fro while engaged in other necessary daily
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activities." In other words, because Tsoulas never walks more than
one hour per day, she claims that her questionnaire response was
not directly contradicted by the surveillance. Although we find
some degree of logic in this argument, the other inconsistencies
remain unexplained.
Tsoulas also alleges that the videos do not contradict
her self-reported limitations because in them, she walks "slowly,"
with "a noticeable limp," and with an "altered gait." She also
claims that the video footage of her activities during the
surveillance period accounts for only a small -- impliedly non-
representative -- fraction of each day. The district court viewed
the video surveillance and found that although "the video depicts
Ms. Tsoulas with a stiff-legged gait . . . it is also true the
surveillance shows her performing a wide range of activity
inconsistent with her stated limitations." Our review of the
district court's factual inferences is very deferential, and
because we do not find that this conclusion was clearly erroneous,
we do not upset it here.
Tsoulas next claims that even if the video footage does
contradict her questionnaire responses, the surveillance does not
positively support a conclusion that she is capable of performing
all of the responsibilities of her job on a full-time basis.
Although we agree that Tsoulas's occupational responsibilities
differ from the activities portrayed in the surveillance videos,
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she has not shown that Liberty's inference -- that the conflict
between her self-reported limitations and her actual activities
suggests an ability to perform her occupational responsibilities --
was arbitrary and capricious. The DOT description of her
employment responsibilities as education manager indicates that her
work is typically light or sedentary and although it "sometimes"
involves standing, it "almost never" entails walking, running,
kneeling, crouching, stooping, or crawling. Similarly, the DOT
description indicates that multi-limb coordination and gross body
coordination are "not important," and that speed of limb movement
is only "somewhat important." We find no error in the district
court's determination that Liberty could have rationally concluded
that the plaintiff's physical abilities "largely comport with the
DOT's description of the physical requirements of her occupation."
Finally, Tsoulas claims that Liberty improperly relied
solely upon the surveillance evidence to terminate her benefits.
This assertion is plainly unsupported by the record. Liberty
consulted two physicians -- Dr. Holbrook and Dr. Erlbaum -- after
reviewing the surveillance videos. Tsoulas gives us no reason to
believe that Liberty relied solely upon the surveillance and
discounted the medical experts whose advice it sought.
3. Medical Records
Tsoulas claims that her medical records attest to the
severity of her disability and demonstrate that Liberty's
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termination of her benefits was arbitrary and capricious. To
support this argument, she points to abnormalities in her brain MRI
scans and the diagnoses and opinions of various physicians,
including Dr. Miller's assessment in 1999 that Tsoulas was
suffering from relapsing/remitting MS and that she was "greatly
disabled" by her symptoms, and Dr. Finder's conclusion in the same
year that he did not expect Tsoulas ever to return to either
modified or full function.
None of this is sufficient to demonstrate that Liberty
lacked substantial evidence to terminate her benefits. The
plaintiff's medical history is replete with suggestions that her MS
was not totally disabling under the terms of the Plan. In his
March 27, 2004 report, Dr. Holbrook, an independent reviewing
physician, concluded that the information in Tsoulas's file --
including her medical history and the surveillance materials --
suggested that Tsoulas had recovered sufficient functional ability
to resume full-time work. Liberty then sought a second opinion
from Dr. Erlbaum, a board-certified neurologist, who opined that
Tsoulas's primary diagnosis was likely psychiatric in nature and
that her secondary diagnosis was a mild form of MS. Dr. Erlbaum
agreed that Tsoulas was capable of returning to work on a full time
basis. Even apart from the fact that the evaluations Tsoulas cites
were conducted years before the termination of her benefits, we
have held that the existence of conflicting medical evidence is not
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sufficient to render arbitrary the decision to terminate benefits.
Wright, 402 F.3d at 78-79.
Tsoulas also argues that Liberty failed to consider the
effects of her fatigue, speech difficulties, and memory problems on
her ability to perform her job responsibilities enumerated in the
DOT definition. In addition to the physical responsibilities
already mentioned, the DOT definition indicated that oral
expression and comprehension were "very important" and that
memorization, written expression, and comprehension were
"important."
Although Tsoulas maintains that her cognitive impairments
have been "well-documented," this is not the case. All references
to cognitive problems pertain to Tsoulas's self-reported symptoms.
