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Damon ZAESKE, Plaintiff - Appellee, v. LIBERTY LIFE ASSURANCE COMPANY OF BOSTON, Defendant - Appellant.

United States Court of Appeals for the Eighth Circuit2018-08-23No. No. 17-2496
901 F.3d 944

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Opinion

majority opinion

COLLOTON, Circuit Judge.

This appeal arises from Liberty Life Assurance Companys denial of Damon Zaeskes application for long-term disability benefits under his employers welfare benefit plan. After Zaeske sued under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1132(a)(1)(B), the district court ruled that Liberty Lifes denial was an abuse of discretion and ordered the company to pay Zaeske benefits and attorneys fees. Liberty Life appeals, and we conclude that its decision was not an abuse of discretion, so we reverse the judgment.

I.

Zaeske worked at Walmart as a project manager. On April 4, 2014, he stopped working due to chronic back pain. As a Walmart employee, Zaeske was a member of Walmarts Associates Health and Welfare Plan, a plan insured and administered by Liberty Life. After his last day of work, Zaeske applied to Liberty Life as administrator for long-term disability benefits under the plan.

To evaluate Zaeskes claim, Liberty Life obtained medical records from his treating physicians-Dr. Garrett, Dr. Potts, and Dr. Nunley. The administrator then submitted those records to Dr. Shannon, an independent consulting physician. Dr. Shannon gave her assessment to Liberty Life on May 30, 2014.

Based on Zaeskes medical records, including the results of magnetic resonance imaging in 2013, Dr. Shannon diagnosed Zaeske with chronic low back pain and recently increased back and leg pain due to disc protrusion with severe stenosis. From this diagnosis, Dr. Shannon concluded that Zaeskes current estimated work capacity was limited to sedentary work, rather than the light work required by his job at Walmart.

Dr. Shannon explained, however, that the usual recovery time for Zaeskes primary impairing condition was three to six months. In a later portion of her report, when asked to address the estimated duration of Zaeskes restrictions and limitations, Dr. Shannon stated: An additional 3 months and depe[n]dent on response to treatment. Dr. Shannon suggested that Liberty Life continue to obtain updated office notes from Zaeskes treating physicians for ongoing review of his condition. Liberty Life then approved Zaeskes claim on June 4, subject to periodic evaluation of his disability.

Zaeske began receiving benefits on July 6. As part of its periodic evaluation, Liberty Life sent requests for updated medical records to Zaeskes treating physicians on October 12 and October 27. Although Liberty Life received Dr. Pottss responses to a generic restrictions form and an office visit summary from a new treating physician, Dr. Randolph, the administrator did not receive a response from Dr. Nunley or updated medical records from any of the physicians. On November 14, Liberty Life notified Zaeske that it had suspended his benefits and that Liberty Life would close his claim if it did not receive updated records by December 11. On December 12, Liberty Life had not received any updated records and thus denied Zaeske further benefits.

On December 15, Liberty Life received updated medical records from Dr. Potts, Dr. Nunley, and Dr. Randolph for May 9 to November 7, 2014. The same day, Liberty Life sent the records to Dr. Glassman, a second independent consulting physician, for his assessment. Dr. Glassman attempted to contact each of Zaeskes treating physicians three times, but received no response.

In a report dated December 23, Dr. Glassman observed that Zaeske had been diagnosed with lumbar degenerative disc disease and bulging discs, and that he suffered from spinal stenosis. Dr. Glassman noted that there was no evidence of any side effects from the medication that Zaeske used to control his pain. From Zaeskes records, Dr. Glassman concluded that the only diagnosis causing his impairment was lumbar degenerative disc disease and back pain. Dr. Glassman then opined that a gentleman who is 51 years old with a history of lumbar degenerative disc disease, but no evidence of any disc herniation could perform full-time activities throughout an eight-hour work day, five days a week. Liberty Life concluded, based on Dr. Glassmans assessment, that Zaeske was not entitled to long-term disability benefits and denied his claim.

On February 20, 2015, Zaeske appealed the denial and submitted a number of documents. These included treatment notes from Dr. Potts dated December 29, 2014, in which she found that Zaeske was [p]ositive for back pain, but did not address whether the pain was uncontrolled. In a letter dated February 10, 2015, Dr. Potts stated that [Zaeske] is unable to work due to severe back pain and medication that causes drowsiness and inability to concentrate. But Liberty Life declined to change its determination, because it had received no additional medical evidence-such as physical examinations or diagnostic testing-that would alter the previous medical assessment.

Zaeske then submitted additional information to Liberty Life, including the results of magnetic resonance imaging performed on January 13, 2015, and another treatment note from Dr. Potts in March 2015 stating that Zaeske was [p]ositive for back pain. On May 12, Liberty Life referred all original and additional information to Dr. Reecer, a third independent consulting physician. After Dr. Potts failed to respond to Dr. Reecers four attempts to contact her, Dr. Reecer gave his assessment on May 28. In his report, Dr. Reecer observed that the MRI from January 2015 revealed that Zaeske had intervertebral disc disease, severe stenosis, and a herniated disc. Dr. Reecer also observed that the records did not show any side effects from Zaeskes current medication.

