“The Supreme Court has recognized that treating physicians are not automatically entitled to special weight in disability determinations under ERISA[.]”
How later courts described this case
- “The Supreme Court has recognized that treating physicians are not automatically entitled to special weight in disability determinations under ERISA[.]”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RYAN TUCKER, )
)
Plaintiff, )
)
v. ) Case No. 4:20-CV-00987-NCC
)
EXPRESS SCRIPTS HEALTH AND )
WELFARE BENEFITS PLAN, )
METROPOLITAN LIFE INSURANCE )
COMPANY, and EXPRESS SCRIPTS, INC.,)
)
Defendants. )
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff Ryan Tucker’s Motion for Summary
Judgment (Doc. 50) and Defendants Express Scripts Inc. Health and Welfare Benefits Plan,
Metropolitan Life Insurance Company, and Express Scripts, Inc.’s Motion for Summary
Judgment on Count I of Plaintiff’s Complaint (Doc. 53). The motions are fully briefed and ready
for disposition. The parties have consented to the jurisdiction of the undersigned United States
Magistrate Judge pursuant to Title 28 U.S.C. § 636(c) (Doc. 13). For the following reasons,
Plaintiff’s Motion will be DENIED and Defendants’ Motion will be GRANTED.
I. Summary Judgment Standard
Pursuant to Federal Rule of Civil Procedure 56(a), a court may grant a motion for
summary judgment if “there is no genuine issue as to any material fact and [] the moving party is
entitled to [] judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The burden is on the moving party. City of Mt. Pleasant, Iowa v. Associated Elec. Co-op. Inc.,
838 F.2d 268, 273 (8th Cir. 1988). Once the moving party demonstrates that there is no genuine
issue of material fact, the nonmovant must do more than show there is some doubt as to the facts.
Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the
nonmoving party bears the burden of setting forth affirmative evidence and specific facts by
affidavit and other evidence showing a genuine factual dispute that must be resolved at trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Celotex, 477 U.S. at 324. “A dispute
about a material fact is ‘genuine’ only ‘if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.’” Herring v. Canada Life Assur. Co., 207 F.3d 1026, 1030
(8th Cir. 2000) (quoting Anderson, 477 U.S. at 248). In ruling on a motion for summary
judgment, all reasonable inferences must be drawn in a light most favorable to the non-moving
party. Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005). The evidence is not
weighed and no credibility determinations are made. Jenkins v. Winter, 540 F.3d 742, 750 (8th
Cir. 2008).
When cross motions for summary judgment are filed, each summary judgment motion
must be evaluated independently to determine whether a genuine issue of material fact exists and
whether the movant is entitled to judgment as a matter of law. Husinga v. Federal-Mogul
Ignition Co., 519 F.Supp.2d 929, 942 (S.D. Iowa 2007). “[T]he filing of cross motions for
summary judgment does not necessarily indicate that there is no dispute as to a material fact, or
have the effect of submitting the cause to a plenary determination on the merits.” Wermager v.
Cormorant Township Bd., 716 F.2d 1211, 1214 (8th Cir. 1983). “The usual Rule 56 standard of
review applies to cross-motions for summary judgment.” Int'l Brotherhood of Elec. Workers,
Local 176 v. Balmoral Racing Club, Inc., 293 F.3d 402, 404 (7th Cir. 2002). In determining the
appropriateness of summary judgment, “the relevant inquiry is ‘whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one-sided that one
2
party must prevail as a matter of law.’” Bingaman v. Kansas City Power & Light Co., 1 F.3d
976, 980 (10th Cir. 1993) (quoting Anderson, 477 U.S. at 251-52)).
II. Background
Plaintiff Ryan Tucker (“Tucker”) filed this action pursuant to the Employment
Retirement Income Security Act of 1974, as amended 29 U.S.C. § 1001, et. seq. (“ERISA”)
against Defendants Express Scripts Health and Welfare Benefits Plan (“the Plan”), Express
Scripts, Inc. (“Express Scripts”), and Metropolitan Life Insurance Company (“Met Life”) (all
collectively, “Defendants”) for denial of benefits pursuant to ERISA § 502(a)(1)(B), 29 U.S.C. §
1132(a)(1)(B) (Count I) and breach of fiduciary duty pursuant to ERISA § 409(a), 29 U.S.C.
§ 1109(a) (Count II). The Court previously dismissed Count II on Defendants’ Motion for
Summary Judgment on Count II of Plaintiff’s Complaint (Doc. 28). The undisputed facts are as
follows:1
A. The Plan
Tucker, a former employee of Express Scripts, was a participant in the Plan. Under the
Plan, beneficiaries are entitled to benefits equal to 60% of their earnings until they reach the age
of retirement, subject to any income which will reduce the disability benefit. A person is
disabled if he is receiving care from a physician for a sickness or injury, complying with the
requirements of treatment, and unable to earn:
during the Elimination Period and the next 24 months of Sickness or accidental injury,
more than 80% of Your Predisability Earnings at Your Own Occupation from any
1 The facts are taken from Plaintiff’s Statement of Uncontroverted Material Facts (Doc.
52), Defendants’ Response (Doc. 61), Defendants’ Statement of Uncontroverted Material Facts
(Doc. 55), Plaintiff’s Response (Doc. 59), and Defendants’ Response to Plaintiff’s Statement of
Additional Uncontroverted Material Facts (Doc. 64).
