Appellate Case: 23-1351 Document: 60-1 Date Filed: 01/07/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 7, 2025 _________________________________ Christopher M. Wolpert Clerk of Court ALIA ISBELL,
Plaintiff - Appellant,
v. No. 23-1351 (D.C. No. 1:22-CV-01799-LTB-MEH) UNUM LIFE INSURANCE COMPANY (D. Colo.) OF AMERICA,
Defendant - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before PHILLIPS, McHUGH, and MORITZ, Circuit Judges. _________________________________
Alia Isbell appeals the district court’s dismissal on the pleadings of her claim
that Unum Life Insurance Company of America denied her long-term disability
benefits in violation of the Employee Retirement Income Security Act, 29 U.S.C.
§§ 1001–1461 (“ERISA”). Exercising jurisdiction under 28 U.S.C. § 1291, we
affirm.
* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-1351 Document: 60-1 Date Filed: 01/07/2025 Page: 2
I. Background
A. Isbell’s benefits claims and initial medical records
Isbell worked as a store manager for Yankee Candle and participated in an
employee benefit plan (“Plan”) governed by ERISA. Unum insures and administers
the Plan. The Plan provided benefits for short-term and long-term disability (“STD”
and “LTD,” respectively).
In April 2019, Isbell’s gynecologist, Dr. Rokosz, referred Isbell to physical
therapy after diagnosing her with severe pelvic floor pain and spasm. The physical
therapist, Dr. Huang, diagnosed pelvic floor muscle pain and established a treatment
plan for Isbell to have physical therapy once every three weeks. Dr. Huang wrote
Isbell a letter stating she could work with certain standing and lifting restrictions that
should remain in place through July 19, 2019. Dr. Huang provided additional letters
extending the restrictions through March 1, 2020.1
Meanwhile, Isbell submitted an STD claim to Unum on July 8, 2019, when
Yankee Candle stopped accommodating her restrictions. Unum approved the claim.
In December 2019, Unum asked Dr. Huang to complete a Fitness-For-Duty
Certification as Unum began to transition Isbell to LTD benefits. In her response,
Dr. Huang certified that Isbell could return to work but was restricted from standing
or walking more than 45 minutes at a time; lifting more than 1 pound from the floor;
1 Dr. Rokosz also authored two letters with work restrictions through December 1, 2019. 2 Appellate Case: 23-1351 Document: 60-1 Date Filed: 01/07/2025 Page: 3
and carrying more than 10 pounds more than 6 times per hour. Dr. Huang also
certified that Isbell could return to work without restrictions on June 1, 2020.
In January 2020, Unum approved LTD benefits retroactive to October 27,
2019. Unum also explained to Isbell how the Plan’s definition of disability would
change over time. For the first twenty-four months of LTD benefits payments, the
Plan defines disability to be when Unum determines the participant is “limited from
performing the material and substantial duties of [their] regular occupation due to
[their] sickness or injury.” Suppl. App. vol. I at 150 (emphasis omitted). Thereafter,
the disability determination turns on whether the same sickness or injury renders the
participant “unable to perform the duties of any gainful occupation for which [they]
are reasonably fitted by education, training or experience.” Id. (emphasis omitted).
UNUM monitored Isbell’s progress, periodically reviewing her medical
records at “Forum” meetings, often with a physician present, and evaluating whether
she could perform any gainful occupation once the definition of disability would
change on October 27, 2021.
In February 2021, Dr. Rokosz saw Isbell and assessed abnormal menstrual and
uterine bleeding, chronic vaginitis, dysmenorrhea, and myalgia. In March, Isbell had
an ultrasound, and Dr. Rokosz performed a diagnostic hysteroscopy that revealed a
uterine fibroid and a thickened endometrial lining.
During this period, Isbell also continued to see Dr. Huang about once a month
for pelvic floor instability. Some of Dr. Huang’s notes included a set of restrictions
under which Isbell could return to work. By June 1, 2021, the restrictions were:
3 Appellate Case: 23-1351 Document: 60-1 Date Filed: 01/07/2025 Page: 4
“sitting for no longer than 45 min at a time, standing for no more than 20 min at a
time, lifting [no] more than 1 lb from the floor or bottom shelving at any time,
carrying [no] more than 10 lbs 6x/hour, and pushing [no] more than 30 lbs on a cart.”
Suppl. App. vol. II at 529. In early August 2021, Dr. Huang referred Isbell to a
pelvic pain specialist, Dr. Gerig.
Also in early August 2021, a vocational consultant assessed whether there was
any work Isbell could perform with Dr. Huang’s June 2021 restrictions. The
consultant identified three sedentary occupations Isbell could perform given her work
history, skills, education, training, and education that “allow for changes in
positioning during the workday”—information clerk, receptionist, and personnel
clerk. Id. at 549.2
B. Unum considers termination of LTD benefits
On September 7, 2021, Unum spoke with Isbell and informed her that with the
current restrictions, she would not meet the new definition of disability that would
take effect on October 27, and Unum intended to cease benefit payments at that time
absent some further information from Dr. Huang suggesting otherwise.
