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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