NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0572n.06
Case No. 16-2707
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Oct 10, 2017
DEBORAH S. HUNT, Clerk
REBECCA FILTHAUT, )
)
Plaintiff-Appellee, )
)
v. )
)
AT&T MIDWEST DISABILITY BENEFIT ) ON APPEAL FROM THE UNITED
PLAN, ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
Defendant, ) MICHIGAN
)
AT&T UMBRELLA BENEFIT PLAN NO. 3, )
)
Defendant-Appellant. )
BEFORE: ROGERS, COOK, and STRANCH, Circuit Judges.
COOK, Circuit Judge. Experiencing lower back pain, Rebecca Filthaut made three
claims for short-term disability benefits under her employer’s disability plan, each of which the
claims administrator denied. She sued, alleging a violation of the Employee Retirement Income
Security Act of 1974 (“ERISA”). The district court granted summary judgment to Filthaut on
two of her claims. But because the claims administrator’s denial of benefits was neither arbitrary
nor capricious, we REVERSE the district court’s judgment.
Case No. 16-2707, Filthaut v. AT&T Midwest Disability Benefit Plan, et al.
I. BACKGROUND
Filthaut works at Michigan Bell Telephone Company as a call center service
representative, a sedentary job. Through her employment, Filthaut participates in the AT&T
Midwest Disability Benefits Program, which is a component of the AT&T Umbrella Benefit Plan
No. 3 (“the Plan”).
(a) Disability Plan
Four provisions of the disability plan are salient here.
First, the Plan gives the claims administrator discretion to interpret the disability plan’s
terms and determine benefits eligibility.
Second, a Plan participant is entitled to disability benefits
if the Claims Administrator determines that [the participant is] Disabled by reason
of sickness, pregnancy, or an off-the[-]job illness or injury that prevents [the
participant] from performing the duties of [her] job (or any other job assigned by
the Company for which [she is] qualified) with or without reasonable
accommodation. [The] Disability must be supported by objective Medical
Evidence.
Third, the disability plan defines “medical evidence” as
[o]bjective medical information sufficient to show that the Participant is Disabled,
as determined at the sole discretion of the Claims Administrator. Objective
medical information includes, but is not limited to, results from diagnostic tools
and examinations performed in accordance with the generally accepted principles
of the health care profession. In general, a diagnosis that is based largely or
entirely on self-reported symptoms will not be considered sufficient to support a
finding of Disability.
Fourth, the Plan reserves for the claims administrator the right to order a physical
examination of the claimant.
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(b) Filthaut’s Treatment History
Filthaut’s short-term disability claims stem from lower back pain, which a January 2012
partial right nephrectomy for kidney cancer largely resolved. The pain slowly returned,
however, prompting Filthaut to visit three physicians.
In August 2013, Dr. Mohammad Al Nouri diagnosed Filthaut with lumbar degenerative
disc disease and spondylosis (another term for spinal degeneration). He administered two
epidural steroid injections over the next few months, but they proved ineffective at controlling
Filthaut’s pain. Filthaut visited Dr. Al Nouri again in December 2013. He found that she had
normal motor strength and retained “full range of motion” with respect to “[f]lexion, extension
and lateral movement.” Dr. Al Nouri referred Filthaut for physical therapy, which she began
shortly thereafter.
Dr. Richard Kovar, a neurologist, examined Filthaut in January 2014. He identified “a
myofascial strain pattern involving the right mid to lower ribs including thoracolumbar fascia
and including the right lower scapular region with multiple segmental somatic dysfunctions
noted throughout the thoracic region”—in other words, several strained ribs. Filthaut’s
neurologic evaluation was normal; her “[m]otor [e]xamination show[ed] good bulk and tone,”
and her arm and leg “[s]trength [was] 5/5.”
Filthaut also visited Dr. George Carley, a family care physician. In December 2013,
Dr. Carley wrote in his initial physician statement that Filthaut reported “pain in spine” and
“constant pain” in her right kidney. Dr. Carley recommended “no work” for a month. Filthaut
saw Dr. Carley again in March 2014, at which time Filthaut complained of “severe low back
pain” and was “unable to ambulate.” In the section of his report regarding Filthaut’s “current
functional restrictions,” Dr. Carley wrote “no work.” Yet Dr. Carley also prescribed multiple “at
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work” accommodations for Filthaut: breaks every five minutes, no sitting or standing for more
than five-to-ten minutes, no lifting over two pounds, no reaching over her head, no bending, no
twisting, no kneeling, and no stooping.