3
employer in Your Local Economy; and after such period, more than 80% of your
Predisability Earnings from any employer in Your Local Economy at any gainful
occupation for which You are reasonably qualified taking into account your training,
education and experience.
The Plan includes a Limited Disability Benefits provision which limits benefits to a coverage
period of twenty-four months if the beneficiary is disabled due to one of the following
conditions: alcohol; drug or substance addiction; mental or nervous disorders or diseases;
neuromuscular, musculoskeletal or soft tissue disorder with some exceptions; and chronic fatigue
syndrome and related conditions.
The Plan also provides:
If You become Disabled while insured, Proof of Disability must be sent to Us. When We
receive such Proof, We will review the claim. If We approve the claim, We will pay the
Monthly Benefit up to the Maximum Benefit Period shown in the SCHEDULE OF
BENEFITS, subject to the DATE BENEFIT PAYMENTS END section.
To verify that You continue to be Disabled without interruption after Our initial approval,
We may periodically request that You send Us Proof that You continue to be Disabled.
Such Proof may include physical exams, exams by independent medical examiners, in-
home interviewers or functional capacity exams, as needed.
The Plan defines “Proof” as:
Proof means written evidence satisfactory to Us that a person has satisfied the conditions
and requirements for any benefit described in this certificate. When a claim is made for
any benefit described in this certificate, Proof must establish: the nature and extent of the
loss or condition; Our obligation to pay the claim; and the claimant’s right to receive
payment.
Met Life is both the funder of long-term disability benefits and the claim fiduciary with respect
to those benefits.
B. Tucker’s Medical History
In 2009, Tucker was diagnosed with mononucleosis. He began experiencing symptoms
of extreme muscle weakness, fatigue, and an inability to do minimal activities of living. Over
4
the next few years, Tucker continued to experience fatigue and reported so to his primary
physician Dr. Sewing on October 7, 2009, April 18, 2011, and March 1, 2012. On August 21,
2013, Tucker reported to Dr. Sewing:
That he is persistently fatigued. He reports that after walking short distances or activities
with his kids he is fatigued and has to take a nap. He reports that his fatigue symptoms
seem to have been present since he had mono a few years ago.
On July 1, 2015, he reported he was experiencing “[e]xtreme fatigue” and “isn’t sure what is
going on . . . States the symptoms he has currently are like when he had mono. He states he had
mono twice in the past.”
Six months later, on January 13, 2016, Dr. Sewing listed myalgic encephalomyelitis as
one of Tucker’s diagnoses. She later identified this as another name for chronic fatigue
syndrome (“CFS”). She also stated she “[s]uspect[ed] possible chronic fatigue due to pain with
activity, fatigue and recurrent infections.” Three months later, Dr. Sewing’s notes state:
Pt reports feeling sore achy and fatigued all the time. If he performs minimal exertion
such as walking around the block he is sore. It is starting to move into his upper arms. . .
Pt states that all these symptoms started after his second mono.
She listed Tucker’s diagnoses at that visit as: Restless leg syndrome; Bipolar disorder
unspecified; Myalgic encephalomyelitis; Fibromyalgia; History of Epstein-Barr Virus infection;
Insomnia, unspecified; and Right knee pain, unspecified chronicity. She noted, “Suspect may be
chronic fatigue developing after last case of severe mono EBV Ab VCA, IgG>600 on 1/13/16.”
One month later, on May 20, 2016, Dr. Sewing’s notes listed Tucker’s diagnoses
similarly as: Fibromyalgia, Myopathy, Myalgic Encephalomyelitis; history of Epstein-Barr Virus
infection; restless leg syndrome; insomnia, unspecified; bipolar disorder; and low testosterone.
After the diagnosis “History of Epstein-Barr virus infection,” Dr. Sewing noted, “Suspect may be
5
have caused, or be linked to development of myalgic encephalomyelitic developing after last
case of severe mono EBV Ab VCA, IgG>600 on 1/13/16.” On June 22, 2016, Dr. Sewing listed
Tucker’s diagnoses as: Fibromyalgia; bilateral leg weakness; Myopathy; Chronic Fatigue
Syndrome/Hx of Epstein-Barr Virus; Myalgic Encephalomyelitis; and bipolar. She noted Tucker
was not currently taking any medications for bipolar. Tucker informed Met Life his last visit to
his psychiatrist was in June 2016.
On August 31, 2016, a nerve conduction study showed Tucker had no abnormalities.
One month later, Dr. Sewing listed Tucker’s diagnoses as: Fibromyalgia, weakness of both
lower extremities; Chronic Fatigue Syndrome; Myalgia; history of Epstein-Barr virus infection;
Myalgic Encephalomyelitis; and Bipolar Disorder, unspecified. With respect to the bipolar
disorder diagnosis, Dr. Sewing stated, “Currently stable off medications. With previous manic
episode, requiring medications. Current psychiatrist does not believe that he has bipolar but
there was clearly a previous manic episode. Will monitor this closely.” Dr. Sewing’s notes from
November 17, 2016, state:
Post-viral fatigue syndrome/Hx of EBV Infection: Patient her[e] to revisit symptoms.
Here to re-evaluate ongoing debilitating symptoms of post-viral fatigue syndrome after
second Epstein-Barr viral infection (See extremely high titers for proof of infection) . . .
After proven EBV infection, significant symptoms developed. Current symptoms include
excessive fatigue, recurrent sore throat, low energy, easy muscle fatigue, joint aches,
muscle aches, lack of energy, and excessive sleepiness.