2 The consultant described sedentary work as “[m]ostly sitting, may involve standing or walking for brief periods of time, lifting, carrying, pushing, pulling up to 10 Lbs occasionally [up to one-third of the time] with changing positions for brief periods.” Suppl. App. vol. II at 549. He also noted that “[t]he material and substantial duties of various administrative or otherwise sedentary or light occupations can be performed in work settings for which changes between sitting and standing postures have no bearing on the performance of duties.” Id. Isbell has not questioned these characterizations of sedentary work. 4 Appellate Case: 23-1351 Document: 60-1 Date Filed: 01/07/2025 Page: 5
Isbell then provided Unum with Dr. Huang’s note from a physical therapy
session on September 16, 2021. In that note, Dr. Huang added a new restriction—
“sitting for no longer than 45 min at a time (with supine rest break for 15 min
afterwards).” Id. vol. III at 600 (emphasis added). The new supine-rest-break
restriction prompted Unum to have a clinical consultant perform a clinical analysis.
The consultant concluded that Isbell was not precluded from performing the full-time
demands of sedentary work because (1) despite reporting pelvic floor pain and
spasm, Isbell was going to physical therapy only once a month; (2) Dr. Huang’s two
most recent treatment notes (August and September 2021) noted improvement in
Isbell’s condition, and Isbell reported performing activities of daily living (“ADLs”)
(washing bedding, grocery shopping, vacuuming, climbing stairs, yoga, and cooking
dinner) that were consistent with the occupational demands of sedentary work;
(3) Isbell had not filled any prescriptions since 2014, and there was no indication that
she was advised to take any pain medication or muscle relaxants or that she was
referred to a neurologist or pain medicine specialist; and (4) although Isbell had a
history of abnormal uterine bleeding and gastroesophageal reflux disease (“GERD”),
no lab results, examinations, office visit notes, or vital-sign documentation indicated
that those conditions were affecting her functional capacity.
Unum also had a physician who was board certified in internal medicine and
infectious diseases, Dr. Belanger, contact Dr. Huang, review the medical records, and
prepare a doctoral review. Dr. Huang expressed to Dr. Belanger her concern that
sitting for prolonged time periods could worsen Isbell’s pelvic pain and thought
5 Appellate Case: 23-1351 Document: 60-1 Date Filed: 01/07/2025 Page: 6
Isbell could perform sedentary work if she was allowed to lie down for 5 to 10
minutes once an hour. Dr. Huang estimated Isbell would need another year of
physical therapy working toward a goal of needing a break every 2 hours.
On October 1, Dr. Belanger determined Isbell was not precluded from
performing sedentary work for multiple reasons: (1) “[t]enderness and hypertonicity
of the pelvic floor” that Dr. Rokosz documented in 2019 were not present when
Dr. Rokosz examined Isbell in early 2021; (2) although Isbell reported left buttocks
numbness, neither Dr. Rokosz nor Dr. Huang described any such numbness in their
examination findings; (3) Isbell reported ADLs—“driving 150 miles in a day without
symptom increase during all 2021 visits with [Dr.] Huang,” “yoga, Pilates and
occasionally hiking for exercise”—that suggested her tolerance for sitting and
activity exceeded Dr. Huang’s restrictions; (4) Dr. Huang’s notes from September
2020 “forward consistently document[ed] [Isbell] as being able to carry 12 to 15
pounds up 6 flights of stairs, walk for an hour and sustain moderate activity for up to
2 hours with either no change or a minimal increase in symptoms,” which exceed the
requirements of sedentary work; (5) the “[i]ntensity of management,” including that
Isbell did not seek an evaluation from a pelvic pain specialist until October 2021
(Isbell was scheduled to see the pain specialist, Dr. Gerig, on October 14, 2021), was
“inconsistent with the nature, severity, persistence and impact of reported
symptoms”; and (6) Isbell reported “using ibuprofen 200mg up to every 4 hours only
three or four days per week.” Id. at 634–35.
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Because her conclusion differed from Dr. Huang’s recommendation,
Dr. Belanger sought a second opinion from an independent physician, Dr. Green,
D.O., board certified in physical medicine and rehabilitation. Dr. Green reviewed
Isbell’s file and agreed with Dr. Belanger that “the documented clinical
improvement, limited physical exam and diagnostic findings and limited ongoing
treatment does not support that [Isbell] is precluded from full time participation in”
sedentary work. Id. at 640.
On October 14, 2021, Isbell saw Dr. Gerig. Among other things, Dr. Gerig
noted tenderness in Isbell’s back and pelvis and assessed Isbell with a variety of
ailments, including constipation, vulvodynia, congenital dysplasia of the hip,
neuralgia, neuritis, muscle spasm, and severe primary dysmenorrhea. She referred
Isbell to an orthopedist for dysplasia evaluation. Dr. Gerig opined that Isbell could
not perform sedentary work because she had severe pain with sitting, had to lie down
for relief, was exhausted for the rest of the day after performing one activity, could
not concentrate due to pain, and could not stand more than 10 or 20 minutes.
On November 5, 2021, the clinical consultant completed an addendum to his
earlier clinical analysis. The consultant concluded that the medical records did not
support finding Isbell precluded from sedentary work because, in addition to the
reasons the consultant had provided in his initial analysis, Dr. Gerig’s exam noted
only mild findings. Dr. Belanger called Dr. Gerig but could not reach her, so she
wrote to Dr. Gerig, summarizing Isbell’s more recent medical records and, in light of
7 Appellate Case: 23-1351 Document: 60-1 Date Filed: 01/07/2025 Page: 8
the more recent records, inviting Dr. Gerig to support her opinion that Isbell could
not perform sedentary work as of October 27, 2021. Dr. Gerig never responded.
