Freeman v. Hartford Life and Accident Insurance Company

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

KURT FREEMAN CIVIL ACTION

VERSUS

HARTFORD LIFE AND ACCIDENT 21-342-SDD-RLB

INSURANCE COMPANY

RULING

In this ERISA case, before the Court are the cross Motions for Judgment on the

Administrative Record filed by Defendants, Hartford Life and Accident Insurance

Company and Aetna Life Insurance Company (“Defendants” or “Hartford”)' and Plaintiff,

Kurt Freeman (“Plaintiff’ or “Freeman”).2 The Court has considered the Parties’ respective

Oppositions? and Replies.*_ For the following reasons, Defendants’ motion shall be

granted, and Plaintiff's motion shall be denied.

I. BACKGROUND FACTS

Plaintiff's claimed disability stems from an injury he sustained to his left rotator cuff

on June 26, 2016, outside of work, which was subsequently surgically repaired.° Plaintiff

filed this lawsuit following the denial of his claim for Long Term Disability (“LTD”) benefits

under a group LTD benefit plan (“the Plan”)® governed by the Employee Retirement

Income Security Act of 1974 (“ERISA”).’ The Plan was sponsored by Plaintiff's former

1 Rec. Doc. 26.

? Rec. Doc. 27.

3 Rec. Docs. 30, 32.

4 Rec. Docs. 33, 34.

5 Administrative Record (“AR”), p. 865 (Claim Notes).

8 Id. at pp. 1-28.

729 U.S.C. §1001, et seq

Page 1 of 30

employer, Praxair, Inc., and was insured by a group policy of insurance originally issued

by Aetna under Policy No. GP-656164 (the “LTD Policy”).®

Defendants administered LTD claims under the LTD Policy, including Plaintiff's.

The terms of the LTD Policy expressly granted Defendants the full discretion and authority

to determine eligibility for benefits and to construe and interpret the LTD Policy.° The

Parties stipulated that the LTD Policy vests Defendants with discretionary authority to

determine eligibility for benefits, to construe and interpret its terms, that ERISA governs

the LTD Policy, that the Administrative Record (“AR”) is complete, and that ERISA

preempts any state law claims.'°

The LTD Policy and Plan provide that, during the first 24 months after a claim is

made, the test for disability is the “Own Occupation” test.1’ The “Own Occupation” test

requires that the claimant must be unable perform the material duties of his “own

occupation” solely because of illness or injury.'* To remain eligible for LTD benefits after

the first 24 months, a claimant must satisfy the “Any Reasonable Occupation” test for

disability.'* The “Any Reasonable Occupation” test requires that a claimant be unable to

work at “any reasonable occupation” solely because of illness or injury.'4 The Plan defines

“reasonable occupation” as “any gainful activity for which [the claimant is], or may

8 AR, pp. 29-46. Hartford notes: “In November 2017, Hartford acquired Aetna’s group benefits business

and, in connection with that transaction, Aetna appointed Hartford as its attorney-in-fact to, among other

things, administer claims under certain group plans and policies administered and/or underwritten by Aetna,

including the plan and policy at issue in this litigation. References to “Hartford” herein will refer to Hartford

acting on behalf of Aetna Life as its attorney-in-fact.” Rec. Doc. 26-1, p. 2, n. 2.

9 AR, p. 44.

10 Rec. Doc. 20.

11 AR, p. 54,

12 Id.

13 Id,

14 Id.

Page 2 of 30

reasonably become, fitted by education, training, or experience . . . .”15 Plaintiff received

LTD benefits for the initial 2-year period governed by the “Own Occupation” definition;

Hartford denied continuation of LTD benefits under the “Any Reasonable Occupation”

definition.

Plaintiff seeks review of Hartford’s May 25, 2021 appeal decision affirming its

October 6, 2020 claim decision finding that Plaintiff, a former Safety Specialist, is ineligible

for LTD benefits under the “Any Reasonable Occupation” test.16 Defendants argue

Plaintiff’s lawsuit must be dismissed because Hartford’s appeal decision was neither an

abuse of discretion nor arbitrary and capricious. Hartford maintains it conducted a full and

fair review of Plaintiff’s claim before affirming its October 6, 2020 claim decision.17

In upholding its October 6, 2020 claim decision, Hartford noted that, although the

medical documentation supported some functional deficits impacting Plaintiff’s use of his

left shoulder and arm, Plaintiff is right hand dominant and capable of performing

sedentary work on a full-time basis with certain restrictions on the use of his left arm.18

Hartford contends this conclusion was supported by Plaintiff’s own evidence.19

Hartford maintains it gave Plaintiff’s claim a full and fair review after evaluating the

entire claim file, including, “without limitation,”20 Plaintiff’s submissions and records from

his treating physicians, Dr. Kelly Boussert (“Dr. Boussert”) and from Dr. Wame

Waggenspack, Jr. (“Dr. Waggenspack”).21 Dr. Waggenspack practices with Dr. Boussert

15 Id. at p. 24.

16 Id. at pp. 248-250 (Claim Decision, 5/25/21); pp. 190-194 (Claim Decision, 10/6/20).

17 Id.

18 Claim Decision, 5/25/21, AR, pp. at 248-250, upholding 10/6/20 Claim Decision, AR, pp. 190-194.

19 See Note and Physician’s Recommended Restrictions, 3/4/21, AR, pp. 283-286.

20 Rec. Doc. 26-1, p. 4.

21 AR, pp. 248-250 (Claim Decision, 5/25/21 upholding 10/6/20 Claim Decision); AR, pp. 190-194; AR, pp.

351-353 (Dr. Waggenspack’s office notes, 10/28/20).

and examined Plaintiff on October 28, 2020, at Plaintiff's request, specifically to ascertain

Plaintiff's work capacity.22

At the time of Plaintiffs appeal, Dr. Boussert opined that Plaintiff could work

twenty-five (25) hours a week with restrictions on the use of his left arm. Further,

contrary to Plaintiff's claims, Dr. Boussert reported that Plaintiff did not suffer significant

side effects from his medication, and he was not cognitively impaired or sedated by his

medication.24 Dr. Boussert noted that Plaintiff was able to drive and was driving himself

to his appointments.2° While restricting Plaintiff to part-time work, Dr. Boussert

nevertheless approved Plaintiff for light capacity work rather than purely sedentary work.”6

Hartford claims Plaintiff sought an examination by Dr. Waggenspack to support Dr.

Boussert’s part-time work restriction;?” however, Dr. Waggenspack disagreed with Dr.

Boussert’s conclusion and, rather, agreed with the determination of an Independent

Medical Examination (“IME”) performed by Dr. Beau Bagley (“Dr. Bagley”), a Board

Certified Specialist in Physical Medicine and Rehabilitation retained by Hartford.?® Dr.

Bagley concluded that Plaintiff was capable of full-time, sedentary duty work with

restrictions on his left upper extremity.229 Dr. Waggenspack also determined, based on his

review of Plaintiffs medical records, that any pain complaints were well controlled by

Plaintiff's medication.*°

22 Id.

23 AR, pp. 283-286 (Note and Physician’s Recommended Restrictions, 3/4/21).

Id. at p. 283.