She listed Tucker’s diagnoses as: PVFS (Post-Viral Fatigue Syndrome); history Epstein-Barr
Virus infection; and sore throat.
On January 3, 2017, Dr. Sewing’s visit notes state:
Chronic Epstein-Barr virus: Here to f/u on the on-going issues ever[] since EBV infection
and CMV infection – still with persisting symptoms related to the EBV. Pt States that he
was here “back in October” feeling fatigued, sleeping 16 hours a day, and having a soar
6
(sic) throat… Still not able to work. Fibromyalgia: persists. Unchanged.
On May 16, 2017, Tucker reported to Dr. Sewing that he is tired, fatigued, and sore. Dr. Sewing
listed Tucker’s diagnoses as Chronic Epstein-Barr Virus infection, PVFS, and sore throat. She
started Tucker on a trial of Valtrex. For many years, Dr. Sewing could not make an absolute
diagnosis as to the cause of Tucker’s fatigue symptoms. She ruled out testosterone deficiency.
C. Met Life Benefits
Tucker, a staff pharmacist, stopped working on July 8, 2014. He applied for long-term
disability benefits under the Plan and on January 7, 2015, Met Life approved his benefits on the
basis he was suffering from bipolar disorder. His date of disability was determined to be July 8,
2014.
In a letter to Met Life dated April 25, 2016, Dr. Sewing listed Tucker’s diagnoses as “#1)
Chronic fatigue syndrome after significant EBV [Epstein-Barr Virus] infection” and “#2)
Fibromyalgia.” She also stated:
Ryan currently has chronic fatigue syndrome, also known as myalgic encephalomyelitis.
Ryan suffers from extreme muscle weakness, fatigue and inability to do minimal
activities of living. This condition is chronic. He also has lack of focus and
concentration, muscle pain, migrating joint pain, headaches, sore throats, unrefreshing
sleep, extreme exhaustion lasting over 24 hours after minimal physical or emotional
exercise. This disease in and of itself is disabling . . .
In a letter dated May 10, 2016, Met Life notified Tucker of the following:
In reviewing your claim, the medical documentation indicates that you are disabled due
to bipolar disorder, manic and depression, Chronic Fatigue Syndrome. This diagnosis
falls under the Plan’s limited benefit provision of the Plan and has a limitation of 24
months of benefits.
We are currently in the process of evaluating your claim for ongoing eligibility for
benefits and the upcoming change in the definition of Disability as well as for the plan
limit on benefits due to a limited condition . . .
7
Met Life then had Tucker’s medical records reviewed by its Disability Director, Dr. Dupe
Adewunmi, M.D., M.P.H.
Dr. Adewunmi did not perform a physical examination of Tucker. In a report dated May
23, 2016, Dr. Adewunmi noted that Dr. Sewing planned additional testing and referral to a
rheumatologist for a second opinion. Dr. Adewunmi opined that the medical information and a
teleconference with Dr. Sewing supported “precluding him from work till the updated medical
information, additional testing as well as specialist evaluation is completed” and that “[u]pdated
medical information should be reviewed in 8-12 weeks.”
A copy of Dr. Adewunmi’s report was sent to Dr. Sewing, who responded by letter on
November 4, 2016. Dr. Sewing stated:
I am still seeing patient Ryan Tucker. I continue to believe he is unable to do any type of
work, including sedentary work due to his medical conditions. The main condition
preventing him from any type of work, including part-time and including sedentary type
work, is his Chronic Fatigue Syndrome or systemic exertion intolerance disease. It is not
his Fibromyalgia that prevents him from working. After a mono infection and possibly
another viral infection, Ryan Tucker developed Chronic Fatigue Syndrome. As you
pointed out, evaluations have been done and did not detect other neurological conditions.
Based on Up To Date, Mr. Tucker does indeed meet the criteria for Chronic Fatigue
Syndrome or systemic exertion intolerance disease . . .
With her letter, Dr. Sewing included an article from UpToDate. This article stated that while it
was hypothesized that EBV could be responsible for causing CFS, “later observations suggest
that the proposed relation between EBV infection and SEID/CFS is not correct.” After receiving
updated medical records and Dr. Sewing’s response, Dr. Adewunmi updated his report to
conclude that Plaintiff could work part-time, four hours daily, with restrictions, and an
anticipated gradual advancement of work hours.
In the interim, on May 26, 2016, Met Life sent a letter to Tucker stating:
8
Our records show your Disability is due to Bipolar, Depression and Chronic Fatigue
which are conditions that are limited under the Plan as described above. We previously
communicated the Plan limit for benefits due to these types of limited conditions is 24
months. We have applied the limitation from January 7, 2015 to January 12, 2016.
We recently determined that you are now Disabled with Epstein Barr Virus which is a
condition that is not limited under the Plan. Therefore, we will be continuing your
benefits because you satisfy the definition of disability due to this non-limited condition.
We will periodically require that you provide updated information concerning your
disability. Please advise us of any changes that might affect your benefits, such as
improvement in your medical condition(s), a return to work or receipt of other income.
After receiving additional medical records for Tucker, on December 20, 2016, Met Life
informed Tucker that his benefits would be discontinued as of January 7, 2017, based on a
finding that Tucker’s disabling conditions of Post Viral Fatigue, Fibromyalgia, and Bipolar
Disorder fell under the limited benefit provision in the Plan. Tucker appealed Met Life’s
determination letter in accordance with the Plan’s administrative review process by letter dated
May 26, 2017.
