FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 13, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court KEVIN MCMILLAN,
Plaintiff - Appellee,
v. No. 17-5111 (D.C. No. 4:14-CV-00717-GKF-PJC) AT&T UMBRELLA BENEFIT PLAN (N.D. Okla.) NO. 1,
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT * _________________________________
Before BACHARACH, PHILLIPS, and McHUGH, Circuit Judges. _________________________________
AT&T Umbrella Benefit Plan No. 1 (the “Plan”), appeals from the district
court’s order that reversed the Plan administrator’s denial of short-term disability
(“STD”) benefits to Kevin McMillan and awarded him benefits for twenty-six
weeks—the maximum period allowed under the Plan. The Plan also appeals the
court’s later order that denied, in part, the Plan’s motion to alter or amend the
judgment. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm both orders.
* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. I. STD BENEFITS
A. The Plan
McMillan went to work for AT&T Corporation in 2007. As an eligible
employee, McMillan received STD insurance under the company’s income benefit
program, which was a component of the Plan. Sedgwick Claims Management
Services, Inc. (“Sedgwick”) was the third-party claims administrator. Under the
terms of the Plan, an insured was considered totally disabled “when, because of
Illness or Injury, [he was] unable to perform all of the essential functions of [his]
job.” Aplt. App., Vol. II at 47 (emphasis added). With respect to proof, the Plan did
not require objective evidence of disability; instead, it provided that the administrator
could rely on information that “include[d], but [was] not limited to, medical,
psychiatric or psychological opinion from the treating or reviewing Physician that
[was] supported by diagnostic tools and examinations, which [were] performed in
accordance with the generally accepted principals [sic] of the health care profession.”
Id. at 71. The administrator had the authority to require McMillan to “[r]eport for a
medical examination by a Physician designated by” Sedgwick to determine whether
he was disabled. Id. at 47.
B. McMillan’s Claim for STD Benefits
The arbitrary and capricious standard of review requires us to set forth in
detail the facts of the proceedings below. McMillan was working as a Senior IT
Client Consultant when he initiated his claim on April 25, 2013. He estimated that
his first day of absence would be June 1, 2013, but later revised that date to May 14,
2 2013. In his claim, McMillan complained of sleep apnea, diabetes, stage III kidney
disease, shortness of breath, chronic obstructive pulmonary disease, inability to walk
or stand for long periods of time, and an inability to focus, concentrate, and retain
short-term memory.
Sedgwick acknowledged the claim and requested detailed medical information
to substantiate the alleged disability. In late May 2013, Sedgwick obtained
McMillan’s medical records and a general description of the physical requirements of
his job, which it noted as “[s]edentary; sitting, talking, typing.” Id. at 115.
McMillan’s physician, Dr. Terence Grewe, submitted an initial statement that
listed McMillan’s diagnoses as coronary disease, type-two diabetes, hypertension,
and sleep apnea, and his functional restrictions as excessive fatigue and sleep
problems. The list that accompanied Dr. Grewe’s statement identified several issues
that affected McMillan’s job performance, including extreme daytime fatigue, lack of
concentration, poor memory, inability to multitask, difficulty with complex
problem-solving, shortness of breath, and inconsistent sleep.
Sedgwick’s claim representatives reviewed Dr. Grewe’s information and
concluded that the clinical findings were insufficient to approve benefits. As such,
they recommended that the case be sent to a Physician Advisor (“PA”) to determine
whether McMillan could perform his job duties. The case was referred to Network
Medical Review Co., Ltd. (“NMR”), which in turn assigned Dr. David Hinkamp to
identify any objective findings that prevented McMillan from performing what it
described as his “sedentary” job duties. Id. at 124. Dr. Hinkamp concluded “[t]here
3 are insufficient objective medical findings to support an inability to perform
sedentary job duties.” Id. at 124-25 (emphasis added). Sedgwick reviewed and
approved Dr. Hinkamp’s conclusions and formally advised McMillan that his claim
was denied.
McMillan filed an administrative appeal. In his appeal letter to Sedgwick,
McMillan reasserted that he was “unable to perform all of the essential functions of
his job . . . due to severe sleep apnea and resultant cognitive dysfunction.” Id.,
Vol. III at 264. As an overarching matter, McMillan complained that “Sedgwick did
not obtain a formal job description from AT&T as to [my] pre-disability occupation.
