Sharon Creel v. Wachovia Corporation

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
U.S. COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ELEVENTH CIRCUIT
________________________ JANUARY 27, 2009
THOMAS K. KAHN
No. 08-10961 CLERK
________________________

D. C. Docket No. 07-00248-CV-T-24-MAP

SHARON CREEL,

Plaintiff-Appellant,

versus

WACHOVIA CORPORATION,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(January 27, 2009)

Before BIRCH and PRYOR, Circuit Judges, and STROM,* District Judge.

BIRCH, Circuit Judge:

*
Honorable Lyle E. Strom, United States District Judge for the District of Nebraska,
sitting by designation.
 Sharon Creel appeals from the district court’s grant of summary judgment in

favor of Wachovia Corporation on her suit seeking long-term disability (“LTD”)

benefits under Wachovia’s Long Term Disability Plan (“the Plan”). The district

court concluded that Wachovia’s decision to terminate Creel’s LTD benefits was

neither de novo wrong nor unreasonable. After reviewing the record and the

arguments of the parties, we VACATE the grant of summary judgment and

REMAND for further proceedings in light of this opinion.

I. BACKGROUND

A. Wachovia’s LTD Plan

The Plan is an employee welfare benefit plan governed by the Employee

Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001, et seq..

Wachovia’s Benefits Committee is designated as the “Plan Administrator” and is

granted sole discretionary authority regarding the interpretation of the terms and

provisions of the Plan. The designated third-party Claims Administrator for the

Plan, Liberty Life Assurance Company of Boston (“Liberty Mutual”), makes initial

decisions regarding eligibility for disability benefits.

To receive LTD benefits under the Plan, claimants must prove that they meet

the Plan’s definition of “disabled.” The Plan describes the requisite “proof” of

disability as:

2
 (a) the evidence in support of a claim for benefits in a form or format
satisfactory to the Claims Administrator, (b) an attending Physician’s
statement in a form or format satisfactory to the Claims Administrator,
completed and verified by the Participant’s attending Physician, and
(c) provision by the attending Physician of standard diagnosis, chart
notes, lab findings, test results, x-rays and/or other forms of objective
medical evidence that may be required by the Claims Administrator in
support of a claim for benefits. Notwithstanding the foregoing, the
Plan Administrator, or the Claims Administrator acting as agent of the
Plan Administrator, may also consider other evidence of a claimed
Disability, including, but not limited to evidence discovered or
otherwise developed by the Plan Administrator or the Claims
Administrator.

WAC14611 (emphasis added). What a claimant must prove to establish disability

depends on how long she has received benefits. During the first twenty-four

months of coverage, a claimant would be “disabled” if she shows that she had an

illness or injury that made her unable to perform all of the regular duties of her

then-current job. After twenty-four months, the claimant would be “disabled” only

if she established that her condition made her unable to perform all of the duties

required for any occupation for which her background and experience would make

her qualified. However, if her disability is based on a mental illness, she generally

cannot receive more than twenty-four months of LTD benefits.2 The Plan defines

1
The administrative record in this case was filed as part of Wachovia’s motion for
summary judgment (R1-14) and Bates numbered from WAC0077 to WAC1529. All references
to documents from that record will use the corresponding Bates number.
2
Claimants are exempt from this rule if they are either in a hospital or confined for
treatment for at least fourteen consecutive days after the twenty-four-month period is over.

3
“mental illness” as “mental, nervous, or emotional diseases or disorders of any

type.” WAC1442.

B. Creel’s Benefits Claim

Creel is a fifty-six-year-old former employee of Wachovia. She worked

there until 15 July 2002, when she was hospitalized for an attack in which she

complained of chest pain and partial paralysis of the left side of her body. Creel

subsequently applied for short-term disability (“STD”) benefits under Wachovia’s

STD plan. As part of her application, Creel submitted two attending physician

statements (“APS”) to Liberty Mutual. One APS, from her primary care physician,

Dr. Nancy Sokany, made a primary diagnosis of major depression and a secondary

diagnosis of anxiety and migraine headaches. The other APS was from her

psychiatrist, Dr. Brian Harrelson, who rendered a primary diagnosis of anxiety and

panic disorder. Liberty Mutual approved her application, and she received STD

benefits for twenty-six weeks, the maximum period permitted under Wachovia’s

STD plan.