Unum continued to consider the medical evidence and to pay Isbell LTD
benefits under a reservation of rights. On December 6, Dr. Belanger authored an
addendum to her earlier doctoral review, noting that Dr. Gerig’s physical
examination described Isbell as having a grossly normal gait, an “absence of
numbness, tingling, fine motor loss or sleep disturbance,” and “tenderness of the
pelvic floor muscles.” Id. at 734. Dr. Belanger also stated that although new
therapies were recommended, they “would not be expected to preclude performance
of sedentary occupational demands.” Id.
On December 8, Dr. Green reviewed Isbell’s file and agreed with
Dr. Belanger’s addendum. Dr. Green observed that despite “multiple areas of
tenderness and pelvic pain,” Isbell had “a normal gait” and no evident “motor or
sensory deficits.” Id. at 739. And Dr. Huang had “reported [Isbell] demonstrates
improving activity modification with short rest breaks to allow for long activity
periods without symptom aggravation.” Id. Dr. Green acknowledged Isbell’s report
that she could only drive for 30 minutes without exacerbating her pain or symptoms
and the opinions of Dr. Gerig and Dr. Rokosz that Isbell could not perform sedentary
work. Dr. Green then concluded it was “unclear what is preventing [Isbell] from
sitting given the absence of weakness or joint instability.”
8 Appellate Case: 23-1351 Document: 60-1 Date Filed: 01/07/2025 Page: 9
C. Unum terminates LTD benefits
On December 13, 2021, Unum sent Isbell a letter stating that it had completed
its review of her LTD claim. See id. at 746–54. Unum explained that as of
October 27, 2021, Isbell no longer met the definition of disability, so Unum was
terminating LTD benefits. Unum detailed the opinions set out in the reports from
Dr. Belanger and Dr. Green and identified the three sedentary jobs the vocational
consultant had determined Isbell could perform. And Unum informed Isbell of her
right to an administrative appeal.
D. Post-termination proceedings
Isbell then obtained counsel, who submitted notes from Dr. Huang, including
those spanning ten physical therapy visits from November 2021 through February 24,
2022. Dr. Huang’s January 31, 2022, note reported that Isbell had seen an orthopedic
specialist and had an MRI that revealed “Bilateral hip dysplasia, CAM impingement,
and anterior superior labral microtearing; lumbar vertebra 1–4 stepwise retrolisthesis
with facet arthrosis and mild Bilateral sacroiliac joint OA.” Id. at 842.
The clinical consultant reviewed these notes along with notes from Dr. Gerig’s
October 2021 exam and from a nurse practitioner, Kari Reynolds Wedell
(“N.P. Reynolds Wedell”) who Isbell had seen in November 2021. The consultant
concluded the new medical information did not change the prior determination that
Isbell was not precluded from performing sedentary work because (1) Dr. Huang’s
notes did not document any new findings, she reported improvement in Isbell’s
condition, and Isbell’s ADLs were on par with the occupational demands of
9 Appellate Case: 23-1351 Document: 60-1 Date Filed: 01/07/2025 Page: 10
sedentary work; (2) the MRI documented only mild findings, and Isbell’s claimed
limitations were in excess of those findings; and (3) Dr. Gerig noted only mild
findings and a history of congenital hip dysplasia, abnormal uterine bleeding, and
GERD, but the objective medical evidence and office notes did not support that those
conditions were affecting Isbell’s functional capacity.
On April 11, 2022, Unum sent Isbell a written decision summarizing the
clinical consultant’s explanation and continuing the denial of LTD benefits. See id.
vol. IV at 1030. The same day, Isbell’s counsel provided Unum with additional
medical records from the University of Colorado Sports Medicine and Performance
Center (“CU Sports Medicine”) dated from December 29, 2021, through February 14,
2022. Those records reflect that Dr. Ballantine-Talmadge, D.O., saw Isbell and
diagnosed her with degenerative joint disease of the sacroiliac joint; instability of the
hip joint, unspecified laterality; spinal curvature; and left hip flexor tightness. She
ordered X-rays of Isbell’s spine and both hips and an MRI3 of both hips. The X-rays
showed retrolisthesis L1–L4 with associated lower lumbar facet arthrosis, slight
rotary levocurvature of the lumbar spine, and mild bilateral sacroiliac joint
osteoarthrosis. The MRI revealed CAM-type femoroacetabular impingement of both
hips; bilateral acetabular labrum tears; partially torn ligamentum teres at the fovea,
bilaterally; and hip dysplasia. Isbell received extra-articular injections (lidocaine and
sensorcaine) in both hips on January 20, 2021, and was referred to physical therapy.
3 This was, apparently, the MRI Dr. Huang had referred to in her January 31, 2022, note. 10 Appellate Case: 23-1351 Document: 60-1 Date Filed: 01/07/2025 Page: 11
At a follow-up on February 14, Isbell received an intra-articular injection in her left
hip and “note[d] improved symptoms with activity immediately after [the] injection.”
Id. at 1039.
Another clinical consultant reviewed all the medical evidence, including the
newly submitted records from CU Sports Medicine, and concluded that although the
updated office visit notes and diagnostics document that Isbell “has organic findings,
she isn’t functionally precluded from performing sedentary work,” and
Dr. Ballantine-Talmadge had not submitted any restrictions or limitations. Id.
at 1100. Unum then sent Isbell a letter summarizing the new evidence, conveying the
consultant’s conclusions, and explaining that the new information did not change its
prior denial of LTD benefits.
