Gannon v. Metropolitan Life Insurance

United States Court of Appeals
For the First Circuit

No. 03-2053

BONNIE GANNON,

Plaintiff-Appellee,

v.

METROPOLITAN LIFE INSURANCE COMPANY,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Torruella, Lourie,* and
Howard, Circuit Judges.

Stephen S. Churchill with whom James F. Kavanaugh, Jr. was on
brief for appellant.
Robert J. Hennigan, Jr. for appellee.

February 19, 2004

* Of the Federal Circuit, sitting by designation.
 LOURIE, Circuit Judge. Metropolitan Life Insurance

Company (“MetLife”) appeals from the district court’s entry of

summary judgment in favor of Bonnie Gannon on her claim that

MetLife violated the Employee Retirement Income Security Act of

1974 (“ERISA”), 29 U.S.C. §§ 1001-1461 (2000), by terminating her

long-term disability benefits. Gannon v. Metro. Life Ins. Co.,

Civ. Action No. 01-40192-NMG (D. Mass. June 12, 2003). Because we

conclude that MetLife’s benefits decision was not arbitrary or

capricious, we reverse.

BACKGROUND

Ms. Gannon began working at Astra Pharmaceutical

Products, Inc. in March 1991. During her employment with Astra she

participated in the Astra USA, Inc. Long Term Disability Plan (the

“Plan”), which was administered by MetLife. Under the Plan, a

participant is initially considered “disabled” and thus entitled to

disability benefits if she is unable to perform the material duties

of her regular job. After twenty-four months, however, a

participant is considered “disabled” only if she is also unable to

perform “the material duties of any gainful work or service for

which [she is] reasonably qualified taking into consideration [her]

training, education, experience, and past earnings.”

Gannon was diagnosed with a tumor of the spinal cord in

July 1997. She stopped working shortly thereafter and underwent

surgery the following month. Gannon subsequently applied for, and

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on June 6, 1998 was finally awarded, long-term disability benefits

under the Plan.

On October 17, 2000, however, MetLife denied Gannon’s

request for continued disability benefits, determining that Gannon

no longer qualified as “disabled” under the Plan because she was

not unable to perform “the material duties of any gainful work or

service for which [she was] reasonably qualified.” In a letter

informing Gannon of its decision, MetLife cited the following

documents: an attending physician statement, which documented

Gannon’s subjective complaints of pain but indicated that she could

sit, stand, and walk on an intermittent basis; a functional

capacities evaluation (“FCE”), which stated that Gannon should be

capable of performing a sedentary occupation; an independent

medical consultant’s analysis, which stated the same; and a

transferable skills analysis (“TSA”), which identified three

occupations that Gannon should be capable of performing. MetLife

subsequently denied Gannon’s appeal of its decision to terminate

her disability benefits on June 25, 2001.

On October 16, 2001, Gannon filed a complaint against

MetLife in the United States District Court for the District of

Massachusetts, alleging that MetLife wrongfully terminated her

disability benefits in violation of ERISA. The district court

denied MetLife’s motion for summary judgment and granted Gannon’s

cross-motion for summary judgment, concluding that MetLife’s

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decision to terminate Gannon’s disability benefits was arbitrary

and capricious because it was not supported by reasonably

sufficient evidence. More particularly, the court found the

evidence relied on by MetLife to be “circumstantial, unconvincing

and contrary to direct medical opinion.” Gannon, slip op. at 12.

The court accordingly granted summary judgment to Gannon. This

appeal followed.

