[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-14005 ELEVENTH CIRCUIT
MARCH 6, 2009
Non-Argument Calendar
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 07-01616-CV-IPJ
JUDY BRANNON,
Plaintiff-Appellant,
versus
BELLSOUTH TELECOMMUNICATIONS,
INC.,
Defendant,
BELLSOUTH SHORT TERM
DISABILITY PLAN,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(March 6, 2009)
Before BIRCH, CARNES and HULL, Circuit Judges.
PER CURIAM:
Judy Brannon appeals the district court’s entry of summary judgment in
favor of BellSouth Short Term Disability Plan (STD Plan) in her action for
wrongful denial of benefits under the Employee Retirement Income Security Act,
29 U.S.C. § 1001 et seq. She contends that the district court erred by determining,
on de novo review, that the claims administrator for the BellSouth STD Plan was
“not wrong” in denying her six months of short-term disability benefits.1
I.
Judy Brannon worked at a BellSouth Telecommunications customer call
center for over twenty-six years. On August 12, 2005, Brannon, who was in
treatment for depression and anxiety, was hospitalized for seven days after a
conflict with her supervisor made her condition worse. She did not return to work.
1
Because we agree with the district court that the claims administrator was “not wrong”
in denying Brannon six months of short-term benefits, we do not reach two other arguments
Brannon raises. First, she asserts that she was entitled to long-term disability benefits. We do not
address that argument because a Plan participant is eligible for long-term disability benefits only
where the participant was awarded and paid for the full amount of short-term disability benefits.
Second, she asserts that the district court erred by dismissing BellSouth Telecommunications,
Inc. as a party. Although she asserts that the dismissal “inhibited [her] . . . discovery efforts,” she
acknowledges that the dismissal is “harmless error if Brannon was not disabled under the terms
of the plan.”
2
Brannon applied for benefits under the BellSouth STD Plan, which offers
short-term benefits for up to fifty-two weeks to an employee of her tenure and
position who is “disabled” under the Plan. Her application was considered by
Broadspire Services, Inc.,2 a third party vendor given “complete discretionary
authority” to administer claims under the terms of the STD Plan. Broadspire
approved benefits for the first six months following Brannon’s hospitalization, but
discontinued benefits as of February 20, 2006 after determining that the medical
evidence no longer supported a finding that she was “disabled.” There is no
dispute that Brannon was entitled to benefits for the first six months. Only the
denial of benefits for the second six months is at issue in this appeal. The district
court found that the denial was “not wrong.” We agree.
We review de novo a district court’s grant of summary judgment and “apply
the same legal standards that governed the district court’s decision.” Doyle v.
Liberty Life Assurance Co. of Boston, 542 F.3d 1352, 1358 (11th Cir. 2008).
ERISA itself does not set out the appropriate standard for a court to apply in
reviewing a claims administrator’s benefits decision. Id. at 1355. We have held,
however, that “[o]ur review of a denial of benefits is for whether the decision of
2
Broadspire Services, Inc. was formerly Kemper, and is now Aetna. The personnel and
procedures have remained the same.
3
the administrator was arbitrary and capricious.” Glazer v. Reliance Standard Life
Ins. Co., 524 F.3d 1241, 1246 (11th Cir. 2008). To make that determination, we
apply a six-step analysis. See id. Our analysis in the present case begins and ends
with the first step, which instructs us to:
Apply the de novo standard to determine whether the claim
administrator’s benefits-denial decision is “wrong” (i.e., the court
disagrees with the administrator’s decision); if it is not, then end the
inquiry and affirm the decision.
Doyle, 542 F.3d at 1346–57 (citations omitted).3
II.
Brannon contends that the record establishes that she had a “disability”
under the STD Plan from February 20, 2006 forward and is thus entitled to short-
term disability benefits from that date through the remainder of the fifty-two week
period. She can prevail only if we find that Broadspire’s decision was “wrong.”
See Williams, 373 F.3d at 1138. “A decision is ‘wrong’ if, after a review of the
decision of the administrator from a de novo perspective, the court disagrees with
the administrator’s decision.” Glazer, 524 F.3d at 1246 (citation and internal
quotation marks omitted).