E. Isbell’s administrative appeal
In June 2022, Isbell’s counsel administratively appealed the denial of LTD
benefits and submitted new evidence to Unum: notes from a December 2021 visit
with Dr. Rokosz; notes from two additional office visits with N.P. Reynolds Wedell
in early 2022; statements from Isbell, her husband, and two friends attesting to the
severity of Isbell’s pain; and a Functional Capacity Evaluation (“FCE”) by an
occupational therapist (“OT”) dated May 13, 2022. In the FCE, the OT concluded
that Isbell’s “poor tolerance of sitting, standing, and walking greatly impacts her
efficiency and ability to focus for work completion,” and that “[c]hanging positions
every 20 minutes makes it difficult to complete any task.” Id. at 1125.
11 Appellate Case: 23-1351 Document: 60-1 Date Filed: 01/07/2025 Page: 12
Unum’s appeals department asked an outside physician, Dr. Winkel, D.O.,
board certified in internal medicine, to review the medical records and provide an
opinion on Isbell’s ability to perform sedentary work. Dr. Winkel concluded that the
medical records “do not document physical, diagnostic, or imaging findings to
preclude [Isbell] from performing the sedentary occupational demands from
11/27/2021 forward.” Id. at 1175. He provided multiple reasons for this conclusion:
Serial examinations documented normal cardiac and pulmonary functioning, normal
reflexes, normal sensation, varying degrees of motor strength, normal range of
motion in the spine and joints, and negative straight-leg raising. Isbell appeared
awake, alert, and in no acute distress at her examinations. Dr. Huang reported that
Isbell made slow, steady improvement in her physical functioning and endurance.
Isbell reported improvement in her pelvic pain and dysmenorrhea with Orilissa
(which Dr. Rokosz had prescribed in December 2021) and improvement in her
constipation with magnesium. Isbell did not require any increase in pain medications
or any emergency evaluations for acute pain. No provider had ever referred Isbell for
orthopedic surgical intervention or to gastroenterology for an evaluation of chronic
constipation and abdominal pain. Dr. Ballantine-Talmadge provided ongoing hip
injections. The FCE exam revealed normal range of motion in the spine and
extremities except for pain with left hip range of motion. The lifting and carrying
limitations set out in the FCE (lift no more than 12 pounds, carry 12 pounds 40 feet
once) were inconsistent with Dr. Huang’s findings that Isbell could “carry much
12 Appellate Case: 23-1351 Document: 60-1 Date Filed: 01/07/2025 Page: 13
heavier weights for longer distances.” Id. at 1178. And the FCE described Isbell’s
gait as slow and guarded, but other providers had noted that her gait was normal.
Unum sent a copy of Dr. Winkel’s report to Isbell’s counsel, inviting a
response. Counsel did not respond to the report but instead supplied additional
medical records, including some new physical therapy records and letters from
Dr. Huang and N.P. Reynolds Wedell. Unum replied with a letter upholding its
denial of LTD benefits. In the letter, Unum conveyed the reasons Dr. Winkel gave in
support of his opinion that Isbell could perform sedentary work. Unum also
explained that the new materials did not change its prior conclusion to deny benefits.
As to Dr. Huang’s notes from February 28, 2022, through June 1, 2022, Unum
observed that Dr. Winkel had “previously reviewed the time relevant records,” i.e.,
those “through February 24, 2022 and the May 13, 2022 [FCE],” and had determined
that those records did not support a finding that Isbell could not perform sedentary
work. Id. vol. V at 1287. Unum also explained that Dr. Huang’s letter (dated
June 28, 2022) “outlines information previously provided” and her “continued
disagreement with [Isbell’s] ability to perform sedentary occupational demands,” but
Dr. Huang had “not provide[d] any new diagnostic or exam findings for
consideration.” Id. Finally, Unum stated that N.P. Reynolds Wedell’s letter (dated
June 29, 2022) “mirrors information contained in the records and narratives from her
and Dr. Gerig” and “restates the opinion that [Isbell] cannot work in a sedentary job.”
Id.
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F. District court proceedings
Isbell then filed the action underlying this appeal. The parties jointly moved
for a determination on the administrative record. The district court ruled in Unum’s
favor and entered judgment. This timely appeal followed.
II. Standard of Review
“We review a plan administrator’s decision to deny benefits to a claimant, as
opposed to reviewing the district court’s ruling.” Holcomb v. Unum Life Ins. Co. of
Am., 578 F.3d 1187, 1192 (10th Cir. 2009). Because the Plan granted Unum
discretion to determine benefits eligibility and to construe the terms of the Plan, we
review Unum’s decision for an abuse of discretion. See David P. v. United
Healthcare Ins. Co., 77 F.4th 1293, 1307–08 (10th Cir. 2023). Under that standard,
“we ask whether its denial of benefits was arbitrary and capricious.” Id. at 1308.
That requires considering “whether [Unum’s] benefits determination is predicated on
a reasoned basis.” Id. (internal quotation marks omitted). “Certain indicia of an
arbitrary and capricious denial of benefits include lack of substantial evidence and
mistake of law.” Id. (brackets and internal quotation marks omitted). “We define
substantial evidence as such evidence that a reasonable mind might accept as
adequate to support the conclusion reached by the decision-maker. Substantial
evidence requires more than a scintilla but less than a preponderance.” Id. (internal
quotation marks omitted). “In determining whether the evidence in support of the
administrator’s decision is substantial, we must take into account whatever in the
record fairly detracts from its weight.” Id. (internal quotation marks omitted).
