Whetstone v. United of Omaha Life Insurance Company

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

LARRY WHETSTONE

Case No. 2:20-cv-3756

Plaintiff, JUDGE EDMUND A. SARGUS, JR.

Chief Magistrate Judge Elizabeth P. Deavers

v.

UNITED OF OMAHA LIFE INSURANCE

COMPANY,

Defendant.

OPINION AND ORDER

This matter arises on the parties’ cross-motions for judgment on the administrative record.

(ECF Nos. 13, 14.) The parties’ dispute, in short, centers on whether Defendant United of Omaha

Life Insurance Company (“United”) arbitrarily and capriciously denied Plaintiff Larry Whetstone

(“Whetstone”) long-term disability benefits under the Employee Retirement Income Security Act

of 1974 (“ERISA”), 29 U.S.C § 1001, et seq. The Court finds that it did. Accordingly, for the

reasons stated herein, the Court GRANTS Whetstone’s Motion for Judgment on the

Administrative Record (ECF No. 14) and DENIES United’s Motion for Judgment on the

Administrative Record (ECF No. 13).

I. BACKGROUND

From 2012 to 2018, Whetstone, a fifty-eight-year-old Pennsylvania native, worked as a

truck driver for Fraley & Schilling, Inc. (“F&S”), a transportation company. (R. at 234.)

Generally, this position required him to drive large, eighteen-wheel tractor trailers containing

heavy materials around the country. (R at 230, 339.) In so doing, Whetstone was to follow “all

federal regulations and company safety standards” related to his job. (R. at 230.)

As an F&S employee, Whetstone participated in an ERISA-qualified benefit plan (the

“Plan”) administered by United. The Plan contained two separate disability benefit policies: a

short-term disability benefit policy, Policy No. GLLP-B9GX (the “STD Policy”), and a long-term

disability benefit policy, Policy No. GUPR-B9GX (the “LTD Policy”). (R. at 15, 260.) These

policies largely mirrored one another. Both, for starters, obligated United to pay benefits to

claimants that it found to be “Disabled.”1 (R. at 1, 27, 246, 275.) They also defined the term

“Disability” similarly. Under the LTD Policy, a claimant qualified as “Disabled” if (1) “an Injury

or Sickness” changed his or her “mental or physical functional capacity” so significantly that it (2)

“prevented [him or her] from performing at least one of the Material Duties of [his or her] Regular

Occupation (on a part-time or full-time basis)” beyond a specific “Elimination Period,” and,

accordingly, (3) rendered the claimant “unable to generate Current Earnings which exceed[ed]

99% of [his or her] Basic Weekly Earnings.” (R. at 280.) The STD Policy effectively contained

the same disability definition, save for the fact that it required claimants to be unable to perform

at least one of the “Material Duties” of their “Regular Job”—not their “Regular Occupation.”2 (R.

at 32.)

Whetstone’s short- and long-term disability policies shared other commonalities. Both

recognized mental impairments as a potential cause of disability, although the LTD Policy—unlike

the STD Policy—only recognized conditions or disorders “listed in the most recent edition of the

1 STD benefits were available for a maximum of twenty-six weeks, while LTD benefits were to be paid monthly for

two years, after which United would reevaluate the claimant’s eligibility under a “total disability” standard. (R. at

280.) As discussed below, this reevaluation did not apply to claimants with a “Mental Disorder,” whose benefits were

capped at twenty-four months unless their condition “confined [them] as a resident inpatient in a Hospital,” in which

case United would continue to pay benefits. (Id.)

2 Under the LTD Policy, a claimant’s “Regular Occupation” was defined as the occupation they “routinely performed”

when his or her disability began “based on job descriptions included in the most current edition of the U.S. Department

of Labor Dictionary or Occupational Titles (DOT)” or by “another service or other information” that United believed

was “of [a] comparable purpose.” (R. at 283.) By contrast, under the STD Policy, a claimant’s “Regular Job”

constituted the occupation he or she “routinely performed” when his or her disability arose. (R. at 34.)

International Classification of Diseases (ICD) and the Diagnostic and Statistical Manual of Mental

Disorders (DSM).” (R. at 282.) Both policies also afforded United the discretion to (1) “construe

and interpret” their provisions and (2) “decide all questions of eligibility and all questions

regarding the amount” of benefits to be paid. (R. at 28, 276.) Neither, however, obligated

claimants to provide a specific type of proof of impairment. (R. at 27-28, 275-76.) Instead, United

reserved the right to “require” claimants to provide “supporting information which may include,

but [was] not limited to . . . a) clinical records; b) charts; c) x-rays; d) Proof of Earnings; and e)

other diagnostic aids.” (R. at 28, 276.) It also held the power to have claimants under either policy

examined by a physician or “vocational rehabilitation expert” of its choosing. (R. at 27, 275.)

However United chose to proceed on a given claim, it reserved the ability to “rely on the accuracy

and completeness of any information furnished by the Policyholder, [the claimant], or any other

third party” to render its benefits decisions. (R. at 28, 276.)

A. The Motor Vehicle Accident

On April 27, 2018, a bus careened into Whetstone’s truck as he exited a turnpike in

Allegheny County, Pennsylvania (the “Motor Vehicle Accident” or “MVA”). (R. at 490, 545.)

Whetstone suffered no external injuries but was “shaken up” to the point of experiencing an

increased heart rate, chest pains, shock, and numbness. (R. at 545, 557, 797.) Given his symptoms

and pre-existing bout with hypertension, Whetstone sought to have his blood pressure checked.

(R. at 557, 797.) Thus, he drove to the Trinity Health System Express Care Center (the “Trinity

Care Center”) in Steubenville, Ohio. (R. at 545.) There, testing revealed a normal pulse, as well

as a blood pressure reading of 132/72. (R. at 548.) Whetstone’s treating physician described his

condition overall as “good,” but cautioned that he may feel “achy, stiff and tight” in the days to

follow. (R. at 546, 549.) Accordingly, he recommended Whetstone to consult his primary care

physician if any particular symptom worsened. (Id.)

B. Whetstone’s Anxiety Symptoms Arise

1. Dr. Hess

Two days after the MVA, Whetstone suffered an accident-related nightmare that awoke

him in the night. (R. at 797.) He suffered another nightmare the next day during a nap. (Id.) The

recurrence of these events drove Whetstone to meet with his primary care physician, Dr. Kenton

Hess, MD, on May 1, 2018. (Id.) Amidst this consultation, Whetstone relayed the events of the

MVA and the physiological symptoms he felt in its wake—which, outside of insomnia, included

a loss of appetite and difficulty concentrating. (Id.) Dr. Hess administered a depression screening

(a “PHQ-2”), which asked Whetstone whether he felt “[l]ittle interest or pleasure in doing things”

or “down, depressed, or hopeless” within the previous two weeks. Whetstone answered both

questions in the affirmative. (Id.) Whetstone’s vitals revealed a Body Mass Index of 28.38 and

blood pressure reading of 137/93, tracking with his history of hypertension and hyperlipidemia.

(R. at 797-98.) A general examination revealed no immediate physical or psychological

abnormalities (i.e., delusions or non-linear thought processing). (Id.)

Ultimately, Dr. Hess deemed Whetstone’s symptoms to stem from an “[a]cute stress

disorder – F43.0,” which he noted were common for those who experience traumatic events. (R.

at 798.) He advised that this diagnosis would shift to posttraumatic stress disorder (“PTSD”) if

Whetstone’s symptoms persisted beyond four weeks, at which point he counseled Whetstone to

consider medication. (Id.) In the short term, Dr. Hess referred Whetstone for cognitive behavioral

therapy, and scheduled a follow-up appointment with him in four weeks. (Id.)