3
We have recently modified the sixth step in light of the Supreme Court’s decision in
Metropolitan Life Ins. Co. v. Glenn, 554 U.S. ___, 128 S. Ct. 2342 (2008). See Doyle, 542 F.3d
at 1360. That modification, however, does not affect our analysis here.
4
In our de novo review, we turn first to the plan itself. See 29 U.S.C. §
1104(a)(1)(D) (providing that an ERISA plan administrator must “discharge his
duties with respect to a plan . . . in accordance with the documents and instruments
governing the plan insofar as such documents and instruments are consistent with
the provisions of [ERISA].” Under the STD Plan:
Disability means as of the eighth consecutive calendar Day of
Absence a medical condition supported by objective medical
evidence, which (i) makes a Participant unable to perform any type of
work as a result of physical or mental illness or an accidental injury . .
. . “Any type of work” includes the following regardless of
availability: (a) the Participant’s regular job with or without
accommodations, (b) any other Participating Company job with or
without accommodations, or (c) temporary modified duties. “A
Participating Company job” is any job within a Participating
Company; or any job outside a Participating Company which is
comparable in skills and functions.4
Thus, under the terms of the Plan, Brannon had to provide objective medical
evidence showing that she was unable to perform any type of work as a result of
her medical condition.
To evaluate Broadspire’s application of that definition to Brannon’s claim,
4
The district court applied this definition, which appears in the STD Plan as amended and
restated on January 1, 2006, and we will too. In her reply brief, Brannon suggests that an earlier
version of the STD Plan applies—a version in which the “supported by objective medical
evidence” language does not appear. That suggestion is of little moment, though, because
Brannon admits that objective medical evidence is generally necessary under ERISA and that it is
valid criteria on which to decide claims. Broadspire properly evaluated the adequacy of objective
medical evidence regardless of whether the “supported by objective medical evidence” language
was included in the definition of disability.
5
we are limited to the record that was before Broadspire when it made its decision.
See Glazer, 524 F.3d at 1247 (citation omitted). Brannon bears the burden of
proving that she was disabled under the terms of the Plan. See Horton v. Reliance
Standard Life Ins. Co., 141 F.3d 1038, 1040 (11th Cir.1998).
Brannon submitted enough medical evidence to establish a disability before
February 20, 2006. Neither party disputes that. After February 20, 2006,
however, Broadspire received only one letter on Brannon’s behalf—a letter from
Brannon’s treating licensed professional counselor, Kathy Sechriest.5 Although
the letter, dated June 26, 2006, states that “[Brannon’s] symptoms have not
improved in the last year and preclude her from working at any job,” it fails to
provide support for that conclusion. The letter summarizes Brannon’s treatment
history including the details surrounding Sechriest’s recommendation that she be
hospitalized. It also summarizes the symptoms and conduct detailed in Sechriest’s
pre-February 20, 2006 submissions. Aside from Sechriest’s own observations,
5
Brannon points out two other pieces of evidence in her file. First, there was a letter
from Broadspire stating that Brannon had applied for and received a leave of absence from her
position effective February 20, 2006 under the STD Plan. That letter was not based on any
determination of disability. Instead, the leave was approved for the period of time in which she
appealed Broadspire’s decision, and if she was later found to be disabled, the time would be
deemed a “service credit.” Second, there was a March 20, 2006 letter awarding her Social
Security disability benefits beginning February 2006. However, the “approval of ‘disability
benefits’ by the SSA is not considered dispositive on the issue of whether a claimant satisfies the
requirement for disability under an ERISA-covered plan.” Whatley v. CNA Ins. Cos., 189 F.3d
1310, 1314 n.8 (11th Cir. 1999).
6
however, there is little objective evidence supporting the conclusion that Brannon
could not work at any job.
There is also little or no explanation for why Brannon’s symptoms make her
unable to perform any job, a requirement of “disability” under the Plan. Instead,
the letter focuses on why Brannon would be unable to perform her old job.