DISCUSSION

We review a district court’s grant of summary judgment de

novo. Vlass v. Raytheon Employees Disability Trust, 244 F.3d 27,

29 (1st Cir. 2001). When, as in this case,1 a plan administrator

has discretion to determine an applicant’s eligibility for and

entitlement to benefits, the administrator’s decision must be

upheld unless it is “arbitrary, capricious, or an abuse of

discretion.” Id. at 29-30 (citation omitted). In other words, the

administrator’s decision must be upheld if it is reasoned and

supported by substantial evidence. Id. at 30. Evidence is

substantial if it is reasonably sufficient to support a conclusion,

1
The Plan provides that MetLife, as the plan administrator,
“shall have discretionary authority to interpret the terms of the
Plan and to determine eligibility for and entitlement to Plan
benefits in accordance with the terms of the Plan.” It further
provides that “[a]ny interpretation or determination made pursuant
to such discretionary authority shall be given full force and
effect, unless it can be shown that the interpretation or
determination was arbitrary and capricious.”

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and the existence of contrary evidence does not, in itself, make

the administrator’s decision arbitrary. Id.

On appeal, MetLife argues that its decision to terminate

Gannon’s disability benefits was not arbitrary and capricious,

despite the conflicting evidence relating to Gannon’s ability to

work. MetLife adverts to the following five pieces of evidence in

support of its position: the FCE, the independent medical

consultant’s opinion, the TSA, a surveillance report, and the

Social Security Administration’s (“SSA’s”) denial of Gannon’s claim

for disability benefits. Gannon responds that MetLife’s decision

to terminate her disability benefits was arbitrary and capricious

because it was not supported by substantial evidence and was in

direct contradiction to the opinions of Dr. Robin Davidson and Dr.

Charles Sweet, the two physicians who treated and examined her.

We agree with MetLife that its decision to terminate

Gannon’s disability benefits was not arbitrary and capricious, for

our review of the record convinces us that MetLife’s decision was

reasonably supported by the evidence in the record. First, MetLife

directs our attention to the FCE, a report completed by a physical

therapist who evaluated Gannon over a two-day period in August

2000. The FCE indicated that Gannon did not put forth her maximum

effort during the tests (refusing to complete tasks due to

subjective complaints of pain but without objective limitations)

and that her performance was inconsistent in various ways. With

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regard to Gannon’s functional capacities, the FCE indicated that

Gannon demonstrated significant abilities with walking and hand

coordination. The FCE evaluator further observed that Gannon

presented a sitting tolerance of four minutes and twelve seconds,

but stated that “she may be able to return to work performing data

entry” if she could change positions every five minutes.

Ultimately, the FCE evaluator concluded that Gannon was capable of

working eight hours per day and forty hours per week with certain

restrictions. Despite the district court’s discrediting of the

FCE’s overall recommendation, Gannon, slip op. at 26, and

recognizing that reasonable minds could differ about this analysis,

we conclude that MetLife’s reliance on the FCE was rational. The

FCE provided objective clinical evidence that Gannon was physically

capable of performing restricted work activities. It also provided

evidence that Gannon was exaggerating her symptoms. Although we do

not doubt that Gannon continues to experience pain, it was

appropriate for the physical therapist, based upon his observations

of Gannon over a two-day period, to assess the extent to which her

pain limited her functional capabilities. See Matias-Correa v.

Pfizer, Inc., 345 F.3d 7, 12 (1st Cir. 2003); Leahy v. Raytheon

Co., 315 F.3d 11, 19 (1st Cir. 2002). It was therefore reasonable

for MetLife to rely on the FCE as evidence supporting its

determination that Gannon was not “disabled” under the Plan because

she was capable of performing sedentary work.

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 Second, MetLife focuses on the report of Dr. Gary

Greenhood, an independent medical consultant who reviewed Gannon’s

file in September 2000. When asked whether the information in the

file suggested that Gannon possessed the work capacity to perform

certain sedentary jobs, Dr. Greenhood replied “Yes.” He then

explained that, based upon his assessment of Gannon’s medical

records (which included Dr. Sweet’s opinion, Dr. Davidson’s

opinions, and an MRI) as well as the FCE, Gannon’s documented

limitations “would not be expected to preclude all forms of

sedentary work capacity.” Dr. Greenhood’s opinion thus constitutes

medical evidence in support of MetLife’s decision to terminate

Gannon’s benefits. That Dr. Greenhood did not physically examine

Gannon does not decrease the credibility of his medical opinion, as

the district court suggested, Gannon, slip op. at 18. On the

contrary, we have treated a nonexamining physician’s review of a

claimant’s file as reliable medical evidence on several occasions.