(c) Claim 1 (January 13 – February 23, 2014)
Filthaut first sought short-term disability benefits for the period between January 13 and
February 23, 2014, which the claims administrator denied both initially and on appeal. The
district court upheld the denial of Claim 1 benefits, and Filthaut has not appealed; we therefore
do not recite Claim 1’s details here.
(d) Claim 2 (March 3 – April 14, 2014)
Filthaut briefly returned to work but began another leave on March 3, 2014, prompting
the claims administrator to initiate a claim for Filthaut’s relapse absence. Dr. Leela
Rangaswamy, an orthopedic surgeon, conducted the independent physician advisor review of
Filthaut’s records. In her report, she referenced Dr. Carley’s physician statement listing various
work restrictions and limitations, but noted that the statement did “not include a detailed physical
examination.” Dr. Rangaswamy—who left a voicemail for Dr. Carley but never connected with
him—identified no “well-defined focal physical findings that would substantiate” Dr. Carley’s
determination that Filthaut could not work. Relying on Dr. Rangaswamy’s report, the claims
administrator denied Filthaut’s disability claim.
Filthaut appealed for the period between March 3 and April 14, citing her back and
kidney problems. The claims administrator referred the matter for additional independent
physician advisor reviews in nephrology and physical-medicine-and-rehabilitation/pain medicine
(“PM&R/pain medicine”).
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Dr. Laurence Friedman, the reviewing nephrologist, spoke with Dr. Carley, who
“reported that Ms. Filthaut has a complex chronic pain disorder on the basis of musculoskeletal
disease and that there are no other renal issues beyond her previous partial nephrectomy for
cancer.” From his review of the records and conversation with Dr. Carley, Dr. Friedman found
that Filthaut had “no issues from the nephrology standpoint affecting her functional
capacity/ability to work.”
Dr. Howard Grattan, the reviewing PM&R/pain medicine physician, attempted to, but
could not, connect with Dr. Carley or Dr. Sandy Payne, Filthaut’s physical therapist.
Nonetheless, he “reviewed the clinical notes, claim documents, diagnostics, claimant’s job
description and appeal letter.” In his report, Dr. Grattan noted Filthaut’s back and kidney pain
but concluded that “there are no measurable objective findings that would support restrictions,
limitations and/or disability from [Filthaut’s] regular job.”
The claims administrator upheld the denial of benefits. The appeal-denial letter
summarized Dr. Friedman’s and Dr. Grattan’s reports, explaining that no measurable objective
findings were “documented to be so severe as to prevent [Filthaut] from performing the job
duties of a Service Representative with or without reasonable accommodation” during the six-
week period.
(e) Claim 3 (April 16 – May 7, 2014)
Filthaut returned to work for one day before beginning another leave on April 16, 2014.
The claims administrator opened a new claim; contacted Filthaut three times over the course of
the next ten days to advise her that “medical records were needed to support short term
disability”; and called Dr. Carley twice, but never received a response.
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Because it had not received “objective medical information to support [Filthaut’s]
inability to perform [her] job as a Service Representative with or without reasonable
accommodations,” the claims administrator denied the claim. Filthaut appealed for the period
between April 16 and May 7, again citing her back and kidney conditions. The claims
administrator then referred the matter for an independent physician review.
Dr. Moshe Lewis, the reviewing PM&R physician, left two voicemails for Dr. Carley but
never received a return call. In his report, Dr. Lewis noted the work restrictions prescribed by
Dr. Carley, plus Filthaut’s lumbar strain and history of lumbar degenerative disc disease that had
been unresponsive to Neurontin, Tramadol, and epidural injections. He also summarized Dr.
Kovar’s finding that Filthaut suffered no neurologic deficits and had 5/5 motor strength. Based
on his review of Filthaut’s medical records and Claim 2 file, Dr. Lewis concluded that “from a
PM&R perspective the claimant is capable of any work and can complete her sedentary job
without restrictions.”
The claims administrator upheld the denial of benefits. The appeal-denial letter
explained Dr. Lewis’s report and that the objective findings in the medical records were not
severe enough to prevent Filthaut from performing her job with or without reasonable
accommodation during the three-week period.
(f) Procedural History
Having exhausted her administrative remedies, Filthaut filed suit, alleging that the Plan
wrongfully denied her short-term disability benefits. The Plan moved for judgment on the
administrative record, and Filthaut moved for summary judgment granting her benefits.
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The district court denied Filthaut’s motion for summary judgment as to Claim 1.