14 Appellate Case: 23-1351 Document: 60-1 Date Filed: 01/07/2025 Page: 15
However, Unum’s “decision need not be the only logical one nor even the best
one”; thus, we will uphold Unum’s decision “unless it is not grounded on any
reasonable basis,” and we “need only assure that [Unum’s] decision falls somewhere
on a continuum of reasonableness—even if on the low end.” Kimber v. Thiokol
Corp., 196 F.3d 1092, 1098 (10th Cir. 1999) (brackets and internal quotation marks
omitted). “Our review is limited to those rationales that were specifically articulated
in the administrative record as the basis for denying a claim,” Ian C. v.
UnitedHealthcare Ins. Co., 87 F.4th 1207, 1219 (10th Cir. 2023) (internal quotation
marks omitted), but only those rationales that were conveyed to the claimant,
David P., 77 F.4th at 1313.
The parties acknowledge that Unum operates under an inherent conflict of
interest because it determines benefits eligibility and pays the benefits. We weigh
that conflict as a factor in determining whether Unum’s denial of benefits was
arbitrary and capricious. Weber v. GE Grp. Life. Assurance Co., 541 F.3d 1002,
1011 (10th Cir. 2008). We give less deference if a plan administrator “fails to gather
or examine relevant evidence.” Kimber, 196 F.3d at 1097. “A conflict ‘should prove
more important (perhaps of great importance) where circumstances suggest a higher
likelihood that it affected the benefits decision and should prove less important
(perhaps to the vanishing point) where the administrator has taken active steps to
reduce potential bias and to promote accuracy.’” Holcomb, 578 F.3d at 1193
(brackets and ellipses omitted) (quoting Metro. Life Ins. Co. v. Glenn, 554 U.S. 105,
117 (2008)).
15 Appellate Case: 23-1351 Document: 60-1 Date Filed: 01/07/2025 Page: 16
In this case, we give the conflict-of-interest factor limited weight for two
reasons. First, Unum did not fail to gather or examine relevant evidence; to the
contrary, it repeatedly accepted and reviewed evidence Isbell submitted after the
initial denial of LTD benefits. Second, Unum took steps to reduce any bias by hiring
two independent specialists, Dr. Green and Dr. Winkel, to review Isbell’s LTD claim.
See Holcomb, 578 F.3d at 1193 (affording limited weight to conflict where conflicted
administrator hired independent physicians rather than “rely solely on the evaluations
and medical opinions of its own on-site physicians and nurses”).
III. Discussion
A. Consideration of post-denial medical evidence and pain complaints
Isbell first argues the medical evidence developed significantly between
termination of LTD benefits in December 2021 and Unum’s denial of her appeal in
July 2022. She characterizes Unum’s initial termination decision as based on two
reasons: (1) insufficient diagnostic evidence to explain her symptoms and (2) lack of
evidence of weakness or instability that could explain her claimed inability to sit for
long periods. She argues that by the time Unum denied her appeal, neither reason
was accurate; she had provided diagnostic evidence in the form of ultrasounds,
x-rays, and MRIs, which showed conditions known to affect the ability to sit—torn
hip labrums, hip dysplasia, sacroiliac joint instability, and lumbar retrolisthesis with
facet arthrosis and mild bilateral sacroiliac joint osteoarthritis. She notes Unum
acknowledged that the diagnostic testing revealed “organic findings,” Suppl. App.
vol. IV at 1100, but she contends Unum did not provide any explanation, let alone a
16 Appellate Case: 23-1351 Document: 60-1 Date Filed: 01/07/2025 Page: 17
reasoned explanation, for why it did not consider the new medical evidence
significant.
We disagree that Unum did not provide a reasoned explanation for why the
evidence developed after its initial denial of LTD benefits did not change its
decision. First, Unum’s acknowledgement that there were “organic findings” does
not mean its denial of benefits was arbitrary and capricious. The issue in this case is
not whether there is an organic explanation for Isbell’s impairments but instead
whether she can perform the demands of sedentary work despite the restrictions and
limitations that arise from her impairments. See id. vol. I at 150 (Plan defining
“disability” after 24 months of LTD payments as whether a participant’s “sickness or
injury” renders the participant “unable to perform the duties of any gainful
occupation for which [they] are reasonably fitted” (emphasis omitted)).
Unum’s clinical consultant and Dr. Winkel reviewed the post-denial evidence.
The consultant reviewed the medical records from CU Sports Medicine but
concluded that in light of all the evidence and the lack of any restrictions from
Dr. Ballantine-Talmadge, Isbell was not “functionally precluded” from sedentary
work. Id. vol. IV at 1100. Unum conveyed those reasons to Isbell.
Unum also conveyed Dr. Winkel’s evaluation and opinion to Isbell. And as
fully recounted above, he provided multiple reasons in support of his opinion that the
medical evidence, including the CU Sports Medicine records and other medical
evidence submitted after the initial denial of benefits, did not support a finding that
Isbell was precluded from sedentary work.