25 Id.

26 AR, pp. 356-361, 366-367 and 373-374 (Dr. Boussert’s office notes); see a/so AR, p. 386 (10/7/20 report).

27 Id. at pp. 351-353 (Dr. Waggenspack’s office notes, 10/28/20).

28 Id. at pp. 426-438 (Dr. Bagley’s IME report, 7/10/20); pp. 351-353 (Dr. Waggenspack’s office notes,

10/28/20).

29 Id.

30 fd. at pp. 351-353 (Dr. Waggenspack’s office notes, 10/28/20).

Page 4 of 30

Hartford commissioned an Employability Analysis Report (“EAR”), dated August

27, 2020, which identified at least two (2) full-time, sedentary positions in the applicable

labor market for Plaintiff: Safety Manager and Department Manager.*'

Following Plaintiff's appeal of the initial claim decision, Hartford obtained a

Physician’s Review from William Barreto, M.D. (“Dr. Barreto”) and from Dr. Jamie L. Lewis

(“Dr. Lewis”), both Board Certified in Pain Medicine and Physical Medicine &

Rehabilitation.** Notably, Plaintiff's treating physician, Dr. Boussert, is also Board

Certified in the same field.

Dr. Barreto found Plaintiff capable of full-time, sedentary work with the restrictions

noted.*° Dr. Lewis found Plaintiff capable of performing at a sedentary demand level “at

least,” with restricted use of his left arm and unrestricted use of his right arm.*4 Based on

the above medical opinions, with were in agreement with Dr. Bagley’s opinion, Hartford

concluded that there was substantial evidence to support its decision that Plaintiff was

capable performing full-time, sedentary work with restrictions on the use of his left arm.

Hartford also considered the finding by the Social Security Administration (“SAA”) that

Plaintiff was “not disabled” and that he was capable of performing light duty work on a

full-time basis.°°

For the above reasons, Hartford maintains it is entitled to judgment on the

administrative record because there is substantial evidence supporting its claim decision.

Plaintiff also moves for judgment on the administrative record, arguing that

31 fd. at pp. 391-406 (EAR, 8/27/20).

82 fq. at pp. 305-310 (Dr. Barreto’s Report, 2/9/21); pp. 260-268 (Dr. Lewis’ Report, 3/31/2021).

33 at pp. 305-310 (Dr. Barreto’s Report, 2/9/21).

Id. at pp. 260-268 (Dr. Lewis’ Report, 3/31/2021).

35 fd. at pp. 836-848 (SSA determination). All Parties acknowledge that the SSA has since determined that

Plaintiff is permanently disabled; however, this determination was made after the close of the Administrative

Record in this case and after Plaintiff filed this lawsuit. See Rec. Docs. 30 & 33.

Page 5 of 30

Hartford disregarded key evidence and relied on flawed evidence in reaching its decision.

Plaintiff contends that Dr. Bagley’s notes from his July 10, 2020 IME demonstrate that

Plaintiff’s physical capacity is “less than sedentary.”36 Plaintiff relies on the following

notes from Dr. Bagley in support of this interpretation:

He could not push, pull, or carry with the left arm… He guards the left upper

extremity; therefore, it would be difficult for claimant to lift/carry/push/pull

with the left upper extremity, but because of claimant’s motor exam, he

could lift/carry/push/pull 2 lbs. with the left upper extremity rarely…With the

left upper extremity, he can never reach above the shoulder. With the left

upper extremity he can reach at desk/bench level rarely. He can handle

finger and feel with the left upper extremity occasionally….Because of the

limitations of ROM of the left upper extremity, claimant cannot perform

climbing and crawling….There were no inconsistencies on today’s

exam….Because there are chronic changes noted on EMG/NCV testing

and it has been greater than two years since the original injury, claimant’s

prognosis for improvement in function of the left upper extremity at the

shoulder without further intervention is poor…given the above restrictions…

and a position that would let claimant be on current pain medication

regimen, claimant can work 8 hours per day, 5 days per week.37

Plaintiff concedes that, on July 12, 2020, Dr. Boussert, his treating physician, evaluated

Plaintiff and concluded that he could work on a part-time basis, at light capacity with

restrictions.38

Plaintiff maintains that Hartford’s initial denial and appeal denial were faulty in

several ways. Plaintiff claims that Hartford erroneously credited the SSA determination

of May 8, 2019, which concluded that Plaintiff was at a greater physical capacity than

even Dr. Bagley determined.39 Plaintiff argues that Hartford disregarded “objective

evidence” of his nerve conduction studies showing permanent nerve damage, including

36 Rec. Doc. 28-3, p. 7.

37 AR, pp. 178-190, 426-438. Plaintiff has used ellipses to capture more than twenty (20) pages of Bagley’s

report in crafting this paragraph at Rec. Doc. 28-3, p. 7.

38 Rec. Doc. 28-3, p. 7 (citing AR, pp. 340-342, 359-361).

39 Id. at pp. 9-10 (citing AR, pp. 207-211).

the “chronic changes noted n EMG/NCV’” identified by Dr. Bagley.*° Plaintiff contends

Hartford limited the scope of Dr. Bagley’s findings as to Plaintiff's necessary restrictions.

Plaintiff attacks the vocational analysis performed for a variety of reasons, primarily

because the two available jobs identified do not take into account Plaintiff's pain

regimen.* In sum, Plaintiff contends Hartford’s denial was arbitrary and capricious in the

following ways: (1) the Plan’s vocational analysis was flawed and does not support the

decision; (2) Hartford arbitrarily ignored Plaintiff's disabling pain; (3) Hartford arbitrarily

ignored Plaintiff's treating physician’s opinion; and (4) Hartford arbitrarily ignored third-

party observations.

ll. LAW & ANALYSIS

A. Summary Judgment Standard**

A court should grant a motion for summary judgment when the movant shows “that

there is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.”“4 The party moving for summary judgment is initially responsible for

identifying portions of pleadings and discovery that show the lack of a genuine issue of

material fact.4° A court must deny the motion for summary judgment if the movant fails

to meet this burden.*6

If the movant makes this showing, however, the burden then shifts to the non-

40 Id. at p. 10.

41 Id. at pp. 10-11.

42 Id.

43 While both Parties style their Motions as Motions for Judgment on the Record, Defendants claim they

are entitled to judgment under FRCP 56, applying the summary judgment standard. Plaintiff maintains Rule

56 is not the applicable standard for judgment on the administrative record. The Court provides both

standards and notes that it would reach the same result under either standard.

“4 Fed. R. Civ. P. 56.

45 Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995).

46 Id.

Page 7 of 30

moving party to “set forth specific facts showing that there is a genuine issue for trial.”4”

This requires more than mere allegations or denials of the adverse party's pleadings.