With his letter, Tucker submitted medical documentation including results of serologies –
taken on January 15, 2016, and November 25, 2016 – that showed highly elevated levels of VCA
IgG and nuclear antigen IgG, which is consistent with EBV infections. Tucker provided
evidence that his symptoms of chronic fatigue, excessive sleep, limited tolerance to both physical
and mental activity, sore throat, and joint and muscle aches presented themselves after his initial
EBV diagnosis in 2009. However, the only positive mono spot test report provided to Met Life
has an “Order Date” of May 12, 2011, and a “Collection Date” of January 12, 2009. The most
recent mono spot test reported to Met Life is dated July 1, 2015, and was negative. Tucker also
submitted Dr. Sewing’s letter dated April 25, 2016, in which she stated Tucker was unable to
work due to “Chronic Fatigue Syndrome after significant EBV infection” and a medical source
9
statement dated April 21, 2017, from Dr. Sewing that stated Tucker had CFS “secondary to EBV
infection.”
On January 1, 2017, Dr. Adewunmi submitted a second report and concluded Tucker was
not disabled. He stated:
The treating primary care provider indicated multiple diagnoses in her past evaluation
notes. Most recently, the diagnoses indicated are chronic EBV infection with chronic
fatigue and post-viral syndrome. The primary diagnosis supported by the medical
information on file is a history of chronic EBV infection with chronic fatigue. The
multiple EBV lab titers from 1/2016 and 11/2016 showed similar evidence of past EBV
infection with elevated IGG, negative IGM. He had a course of Augmentin in 5/2017 for
pharyngitis. There was no evidence of acute viral infection requiring antivirals. While
his fatigue is noted and appreciated, it is unusual that he reported no improvement after
almost 3 years of past EBV infection. It is also unusual that he reported no improvement
with multiple medication trials including medications usually used to treat severe fatigue
(Modafanil, Vyvance and Ritalin). Refer to the notes by Dr. Sewing for specific clinical
details. Updated records including those from any specialists (e.g. ID specialist as noted
by Dr. Sewing in her 5/2017 note) will be reviewed once available.
On June 19, 2017, Met Life submitted a request for review of Tucker’s medical records by an
independent physician consultant with a specialty in infectious disease. Through a vendor,
Tucker’s medical records were reviewed by Dr. Sara Keiler, M.D., Board Certified in Internal
Medicine with a Sub Specialty Certification in Infectious Disease.
Dr. Keiler spoke with Dr. Sewing and summarized her communications as follows:
Dr. Sewing returned my call 6/22/17 at 5:30 P.M. EST. She reports that she has known
the claimant for many ears and has noted a profound decline in his functional capacity.
She reports that his symptoms began in 2009 at which time she diagnosed him with
mononucleosis. She does not recall his exact presentation at that time. She reports that
in 2014 he had a significant decline. He was diagnosed with bipolar disease during that
time period after having a manic episode. She does not feel that bipolar is still playing a
role in his current state, and reports he is no longer being treated for it. His symptoms
have included severe fatigue despite excess sleep, limited tolerance for both physical and
mental activity, sore throat, and joint/muscle aches. He has undergone an extensive
workup which has been negative, and has seen both rheumatology and infectious disease
consultants. Objectively, she denies that claimant had abnormal exam findings with the
exception of intermittent shotty cervical lymphadenopathy. She is unaware of any
10
cognitive deficits that he has developed during this time period. She does not feel he is
malingering and believes that he wants to work but is unable to due to severe exhaustion.
He reportedly can only play with his children for 30 minutes to an hour at a time before
he needs to rest and she does not believe he would be able to find employment that would
support such frequent and prolonged breaks.
Dr. Keiler’s report noted that Tucker’s monospot tests, including his negative monospot
test in July 2015, as well as his EBV serologies, were “most consistent with prior, not active
EBV infection.” She also stated “his other labs have been normal, without hematologic or
hepatic abnormalities, and he has not had ongoing fever to suggest a chronic infectious illness.”
She believed “this clinical picture is consistent with prior infection without any evidence of
ongoing chronic infection.” Dr. Keiler did not conduct a physical examination of Tucker. Dr.
Keiler also reported:
While the claimant did have a reported illness in 2009 that preceded his symptoms at
which time his heterophils antibodies (mono spot) were positive, it is very difficult to
prove that this illness was the cause of his current and ongoing constellation of
symptoms, and very well may have been unrelated. While there has been data suggested
a relationship between EBV and CFS in the past, there is not strong evidence to prove
causation and the link is somewhat controversial. (See UpToDate online section on
Chronic Fatigue Syndrome).
The article to which Dr. Keiler cited, the same one cited by Dr. Sewing previously, stated,
“However, later observations suggest that the proposed relation between EBV infection and
SEID/CFS is not correct. The virologic profiles of patients with SEID/CFS are non-specific . . .
In addition, most cases of SEID/CFS either evolve insidiously or follow influenza-like or
gastroenteric-type illnesses rather than mononucleosis.” This article described CFS as an
independent and separate condition from EBV even though they both can result in symptoms of
fatigue that are ongoing or chronic in nature.
In preparing her report, Dr. Keiler also spoke with Dr. Surah Nellore. In an office visit
11
note from May 16, 2017, Dr. Sewing stated Tucker was “seen by ID [Infectious Disease] for
another verifying opinion regarding his ongoing disability as well can consider occupational
therapy . . .” Tucker identified the infectious disease specialist, whom he saw once, as Dr.