2. Whetstone’s Workers Compensation Claim

After consulting Dr. Hess, Whetstone did not return to work. (R. at 235.) Shortly

thereafter, he applied to the Pennsylvania Bureau of Workers’ Compensation (the “Bureau”) for

workers’ compensation. (R. at 218.) On May 15, 2018, the Bureau denied his claim. (R. at 217-

18.) It offered no explanation for its decision other than its position that Whetstone had not

suffered a “work-related injury.” (Id.) Whetstone appealed, and, ultimately, reported obtaining a

settlement. (R. at 43.)

3. Therapist Feragotti

On May 14, 2018, Whetstone conducted an initial consultation with therapist Robert

Feragotti, MS, LPC, NCC (“Therapist Feragotti” or “Feragotti”). (R. at 210.) In documenting

Whetstone’s rationale for seeking treatment, Feragotti noted the following:

Client was involved in a motor vehicle accident while at work and involving his

tractor trailer truck. Since the accident, the client has experienced insomnia,

increased anxiety, irritability, decreased mood, and fear of driving his tractor trailer

truck. Client would like to resolve his symptoms and return to employment.

(R. at 553.) Within this consultation, Therapist Feragotti administered a “Mental Status Exam,”

which found Whetstone to exhibit signs of depression and anxiety. (R. at 555.) These

observations, in tandem with Whetstone’s other ailments (e.g., hypertension), led Feragotti to

assess Whetstone with a Global Assessment of Functioning (“GAF”) score of fifty-five, which

indicated “moderate signs of impairment.” (R. at 524, 553.) Ultimately, Feragotti—like Dr.

Hess—concluded that Whetstone suffered from an “acute stress” disorder that rendered him

“unable to drive a tractor trailer truck.” (R. at 553.) To alleviate this condition, the two agreed to

formulate a treatment plan that would allow Whetstone to return to work and manage his financial

stress. (R. at 556.) They resolved to meet weekly until those goals were met.

4. Whetstone’s Second Consultation with Dr. Hess

On May 17, 2018, Whetstone followed up with Dr. Hess, who administered another PHQ-

2—which, this time, was negative for depression. (R. at 441.) Whetstone remarked that his initial

therapy session was “helpful,” and reported a slight improvement in his sleep quality. (R. at 441.)

He added, however, that he continued to struggle with nightmares and bouts of insomnia. (Id.)

Simultaneously, Whetstone reported feeling “hyperaware” and “more irritable” while driving, so

much so that it detracted from his ability to concentrate on the road. (Id.)

Notwithstanding these struggles, Whetstone reaffirmed his intention to return to work.

(Id.) In the meantime, however, he sought to apply to United for STD benefits. To support his

application, Dr. Hess completed an “Attending Physician Statement” (“APS”) which declared that

Whetstone (1) suffered from an acute stress disorder that rendered him “unable to drive/operate

vehicle/machinery” for work; (2) had begun cognitive behavioral therapy; and (3) had been

separately referred to a psychiatrist. (R. at 329-30.) It also estimated that Whetstone would be

able to return to work full-time within one-to-three months. (Id.)

C. Whetstone Applies for STD Benefits

On May 18, 2018, Whetstone applied for STD benefits. (R. at 235.) Throughout the

ensuing month, Whetstone met with Therapist Feragotti four times. (R. at 557-60.) Within these

sessions, Whetstone reported experiencing insomnia, fatigue, headaches, lessened appetite,

elevated blood pressure, confusion, and poor concentration. (R. at 557.) He also described

suffering a mounting aversion to driving, particularly in heavier cars that reminded him of a truck.

(R. at 558.) This avoidance, Whetstone noted, was the result of various “unanticipated and highly

uncomfortable physiological response[s]” suffered behind the wheel. (Id.) At one point, for

instance, Whetstone described how the mere act of driving his mother’s Jeep threw his breathing

off and caused his heart rate to spike. (Id.) In another session, he described having to pull over to

engage in various therapeutic exercises after another driver cut him off on a one-and-a-half-mile

route home. (R. at 560.)

On May 29, 2018, Therapist Feragotti changed Whetstone’s diagnosis from an “acute stress

response” to PTSD, citing the fact that Whetstone’s symptoms had not resolved within the last

thirty days. (R. at 558.)

1. Dr. Tripp

On June 12, 2018, Whetstone met with Dr. Adam Tripp, a psychiatrist, for the first time.

(R. at 772.) Whetstone conveyed feeling “up and down” over the past month, and reported

suffering from nightmares, flashbacks, feelings of avoidance, and occasional bouts of

“derealization.” (Id.) Dr. Tripp performed a “Mental Status Exam,” which, on the whole, yielded

normal results, but noted some deficiencies in Whetstone’s concentration and recall abilities. (R.

at 773.)

Ultimately, Dr. Tripp assigned Whetstone a GAF score of forty-five, and diagnosed him

with three different conditions: a recurrent major depressive disorder (“MDD”), a generalized

anxiety disorder (“GAD”), and an acute stress disorder. (R. at 773-74.) Dr. Tripp opined that the

latter diagnosis was “directly caused” by the MVA. (R. at 773.) To treat Whetstone’s symptoms,

Dr. Tripp prescribed fifty milligrams of Trazodone and twenty-five milligrams of Zoloft. (R. at

774.)

D. United Approves Whetstone’s STD Benefits

On June 19, 2018, Whetstone, at Therapist Feragotti’s direction, completed a “PCL-5”

checklist to gauge the presence and severity of his anxiety symptoms. (R. at 561.) He scored a

48/80, which suggested that he could benefit from PTSD treatment. (Id.)

That same day, United approved Whetstone’s STD benefit application. (R. at 181.) In

rendering its approval, United estimated that Whetstone’s anxiety condition would subside by June

13, 2018. (Id.) Thus, it retroactively awarded Whetstone STD benefits from May 10, 2018 (the

end of Whetstone’s “Elimination Period”) until then. (Id.) In the event Whetstone believed his

disability extended beyond June 13, United advised that he could apply for an extension, and that,

to do so, he would need to have his providers submit updated medical records for its review. (Id.)

E. United Extends Whetstone’s STD Benefits Several Times

Between June 19, 2018 to October 19, 2018, United extended Whetstone’s STD benefits

at least four times. (R. at 66, 108, 141, 163.) Throughout that period, Whetstone saw Therapist

Feragotti weekly, Dr. Tripp monthly, and Dr. Hess intermittently. The records of all three reflect

that, at the outset of this period, Whetstone’s anxiety symptoms slightly improved, then regressed.

(R. at 333-390, 561-66.)

By the end of July 2018, Whetstone reported experiencing nightmares “on a nightly basis,”

and continued to suffer acute, driving-induced panic attacks that would “often [require him to] pull

off the road and engage in breathing exercises”—exercises which, according to Whetstone, were

becoming of little immediate help. (R. at 562-63.) These acute reactions were severe enough to

cause Whetstone to look into arranging for third-party transportation to-and-from his medical

appointments. (R. at 563, 566.) In this same period, Whetstone completed the first of two “Becks

Depression Inventory” (“BDI-II”) assessments, scoring a 27/63, which suggested that he suffered

from “high moderate depression.”3 (R. at 564.) The next month, Dr. Tripp increased Whetstone’s

Zoloft dosage to 100 milligrams. (R. at 768.)