Instead, the nonmovant must submit “significant probative evidence” in support of his

claim.’8 “If the evidence is merely colorable, or is not significantly probative, summary

judgment may be granted.”49

A court may not make credibility determinations or weigh the evidence in ruling on

a motion for summary judgment.®°° The court is also required to view all evidence in the

light most favorable to the nonmoving party and draw all reasonable inferences in that

party's favor.°' Under this standard, a genuine issue of material fact exists if a reasonable

trier of fact could render a verdict for the nonmoving party.°?

B. ERISA Standard of Review for Judgment on Administrative Record

The Supreme Court directs courts to conduct de novo standard of review when

adjudicating ERISA benefit disputes unless the plan documents give “the administrator or

fiduciary discretionary authority to determine eligibility for benefits or to construe the terms

of the plan.”®? In this case, the Parties stipulated that the LTD Policy vests Defendants

with discretionary authority to determine eligibility for benefits and to construe and

interpret its terms.54 Where the plan administrator has discretionary authority to determine

eligibility for benefits or to construe the terms of the plan, courts must base their review

of both the legal and factual findings of the administrator's decision under an abuse of

47 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (quotations omitted).

48 State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990)(quotation marks omitted).

49 Anderson, 477 U.S. at 250 (citations omitted).

50 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).

51 Clift v. Clift, 210 F.3d 268, 270 (5th Cir. 2000).

52 Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008).

53 Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989).

54 Rec. Doc. 20.

Page 8 of 30

discretion standard.*° “In the context of ERISA, the abuse of discretion standard of review

‘is the functional equivalent of arbitrary and capricious review.’’°° Here, Hartford had

discretionary authority to interpret the terms of the policy and to make benefit eligibility

determinations. Thus, the Court must determine whether the denial of benefits was

arbitrary and capricious. Review of this question is limited to the record that was before

Hartford at the time of the final claim decisions.°’ If Hartford’s decision “is supported by

substantial evidence and is not arbitrary or capricious, it must prevail.”"°* “Substantial

evidence is more than a scintilla, less than a preponderance, and is such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”©?

Hartford’s decision is only deemed arbitrary “if made without a rational connection

between the known facts and the decision or between the found facts and the

evidence.’”’©° Under the abuse of discretion standard, a court's “review of the

administrator's decision need not be particularly complex or technical; it need only assure

that the administrator's decision falls somewhere on a continuum of reasonableness —

even if on the low end.’

C. Conflict of Interest

In Metropolitan Life Insurance, Co. v. Glenn, the Supreme Court held that a

reviewing court must first consider conflicts of interest as a factor in its review of a plan

58 See Vercher v. Alexander & Alexander Inc., 379 F.3d 222, 226 (5th Cir. 2004).

56 Tesch v. Prudential Ins. Co. of America, 829 F.Supp.2d 483, 493 (W.D. La. 2011)(quoting Anderson v.

Cytec Industries, Inc., 619 F.3d 505, 512 (5th Cir. 2010)).

5” See Vega v. Nat'l Life Ins. Servs., 188 F.3d 287, 299-300 (5th Cir. 1999)(abrogated on other grounds).

58 Schexnayder v. Harford Life & Acc. Ins. Co., 600 F.3d 465, 468 (5th Cir. 2010) (quoting Ellis v. Liberty

Life Assurance Co. of Boston, 394 F.3d 262, 273 (5th Cir. 2004)).

59 Rittinger v. Healthy Alliance Life Insurance Company, 914 F.3d 952, 957 (5th Cir. 2019)(citations

omitted)(internal quotation marks omitted).

60 Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc., 168 F.3d 211, 215 (5th Cir. 1999)

51 Corry v. Liberty Life Assurance Co. of Boston, 499 F.3d 389, 398 (5th Cir. 2007).

Page 9 of 30

administrator's decision.®* In Glenn, the Court addressed the issue of “whether a plan

administrator that both evaluates and pays claims operates under a conflict of interest in

making discretionary benefit determinations,” and if so, how that conflict should be taken

into account on judicial review.°° The Supreme Court held that a conflict of interest does

exist where “the entity that administers the plan ... both determines whether an employee

is eligible for benefits and pays benefits out of its own pocket.’ Further, “a reviewing

court should consider that conflict as a factor in determining whether the plan

administrator has abused its discretion in denying benefits.”°° The Fifth Circuit has applied

a “sliding scale standard” where an administrator is self-interested; thus, the

administrator's decision is given less than full deference.® “The greater the evidence of

conflict on the part of the administrator, the less deferential our abuse of discretion

standard will be.”®” In cases where an administrator's dual role establishes a potential

conflict of interest, but the plaintiff presents no further evidence as to the degree that a

conflict may exist, the Fifth Circuit has held that the administrator's decision should be

reviewed “‘with only a modicum less deference than we otherwise would.’”®

The Court assumes that Hartford is self-interested in this matter because it

acquired Aetna’s group benefits business.® Hartford cites Wittmann v. Unum Life Ins.

Co. of Am., wherein the district court for Eastern District of Louisiana held, and the Fifth

Circuit affirmed, that when a plaintiff fails to present evidence showing that an inherent

62 554 U.S. 105, 112, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008).

83 fd. at 110.

64 Id. at 108.

85 Id.

68 Vega, 188 F.3d at 295-97.

87 Id. at 297.

68 See Corry, 499 F.3d at 398 (quoting Vega, 188 F.3d at 301).

89 See fn 8, supra.

Page 10 of 30

conflict of interest actually influenced the benefits decision, this factor is given little or no

weight.’° As Hartford contends, aside from this dual role, Plaintiff presents no further

evidence on the degree of the conflict or how that conflict affected Hartford's decision.

Plaintiff ostensibly attributes the allegedly flawed bases for the claim denial as being “plan

advocacy” rather than “fair and impartial fiduciary analysis.””' In concluding his motion,

Plaintiff argues that “[t]he Plan has taken a purely adversarial position against its insured.

This record shows the Plan’s financially conflicted, self-interested behavior to an

unconscionable degree” based on efforts to reach a purported “predetermined,

unsupported goal of denial.”’* However, Plaintiff offers only conclusory arguments and

offers no actual evidence that the conflict played any role in the claim denial. As will be

discussed below, Plaintiff's attacks on the claim denial are without merit; thus, Plaintiff

has failed to demonstrate that an inherent conflict of interest influenced the ultimate

benefits decision.

D. The Opinions of Plaintiff's Treating Physicians

Plaintiff maintains Hartford disregarded his treating physicians’ opinions, giving

credit only to the opinions of other physicians less familiar with Plaintiff's condition.

Hartford counters that it clearly considered the opinion of Plaintiffs treating physicians

and, further, those opinions also supported its denial of Plaintiff's claim.

As noted by another section of this Court in Chisholm v. Guardian Life Insurance

Company of America, “[t]he Supreme Court and the Fifth Circuit have rejected any

proposition that a plan administrator must attach significant weight to a party's treating

70 No. 17-9501, 2019 WL 763509, at *11 (E.D. La. Feb. 21, 2019), affd, 793 Fed.Appx. 281 (5th Cir. 2019).

Rec. Doc. 28-3, p. 16.