Creel also submitted a claim for LTD benefits under the Plan, which Liberty

Mutual approved in January 2003. Over the ensuing months, Liberty Mutual

requested medical records from Creel’s then-current physicians to monitor whether

she still had a disability under the Plan. The responses it received largely reiterated

4
the diagnoses from the initial APSs. For example, her primary care physician in

late 2003, Dr. Jorge Gadea, rendered a primary diagnosis of depression and a

secondary diagnosis of migraine headaches.

In January 2005, Liberty Mutual sent a letter to Creel informing her that it

was commencing a review process to determine if she met the Plan’s post-twenty-

four-month definition of disability. The letter noted that Liberty Mutual would

terminate her LTD benefits unless it found that she was unable to perform any

occupation, rather than just her own.3 As part of Liberty Mutual’s inquiry, it

requested that Creel obtain various medical documents from her treating

psychiatrist, Dr. Walter Afield, and her treating neurologist, Dr. Denise Griffin.

Liberty Mutual also asked Creel to keep a headache diary, a blank copy of which it

attached to the letter.4 Creel completed the headache diary, in which she described

experiencing incapacitating migraine headaches on at least eight occasions between

19 January 2005 and 26 February 2005.5 She submitted the diary to Liberty

Mutual along with the other requested documents. Shortly thereafter, Liberty

3
The letter noted that she would continue to receive benefits pending the outcome of the
review, even after the twenty-four-month deadline had elapsed.
4
The diary asks the claimant to document her actions prior to the onset of the headache
and to list the amount of time she was “incapacitated” due to each headache. WAC1140.
5
Some of these migraines lasted more than one day, so she experienced migraines on
eleven days during that period.

5
Mutual sent her entire file to an independent physician consultant (“IPC”), the

board-certified neurologist Dr. Patrick Parcells, for review.

Dr. Parcells examined whether Creel’s file supported her assertion that her

headaches constituted a physical, rather than mental, limitation. He concluded that

her medical record supported the conclusion that her headaches were secondary to

depression and anxiety and that she was not suffering from migraines. Liberty

Mutual specifically asked Dr. Parcells to consider Creel’s headache diary, which it

characterized as reporting headaches on nine out of thirty days.6 He found this

evidence to be of limited value because of the lack of detail regarding each

headache, though he noted that the headaches appeared to result from fluctuations

in the weather. Additionally, he could find no information in her file showing that

her headaches were incapacitating. According to Dr. Parcells, her file overall

indicated that she “ha[d] subjective complaints of frequent headaches that

subjectively are incapacitating;” however, there was no “objective information

available on laboratory testing or by history that these headaches [were] an organic

process.” WAC1135. Accordingly, he found that the record supported the

6
It is unclear how Liberty Mutual reached this total, since there were eight entries and
eleven separate incidents over the thirty-nine days covered in the diary, from 19 January 2005 to
26 February 2005, and no particular thirty-day stretch had nine days of headaches. Creel’s initial
entry, on 19 January 2005, spanned two columns in the diary, so Liberty Mutual possibly
thought that this represented two distinct incidents. Dr. Parcells’s report describes the correct
length and number of reported incidents.

6
conclusion that Creel’s headaches were “not physically incapacitating” and should

not “be considered the main cause for any inability to work.” Id.

After receiving Dr. Parcells’s report, Liberty Mutual sent a letter to Creel

notifying her that her benefits were terminated effective 26 April 2005. In taking

this action, Liberty Mutual primarily relied on Dr. Parcells’s conclusions about the

non-physical cause of Creel’s problems and her apparent ability to work. It also

noted that Creel herself, in her last visit with Dr. Griffin, indicated that her

headaches might have been weather-related. Since “the medical information

currently on file [did] not support the presence of a physical condition that would

prevent [Creel] from performing any occupation” for which she was qualified,

Liberty Mutual found her eligible to receive benefits only for the twenty-four

months allotted for mental illnesses. WAC1125.