Based on the MRI and Zaeskes other medical records, Dr. Reecer concluded that Zaeske had moderate lumbar degenerative disc disease, stenosis, and a herniated disc. Even with these conditions, however, Dr. Reecer opined that Zaeske could sit and walk for one-hour intervals, stand for thirty-minute intervals, and occasionally climb, crawl, squat, kneel, stoop, and crouch. Ultimately, Dr. Reecer determined that Zaeske could work an eight-hour shift, forty hours a week. Relying on Dr. Reecers assessment, Liberty Life denied Zaeskes claim on June 1.

II.

After Liberty Lifes final denial, Zaeske sought judicial review under ERISA, 29 U.S.C. § 1132(a)(1)(B). The statute gives a plan participant a cause of action to recover benefits due to him under the terms of his plan. The district court concluded that Liberty Lifes decision to terminate Zaeskes disability benefits was not supported by substantial evidence and was therefore an abuse of discretion. The district courts conclusion rested on its determination that the opinions of Dr. Glassman and Dr. Reecer were unreliable. The court then ordered Liberty Life to pay Zaeske for his past-due benefits and his attorneys fees.

We review the district courts decision de novo . McClelland v. Life Ins. Co. of N. Am. , 679 F.3d 755, 759 (8th Cir. 2012). Where, as here, an ERISA-qualified plan grants the plan administrator the discretion to determine whether a claimant is eligible for benefits, review of the administrators decision is for an abuse of discretion. Id. ; see Black & Decker Disability Plan v. Nord , 538 U.S. 822, 828, 123 S.Ct. 1965, 155 L.Ed.2d 1034 (2003). A plan administrators decision is not an abuse of discretion if it is reasonable-that is, if the decision is supported by substantial evidence. Johnson v. United of Omaha Life Ins. Co. , 775 F.3d 983, 989 (8th Cir. 2014). In this case, whether Liberty Lifes denials are supported by substantial evidence turns on whether it was permissible to rely on the opinions of Dr. Glassman and Dr. Reecer.

The district court found that Dr. Glassmans opinion was unreliable because he ignored verified proof in the medical file that Mr. Zaeske suffered from disc protrusion, herniation, and lumbar stenosis. Dr. Glassmans resulting incorrect diagnosis, according to the district court, led Dr. Glassman to assume that Mr. Zaeske was less impaired than he actually was-and contributed to a domino-effect of faulty assumptions and unsupported recommendations. The district court then faulted Dr. Glassman for not acknowledging that Zaeskes pain was uncontrolled or addressing how uncontrolled pain would affect Zaeskes ability to work. The district court further discounted Dr. Glassmans report because it did not mention any side effects from Zaeskes medication despite the fact that Dr. Potts had noted side effects in the past. The district court ultimately concluded that there is no question that Dr. Glassmans findings and recommendations were unreliable, which means that Liberty Lifes complete reliance on those findings was unreasonable and constituted an abuse of its discretion as Plan Administrator.

The district court likewise found Dr. Reecers opinion unreasonable and unsupported by the medical evidence. Although the district court acknowledged that Dr. Reecer recognized that Zaeske suffered from degenerative disc disease, a herniated disc, and chronic pain, the court rejected Dr. Reecers ultimate conclusion because he omitted from his report any consideration of whether Mr. Zaeskes chronic pain would impact his ability to function in the workplace. Similarly, the district court found inexplicable Dr. Reecers conclusion that Zaeske did not experience any side effects from his current medication regimen. The district court also determined that Dr. Reecers report was unsupported by the record because it contradicted Dr. Shannons earlier report based on the same diagnosis. The court reasoned that there was no evidence that Zaeskes condition had improved since Dr. Shannons report and that, if anything, intervening records indicated that his condition had worsened or had remained the same. Consequently, the district court concluded that Liberty Life erred by relying on Dr. Reecers recommendation when it denied Zaeskes claim.

We respectfully disagree and conclude that the opinions of Dr. Glassman and Dr. Reecer were sufficiently reliable to provide a reasonable basis for Liberty Lifes denials of Zaeskes claim. While another interpretation of Zaeskes medical records could support his eligibility for benefits, the assessments of Dr. Glassman and Dr. Reecer were not outside the range of reasonableness, and it was not an abuse of discretion for Liberty Life to rely on them.

Dr. Glassmans opinion resulted from a reasonable interpretation of Zaeskes medical records. In our view, Dr. Glassman did not ignore verified proof in the medical file that Mr. Zaeske suffered from disc protrusion, herniation, and lumbar stenosis. In his report, Dr. Glassman noted that some of Zaeskes medical records reported bulging discs and spinal stenosis. Liberty Life reasonably could have understood Dr. Glassmans final diagnosis-lumbar degenerative disc disease-as an umbrella term that encompassed disc protrusion and lumbar stenosis. And Dr. Glassman did not ignore evidence in Zaeskes medical records that he suffered from disc herniation. The first evidence of herniation came from the MRI in January 2015, the results of which were not available until three weeks after Dr. Glassman gave his assessment. Dr. Glassmans opinion, therefore, did not derive from a clearly incorrect diagnosis in light of the records available to him.