3 Two months later, on September 11, 2018, Whetstone completed another BDI-II, this time scoring a 37/63, putting

his depression in the “[l]ow severe range.” (R. at 568.) He also completed another PCL-5 self-assessment, scoring a

62/80—a nine-point increase from his previous assessment. (Id.) Generally, “a total score of 31-33 or higher” on a

Whetstone’s symptomology reached a high point on September 19, 2018. That night, he

awoke around midnight with a distinct pain in the left side of his chest and shortness of breath.

(R. at 883.) He immediately checked himself in to the emergency room at the Allegheny Health

Network (“AHN”) Jefferson Regional Hospital. (Id.) Upon intake, Whetstone remarked that,

although he had experienced similar pains “intermittently since April when he was in a car

accident,” this time felt different. (Id.) Two electrocardiograms (“EKG”) revealed an “abnormal”

heart rate. (R. at 886, 894.) A “stress test,” however, led Whetstone’s physicians to conclude that

the episode was “likely anxiety induced.” (R. at 894.) Nevertheless, Whetstone’s physicians could

not rule out other causes, such as an “[a]nterior infarct.”4 (R. at 912.)

By the end of October 2018, Therapist Feragotti submitted three APS’ in support of

Whetstone’s continuing STD benefits claims, while Dr. Tripp submitted two. (R. at 333, 335, 339,

341, 373.) All of Feragotti’s statements noted that Whetstone’s symptoms were both “consistent”

with PTSD and “limiting his ability to engage in all aspects of his life,” including his ability to

drive a truck. (R. at 335, 341, 373.) Two asserted that, due to the MVA, Whetstone continued to

endure a “fear response when in a position where he needs to drive to his therapy appointments,"

causing him to suffer an “increased heart rate, increased startle response, anxiety and panic, and a

fear of losing control and being involved in an automobile accident.” (R. at 341, 373.) None

offered an estimate as to when Whetstone would be able to return to work. (Id.)

Dr. Tripp’s APS’ largely reflected Therapist Feragotti’s. In a statement dated August 17,

2018, Dr. Tripp affirmed that Whetstone was “not able to do anything related to driving an 18

wheeler tractor trailer or other commercial truck,” and observed that Whetstone was “becoming

PCL-5 exam demonstrates that “a patient may benefit from PTSD treatment.”

https://www.ptsd.va.gov/professional/assessment/documents/using-PCL5.pdf

4 “Infarct” most likely refers to an infarction, as in an obstruction of the blood supply. A myocardial infarction is

commonly referred to as a heart attack. https://www.cdc.gov/heartdisease/heart_attack.htm.

increasingly phobic of driving ‘regular’ cars and trucks.” (R. at 339.) Unlike Therapist Feragotti,

Dr. Tripp estimated that Whetstone would be able to return to work by January 1, 2019. (Id.) That

estimation changed in Dr. Tripp’s second APS, dated October 18, 2018, which shifted Whetstone’s

diagnosis from an “acute stress” condition to PTSD, and affirmed that Whetstone could not “drive

or work in any capacity related to driving” for “at least 6 months.” (R. at 333.) It also noted

several changes to Whetstone’s prescriptions—namely, that his Zoloft dosage had increased to

150 milligrams, and that Clonazepam had been substituted for Trazodone as a sleep aid. (Id.)

On October 19, 2018, United extended Whetstone’s STD benefits until November 7,

2018—the last date allowable under the STD Policy. (R. at 66.) This extension was underpinned

by the approval of one of United’s in-house clinical nurses, who noted the following:

The medical records by Robert Feragotti, LPC, indicate that the claimant continues

with episodic mood lability, significant anxiety, psychomotor agitation, anhedonia,

and isolation to his home. He is addressing transportation assistance to his

psychiatric appointments that echoes no significant improvement. His symptoms

were triggered by multiple stressors of financial, employment and workers

compensation legal representation. While there were no updated psychiatrist

records; the claimant was compliant with medications and appropriate therapy. The

records convey that the claimant was recently hospitalized.

Based on length of time out of work with no consistent improvement, ongoing

overall symptomology and intensity of treatment, the limitations in mood

modulation, ability to concentrate, attain set limits and interact and express feelings

appropriately are correlated with the documentation.

Based on the current clinical documentation reviewed there is sufficient clinical

evidence of identifiable mental restrictions and limitations from 9/24/18 and going

forward through STD time frame.

(R. at 303.)

F. Whetstone’s Applies for LTD Benefits

After his final STD benefits extension, Whetstone applied for LTD benefits. (R. at 52.)

On October 25, 2018, United sent Whetstone a letter acknowledging his LTD application, as well

as the fact it had already requested his medical providers for their updated records. (R. at 996.)

On November 29, 2018, United received those records and forwarded Whetstone’s file to

psychologist Dr. David Yuppa, MD, for review. (R. at 47.)

1. The Yuppa Report

United tasked Dr. Yuppa with answering a single question: whether the record “support[ed]

psychiatric impairment from 5/3/18 forward.” (R. at 47, 822.) On December 17, 2018, Dr. Yuppa

answered “no” in the form of a seven-page report (the “Yuppa Report”). Therein, Dr. Yuppa

concluded that, even though “[t]he totality of the documentation support[ed]” Whetstone’s claims

of suffering “emotional distress” after the MVA, there was no “compelling” evidence “to support

the presence of functional impairment.” (R at 825-26.) Dr. Yuppa determined that Whetstone’s

stated inability to drive a “motor vehicle” was a product of his own “self-imposed avoidance,”

rather than a true psychiatric disorder, pointing to the fact that, notwithstanding his reported

anxiety, Whetstone was “capable of driving to and from his [medical] appointments despite his

associated anxiety.” (R. at 826-27.) Dr. Yuppa noted that he had been able to speak with Dr.

Tripp (but not Dr. Hess or Therapist Feragotti), and that, based on their conversation, as well as

the record as a whole, there was no evidence of any “cognitive testing / assessments to support

impairment” in the domains of “attention, concentration, etc.” (R. at 825-26.) He further found

that Whetstone’s anxiety was “mostly related to . . . other administrative, benefits-related matters,”

and added that, if Whetstone was actually functionally impaired, he would have exhibited different

symptoms, such as “deficiencies in grooming/hygiene . . . suicidal ideation, poor impulse control,

homicidal ideation, paranoia, psychosis, delusional thinking, disorganized thought processing,

aggressive/hostile ideation/behavior, or conversely, catatonic-like or excessively withdrawn

behavior.” (R. at 825.)

Simultaneously, Dr. Yuppa acknowledged that there was “no evidence” that Whetstone

had magnified or exaggerated his symptoms. (R. at 827.) Thus, he concluded that Whetstone’s

regimen of “medications and psychotherapy” constituted “an appropriate treatment plan,” and

determined that, notwithstanding its apparent deficiencies, the record “support[ed] a diagnosis of

adjustment disorder with mixed anxiety and depressed mood.” (R. at 826-27.)

2. United Denies Whetstone’s LTD Claim

On December 28, 2018, United denied Whetstone’s claim for LTD benefits via a seven-

page letter (the “Denial Letter”). (R. at 532-39.) The first half of this letter summarized the LTD

Policy and the records of Whetstone’s treating practitioners. (R. at 532-35.) It then provided a

five-paragraph synopsis of Dr. Yuppa’s findings, reiterating multiple times his opinion that there

was no “compelling” evidence of functional impairment. (R. at 535-36.) Based on these findings,

United concluded that Whetstone had “failed to show” that he was psychiatrically impaired from

“perform[ing] at least one of the Material Duties of [his] Regular Occupation” moving forward.