Creel appealed this termination in October 2005. In support of her appeal,

she submitted additional medical records from Dr. Afield and Dr. Gadea, which

covered the period from February 2004 to September 2005. Creel contended that

these records demonstrated that her migraines were of a disabling nature and

resulted from a physical, rather than mental, impairment, thereby making the

mental illness limitation inapplicable to her claim.7 She also unsuccessfully sought

7
Though these notes contain multiple references to psychological problems, such as
depression, they also repeatedly mention disabling headaches and dementia, both of which were

7
to depose Dr. Parcells as an expert witness. After the district court denied Creel’s

Petition Pursuant to Federal Rule of Civil Procedure 27 in April 2006, Liberty

Mutual gave her until 10 June 2006 to submit all documents she wanted it to

consider in the review of her appeal.8

Prior to this deadline, Creel provided additional medical records, including

various documents from Dr. Afield and a 25 May 2006 report from Dr. Robert

Martinez, a neurologist. Dr. Afield’s office notes indicated that Creel might be

experiencing the early stages of dementia and that she had reported suffering from

severe headaches approximately ten days out of every month. He also noted that

she was “totally disabled,” which was due solely to the rapidly-worsening, purely

physical, brain impairment that was causing her dementia. WAC0871, 0873–74.

Dr. Afield also examined a number of prior medical reports regarding Creel, which

he thought supported his conclusion that she suffered from “some rather

substantive cerebral dysfunction.” WAC0867. He also found the conclusions in

attributable to physical causes.
8
Rule 27 permits any “person who desires to perpetuate testimony regarding any matter
that may be cognizable in any court of the United States [to] file a verified petition in the United
States district court in the district of the residence of any expected adverse party.” Fed. R. Civ.
P. 27(a)(1). Such a motion will be granted “[i]f the court is satisfied that the perpetuation of the
testimony may prevent a failure or delay of justice.” Fed. R. Civ. P. 27(a)(3).

8
Dr. Parcells’s report to be “totally incorrect” and “wrong” because Dr. Parcells

failed to recognize that Creel’s impairments had a physical cause.9 WAC0868–70.

Dr. Martinez’s 25 May 2006 report evaluated Creel’s claims regarding

migraine headaches. He agreed with the diagnosis of atypical migraine syndrome

— a determination he found to be supported by Creel’s medical records, including

the results from a battery of lab tests, her responses to various medications, and her

own statements.10 As a result, he found that Creel’s headaches caused her to be

incapacitated, and thus unable to work, for ten days a month. Since there was no

discernable pattern for the onset of the migraines, he noted that it was impossible

to predict when they would occur.

Liberty Mutual submitted Creel’s entire file, including these new opinions,

to a second IPC, Dr. Leslie Kurt. According to Dr. Kurt, the evidence in her record

reflected “excellent comprehension and other cognitive functioning” and indicated

that any cognitive problems Creel experienced were episodic and minimal.

WAC0853. Dr. Kurt noted that no doctors appear to have observed Creel

experiencing a migraine, despite their alleged frequency. Though Creel had “a

9
As Wachovia notes, Dr. Afield’s analysis may contain some factual errors, including
the apparent assertion that Dr. Parcells relied on office notes that he likely was not shown.
10
The tests included an echocardiogram, magnetic resonance angiography (MRA), and
magnetic resonance imaging (MRI). Dr. Martinez also indicated that doctors tried at least ten
different medications to alleviate Creel’s problems.

9
documented history of hypertension, hypothyroidism and asthma,” Dr. Kurt

believed that the records showed that these problems had been stabilized and thus

were not contributing to her cognitive difficulties. Id. Accordingly, she

characterized Creel’s cognitive problems as “most likely secondary to depression

and anxiety” and deemed them to be “of insufficient severity” to necessitate any

work-related restrictions. Id. In reaching this conclusion, she discounted Dr.