72 Id. at p. 21.

Page 11 of 30

physicians.’? Nonetheless, the Supreme Court has also held that plan administrators

cannot ‘arbitrarily refuse to credit a claimant's reliable evidence, including the opinions of

a treating physician.”

After careful review of the administrative record, the Court finds Plaintiff's claim

without merit. The record demonstrates that Plaintiff's own physicians, Drs. Boussert and

Waggenspack, support Hartford’s claim determination. Dr. Boussert concluded that

Plaintiff is capable of performing sedentary work and that his pain is well-controlled by

medication that does not cognitively impair his ability to work. While Dr. Boussert

restricted Plaintiff to less than 25 hours of work per week, she approved Plaintiff for light

duty work with restrictions on the use of his left shoulder.’° Dr. Waggenspack determined

that Plaintiff was capable of full-time sedentary work with left upper extremity restrictions,

in agreement with Dr. Bagley’s conclusions.” The administrative record includes Dr.

Boussert’s findings. Her October 7, 2020 and March 2, 2021 notes provide, respectively:

| have treated Mr. Freeman for many years for his chronic left shoulder pain.

As previously stated, | believe he is capable of working at least part time in

a light capacity position which does not require use of his left arm. | have

reviewed his recent IME and agree with the findings. He has reported that

his pain is kept tolerable with his current medication regimen although he

does endorse some sedation with it.””

| believe Mr. Freeman can work 25 hours/week with restrictions noted and

use of right arm only (avoid use of left arm). | have discussed this with Mr.

Freeman and he told me he could work 25 hours a week but not full time

73 449 F.Supp.3d 619, 632 (M.D. La. 2020)(citing Black & Decker Disability Plan v. Nord, 538 U.S. 822,

834, 123 S.Ct. 1965, 155 L.Ed.2d 1034 (2003); e.g., Becknell v. Long Term Disability Plan for Johnson &

Johnson and Affiliated Companies, 510 F.App’x 317, 320 (5th Cir. 2013)).

7 Id. (quoting Black & Decker Disability Plan, at 834, 123 S.Ct. 1965).

* AR, pp. 356-361, 366-367, 373-374 (Dr. Boussert’s office notes); pp. 283-286 (Note and Physician's

Recommended Restrictions, 3/4/21); p. 386 (10/7/20 report).

76 Id. at pp. 426-438 (Dr. Bagley’s IME report, 7/10/20) pp. 351-353 (Dr. Waggenspack’s office notes,

10/28/20).

Id. at p. 386 (October 7, 2020 Report).

Page 12 of 30

because of worsened pain after about 4-5 hours and would like to avoid

needing to increase medication.”

The opinions of Drs. Boussert and Waggenspack, Plaintiff's treating physicians, were not

ignored. Indeed, they are mostly consistent with Dr. Bagley’s IME and the opinions of

Hartford’s physicians, Drs. Barreto and Lewis, who both found Plaintiff capable of full-

time sedentary work with left arm restrictions.”? Admittedly, Dr. Boussert does not agree

that Plaintiff can work full-time; however, she explained that her conclusions are based

on light duty work and what Plaintiff advised her he was capable of working.®° Under

ERISA, it is not an abuse of discretion or arbitrary and capricious for Hartford to reach a

conclusion supported by most of the physicians who examined Plaintiff — that he could

work full-time in a sedentary position. The only material conflict in the medical reports is

whether Plaintiff can work full-time or part-time. All physicians agree that Plaintiff can

work with restrictions.

Plaintiff attacks Hartford’s reliance on Dr. Waggenspack’s recommendation,

highlighting the language from his notes that his opinion was based on his alleged failure

to consider further nerve injuries of which Dr. Waggenspack was unaware; however, Dr.

Waggenspack cited and acknowledged Plaintiffs known history of axillary and

suprascapular nerve injuries.°' Dr. Waggenspack noted that he reviewed Dr. Bagley’s

IME, which contains the results of Plaintiffs only EMG/NCV study from 2016 along with

Plaintiffs detailed medical history.8* In his appeal, Plaintiff identified no other study

78 Id. at p. 286 (Physician’s Recommended Restrictions).

78 Id. at pp. 305-310 (Dr. Barreto’s Report, 2/9/21); pp. 260-268 (Dr. Lewis’ Report, 3/31/2021).

80 at pp. 376-377 (Dr. Boussert’s Office Notes, 9/16/2020).

81 fd. at pp. 350-351, 353 (Dr. Waggenspack’s Office Visit Notes, 10/28/20).

82 Id. at pp. 426, 429 (IME, 7/10/2020).

Page 13 of 30

regarding “further nerve injuries.”®° Plaintiff's argument that Dr. Waggenspack failed to

consider “further nerve injuries” in reaching his determination of Plaintiff's work capacity

is contradicted by the record.

E. Plaintiff's Subjective Complaints of Pain/Third Party Witnesses

Plaintiff also contends Hartford’s claim denial is flawed because it failed to consider

his subjective complaints of pain and his pain medication protocol, and it failed to consider

the statements from Plaintiff's family members regarding his daily living. Plaintiff argues

that his pain complaints are consistently documented by his physicians, and there was

no basis to disregard Plaintiff's pain or find that his subjective complaints lack credibility.

Citing Second Circuit jurisprudence, Plaintiff contends: “A plan administrator does not

necessarily abuse its discretion if it requires objective support in addition to subjective

reports of pain, however.* But a determination that pain complaints lack credibility must

have some evidentiary basis in the record.”°°

Plaintiff refers to the “Statement” or “Affidavit” submitted in connection with his

appeal, which he claims was corroborated by his family members. Plaintiff's unsworn

“Statement,” dated February 11, 2021, contains the following statements “solemnly

affirm[ed]” by Plaintiff:

1. The following has been true continuously since my last day of work

related to my disability claim through the date of this statement.

2. If | try to exceed the activities described below, | have headaches, forget

what | am doing, become lost, and experience emotional upset.

3. | take the following prescription medications, at the following dosages and

intervals each day:

83 Id. at pp. 277-297 (Appeal, 3/9/21); pp. 299-300 (Letter/Notice of Appeal, 11/19/20).

84 Rec. Doc. 28-3, p. 18 (citing Hobson v. Metro. Life Ins. Co., 574 F.3d 75, 88 (2d Cir. 2009)).

85 fd. (citing Krizek v. Cigna Grp. Ins., 345 F.3d 91, 100 (2d Cir. 2003)).

Page 14 of 30

Norco #10 * 1/4 tablet 4 times a day

Tizanidine* 1 dose daily

Celexa* - 1 dose daily

Ibuprofen* - 800mg As needed

4. I have limited to no use of my left extremity. I cannot reach with my left

arm as it causes severe neck pain. When l use my right arm it causes my

left arm to hurt. I find any regime difficult

5. Whether or not taking the above medications, I am unable to sit, walk or

stand, even if alternating among these positions at will, for an extended

period of time, without requiring rest with a heating pad or ice at least six

times a day to relieve unbearable pain.