(R. at 536.) It did not define Whetstone’s “Regular Occupation” or his “Material Duties.” (Id.)

3. Whetstone Appeals United’s Decision

On March 11, 2019, Whetstone internally appealed United’s denial of benefits. (R. at 530.)

In his formal appeal (the “Appeal Letter”), Whetstone reiterated his stance that he was “unable to

perform the duties of his position,” pointing specifically to the Department of Labor’s (“DOL”)

regulation governing the “physical qualifications” of commercial drivers, 49 C.F.R. 391.41. (Id.)

He noted that part of this regulation—49 C.F.R. 391.41(b)(9)—disqualified drivers who possessed

any “mental, nervous, organic, or functional disease or psychiatric disorder likely to interfere with

[their] ability to drive a commercial motor vehicle safely.” (R. at 530, 581.) In addition to a full

copy of 49 C.F.R. 391.41, Whetstone provided United with medical records from his visit to the

Trinity Health System Express Care Center on the day of the MVA. (R. at 530.)

On March 19, 2019, United confirmed its receipt of Whetstone’s appeal. (R. at 525.) It

assured Whetstone that his claim was “currently under review,” and that “all documentation”

would be considered before it rendered its final decision. (Id.) That same day, United forwarded

Whetstone’s updated file to another psychiatrist, Dr. Jennifer Service, MD, for a second review.

(R. at 42.)

4. The Service Report

On April 1, 2019, Dr. Service submitted a written report to United (the “Service Report”)

which, like the Yuppa Report, concluded that there was “no compelling evidence” that Whetstone

had “experienced an impact on his functional capacity as a result of psychological symptoms.” (R.

at 316-22.) After summarizing the documents in Whetstone’s file—which included Whetstone’s

updated medical records and a copy of 49 C.F.R. 391.41—Dr. Service elaborated her conclusion:

The claimant is a 58-year-old truck driver who reportedly left work due to

symptoms of PTSD, major depression, and generalized anxiety disorder resulting

from a motor vehicle accident that occurred on 04/27/2018. The claimant reported

that he was unable to drive following the 04/27/2018 accident due to anxiety. The

claimant’s psychiatrist supported his restriction from driving for six months. It was

unclear in the record how Dr. Tripp assessed the claimant’s ability to drive and it

appeared that Dr. Tripp relied solely on the claimant’s self reports. The claimant’s

mental status examinations revealed that the claimant’s mood/affect was frustrated

and decreased, but the examinations were otherwise unremarkable. There was no

compelling evidence to support that the claimant suffered from any cognitive

deficits, including any problems interacting with others, communicating, or acting

in his own interest. There were no objective measures used to assess the claimant’s

cognition and there were no subjective descriptions of any observed cognitive

problems. There were limited medication changes and the claimant was not referred

to a higher level of care. Although the claimant complained of an inability to drive

and he was restricted from driving by his psychiatrist, the information available in

the record did not support the severity of symptoms or intensity of treatment

expected with an impairing psychological disorder.

(R. at 319.)

Like Dr. Yuppa, Dr. Service found no evidence that Whetstone exaggerated or magnified

his symptoms. (R. at 322.) Unlike Dr. Yuppa, she did not speak with any of Whetstone’s treating

practitioners in rendering her report. (R. at 319.) She explained that Whetstone’s self-reports were

“considered,” but that she “did not find them to be compelling[,] as the information documented

in the available records did not support the severity of symptoms or intensity of treatment expected

with an impairing psychological disorder.” (R. at 320.)

All told, Dr. Service found that Whetstone’s symptoms were “most consistent with an acute

stress reaction,” not PSTD, MDD, or GAD. (Id.) She did not discuss whether Whetstone would

continue to suffer these acute reactions, or if he was still “physically qualified” to drive a truck

under 49 C.F.R. 391.41. She simply determined that, based on the record, the diagnoses and

recommended restrictions of Whetstone’s treating practitioners were “not supported.” (R. at 321.)

5. United Upholds Its Decision

On April 2, 2019, United faxed a copy of the Service Report to Richard DeBlasio,

Whetstone’s then-attorney, and offered Whetstone fourteen days to respond with any additional

information for United’s review. (R. at 42.) On April 10, 2019, DeBlasio conveyed to United that

he had received the Service Report and that Whetstone would not submit any further information

in support of his appeal. (Id.)

On April 18, 2019, United affirmed its decision to deny Whetstone’s LTD claim. (R. at

295.) The letter notifying Whetstone of this decision (the “Affirmation Letter”) specifically noted

that, in performing its review, United considered (1) Whetstone’s LTD claim forms; (2) an APS

and “Disability Supplemental Form” completed by Dr. Tripp on October 18, 2018; (3) A

“Disability Supplemental Form” completed by Therapist Feragotti on August 8, 2018; (4) the other

notes and records of Whetstone’s treating practitioners; and (5) the Service Report. (R. at 296.)

In summarizing the Service Report, United emphasized Dr. Service’s conclusions that

Whetstone failed to provide “compelling evidence to support the presence of an impairing

psychologic condition beyond May 1, 2018[;]” that it was “unclear from the record how Dr. Tripp

assessed Mr. Whetstone’s ability to drive[;]” and that it appeared his assessment was based “solely

on Mr. Whetstone’s self-reports.” (R. at 299.) Based on these findings, United again concluded

that Whetstone had failed to “substantiate any deficits in [his] cognitive functioning, psychomotor

behavior, or provide evidence of worsening depression with suicidal or homicidal ideation.” (R.

at 299.) Nor, in United’s view, did Whetstone provide any evidence of (1) hospitalization, (2)

“impairment” to his “daily activities,” or (3) an inability to drive. (Id.) Thus, United remained

un-swayed from its initial determination that Whetstone could perform all of “the material duties

of his regular occupation beyond May 1, 2018.” (Id.)

G. Procedural History

On July 27, 2020, Whetstone challenged United’s decision in this Court. (ECF No. 1.) His

action, pursuant to ERISA § 502(a)(1)(B), seeks to overturn United’s disability finding and recover

benefits that he asserts he is entitled to under the LTD Policy. (Id.)

On April 13, 2021, both parties filed cross-motions for judgment as a matter of law based

on the administrative record. (ECF Nos. 13, 14.) Several weeks later, on May 7, 2021, they

responded to one another’s motions. (ECF Nos. 19, 20.)

II. STANDARD OF REVIEW

“Under ERISA, courts start with a presumption rooted in the common law of trusts that

they will review a plan administrator’s denial of benefits de novo.” Autran v. Proctor & Gamble

Health & Long-Term Disability Benefit Plan, No. 20-6432, slip op. at 3 (6th Cir. Feb. 24, 2022)

(citing Firestone Tire & Rubber Co. v. Bruch, 589 U.S. 112-15 (1989)). Often, however, ERISA-

qualified plans will “delegate discretionary power to administrators to interpret plan terms and

apply those terms to a participant's circumstances.” Id. (citation omitted). In that event, “courts

will review an administrator's benefits denial under an arbitrary-and-capricious standard.” Id.

(citing Frazier v. Life Ins. Co. of N. Am., 725 F.3d 560, 566 (6th Cir. 2013)). This requires a court

to “uphold an administrator's benefits decision as long as ‘it is the result of a deliberate, principled

reasoning process and . . . supported by substantial evidence.’” Id. (citing Davis v. Hartford Life

& Accident Ins. Co., 980 F.3d 541 (6th Cir. 2020)).

