NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0588n.06
No. 08-1990
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
LINDA L. KIEL, ) Aug 20, 2009
) LEONARD GREEN, Clerk
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
LIFE INSURANCE COMPANY OF NORTH ) EASTERN DISTRICT OF MICHIGAN
AMERICA; CIGNA CORPORATION; )
HENRY FORD HEALTH SYSTEM, )
)
Defendants-Appellees. )
Before: MERRITT, COOK, and WHITE, Circuit Judges.
COOK, Circuit Judge. Linda Kiel sued the Life Insurance Company of North America
(“LINA”) under the Employee Retirement Income Security Act of 1974 (“ERISA”) after LINA
denied her application for long-term disability benefits (“LTD”). Kiel moved for summary
judgment, and LINA moved to affirm the Administrator’s denial of LTD and for judgment on its
counterclaim for reimbursement of “overpaid” short-term benefits. The district court ruled for
LINA, holding that it did not arbitrarily or capriciously deny Kiel’s claim. Kiel appealed, and we
affirm.
I.
No. 08-1990
Kiel v. Life Insurance Company of North America
Kiel received LINA health insurance and disability plans through her employer, the Henry
Ford Health System. Under the policy, a claimant must provide “satisfactory proof of Disability”
to receive benefits. The policy defines “Disability” in terms of the claimant’s loss of the functional
ability to perform her job without physical restrictions:
The Employee is considered Disabled if, solely because of Injury or Sickness, he or
she is:
1. unable to perform all the material duties of his or her Regular
Occupation; and
2. unable to earn 80% or more of his or her Indexed Earnings
from working in his or her Regular Occupation.
After Disability Benefits have been payable for 24 months, the Employee is
considered Disabled if, solely due to Injury or Sickness, he or she is:
1. unable to perform the material duties of any occupation for
which he or she is, or may reasonably become qualified based
on education, training, or experience; and
2. unable to earn 60% or more of his or her Indexed Earnings.
Kiel stopped working on April 25, 2005, because of recurring pain in her upper abdomen.
Her general surgeon, Dr. Vic Velanovich, suspected mesenteric panniculitis and her primary care
physician, Dr. William Keimig, confirmed the diagnosis. Dr. Keimig advised Kiel not to return to
work, prompting her to apply for short-term disability benefits. LINA approved her request in June.
August passed and Kiel’s condition persisted, but she did not begin therapy. Instead, she
successfully suppressed the pain with over-the-counter pain relievers, such as Tylenol and Motrin.
LINA extended Kiel’s short-term benefits and advised her, on September 25, that she may qualify
for LTD. She subsequently applied.
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Kiel v. Life Insurance Company of North America
As part of Kiel’s LTD application, LINA required that Dr. Keimig complete a “Physical
Abilities Assessment.” This assessment sought medical documentation about Kiel’s ability to
physically perform aspects of her job, in order to ascertain whether she satisfied the policy’s
definition of disabled. When Dr. Keimig did not respond, LINA made another request and sought
to speak with him several other times. Finally, when he had not responded by November 9, LINA
denied the claim and informed Kiel that she lacked medical documentation to support restrictions
so severe as to impair her from working.
Kiel appealed the denial in February and submitted medical records from Dr. Keimig. But
again, the records merely reiterated the diagnosis and that she suffered from “fairly constant
abdominal pain.” They did not address whether the condition affected her ability to perform her job.
LINA again denied the claim, and Kiel again appealed.
Around this time, LINA received a file from Unumprovident Corp. (“UNUM”), a company
with which Kiel had another disability policy. UNUM’s file included three days of video
surveillance conducted during November, 2005. Although the activity comprised only a small
fraction of the video time, the video showed Kiel performing a variety of physical chores: driving
190 miles non-stop; pushing a shopping cart; loading groceries into her vehicle; reaching overhead
to close her car’s tailgate; carrying a rug; and carrying full plastic trash bags. Two doctors—one
procured by UNUM, and one by LINA—independently reviewed the tapes and agreed that Kiel’s
conduct was inconsistent with her complaints about physical impairments. Dr. Herbert Dean opined
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Kiel v. Life Insurance Company of North America
that the video “does not support any impairment from abdominal pain,” and Dr. Venkatachala
Mohan concluded that “[b]ased on the information provided, she should be able to take her Motrin
to help resolve the pain and continue to perform her duties.”