6. I require assistance with getting dressed, showering, preparing meals,

housework and reminders to take my medication.

7. With or without taking the above-referenced medications, my disability is

severe, just more severe without taking them. Whether or not taking my

medication, the physical and mental effects of my medical condition as

described above do not change.

8. The above-referenced medications marked with an *, when taken, while

helping somewhat with pain, cause me to be unable to perform adequately

mentally. They cause my thinking to be clouded and slow, leading to errors

and inability to keep pace as required to accomplish any work timely, as my

ability to do everything is much slower, including all activities of daily living,

including but not limited to walking. I also experience dizziness, nausea,

impotence, anxiety and depression as well.

9. The pain I experience causes sleepless nights every night and dramatic

fatigue during the day, with or without the above-referenced medications,

causing me to need several naps every day.

10. The above statements are all true and based upon personal knowledge.

11. This statement is based exclusively on my own knowledge and words,

but it was completed over the course of several weeks, a little at a time, and

required many hours of total time, as well as my wife’s assistance with proof-

reading, grammar and spelling to complete it.86

86 AR, pp. 278; 289.

Plaintiff also relies on the “Note,” allegedly created by Dr. Boussert, which Hartford

contends was prepared by Plaintiff to mimic Dr. Boussert’s office notes. However, Dr.

Boussert interlineated and revised the pre-prepared “Note,” as shown below:°”

87 Id. at p. 283.

Page 16 of 30

NOTE

RE: Patient: Kurt Freeman

Date of Birth:

To whom it may concern:

This is to document that I am the above patient’s treating physician, and as such, | am familiar with his

overall medical condition and his medication regimen. His diagnosis is a tom rotator cuff in his left arm with

resulting nerve damage, In addition to the notes and observations in the patient’s medical chart, | offer the

following:

[ have reviewed the attached Affidavit of this patient. The statements that he makes in his Affidavit

regarding his physical condition, pain components, limitations duc to pain, and the effects of his pain and

condition are credible, consistent with and expected given his overall medical condition and my objective serial

clinical physical examinations as well as all conducted objective diagnostic studies to date.

The patient's statements regarding prescribed medication and their side-effects are also consistent with

common side-effects of the prescribed medication,

His complaints, clinical examination and all diagnostic studies also overwhelmingly and oe □□

question demonstrate severe disability which prevents him from ee even sedentary, He C44, □ 3 ¢

UL Ue v a □

He has difficulty getting comfortable and prescribed medication provides only some pain relief. He has □□□□□□ □

severe pain in his left arm.

Due to his physical condition, it is not reasonable to expect him to sit, walk or stand, even if alternating

at will for a full 8-hour day. He is unable to engage in full time work, even if sedentary, on any sustained basis.

Attempting to force himself to do so, or to intentionally persist in any activity that causes pain is not

recommended, and will be detrimental to, and exacerbate his condition and pain,

Due to his pain and the medications be ncecds to be taking as well, he will not function well mentally

and will experience clouded thinking, slow reaction time and fatigue. Fe ee ee ae t □

accurately and adequately perform mental tasks, We Wan aw Can jie eft □ □

Wedd cated ne Weta pada nd lumen rane br □□

Other effects of his medical condition and medication include disturbed sleeping patterns due to chronic en, wan

pain and fatigue. Fproqanteg of te Wetiemp □□ teed asione, Since = ey US ya the ice -

danger-o edator properties of tf ea eCaus rystzyedeaptions, Ys AAt. ts □

ato i re Moe we Kear sae he ea Neer tas pa. bu wart

Vi HANis abilities, physical timilattons and couditony ie net bipscitd io improve and rather are expected to Cp (as 7.

+ continue to become worse with time, Moana

Vales by we Gy ti re bevt can two bedvce tH □□□

It is my opinion that he is peseanoniy abled □□□□□□□□□□□□□□□□□□□□□□□□□ acts wine

reshichinwe. chime □

If any further information is needed on his behalf, please request same by written contact so that there

is no possibility of miscommunication,

Sincerely,

PHYSICIAN SIGNATURE DATE

Kw Bevscewl-

PHYSICIAN PRINTEDYNAME

Page 17 of 30

PHYSICIAN'S RECOMMENDED RESTRICTIONS

Patient's Name: Yasnd Pimms

Physician's Name: (else E 550

IMPORTANT:

Please answer the following items based on vour clinical evaluations, test results, and medical

treatment history of the patient, Please note the patient's limitations with regard to a work setting

where he'she would be required to work day after day, on a sustained and reaular basis. If, in vour

opinion, there 18 a medical basis for the patient's alleged pain, please consider pain as a factor in

determining appropriate limitations.

I, In. an $ hour work day, the patient can walk:

Lessthan, oo fs S$ hours

Whgt medical conditions limit the patient's ability to walk? | .

Nadk, Sad ito A AI : a

[Ata Inartiia Sfacnliden adr lage aa

Tye be, Marcus Chea rend Mer (> ablbrn Daand cai □□

Il. In an $ hour work day, the patient can stand: 4 eer) it P □ ? (ene fot hot

Lessthan 12 6. ?___ hours

What medical conditions limit the patient's ability to stand?

»?/

IH, Iran $ hour work day, the patient can sit:

Lessthan_ tt {3 ) 6 Shours

What medical conditions limit the patient's ability tosit?

a," of

Page 18 of 30

In. an 8 hour work day, the patient can lift‘carry: Wi (2) (aud

Occasionally a maximum of: only”

a Jess than 10 pounds

11-20 pounds

21-50 pounds

gyes 50 pounds

Frequently a maximum of:

less than 10 pounds

11-20 pounds

21-50 pounds

gyer 50 pounds

What medical conditions limit the patient's ability to lifvcarry?

i) Maer oF 10 ae - ie Ee Lady AAW) Sr

povatadin) ©) Inno Lr van ae tran y+ □□

eal h i ‘

V. Can the patient use hands for repetitive: F) orl Ont

Simple grasping aud handling? 4 Yes No

Pushing and pulling? “ Yes No

Fine manipulation and fingering’? “ Yes No

What medical conditions limit the patient's ability to use hands?

NiO, V4, 6 1A} AMAL LO WA yh

VI. Can je patient use feet for repetitive movements as in operating foot controls? □

Yes No

What medical conditions limit the patient's ability to use feet?

VI. The patient is able to:

Bend Frequently Occasionally Never

Kueel Frequently Occasionally Never

Squat Frequently Occasionally Never

Crawl Frequently Occasionally _Never

Climb stairs Frequently oF” Occasionally Never

Climb ladders Frequently Occasionally es Never

Reach above

shoulder fevel Frequently \/_Occasionally Never [2- a”

Page 19 of 30

What medical conditions limit the patient’s ability to engage in these activities? - □□

CArarowiv purr macy ant yr GarVlw ee

Additional Comments: ln Dewy Ma Tscwaw Chr Woh

7 ol Wie ; ld wr Wited ant

AQ i A Onh AM) 2 Nf Arma). »

Wer he wrk 16 Wow A WU ae UC □□□□

VW Uw ot Th Worsene } paw dank U-s 4 OWE □□

xX ye all □□□

Signature Dite wey

Waooak

In response, Hartford maintains that: (1) Plaintiff's “Affidavit” is not sworn

testimony;®® (2) substantial evidence in the record — including reports by his own

physicians — contradicts several of Plaintiff's claims in his “Affidavit”; and (3) the record is

rife with references to Plaintiff's pain and pain management protocol, thus demonstrating

that Hartford did, in fact, consider Plaintiff's pain — as reported to physicians — in reaching

its decision.