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Isbell asserts there are flaws in Dr. Winkel’s opinion. However, we conclude
that none of the purported flaws leads to the conclusion that substantial evidence
does not support Unum’s denial of LTD benefits.4
Isbell contends Dr. Winkel relied on normal cardiac and pulmonary findings
without explaining how they were relevant to her ability to sit. We see no problem,
as this appears to be part of Dr. Winkel’s assessment of Isbell’s overall condition and
likely relevant to his opinion that “comorbid conditions do not contribute to
impairment,” id. at 1179.
Isbell asserts that Dr. Winkel noted normal exam findings in reflexes and
sensation while also noting decreased strength, but he failed to address whether the
decreased strength was the type of weakness Unum identified in its initial denial
letter. We are unable to find any reference in Dr. Winkel’s report to decreased
strength. To the contrary, Dr. Winkel noted that both Dr. Ballantine-Talmadge and
the OT, whose records and reports are, according to Isbell, among the most important
post-denial evidence, had found normal strength, see id. at 1177–78, and the OT
specifically concluded that Isbell’s “lifting abilities, strength and coordination put her
at the sedentary level of functioning,” id. at 1178 (Dr. Winkel apparently quoting,
4 In her reply brief, Isbell points out that Unum did not respond to her specific assertions of error in Dr. Winkel’s report. That omission may have been because Isbell presented those assertions in the “Statements of the Facts and Case” section of her opening brief rather than in the argument section. We take up those assertions despite Isbell’s failure to expressly incorporate them into her argument that Unum unreasonably relied on Dr. Winkel’s report. 18 Appellate Case: 23-1351 Document: 60-1 Date Filed: 01/07/2025 Page: 19
without attribution, the FCE, see id. at 1125). We see no abuse of discretion in
Unum’s reliance on this aspect of Dr. Winkel’s report.
Isbell faults Dr. Winkel for focusing on her lack of acute distress at some
doctor visits but not discussing parts of the same records stating that her pain levels
spiked after performing some ADLs. Although Dr. Winkel did not make note of such
increased pain levels as set out in the early medical records, he did observe that Isbell
reported to the OT having “increased pain” in doing the following—“cooking,
vacuuming, sweeping, doing dishes, grocery shopping, mopping, cleaning bathrooms,
doing laundry, walking, sitting, bending, having sex, performing childcare, driving
more than 30 minutes, running errands, exercising, doing religious practices, [and]
climbing stairs.” Id. He therefore took account of the relationship between those
ADLs and Isbell’s pain.
Isbell contends Dr. Winkel “alleged there was no ‘escalation’ in treatment” but
failed to reconcile that view with Isbell’s “surgical consultation, the
ultrasound-diagnostic hyster[oscopy], referral to a pelvic pain specialist [Dr. Gerig],
and the testing and injections by Dr. Ballentine-Talmadge.” Aplt. Opening Br. at 13.
Isbell’s contention rests on a mischaracterization of the record. Dr. Winkel did not
say there had been no escalation in treatment but instead observed Isbell “has not
required escalation of her pain medications or emergency evaluations for acute
pain,” Suppl. App. vol. IV at 1179 (emphasis added). Dr. Winkle in fact referred to
the “diagnostic hysteroscopy” Dr. Rokosz performed, id. at 1177; the “exploratory
19 Appellate Case: 23-1351 Document: 60-1 Date Filed: 01/07/2025 Page: 20
laparotomy” Dr. Rokosz5 discussed but never performed, id. at 1179; the referral to
Dr. Gerig, see id. at 1177; and Dr. Ballentine-Talmadge’s treatment, see id. at 1175,
1178–79. The only oversight we discern is Dr. Winkel’s apparent failure to
acknowledge that Dr. Gerig was a pelvic pain specialist. See id. at 1179 (stating
Isbell “had not been referred to . . . pain management for the chronic pelvic pain”).
That misstatement, however, does not give us pause because Dr. Winkel based his
ultimate opinion in part on improvement in pain with Orilissa, see id. at 1177, and
the lack of any referral “to orthopedics for evaluation for surgical interventions,”
id. at 1179. Both of those reasons lead us to conclude that had Dr. Winkle
recognized that Dr. Gerig was a pain specialist, his assessment of Isbell’s functional
capacity would be the same.6
Isbell further faults Dr. Winkel for relying on the FCE as showing Isbell was
not precluded from sedentary work “because she was able to complete sedentary
work activity that one day,” but not considering Isbell’s report that she experienced
5 Isbell appears to misattribute the “surgical consultation” to N.P. Reynolds Wedell. See Aplt. Opening Br. at 9 (stating that Isbell saw N.P. Reynolds Wedell “for consideration of a surgical laparotomy”). We see no such consultation in N.P. Reynolds Wedell’s treatment notes or in the pages of the record to which Isbell cites. We do see a reference to an exploratory laparotomy in Dr. Rokosz’s notes. See Suppl. App. vol. IV at 1127. But even if Isbell did see N.P. Reynolds Wedell for a surgical laparotomy consult, it would not change our analysis. 6 Although Unum appears to refer to Dr. Ballantine-Talmadge as an orthopedist, see Aplee. Resp. Br. at 27 (noting Isbell saw “an orthopedist three times”), she was an osteopath, see, e.g., Suppl. App. vol. IV at 1082 (note signed “[Dr.] Ballantine-Talmadge, DO”). Thus, Dr. Winkel accurately stated Isbell had not been referred to orthopedics for surgical intervention. 20 Appellate Case: 23-1351 Document: 60-1 Date Filed: 01/07/2025 Page: 21
“a severe spike in pain for several days” after the FCE. Aplt. Opening Br. at 13. As
noted, however, Dr. Winkel was well aware of Isbell’s complaints that her pain
increased after certain types of activities. Moreover, the FCE clearly required Isbell
to engage in activities that exceed the demands of sedentary work, thus making her
resultant pain a poor indicator of her ability to tolerate sedentary work.
