Vlass v. Raytheon Employees Disability Trust

United States Court of Appeals
For the First Circuit
No. 00-1956

CLYDE N. VLASS,

Plaintiff, Appellee,

v.

RAYTHEON EMPLOYEES DISABILITY TRUST;
RAYTHEON COMPANY; METROPOLITAN
LIFE INSURANCE COMPANY,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Torruella, Chief Judge,

Lipez, Circuit Judge,

and Stearns,* District Judge.

Stephen S. Churchill, with whom James F. Kavanaugh, Jr. and Conn
Kavanaugh Rosenthal Peisch & Ford, LLP, were on brief, for appellants.
Daniel C. Finbury, with whom Karen Alexanian Benger and Finbury
& Sullivan, P.C., were on brief, for appellee.

* Of the District of Massachusetts, sitting by designation.
March 26, 2001

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 TORRUELLA, Chief Judge. Appellant Metropolitan Life

Insurance Company ("Met Life"), in its capacity as Claims Administrator

of the Raytheon Company Long Term Disability Benefits Plan (the

"Plan"), concluded that appellee Raymond Vlass was no longer eligible

for long-term disability benefits as of September 8, 1996 because he

was no longer "totally disabled." The district court concluded that

Met Life's decision to discontinue benefits was "arbitrary and

capricious," and granted summary judgment to Vlass. Vlass v. Raytheon

Employees Disability Trust, 96 F. Supp. 2d 51 (D. Mass. 2000) (denying

summary judgment for defendants); Vlass v. Raytheon Employees

Disability Trust, Civ. No. 99-10146-JLT (D. Mass., June 6, 2000) (order

granting summary judgment to plaintiff). For the reasons stated below,

we reverse.

BACKGROUND

Vlass began working for appellant Raytheon in October 1985.

In February 1995, he was diagnosed with diabetic neuropathy and chronic

pain. He was deemed "fully disabled" in March 1995, which entitled him

to the receipt of short-term disability benefits.1 After eighteen

1 An employee is eligible for benefits during the first eighteen months
of disability if he is "fully disabled," meaning that "because of a
sickness or injury," he "cannot perform the essential elements and
substantially all of the duties of his . . . job at Raytheon even with
a reasonable accommodation."

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months of receiving disability benefits under the Plan, an employee

must be "totally disabled" to continue receiving benefits.2

On September 8, 1996, Met Life concluded that Vlass was not

"totally disabled" under the terms of the Plan, and accordingly denied

Vlass's request for long-term disability payments. Met Life relied on

four pieces of evidence in making its decision: (1) an August 7, 1996

report by Dr. Elizabeth Buchanan which indicated that Vlass was

"capable of working in a desk job" and could perform certain physical

tasks; (2) a May 24, 1996 independent medical examination performed by

Dr. Robert Levine, which indicated that Vlass suffered some physical

restrictions, but that these physical limitations did not make

employment an impossibility; (3) an independent vocational assessment

undertaken by Crawford Disability Management which found Vlass "capable

of performing skilled employment at a sedentary to light level

capacity;" and (4) a two-day surveillance of Vlass, which demonstrated

his ability to perform at least some physical activity. Based on this

evidence, and considering Vlass's other skills, Met Life concluded that

there was "insufficient medical evidence of a functional impairment

that would interfere with [his] ability to perform any and all

occupations."

2 To be "totally disabled," an employee must be "fully disabled" under
the Plan, and he must be unable to "do any other job for which he . . .
is fit by education, training or experience."

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 The district court disagreed. It re-evaluated the two

medical reports on which Met Life had relied and found that they

undermined Met Life's position. Vlass, 96 F. Supp. 2d at 52-53.

Because earlier reports filed by Dr. Buchanan conflicted with the

August 7 report, the district court discounted it as a cursory "block

form" prepared at Met Life's request. Id. at 52. The court read Dr.

Levine's opinion as indicating that Vlass was "totally," if not

necessarily "permanently" disabled as of May 24, 1996. Id. at 53. In

addition, the district court relied heavily on nine reports prepared by

Dr. Richard Levy, a treating neurologist, who repeatedly opined that

Vlass was "totally disabled." The district court thus concluded that

Met Life had relied on "unduly selective, . . . extracted medical

observations," taken out of context. Id. It then discounted the

vocational assessment report and surveillance report as having "little

independent merit" because they were based on "mischaracterizations of

the medical reports." Id. The court concluded that Met Life lacked

"substantial evidence" to support its termination of benefits, and that

the only reasonable conclusion was that Vlass was "totally disabled"

under the terms of the Plan. Id. at 54.