It granted Filthaut’s motion as to Claims 2 and 3, however, finding that the denial of those short-
term disability benefits was arbitrary and capricious.
The Plan timely appeals the district court’s decision regarding Claims 2 and 3.
II. STANDARD OF REVIEW
ERISA grants a plan participant the right “to recover benefits due to him under the terms
of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future
benefits under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B). We review de novo a district
court’s “judgment in an ERISA disability benefit action based on an administrative record and
apply the same legal standard as did the district court.” Glenn v. MetLife, 461 F.3d 660, 665 (6th
Cir. 2006) (citation omitted), aff’d, 554 U.S. 105 (2008). When, as both parties agree is the case
here, the plan grants its administrator “discretionary authority to determine eligibility for benefits
or to construe the terms of the plan,” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115
(1989), we review the administrator’s decision under the arbitrary and capricious standard,
Bennett v. Kemper Nat’l Servs., Inc., 514 F.3d 547, 552 (6th Cir. 2008) (citation omitted).
Arbitrary and capricious review “requires us to defer to the underlying decision so long
as it is rational in light of the plan’s provisions.” Frazier v. Life Ins. Co. of N. Am., 725 F.3d
560, 567 (6th Cir. 2013) (citation omitted); see Spangler v. Lockheed Martin Energy Sys., Inc.,
313 F.3d 356, 362 (6th Cir. 2002) (“[T]he ultimate issue in an ERISA denial of benefits case is
not whether discrete acts by the plan administrator are arbitrary and capricious but whether its
ultimate decision denying benefits was arbitrary and capricious.”). We must “uphold the
administrator’s decision ‘if it is the result of a deliberate, principled reasoning process and if it is
supported by substantial evidence.’” Glenn, 461 F.3d at 666 (quoting Baker v. United Mine
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Workers of Am. Health & Ret. Funds, 929 F.2d 1140, 1144 (6th Cir. 1991)). “This standard ‘is
the least demanding form of judicial review of administrative action.’” Shields v. Reader’s
Digest Ass’n, 331 F.3d 536, 541 (6th Cir. 2003) (quoting Davis v. Ky. Fin. Cos. Ret. Plan,
887 F.2d 689, 693 (6th Cir. 1989)). That being said, however, “deferential review is not no
review,” Elliott v. Metro. Life Ins. Co., 473 F.3d 613, 617 (6th Cir. 2006) (internal quotation
marks and citation omitted), and “application of the standard requires us to review the quality
and quantity of the medical evidence and the opinions on both sides of the issues,” Bennett,
514 F.3d at 552 (internal quotation marks and citations omitted).
III. ANALYSIS
To determine whether the denial of benefits was arbitrary or capricious, we consider the
“guideposts that have been established by this Circuit with regard to ERISA benefit
determinations.” Evans v. UnumProvident Corp., 434 F.3d 866, 876–77 (6th Cir. 2006). Given
Filthaut’s and the district court’s reliance on Shaw v. AT&T Umbrella Benefit Plan No. 1,
795 F.3d 538 (6th Cir. 2015), we begin our analysis there.
Like Filthaut, the Shaw plaintiff worked as a customer service representative for
Michigan Bell, stopped working due to chronic pain, and was covered under the same benefits
program. Shaw, 795 F.3d at 541. A divided panel concluded that the defendant arbitrarily and
capriciously denied the plaintiff long-term disability benefits for four reasons: “it ignored
favorable evidence submitted by his treating physicians, selectively reviewed the evidence it did
consider from the treating physicians, failed to conduct its own physical examination, and
heavily relied on non-treating physicians.” Id. at 547. Shaw noted that although “none of the
factors alone is dispositive,” taken together “they support a finding that [the administrator] did
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not engage in a deliberate and principled reasoning process.” Id. at 551 (quoting Helfman v. GE
Grp. Life Assurance Co., 573 F.3d 383, 396 (6th Cir. 2009)).
The Plan argues relentlessly that we are not bound by Shaw. The Plan is wrong.
“A published prior panel decision ‘remains controlling authority unless an inconsistent decision
of the United States Supreme Court requires modification of the decision or this Court sitting en
banc overrules the prior decision.’” Rutherford v. Columbia Gas, 575 F.3d 616, 619 (6th Cir.
2009) (quoting Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985)).
Shaw found the claims administrator’s “decision-making process” rife with “flagrant
errors” that, in the aggregate, failed to reflect deliberate and principled reasoning. Shaw,
795 F.3d at 551 (citation omitted). Because the facts in Shaw are distinguishable from those
here, we reach a different conclusion.