Isbell argues there is evidence that her conditions are known to cause pain with
prolonged sitting, and that Unum gave little consideration to, and impermissibly
discredited, her pain complaints and the opinions of treating providers that she should
avoid prolonged sitting. But Unum identified substantial evidence in the record
supporting its view that Isbell’s pain with prolonged sitting did not preclude
sedentary work: a long history of Isbell performing numerous ADLs, decreased pain
with Orilissa and hip injections, and lack of any functional restrictions in the records
from Dr. Ballantine-Talmadge. In view of the fact that sedentary work, as defined
for purposes of Isbell’s claim, “can be performed in work settings for which changes
between sitting and standing postures have no bearing on the performance of duties,”
Suppl. App. vol. II at 549,7 Unum’s conclusion regarding limitations due to pain
associated with prolonged sitting falls at least on the low end of the reasonableness
continuum. See Kimber, 196 F.3d at 1098.
Isbell points out that Unum did not conduct its own in-person medical exam
(“IME”) and argues that this weighs in favor of concluding Unum arbitrarily
7 Dr. Winkel’s report was expressly based on this definition. See Suppl. App. vol. IV at 1175. 21 Appellate Case: 23-1351 Document: 60-1 Date Filed: 01/07/2025 Page: 22
discounted her pain complaints. In support of her argument, she relies on Smith v.
Continental Cas. Co., 450 F.3d 253 (6th Cir. 2006). In Smith, the Sixth Circuit
concluded that the plan administrator’s reliance on a file review by an outside
physician, rather than conduct an IME, supported a determination that the
administrator had acted arbitrarily. Id. at 263–64. The Sixth Circuit reasoned that
the outside physician’s statement that “[p]ain is a subjective complaint and often
times is out of proportion to physical findings” amounted to a “credibility finding[]”
about the plaintiff’s “pain without the benefit of a physical exam.” Id. Here,
however, Dr. Winkel made no similar credibility finding but instead focused on
whether Isbell retained the functional capacity to perform the demands of sedentary
work despite her pain.8 Finally, we note that Unum informed Isbell early in the
claims process that she or her “attending physician” had the right to request an IME
8 Isbell also relies on Caldwell v. Life Ins. Co. of N. Am., 287 F.3d 1276 (10th Cir. 2002), for the propositions that (1) an administrator’s failure to conduct an IME “justifies less deference to the decision,” Aplt. Opening Br. at 20 (citing 287 F.3d at 1289); and (2) an administrator must consider “an in-person exam,” Aplt. Reply Br. at 9–10 (citing Caldwell with no pin cite). We see no such principles in Caldwell. Instead, on page 1289, the court considered a matter of first impression— “[w]hether an administrator must consider [vocational] evidence” before denying disability benefits under an “any occupation standard.” 287 F.3d at 1289 (internal quotation marks omitted). And there is no mention of an IME.
Furthermore, although also not cited in the argument section of her opening brief, Isbell cites another circuit case, Montour v. Hartford Life & Accident Ins. Co., 588 F.3d 623 (9th Cir. 2009), concerning the amount of deference to afford a decision when the administrator fails to conduct an IME. See Aplt. Opening Br. at 20 (citing Montour). But in Montour, the failure to conduct an IME was an analytical factor because it was not clear the administrator presented the insurer’s own reviewing physicians “with all the relevant evidence.” Id. at 634 (internal quotation marks omitted). Isbell makes no such accusation here. 22 Appellate Case: 23-1351 Document: 60-1 Date Filed: 01/07/2025 Page: 23
“should opinions differ on the degree of medical impairment,” Suppl. App. vol. I
at 209, but she never requested one. For all these reasons, we decline to treat
Unum’s failure to conduct an IME as weighing in favor of concluding Unum acted
arbitrarily.9
B. Engagement with medical evidence
Isbell argues “Dr. Winkel’s report and Unum’s final letter demonstrate” that
Unum did not “meaningfully engage with the contrary opinions of [her] treating
doctors” but instead “mere[ly] review[ed] . . . the file without engaging the
information” or explaining “why they disagreed.” Aplt. Opening Br. at 25–26
(emphasis omitted). She contends Unum failed to comply with ERISA’s
requirements regarding meaningful engagement with the medical evidence. We
disagree.