88 Hartford is correct that Plaintiff's “Statement” or “Affidavit” is not a statement sworn to, under oath, as

Plaintiff avers. However, the Court will consider the statements in Plaintiff's “Affidavit” and the fact that the

administrative record contradicts several of Plaintiffs statements.

Page 20 of 30

Hartford further counters that it properly considered Plaintiff’s complaints of

pain/pain management treatment because the physicians who evaluated and treated

Plaintiff addressed these issues in reaching their medical conclusions about Plaintiff’s

work capacity. Hartford additionally argues that, while it did consider Plaintiff’s subjective

pain complaints, ERISA does not require the Plan to give any heightened weight to such

complaints over the medical evidence in the record.

As for the pre-prepared “Note” by Dr. Boussert, Hartford correctly explained Dr.

Boussert’s revisions:

Plaintiff's administrative appeal included a “Note” and a Recommended

Restrictions report from Dr. Boussert dated March 4, 2021. The “Note” was

pre-prepared for Dr. Boussert’s signature to accompany Plaintiff’s February

11, 2021 appeal statement; however, the “Note” was significantly and

substantially revised by Dr. Boussert before signing. Id.

The initial paragraphs of the “Note” contain unsupported, conclusory

statements and refer to Plaintiff’s “Affidavit,” even though Plaintiff’s appeal

statement is not sworn and not otherwise in affidavit form. In the fourth

paragraph of the “Note,” Dr. Boussert revised the pre-prepared segment

reading that Plaintiff is disabled from “working in any occupation, even

sedentary’’ to read “working full time in any occupation, even sedentary. [He

can, however, work 20-25 hours a week.]” Id.

In the seventh paragraph, Dr. Boussert struck out completely the pre-

prepared statement reading that Plaintiff “cannot reasonably be expected

to accurately and adequately perform mental tasks.” Id. In its place, Dr.

Boussert wrote: “He has denied significant side effects to his medication in

the past and has been on this medication for many years without ever

appearing cognitively impaired in any way in the clinic.” Id.

In the eight[h] paragraph, Dr. Boussert struck out completely the pre-

prepared portion reading that: “Driving to and from work while taking his

medications is not recommended because of the danger of sedation

properties of the medicine causing delayed reactions.” Id. In its place, Dr.

Boussert wrote: “Disagree, he is able to drive without sedation from his

medications. He has been on these for years and drives to his

appointments.” /d.

In the tenth paragraph, Dr. Boussert struck out completely the pre-prepared

statement which read that Plaintiff is “permanently disabled from any type

of gainful employment.” /d. In its place, Dr. Boussert wrote that Plaintiff is

“unable to work full time but can work reduced hours 20-25/wk (with)

restrictions.” /d.

Even though Dr. Boussert did not revise or strike out every word or phrase

in the pre-prepared “Note,” the remaining portions of the “Note” are simply

not credible because they were clearly written to prop up Plaintiff's appeal

by someone other than Dr. Boussert. The inflated nature of the “Note” also

belies and discredits the unsworn appeal statement of Plaintiff which it was

explicitly intended to support. In an effort to rectify the pre-prepared

statements in the “Note,” Dr. Boussert was bootstrapped into the assertion

that Plaintiff could not work full time, even on a sedentary basis. However,

Dr. Boussert has frequently approved Plaintiff for light duty work up to

twenty-five (25) hours per week. Outside of this pre-prepared “Note,” Dr.

Boussert has not opined that Plaintiff could not work full time on a sedentary

basis. It also cannot be ignored that Dr. Boussert, on June 15, 2018, signed

off on an assessment agreeing that there was a lack of sufficient medical

evidence of an impairment from full time work. See AR 497-499.°9

In Plaintiff's Opposition to Defendants’ motion,°° Plaintiff simply ignores Hartford’s

contentions regarding this Note. Plaintiff does not deny or challenge that he prepared the

“Note” for Dr. Boussert nor that she substantially altered the “Note” — and repudiated

several of Plaintiffs statements — to comport with her medical opinions regarding

Plaintiffs work capacity. Further, Plaintiff offers no disagreement with Hartford’s

explanation of Dr. Boussert’s “Note” revisions, ostensibly conceding the point on this

issue.

8° Rec. Doc. 26-1, pp. 16-17 (original emphasis)(footnotes omitted).

99 Rec. Doc. 30.

Page 22 of 30

Considering the entirety of the administrative record, the Court finds that Plaintiff’s

claim that Hartford ignored his subjective pain and pain management is meritless. The

record contains numerous references to Plaintiff’s reports of pain and the progression of

his pain medication protocol from the date of the injury through the appeal process, as

detailed above. Regarding Plaintiff’s credibility, Plaintiff misplaces blame onto Hartford

when it is Plaintiff’s own physicians who contradict the statements in his “Affidavit.” As

discussed above, Dr. Boussert did not credit Plaintiff’s subjective beliefs about his level

of incapacitation or his pain’s effect on his capacity to work. Hartford was not arbitrary

and capricious to assign greater credibility to the opinions of the treating and consulting

physicians in this case than Plaintiff’s self-serving and unsupported subjective beliefs

about his condition.

Further, the administrative record contains numerous references to Plaintiff’s pain

and pain management by all consulting physicians. Plaintiff’s suggestion that Dr.

Waggenspack failed to take into account Plaintiff’s pain is squarely contradicted by Dr.

Waggenspack’s notes, wherein he acknowledged Plaintiff’s complaints of pain, but upon

review of Dr. Boussert’s notes, concluded that Plaintiff’s pain was “relatively well

controlled on his current pain medication regimen.”91 Dr. Boussert’s office notes prior to

the initial claim denial demonstrate that Plaintiff’s complaints of pain were made tolerable

by his medication, which increased his function level.92 Even after the initial claim denial,

Dr. Boussert noted that Plaintiff’s pain is controlled with medication.93 Dr. Alpesh Patel,

91 AR, p. 353 (Dr. Waggenspack’s Office Visit Notes, 10/28/20).

92 Id. at pp. 340-358 (Dr. Boussert’s Office Visit Notes, e.g. 1/15/2020, 3/11/2020, 5/6/2020, 7/21/2020 and

9/16/2020).

93 Id. at p. 386 (October 7, 2020 report from Dr. Boussert).

who treated Plaintiff prior to Dr. Boussert, likewise noted that Plaintiffs pain is “over-all

well controlled” on medication.