(a) Consideration of Evidence from Filthaut’s Treating Physicians
Filthaut faults the Plan for ignoring favorable evidence submitted by her treating
physicians. The Plan argues that the claims administrator neither ignored Filthaut’s evidence nor
improperly relied upon the opinions of the independent physician advisors. We agree with the
Plan.
“[P]lan administrators are not obliged to accord special deference to the opinions of
treating physicians.” Black & Decker Disability Plan v. Nord, 538 U.S. 822, 825 (2003).
Likewise, “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. “However, [administrators] ‘may not arbitrarily refuse to
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credit a claimant’s reliable evidence, including the opinions of a treating physician.’” Shaw,
795 F.3d at 548 (quoting Nord, 538 U.S. at 834).
With respect to Claim 2, the claims administrator neither ignored nor arbitrarily refused
to credit the opinions of Filthaut’s treating physicians. In her independent review, Dr.
Rangaswamy specifically referenced Dr. Carley’s statement “document[ing] that [Filthaut] had
severe low back pain, neck pain, kidney pain and bilateral leg pain,” plus the work restrictions
and limitations that Dr. Carley advised. Dr. Rangaswamy went on to note, however, that Dr.
Carley’s “form does not include a detailed physical examination” or “documentation of well-
defined focal physical findings commensurate with a specific disability.” When Filthaut
appealed the initial benefits determination, Drs. Friedman and Grattan reviewed Filthaut’s
medical records dating back to August 2013. Both of their reports reflect that they assessed all
three treating physicians’ write-ups (Dr. Grattan’s mentions the physical therapy notes, too), and
that neither reviewing doctor could discern measurable objective findings evidencing disability.
Per the appeal-denial letter, the claims administrator considered all of Filthaut’s medical records
and the independent physician advisor reviews before deciding to uphold the denial of benefits.
Claim 3 is no different. The claims administrator denied benefits initially because it
“received no objective medical information to support” Filthaut’s disability claim, even though it
contacted Filthaut three times and Dr. Carley twice to ask for such information. On appeal, Dr.
Lewis received Filthaut’s “medical and non-medical records,” which he “thoroughly reviewed.”
Among other aspects of the treating physicians’ reports, he documented Dr. Kovar’s conclusion
that Filthaut suffered no neurologic deficits and maintained “5/5” motor strength. He also
mentioned Filthaut’s work limitations as advised by Dr. Carley. But given his review of the
overall record, Dr. Lewis ultimately determined that, from a PM&R perspective, Filthaut could
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“complete her sedentary job without restrictions.” Again, the claims administrator considered
the entirety of Filthaut’s file before upholding the denial of benefits based on a lack of objective
medical evidence.
Filthaut criticizes Dr. Lewis for acknowledging the various accommodations (i.e.,
constant breaks, limited lifting, sitting or standing for only five-to-ten minutes at a time)
prescribed by Dr. Carley, but concluding nonetheless that she could work without restrictions.
Dr. Lewis, however, reviewed the reports written by the other independent physician advisors
who, “throughout the year have not noted a basis for disability from a sedentary job based on the
medical records.” Those reports concluded that Filthaut’s records lacked objective medical
findings sufficient to establish a disability under the plan’s terms. Dr. Lewis does not explicitly
state this in his report, but his reference to the other physician advisors’ reports implies his
agreement with their conclusions. And although the claims administrator did not embrace Dr.
Carley’s disability conclusions, it did not arbitrarily discount them—it refused to credit them
because they lacked support by objective medical evidence, as required by the Plan. See Boone
v. Liberty Life Assurance Co. of Bos., 161 F. App’x 469, 473 (6th Cir. 2005).
Filthaut also argues that the Plan ignored favorable evidence from Dr. Carley because the
independent physician advisors allowed him only 24 hours to respond to their voicemails.
Giving “the treating physicians only 24 hours to respond to their requests before they made their
disability decisions based on available medical information . . . . [is an] unreasonable deadline.”
Shaw, 795 F.3d at 549 (internal quotation marks omitted). Although Filthaut’s contention holds
water with respect to Drs. Rangaswamy and Grattan, it does not with respect to Drs. Friedman
and Lewis—Dr. Friedman spoke with Dr. Carley, and Dr. Lewis left messages for Dr. Carley on
June 13 and June 17 before completing his file review on June 19. And, in any event, “persons
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conducting a file review are not per se required to interview the treating physician.” Helfman,
573 F.3d at 393.
At bottom,
when a plan administrator chooses to rely upon the medical opinion of one doctor
over that of another in determining whether a claimant is entitled to ERISA
benefits, the plan administrator’s decision cannot be said to have been arbitrary
and capricious because it would be possible to offer a reasoned explanation, based
upon the evidence, for the plan administrator’s decision.