Nellore. Dr. Keiler summarized her communication with Dr. Nellore as follows:
Dr. Nellore returned my call 6/22/17 at 3:20 P.M. He recalls having seen the claimant
recently. He communicated to me that he does not feel that the claimant’s symptoms are
clearly related to chronic EBV infection. He does not recommend continuation of the
Valtrex as this is unlikely to have any effect. He did suggest a muscle biopsy for further
diagnosis if the claimant’s symptoms of muscle weakness persists.
After summarizing the information she gathered, Dr. Keiler concluded in her report that
the “medical information supports functional imitations due to a physical condition or
combination of physical conditions as of 1/7/2017.” She also stated Tucker “does likely meet
CDC criteria for chronic fatigue syndrome based on the presence” of post-exertional malaise
lasting greater than 24 hours, sore throat, muscle pain, and waking unrefreshed. Met Life faxed
Dr. Keiler’s report to Dr. Sewing and Dr. Nellore and asked for their comments. Met Life also
informed Tucker that the report had been sent to Dr. Sewing and Dr. Nellore for their responses.
Dr. Nellore did not respond. Dr. Sewing responded with a letter dated July 10, 2017. Dr.
Sewing did not agree that Tucker could work part-time. She stated:
As a treating physician, I feel you are better able to evaluate and make accurate
recommendations related to what a patient may or may not be able to perform. Clearly,
he did have mono/Epstein-Barr infection. He had this two times based on the mono sport
[sic] testing and you have these records. Before these infections, the patient was working
and able to function in a full-time capacity. After he had the Epstein-Barr infection, he
deteriorated. While an exact time or an exact infection as a cause cannot be proved, it
cannot be disproved either. I continue to believe that Mr. Tucker cannot work.
On August 1, 2017, Met Life affirmed its termination of Tucker’s benefits under the
limited benefit provision, relying on Dr. Keiler’s report to do so. In its letter to Tucker, Met Life
12
stated:
We acknowledge and considered your report you are unable to work due to EBV. We do
not dispute you are unable to work full-time due to your symptoms. However, we
determined the cause of your impairments is Chronic Fatigue Syndrome. Although there
is data suggesting a relationship between EBV and CFS in the past, there is no strong
evidence to prove causation and the link is somewhat controversial. In addition, there is
no clinical evidence of an active infection process. Although the clinical evidence
documents CFS this condition is limited by the plan . . .
In conclusion, upon completion of a thorough review of all the information contained in
your claim file, taking into consideration the [Independent Physician Consultant (“IPC”)]
findings, it was determined that the clinical evidence supported limitations due to CFS
which is a limited condition. The clinical evidence did not support an active infection
process [for Epstein-Barr Virus (“EBV”)]. Therefore, your disability is limited to a 24
month [sic] period and you received the maximum benefits allowed under your Plan and
the decision to terminate benefits as of January 7, 2017 was appropriate.
III. Analysis
In Count I, Tucker asserts a claim for LTD benefits pursuant to ERISA § 502(a)(1)(B),
29 U.S.C. § 1132(a)(1)(B). Tucker alleges that Defendants wrongfully denied him benefits when
Met Life denied Tucker’s claim for long term disability beyond twenty-four months. He claims
he is covered under the Plan because he is disabled due to EBV and EBV is not a limited benefits
condition. Both parties have moved for summary judgment on Count I. In their briefs, the
parties disagree on the appropriate standard of review, who has the burden of proof, what
evidence the Court may consider, and whether Met Life abused its discretion in limiting
Tucker’s benefits.
A. Standard of Review
ERISA allows a plan participant or beneficiary to file a civil action “to recover benefits
due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to
clarify his rights to future benefits under the terms of the plan[.]” 29 U.S.C. § 1132(a)(1)(B).
13
Courts review a denial of benefits under an ERISA plan de novo unless the plan gives the
administrator or fiduciary discretion to determine eligibility for benefits, in which case an abuse
of discretion standard of review is used. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 111 (2008);
Waldoch v. Medtronic, Inc., 757 F.3d 822, 829 (8th Cir. 2014). Here, the Plan expressly grants
Met Life “discretionary authority to interpret the terms of the Plan and to determine eligibility
for and entitlement to Plan benefits in accordance with the terms of the Plan.” Therefore, the
applicable standard of review is abuse of discretion. Glenn, 554 U.S. at 111.
Tucker argues a modified abuse of discretion standard applies under McIntyre v. Reliance
Standard Life Insurance Co., 972 F.3d 955 (8th Cir. 2020), because there is a conflict of interest
and procedural irregularities. Under the “modified abuse of discretion standard,” a court reviews
“the benefits denial for an abuse of discretion but requir[es] the administrator to support its
decision with ‘substantial evidence bordering on a preponderance’ rather than merely
‘substantial evidence.’” Id. at 960 (quoting Woo v. Deluxe Corp., 144 F.3d 1157, 1160 (8th Cir.
1998), abrogated in part by Glenn, 554 U.S. 105 (2008)). Before Glenn, courts applied the
modified abuse of discretion standard when “the administrator faces a ‘palpable conflict of
interest’ or a ‘serious procedural irregularity’ arose in the review process, and [] the conflict or
the procedural irregularity ‘caused a serious breach of the plan administrator’s fiduciary duty’ to
the claimant.” Id. at 959 (quoting Woo, 144 F.3d at 1160). However, in Glenn, the Supreme
Court abrogated the conflict-of-interest component and held that a conflict of interest is just one
factor to be weighed in determining if there is an abuse of discretion. 554 U.S. at 115. The
Eighth Circuit has not yet decided if Glenn also abrogated the procedural irregularity component.
