[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-11340 October 8, 2008
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 06-02040-CV-JEC-1
KAREN W. TOWNSEND,
Plaintiff-Appellant,
versus
DELTA FAMILY-CARE DISABILITY AND SURVIVORSHIP
PLAN,
DELTA AIRLINES FAMILY CARE DISABILITY AND
SURVIVORSHIP TRUST,
THE ADMINISTRATIVE COMMITTEE OF DELTA AIR LINES,
INC.,
JOHN DOES, 1-V DELTA WELFARE BENEFIT PLANS,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 8, 2008)
Before MARCUS, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Karen W. Townsend filed this action to recover long-term disability benefits
under the Employee Retirement Income Security Act of 1974 (“ERISA”) from
Delta Family-Care Disability and Survivorship Plan (“the Plan”), Delta Airlines,
the trust funding the Plan, and the Administrative Committee of Delta Airlines
(collectively “Delta”). On cross-motions for summary judgment, the district court
granted summary judgment to defendants, holding that the Plan did not abuse its
discretion in denying long-term disability benefits to Townsend. For the reasons
stated below, we affirm the district court’s ruling.
BACKGROUND
The Plan is an employee welfare benefit plan as defined under ERISA, 29
U.S.C. § 1002(1). It provides short-term and long-term disability benefits to non-
pilot Delta employees. The Plan states that an employee “shall be eligible for
Long Term Disability provided he is disabled . . . as a result of demonstrable
injury or disease (including mental or nervous disorders) which will continuously
and totally prevent him from engaging in any occupation whatsoever for
compensation or profit, including part-time work.”
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The Plan states that eligibility for benefits “shall be determined by the
Administrative Committee or its designees in their sole discretion.” The Plan
involves levels of review: first, Aetna reviews claims and makes the initial
decision as to eligibility; second, if a claimant disputes that eligibility
determination, he or she may appeal that decision. The final eligibility decision is
made by an Administrative Committee for Delta (the “Committee”).
The Plan is funded through non-reversionary, periodic payments made by
Delta into a benefits trust. The Committee reviewing claims has no connection to
the payment of funds into the trust.
Townsend was working for Delta Airlines as a flight attendant when she
became injured and developed osteoarthritis in both knees. She applied for and
began receiving short-term disability benefits under the Plan. When the period of
eligibility for short-term disability benefits expired, Townsend applied for long-
term disability benefits.
Townsend’s treating physician, Dr. Spruell, wrote a letter describing
Townsend’s condition:
1. As of August 29, 2000, because of the seriousness of her knee
problems, she is totally and continuously disabled from any
occupation. I will qualify that by saying that she can perform no job
which requires more than one to two hours of standing, sitting, if she
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has to get up and down, or walking. I would think that for this
individual that would mean any reasonable job.
2. The functional limitations are that the patient cannot do long
periods of standing. She must not be required to get up and down
from a sitting position, climb stairs, or any job, which requires
significant walking.
Dr. Bonner, Aetna’s Medical Director, contacted Dr. Spruell by telephone to
obtain clarification. Dr. Bonner recorded in Townsend’s case file that Dr. Spruell
had stated that Townsend could reasonably perform work where she could sit or
stand for comfort and change positions as needed. Dr. Bonner concluded that
Townsend was capable of performing at least part-time work and denied her claim
for long-term disability benefits.
Townsend appealed the denial, submitting medical records from Dr. Spruell
and pain and fatigue questionnaires. In the fatigue questionnaire, Dr. Spruell
reported that Townsend needed to elevate her legs on a daily basis and was not
“physically capable of performing a full eight-hour work day (including sedentary
occupations).” On the pain questionnaire, Dr. Spruell responded “yes” to the
question “[i]s it medically reasonable for your patient to need to lie down for a
minimum of two (2) hours during the daytime?” Townsend’s attorney also
submitted a letter in which he expressed his belief that Townsend’s “condition is
such that she could not perform her usual duties due to the continuation of
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problems with her knee.” In response to a request for additional medical records,
Townsend submitted office notes from Dr. Spruell and Dr. Vanderlyt, an
orthopaedic physician. Townsend also submitted a letter from Dr. Spruell to her
lawyer discussing Townsend’s knee pain and stating that Townsend “has
significant disability because of her job and cannot stand for lengthy period of
time. As a matter of fact, she probably cannot stand to walk more than an hour or
so in any given work day.” From this information, Dr. Bonner concluded that
although Townsend might not be able to work as a flight attendant or in another
position requiring a great deal of standing and walking, she might be able to
perform part-time sedentary work. Dr. Bonner ordered an independent functional
capacity evaluation (“FCE”) to further assess Townsend’s physical capabilities.