Evans, 434 F.3d at 877 (quoting McDonald v. W.-S. Life Ins. Co., 347 F.3d 161, 169 (6th Cir.
2003)); see also Boone, 161 F. App’x at 473–74 (“In the context of an ERISA disability plan . . .
neither courts nor plan administrators must give special deference to the opinions of treating
physicians.”) (citing Nord, 538 U.S. at 834)). That is what happened here: the independent
physician advisors each assessed all of the documents that Filthaut submitted, and the claims
administrator relied on their conclusions over Dr. Carley’s.
(b) Reviewing Evidence Submitted by Treating Physicians
“An administrator acts arbitrarily and capriciously when it ‘engages in a selective review
of the administrative record to justify a decision to terminate coverage.’” Shaw, 795 F.3d at 549
(quoting Metro. Life Ins. Co. v. Conger, 474 F.3d 258, 265 (6th Cir. 2007)). Relying on this rule,
the district court criticized Dr. Friedman for “selectively reviewing” the Claim 2 file. But our
review of the record leads us to conclude otherwise.
Dr. Carley told Dr. Friedman that Filthaut suffered no renal issues beyond her partial
nephrectomy in early 2012. Based on that phone call and his review of the record, Dr. Friedman
determined that Filthaut was not disabled “from the nephrology standpoint.” The district court
noted that “Dr. Friedman based his decision on the Plaintiff’s kidneys—which are not part of the
musculoskeletal system.” But this should not have surprised the district court: Dr. Friedman is a
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nephrologist; kidneys are his specialty. The district court also overlooked the fact that Dr.
Grattan reviewed Claim 2 and reached the same conclusion from a PM&R/pain medicine
perspective.
Shaw does not compel a different result. There, the reviewing physicians actually
ignored or misstated evidence submitted by the treating physicians. One reviewer suggested that
Shaw disregarded medical advice by forgoing surgery, even though both treating physicians
identified physical therapy as an alternative treatment. Id. at 549–50. Another reviewer stated
that Shaw did not provide recent objective range-of-motion measurements, even though the very
next sentence of his report referenced range-of-motion measurements. Id. at 549. The record
here does not reflect such egregious errors, and we do not discern any selective review by the
physicians who evaluated Filthaut’s files.
(c) Conducting a File-Only Review
The Plan argues that it properly relied on the independent physician advisor reviews
instead of ordering its own physical examination of Filthaut. Filthaut disagrees. Although we
see merit in both positions, we find the Plan’s more persuasive in this instance.
We consider an administrator’s decision to conduct a file review rather than a physical
examination as one factor in its overall assessment of whether the administrator acted arbitrarily
and capriciously. Calvert v. Firstar Fin. Inc., 409 F.3d 286, 295 (6th Cir. 2005). Although
“reliance on a file review does not, standing alone, require the conclusion that [the administrator]
acted improperly . . . the failure to conduct a physical examination—especially where the right to
do so is specifically reserved in the plan—may, in some cases, raise questions about the
thoroughness and accuracy of the benefits determination.” Id. Because the Plan reserves its
right to conduct its own physical evaluation if the claims administrator determines one is
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necessary, we consider “whether the file review conducted in the present case is of the kind to
which this court has taken exception.” Judge v. Metro. Life Ins. Co., 710 F.3d 651, 663 (6th Cir.
2013).
One situation in which this court has faulted a file-only review is “where the file reviewer
concludes that the claimant is not credible without having actually examined him or her.” Id.
(citing Bennett, 514 F.3d at 555). Furthermore, “this court has discounted a file review when the
plan administrator, without any reasoning, credits the file reviewer’s opinion over that of a
treating physician.” Id. (citing Elliott, 473 F.3d at 621).
Weighing in Filthaut’s favor, the claims administrator made a credibility determination
when it discounted Dr. Carley’s conclusions because, as the Plan stated in its brief, those
conclusions “reli[ed] on Ms. Filthaut’s self-reported pain, rather than objective testing to
establish her restrictions.” See Shaw, 795 F.3d at 550 (“The Plan made a credibility
determination when it discounted Dr. Reincke’s medical records because they were based solely
on Shaw’s own subjective complaints of pain.” (internal quotation marks omitted)); but see Bell
v. Ameritech Sickness & Accident Disability Benefit Plan, 399 F. App’x 991, 1000 (6th Cir.