Afield’s diagnosis of dementia because no other doctors had made such a diagnosis

and Dr. Afield had performed no memory tests to confirm his suspicions.11 Dr.

Kurt did find that the record supported a diagnosis of recurrent headaches

connected to various muscle spasms. As a psychiatrist, though, she felt unqualified

to determine whether Creel was experiencing migraines and thus suggested that the

file be reviewed by a neurologist to determine if the claim of medical impairment

due to migraines had adequate support.

Based on Dr. Kurt’s recommendation, Liberty Mutual had a third IPC, Dr.

Choon Rim, examine Creel’s file. Dr. Rim, a neurologist, reviewed all of the

documents in her record and spoke with Dr. Martinez over the telephone about

11
She also noted that Dr. Afield expressed the opinion that Creel had fibromyalgia and
chronic fatigue syndrome. Since there was no way to medically verify either condition, she
expressed no opinion on those diagnoses.

10
Creel.12 He thought that her file contained no evidence of a neurological

abnormality that could account for her headaches.13 He noted that Creel “ha[d] a

history of depression, anxiety, panic attacks, and chronic fatigue syndrome” and

that “her symptoms appear[ed] to be clinical manifestations being either

psychogenic or psychiatric in nature.” WAC0846. Though migraine headaches

normally would render a patient unable to work, he concluded that Creel did not

fall within this group since there was no evidence in her file to support an inability

to work.

On 25 July 2006, Liberty Mutual sent Creel a letter notifying her that her

appeal had been denied and that she could ask Wachovia’s Benefits Committee to

review the decision. In the letter, Liberty Mutual quoted extensively from Dr.

Kurt’s and Dr. Rim’s reviews, including their conclusions regarding a lack of any

neurological impairment or physical cause for her cognitive problems. It then

found that, “[b]ased on the totality of information contained in Ms. Creel’s file,” it

12
According to Dr. Rim, in this conversation, Dr. Martinez reiterated his belief that Creel
had atypical migraine headaches but also agreed that anxiety, depression, and medication
overuse could be contributing to the headaches. Dr. Rim attempted to speak with Dr. Afield as
well, but was unsuccessful in contacting him by telephone.
13
Although Dr. Rim found no evidence that Creel had ever suffered a stroke or
experienced partial seizures, he noted that the 15 July 2002 attack for which she was initially
hospitalized might have been a transient ischemic attack (TIA), or mini-stroke. There appeared
to have been no further occurrences of TIAs, however. Dr. Rim also discounted the possibility
of a hemiplegic or complicated migraine since Creel had no family history for what is normally a
very rare disorder. Hemiplegia involves paralysis on one side of the body.

11
had no support for concluding that she either had a physical impairment that

prevented her from performing any occupation for which she was qualified or a

“continued physical disability.” WAC0834. Since she already had received the

maximum benefits permitted for mental illness-based disabilities under the Plan,

she was ineligible to receive further LTD benefits.

Creel timely appealed this decision to Wachovia’s Benefits Committee. As

part of this appeal, she submitted a 7 September 2006 opinion from Dr. Martinez,

which was based on his examination of Creel and her medical records.14 In this

document, Dr. Martinez reiterated his earlier diagnosis of atypical complex

migraine syndrome.15 He indicated that this condition would cause Creel to feel

sharp pains on the right side of her head, to experience weakness on her left

extremities, and to become partially paralyzed. The onset of these attacks would

be unpredictable, and, when they occurred, she would be “totally incapacitated and

in bed” for, on average, ten days a month, with each attack lasting anywhere from

four hours to two days. WAC0814. This combination of problems, he asserted,

made her “100% permanently, totally disabled, unable to work, function, or

14
It appears that Dr. Martinez conducted a new physical examination of Creel in making
this report, but it is unclear if his report utilized any other information he did not have when he
wrote his 25 May 2006 opinion.
15
His earlier opinion identified the condition as “atypical migraine syndrome,” but there
appears to be no difference between the two terms. WAC0896.