She admits to suicidal ideations and feels strongly that if she were
forced to go back to work she wouldn’t be able to control her urges to
hurt her supervisor. The harassment [Brannon] has described to me
does indeed sound like the supervisor singled [Brannon] out to
criticize her in front of others. The supervisor has reportedly ignored
the same behaviors in other workers.
Sechriest’s letter introduces no new evidence or treatment records. Brannon
cannot meet her burden with that letter alone. The generalized statement that her
“symptoms have not improved in the last year” is not specific enough to bootstrap
in all of the evidence from before February 20, 2006. Other evidence in the record
supports Broadspire’s decision and contradicts Sechriest’s conclusion that
Brannon could not perform any job. That evidence includes an independent
medical examination of Brannon and three peer reviews of the medical evidence
conducted by non-examining physicians.
Before terminating Brannon’s benefits, Broadspire scheduled her for an
independent medical examination (IME) with Dr. Thomas Boll. Dr. Boll
7
administered an intelligence test using the Wechsler Adult Intelligence Scale-III.
From the results, he determined that Brannon was a “woman with lifelong abilities
in the low average range; that she had no suggestion of significant loss or
deterioration or impairment or areas of dysfunction of a specific and identifiable
nature.” He also administered two malingering tests. One test showed that she
was not malingering and the other test result was “borderline.” After speaking
with Brannon, Dr. Boll noted that she reported having lived with depression for
most of her life, but had nonetheless been able to maintain her job for twenty-six
years.
Dr. Boll also reported that Brannon:
did not demonstrate any emotional dyscontrol. She demonstrated
good ability to show appropriate affect and her affect was appropriate
to the content of the conversation discussed. There were no dramatic
shifts or any evidence of emotional liability. Ms. Brannon did not
demonstrate any cognitive impairment with attention, concentration
or memory despite complaints to the contrary. . . . She did not
demonstrate any impairment in reality testing and specifically denied
delusions and hallucinations. She did not demonstrate any clinically
significant behavioral symptoms.
Also before terminating Brannon’s benefits Broadspire referred her file to
Dr. Leonard Schnur for a peer review. Dr. Schnur stated that there were no recent
examination findings by either of Brannon’s healthcare providers and that all of
their documentation pre-dated February 20, 2006. He noted that additional
8
documentation from Brannon’s treating providers would be helpful in assessing
Brannon’s claim. Dr. Schnur concluded that the IME showed no evidence of
impairment, and there was a lack of examination findings to substantiate
functional impairment after February 20, 2006. He stated that the “claimant’s
subjective complaints of emotional distress were not substantiated through
examination findings.” The next day Broadspire informed Brannon that her
benefits were retroactively denied starting on February 20, 2006.
In that denial letter Broadspire reiterated that “the medicals no longer
supported [her] inability to perform any work,” and cited to section 2 of the Plan
requiring “objective data that supports your inability to work any job within the
company.” The letter explained that the IME did not provide clinical evidence
showing an impairment or illness so severe that Brannon was unable to work. The
letter informed Brannon of her right to submit additional medical information for
review. It listed examples of objective information that Brannon could submit
including a Global Assessment of Functioning, a full mental status exam,
observable objective findings, psychological testing, and progress notes.
Brannon appealed the decision under the plan’s two level appeal procedure.
During the course of review, Broadspire referred Brannon’s file to two peer
reviewing physicians. The first post-denial peer review was conducted by Dr.
9
Lawrence Burstein, a psychologist. Dr. Burstein reviewed the file, specifically
considering the IME and the most recent statements submitted by Brannon’s
treating providers, and he found that the medical evidence failed to provide
supporting examination findings or examples showing that Brannon was unable to
work at any job. Dr. Burstein concluded that the information in Brannon’s file did
not support a functional impairment that, from a psychological perspective, would
have precluded Brannon from all occupations.
The second post-denial peer review was conducted by Dr. Bunny Falk. Dr.