2010) (“[N]either the Plan nor the [reviewing] doctors rendered credibility determinations or
second-guessed the medical opinions of Bell’s physicians. Rather, they simply determined that
the objective medical documentation in the record did not, on its own, support a finding of
disability. This was not improper or arbitrary, but rather was consistent with the Plan’s
definition of disability.”). Faulting Filthaut for lacking objective medical evidence, the claims
administrator could have ordered an examination to determine the veracity of her self-reported
pain. See Smith v. Cont’l Cas. Co., 450 F.3d 253, 263–64 (6th Cir. 2006) (“CCC has reserved
the right to obtain an independent medical examination of a claimant. . . . CCC could have
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obtained an independent medical examination to evaluate Smith’s pain. Their decision to not
perform this examination supports the finding that their determination was arbitrary.”); Calvert,
409 F.3d at 297 n.6 (explaining that when the conclusions drawn from a file-only “review
include critical credibility determinations regarding a claimant’s medical history and
symptomology, reliance on such a review may be inadequate”).
By the same token, the claims administrator made a credibility determination when it
dismissed Dr. Carley’s assessment that Filthaut could work only with a number of limitations,
instead adopting Dr. Lewis’s conclusion that Filthaut was “capable of any work and [could]
complete her sedentary job without restrictions.” Dr. Lewis does not explicitly state how he
reached a conclusion standing in such stark contrast to Dr. Carley’s. He does, however,
reference Dr. Kovar’s neurologic examination, which showed no deficits and 5/5 motor strength.
Citing Department of Labor regulations providing that the claims administrator “shall
consult with a health care professional” when deciding an appeal, 29 C.F.R. § 2560.503-
1(h)(3)(iii), the Plan argues that the “the administrator was not required to have [Filthaut]
examined and the decision to rely upon the seven physicians with whom it consulted cannot be
deemed arbitrary and capricious.” But the DOL only “sets forth minimum requirements for
employee benefit plan procedures pertaining to claims for benefits by participants and
beneficiaries.” Id. § 2560.503-1(a) (emphasis added).
The Plan also asserts, more convincingly, that the claims administrator had no obligation
to conduct an independent physical examination because Filthaut—not the Plan—bears the
burden of proving her disability by producing objective medical evidence. We agree. Under the
terms of the disability plan, if a claimant “fail[s] to furnish objective Medical Evidence for [her]
condition,” then the Plan “will not pay any Short-Term Disability Benefits.” And where, as
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here, a disability plan “places the burden of proving disability on a disabled employee, the
employee cannot then shift this responsibility to the insurance company.” Likas v. Life Ins. Co.
of N. Am., 222 F. App’x 481, 487 (6th Cir. 2007) (citation omitted); Bell, 399 F. App’x at 1000
(“[T]he Plan’s decision to conduct only a file review was not improper in this case, as the Plan
documents specifically placed the burden on Bell to produce objective medical documentation
that supported her disability.”).
In sum, we recognize that the strongest factor weighing in Filthaut’s favor is that the Plan
neglected to order a physical examination. See Shaw, 795 F.3d at 550 (“Because chronic pain is
not easily subject to objective verification, the Plan’s decision to conduct only a file review
supports a finding that the decision-making was arbitrary and capricious.”). Although “plans
generally are not obligated to order additional medical tests, in cases such as this, plans can assist
themselves, claimants, and the courts by helping to produce evidence sufficient to support
reasoned, principled benefit determinations.” Elliott, 473 F.3d at 621. But this court has rejected
the “assertion that a plan with authority to order additional medical tests [is] required to do so.”
Id. (citing Calvert, 409 F.3d at 296). And there is “nothing inherently objectionable about a file
review by a qualified physician in the context of a benefits determination.” Calvert, 409 F.3d at
296; see also Bennett, 514 F.3d at 558–59 (6th Cir. 2008) (Cook, J., concurring). Ultimately, by
the terms of the disability plan, Filthaut bears the burden of proving her disability by providing
objective medical evidence of her condition—something she failed to do.
(d) Relying on Physician Consultants
Shaw determined that a reviewing physician’s “track record” of being “questioned in
numerous federal cases” supported a finding that the claims administrator did not engage in
deliberate and principled reasoning. Shaw, 795 F.3d at 551. We have reviewed the federal cases
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in which the independent physician advisors who reviewed Claims 2 and 3 participated, and we
discern no “track record” impelling us to conclude similarly here.