Under ERISA, a plan administrator must “provide adequate notice in writing
. . . setting forth the specific reasons for such denial” and “afford a reasonable
opportunity . . . for a full and fair review by the appropriate named fiduciary of the
decision denying the claim.” 29 U.S.C. § 1133. “[F]ull and fair review of a denial
must include: knowing what evidence the decision-maker relied upon, having an
9 As Unum points out, this court has held that IMEs may be “helpful” but are “not required,” Fought v. UNUM Life Ins. Co., 379 F.3d 997, 1015 (10th Cir. 2004); abrogated in part on other grounds by Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 116 (2008), as recognized in Holcomb, 578 F.3d at 1192–93. We considered that general rule, however, when evaluating a plan administrator’s conflict of interest, id., not when evaluating whether an administrator should be required to conduct an IME where subjective pain complaints are at issue. 23 Appellate Case: 23-1351 Document: 60-1 Date Filed: 01/07/2025 Page: 24
opportunity to address the accuracy and reliability of the evidence, and having the
decision-maker consider the evidence presented by both parties prior to reaching and
rendering [a] decision.” D.K. v. United Behav. Health, 67 F.4th 1224, 1236
(10th Cir. 2023) (internal quotation marks omitted), cert. denied, 144 S. Ct. 808
(2024). We have characterized these requirements as a “duty to engage in
meaningful dialogue” with a participant. Id. at 1238. “[A]dministrator statements
may not be conclusory and any health conclusions must be backed up with reasoning
and citations to the record.” Id. at 1242. An administrator “may not arbitrarily
refuse to credit a claimant’s reliable evidence, including the opinions of a treating
physician,” but ERISA does not require an administrator “to accord special weight to
the opinions of a claimant’s physician.” Black & Decker Disability Plan v. Nord,
538 U.S. 822, 834 (2003).
Unum met this standard. In its denial letters, it informed Isbell of the evidence
on which it relied. It repeatedly gave Isbell the opportunity to submit additional
medical evidence, and when she did, Unum considered it, sometimes seeking further
information from a provider, and Unum issued a new decision explaining the reasons
for denying benefits.10 It engaged two outside physicians to review the case. It
10 Although Isbell asserts that much of her evidence was not available until her appeal, it appears that on several occasions after the initial denial of LTD benefits, she submitted medical records she could have submitted earlier. For example, on April 11, 2022, Unum issued a letter upholding its denial of benefits. That same day, Isbell submitted the CU Sports Medicine records, which concerned visits from December 2021 to February 2022. And most of the medical records she submitted with her appeal in June 2022 also predated the April 11, 2022, letter. Despite these unexplained delays, Unum considered the belatedly submitted records. 24 Appellate Case: 23-1351 Document: 60-1 Date Filed: 01/07/2025 Page: 25
provided a copy of Dr. Winkel’s report to Isbell’s counsel in advance of its decision
on her appeal and invited a response, but counsel did not respond, choosing instead to
submit more medical evidence. As discussed above, Dr. Winkel’s report did not
arbitrarily discount the opinions of Isbell’s treating doctors regarding her ability to sit
for prolonged periods or perform sedentary work, but instead set out reasons,
supported by substantial evidence in the record, for his disagreement with those
opinions. And Dr. Winkel provided extensive citations to the record. We therefore
reject Isbell’s “meaningful engagement” argument.
C. Unum’s consideration of the FCE
Isbell argues that UNUM did not fairly consider the FCE. She first contends
that Dr. Winkel criticized the FCE because the OT observed that Isbell had a limp
whereas the older physical therapy records did not document a limp. Isbell explains
that the hip injection she had in early 2022 “caused that limp,” so she claims Unum
could not rationally rely on Dr. Winkel’s analysis. Aplt. Opening Br. at 26. This
argument rests on a misreading of Dr. Winkel’s report. He did not refer to the limp
the OT had observed, but instead recorded that the OT noted Isbell had “a slow
guarded gait, whereas the other providers had noted normal gait without assistive
devices.” Suppl. App. vol. IV at 1179. We see nothing improper in Dr. Winkel’s
reliance on the observations of the other providers, many of whom saw Isbell on
more than one occasion, as a factor in his consideration of the FCE’s value as
evidence of Isbell’s functional capacity.
25 Appellate Case: 23-1351 Document: 60-1 Date Filed: 01/07/2025 Page: 26
Isbell also addresses Dr. Winkel’s statement that “[t]he lifting and carrying”
the OT documented—“able to lift 10 pounds 1 time from floor to waist, waist to
shoulder, waist [to] overhead” and to carry “12 pounds 40 feet 1 time”—“were not
consistent with the findings of Dr. Huang who noted [Isbell] to be able to carry much
heavier weights for longer distances.” Id. at 1178. She claims it was error to fault
the FCE in this regard because there had been significant changes between her earlier
physical therapy visits and her FCE. We are unpersuaded. Dr. Winkel and Unum
both accepted the FCE’s documentation that “Isbell’s lifting abilities, strength, and
coordination put her at the sedentary level of functioning,” id. at 1125. See id.
at 1179 (Dr. Winkel’s observation that the FCE documented that Isbell’s “[m]otor
strength was adequate to perform sedentary occupational demands”); id. vol. V
at 1286 (Unum’s letter denying appeal noting same). Thus, their mere observation
that Dr. Huang’s earlier records recorded greater carrying ability than the OT
recorded in the FCE had no appreciable effect on the outcome.11
11 Our analysis renders it unnecessary to address Isbell’s argument that FCEs are “the gold standard for assessing functionality,” Aplt. Opening Br. at 27, or Unum’s response that an FCE is not “objective evidence” because “a participant has subjective control over the level of effort they use to perform the tasks in the FCE” and that an FCE is “only a piece of information that must be evaluated in light of everything else,” Aplee. Resp. Br. at 45–46. 26 Appellate Case: 23-1351 Document: 60-1 Date Filed: 01/07/2025 Page: 27
IV. Conclusion
The district court’s judgment is affirmed.
Entered for the Court
Carolyn B. McHugh Circuit Judge