12
compete in a competitive job environment.” WAC0817. Creel’s appeal letter

referenced these conclusions and noted that they contradicted the IPCs’ findings

regarding the lack of a neurological cause for her migraines and the unlikelihood of

her experiencing hemiplegic migraines.

Wachovia’s Benefits Committee sent Creel a letter notifying her that it was

affirming the decision to deny further LTD benefits. The Committee referenced

the Plan’s mental illness limitation and disability definition as well as Dr. Rim’s

conclusion that there was no neurological basis for her impairment, though it did

not address Dr. Martinez’s new opinion nor the appeal letter. According to the

Committee, Creel had submitted “[n]o new medical documentation . . . which

would controvert the previous decisions” to deny benefits.16 WAC0783. As a

result, there was an “absence of documentation supporting a physical impairment

that meets the definition of Disability or Disabled under the provisions of the

plan,” which meant the Committee had no basis upon which to reverse the earlier

decisions to deny benefits. Id.

16
Liberty Mutual apparently believed that the documents did not affect its earlier
conclusion and that it was unnecessary to send them to an IPC for review. An appeals review
consultant for Liberty Mutual noted in an email to Wachovia that Dr. Martinez’s report was not
based on any new neurological or physical findings but rather on Creel’s self-reported
complaints. Accordingly, the consultant thought that the information contained in that report
was consistent with that already addressed in earlier IPC reviews.

13
 In February 2007, Creel filed suit in the United States District Court for the

Middle District of Florida seeking LTD benefits from Wachovia under the Plan.

Wachovia moved for summary judgment, which the district court granted. See

Creel v. Wachovia Corp., 543 F. Supp. 2d 1298 (M.D. Fla. 2008). The court

evaluated Wachovia’s decision under the six-step standard of review for ERISA

benefit denials set forth in Williams v. BellSouth Telecommunications, Inc., 373

F.3d 1132, 1137–38 (11th Cir. 2004). See id. at 1305–06. The court found that

Wachovia’s decision to terminate benefits was not de novo wrong in light of the

facts of the case and the language of the Plan. See id. at 1306. In particular, the

court focused on the “proof” standard in the Plan, which it viewed as requiring

Creel to submit evidence in whatever form Wachovia deemed satisfactory and

permitting Wachovia to require objective medical evidence. See id. at 1306–07.

Under Williams, this finding was sufficient to uphold the denial of benefits, and

the court therefore granted Wachovia’s summary judgment motion.17 See id. at

1305–06, 1309. Creel now appeals the district court’s decision.

II. DISCUSSION

17
The court also noted that Wachovia’s decision was reasonable given the language of
the Plan and facts of the case and thus, under Williams, could be affirmed even if it was de novo
wrong. See id. at 1309. In making this determination, the court reviewed the denial under a
heightened arbitrary and capricious standard because Wachovia had operated under a conflict of
interest. See id. According to the court, Wachovia met this heightened standard because the
objective evidence requirement “benefits all of the participants of the Plan by ensuring that only
legitimate claims are paid, thus maximizing assets available to pay legitimate claims.” Id.

14
 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 Assur. Co. of Boston, 542 F.3d 1352, 1358 (11th Cir. 2008). As

previously noted, the district court evaluated Wachovia’s decision under the six-

step rubric set forth in Williams. Since the district court rendered that decision,

though, we have recognized that the Supreme Court’s intervening decision in

Metropolitan Life Ins. Co. v. Glenn, 554 U.S. , 128 S. Ct. 2343 (2008),

implicitly overruled this rubric “to the extent it requires district courts to review

benefit determinations by a conflicted administrator under the heightened

standard.” Doyle, 542 F.3d at 1360. Our previous guidelines were as follows:

(1) 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.
(2) If the administrator’s decision in fact is ‘de novo wrong,’ then
determine whether he was vested with discretion in reviewing claims;
if not, end judicial inquiry and reverse the decision.
(3) If the administrator’s decision is ‘de novo wrong’ and he was
vested with discretion in reviewing claims, then determine whether
‘reasonable’ grounds supported it (hence, review his decision under
the more deferential arbitrary and capricious standard).
(4) If no reasonable grounds exist, then end the inquiry and reverse
the administrator’s decision; if reasonable grounds do exist, then
determine if he operated under a conflict of interest.
(5) If there is no conflict, then end the inquiry and affirm the decision.
(6) If there is a conflict of interest, then apply heightened arbitrary and
capricious review to the decision to affirm or deny it.