Plaintiff reported other limitations to daily living in his “Affidavit,” including that he

“requires assistance with getting dressed, showering, preparing meals, housework and

reminders to take his medication.”® But this statement is directly contradicted by Plaintiff's

own statements during his IME wherein Plaintiff reported that he “can dress himself

slowly, but prefers assistance. He can feed and bathe himself... He spends his days

watching TV and the computer. He eats, walks, and sits.”°6 Notably, Plaintiff admitted he

could work 25 hours per week.’’ Plaintiff's “attestation” that he generally suffers from

dizziness, nausea, impotence, anxiety, and depression® is not supported or documented

in any substantial detail by the medical records of Plaintiff's treating physicians; likewise,

there is no evidence showing how these complaints affect Plaintiff's work capacity. The

record reflects that Plaintiff's complaints of anxiety, depression, insomnia, and fatigue are

well-controlled by Plaintiff's medication regimen.

As noted in Chisholm, “Plan administrators may not ignore consistent complaints

of pain as subjective, but they are not required to give such complaints determinative

weight.'°° Nor are plan administrators required to explain why they credited evidence that

contradicts a claimant's reported limitations.”'°' There is substantial evidence in the

4 Id. at p. 494 (Office Note, Dr. Patel, 2/14/2018).

5 fd. at p. 278.

9% fq. at pp. 427, 434 (IME, 7/10/2020); Hartford also submitted video surveillance evidence showing that,

during the relevant time period, Plaintiff used his left arm without strain to reach over and pull the driver’s

side door of his truck closed, after retrieving mail from his mailbox. See Rec. Doc. 15-6, AR, p. 1432.

Id. at pp. 283-286 (Note and Physician's Recommended Restrictions, 3/4/21).

% Id. at p. 278.

99 fd. at pp. 357 (Dr. Boussert’s records, 9/16/2020); pp. 340-358 (Dr. Boussert’s Office Visit Notes, e.g.

1/15/2020, 3/11/2020, 5/6/2020, 7/21/2020 and 9/16/2020); p. 494 (Office Note, Dr. Patel, 2/14/2018).

100 Chisholm, 449 F.Supp.3d at 635 (citing Corry, 499 F.3d at 400-01).

101 Id. (citing Nord, 538 U.S. at 834, 123 S.Ct. 1965).

Page 24 of 30

record which demonstrates that Harford properly credited and considered reports of

Plaintiff's pain and pain management protocol, as supported by his physicians. Hartford

also properly explained why it did not credit Plaintiff's “Affidavit” and his subjective beliefs

about his capacity, although ERISA does not require it to do so. Plaintiff's claim that

Hartford ignored his subjective pain complaints is without merit.'°

F. The Plan’s Vocational Analysis

Plaintiff maintains the Plan’s vocational analysis was flawed in many ways; thus, it

could not serve to support Hartford’s claim denial. Plaintiff contends the analysis fails

because it cannot be rationally determined from the report whether the duties of the two

identified jobs available to Plaintiff fall within Plaintiff's restrictions or would accommodate

Plaintiffs narcotic pain regimen.'°? Plaintiff claims that the Plan’s denial is “completely

dependent on the adequacy” of this vocational analysis.'°* The record belies Plaintiff's

contention.

Hartford defends the substance and reasoning of the vocational analysis'®> but

counters that a vocational analysis is not required, and there remains substantial

evidence in the administrative record to support its claim denial even without the

vocational analysis.'°° The Court agrees.

The Fifth Circuit has explicitly held that:

102 For the same reasons, the Court finds Plaintiff's claim that Hartford “arbitrarily ignored third-party

observations” without merit. Rec. Doc. 28-3, p. 19. Plaintiff refers to the unsworn “Statements” of Plaintiff's

wife, mother, and father, which mimic verbatim Plaintiffs statements in his purported “Affidavit.” See AR,

pp. 279, 280, & 282. They are, therefore, lacking in credibility for the same reasons set forth in this section,

and Hartford was not arbitrary or capricious in crediting the opinions and findings of Plaintiff's consulting

and treating physicians over these family “observations.”

103 Rec. Doc. 28-3, p. 18.

104 Id.

105 Rec. Doc. 32, pp. 16-19.

106 fd. at pp. 19-20.

Page 25 of 30

ERISA does not require a Plan Administrator to seek consultation of a

vocational expert. In Duhon, we stated that:

[W]e will not hold that absent vocational rehabilitation evidence a

plan administrator necessarily abuses his discretion in making a final

determination of disability. Instead, we will allow the reviewing court

to decide, on a case-by-case basis, whether under the particular

facts the plan administrator abused his discretion by not obtaining

the opinion of a vocational rehabilitation expert.107

Hartford relies on this Court’s decision in Beach v. Hartford Life & Accident Ins.

Co.,108 wherein the Court, relying on Fifth Circuit authority, held:

[A] plan administrator is not even required by ERISA to obtain the opinion

of a vocational expert. The Fifth Circuit has concluded that: “we will not hold

that absent vocational rehabilitation evidence a plan administrator

necessarily abuses his discretion in making a final determination of

disability.” … Even if the Court excluded the Employability Analysis from

consideration, the totality of the remaining evidence would still be sufficient

to support Hartford's determination.109

As demonstrated above, the administrative record makes clear that Hartford evaluated

and considered far more than the vocational analysis in denying Plaintiff’s claim; thus,

even if the Court excluded the vocational analysis from consideration, “the totality of the

remaining evidence would still be sufficient to support Hartford’s determination.”110

G. May 26, 2022 SSA Determination

It his initial motion, Plaintiff made a passing reference to the first SSA

determination that Plaintiff was not disabled and criticized Hartford for relying on this

determination, stating only: “Occasionally climb ladders, ropes and scaffolds? How can it

be rational for the Plan to credit these SSA findings when its own IME physician, Dr.

107 Holland v. International Paper Co. Retirement Plan, 576 F.3d 240, 250 (quoting Duhon v. Texaco, Inc.,

15 F.3d 1302, 1309 (5th Cir.1994)).

108 No. 13-362-SDD-SCR, 2014 WL 3724846 (M.D. La. July 28, 2014).

109 Id. at *7.

110 See id.

Bagley, who actually examined the man imposed far greater restrictions?”''' However,

in Plaintiff's Opposition to Defendants’ motion, Plaintiff requests that the Court allow

Plaintiff to supplement the administrative record with the SSA’s May 26, 2022

determination that he is permanently disabled.''2

Plaintiff cites to Fifth Circuit jurisprudence holding that claimants may supplement

an administrative record if they make a “showing that the evidence was unavailable to

them while their administrative appeal was pending or that they made a good-faith effort

to discover or submit the information during the administrative process.”''S Plaintiff

contends a plan administrator has a “duty” to address “a contrary Social Security

determination.”""4

Plaintiff states: “The May 26, 2022 Social Security Administration ruling that

Plaintiff is totally disabled was unavailable to him until long after the parties stipulated to

the contents of the administrative record filed with this Court.”'"® Further, “[nJeither the

Plan nor Plaintiff had [an] opportunity to consider or argue the May 26, 2022 Social

Security Administration ruling that Plaintiff is totally disabled during the underlying claim

process.”116

Hartford counters that the Court cannot consider the May 26, 2022 SSA

determination because it was issued nearly one year after the date this lawsuit was filed,

Rec. Doc. 28-3, p. 10.