Dr. Glassman did not err by declining to discuss the effects of uncontrolled back pain on Zaeskes ability to work, because Zaeskes medical records did not dictate a conclusion that he was suffering uncontrolled back pain at the time of Dr. Glassmans assessment. Based on an examination on June 10, 2014, Dr. Potts reported that Zaeske suffered uncontrolled back pain and could not work while taking medications. Similarly, Dr. Nunley reported on June 17, 2014, that Zaeske suffered from constant low back pain and that attempts to alleviate the pain through lumbar medical branch blocks and a transforaminal epidural steroid injections had not resulted in long-term relief. But later treatment notes from Dr. Potts and Dr. Nunley do not report uncontrolled pain. On September 12, Dr. Nunley noted that Zaeske continued to have back pain, and recommended a caudal epidural steroid injection. After Dr. Nunley performed the recommended procedure on October 7, there is no record that the injection failed to offer relief or that Zaeske continued to experience constant or uncontrolled pain. Likewise, at an October 2 visit, Dr. Potts recorded that she examined Zaeske for follow up on chronic medical problems including ... back pain, but this time did not describe the pain as uncontrolled. Without further clarification from physicians who failed to respond to inquiries, it was reasonable for Dr. Glassman and Liberty Life to conclude from these updated records that pain medication likely offered Zaeske some relief, and that his back pain was not uncontrolled or constant as of December 23, 2014.

Dr. Glassmans conclusion that Zaeske did not appear to suffer any side effects from his prescribed medication is also supported by the record. The district court cited Dr. Potts for the proposition that Zaeskes medication caused somnolence, decreased concentration, confusion, an inability to drive, and an inability to make decisions. But the cited report is dated November 15, 2013-over a year before Dr. Glassman made his assessment. Later treatment notes from Dr. Potts in June and October 2014 report that Zaeske suffered no side effects from his medication. In light of the more recent treatment notes, Dr. Glassman and Liberty Life reasonably could conclude that Zaeske was not suffering side effects from his medication in December 2014 that would preclude his ability to work.

Dr. Reecers opinion also rested on a reasonable interpretation of Zaeskes medical records. The district court faulted Dr. Reecer for not considering whether Zaeskes chronic pain would affect his ability to function in the workplace, and thought it inexplicable that Dr. Reecer said that Zaeske suffered no side effects from pain medication. The medical records, however, support Dr. Reecers conclusion about side effects. After Dr. Glassmans assessment, two new documents discussed the issue: Dr. Pottss treatment notes from December 29, 2014, and a letter from Dr. Potts dated February 10, 2015. Consistent with Dr. Pottss treatment notes from June and October 2014, the December 2014 treatment notes reported that Zaeske had no side effects from his medications. Dr. Pottss February 2015 letter stated that Zaeske was unable to work due to medication that causes drowsiness and inability to concentrate. But Dr. Reecer and Liberty Life reasonably could discount Dr. Pottss letter in light of the three treatment notes from the previous eight months that directly contradicted the letter. Dr. Reecer acknowledged that Zaeske had been diagnosed with chronic pain and discussed Zaeskes medication regimen. It was not an abuse of discretion for Liberty to accept Dr. Reecers apparent view that back pain treated with medication would not preclude Zaeske from working.

Tension between Dr. Reecers assessment in May 2015 and Dr. Shannons opinion from May 2014 does not make it impermissible for Liberty Life to rely on Dr. Reecer. For one thing, the two opinions are not irreconcilable. Dr. Shannon estimated that Zaeske would be able to perform the light work required by his position at Walmart within an additional three months, depending on his response to treatment. A year later, Dr. Reecer concluded that Zaeske had a functional capacity that Liberty Life determined satisfied the minimum requirements of Zaeskes position. Although the underlying diagnosis did not change for the better, Zaeskes symptoms may have improved during that time, either naturally or as a result of medication. And as already explained, Zaeskes medical records permit that conclusion.

But even if the opinions of Dr. Shannon and Dr. Reecer are inconsistent, Liberty Life was not required to reject Dr. Reecers opinion. As a general rule, a plan administrator has discretion to choose between two reliable but conflicting medical opinions. See Delta Family-Care Disability & Survivorship Plan v. Marshall , 258 F.3d 834, 843 (8th Cir. 2001). A plan administrator may even prefer the opinion of its own consulting physician over that of an applicants treating physician. See Nord , 538 U.S. at 829-34, 123 S.Ct. 1965. Here, the administrator received the opinions of two consulting physicians, and Liberty was not required to accept Dr. Shannons view just because it was reported first. Because Dr. Reecers opinion rested on a reasonable interpretation of Zaeskes medical records, his opinion was sufficiently reliable to support Liberty Lifes decision to deny Zaeskes claim for long-term disability benefits.

* * *

For the foregoing reasons, the judgment of the district court is reversed, and the award of attorneys fees is also vacated. See Dillards Inc. v. Liberty Life Assurance Co. of Boston , 456 F.3d 901, 902-03 (8th Cir. 2006) (per curiam).