The FCE was performed by a physical therapist. The therapist noted in the FCE
report that Townsend exhibited some “inconsistent behaviors” including, among
other things, that “gait deviations did not increase with the FCE or with the
frequent circuit despite walking and standing for one hour with reports of
increased pain; with second day testing, she reported being unable to walk or stand
for longer than 4 minutes at a time due to 10/10 pain but she completed a frequent
circuit with these activities [lasting more than 4 minutes each] for one hour.” Due
to the inconsistencies, the therapist felt that the capabilities demonstrated in the
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FCE testing represented her “minimal capabilities.” The therapist recommended
that work accommodations be made to allow Townsend to change positions from
sitting, standing, and walking, and concluded that she “would be capable of light
duty work on an 8 hour day basis.”
Based on the result of the FCE and the medical evidence from Dr. Spruell,
Dr. Bonner determined that Townsend was not “totally disabled from any
occupation, including part time” and denied her appeal. In Dr. Bonner’s letter to
Townsend’s attorney discussing the denial, Dr. Bonner referred frequently to the
telephone conversation he had held with Dr. Spruell, related the specific statement
by Dr. Spruell that Townsend “could reasonably perform work where she could sit
or stand for comfort and change positions as needed,” and noted that this
conversation formed a significant part of the basis for the determination that
Townsend was not totally disabled.
Townsend appealed to the Committee. Townsend, however, did not address
the telephone call or indicate that she or Dr. Spruell felt the conversation had been
misinterpreted or incorrectly memorialized.
On January 22, 2002, the Committee issued a letter informing Townsend’s
attorney that it had decided to affirm the denial of benefits. The Committee relied
on the statements made by Dr. Spruell to Dr. Bonner that Townsend could
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reasonably perform work if she could sit or stand for comfort and change positions
as needed. The Committee acknowledged that this statement contradicted other
statements submitted by Dr. Spruell, but resolved this conflict by noting that none
of Dr. Spruell’s other comments expressly stated that he felt she was disabled from
any jobs, including part-time jobs. The Committee also relied on the FCE report
which supported the finding that Townsend could work in a sedentary job.
After this final denial, Townsend continued to submit documentation to the
Committee. On February 25, 2002, Dr. Spruell wrote a letter to Delta stating
It is evident at this point, and has been true in the past, that she cannot
undertake gainful employment because she cannot stand for any
length of time and cannot do a job that requires her to get up and
down out of a chair. As a matter of fact, sitting causes her difficulty
and she even has some difficulty driving to work. For these reasons
she is totally and permanently disabled and unable to undertake any
gainful employment.
The same day, Townsend was found eligible for Social Security Disability
benefits. Townsend sent the Committee a copy of the Social Security decision.
Townsend then filed suit claiming the Committee had improperly denied her
claim for disability benefits under ERISA. Both parties filed motions for summary
judgment. Delta submitted the administrative record that was before it during its
determination of Townsend’s eligibility. Townsend submitted Dr. Spruell’s
February 25, 2002 letter, the Social Security decision, and an affidavit from Dr.
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Spruell. In response to a motion by Delta, the district court excluded these items
from consideration because they were outside the administrative record. Based on
the original record, the district court granted summary judgment for Delta.
Townsend timely appealed.
STANDARD OF REVIEW
This court reviews de novo a grant of summary judgment, applying the same
standards as the district court. Williams v. BellSouth Telecomm., Inc., 373 F.3d
1132, 1134 (11th Cir. 2004). Additionally, we review evidentiary rulings for an
abuse of discretion. U.S. v. Padron, 527 F.3d 1156, 1159 (11th Cir. 2008).
DISCUSSION
Where, as here, the Plan endows the plan administrator with discretion to
determine eligibility for plan benefits, we review the administrator’s decision
under a deferential standard. Firestone Tire and Rubber Co. v. Bruch, 489 U.S.
101, 111 (1989). This court will reverse the plan administrator’s decision only if
it was arbitrary and capricious. Paramore v. Delta Airlines, 129 F.3d 1446, 1449
(11th Cir. 1997). If, however, the plan administrator also operates under a conflict
of interest we apply heightened arbitrary and capricious review.1 Id. A conflict of
1
Townsend argues that Metropolitan Life Ins. Co. v. Glenn, – U.S. –, 128 S.Ct. 2343
(2008) has affected our review under ERISA. Townsend contends that more searching review
than arbitrary and capricious is now required because the Supreme Court used “trust principles”
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interest exists where the plan administrator determines eligibility for benefits and
also pays those benefits out of its own assets. Levinson v. Reliance Standard Life
Ins. Co., 245 F.3d 1321, 1326 (11th Cir. 2001).