2 Rec. Doc. 30, pp. 1-3.

13 fd, at pp. 1-2 (quoting Anderson v. Cytec Indus., Inc., 619 F.3d 505, 516 (5th Cir. 2010). See also Cloud

v. Bert Bell/Pete Rozelle NFL Player Ret. Plan, No. 3:20-CV-1277-S, 2022 WL 887271, at *2-4 (N.D. Tex.

Feb. 14, 2022) (internal quotation marks omitted)).

114 Id. at p. 2 (quoting Arrington v. Unum Life Ins. Co. of Am., No. 1:14-CV-549, 2016 WL 7115970, at *11

(E.D. Tex. Sept. 13, 2016), report and recommendation adopted, No. 1:14-CV-00549, 2016 WL 7104040

(E.D. Tex. Dec. 6, 2016)).

15 Id. at p. 3.

116 Id.

Page 27 of 30

June 11, 2021. Thus, it is not properly before the Court. Alternatively, Hartford contends

that, even if the Court were to consider the later SSA determination, under applicable law,

Hartford is not bound by it in reaching its decision.

First, the Court agrees that the May 26, 2022 SSA determination is not properly

before the Court and should not be added to the administrative record. Plaintiff's reliance

on caselaw referring to information that was “unavailable” (while the ERISA appeal

process was pending) is inapposite because, here, this information was not unavailable;

it did not exist at all when Hartford made its claim determination. While “[a] plan

administrator's failure to consider a contrary SSA award in its benefits decision can be

‘an. important factor in its own right (because it suggest[s] procedural

unreasonableness),”''” ... “a contrary SSA disability award does not, in itself, prove that

an administrator abused its discretion in rendering its benefits decision. Plaintiff must

show that the SSA made its disability determination contrary to the administrator's

findings at the time Defendant found Plaintiff to be ineligible for disability benefits.”'"®

Since Vega, the Fifth Circuit continually holds that “[t]he administrative record consists of

relevant information made available to the [plan] administrator prior to the complainant's

filing of a lawsuit and in a manner that gives the administrator a fair opportunity to consider

Because the May 26, 2022 SSA determination was made nearly one year after this

lawsuit was filed, it does not fall within any exception allowing its addition to the

administrative record.

17 Chisholm, 449 F.Supp.3d at 636 (quoting Metro. Life Ins. Co., at 118, 128 S.Ct. 2343).

me Id. (citing e.g., Marrs v. Prudential Ins. Co. of Amer., 444 F.App'x 75, 77 (5th Cir. 2011))(emphasis in

Dix . Blue Cross and Blue Shield Ass'n Long Term Disability Program, 613 Fed.Appx. 293, 296 (5th

Cir. 2015) (quoting Vega, 188 F.3d at 300); see also Hamburg v. Life Ins. Co. of North America, 470 Fed.

Appx. 382, 385 (5th Cir. 2012)(quoting Vega, 188 F.3d at 300)(noting that a claimant’s lawyer can add

additional evidence to the administrative record for consideration “/bjefore filing suit.”)(emphasis added).

Page 28 of 30

In any event, SSA findings are not binding on plan administrators. “While SSA

disability findings are ‘“relevant and instructive” in a Court's determination of whether a

plan administrator acted arbitrarily and capriciously,’ it is well established that ‘Social

Security determinations are not binding upon a plan administrator.’”120 Indeed, disability

determinations made by the SSA are subject to a different standard than those under

ERISA.121 As the court explained in Matney v. Hartford Life Ins. Co.,

In the Fifth Circuit, furthermore, courts have refused to require that ERISA

plan administrators adhere to a benefit determination by the Social Security

Administration (SSA). Milson v. St. Luke's Episcopal Hospital, 71 F.Supp.2d

634, 639 n. 2. If courts made such findings, “‘ERISA fiduciaries would be

stripped of all administrative discretion, as they would be required to follow

the Department of Health and Human Services' decisions regarding social

Security benefits, even where the Plan determines benefits under different

standards or the medical evidence presented is to the contrary.’” Id. (quoting

Madden v. ITT Long Term Disability Plan for Salaried Employees, 914 F.2d

1279, 1286 (9th Cir.1990)).122

The Court finds that Plaintiff has failed to demonstrate that the May 26, 2022 SSA

determination should be added to the administrative record; the Court also finds that,

even if considered, the final SSA determination is not binding on Hartford and does not

undermine the substantial evidence in the administrative record supporting Hartford’s

benefits decision in this matter.

120 Dix v. La. Health Services & Indem. Co., No. 12-00319-BAJ-SCR, 2014 WL 4843670, at *13 (M.D. La

Sept. 25, 2014) (quoting Adams v. Metro. Life Ins. Co., 549 F.Supp.2d 775, 788 (M.D. La. 2007) (quoting

Gellerman v. Jefferson Pilot Fin. Ins. Co., 376 F.Supp.2d 724, 735 (S.D. Tex. 2005)); Horton v. Prudential

Ins. Co. of Amer., 51 F. App'x 928, 2002 WL 31415104, at *3 (5th Cir. 2002) (“while an ERISA plan

administrator might find a social security disability determination relevant or persuasive, the plan

administrator is not bound by the social security determination.”); Williams v. Hartford Life Ins. Co., 243 F.

App'x 795, 797 n.1 (5th Cir. 2007) (plan administrator was “not required to defer to a Social Security

ruling.”)).

121 See Hammond v. UNUM Life Ins. Co. of Am., Civ. A. No. 05–632, 2008 WL 906522, at *11 (S.D. Miss.

Mar. 31, 2008) (“[E]ntitlement to Social Security benefits is measured by a uniform set of federal criteria,

but a claim for benefits under an ERISA plan often turns on the interpretation of plan terms that differ from

SSA criteria.... [T]he determination that a claimant suffers from a disability under Social Security regulations

does not require an ERISA plan administrator to reach the same conclusion.”).

122 No. Civ. A.302CV2278LBH, 2004 WL 3187081, at *14 (N.D. Tex. Dec. 27, 2004), aff'd, 172 F. App'x 571

(5th Cir. Mar. 27, 2006).

Hl. CONCLUSION

For the foregoing reasons, Defendants’ Motion for Judgment on the Administrative

Record’? is GRANTED, and Plaintiff's Motion for Judgment on the Administrative

Record'* is DENIED. Judgment shall be entered in favor of Defendants.

IT IS SO ORDERED.

Baton Rouge, Louisiana, this 22nd day of March, 2023.

SHELLY D. nek

CHIEF DISTRICT JUDGE

MIDDLE DISTRICT OF LOUISIANA

123 Rec. Doc. 26.

124 Rec. Doc. 27.

Page 30 of 30