Falk also considered the IME and observed that most of the documentation pre-
dated February 20, 2006. Dr. Falk was the only physician to conduct a peer
review after Sechriest submitted the June 26, 2006 letter. Dr. Falk found that
although Sechriest had reported her own actual observations, she failed to include
examples of how the symptoms she observed would prevent Brannon from
working. She determined that the available documentation did not support a
finding of functional impairment that, from a psychological perspective, would
preclude working. Broadspire denied Brannon’s second and final appeal on
August 22, 2006. The letter stated that the additional information Brannon
submitted did not support the inability to perform any or all types of work,
particularly sedentary work.
10
Brannon asks us to discount Dr. Boll’s IME report because as a referral
physician for Broadspire, he had an incentive to find that she was not disabled
unlike her treating providers. Furthermore, she points out that Dr. Boll met with
Brannon only once, and Dr. Boll did not have a level of expertise exceeding that
of her treating providers. For this argument, she relies on Black & Decker
Disability Plan v. Nord, 538 U.S. 822, 123 S. Ct. 1965 (2003).
Nord does not support Brannon’s argument. Under Nord “courts have no
warrant to require administrators automatically to accord special weight to the
opinions of a claimant’s physician; nor may courts impose on plan administrators
a discrete burden of explanation when they credit reliable evidence that conflicts
with a treating physician’s evaluation.” Id. at 834, 123 S. Ct. at 1972. The Court
explained that a plan administrator may not “arbitrarily refuse to credit a
claimant’s reliable evidence, including the opinions of a treating physician,” id.,
123 S. Ct. at 1972, but that is not what happened here. Dr. Boll’s report offers the
most detail about any post-February 20, 2006 evaluation of Brannon’s condition.
Broadspire’s decision to credit that reliable evidence does not constitute an
arbitrary refusal to consider Sechriest’s June 26, 2006 letter, which failed to
explain why she could not perform “any job.”
Brannon also asks us to discount the peer reviews of Drs. Schnur, Burstein,
11
and Falk as “flawed” under Oliver v. Coca Cola Company, 497 F.3d 1181 (11th
Cir. 2007), vacated in part, 506 F.3d 1316 (11th Cir. 2007), and adhered to in part
on rehearing, 546 F.3d 1353 (11th Cir. 2008). In Oliver we held that the plan
administrator had arbitrarily refused to consider reliable evidence that supported
Oliver’s claim for benefits under his ERISA plan. See id. at 1199. We explained:
Here, Oliver presented Broadspire and Coca-Cola with a plethora of
medical evidence in support of his disability claim. Coca-Cola denied
Oliver’s claim not on the basis of conflicting, reliable evidence—a
practice we have upheld— rather, it simply ignored relevant medical
evidence in order to arrive at the conclusion it desired.
Id. (citation omitted).
Unlike Oliver, Brannon did not present Broadspire with “a plethora of
medical evidence” supporting her post-February 20, 2006 disability claim. More
than once after that date, Broadspire asked for a Global Assessment of
Functioning, a full mental status examination, observable objective findings,
psychological testing, and progress notes. Brannon did not submit any such
evidence after February 20, 2006. Instead, after that date Dr. Boll conducted his
independent medical examination and concluded that Brannon “did not
demonstrate any clinically significant behavioral symptoms.” Aside from
Sechriest’s June 26, 2006 update letter, Brannon presented no medical evidence to
support her claim of disability for the relevant time period.
12
Brannon did not provide enough evidence to establish that she continued to
fit the disability requirements under the Plan after February 20, 2006. The
evidence she submitted during that time failed to explain how her medical
condition prevented her from performing “any type of work.” Sechriest’s letter
merely concludes that Brannon’s “symptoms have not improved in the last year
and [that they] preclude her from working any job.” Weighed against Dr. Boll’s
independent medical examinations and the peer reviews, Broadspire’s decision to
terminate Brannon’s benefits as of February 20, 2006 was “not wrong.” See
Glazer, 524 F.3d at 1247.
AFFIRMED.
13
Judy Brannon v. BellSouth Telecommunications, Inc
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2009-03-06
Citations: 318 F. App'x 767
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