In 1998, Dr. Langer-Gould described Tsoulas's mental state as
"alert" despite her self-reported experience of "slowed mentation."
In July 1999, Dr. Miller noted that Tsoulas was "alert and
attentive with normal speech and language, and no gross cognitive
defects." Dr. Miller also noted that "there [was] a degree of
embellishment" of her symptoms. In 2001, Nurse Entrekin reported
that Tsoulas "was significantly impaired due to physical
limitations as well as [Tsoulas's] own assertions of deteriorating
mental status." The record contains no evidence that any of her
examining physicians identified or diagnosed cognitive problems of
any kind.
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There is significant indication throughout Tsoulas's file
that she was suffering from psychological and or psychiatric
difficulties. However, despite repeated suggestions by her own
physicians, she has largely refused to seek assistance for these
problems. When Dr. Langer-Gould suggested that Tsoulas seek
treatment for her conversion disorder, Tsoulas "vehemently denied
that she had any psychological problems." Tsoulas visited Ms. Kart
for psychotherapy sessions for only three months and never obtained
another mental health evaluation after March 5, 1999. In the
letter denying her appeal, Liberty pointed out that despite her
possible psychiatric problems, Tsoulas had not presented a
psychiatric medical record from which Liberty could determine
whether she had a psychiatric impairment that prevented her from
performing her occupational responsibilities. We find no basis in
Tsoulas's medical records to upset the district court's conclusion
that Liberty's termination of her benefits was not arbitrary or
capricious.
4. Dr. Holbrook
Finally, Tsoulas alleges that Dr. Holbrook's review
demonstrates a bias in favor of terminating her benefits, and
therefore that it was inadequate to support a finding that there
was substantial evidence that she was capable of returning to full-
time work. Specifically, she claims 1) that Dr. Holbrook "placed
undue weight on the existence of a conversion disorder diagnosis in
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1998 and 1999" in concluding the diagnosis of MS was not
conclusively established; 2) that he relied unreasonably on Dr.
O'Connor's opinion that Tsoulas had no physical restrictions
because Dr. O'Connor was an oncologist and did not treat her for
MS; 3) that Dr. Holbrook did not personally review the surveillance
footage, and unreasonably relied on the surveillance reports in
concluding that Tsoulas's physical capabilities were greater than
she admitted; and 4) that Dr. Holbrook's evaluation did not
consider her memory, speech, and cognitive limitations when he
concluded that she was able to perform the duties of her own
occupation.
Plaintiff's arguments are meritless. Although Dr.
Holbrook did specifically rely on Tsoulas's 1998 and 1999 medical
records in concluding that her symptoms had a psychological or
psychiatric component, Tsoulas cannot now complain that such
records are out of date because she refused to seek any psychiatric
evaluation subsequent to 1999.
Dr. Holbrook's reference to Dr. O'Connor's opinion that
there were "no physical restrictions" was only one of several
pieces of evidence that Dr. Holbrook used to determine her current
level of functionality. Although Dr. O'Connor was an oncologist
who treated Tsoulas for breast cancer, not MS, we do not think it
improper for Dr. Holbrook to have taken her assessment into
account. We have held that "it is not for a court to determine how
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much weight [a non-examining medical consultant] should have
accorded [a particular piece of evidence]." Gannon, 360 F.3d at
214.
Tsoulas's claim that Dr. Holbrook failed personally to
review the surveillance footage is unsupported by the record.
Liberty specifically requested that he review the surveillance
videos, and his report refers to several incidents shown on the
videos. From this, the district court quite reasonably concluded
that Dr. Holbrook had actually viewed the videos, and we find no
error.
Finally, Tsoulas claims that Dr. Holbrook's review
"completely ignored" her memory, speech, and cognitive impairments
in concluding that she "does retain functional capacity sufficient
for full-time work." Dr. Holbrook's report indicates that he
reviewed plaintiff's entire file. As discussed previously,
Tsoulas's claim is without basis because her file does not contain
clear evidence of these symptoms.
III. Conclusion
After careful consideration, we cannot say that Liberty's
decision to terminate Tsoulas's disability benefits was arbitrary
or capricious. For the foregoing reasons, the decision of the
district court is affirmed.
Affirmed.
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