See, e.g., Matias-Correa, 345 F.3d at 9-10, 12; Lopes v. Metro.

Life Ins. Co., 332 F.3d 1, 3 (1st Cir. 2003); Leahy, 315 F.3d at

19. Moreover, the fact that Dr. Greenhood’s opinion was based in

part on the FCE does not, as the district court found, Gannon, slip

op. at 18, detract from its reliability. See Matias-Correa, 345

F.3d at 10. Indeed, it is not for a court to determine how much

weight Dr. Greenhood should have accorded the FCE relative to Dr.

Davidson’s and Dr. Sweet’s opinions, given MetLife’s right to use

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its discretion, nor is it for a court to determine precisely how

much weight MetLife should have accorded Dr. Greenhood’s opinion in

its overall decision. See id. at 12. We simply conclude that

MetLife reasonably relied on Dr. Greenhood’s opinion as one piece

of evidence in support of its decision to terminate Gannon’s

benefits.

Third, MetLife points to the TSA, which was prepared by

a vocational consultant in September 2000. The purpose of the TSA

was to evaluate whether there were jobs that Gannon could perform

given her education, her work experience and training, her past

earnings, and her residual physical capacities. Considering those

factors, the TSA identified three sedentary occupations -- i.e.,

personnel scheduler, repair order clerk, and assignment clerk --

that Gannon should have been capable of performing. The district

court faulted the TSA for its reliance on the “suspect conclusions

of Dr. Greenhood and the FCE” and for its selective consideration

of the FCE’s findings. Gannon, slip op. at 26. However, as

discussed above, Dr. Greenhood’s opinion and the FCE provided

objective evidence relating to Gannon’s capacity for work. The TSA

then identified particular occupations that would comport with that

capacity for work as well as Gannon’s experience and

qualifications. MetLife was therefore entitled to consider the TSA

in determining whether Gannon was unable to perform any job for

which she was qualified. See, e.g., Lopes, 332 F.3d at 3 & n.3

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(upholding a plan administrator’s decision that relied in part on

the results of a TSA); Brigham v. Sun Life of Can., 317 F.3d 72, 83

& n.13 (1st Cir. 2003) (same).

Fourth, MetLife relies on a surveillance report. On

February 2, 2000, an independent investigator observed Gannon

leaving her home on four occasions to retrieve her mail, drive for

ten minutes, drive to and enter a department store, and drive to

the post office and a car dealership. Although the district court

correctly pointed out that the surveillance report alone does not

provide substantial evidence that Gannon was able to work, Gannon,

slip op. at 22, it does somewhat undermine Dr. Davidson’s

assessments that she could, for example, sit and walk only

intermittently and work zero hours per day. See Vlass, 244 F.3d at

31-32 (crediting a surveillance report that directly conflicted

with a treating physician’s opinion that the claimant had virtually

no ability to perform physical tasks). It was therefore reasonable

for MetLife to consider the surveillance report as one more piece

of evidence in support of its decision to terminate Gannon’s

disability benefits.

Finally, MetLife points to the SSA’s denial of Gannon’s

claim for social security disability benefits in August 1999. In

its letter denying her request for reconsideration, the SSA stated

that Gannon’s medical and other information indicated that Gannon

was able to move about in a satisfactory manner, sit most of the

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day, and lift up to ten pounds. While recognizing that her

condition prevented her from performing her past job, the SSA

concluded that Gannon’s condition “d[id] not prevent [her] from

doing other work.” Although the SSA’s determination of a

claimant’s entitlement to social security disability benefits is

not binding on disability insurers, it can be relevant to an

insurer’s determination whether that claimant is eligible for

disability benefits. Pari-Fasano v. ITT Hartford Life & Accident

Ins. Co., 230 F.3d 415, 420 (1st Cir. 2000); Leahy, 315 F.3d at 19-

20. In this case, the SSA made specific findings that were highly

relevant to MetLife’s determination of Gannon’s eligibility for

disability benefits. Most significantly, the SSA found that

Gannon’s condition was “not severe enough to keep [her] from

working,” thereby providing some independent evidence that Gannon

no longer met the Plan’s definition of “disabled.” MetLife was

therefore entitled to rely on the SSA’s denial of Gannon’s claim

for social security disability benefits in its consideration of

Gannon’s claim for disability benefits under the Plan.

