[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-15387 MAY 29, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D. C. Docket No. 3:09-cv-01042-HWM-MCR
CAROLYN SMITH,
Plaintiff-Appellant,
versus
THE PENSION COMMITTEE OF
JOHNSON & JOHNSON,
d.b.a. Reed Group,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 29, 2012)
Before EDMONDSON, MARTIN and BLACK, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Carolyn Smith appeals the district court’s decision
affirming the termination of her long-term disability benefits. No reversible error
has been shown; we affirm.
Smith is a former employee of Johnson and Johnson Care, Inc. Johnson and
Johnson offers eligible employees of participating companies the opportunity to
participate in the long term disability plan for Johnson and Johnson and affiliated
companies (the “Plan”). The ERISA Plan document provided the Plan
administrator1 with discretionary authority to determine eligibility for benefits, to
construe the terms of the Plan and to make binding benefit determinations based
on its construction of the Plan. The Plan is funded exclusively by contributions
made by Plan participants; Johnson and Johnson neither funds nor insures benefits
under the Plan.
Plaintiff began to receive long term disability benefits under the Plan in
February 1996; the disabling diagnosis was bipolar affective disorder, depressed.2
In 2004, Plaintiff underwent a comprehensive psychological examination by Dr.
Reynolds; and in November 2006, Plaintiff was required to undergo an adult
1
Under the Plan, the Johnson & Johnson Pension Committee (the “Pension Committee”)
acts as the Plan Fiduciary. The Plan allows the Pension Committee to delegate responsibilities to
a claims service organization (“CSO”) to administer the Plan. The Pension Committee delegated
to Reed Group -- as the appointed CSO -- responsibility for making claim determinations.
2
In September 2000, Plaintiff’s diagnosis included: Personality Disorders, Unspecified;
Pathological Personality NOS; Personality Disorder NOS; Psychopathic: Constitutional State;
Bipolar Disorders, Other and Unspecified; Bipolar II Disorder; and Manic Depressive Psychosis,
Mixed Type.
2
psychiatric evaluation by Dr. Pruitt. Dr. Pruitt was of the opinion that Plaintiff
was unlikely to improve and that her disability was permanent. In June 2008,
Plaintiff’s attending physician -- Dr. Groble -- provided Reed, the claims service
organization appointed by the Pension Committee, with an updated statement on
Plaintiff’s condition. Dr. Groble was of the opinion that Plaintiff was unable to
return to work under any circumstances. But Dr. Groble also informed Reed for
the first time that Plaintiff was not complying with treatment recommendations.
Defendant states that the receipt of this new information about non-compliance
triggered their request that Plaintiff submit to a comprehensive neuropsychological
evaluation to allow the development of a full diagnosis and treatment plan.
Plaintiff was angry about submitting to a neuropsychological evaluation;
Plaintiff had a fear of psychotherapy because of a bad experience of which Reed
was aware. Reed advised Plaintiff that the Plan required her cooperation; Reed
warned specifically that her “failure to attend, put forth reasonable effort or
otherwise fully cooperate in this evaluation will result in the termination of your
disability benefits.” Although Plaintiff initially stated she would submit to no
further exam or therapy, she finally agreed to the exam but continued to maintain
she would allow no therapy.
3
Dr. Glen performed Plaintiff’s neurological evaluation on 10 July 2008. Dr.
Glen concluded that the scores on tests she administered were invalid: Plaintiff put
forth suboptimal effort and appeared to exaggerate intentionally her cognitive
symptoms. According to Dr. Glen, Plaintiff was “fairly oppositional” during the
test; her extremely poor performance on the tests was in marked contrast to
observations and reports of current functioning. Dr. Glen opined that Plaintiff’s
test- taking behavior was highly unusual and much more impaired than that of
other patients she had seen with severe brain injury. Dr. Glen saw no evidence of
cognitive impairment; Plaintiff’s “behavior seemed to reflect personality style and
oppositional interactions rather than any underlying psychiatric dysfunction.”
Because of “characterological and pyschosocial” challenges, Dr. Glen did not
believe that Plaintiff could maintain a full-time job; she also did not believe
Plaintiff’s limitations were due to an underlying psychiatric dysfunction. After all
tests results were received and after consideration of Plaintiff’s file, Dr. Glen was
of the opinion that Plaintiff’s performance was likely due to malingering.
Reed notified Plaintiff that her benefits were being terminated based on her
failure or refusal to cooperate and to put forth her best effort during testing. The
termination letter advised Plaintiff specifically that she should provide Reed with
an explanation of her test performance if she wished to challenge the termination.
4
In her appeal of the termination decision, Plaintiff submitted only a letter
from her treating psychiatrist, Dr. Groble. Dr. Groble’s letter took issue with Dr.