This begs the question how Sedgwick was able to determine [I] was able to perform a
job that it knew nothing about?” Id. at 265.
The appeal letter also included numerous additional medical records that
included a neuropsychological assessment by Dr. Sharna Wood, which detailed her
interview of McMillan and explained the results of several tests. 1 Dr. Wood
summarized her findings and opinions as follows:
Examination of Kevin’s performance on the various measures reveals that at the time of this evaluation he was functioning in the superior range in academic and intellectual testing, but in the average range on tests of memory, visuospatial analysis and executive functioning; in the below average range in attentional processing and in the mildly impaired range in language functioning. This pattern of test scores is indicative of disruptions in his cognitive ability.
1 Dr. Wood administered the following tests to McMillan: (1) “Wide Range Achievement Test 4”; (2) “Neuropsychological Assessment Battery”; (3) “Validity Indicator Profile”; (4) “Modified Functional Assessment Questionnaire”; (5) “Personality Assessment Inventory”; (6) “Reynolds Intellectual Assessment Scales”; and (7) “Test of Memory Malingering.” Aplt. App., Vol. III at 516. 4 Id. at 529. Dr. Wood attributed McMillan’s cognitive dysfunction to oxygen
deprivation caused by sleep apnea and obstructive pulmonary hyperextension.
McMillan’s appeal documents also included additional medical records from
Dr. Grewe. In an April 2013 patient visit note, McMillan reported “increased
[shortness of breath] with minimal exer[t]ion [and] [d]yspnea while walking inside,
[and] on level ground.” Id. at 423. McMillan returned to Dr. Grewe a week later for
a “recheck on breathing.” Id. at 427. Because McMillan reported no improvement,
Dr. Grewe referred him to two pulmonologists. McMillan saw Dr. Grewe again in
June, and he again reported continued shortness of breath while walking, overall
weakness, and daytime somnolence. In addition to testing that demonstrated a
relatively high likelihood of falling asleep during the day, Dr. Grewe also concluded
that “[e]ven if [McMillan] could physically go back to work, [he] cannot focus
enough to adequately perform work tasks.” Id. at 437.
In response to McMillan’s appeal, Sedgwick contacted McMillan’s former
supervisor to obtain a complete job description. The supervisor explained that
although there were “[n]o physical requirements other than associated travel on
occasion (if any)[,] [i]t is a cognitive position as it requires memory and thought
about software installation, setup and client interaction.” Id. at 310. When asked for
further information about the travel demands, the supervisor added:
Travel was random based on the . . . work sold. Generally it was project work . . . out of state which would require air travel. . . . Generally our consultants travel around 20% of the time, but could increase to 100% based on the project need and statement of work. And in some cases a year
5 would go by where no travel was needed. When not travelling [McMillan] worked from home. Id. at 309.
Sedgwick then referred McMillan’s appeal to PAs with specialties in internal
medicine, endocrinology, pulmonology, and neurology. Each PA was asked to
address, among other things, whether McMillan was disabled from his job from
May 21, 2013, through August 25, 2013, as well as how the clinical findings in his
medical records could impact his ability to function. The referral form directed the
PAs to see the “detailed job duty description included in the file.” Id. at 313.
The four PA specialists reviewed the claim file and submitted reports to
Sedgwick. Each PA found McMillan was not disabled from his job for the period in
question, but none of the reports contained any specific discussion of McMillan’s job
duties, including cognitive and travel requirements. Next, Sedgwick sent the reports
to Dr. Steven Channick, an internal medicine specialist, for a cumulative review.
Dr. Channick concluded that McMillan was not disabled from an internal medicine
perspective. But like the other PA reports, Dr. Channick’s report contained no
specific discussion of McMillan’s job duties, and also failed to address the cognitive
or travel requirements.