McIntyre, 972 F.3d at 959. It did make clear, however, that if the procedural-irregularities
14
component did survive Glenn, it only applies “if the district court determines the procedural
irregularities [] are ‘egregious.’” Id. at 963, n.3 (quoting Woo, 144 F.3d at 1162).
To establish an egregious procedural irregularity, a “claimant must offer evidence that
gives rise to serious doubts as to whether the result reached was the product of an arbitrary
decision or the plan administrator’s whim[.]” Hillery v. Metro. Life Ins. Co., 453 F.3d 1087,
1090 (8th Cir. 2006). The alleged procedural irregularities “must be so egregious that it might
create a ‘total lack of faith in the integrity of the decision making process.’” Id. (quoting Layes
v. Mead Corp., 132 F.3d 1246, 1251 (8th Cir. 1998). Tucker asserts there are numerous
egregious procedural irregularities in the record including that Met Life ignored information in
Dr. Keiler’s report and put its own financial interests first, Met Life did not investigate the link
between chronic EBV infections and CFS-like symptoms, and Dr. Sewing and Dr. Keiler relied
on the same article in their reports but came to different opinions about Tucker’s diagnoses.
Tucker does not indicate what information Met Life ignored in Dr. Keiler’s report, or
how ignoring this information creates an egregious procedural irregularity. Nor does he provide
any evidence to support his contention that Met Life put its financial interests first in making its
determination. Tucker’s assertion Met Life’s failure to investigate the link between chronic EBV
infections and CFS-like symptoms also does not create a procedural irregularity because it
assumes Met Life has a duty to investigate, but he provides no support for this assumption. In
fact, as the Court will discuss below, Tucker has the burden of proof to show he is disabled and
entitled to benefits under the Plan. Met Life has no burden to disprove a link between chronic
EBV infections and CFS-like symptoms when Tucker himself has not shown there is such a link.
15
Finally, Dr. Sewing and Dr. Keiler relying on the same article but coming to different
conclusions about Tucker’s diagnoses also does not reflect a procedural irregularity. It reflects a
difference of opinion between two medical professionals. Met Life had no obligation to credit
Dr. Sewing’s opinion over Dr. Keiler’s. See Midgett v. Wash. Group Intern. Long Term
Disability Plan, 561 F.3d 887, 897 (8th Cir. 2009) (“The Supreme Court has recognized that
treating physicians are not automatically entitled to special weight in disability determinations
under ERISA[.]”). Furthermore, “[w]hen there is a conflict of opinion between a claimant’s
treating physicians and the plan administrator’s reviewing physicians, the plan administrator has
discretion to deny benefits unless the record does not support denial.” Johnson v. Metro. Life.
Ins. Co., 437 F.3d 809, 814 (8th Cir. 2006).
Tucker has not shown the denial of benefits was the product of an arbitrary decision or
the plan administrator’s whim, or that a procedural irregularity created a total lack of faith in the
integrity of the decision making process. Thus, he has not established an egregious procedural
irregularity exists in this case. Because there is no procedural irregularity, the modified abuse of
discretion standard does not apply.
Under the non-modified abuse of discretion standard applicable in this case, the Court
reverses the plan administrator’s decision only if it is arbitrary and capricious. Midgett, 561 F.3d
at 896. “An administrator’s decision is upheld if it is reasonable, that is, supported by substantial
evidence,” meaning “more than a scintilla but less than a preponderance.” Darvell v. Life Ins.
Co. of N. Am., 597 F.3d 929, 934 (8th Cir. 2010). “If substantial evidence supports the decision,
it should not be disturbed even if a different, reasonable interpretation could have been made.”
Roebuck v. USAble Life, 992 F.3d 732, 740 (8th Cir. 2021) (quoted case omitted). Ultimately,
16
the reviewing court “must affirm if ‘a reasonable person could have reached a similar decision,
given the evidence before him, not that a reasonable person would have reached that decision.”
Sahulka v. Lucent Techs., Inc., 206 F.3d 763, 769 (8th Cir. 2000) (quoted case omitted)
(emphasis in original).
As for the conflict of interest inherent in this case because Met Life is both the
administrator of the policy and the claim evaluator, the Court will consider it as one of several
factors in the abuse of discretion analysis. Roebuck, 992 F.3d at 737. What weight to give this
conflict of interest depends on the facts of the case. Id. Greater weight is given when “(1) the
insurer’s claims review process was tainted by bias; (2) the medical professionals reviewing the
claim were employed by the insurer; (3) the medical professionals reviewing the claim had their
compensation tied to their findings; or (4) the insurer acted as little more than a rubberstamp for
favorable medical opinions.” Id. (internal quotes omitted). “[W]hen the medical record contains
no evidence about the plan administrator’s claims administration history or its efforts to ensure
that claims assessment is not affected by the conflict, the court only gives the conflict some
weight.” Id. (quoted case omitted).
B. Burden of Proof
The parties disagree as to who has the burden of proof. Tucker asserts Met Life has the
burden to show he is not disabled because the limitation provision is an exclusion and Met Life
has the burden of proving an exclusion applies. Met Life argues the limitation is not an
exclusion, thus, the burden remains with Tucker to prove he is disabled and the limitations
provision does not apply to his disability.