Arbitrary and capricious review is “extremely deferential and has been described as the

least demanding form of judicial review.” McDonald v. W.-S. Life Ins. Co, 347 F.3d 161, 169 (6th

Cir. 2003) (citation omitted)). That, however, does not mean it is “without some teeth,” or that it

requires courts to simply “rubber stamp” an administrator’s denial of benefits when that decision

is based on some reasoning, no matter how weak. Id. at 172. To pass muster, an examining court

must confirm that the administrator’s decision was both “substantively” and “procedurally”

rational. Autran, slip op. at 3. This entails two analytically distinct inquiries. Id. On the substantive

side, courts must ensure that the conclusions underlying a plan administrator’s benefits denial “are

supported by substantial evidence in the administrative record.” Id. (citations omitted). The

procedural prong, by contrast, requires a determination that said denial resulted from a “rational”

review process. Id. This inquiry usually begs a “variety of questions,” including, but not limited

to:

Did the administrator consider all the evidence or overlook evidence that cut the

other way? If the administrator departed from its earlier benefits ruling, did it

adequately explain the change? . . . If the administrator credited certain doctors over

others, did the credited doctors undertake a mere “file” review or conduct a

thorough in-person evaluation? And did the administrator have a conflict of interest

that affected its decision?

Id. (citations omitted). No single answer to any of these questions is “dispositive” on its own; each

must be weighed amongst one another to decipher the sufficiency of the administrator’s decision-

making process. Id. (citing Metro Life Ins. Co v. Glenn, 554 U.S. 105, 117-18 (2008)). At all stages

of this analysis, the court is “confined” to the administrative record. Haning v. Hartford Life &

Accident Ins. Co., 140 F. Supp. 3d 654, 663 (S.D. Ohio 2015) (quoting Fahrner v. United Transp.

Union Discipline Income Prot. Prog., 645 F.3d 338, 343 (6th Cir. 2011)).

Here, there is no dispute that the LTD Policy vested United with the discretion to interpret

its provisions. Thus, the Court will review United’s decision to deny Whetstone LTD benefits

under the arbitrary-and-capricious standard.

III. ANALYSIS

Whetstone offers a litany of reasons as to why United’s denial of benefits was both

substantively and procedurally irrational. He asserts, for one, that no valid medical or vocational

evidence in the record actually supported United’s decision—only the “faulty” opinions of “peer

reviewers” who, unlike the providers that vouched for Whetstone’s disability, never actually

examined him. Whetstone also points out a slew of deficiencies with United’s review process—

all of which, he asserts, fostered its irrational benefits decision.

Whetstone’s position is on-point. Simply put, United’s non-disability finding did not have

a “substantial” basis in the record, given that the evidence it relied upon hardly spoke to

Whetstone’s ability to drive commercially (i.e., his “Regular Occupation”). It also overlooked and

outright mischaracterized several parts of the record that supported Whetstone’s claim.

A. United’s Conclusion Did Not Rationally Follow from the Evidence It Relied upon

Substantively, the parties’ dispute revolves around United’s view that Whetstone was “not

precluded from performing at least one of the material duties of his regular occupation beyond

May 1, 2018.” (R. at 300.) Whetstone argues that this conclusion (1) did not rationally follow

from the opinions of its “peer reviewers” and (2) was otherwise inconsistent with “the quantity

and quality of the medical evidence” in his file. Haning, 140 F. Supp. 3d at 674 (quoting Moon v.

Unum Provident Corp., 405 F.3d 373, 382 (6th Cir. 2005)). On both counts, the Court agrees.

1. Whetstone’s Evidence of Disability Was Strong

As United notes, “[p]lan administrators are not obliged to accord special deference to the

opinions of treating physicians.” Black & Decker Disability Plan v. Nord, 538 U.S. 822, 825

(2003). But that does not mean, as United appears to contend, that this Court must wholesale adopt

its decision not to credit those opinions. Pitts v. Prudential Ins. Co. of Am., 534 F. Supp. 2d. 779,

789 n. 3 (S.D. Ohio 2008) (noting that Nord’s rejection of the “Treating Physician Rule” was not

“a mandate that special weight may never be given to treating physicians based upon the

substantive judgments of a reviewing court”). Indeed, this Court—contrary to an administrator’s

decision otherwise—has repeatedly granted weight to the opinions of a claimant’s treating

practitioners partially because they were the “only ones who actually examined” him or her.

Weidauer v. Broadspire Servs., Inc., No. C-3-07-797, 2008 WL 4758691, at *11-15, (S.D. Ohio

Oct. 27, 2008); see also Haning, 140 F. Supp. 3d at 665; Pitts, 534 F. Supp. 2d. at 789.

As described above, three different providers—Dr. Hess, Dr. Tripp, and Therapist

Feragotti—submitted six APS’ to United on Whetstone’s behalf, all of which stating “in no

uncertain terms” that Whetstone’s mental condition precluded him from returning to work as a

truck driver. Haning, 140 F. Supp. 3d at 664l; (R. at 330, 333, 335, 339, 341, 373.) Of the two

mental-health specialists with whom Whetstone consulted (Therapist Feragotti and Dr. Tripp),

both opined that his disability stemmed from acute stress connected to PTSD. These opinions were

based on weekly (in Therapist Feragotti’s case) or monthly (in Dr. Tripp’s case) consultations with

Whetstone, who consistently reported symptoms of driving-induced panic and insomnia. In several

of those consultations, Whetstone completed PCL-5 and BDI-II exercises, the results of which all

supported his diagnoses of PTSD and depression. These developments were significant enough

for Dr. Tripp to (1) prescribe Whetstone Zoloft for his anxiety and Trazodone (and, later,

Clonazepam) for his insomnia; and (2) to increase Whetstone’s Zoloft dosage by 125 milligrams

over a four-month period.

United, pointing to the opinions of its “peer reviewers,” insists that the disability findings

of Whetstone’s treating practitioners warrant little deference because they were not based on

“objective” evidence. This argument, as elaborated below, is unpersuasive for several reasons. One

of them is the fact that, “[u]nlike cardiologists or orthopedi[sts], who can formulate medical

opinions based upon objective findings derived from objective clinical tests,” mental-health care

providers “typically” must rely on subjective reports to treat their patients. Smith v. Bayer Corp.

Long Term Disability Plan, 275 Fed. Appx. 495, 508 (6th Cir. 2008) (citation omitted); accord

James v. Liberty Life Assur. Co. of Boston, 582 Fed. Appx. 581, 589 (6th Cir. 2014)

(“[P]sychiatrists typically treat symptoms that are subjective and must rely on a patient’s subjective

descriptions to evaluate and diagnose the patient.”); Blankenship v. Bowen, 874 F.2d 1116, 1121

(6th Cir. 1989) (“[W]hen mental illness is the basis of a disability claim, clinical and laboratory

data may consist of the diagnosis and observations of professionals trained in the field of

psychopathology. The report of a psychiatrist should not be rejected simply because of the relative

imprecision of the psychiatric methodology or the absence of substantial documentation, unless

there are other reasons to question the diagnostic techniques.”). Thus, unless there is a rational

reason to find those practitioners’ observations unreliable—and, here, United offers none—then

this Court believes they merit ample weight. See Haning, 140 F. Supp. 3d at 665.