In response to the five PA reviews, McMillan submitted, among other things, a
rebuttal letter from Dr. Wood and records from McMillan’s cardiologist, Dr. John
Roye. Dr. Roye wrote on March 28, 2014, that a recent heart catheterization
procedure “revealed [McMillan] had small vessel coronary disease that [was] not
6 amenable to intervention or grafting.” Id., Vol. VIII at 1384. As such, Dr. Roye
opined that McMillan was “totally and permanently disabled because of inoperable
coronary artery disease.” Id. And Dr. Wood opined that due to McMillan’s chronic
hypoxia, “it was clear that he is experiencing some cognitive dysfunction that is
impairing his ability to work—particularly at such a cognitively demanding position
as his last.” Id. at 1362. According to Dr. Wood, “[t]he scientific literature dating
back to the early 1970’s overwhelmingly supports the notion that the chronic hypoxia
caused by sleep apnea causes cognitive dysfunction, particularly in the domains of
memory, attention, and executive functioning, such as Mr. McMillan exhibited in his
testing with me.” Id. at 1362.
Sedgwick sent McMillan’s additional materials to NMR and requested
addendum reports from the five PAs. In their addendums, each PA reaffirmed his or
her original conclusions that McMillan was not disabled. Once again, however, there
was no specific discussion of McMillan’s job duties in any of the reports. In fact, the
internal medicine PA who replaced Dr. Channick, opined that McMillan was not
disabled without having any information about McMillan’s job duties: “The patient’s
job description was not made available for this reviewer.” Id. at 1392.
Nonetheless, Sedgwick informed McMillan that his claim was denied.
McMillan then sued for judicial review of the decision under the Employee
Retirement Income Security Act (“ERISA”). The district court found that the Plan’s
denial of McMillan’s claim was arbitrary and capricious because Sedgwick failed to
adequately consider McMillan’s ability to perform all of his essential job functions
7 before denying his claim. The court also found that McMillan’s travel duties were
inconsistent with the description of his job duties as sedentary. See McMillan v.
AT&T Umbrella Benefit Plan No. 1, 161 F. Supp. 3d 1069, 1079-80 (N.D. Okla.
2016). But rather than award benefits, the district court remanded McMillan’s claim
back to the Plan for further processing. See id. at 1080-81.
C. The Proceedings on Remand
On remand, Sedgwick asked NMR to obtain new PA reviews, including
cumulative reviews and a panel review. Specifically, Sedgwick asked the PAs to
opine, among other things, on whether McMillan could perform his regular job,
which “includes travel and the ability to perform with high level cognitive
functioning,” and whether, “from a cumulative perspective, [McMillan was] disabled
from his regular job.” Aplt. App., Vol. X at 1599. Sedgwick ignored NMR’s express
concern that the request for cumulative reviews was beyond the expertise of the
individual PAs, and required that each PA should “answer all of the questions that
were provided, including the cumulative question.” Id. at 1600 (emphasis added).
Dr. Robert Cooper conducted an endocrinology, diabetes and metabolism review
in which he fully identified McMillan’s job duties and concluded that he was not disabled
from a cumulative perspective. Dr. Taj Jiva conducted a pulmonary review and also
concluded that McMillan was not disabled on a cumulative basis; however, Dr. Jiva did
not fully identify McMillan’s job duties and incorrectly referred to the job as “sedentary.”
Id. at 1693. Dr. Andrew Lawton performed an ophthalmology review in which he fully
identified McMillan’s job duties and concluded that he was not cumulatively disabled.
8 Dr. Beverly Yamour’s internal medicine/cardiovascular review fully identified
McMillan’s job duties. Although Dr. Yamour acknowledged Dr. Rowe’s March 2014
report that McMillan had severe and inoperable coronary disease, she found that he was
not disabled from a cumulative perspective. Dennis Buchholz, Ph.D., conducted a
neuropsychological review. He also failed to fully describe McMillan’s job duties, but
nonetheless concluded that McMillan was not disabled because there was no testing to
support any cognitive impairments.
Sedgwick considered the new PA reviews and informed McMillan that the claim
was denied. McMillan filed an administrative appeal that was supported by additional
information and medical records. As a general matter, he argued that: (1) the reviewers
ignored pertinent medical history, including Dr. Grewe’s report about shortness of breath;
(2) cognitive assessments based solely on a review of records, such as the review
conducted by Dr. Buchholz, are fundamentally unreliable; and (3) the reviewers offered
cumulative medical opinions beyond their areas of training and expertise.