LINA once more denied the claim, and Kiel requested that it review the decision. LINA
agreed, but again informed her that, to succeed, she must submit new medical information
documenting her inability to physically perform her job. Nonetheless, Dr. Keimig’s records merely
stated that her condition had not improved. He sent LINA a formal letter stating that Kiel could not
return to work, but he did not submit documentation of any physical impairment. Consequently,
LINA rejected this final appeal. Her administrative options exhausted, Kiel filed suit under ERISA.
29 U.S.C. § 1001 et seq.
II.
We review de novo a district court’s decision in an ERISA benefits case. Spangler v.
Lockheed Martin Energy Sys., Inc., 313 F.3d 356, 361 (6th Cir. 2002). And in cases like this, where
the policy vests an administrator with discretion, we review the administrator’s underlying
determination under an arbitrary and capricious standard. McDonald v. Western-Southern Life Ins.
Co., 347 F.3d 161, 168 (6th Cir. 2003). This “least demanding form of judicial review of
administrative action” compels affirming the administrator’s decision “[w]hen it is possible to offer
a reasoned explanation, based on the evidence, for a particular outcome.” Hunter v. Caliber Sys.,
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No. 08-1990
Kiel v. Life Insurance Company of North America
Inc., 220 F.3d 702, 710 (6th Cir. 2000) (quoting Davis v. Ky. Fin. Cos. Retirement Plan, 887 F.2d
689, 693 (6th Cir. 1989)).
On appeal, Kiel offers several purported deficiencies that make LINA’s denial of LTD
arbitrary and capricious. We address each in turn and conclude that they do not undermine LINA’s
reasoned explanation.
A. Conflict of Interest
As the district court acknowledged, a conflict of interest existed because LINA both
“determine[s] Kiel’s eligibility . . . and also . . . pay[s] those same benefits.” Such a “dual function
creates an apparent conflict of interest,” Glenn v. Metlife, 461 F.3d 660, 666 (6th Cir. 2006), aff’d
128 S. Ct. 2343 (2008), and we treat that conflict “as a ‘facto[r] in determining whether there is an
abuse of discretion,” Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989) (quoting
Restatement (Second) of Torts § 187 cmt. d (1959)). But while this conflict slightly favors Kiel, it
does not overcome LINA’s reasoned explanation—that Kiel did not provide documentation
supporting restrictions on her physical ability to work.
B. Medical Records
Kiel asserts that LINA arbitrarily ignored her medical records as documentation of her pain.
But LINA disputes neither the diagnosis of mesenteric panniculitis nor Kiel’s pain. LINA did not
ignore these records, but declined to rely on them because they do not address the central
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No. 08-1990
Kiel v. Life Insurance Company of North America
issue—Kiel’s ability to physically perform her job. Despite repeated requests, Dr. Keimig never
provided records documenting any physical impairment; he merely reaffirmed his diagnosis and
Kiel’s symptoms. Given that this information was unresponsive to LINA’s concerns, it was not
arbitrary or capricious to rely more heavily on other evidence that did address Kiel’s functionality.