In her brief, Townsend suggests that the Committee operated under a
conflict of interest because it funded the benefits trust. The payments into the
benefits trust, however, were periodic and non-reversionary. The Committee
incurs no direct expense as a result of granting benefits nor does it profit from the
denial or discontinuation of benefits, and therefore does not operate under a
conflict of interest. Buckley v. Metro. Life, 115 F.3d 936, 939 (11th Cir. 1997);
see also Turner v. Delta Family-Care Disability and Survivorship Plan, 291 F.3d
1270, 1273 (11th Cir. 2002) (applying ordinary arbitrary and capricious review to
the same benefits plan involved in this case). The appropriate standard of review
is, therefore, the arbitrary and capricious standard of review, and we will overturn
the Committee’s decision to deny Townsend long-term disability benefits only if it
in Glenn. We disagree. The Supreme Court used the same trust principles in Firestone Tire and
Rubber Co. v. Bruch, 489 U.S. 101 (1989) upon which our standards are based. See Marecek v.
BellSouth Telecommunications, Inc., 49 F.3d 702, 705 (11th Cir. 1995). Nothing in Glenn’s
discussion of trust principles has, therefore, altered this court’s standards for reviewing an
ERISA plan administrator’s decisions. Furthermore, Glenn addressed only cases where a conflict
of interest exists. 128 S.Ct. at 2350; see also White v. Coca-Cola, Co., No. 07-13938, --- F.3d ---
(11th Cir. Sept. 10, 2008) (concluding that Glenn has not affected ERISA cases where the plan
administrator did not operate under a conflict of interest). As there is no conflict of interest here,
Glenn has not affected our analysis.
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abused its discretion. See Jett v. Blue Cross and Blue Shield of Alabama, Inc.,
890 F.2d 1137, 1139 (11th Cir. 1989) (noting that in ERISA cases “arbitrary and
capricious” and “abuse of discretion” are used interchangeably).
We next turn to the question of what records the court may consider in
reviewing the Committee’s determination. Our case law is settled that we are
limited to only those documents that were before the administrator. See Jett, 890
F.3d at 1139 (noting that a review of the administrator’s determination is “based
upon the facts as known to the administrator at the time the decision was made”);
Turner, 291 F.3d at 1273 (stating that the court’s review is “based on the evidence
of the record”). Thus, the district court properly sustained Delta’s objection to
Townsend’s submission of documents outside the administrative record. We will,
therefore, not consider Dr. Spruell’s February 25, 2002 letter, his affidavit, or the
decision granting Townsend Social Security Disability benefits.
We now address the question of whether the Committee acted in an arbitrary
and capricious manner by denying Townsend long-term disability benefits.
“Under the arbitrary and capricious standard of review, the court seeks ‘to
determine whether there was a reasonable basis for the [administrator’s] decision,
based upon the facts as known to the administrator at the time the decision was
made.’” Hunt v. Hawthorne Associates, Inc., 119 F.3d 888, 912 (11th Cir. 1997)
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(quoting Jett, 890 F.2d at 1139)). So long as it was supported by evidence in the
administrative record, the Committee’s decision to deny Townsend disability
benefits was not improper; it is irrelevant whether this court or anyone else might
have reached a different conclusion. Turner, 291 F.3d at 1274.
Townsend is not entitled to long-term disability benefits under the Plan if
she is capable of “engaging in any occupation whatsoever for compensation or
profit, including part- time work.” Although neither “any occupation” nor “part-
time” are defined by the Plan, a plan cannot define eligibility for benefits so
narrowly that it “would deny benefits [if the claimant] should engage in some
minimal occupation, such as selling peanuts or pencils, which would yield only a
pittance.” Helms v. Monsanto Co., Inc., 728 F.2d 1416, 1421 (11th Cir. 1984).
Under the Federal Department of Labor’s definitions of types of work, the level of
work carrying the fewest physical requirements is “sedentary work.” Sedentary
work involves “sitting most of the time, but may involve walking or standing for
brief periods of time. Jobs are sedentary if walking and standing are required only
occasionally and all other sedentary criteria are met.” Dept. of Labor, Dictionary
of Occupational Titles. Thus, our question is whether the record supports the
conclusion that Townsend is capable of performing sedentary work—the least
physically demanding category of work—on at least a part-time basis.