Specific to his cognitive impairments, McMillan submitted a new rebuttal report
from Dr. Wood and job performance reviews from 2012 that demonstrated a cognitive
decline. Further, McMillan submitted records from the Social Security Administration
(“SSA”), in which the agency determined that he was disabled effective May 2013. The
SSA based its disability determination, in part, on a report of Brian R. Snider, Ph.D., who
was retained by the agency to perform a consultative neurological examination. In
December 2014, Dr. Snider met face-to-face with McMillan and administered a mental
status examination. Based on the testing and examination, Dr. Snider found that
9 McMillan “would likely have marked difficulty with complex and detailed instructions”
and “moderate [to] marked difficulty concentrating and persisting through a normal work
day due to memory problems.” Id. at 1798. The SSA, in turn, found moderate
limitations in McMillan’s ability to (1) “understand and remember detailed instructions”;
(2) “carry out detailed instructions”; (3) “maintain attention and concentration for
extended periods”; and (4) “interact appropriately with the general public.” Id. at
1810-11.
With regard to shortness of breath, McMillan submitted a letter from Dr. Roye that
stated he “was symptomatic with dyspnea on exertion and should be considered disabled
as of 4/22/2013.” Id. at 1749.
In response to McMillan’s appeal, Sedgwick requested five new PA reviews. This
time, Sedgwick classified McMillan’s job as “light,” and again directed the reviewers to
(1) “comment on [his] ability to perform his job requirements, that includes travel and the
ability to perform with high level cognitive functioning” and (2) provide cumulative
assessments of disability. Id., Vol. XI at 1830.
Dr. A. Wayne Meikle conducted an endocrinology, diabetes and metabolism
review. He identified McMillan’s job duties as “sitting, typing, talking, walking,
computer, and desk work.” Id. at 1833. Dr. Meikle noted the lack of any “objective
medical information in the medical records to support the employee’s inability to
perform his job duties,” id. at 1835, and concluded that McMillan was not disabled
on a cumulative basis. Dr. Meikle, however, failed to reconcile or explain the
10 relationship between his description of McMillan’s job duties and whether he could
meet the travel demands.
The PA who provided the sleep medicine and pulmonary review, Dr. Heidi
Connolly, incorrectly classified McMillan’s job duties as “sedentary,” and described
them as “sitting, talking, and some walking.” Id. at 1838. She opined that McMillan
could perform the requirements of his job, “including travel and high level cognitive
function,” id. at 1839, and therefore, he was not disabled from a sleep medicine
/pulmonary perspective. But Dr. Connolly did not explain the basis for her opinion
in light of the travel demands.
Robert L. Collins, Ph.D., conducted the neuropsychological review. He also
erroneously described McMillan’s job as “sedentary,” which involved “sitting,
talking, and some walking.” Id. at 1844. Dr. Collins did note that the cognitive
demands of McMillan’s job required “intense concentration, focus, attention to
detail, and the ability to handle multiple tasks concurrently.” Id. Nonetheless,
Dr. Collins offered a bare bones conclusion that McMillan could perform the travel
and cognitive duties of his job: “From a neuropsychology perspective the provided
medical records would not support the employee being unable to perform his job
requirements which include travel and the ability to perform with high cognitive
functioning.” Id. at 1851.
Dr. Collins further said it was “inaccurate” for Dr. Wood to “us[e] a metric of
‘superior functioning’ by which to judge the normality of all other cognitive
domains.” Id. But Dr. Collins did not say what metric Dr. Wood should have used,
11 or what the results would have been had she used a different metric. Dr. Collins also
explained “that it is not unusual for patients completing a large battery of tests to
have variability within their performance—and that neurologically healthy adults are
likely to have one to two scores in the mildly impaired range.” Id. What is
significant, however, is what Dr. Collins did not say. Dr. Collins did not say that
Dr. Wood should have used a different diagnostic tool or that the tools she used were
something other than the tools commonly used by neuropsychologists to evaluate
cognitive domains. Nor did he say that the tests were improperly performed. And
although Dr. Collins acknowledged Dr. Snider’s mental status examination, he did
not question his findings and conclusions.