IV. CONCLUSION
Filthaut failed to provide objective medical evidence showing that her condition
prevented her from working her sedentary job. Thus, because “there is a reasonable explanation
for the administrator’s decision denying benefits in light of the plan’s provisions, . . . the decision
is neither arbitrary nor capricious.” Schwalm v. Guardian Life Ins. Co. of Am., 626 F.3d 299,
308 (6th Cir. 2010) (citing Williams v. Int’l Paper Co., 227 F.3d 706, 712 (6th Cir. 2000)). We
therefore REVERSE the district court’s judgment for Filthaut on Claims 2 and 3 and direct the
district court to enter an order in accordance with our opinion.
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Case No. 16-2707, Filthaut v. AT&T Midwest Disability Benefit Plan, et al.
JANE B. STRANCH, Circuit Judge, dissenting. At issue in this ERISA case is
whether AT&T Umbrella Plan No. 3 (the Plan) wrongfully denied Rebecca Filthaut’s claim for
short-term disability benefits. My disagreement with the majority is primarily with the ultimate
outcome in the case, not with the governing standards it employs. I concur with the majority’s
rejection of the Plan’s repeated charge that our governing precedent, Shaw v. AT&T Umbrella
Benefit Plan No. 1, 795 F.3d 538 (6th Cir. 2015), is “neither binding nor instructive.” The Plan’s
contentions that Shaw conflicts with Supreme Court precedent and that compliance with
Department of Labor regulations setting minimum standards establishes that its claim
determination cannot be arbitrary or capricious are simply disingenuous. The majority opinion
rightly recognizes that we analyze a denial of disability benefits under the four-factor rubric laid
out in Shaw. Because I disagree with the result it reaches after applying those factors, I
respectfully dissent. I turn to application of Shaw’s four factors to the record.
I. Ignoring favorable evidence from treating physicians
The Plan claims to have denied Filthaut benefits for lack of objective medical
documentation or findings to support her diagnosis of severe lower back pain. But when Filthaut
furnished such objective documentation, the Plan either ignored the provided evidence or
summarily rejected it without analysis. Thus, the Plan—the same plan that was sued in Shaw—
once again “ignored favorable evidence from [the plaintiff’s] treating physicians.” Shaw,
795 F.3d at 548.
As the district court and the majority noted, in a March 3, 2014 exam, Filthaut’s treating
physician, Dr. Carley, observed that Filthaut was “unable to ambulate,” listing “no work” as a
functional restriction. (Maj. Op. at 3) Dr. Carley recommended that, if Filthaut was nonetheless
required to work, necessary work accommodations would include breaks every five minutes; no
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Case No. 16-2707, Filthaut v. AT&T Midwest Disability Benefit Plan, et al.
sitting or standing for more than five to ten minutes; no lifting over two pounds; no reaching
overhead; and no bending, twisting, kneeling, or stooping. All of the reviewing physicians—
and, ultimately, the Plan—either ignored this evidence or categorically rejected it as unsupported
by objective evidence.
“[A] plan may not reject summarily the opinions of a treating physician, but must instead
give reasons for adopting an alternative opinion.” Shaw, 795 F.3d at 548–49 (alteration in
original) (quoting Elliott v. Metro. Life Ins. Co., 473 F.3d 613, 620 (6th Cir. 2006)). The Plan
claims, and the majority opinion appears to accept (Maj. Op. at 10–12), that the reviewing
physicians discounted Dr. Carley’s findings because they were unsupported. But the Plan and
the reviewing physicians ignored the specific medical evidence that provided the necessary
support. For example, Dr. Grattan reviewed notes from physical therapy meetings while
performing his file review. Those physical therapy notes indicate that Filthaut’s lumbar flexion
was at “50%” in early February 2014 and at “75%” in early April, covering two of the claim time
periods. Dr. Grattan does not analyze or even acknowledge the documented range of motion in
his report. As to Filthaut’s kidney problems, Dr. Grattan’s report describes a CT scan from
March 7, 2013, during the period in which Filthaut’s pain was returning, that showed a
“hypodense structure . . . in the upper right pole of the kidney” and “cystic density adjacent to
the common bile duct . . . [which] is of uncertain clinical significance.” Dr. Grattan, whose area
of expertise is not in nephrology, might have been justified in declining to hypothesize about the
nature of those structures. His failure to even acknowledge their possible import would be less
concerning if the lone reviewing nephrologist had explained the medical significance of those
findings—but Dr. Friedman did not even acknowledge the existence of the structures in his
report. He merely stated, “CT of the abdomen dated 03/07/13 was reviewed,” and proceeded to
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Case No. 16-2707, Filthaut v. AT&T Midwest Disability Benefit Plan, et al.
his conclusion that there is “no evidence of functional impairment from the nephrology
standpoint.”