DISCUSSION

Our review of the district court's grant of summary judgment

is de novo. Doyle v. Paul Revere Life Ins. Co., 144 F.3d 181, 183 (1st

Cir. 1998). When a Plan Administrator has discretion to determine an

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applicant's eligibility for benefits, such as here,3 the administrator's

decision must be upheld unless "arbitrary, capricious, or an abuse of

discretion." Id. (quoting Díaz v. Seafarers Int'l Union, 13 F.3d 454,

456 (1st Cir. 1994)). This standard means that the administrator's

decision will be upheld if it is reasoned and "supported by substantial

evidence in the record." Id. at 184 (quoting Associated Fisheries of

Maine, Inc. v. Daley, 127 F.3d 104, 109 (1st Cir. 1997)). Evidence is

"substantial" if it is reasonably sufficient to support a conclusion.

Id. Moreover, the existence of contradictory evidence does not, in

itself, make the administrator's decision arbitrary. Id. (citing

Sprague v. Director, O.W.C.P., 688 F.2d 862, 865-66 (1st Cir. 1982)).

We begin with the evidence supporting Vlass's claim of total

disability. Vlass's most impressive evidence is the opinion of Dr.

Levy, one of his primary treating physicians. At the beginning of

Vlass's treatment, Dr. Levy opined that Vlass was virtually incapable

of any physical activity. A March 9, 1995 evaluation (made soon after

Vlass filed his original disability claim) found that Vlass had 0%

capacity to drive, use public transportation, walk, stand, sit, reach,

3 The Plan provides that "[t]he Plan Administrator, and, with respect
to claims administration, the Claims Administrator, shall have the
exclusive right, in their sole discretion, to interpret the Plan and
decide all matters arising thereunder, including the right to remedy
possible ambiguities, inconsistencies, or omissions. All
determinations of the Plan Administrator and Claims Administrator with
respect to any matter within their assigned responsibilities hereunder
shall be conclusive and binding on all persons unless it can be shown
that the interpretation or determination was arbitrary or capricious."

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grasp and climb. A year later, on March 4, 1996, Levy wrote that

Vlass's "pain interfere[s] with his ability to function at work," and

that his pain medication "could interfere with his cognitive function."

Levy concluded that Vlass remained "disabled from his prior and all

occupations." In September 1996, Levy reasserted that the pain

attributable to the diabetic neuropathy was disabling, but also relied

on Vlass's underlying diabetes and unrelated heart problems as support

for a finding of total disability. Finally, in November, after

viewing the surveillance videotape, Levy acknowledged that "[Vlass] is

capable of doing things . . . from a physical standpoint," but still

concluded that Vlass "remain[ed] permanently disabled."

Vlass also relies, in part, on reports submitted by

Dr. Buchanan and Dr. Levine. In a September 11, 1995 letter, Buchanan

concluded that Vlass's "[in]ability to maintain adequate concentration

and endurance [sufficient for a] regular job" made Vlass "currently

totally disabled." A May 24, 1996 evaluation by Levine indicated that

Vlass remained temporarily disabled at that point, although his

condition was unlikely to be permanent.

Finally, Vlass points to his own reports of subjective

feelings of pain, which have remained consistent throughout the term of

his disability.

We now turn to the evidence supporting Met Life's position.

Although the district court criticized appellant for relying on

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"selective consideration of the medical evidence," our evaluation of

the record indicates that the particular selection made by appellant

was appropriate and reasonable. First, Met Life chose to focus on Dr.

Buchanan's August 7, 1996 evaluation (finding that Vlass was no longer

totally disabled), and placed little weight on her earlier

determinations to the contrary. Buchanan's later reports indicate that

she had changed her opinion of Vlass's disability by September 1996;

moreover, a close look at her evaluations indicates that this shift was

not arbitrary or sudden, but reflected Vlass's ongoing improvement. In

September 1995, Buchanan found that Vlass was "not currently

employable," but that it was "possible that over the next year he

[would] have improvement." Her diagnosis was based not on Vlass's

inability to perform physical tasks, but instead on "his [in]ability to

maintain adequate concentration and endurance." On March 25, 1996,

Buchanan opined that physical exertion continued to cause Vlass pain,

but that he was probably capable of undertaking vocational training for

a desk job. To the extent that Buchanan had previously focused on

Vlass's inability to concentrate as indicative of total disability, her

March letter indicates a shift in her opinion. Furthermore, in August

1996, Buchanan concluded that Vlass could work 5-6 hours in a day,

albeit with frequent changes in position.4 Buchanan also indicated in

4 The district court criticized this report, and discounted it, for
having been entered on a Met Life supplied "block form." Vlass, 91
F. Supp. 2d at 52. It provided no legal or factual reasoning for so