The cardiovascular review was performed by Dr. Patrick S. Weston. He also
incorrectly classified McMillan’s job duties as “sedentary,” which involved “sitting,
talking, and some walking.” Id. at 1867. Dr. Weston opined in a conclusory manner
that McMillan could meet the travel and cognitive demands of the job, but did not
explain how this was so in light of his serious heart problems. Nor did he contact
Dr. Roye, who performed the heart catheterization procedure on McMillan in early
2014, which “revealed [McMillan] had small vessel coronary disease that [was] not
amenable to intervention or grafting,” and he was therefore “totally and permanently
disabled because of inoperable coronary artery disease.” Id., Vol. VIII at 1384. He
also failed to address Dr. Roye’s letter that stated McMillan “was symptomatic with
dyspnea on exertion and should be considered disabled as of 4/22/2013.” Id., Vol. X
at 1749.
12 The cumulative or “whole body” review was conducted by Dr. Stephen H.
Broomes. Dr. Broomes did not specifically address the job description provided by
Sedgwick, and he characterized McMillan’s duties as “sitting, typing, talking,
walking, computer, and desk work.” Id., Vol. XI at 1857. But Dr. Broomes did note
that McMillan’s “job require[d] intense concentration, focus, attention to detail, and
the ability to handle multiple tasks concurrently.” Id. Nonetheless, Dr. Broomes
failed to explain or discuss his conclusion that McMillan could perform all of the
requirements of his job—including its travel and cognitive requirements.
McMillan reviewed the new PA reports and filed an appeal letter. In response,
Sedgwick requested addendum opinions from the PAs to address McMillan’s
comments. Three of the PA opinions merit discussion. For the first time, the
neuropsychologist Dr. Collins commented on Dr. Snider’s assessment, including the
mental status examination. Dr. Collins stated that Dr. Snider’s work “should only be
viewed as a screening assessment which has inherent limitations [because the]
evaluation occur[ed] in a medico-legal context,” and there were no “adequate
measures of performance validity.” Id. at 1895. As such, Dr. Collins opined that
“the data collected should only be viewed as lower bound estimates.” Id.
Importantly, however, Dr. Collins did not reject Dr. Snider’s mental status
examination findings as wrong—only that they should be regarded as a lower bound
estimate.
Dr. Weston, who previously opined that there was insufficient clinical
evidence to support a finding of disability, acknowledged Dr. Roye’s findings of
13 cardiovascular abnormalities, but argued that they “would not be expected to support
the diagnosis of disability.” Id. at 1902. In particular, Dr. Weston maintained that
the abnormalities would not “be expected to explain increasing shortness of breath
with minimal exertion and while walking.” Id. Although Dr. Weston admitted that
“[s]ymptoms of dyspnea on exertion is a subjective finding,” id., he ignored
Dr. Roye’s findings without ever having examined McMillan.
For his part, Dr. Broomes reaffirmed his previous opinion that the objective
evidence did not support a finding of disability, but he again failed to describe the
entire panoply of McMillan’s job duties. Shortly thereafter, Sedgwick circled back to
Dr. Broomes for an addendum as the “consensus reviewer,” id. at 2074, and provided
Dr. Broomes with a copy of the supervisor’s description of McMillan’s job duties. It
then posed the following question: “The employee’s job duties include travel and the
ability to perform with a high level of cognitive functioning. Please confirm that the
attached job duties have been reviewed. Does this information impact your original
opinion?” Id. Dr. Broomes conducted a review with the other panel members and
responded with the panel’s consensus opinion:
We collectively felt that the patient did not have objective findings, physically or cognitively, that would result in limitations or restrictions from a cumulative perspective. We did all agree that the gentleman had significant medical issues that required ongoing medical care, but none that would preclude him from performing a desk job and none that we could identify that would preclude him from traveling at 20% or performing with a high level of cognitive functioning. Id. at 2080-81.
14 Sedgwick recognized that Dr. Broomes’s description of McMillan’s job duties
was once again incomplete, and requested yet another addendum to address whether a
“100%” travel requirement would change his opinion. Id. at 2088. Dr. Broomes
responded a few days later and advised Sedgwick that the “information does not
change the previous cumulative whole body consensus.” Id. at 2094. There is no
record evidence that Dr. Broomes contacted any other panel member prior to issuing
the addendum that purported to represent the panel’s opinion.
