United States District Court, E.D. Kentucky
AT COVINGTON PLAINTIFF ORDER ADOPTING REPORT AND RECOMMENDATION
DAVID L. BUNNING, District Judge.
Plaintiff Cathy Sears brings suit under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1132(a)(1)(B), (a)(3). She alleges that Defendants The Drees Company (Drees) and Union Security Insurance Company (Union) wrongfully terminated her long-term benefits, while Defendant U.S. National Bank Association (U.S. Bank) improperly refused to pay her short- and long-term disability benefits. (Doc. 1 at ¶¶ 12, 24). The parties filed cross-motions for summary judgment. (Docs. 46, 50, 55, 58). The motions were referred to United States Magistrate Judge Edward Atkins for a report and recommendation (R&R), pursuant to 28 U.S.C. § 636(b)(1)(B). (Doc. 68).
In his R&R, the Magistrate Judge recommends that the Court grant Drees and Unions' joint-motion for summary judgment and judgment on the administrative record (Doc. 58), grant U.S. Bank's motion for summary judgment (Doc. 46), and deny Sears' motions for summary judgment (Docs. 50, 55). (Doc. 69). Sears having filed objections to the R&R (Doc. 70), and Drees, Union, and U.S. Bank having responded (Docs. 74, 77), this matter is ripe for review. Although the parties have submitted a proposed order setting this matter for oral argument ( see Doc. 72), the Court finds that oral argument is not necessary to resolve the case. That motion is therefore denied.
Having considered the entire record, and finding that the R&R is sound in all respects, the Court will adopt the R&R in its entirety. Because the relevant facts and procedural history are adequately recounted in the R&R, they will not be restated here.
A. Standard of Review
Objections to a report and recommendation are reviewed de novo. 28 U.S.C. § 636(b)(1). However, "a general objection to a magistrate's report, which fails to specify the issues of contention, does not satisfy the requirement that an objection be filed. The objections must be clear enough to enable the district court to discern those issues that are dispositive and contentious." Miller v. Currie, 50 F.3d 373, 380 (6th Cir.1995). The Court will first address Sears' objections concerning her claim against Drees and Union, and then her claim against U.S. Bank.
1. Union's decision to terminate benefits was not arbitrary or capricious
The Magistrate Judge recommended summary judgment for Union on Sears' § 1132(a)(3) claim because her § 1132(a)(1)(B) claim provides an adequate avenue of relief. (Doc. 69 at 7 citing Marks v. Newcourt Credit Grp., Inc., 342 F.3d 444, 454 (6th Cir. 2003)). Sears does not object, and the Court agrees with the recommended disposition.
Sears does object to the recommendation of judgment on the administrative record for Union on her § 1132(a)(1)(B) claim. She takes issue with the Magistrate Judge's finding that Union did not act in an arbitrary or capricious manner in terminating her benefits. (Doc. 70 at 1). She makes the following specific arguments: (1) Union's decision was not based on objective evidence and has no clinical basis; (2) Dr. Jean Dalpe's opinion should be given no weight because she is bias and did not perform an in-person examination; (3) Union did not give proper deference to her treating physicians' opinions; and (4) her 2013 social security award and a 2012 report from Dr. David Roebker are properly before the Court. ( Id. at 1-5).
Plaintiff's objections notwithstanding, the Court agrees with the Magistrate Judge's finding that Union did not act arbitrarily or capriciously. As the R&R points out, Union relied on the following objective, clinical evidence in terminating Sears' benefits: Dr. Mike Jones' conclusion that the surveillance video "failed to substantiate... [and] demonstrated just the opposite of her claims" (Doc. 30-2 at 8); Nurse Arrasmith's opinion that the surveillance video indicated Sears was no longer suffering from major depression or panic attacks (Doc. 32-2 at 24); Dr. Dalpe's independent review, in which she found no evidence that Sears suffered from severe functional psychiatric impairment since the relevant date of January 2010 (Doc. 30-3 at 44); Sears' failure to follow up on psychiatric referrals (Doc. 32-1 at 58); and Sears' ability to seek and obtain additional employment (Doc. 30-4 at 60). (Doc. 30-2 at 62). Because Union's decision was based on substantial evidence, the Court will not disturb it. See McClain v. Eaton Corp. Disability Plan, 740 F.3d 1059, 1065 (6th Cir. 2014).
Next, Sears implies that it was improper for Union to consider Dr. Dalpe's opinion because Union hired Dr. Dalpe and Dr. Dalpe did not perform an in-person evaluation. (Doc. 70 at 3-4). Because Union contracted Dr. Dalpe to conduct the independent review, the Court does view her opinion with "some skepticism." Kalish v. Liberty Mut./Liberty Life Assur. Co. of Boston, 419 F.3d 501, 508 (6th Cir. 2005). However, Sears offers no evidence to support her conclusory allegation of bias, leaving the Court unable to discern that Union acted arbitrarily or capriciously in relying on Dr. Dalpe's evaluation. See id. Moreover, Dr. Dalpe's opinion is in concert with opinions from other medical professionals, including Sears' treating nurse, Ms. Arrasmith.
And there is no error in Union relying on Dr. Dalpe's review in lieu of ordering an inperson examination. When a plan, such as the one here, does not require an in-person evaluation, a plan administrator is permitted to rely on a file review. Calvert v. Firstar Fin., Inc., 409 F.3d 286, 295 (6th Cir. 2005). While the decision to do so "may raise questions about the thoroughness and accuracy of the benefits determination, " id., this case raises no such concerns. As discussed above, Union relied on more than just Dr. Dalpe's review: it relied on the surveillance tape, Dr. Jones' and Nurse Arrasmith's opinions, and Sears' ability to seek and obtain additional work. Because of the substantial evidence in the record, Union properly exercised its discretion in deciding not to order an in-person exam.
Sears also alleges that Union improperly rejected opinions from treating sources, arguing that her treating sources never released her to return to work. She cites from Darland v. Fortis Benefits Insurance Company, 317 F.3d 516 (6th Cir. 2003), in suggesting that the treating physician rule, germane to social security cases, applies with equal force to ERISA. (Doc. 70 at 4-5). That argument ignores subsequent United States Supreme Court precedent that ERISA "plan administrators are not obliged to accord special deference to the opinions of treating physicians." Black & Decker Disability Plan v. Nord, 538 U.S. 822, 825 (2003). "Reliance on other physicians is reasonable so long as the administrator does not totally ignore the treating physician's opinions." Balmert v. Reliance Standard Life Ins. Co., 601 F.3d 497, 504 (6th Cir. 2010) (citing Nord, 538 U.S. at 834). Sears has not established that Union even rejected a treating source opinion,  but to the extent it has, such a decision was not arbitrary ...