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August that Vlass could perform a host of physical activities, and even

lift (on infrequent occasions) up to 50 pounds. Buchanan's final

report thus directly contradicts Levy's opinion. Moreover, it is

consistent both with Levine's report and her own earlier findings,

which indicated that Vlass's disability was unlikely to be permanent,

had lasted longer than normal for diabetic neuropathy, and was showing

signs of improvement.

The second piece of evidence relied on by Met Life is the

vocational assessment performed by Crawford in August 1996. The

assessment considered the most recent opinions of Drs. Buchanan,

Levine, and Levy.5 Given the functional capacity gleaned from those

opinions, and Vlass's educational and experiential background, Crawford

concluded that "Vlass [was] capable of performing skilled employment as

a sedentary to light level." The report also suggested several

employment alternatives that Vlass might pursue.

The third piece of evidence, the surveillance report, is the

most damning to Vlass. This is not so much because of the physical

doing. In our de novo review of the district court's decision, we
consider the form as we would all other evidence in the record.
5 Although the district court implied that the assessment was based on
the appellants' mischaracterization of the medical evidence, our
reading of the record cannot support such a suggestion. The assessment
did rely on the most recent opinion of each doctor. Given that all of
the doctors agreed that diabetic neuropathy was potentially a temporary
condition, it seems eminently reasonable for Crawford to have focused
on their most recent diagnoses.

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activity Vlass was seen doing while under surveillance: one can imagine

circumstances in which lifting a lawnmower out of a car, carrying trash

bags, or helping dogs into a car are tasks consistent with the Plan

definition of total disability.6 However, the surveillance report does

more than establish Vlass's physical capabilities. It also directly

conflicts with Dr. Levy's opinion as to these capabilities. Levy had

originally opined that Vlass had virtually no ability to perform

physical tasks, which would indeed make him totally disabled. More

recent opinions by Levy, although they did not focus on the previously

diagnosed physical incapacity, did not suggest any change in this

diagnosis. The surveillance indicated that Vlass's physical

limitations in no way matched Levy's original (unchanged) diagnosis.

Moreover, to the extent that Levy's later opinions shifted from a

determination of pure physical incapacity to one of diminished

6 Vlass filed an affidavit suggesting that the physical activity in
question was consistent with his total disability because his doctors
had counseled him to exercise. Vlass filed the affidavit, however, on
February 28, 2000, months after Met Life had announced its decision to
discontinue benefits. We have not yet decided whether the record in a
case such as this should only include items available to the
administrator at the time of its decision. Doe v. Travelers Ins. Co.,
167 F.3d 53, 57 (1st Cir. 1999) (assuming arguendo such a limitation);
see also Chandler v. Raytheon Employees Disability Trust, 53 F. Supp.
2d 84, 85 n.1 (D. Mass. 1999), aff'd 229 F.3d 1133 (2000) (holding that
the record is limited in this manner); McLaughlin v. Reynolds, 886 F.
Supp. 902, 906 (D. Me. 1995) (refusing to supplement the record when
review is under an "arbitrary and capricious" standard, as it is here).
In this case, as we explain, whether we consider the affidavit as part
of the record or not is of no consequence, given that the surveillance
effectively impeaches Dr. Levy's opinion, which provides almost all of
Vlass's supporting evidence.

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cognitive function, they were directly contradicted by the opinion of

Dr. Buchanan, and partially contradicted by that of Dr. Levine.

It is the responsibility of the Administrator to weigh

conflicting evidence. Guarino v. Metropolitan Life Ins. Co., 915 F.

Supp. 435, 445 (D. Mass. 1995). Dr. Levy's original diagnosis that

Vlass was entirely incapacitated was gainsaid by the diagnoses of other

doctors and the surveillance report. Different doctors gave different

opinions as to the effect of Vlass's pain on his ability to function in

a normal workplace without physical demands. And the vocational

assessment indicated that Vlass was capable of performing adequately in

other occupations despite his pain. Given this conflicting evidence,

we cannot say that Met Life was arbitrary and capricious in its

decision to discontinue Vlass's benefits. We must therefore reverse

the decision of the district court.

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