Viewed in the aggregate, MetLife’s evidence is both

substantial and reasonably supportive of its decision to terminate

Gannon’s disability benefits. Gannon argues nonetheless that the

evidence relied on by MetLife is inadequate to support MetLife’s

decision because it is contradictory to and outweighed by the

opinions of the two physicians who examined her. We disagree. To

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be sure, both Dr. Davidson and Dr. Sweet consistently opined that

Gannon was unable to work.2 Dr. Davidson also submitted to MetLife

several attending physician statements in which he indicated that

Gannon could only sit, stand, and walk intermittently and lift

little or no weight. However, that evidence, while supportive of

Gannon’s position, is by no means unassailable. For one thing,

ERISA does not require plan administrators or reviewing courts to

accord special deference to the opinions of treating physicians.

Black & Decker Disability Plan v. Nord, 538 U.S. __, 123 S. Ct.

1965, 1972 (May 27, 2003). Moreover, MetLife relied on other

credible evidence -- in particular, the FCE, Dr. Greenhood’s

opinion, and the SSA’s denial of disability benefits -- which

sufficiently contradicted Dr. Davidson’s and Dr. Sweet’s opinions

that Gannon was completely disabled from working. 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”); Leahy, 315 F.3d

at 21 (stating that a treating physician’s opinion that a claimant

is totally disabled may be rebutted by other evidence). Under the

terms of the Plan, it was within MetLife’s discretion to weigh that

2
For example, Dr. Sweet concluded in May 1998 that Gannon was
“completely disabled from any productive work . . . for the
foreseeable future.” Dr. Davidson similarly stated in a letter
dated June 22, 1999 that he considered Gannon to be “disabled from
her usual mode of employment because of [her] inability to bend,
flex, sit or stand or twist.”

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competing evidence to determine whether Gannon was “disabled” and

hence whether she was entitled to continuing benefits. And in the

presence of conflicting evidence, it is entirely appropriate for a

reviewing court to uphold the decision of the entity entitled to

exercise its discretion.

Furthermore, our case law does not, as Gannon suggests on

appeal, require that the evidence relied on by a plan administrator

include the opinion of an examining physician. In fact, in Matias-

Correa v. Pfizer, Inc., 345 F.3d 7 (1st Cir. 2003), we recently

upheld an insurer’s termination of disability benefits in which the

supporting medical evidence consisted solely of an independent

medical consultant’s review of the claimant’s file, which included

records from the claimant’s physicians as well as an FCE. See id.

at 9-10, 12. In this case, MetLife relied on similar medical

evidence -- namely, Dr. Greenhood’s independent review of Gannon’s

file, which included the opinions of Gannon’s physicians as well as

an FCE. As we observed in Matias-Correa, it is not our role to

evaluate how much weight an insurer should have accorded the

opinion of an independent medical consultant relative to the

opinions of a claimant’s own physicians. See id. at 12. Instead,

we must determine “‘not which side we believe is right, but whether

the insurer had substantial evidentiary grounds for a reasonable

decision in its favor.’” Id. (quoting Brigham, 317 F.3d at 85).

Despite contradictory medical opinions, MetLife’s determination

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that Gannon was capable of performing sedentary work was rationally

supported by medical evidence, clinical evaluations, and a relevant

administrative decision. In light of the record evidence as a

whole, we therefore cannot say that MetLife’s decision to terminate

Gannon’s disability benefits was arbitrary or capricious.

Accordingly, we reverse the decision of the district court.

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