Sedgwick reaffirmed its denial of STD benefits. In doing so, it expressly
relied on the opinions of the most recent review panel—Drs. Meikle, Connolly,
Collins, Weston, and Broomes.
McMillan moved for judicial review of the district court’s post-remand denial
of his claim for STD benefits. The court concluded that the denial was arbitrary and
capricious and awarded McMillan twenty-six weeks of benefits. The court also
denied the Plan’s motion to alter or amend the judgment. This appeal followed.
D. Analysis
1. Standard of Review
“This Court reviews the plan administrator’s decision to deny benefits to a
claimant, as opposed to reviewing the district court’s ruling.” Foster v. PPG Indus.,
Inc., 693 F.3d 1226, 1231 (10th Cir. 2012) (internal quotation marks omitted). “We
will review a denial of plan benefits under a de novo standard unless the plan
provides to the contrary.” Id. (internal quotation marks omitted). Here, because
Sedgwick has full discretionary authority to interpret and construe the terms of the
15 Plan, we review its decision to deny benefits under the arbitrary and capricious
standard. See id. “Under arbitrary and capricious review, this court upholds [the
administrator’s] determination so long as it was made on a reasoned basis and
supported by substantial evidence.” Van Steen v. Life Ins. Co. of N. Am., 878 F.3d
994, 997 (10th Cir. 2018).
But the arbitrary and capricious standard of review is not without meaning. 2
This is because ERISA imposes “a special standard of care upon a plan administrator,
namely, that the administrator ‘discharge [its] duties’ in respect to discretionary
claims processing ‘solely in the interests of the participants and beneficiaries’ of the
plan, [29 U.S.C.] § 1104(a)(1).” Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 115
(2008). Consistent with this special standard of care, plan administrators must
“provide a ‘full and fair review’ of claim denials.” Firestone Tire & Rubber Co. v.
Bruch, 489 U.S. 101, 113 (1989) (quoting 29 U.S.C. § 1133(2)). And to ensure that
plan administrators meet their fiduciary obligations, Congress has provided for
“judicial review of individual claim denials.” Metro Life, 554 U.S. at 115 (citing
29 U.S.C. § 1132(a)(1)(B)).
“We look for substantial evidence in the record to support the administrator’s
conclusion, meaning more than a scintilla of evidence that a reasonable mind could
accept as sufficient to support a conclusion.” Eugene S. v. Horizon Blue Cross Blue
2 In the context of our review of a plan administrator’s denial of an ERISA claim “[t]his Court treats the abuse-of-discretion standard and the arbitrary-and- capricious standard as interchangeable.” Foster v. PPG Indus., Inc., 693 F.3d 1226, 1231 (10th Cir. 2012) (internal quotation marks omitted). 16 Shield of N.J., 663 F.3d 1124, 1134 (10th Cir. 2011) (internal quotation marks
omitted). “Substantiality of the evidence is based upon the record as a whole. 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.” Caldwell v. Life Ins. Co. of N. Am., 287 F.3d 1276, 1282 (10th Cir. 2002)
(alteration and internal quotation marks omitted).
2. Travel Requirements
The record does not contain substantial evidence that McMillan could perform
the travel duties of his job. We acknowledge that the PA reviewers stated that they
considered the travel requirements and concluded that McMillan could perform them.
But there is no discussion in any of the reviews of what travel entails and how
McMillan could meet those demands in light of his serious medical impairments,
particularly shortness of breath.
On appeal, the Plan argues that a reviewing court goes “beyond the bounds of
an arbitrary and capricious review,” when it “demand[s] additional detailed analysis.”
Aplt. Opening Br. at 21. This is true as a general statement of the law, but misses the
point. The problem is the lack of any analysis, let alone a reasoned analysis. For
example, the reviews by Drs. Meikle, Connolly, Collins, Weston, and Broomes
contain nothing more than conclusory statements that McMillan could travel without
any discussion whatsoever. This causes us to question that the Plan afforded
McMillan the “fair review” the Supreme Court called for when it explained the
17 fiduciary duties owed by a plan administrator to a claimant. See Metro Life, 554 U.S.
at 115.