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“Because ERISA allows a beneficiary to sue ‘to recover benefits due to him under the
terms of his plan,’ a plan may place the burden of proving eligibility on the beneficiary.”
Johnston v. Prudential ins. Co. of Am., 916 F.3d 712, 715 (8th Cir. 2019). Here, the Plan
requires Tucker to submit proof of his disability. Doc. 23, pg. 34. Thus, Tucker bears the
burden of proving he is eligible. However, if Met Life is claiming an exclusion applies, then Met
Life has the burden of proving the exclusion. Nichols v. Unicare Life & Health Ins. Co., 739
F.3d 1176, 1184 (8th Cir. 2014).
Met Life ended Tucker’s disability benefits under the “Limited Disability Benefits”
clause of the plan. Doc. 23, pg. 43. This provision limits a claimant’s disability benefits to 24
months if the claimant has one of the listed conditions which includes “Chronic fatigue
syndrome and related conditions.” Id. This clause is separate from the “Exclusions” clause.
Under the “Exclusions” clause, Met Life will not pay benefits to a claimant who has a disability
caused by war, participation in a riot, intentionally self-inflicted injury, attempted suicide while
sane, or commission or attempt to commit or take part in a felony. Id. at 45. Because the
limitations clause is separate from the exclusions clause, the limitations clause is not an
exclusion and Met Life does not have the burden of proof. The burden remains with Tucker who
must show that he is entitled to benefits and his disability does not qualify as one of the
conditions listed in the limitations clause.
C. Evidence the Court May Consider
In response to Defendants’ Statement of Material Facts, Tucker submitted “Additional
Uncontroverted Material Facts” for the Court to consider. These facts are as follows:
18
EBV is [] one of the most common viruses affecting humans. Most people carry the
virus in their body in a dormant state. Many people develop infectious mononucleosis
when they are first exposed to and/or contract the virus. Following the illness, the virus
remains in the body in a dormant state. A very rare few people suffer from a recurring
and/or chronic EBV infection, which results in multiple courses of infectious
mononucleosis and can result in ongoing fatigue systems even when the individual is not
suffering an active EBV infection. CFS is [a] complex and often misunderstood
condition. The term CFS was first coined in the late 1980’s by the CDC to develop a
research case definition for the illness, which, at the time, was called chronic Epstein-
Barr virus syndrome. The name CFS was suggested because of the characteristic
persistent fatigue experienced by all those affected, and the evidence that acute or
reactivated Epstein-Barr virus infection was not associated with many cases. There is no
confirmatory test to confirm a diagnosis of CFS and any diagnosis is based rather on a
progression of symptoms and an elimination of other fatigue causing conditions. CFS is
an independent and separate condition from EBV though they both can result in
symptoms of fatigue that are ongoing or chronic in nature. According to the CDC, the
only way to “diagnose” an individual with CFS is through a “thorough medical history,
and physical examination.” Dr. Adeunmi (sic) agreed that the primary diagnosis keeping
Mr. Tucker out of work was a history of chronic EBV infection. Dr. Keiler’s report does
not eliminate EBV as the cause of Mr. Tucker’s CFS symptoms. Dr. Keiler [n]ever
performed a physical evaluation of Mr. Tucker. CFS is often confused for other
conditions.
Defendants object to the introduction of these facts because they were not included in the
Administrative Record.
It is well established that a court reviewing an ERISA determination under the abuse of
discretion standard is limited to the administrative record, with few exceptions. Waldoch v.
Medtronic, Inc., 757 F.3d 822, 829-830 (8th Cir. 2014). Tucker argues the Eighth Circuit has
found it appropriate to reference and cite public medical sources in order to provide context for a
decision. He cites two cases in support: Barnhart v. UNUM Life Ins. Co. of Am., 179 F.3d 583,
585-86 nn.4-7 (8th Cir. 1999) and Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 299 (5th Cir.
1999). Neither of these cases support the broad application Tucker proposes. In Barnhart, the
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Eighth Circuit cited to Stedman’s Medical Dictionary to explain medical terms. For example,
they included in a footnote, “Radiculopathy is a disorder of the spinal nerve roots.” 179 F.3d at
586, n.5. In contrast, Tucker seeks to introduce facts outside the administrative record to support
his claim for benefits, not simply to explain a medical term.
In Vega, the Fifth Circuit confirmed the general rule that the district court is limited to
review of the administrative record with limited exceptions which includes explaining medical
terms and procedures relating to the claim. 188 F.3d at 299. It further stated, “evidence,
including expert opinion, that assists the district court in understanding the medical terminology
or practice related to a claim would be equally admissible.” Id. “However, the district court is
precluded from receiving evidence to resolve disputed material facts – i.e., a fact the
administrator relied on to resolve the merits of the claim itself.” Id. The evidence Tucker seeks
to introduce is to resolve a disputed material fact – whether Tucker’s symptoms arise from CFS
or chronic EBV infection. Consequently, the Court cannot consider the proposed facts taken
from the CDC and National Institute of Health in its review of Met Life’s decision because they
were not included in the administrative record. The Court will consider the additional facts that
are drawn from the administrative record.
D. Abuse of Discretion Analysis
The Court now turns to the ultimate issue in this case, whether Met Life abused its
discretion when it limited Tucker’s benefits to 24 months. Applying the abuse of discretion
standard, the Court finds that, based on the administrative record before Met Life, there was
more than a scintilla of evidence supporting Met Life’s decision. The decision was supported by
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substantial evidence, and “a reasonable person could have reached a similar decision[.]” Green
v. Union Sec. Ins. Co., 646 F.3d at 1042, 1050 (8th Cir. 2011).