As discussed below, one of the biggest flaws in United’s benefits determination is the fact

that it was “based on evidence that simply is not analyzed in relation to [Whetstone’s] ability to

perform [his] occupation.” Elliott v. Metro. Life Ins. Co., 473 F.3d 613, 621 (6th Cir. 2006). This

oversight was particularly inexcusable given the fact that Whetstone, relying upon 49 C.F.R.

391.41, gave United a clear basis to consider the impact of his illness on his ability to drive

commercially. (R. at 530, 581-84.) As noted, that regulation physically disqualified commercial

drivers who possessed a “mental, nervous, organic, or functional disease or psychiatric disorder

likely to interfere with [their] ability to drive a commercial motor vehicle safely.” (R. at 581)

(emphasis added). A truck driver who, at any moment, may suffer a PTSD-related “fear response”

which requires him to immediately pull off the road—which Whetstone reported having to do

numerous times—clearly fits that bill.

Thus, the Court finds that Whetstone’s evidence, in its totality, “strongly” supports his

long-term disability claim. See Haning, 140 F. Supp. 3d at 665.

2. United’s “Peer Review” Evidence Was Weak

From the outset, United has stood by the assertion that “the totality of evidence in the

record” demonstrates that Whetstone was not “Disabled” under the LTD Policy. (See Def.’s Mot.,

ECF No. 13 at PageID #1080); (R. at 536.) Here, however, United’s actions—its correspondence

with Whetstone, its internal notes, and its own arguments—all suggest that it overwhelmingly

relied on the opinions of Dr. Yuppa and Dr. Service to render its decision. (See ECF Nos. 13 at

PageID #1074-78; 19 at #1119-20) (arguing that “United reviewed substantially more evidence

when it adjudicated Plaintiff’s LTD claim than it had during the STD claim process” because, at

that point, it “had the benefit” of the Yuppa and Service Reports); (R. at 304-305, 330-31, 536.)

Thus, United’s ultimate conclusion—that Whetstone’s anxiety did not preclude him from

performing at least one of his “Material Duties”—should rationally follow from those opinions.5

See Elliott, 473 F.3d at 621; see also Card v. Principal Life Ins. Co., 790 Fed. Appx. 730, 744 (6th

Cir. 2019) (Larsen, J., dissenting) (reiterating the administrator’s requirement to articulate “a

rational connection between the facts found and the choice made”). It does not, as neither Dr.

Yuppa nor Dr. Service actually assessed Whetstone’s “ability to perform [his] job-related tasks.”

Elliott, 473 F. 3d at 619. Instead, they focused on whether the “medical evidence” demonstrated

that Whetstone was “functionally impaired” from driving entirely, rather than commercially.

Take, for instance, United’s reliance on Dr. Yuppa’s assessment that Whetstone, on a

“functional” level, was “indeed capable of operating a motor vehicle, albeit with associated

anxiety” because he was able to drive to-and-from his medical appointments. (R. at 825.) As

Whetstone notes, the fact he was “capable” of gutting through his anxiety on a one-and-a-half-

mile drive to his doctor’s office says little about his ability to safely maneuver an eighteen-wheeler

across multiple states.6 (See R. at 581) (delineating the requisite mental skills for commercial

driving, including “the perceptual skills to monitor a sometimes complex driving situation, the

judgment skills to make quick decisions . . . and the manipulative skills to control an oversize[d]

steering wheel, shift gears using a manual transmission, and maneuver a vehicle in crowded

5 As United notes, the mere fact it relied on these “peer reviews” does not necessarily mean that it lacked “substantial”

evidence. See, e.g., Shaw v. AT&T Umbrella Ben. Plan No. 1, 795 F.3d 538, 550 (6th Cir. 2015) (noting that “there is

nothing inherently improper with relying on a file review,” but confirming that an administrator’s decision to do so

can still “raise questions about the thoroughness and accuracy of the benefits determination”) (citations omitted). But

it also does not mean that United’s “peer reviews” were “substantial” evidence. In other words, it must still be clear

that United based its decision on “more than a scintilla” of evidence that a “reasonable mind might accept as adequate

to support [its] conclusion.” Davis, 980 F.3d at 549.

6 United argues that Dr. Yuppa did not “equate” truck driving to regular driving, but merely used it as a possible

indicator “of the level of anxiety [Whetstone] was experiencing.” (Def.’s Resp., ECF No. 19 at PageID #1114.) This

distinction makes little difference. Again, just because Whetstone was not utterly paralyzed from entering a car did

not mean he could perform the “Material Duties” of a truck driver, which was the relevant inquiry.

areas”). The latter constituted one of Whetstone’s “Essential Functions” at F&S; the former quite

clearly did not. (See R. at 331, 581-84.) Nevertheless, United partially relied on this finding to

conclude that Whetstone still appeared able to perform his “Material Duties.” (R. at 299, 536.)

This was improper. See Kalish v. Liberty Mut./Liberty Life Assur. Co. of Boston, 419 F.3d 501,

507 (6th Cir. 2005) (“[T]he fact that Kalish might be capable of sedentary work cannot be a rational

basis for finding that he was not disabled, given that his former occupation required him to walk,

stand, and reach for several hours a day.”)

Other pillars of United’s decision likewise offered little insight into Whetstone’s ability to

drive commercially—namely, Dr. Yuppa and Dr. Service’s observations regarding Whetstone’s

apparent lack of various psychosocial symptoms (e.g., suicidal or homicidal ideation, delusions

and disorganized thoughts, or “excessively withdrawn behavior”). These findings are irrelevant.

For one, the suggestion that Whetstone needed to suffer “severe psychiatric symptoms” to be

“Disabled” is “inconsistent with the terms of the [LTD Policy],” which focused on whether

claimants could perform the “Material Duties” of their occupation. See Hayden v. Martin Marietta

Materials, Inc. Flexible Benefits Program, 763 F.3d 598, 607-08 (6th Cir. 2014). Moreover,

Whetstone did report or exhibit severe psychosocial symptoms. As United’s own clinical nurse

observed in the same month Whetstone applied for LTD benefits, Whetstone’s medical records

showed that he continually experienced “episodic mood lability, significant anxiety, psychomotor

agitation, anhedonia, and isolation to his home.” (R. at 303); (see also R. at 335, 337, 557-68.)

Likewise, the notes of Dr. Tripp reflect that (1) Whetstone “sometimes” experienced

“derealization,” and (2) Whetstone exhibited a “poor” or “reduced” ability to concentrate. (R. at

766-67, 769-70, 772-73.) These may not have covered the gambit of symptoms that Dr. Yuppa

and Dr. Service associated with “functional impairment,” but, again, the absence of those

symptoms had little bearing on whether Whetstone was “Disabled” under the LTD Policy.

Of course, United’s decision was not animated by these findings alone. It relied most

heavily on Dr. Yuppa and Dr. Service’s conclusion that Whetstone failed to provide “objective”

evidence of general cognitive impairment. (R. at 299, 536.) Aside from the fact that the LTD

Policy did not explicitly obligate Whetstone to provide such evidence—which is problematic in

its own right—as well as the fact that neither “peer reviewer” elaborated how, specifically,

Whetstone’s driving ability should have been examined, this shared finding, on its own, says little

about Whetstone’s disability (or lack thereof). The “absence of evidence is not evidence of absence

of an impairment.” Tiedel v. Reliance Standard Life Ins. Co., No. 1:16-cv-1089, 2020 WL

1872348, at *7 (W.D. Mich. Apr. 15, 2020); see also Javery v. Lucent Techs., Inc. Long Term

Disabiltiy Plan for Mgmt. or LBA Emps., 741 F.3d 686, 702 (6th Cir. 2014) (“In particular, we are

troubled by the fact that Dr. Goldman overlooked certain evidence in the file and drew adverse

conclusions about the ‘absence’ of such evidence”). And, here, the “absence” of unspecified

cognitive testing says little about whether Whetstone was predisposed to suffering debilitating

panic attacks while driving a tractor trailer.