It is also significant that Dr. Broomes had to rewrite his review on several
occasions. Equally important is the fact that Dr. Broomes’s serial reviews were not
based on new evidence; instead they were a product of Sedgwick’s narrowly tailored
leading questions.
We also reject the Plan’s argument that McMillan’s “travel duties involved
[nothing] more than walking or sitting or that they involved the type of physical
exertion that would take his job duties out of the ‘sedentary’ classification.” Aplt.
Reply Br. at 2. Setting aside the fact that the district court found that McMillan’s job
description was inconsistent with sedentary work, see Aplt. App., Vol 12 at 2206,
“travel” is not a sedentary activity and involves more than sitting. Admittedly,
“travel” does not require running or aerobic exercise, but it plainly involves more
physical exertion than what is required to work from home, which is what McMillan
did when he was not travelling. The Plan further argues that to navigate his way
through an airport, McMillan “could have carts take him between terminals and to
gates and hire skycaps to carry his bags.” Aplt. Reply Br. at 2. But this argument
fails to address all of the other demands of travel. More to the point, this type of
analysis should have been provided by the PA reviewers—not the Plan’s lawyers on
appeal.
In the context of travel demands, it is also important to recognize Dr. Grewe’s
patient notes from April through June, 2013, which documented McMillan’s reported
18 shortness of breath, as well as Dr. Roye’s opinion that McMillan “was symptomatic
with dyspnea on exertion and should be considered disabled as of 4/22/2013.” Aplt.
App., Vol. X at 1749. In his addendum review, Dr. Weston acknowledged
Dr. Roye’s opinion, but chose to rely exclusively on the results of an echocardiogram
and ignore McMillan’s repeated complaints of shortness of breath on minimal
exertion, such as walking indoors. 3 While Dr. Weston noted McMillan’s reports
about shortness of breath, he apparently chose to ignore them because they were
based on subjective complaints. But the Plan does not require objective evidence to
establish a disability. As such, we conclude that Dr. Weston failed to consider
relevant evidence in his opinion that McMillan was not disabled.
The Plan’s determination that McMillan could perform the travel duties of his
job was not supported by substantial evidence, and was therefore arbitrary and
capricious.
3. Cognitive Requirements
Likewise, the Plan’s determination that McMillan could perform the cognitive
requirements of his job is not supported by substantial evidence. Instead, this
determination hangs by the gossamer thread of Dr. Collins’s reviews.
Unlike Social Security disability proceedings, “[n]othing in [ERISA] . . .
suggests that plan administrators must accord special deference to the opinions of
treating physicians.” Black & Decker Disability Plan v. Nord., 538 U.S. 822, 831
3 In his initial review, Dr. Weston noted, but did not discuss, McMillan’s reports to Dr. Grewe about shortness of breath.
19 (2003). Still, “[p]lan administrators . . . may not arbitrarily refuse to credit a
claimant’s reliable evidence, including the opinions of a treating physician.” Id. at
834. To be sure, Dr. Snider’s examination and the SSA’s disability determination do
not require the conclusion that Sedgwick’s denial of benefits was arbitrary and
capricious. But Dr. Snider’s examination is acceptable evidence under the Plan.
Similarly, although the Plan is not bound by Dr. Wood’s opinion, it is also reliable
evidence.
Dr. Collins never said that Dr. Snider’s mental status examination was
wrong—only that it represented “lower bound estimates” of cognitive functioning.
Aplt. App., Vol. XI at 1895. And although Dr. Collins took exception to Dr. Wood’s
interpretation of the tests administered to McMillan, he did not explain what she
should have done differently or how the results would have changed.
We have carefully examined the record and conclude that the Plan’s
determination that McMillan could perform the cognitive requirements of his job is
arbitrary and capricious because it is based on a “scintilla of evidence that [no]
reasonable mind could accept as sufficient to support [the] conclusion.” See Eugene
S., 663 F.3d at 1134 (internal quotation marks omitted).
II. MOTION TO ALTER OR AMEND
A. The Motion and District Court’s Order
On August 14, 2017, the district court entered judgment in favor of McMillan
and awarded him benefits from June 12, 2013 through the date of judgment. The
court’s intent “was to grant McMillan twenty-six weeks of short-term disability
20 benefits, which is the maximum number of weeks for which benefits are payable
under the plan.” Aplt. App., Vol. XII at 2254.