C. Reliance on Independent File Reviews
Lacking documentation from Dr. Keimig, LINA relied on the independent reviews conducted
by other doctors. Reliance on other nonexamining physicians is reasonable so long as the
administrator does not totally ignore the treating physician’s opinions. See Black & Decker
Disability Plan v. Nord, 538 U.S. 822, 834 (2003). LINA did not ignore Dr. Keimig; it simply found
other physicians’ opinions more responsive because they directly addressed whether Kiel’s
mesenteric panniculitis impairs her ability to work. Moreover, Kiel seeks to discredit both doctors,
insisting that they lack the expertise to understand her condition. Nevertheless, both doctors had
extensive internal medicine experience. We recognize that the video is not necessarily inconsistent
with Kiel’s claim of intermittent disabling pain, and that the independent reviews appear based on
the film. However, given the absence of affirmative documentary support from Kiel’s treating
physician, LINA did not act arbitrarily or capriciously in relying on the other doctors’ opinions.
D. The Social Security Determination
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No. 08-1990
Kiel v. Life Insurance Company of North America
Kiel also insists that LINA arbitrarily ignored her award of Social Security Disability Income
(“SSDI”). She cites Glenn v. MetLife, 461 F.3d 660 (6th Cir. 2006), for the proposition “that the
plan administrator was arbitrary in failing to consider the award of disability benefits that she secured
from the Social Security Administration.” Kiel seeks to estop LINA from disputing her disability
because LINA implicitly acknowledged it by encouraging her to apply for SSDI in the first place.
But her theory overlooks the difference between Social Security and ERISA benefits. Although the
Social Security Administration’s decision is relevant, it is not dispositive. For instance, Social
Security determinations follow a highly deferential “treating physician rule” that does not apply in
ERISA cases. Nord, 538 U.S. at 832–33 (“[C]ritical differences between the Social Security
disability program and ERISA benefit plans caution against importing a treating physician rule from
the former area into the latter.”). Given these differences between the two regulatory schemes, LINA
did not take a “blatantly inconsistent” position by denying Kiel’s claim.
E. Denial Letters
Kiel also criticizes LINA’s denial letters as “inconsistent,” “sloppy,” and “disingenuine.”
Each letter, however, offers a consistent explanation for the denial—the lack of any medical
documentation supporting restrictions on Kiel’s ability to work. None of these letters exhibits
symptoms of arbitrary or capricious review.
F. Delays in LINA’s Decision-Making Process
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No. 08-1990
Kiel v. Life Insurance Company of North America
Kiel alleges that LINA acted arbitrarily and capriciously by repeatedly delaying its decision.
For instance, she complains that “each letter was authored by a claims person rather than a qualified
professional,” that “the letters were never proofread,” and that there was no file activity “between
the time the extension was taken and the time decision was made.” None of these accusations
undermine LINA’s reasoned explanation for either its decision or the delays.
G. Expensive Nature of the Claim
Kiel further complains that LINA drove up the cost of proving her disability by making
redundant demands. But when she claims that LINA could have conducted its own tests, she ignores
that “[t]he insured employee bears the burden of proving his or her continuing ‘disability’.” Calvert
v. Firstar Fin., Inc., 409 F.3d 286, 289 (6th Cir. 2005). Kiel bore the burden of documenting any
physical impairments, and her failure to do so forced LINA to make the very requests that Kiel
complains about. The investigation’s expense does not render LINA’s decision arbitrary and
capricious.
III.
Finally, Kiel asserts that the district court erred by ordering her to reimburse LINA for
overpaid short-term benefits. Her policy provided that: “An employee for whom Disability Benefits
are payable under this Policy may be eligible for benefits from Other Income Benefits. If so, [LINA]
may reduce the Disability Benefits by the amount of such Other Income Benefits.” Because SSDI
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No. 08-1990
Kiel v. Life Insurance Company of North America
constitutes “Other Income Benefits,” the court ruled that LINA could recover $2,073.65 in
“overpaid” benefits.
Kiel responds that the Court should estop LINA from seeking reimbursement because it did
not recognize her disability when she received the SSDI award. But as the district court noted, Kiel
did not refute LINA’s claim for reimbursement and not addressing the issue, she forfeited it.
Regardless, because the Social Security and ERISA regimes use different standards, no inconsistency
results from LINA denying disability while pursuing reimbursement.
IV.
We affirm the decision of the district court.
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