Finally, as the majority correctly notes (Maj. Op. at 11), two of the four reviewing
physicians in the claims relevant to this appeal followed the precise procedure this court declared
“unreasonable” in Shaw: “g[iving] the treating physicians only 24 hours to respond to their
requests before they made their disability decisions ‘based on available medical information.’”
Shaw, 795 F.3d at 549.
II. Selectively reviewing treating physician evidence
“An administrator acts arbitrarily and capriciously when it ‘engages in a selective review
of the administrative record to justify a decision to terminate coverage.’” Shaw, 795 F.3d at 549
(quoting Metro. Life Ins. Co. v. Conger, 474 F.3d 258, 265 (6th Cir. 2007)). Perhaps the most
telling instance of selective review in this case is found in Dr. Xico Garcia’s synopsis of Dr.
Carley’s treatment: “The patient states she is ready to go back to work and has not been able to
go to physical therapy as much as she should be.” (emphasis added) Dr. Carley’s notes actually
say, “P[atien]t states she isn’t ready to go back yet—hasn’t been able to go to physical therapy as
much as she should be.” (emphasis added) The majority discusses neither the clear error nor the
problematic mischaracterization because Dr. Garcia’s examination occurred in the context of the
denied Claim 1. But subsequent physicians indicated that they reviewed and may have relied
upon prior reports. Dr. Moshe Lewis, for example, noted the negative conclusions of “[m]ultiple
reviewers throughout the year” in his rationale for denying Claim 3. Thus, this early
misstatement of the record compounded the risk of error and contaminated the analyses of
Claims 2 and 3.
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Case No. 16-2707, Filthaut v. AT&T Midwest Disability Benefit Plan, et al.
III. Failing to conduct its own physical evaluation
The majority’s analysis of the third Shaw factor, the failure to conduct physical
examinations, ably highlights the problematic credibility determinations the reviewing
physicians undertook in this case. (Maj. Op. at 14–16) To that analysis, I would only add that,
while the Plan may have had “no obligation to conduct an independent physical examination,”
Maj. Op. at 15, this court has been clear that “the failure to conduct a physical examination,
where the Plan document gave the plan administrator the right to do so, ‘raise[s] questions about
the thoroughness and accuracy of the benefits determination.’” Shaw, 795 F.3d at 550 (alteration
in original) (quoting Helfman v. GE Group Life Assurance Co., 573 F.3d 383, 393 (6th Cir.
2009)).
IV. Heavily relying on physician consultants
Neither the parties’ briefs nor the district court’s opinion analyzed the track records of
any of the reviewing physicians other than Dr. Jamie Lee Lewis, the physician identified by
name in Shaw as having been criticized “in numerous federal cases.” Shaw, 785 F.3d at 551.
But Dr. Lewis is not the only reviewing physician involved in this case whose work has been
criticized by the federal courts. Dr. Rangaswamy, for example, who appears to specialize in
hand surgery, Smith v. Hartford Life & Accident, No. C 11-03495, 2013 WL 394185, at *5 (N.D.
Cal. Jan. 30, 2013), has issued opinions that one federal court called “cursory,” McKoy v. Int’l
Paper Co., 488 F.3d 221, 223 (4th Cir. 2007), and that another found failed to take into account
relevant evidence, Smith, 2013 WL 394185, at *25. It is true that other cases have accepted the
opinions of these doctors and that there is no magic number of negative decisions after which a
reviewing physician is no longer credible. But where, as here, other Shaw factors have already
created doubt about the reliability of the reviewing physicians’ work, it is troubling when a
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Case No. 16-2707, Filthaut v. AT&T Midwest Disability Benefit Plan, et al.
defendant continues to rely on physicians who are “repeatedly retained by benefits plans,” Black
& Decker Disability Plan v. Nord, 538 U.S. 822, 832 (2003), and whose work for those plans has
also been criticized by the federal courts.
In sum, on the record before us, I think Filthaut has shown that the four Shaw factors,
considered in their entirety, counsel in favor of finding the Plan’s decision to deny disability
benefits arbitrary and capricious. I therefore respectfully dissent.
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