The Plan subsequently filed a motion to alter or amend the judgment under
Fed. R. Civ. P. 59(e), to provide benefits for a thirteen-week period between May 21,
2013 and August 25, 2013—the time between the effective denial of McMillan’s
claim and when McMillan allegedly returned to work. The district court agreed that
the correct start date for the commencement of benefits was May 21, 2013—the date
McMillan’s claim was effectively denied. The court, however, disagreed that
McMillan’s benefits should have ended on August 25, 2013. 4
First, the court found that “the record is ambiguous as to whether McMillan
returned to work on August 26, 2013.” Id. at 2256. When Sedgwick administratively
denied McMillan’s claim on June 12, 2013, McMillan had two options: (1) return to
work or (2) appeal the denial. The court found that the record failed to establish that
McMillan returned to work. On August 22, 2013, McMillan’s supervisor called
Sedgwick to learn whether McMillan had appealed. On August 26, 2013, Sedgwick
sent McMillan’s supervisor a notice that McMillan would “[r]eturn [] to work full
time full duty [on] 08/26/2013.” Id., Vol. II at 238. Sedgwick was informed later
that day that McMillan intended to appeal.
4 The Plan argues for the first time on appeal that benefits should have ceased no later than September 13, 2013, when McMillan’s employment was terminated. We will not consider this argument, however, because the Plan did not raise it in the district court. See Dahl v. Dahl, 744 F.3d 623, 629 (10th Cir. 2014) “[W]e will not consider [an] argument . . . not ma[d]e . . . in district court.”). 21 On May 5, 2014, Sedgwick notified McMillan that his appeal was denied. A
few days later, McMillan called Sedgwick and requested to initiate a claim for
long-term disability benefits (“LTD”). The administrator informed him that STD
claims are “transitioned” to LTD claims, and his only choice was to file suit. Id. at
159.
Based on this record, the district court found that the Plan failed to “identify in
the record any employment records or correspondence to or from McMillan showing
that he actually did return to work on August 26, 2013.” Id., Vol. XII at 2256.
Second, the district court concluded that the award of benefits was not “limited
to the time period for which Sedgwick denied McMillan benefits—from May 21,
2013 to August 25, 2013.” Id. at 2257. The court distinguished a line of cases cited
by the Plan as inapplicable because “they stand for the commonsense proposition that
where a plaintiff fails to file a claim for long-term disability benefits, the court’s
review is limited to the administrator’s decision regarding short-term disability
benefits.” Id. But the court found that McMillan’s “situation here is different:
McMillan actually did file a claim for short-term disability benefits, and Sedgwick
did render a final decision on it.” Id. The court found no clear error in its award of
twenty-six weeks of benefits, and entered an amended judgment for benefits from
May 21, 2013 through November 19, 2013.
B. Analysis
“We review the denial of a Rule 59(e) motion to alter or amend a judgment for
abuse of discretion.” Monge v. RG Petro-Mach. (Grp.) Co., 701 F.3d 598, 610
22 (10th Cir. 2012). “A district court abuses its discretion if it made a clear error of
judgment or exceeded the bounds of permissible choice in the circumstances.” Id. at
610-11 (internal quotation marks omitted). The only grounds for granting a Rule
59(e) motion are “(1) an intervening change in the controlling law, (2) new evidence
previously unavailable, and (3) the need to correct clear error or prevent manifest
injustice.” Id. at 611 (internal quotation marks omitted).
The Plan never discusses the standard of review. More to the point, it does not
argue an intervening change in the law or cite new evidence that was previously
unavailable. Nor does it explain any clear error. Instead, the Plan restates the facts
and argues for a different outcome. This is not enough to establish that the district
court abused its discretion when it denied the Plan’s request to reverse its award of
twenty-six weeks of benefits.
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s order that reversed the
Plan administrator’s denial of STD benefits. We also affirm the court’s order that
denied the Plan’s motion to alter or amend the judgment to reduce the award of
Entered for the Court
Gregory A. Phillips Circuit Judge