Evidence in the administrative record establishes Tucker suffered from CFS. Beginning
in 2016, Dr. Sewing lists CFS, or myalgic encephalomyelitis, another name for CFS, as one of
Tucker’s diagnoses. While she also lists chronic EBV infection, neither she nor Tucker provide
evidence of an active infection, only of prior infections. At times in her notes, she suspects
Tucker may have developed CFS after contracting mono. But she never provides any support for
this beyond one citation to the UpToDate article which stated that while it was hypothesized
EBV could be responsible for causing CFS, “later observations suggest that the proposed relation
between EBV infection and SEID/CFS is not correct.” In a letter to Met Life, dated April 25,
2016, Dr. Sewing stated, “Ryan currently has chronic fatigue syndrome.”
Dr. Adewunmi found “[t]he primary diagnosis supported by the medical information on
file is a history of chronic EBV infection with chronic fatigue.” However, he also concluded it
was unusual that Tucker had reported no improvement almost three years after his EBV
infection. He also believed Tucker was not disabled. Dr. Keiler, after reviewing Tucker’s
medical records and speaking with Dr. Sewing and Dr. Nellore, reported that Tucker’s EBV
serologies were “consistent with prior, not active EBV infection” and that the “clinical picture is
consistent with prior infection without any evidence of ongoing chronic infection.” When Dr.
Keiler spoke with Dr. Nellore, he agreed with Dr. Keiler that Tucker’s symptoms are not clearly
related to chronic EBV infection. Dr. Keiler found Tucker meets the CDC criteria for chronic
fatigue syndrome.
21
While there is some evidence in the record from Dr. Sewing that Tucker suffers from
chronic EBV infection, there is also evidence he suffers from CFS. Because Met Life’s decision
is supported by a reasonable explanation, the arbitrary and capricious standard does not allow the
Court to disturb that decision merely because “a different reasonable interpretation could have
been made.” Schatz v. Mut. of Omaha Ins. Co., 220 F.3d 944, 949 (8th Cir. 2000).
The inherent conflict of interest in this case, because Met Life both evaluates and pays
the claims, does not change the Court’s decision. There is no evidence of biased claims
administration on the part of Met Life. Manning v. Am. Republic Ins. Co., 604 F.3d 1030, 1039
(8th Cir. 2010). There is some evidence Met Life tried to reduce the risk of biased claims
administration in this case by hiring Dr. Keiler to review Tucker’s records. Dr. Keiler is an
independent physician consultant who was hired through a vendor. There is no evidence her
compensation was tied to her findings or that Met Life “acted as little more than rubberstamp for
favorable medical opinions.” Roebuck, 992 F.3d at 737. For these reasons, the Court gives the
conflict only some weight in its analysis.
Tucker also argues Met Life unreasonably interpreted the Plan. He asserts the Plan only
limits benefits to 24 months if the claimant is “disabled due to” one of the listed conditions, not
if the disabling condition is one of several conditions the beneficiary is suffering from or if the
stated condition is caused by another condition. In his case, Tucker argues his CFS is caused by
chronic EBV infection, therefore, the limitation should not have applied.
22
When reviewing if an administrator’s plan interpretation constitutes an abuse of
discretion, the Court considers the Finley2 factors which include whether: “(1) the
administrator’s interpretation is consistent with the Policy’s goals; (2) the administrator’s
interpretation renders any of the Policy’s language meaningless or internally inconsistent; (3) the
administrator’s interpretation conflicts with the substantive or procedural requirements of the
ERISA statute; (4) the administrator has interpreted the relevant terms consistently; and (5) the
interpretation contradicts the Policy’s clear language.” Roebuck, 992 F.3d at 739 (cleaned up)
(quoted case omitted). When an administrator evaluates facts to determine the plan’s application
to a particular case, the Court reviews the administrator’s decisions under the substantial
evidence standard, as the Court did here. Boyer v. Schneider Elec. Holdings, Inc., 993 F.3d 578,
581 (8th Cir. 2021). The crux of Tucker’s argument is that Met Life erred in determining he was
disabled due to CFS, not that it interpreted the terms of the Plan incorrectly. For this reason, the
Court applies the substantial evidence standard rather than the Finley factors. Under the
substantial evidence standard, it is not unreasonable for Met Life to have concluded Tucker was
disabled due to CFS, not chronic EBV infection or as a result of chronic EBV infection.
IV. Conclusion
Accordingly,
IT IS HEREBY ORDERED that Plaintiff Ryan Tucker’s Motion for Summary
Judgment (Doc. 50) is DENIED.
IT IS FURTHER ORDERED that Defendants Express Scripts Health and Welfare
Benefits Plan, Metropolitan Life Insurance Company, Express Scripts, Inc.’s Motion for
2 Finley v. Special Agents Mut. Benefit Ass’n, Inc., 957 F.2d 617, 621 (8th Cir. 1992).
23
Summary Judgment on Count I of Plaintiff’s Complaint (Doc. 53) is GRANTED and this matter
is DISMISSED, with prejudice.
A separate judgment will accompany this Memorandum and Order.
Dated this 25th day of March, 2022.
/s/ Noelle C. Collins
NOELLE C. COLLINS
UNITED STATES MAGISTRATE JUDGE
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