Glen’s diagnoses and functional abilities assessment. About the stated reason for
the termination -- Plaintiff’s failure to cooperate and malingering -- Dr. Glen said
only that Plaintiff was
emotionally distrustful and traumatized by past
professional contacts including a social worker divulging
“confidential information leading to the loss of custody
of her children. The patient has been afraid, as a result,
to even be in any further counseling that might have
improved her adjustment emotionally and potentially
allowed rehabilitation.
Defendant sent Plaintiff’s claim for a physician’s file review to determine if
medical documentation supported a finding of a cognitive impairment that would
impair Plaintiff’s ability to participate in testing. Dr. Marie-Claude Rigaud
concurred in Dr. Glen’s conclusions: the objective medical findings showed no
cognitive impairment which would adversely affect Plaintiff’s ability to complete
psychological and neuropsychological testing.
Plaintiff’s first appeal was denied by Reed. Plaintiff exercised her right to a
second appeal and submitted -- in addition to Dr. Groble’s letter -- the results of an
orthopedic exam she had in connection with litigation in which she was a
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claimant. The results of the orthopedic exam failed to address Plaintiff’s ability to
cooperate; and it noted no failure to cooperate in the orthopedic exam.
Plaintiff’s second appeal was considered by the Pension Committee. The
Pension Committee concluded that the documentation for Plaintiff’s claim
contained substantial evidence to support Reed’s benefit denial determination
because she failed to cooperate during required testing and failed further to
provide evidence that her failure to cooperate was the result of cognitive deficits.3
ERISA itself provides no standard for review of the benefits decision of
plan administrators. Firestone Tire & Rubber Co., v. Bruch, 109 S.Ct. 948, 953
(1989). Based on Supreme Court guidance in Firestone and Metropolitan Life Ins.
Co. v. Glenn, 128 S.Ct. 2343, 2348 (2008), we have established a multi-step
framework for review of ERISA benefit decisions:
(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.
3
The Pension Committee also noted that Plaintiff did not satisfy the definition of total
disability under the Plan because clinical assessments showed she was able to work a less than
eight-hour day. The district court only reviewed the reasonableness of the termination on the
failure-to-cooperate basis specified. We, too, only review that basis.
6
(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, the conflict should merely be a factor for the
court to take into account when determining whether an
administrator’s decision was arbitrary and capricious.
Blankenship v. Metropolitan Life Insur. Co., 644 F.3d 1350, 1355 (11th Cir. 2011).
The district court was of the opinion that Plaintiff’s long history of
established disability on the basis of psychological and emotional impairments
raised a question of fact about whether Defendant’s decision was de novo wrong.
But even if it was de novo wrong, the district court concluded that Defendant did
not abuse its discretion, and its decision was not arbitrary and capricious and, after
consideration of the entire record, termination was a reasonable determination. We
agree.
7
The Plan conditioned continued eligibility for disability benefits on
compliance with recommended treatment and cooperation during evaluations
requested pursuant to the Plan. We cannot say it was unreasonable to request a
comprehensive reevaluation of Plaintiff’s condition once Plaintiff’s physician gave
notice that Plaintiff failed to comply with treatment recommendations. According
to Drs. Glen and Rigaurd, Plaintiff refused to put forth her best efforts during that
comprehensive reevaluation; the testing results had no validity. Plaintiff was
offered the opportunity to submit additional documents to explain her test
performance. The documents submitted failed to show that Plaintiff was incapable
of participating and cooperating fully in the testing process. We cannot say that the
Pension Committee acted unreasonably or in an arbitrary and capricious manner
when it determined that Plaintiff’s eligibility for benefits under the Plan was
nullified by her non-cooperation during testing procedures.
Plaintiff argues that the deferential arbitrary and capricious standard should
not apply because “procedural irregularities” attended the termination decision.
Plaintiff argues that three medical evaluations over a four-year period were abusive
and evidence Defendant’s bad faith. Also Plaintiff contends that Plaintiff’s failure
to follow treatment recommendations of her physician -- the purported reason for
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the last of these evaluations -- is unrelated to the intensive neuropsychological
testing that Plaintiff was forced to endure.
Plaintiff does not contend that Defendant operated under a conflict of
interest, at least as conflict of interest is typically understood in this context:
Defendant had no financial interest in the benefit decision. Plaintiff’s protestations
to the contrary notwithstanding, the asserted “procedural irregularities” establish no
conflict sufficient to support Plaintiff’s argument that a heightened standard of
review should apply.
Under the standard of review of benefit decisions set out in Blankenship v.
Metropolitan Life Insur. Co., Defendant’s termination of Plaintiff’s disability
benefits must be affirmed.
AFFIRMED.
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