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We hold that the evidence in the administrative record supports the
Committee’s determination that Townsend was capable of performing at the very
least part-time sedentary work. In a telephone conversation with Dr. Bonner, Dr.
Spruell stated that he believed she could reasonably perform work where she could
sit or stand for comfort and change positions as needed. This is consistent with
sedentary work. Additionally, the FCE indicated that Townsend was capable of
light-duty work. To the extent other evidence in the record suggests that a
claimant is disabled, a plan administrator is entitled to weigh the evidence and
resolve conflicting evidence about the claimant’s disability. See Paramore, 129
F.3d at 1452 (discussing the administrator’s right to reach a conclusion in the face
of medical evaluations containing “sporadic, internally inconsistent statements”).
Townsend argues that the Committee abused its discretion by relying on Dr.
Bonner’s report of his conversation with Dr. Spruell. Townsend contends that this
conversation was unreliable as evidence because this conversation was
inconsistent with the other documentation submitted by Dr. Spruell, and the
Committee should have obtained clarification of an unverified, oral statement. We
disagree. Dr. Spruell’s statement over the phone was not so totally inconsistent
with his other records that it was improbable he would have made it. In a letter,
Dr. Spruell wrote that Townsend “can perform no job which requires more than
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one to two hours of standing, sitting, if she has to get up and down, or walking.”
(emphasis added). This finding is not inconsistent with a statement that she could
perform a job where she could be seated and change positions as needed for
comfort. Other records submitted by Dr. Spruell discussed Townsend’s inability
to stand and inability to work a full, 8-hour day. Dr. Spruell did not directly
address Townsend’s ability to work while seated on a part-time basis. The
Committee’s failure to obtain clarification or confirmation of the call was not an
abuse of discretion. Under ERISA, the claimant bears the burden to prove that she
is entitled to benefits. Horton v. Reliance Standard Life Ins. Co., 141 F.3d 1038,
1040 (11th Cir. 1998). Any shortcomings in the record fell to her to correct. The
written denial of her benefits claim alerted Townsend to Dr. Bonner’s
interpretation of his phone call with Dr. Spruell, and she had an opportunity to
correct any error in the record before the final review of her claim, if, indeed, she
felt there was an error. Thus the Committee was entitled to rely on the information
in her record.
Townsend also contends that the FCE was faulty and the Committee should
not have relied upon it to deny her benefits. She argues that (1) the objective
findings in the FCE indicate that she could not stand or walk for more than one
hour, (2) the FCE was internally inconsistent because the objective findings
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indicated that she could not stand or walk for long periods of time and yet the FCE
concluded that she could perform light-duty work for 8 hours a day, and (3) an
FCE from a physical therapist should not have been given greater consideration
than the statements of Townsend’s treating physician. These arguments fail. First,
the fact that she cannot stand or walk for more than one hour does not prove that
Townsend is unable to perform part-time sedentary work and so does not establish
that she is disabled under the Plan. Second, FCEs are routinely conducted by
physical therapists. See Duncan v. Fleetwood Motor Homes of Indiana, Inc., 518
F.3d 486, 489 (7th 2008); Baker v. Barnhart, 457 F.3d 882, 886 (8th Cir. 2006).
And plan administrators routinely rely on FCEs. See Gannon v. Metro. Life Ins.
Co., 360 F.3d 211, 213 (1st Cir. 2004) (concluding that it was reasonable for a
plan administrator to rely upon an FCE as evidence supporting a determination
that claimant did not meet plan’s definition of disability); Jackson v. Metro. Life
Ins. Co., 303 F.3d 884, 888 (8th Cir. 2002) (noting that an FCE’s determination
that claimant could do light work was enough to constitute substantial evidence
for denial of benefits). Third, plan administrators are not required to give greater
weight to the submissions of a treating physician than to other reliable evidence.
Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003). Furthermore,
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as discussed above, the record contained Dr. Spruell’s unrefuted statement that he
believed she could perform sedentary work.
Finally, Townsend argues that the Committee abused its discretion by not
obtaining a vocational assessment that would apparently determine what jobs
Townsend would be able to perform. The burden to prove her disability lay with
Townsend, Horton, 141 F.3d at 1040, and so the Committee was under no
obligation to conduct a vocational assessment.
In light of the evidence in the administrative record indicating that
Townsend was able to perform sedentary, part-time work, it was not unreasonable
for the Committee to conclude that Townsend was not disabled within the
meaning of the Plan.
CONCLUSION
For the foregoing reasons, we AFFIRM the decision of the district court.
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