15
White v. Coca-Cola Co., 542 F.3d 848, 853–54 (11th Cir. 2008). Glenn affects

only the sixth step in this scheme by making the existence of a conflict of interest a

factor in the ERISA analysis, rather than the impetus for applying a heightened

arbitrary and capricious standard.18 See id. at 854. Accordingly, if there is a

conflict of interest, a court should treat it as a factor in considering whether an

administrator’s benefits decision was arbitrary and capricious. See Doyle, 542

F.3d at 1360. Additionally, the burden is on the plaintiff to show the existence of

such a conflict, not on the defendant to disprove its influence. See id.

Creel raises four issues on appeal. First, she argues that the district court

erred by permitting Wachovia to require objective medical evidence of her

inherently subjective condition. Second, she contends that the court improperly

allowed Wachovia to interpret the admittedly ambiguous mental illness limitation

against her, thereby violating the doctrine of contra proferentem. Third, she asserts

that the district court erred by deeming Wachovia to have given a full and fair

review to the new medical evidence presented to the Benefits Committee. Finally,

18
Of course, Glenn would also affect the wording of the third step because there would
be a single level of arbitrary and capricious review and thus no need to term it a “more
deferential” arbitrary and capricious standard. This “arbitrary and capricious” review would
look at whether the administrator abused his discretion, whereas “heightened arbitrary and
capricious” review would have applied a level of scrutiny in between abuse of discretion and de
novo review. See Williams, 373 F.3d at 1137.

16
she argues that the district court improperly applied the heightened arbitrary and

capricious standard of review. We will address these arguments in turn.

A. Objective Medical Evidence Requirement

Creel contends that the decision to deny her claim based on a lack of

objective medical evidence for her disability was both wrong and unreasonable.

She reads the Plan not as requiring claimants to produce particular forms of

evidence but rather as permitting claims administrators to require certain kinds of

evidence. Under her interpretation, the Plan leaves it up to the administrator to

decide what evidence would be necessary to show a disability in light of the

circumstances of the individual claim. Since her migraines are inherently

subjective, she argues it was inappropriate for Wachovia to require objective

medical evidence of them. Further, she notes that she actually produced objective

evidence regarding her claim, i.e., the various office notes, APSs and opinions

from her physicians acknowledging her condition and the degree to which it

incapacitated her, even if no medical tests specifically rendered the diagnosis of

migraines.19

Wachovia contends that the Plan’s language should be read as mandating

that a claimant produce objective medical evidence to make out a claim. Even if

19
She also deems it unreasonable to discount her headache diary as objective evidence
when the claims administrator, like the doctors, requested that she provide the diary.

17
the Plan contains no such requirement, however, Wachovia asserts that its decision

to require such evidence is reasonable. A contrary interpretation, it argues, would

render the disability claims review process effectively meaningless by always

forcing administrators to accept claimants’ subjective descriptions of their ailments

regardless of the amount of evidence supporting them. Such a situation would

inhibit the administrator’s ability to fulfill its fiduciary duty to compensate only

those who have legitimate disability claims.

Our prior cases provide guidance for assessing the reasonableness of

benefits denials for disabilities that involve some subjective element, such as

migraines, fibromyalgia, and chronic pain syndrome. When a plan requires

claimants to provide objective medical evidence, an administrator’s decision to

deny benefits for failure to produce such evidence is reasonable, even though such

evidence might be impossible to obtain for that condition. See Doyle, 542 F.3d at

1358 (deeming the denial of benefits reasonable for a claimant suffering from

fibromyalgia who failed to put forth the objective evidence explicitly required in

the plan). When the plan has no such requirement, however, we evaluate the

reasonableness of the decision in light of the sufficiency of the claimant’s

subjective evidence and the administrator’s actions. Assuming that the claimant

has put forward ample subjective evidence, we look at what efforts the

18
administrator made to evaluate the veracity of her claim, particularly focusing on

whether the administrator identified any objective evidence that would have proved

the claim and on what kinds of independent physician evaluations it conducted.