3. United’s Other Evidence (Not Including Its “Peer Reviews”) Was Weak

United asserts that, in addition to the Yuppa and Service Reports, it “reviewed the findings

of the Pennsylvania Bureau of Workers’ Compensation” in rendering its benefits decision. (Def.’s

Resp., ECF No. 19 at PageID #1115.) Yet the “findings” it relied upon offered no rationale

whatsoever for the Bureau’s decision, or that Whetstone later received a settlement for his workers’

compensation claim. (R. at 43, 218.) More importantly, the Bureau’s analysis looked only at

whether Whetstone’s injury from the MVA was “work-related.” 7 But the LTD Policy did not

require a claimant’s “Injury or Sickness” to stem from a “work-related” event, rendering the

Bureau’s decision irrelevant to the issue of whether Whetstone was “Disabled.”

Accordingly, this evidence—even in tandem with the Yuppa and Service Reports—

provides little basis for United’s ultimate conclusion.

B. United’s Review Was Also Procedurally “Irrational”

Whetstone argues that United’s substantive errors were enabled by a review process that

failed to afford him a “full and fair review” of his claim (i.e., that its review process was

“irrational”). 29 C.F.R. § 2560.503-1(h)(1). Specifically, he asserts that United (1) failed to

consider the “dangers” of driving a truck (2) improperly relied on the opinions of its “peer

reviewers” when it could have had him medically examined; (3) improperly discounted—and, in

some respect, entirely ignored—reliable medical evidence that supported Whetstone’s claim; and

(4) “succumbed to its dual-role conflict of interest.” (Pl.’s Mot., ECF No. 14.)

The Court, for reasons it has and has not yet touched upon, agrees with most of these

arguments.

1. United Ignored Evidence Related to Whetstone’s Occupational Duties

Whetstone asserts that, in reviewing his claim, United failed to consider “the extreme

danger of driving a tractor-trailer truck, the most essential material duty of [his] job.” (Pl.’s Mot.,

ECF No. 14 at PageID #1095.) United does not claim otherwise. It contends, rather, that its

benefits decision “was supported by the evidence i[n] the record”—specifically, by the opinions

of Dr. Yuppa and Dr. Service—and suggests that Whetstone’s position on the specific dangers of

7 As Whetstone observes, United did not acknowledge any difference in the “definitional standard for disability”

between a worker’s compensation claim and a claim under the LTD Policy. (Pl.’s Resp., ECF No. 20 at PageID

#1144.)

truck driving should be ignored because, in pointing them out, he relies on evidence that is not part

of the record. (Def.’s Resp., ECF No. 19 at PageID #1124.)

The Court, as discussed above, disagrees with the first prong of United’s response. The

second prong does little to neutralize Whetstone’s point. The record reflects that Whetstone gave

United ample reason to consider (1) the particular “stresses of commercial motor vehicle driving”

and (2) the inherent danger of trying to commercially drive with a driving-induced anxiety

disorder. On appeal, Whetstone specifically asked United to consider a federal safety regulation

which noted that commercial drivers “must have the perceptual skills to monitor a sometime

complex driving situation, the judgment skills to make quick decisions, when necessary, and the

manipulative skills to control an oversize[d] steering wheel, shift gears using a manual

transmission, and maneuver a vehicle in crowded areas.” (R. at 581.) That same regulation also

notes that:

[m]any bus and truck drivers have documented that ‘nervous trouble’ related to

neurotic, personality, or emotional or adjustment problems is responsible for a

significant fraction of their preventable accidents. The degree to which an

individual is able to appreciate, evaluate and adequately respond to the

environmental strain and emotional stress is critical when assessing an individual’s

mental alertness and flexibility to cope with the stresses of commercial motor

vehicle driving.

(R. at 584.)

United, as Whetstone argues, did not just fail to weigh the evidence of his PTSD diagnosis

in relation to the relevant skills of his occupation—it ignored those skills (and the mental abilities

required to exercise them) entirely. This oversight “weighs toward the Court’s conclusion” that its

review process was not rational. See Haning, 140 F. Supp. 3d at 673 (quoting Zenadocchio v. BAE

Sys. Unfunded Welfare Ben. Plan, 936 F. Supp. 2d 868, 891 (S.D. Ohio 2013)).

2. United Relied on Independent “File Reviews” Despite Its Ability to Have

Whetstone Medically Examined

The Sixth Circuit has repeatedly held that “file reviews are questionable as a basis for

identifying whether an individual is disabled by mental illness.” Javery, 741 F.3d at 702; Smith,

275 Fed. Appx. at 508; James, 582 Fed. Appx. at 589. This is especially so when the plan

administrator, in relying on said reviews, chooses to make “adverse” credibility findings related to

the claimant without having him or her medically examined. See Shaw, 795 F.3d at 550 (plan

administrator inappropriately “discounted” the findings of the claimant’s diagnosing physician—

which the administrator believed were “based solely on [the claimant’s] own subjective complaints

of pain”—after choosing not to have the claimant medically examined); Javery, 741 F.3d at 702

(“[R]eliance on a file review is inappropriate where a claims administrator disputes the credibility

of a claimant’s complaints.”) (citation omitted); Smith, 275 Fed. Appx. at 508 (noting that “the

failure of the administrator” to have the claimant examined, “especially when faced with a claim

of mental and emotional instability,” evidenced that its denial of benefits decision was arbitrary

and capricious).

United asserts that it did not “question [Whetstone’s] credibility,” but the record says

otherwise. Whetstone’s medical documentation shows that he consistently reported suffering

driving-induced panic attacks that forced him off the road. United’s “peer reviewers,” despite

never examining Whetstone (or even discussing his treatment with the mental-health care provider

he consulted with the most, Therapist Feragotti), and despite the inherently subjective nature of

his symptoms, found that those medical records were not “compelling” evidence of “functional

impairment” because they appeared to be “solely based” on Whetstone’s self-reports. (R. at 519,

825-26.) That is the essence of a credibility assessment, and it is one that United had no clear basis

to adopt. See Javery, 741 F.3d 702. This further casts its review process in an unfavorable,

arbitrary-and-capricious light. See Hayden, 763 at 607 (“When a reviewing physician's report is

“inadequate,” a plan administrator cannot be said to engage in a deliberate, principled reasoning

process when it adopts the position of that report.”); see also Shaw, 795 F.3d at 550; Smith, 275

Fed. Appx. at 508; Elliott, 473 F.3d at 620; Haning, 140 F. Supp. 3d at 666.

3. United Improperly Disregarded “Objective” Medical Evidence of Whetstone’s

Disability

As discussed, United chose not to credit the diagnoses of Whetstone’s treating practitioners

because “[t]here were no objective measures used to assess [Whetstone’s] cognition and there were

no subjective descriptions of any observed cognitive problems.” (R. at 299, 304.) To underscore

those points, United noted that “[t]here was no evidence that [Whetstone] was hospitalized” or

“seen in the emergency room” for his stated condition. (R. at 299.) Whetstone asserts that this is

untrue. He contends that the diagnoses of his treating practitioners were supported by “objective

evidence,” and that United simply overlooked or ignored it to justify its decision. The Court agrees.