Accordingly, an administrator’s decision to deny benefits would be unreasonable if

it failed to identify what objective evidence the claimant could have or should have

produced, even if the administrator submitted the file for peer review. See Oliver

v. Coca-Cola Co., 497 F.3d 1181, 1196–97 (11th Cir. 2007), vacated in part on

other grounds, 506 F.3d 1316 (11th Cir. 2007) (finding it arbitrary and capricious

to deny benefits for fibromyalgia and chronic pain syndrome when claim was

supported by ample evidence and administrator never requested any particular kind

of evidence).

Considering Creel’s case in light of our past case law, we find Wachovia’s

decision to deny her claim based on a lack of objective medical evidence both

wrong and unreasonable. We agree with Creel that the Plan does not mandate that

claimants produce any specific kind of such evidence to establish a successful

disability claim. Instead, it provides a disjunctive list of various types of evidence

that the administrator may require a claimant to produce, and includes among these

the catch-all category of “other forms of objective medical evidence.” As Creel

notes, this distinction is important, since it vests the administrator with discretion

19
to determine what forms of evidence would be appropriate for analyzing a

particular disability claim. However, this discretion would be limited to evaluating

whether the claimant provided whatever evidence the administrator deems “may be

required” for that particular disability. Accordingly, depending on the evidence

provided by the claimant, an administrator’s decision to deny a benefits claim

based on a lack of objective evidence without ever identifying what objective

evidence the claimant failed to produce could be unreasonable.

In this case, we find that Creel produced enough subjective and objective

evidence to support her claim of a disability. She provided chart notes, standard

diagnoses, and lab reports from multiple physicians discussing her condition and

identifying it as physically-based, all of which are valid forms of objective proof

under the Plan and can serve as the basis for a diagnosis of migraines.20 These

documents, particularly those from Drs. Afield and Martinez, indicate that she was

suffering from debilitating headaches, which had a neurological basis. In addition,

she provided her headache diary, which was the sole additional evidence requested

20
Neither party has identified any objective tests that would automatically establish the
existence of neurologically-based migraines, and there appears to be no set standard for
establishing the existence of migraines. See Thompson v. Barnhart, 493 F. Supp. 2d 1206, 1215
(S.D. Ala. 2007) (noting that “neither the SSA nor the federal courts require that an impairment,
including migraines, be proven through objective clinical findings”); Ortega v. Chater, 933 F.
Supp. 1071, 1075 (S.D. Fla. 1996) (finding that, because “present-day laboratory tests cannot
prove the existence of migraine headaches,” objective clinical evidence of the symptoms of
migraines can suffice as proof).

20
by the claims administrator.21 This diary both corroborated the diagnosis of

migraines and chronicled the degree to which they incapacitated her at regular

albeit unpredictable, intervals.

Against this evidentiary backdrop, we find that Wachovia took insufficient

action to justify the denial of benefits. Creel complied with its request for the

headache diary. It identified no other forms of objective evidence which it would

deem necessary for establishing the existence of a physically-based migraine.

Additionally, though Creel’s file had been reviewed by three IPCs, it never

requested an IME to test the veracity of her complaints, even though the Plan

permitted it to do so. Given that at least two of the IPCs, Drs. Kurt and Parcells,

recognized that the evidence showed that she was suffering from headaches that

were subjectively incapacitating, such an action would have been warranted. An

IME might have provided a better foundation for analyzing her claim than the

paper-based IPC reviews. Wachovia failed to make such a request and instead

imposed an unreasonable objective evidence requirement. It is unreasonable for

the claims administrator to deny the claim for a lack of objective medical evidence

21
Though the diary incorporates subjective observations, we find it to be “objective
proof” since it is a form of evidence commonly used by physicians treating potential migraine
patients, similar to how other doctors utilize x-rays or test results. It is also objective in that it
comes in a form that can be easily reviewed by claims administrators, as opposed to non-
tangible, subjective evidence, such as pain tests for fibromyalgia.

21
when the claimant has provided ample subjective evidence of a disability and the

administrator neither identified any objective evidence that the claimant could have

supplied to support the claim nor had the claimant undergo an IME or a similar in-

person probative procedure to test the validity of her complaints.22 See Oliver, 497

F.3d at 1196–97. The decision to deny benefits based on a lack of objective

evidence thus constituted an abuse of discretion.

Even though we conclude that the administrator’s denial based on a lack of

objective evidence constituted an abuse of discretion, there is insufficient evidence

in the record for us to determine whether Creel’s migraines prevented her from

performing the tasks involved in any line of work. The district court concluded

that Creel failed to provide objective evidence that she could not fulfill these

duties. Even for subjective conditions like migraines, it is reasonable to expect

objective medical evidence of an inability to work. See Boardman v. Prudential

Ins. Co. of Amer., 337 F.3d 9, 16 n.5 (1st Cir. 2003) (noting that although the

diagnoses of subjective conditions like “chronic fatigue syndrome and

22
This conclusion should also not be read to require claims administrators to give
deference to the opinions of a claimant’s treating physicians over those of an IPC. See Black &
Decker Disability Plan v. Nord, 538 U.S. 822, 834, 123 S. Ct. 1965, 1972 (2003) (noting that
“courts have no warrant to require administrators automatically to accord special weight to the
opinions of a claimant’s physician”). However, the decision not to accord special weight to the
views of the claimant’s physician must be based on “reliable evidence,” which would involve
something more than a paper-based peer review for disabilities involving subjective proof. See
id. (holding that courts may not “impose on plan administrators a discrete burden of explanation
when they credit reliable evidence that conflicts with a treating physician’s evaluation”).

22
fibromyalgia may not lend themselves to objective clinical findings, the physical

limitations imposed by the symptoms of such illnesses do lend themselves to

objective analysis”). However, as with the existence of the disability itself, the

claims administrator appears not to have identified what objective evidence Creel

could have used to show this inability to work.23 Since Dr. Martinez declared that

she was completely unable to work and Dr. Rim noted that migraines would

generally be incapacitating, there could be an objective evidentiary basis for so

finding, but we make no conclusions either way. Instead, we remand this case to

the district court to address the issue by examining the extent to which Creel is

limited by her headaches.24

B. Remaining Issues

Creel asserts that the mental illness limitation was ambiguous, and therefore

Wachovia should not be allowed to interpret it so as to exclude her claim. We

need not address this argument now because whether Wachovia’s interpretation of

the provision was wrong and unreasonable can only be decided once the district

23
Wachovia alludes to a home business that Creel may have started, which it asserts is an
occupation in which she could be employed even with irregular headaches. We do not have
enough information to address this issue, but the district court may investigate it on remand.
During the appeals process, Liberty Mutual did request that Creel provide records regarding a
business for which Creel was a registered agent. However, it did so in order to determine
whether she would be subject to an offset of any LTD benefits she received.
24
As part of this analysis, the court could order, or conduct on its own, an investigation
similar to the functional capacity examination used in Social Security benefits disputes.

23
court addresses on remand Wachovia’s findings regarding Creel’s ability to work.

We also need not consider whether Creel received a full and fair review because

that issue can only be decided after the district court applies our findings about the

objective evidence requirement. The district court should reconsider these two

issues in light of our findings about the objective evidence requirement.

III. CONCLUSION

Creel appeals the district court’s grant of summary judgment in favor of

Wachovia regarding its denial of her claim for LTD benefits. We find that the

district court erred in concluding that Wachovia’s plan permitted it to require Creel

to produce objective evidence of her migraines. Accordingly, we VACATE the

summary judgment and REMAND for further proceedings consistent with this

opinion.

VACATED AND REMANDED

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