“[W]hen the provisions of a plan explicitly require objective evidence and/or preclude the

claimant’s reliance on other types of evidence, such as [a] physician opinion or self-reported

symptoms,” a claimant’s failure to corroborate the opinions of his or her medical providers with

“objective medical evidence” may give an administrator “sufficient reason . . . not to credit [those]

opinion[s].” Zenadocchio, 936 F. Supp. 2d at 886-87 (quoting Morris v. Am. Elec. Power Long-

Term Disability Plan, 399 Fed. Appx. 978, 987 (6th Cir. 2010)); Haning, 140 F. Supp. 3d at 666.

However, when a plan does not explicitly demand the claimant to provide objective evidence to

prove his or her disability, it “cannot use this demand as grounds to give no probative value to

other evidence.” Haning, 140 F. Supp. 3d at 666 (quoting Zenadocchio, 936 F. Supp. 2d at 887).

Here, the LTD Policy made no express demand for “objective” evidence. Nevertheless,

United, citing this Court’s decision in Hammonds v. Aetna Life Ins. Co., argues that it was not

“irrational or unreasonable” for it to consider the absence of such evidence as grounds to discount

Whetstone’s medical records as a whole. (Def.’s Mot., ECF No. 13 at PageID #1077) (citing

Hammonds v. Aetna Life Ins. Co. No. 2:13-cv-310, 2015 WL 1299515, at *16 (S.D. Ohio Mar. 23,

2015)). This argument misses the mark for several reasons. For one, the underlying cause of the

Hammonds claimant’s disability—a “degenerative disc disease”—lent itself much more to

objective verification (e.g., via an MRI) than Whetstone’s mental condition. 2015 WL 1299515,

at *16 (validating a reviewing physician’s conclusion that the claimant’s MRI “did not provide a

basis for the severe physical limitations imposed” by her treating physicians); cf. James, 582 Fed.

Appx. at 589; Smith, 275 Fed. Appx. at 508 (citation omitted). Thus, there, it was reasonable for

the administrator to base its decision on the claimant’s lack of “objective” proof, given its basic

availability. Not so here. As discussed, the symptoms underlying Whetstone’s disability—namely,

his susceptibility to driving-induced panic attacks—were not conducive to objective measurement.

And if they were, United (and its “peer reviewers”) never explained how. Nor did United bother

to gather this data itself, even though it had the opportunity to do so.

Those, however, are only ancillary points. The main reason why United had no reasonable

basis to discount Whetstone’s medical records is that they did, in fact, contain “reliable” and

“objective” information supporting his claim. This included (1) records from his midnight

hospitalization for chest pain, which his attending physicians concluded was “likely” anxiety-

induced, and which contained two “abnormal” EKGs; (2) the external, in-person observations of

Whetstone’s treating practitioners (e.g., Dr. Tripp’s consistent view that Whetstone exhibited a

“poor” or “reduced” ability to concentrate), and (3) a timeline of Whetstone’s prescriptions, which

reflected his mounting anxiety symptoms. This evidence not only runs counter to United’s

narrative that Whetstone presented no “reliable” proof of his disability—it flat-out contradicts its

belief that he offered “no evidence” of hospitalization or “subjective descriptions of any observed

cognitive problems.” (R. at 299, 304.) Such indicates one of two things: that United (1)

unintentionally overlooked the objective medical evidence that Whetstone provided, or (2) cast it

aside it because it did not fit an “overly crabbed” definition of objectivity. Haning, 140 F. Supp.

3d at 666. Either route demonstrates that United conducted a “selective review” of the record,

which lends further credence to the notion that its decision was arbitrary and capricious. Moon,

504 F.3d at 381; accord Calvert v. Firstar Fin., Inc., 409 F.3d 286, 296 (6th Cir. 2005) (plan

administrator arbitrarily and capriciously accepted file reviewer’s disregard of subjective

symptoms based on incorrect belief that claimant’s file lacked “objective data”); Miller v. Aetna

Life Ins. Co., No. 2:19-cv-500, 2020 WL 2112163, at *9 (S.D. Ohio 2020) (finding that the

administrator’s “cherry-picking” of the administrative record evinced its irrational decision-

making process).

4. United Possessed a Conflict of Interest

“The Supreme Court has recognized that an inherent conflict of interest exists when a

defendant plays the ‘dual role’ of both deciding a plan participant’s eligibility for benefits and

paying out those benefits from its own coffers.” Autran, slip op. at 9 (citing Glenn, 554 U.S. at

108). Here, both parties agree that was the case with United. They disagree, however, as to how

much (if at all) that fact should bear on the rationality of United’s decision to deny Whetstone

benefits.

United, for its part, notes that just because it was structurally conflicted does not mean that

its decision was influenced by said conflict, and asserts that Whetstone has failed to present

evidence demonstrating as much. (Def.’s Resp., ECF No. 19 at PageID #1124.) Whetstone begs

to differ. He contends that United’s (1) refusal to “credit his statements and reliable medical

evidence[;]” (2) failure to medically examine him; (3) failure to consider the “dangers of his job”

or the federal trucking regulation he submitted; and (4) reliance “on flawed peer review reports to

justify its denial of benefits” all show that United’s conflict of interest infected its review process.

(Pl.’s Mot., ECF No. 14 at PageID #1105) (citing Haning, 140 F. Supp. 3d at 675). The Court, to

some extent, agrees.

It is well-settled that an administrator’s conflict of interest “must be a ‘factor’ to consider

when deciding whether [it] arbitrarily denied benefits.” Autran, slip op. at 9 (citing Glenn, 554

U.S. at 108). In evaluating this type of conflict, courts are not “to create special burden-of-proof

rules, or other special procedural or evidentiary rules.” Glenn, 554 U.S. at 116. They are merely

to account for it, on a case-specific basis, as one of “several different considerations” in evaluating

the “lawfulness” of a benefits denial. Id. at 117. Of course, there are circumstances where this

factor can be “more important” (such as when the administrator “has a history of biased claims

administration”) or “less important” (such as when the administrator has “walled” off claim

decision-makers “from those interested in firm finances”). Id. In that vein, the Sixth Circuit has

afforded an administrator’s conflict of interest greater weight when there is evidence that it

“materialized in a concrete way to influence the administrator’s decisional process,” such as

“internal emails suggesting bias against granting a claim or repeated reliance on a suspect doctor

with a history of questionable medical opinions.” Autran, slip op. at 9 (citations omitted).

As United notes, Whetstone has not offered any “concrete” (i.e., direct) evidence that its

structural conflict influenced its decision to deny Whetstone benefits. But that position only goes

so far. United’s structural conflict itself—as well as any circumstantial evidence suggesting that

its decision was influenced by its “dual role”—still factors into the equation. See Haning, 140 F.

Supp. 3d at 675 (finding that the administrator’s “conduct in administering [the claimant’s] claim,

‘which consisted of selective deference to opinions and medical evidence regarding [her]

eligibility, render[ed] the conflict of interest significant’”) (quoting Zenadocchio, 936 F. Supp. 2d

at 886). And, here, United’s conduct—namely, its selective review of the record and deference to

the opinions of non-examining physicians who did not actually consider the mental requirements

of Whetstone’s occupation—is at least somewhat probative of Whetstone’s allegation that it was

predisposed to denying his LTD claim. Id.; see also Holler v. Hartford Life & Acc. Ins. Co., 737

F. Supp. 2d 883, 892 (S.D. Ohio 2010) (“Defendant's emphasis on its own doctor's record review

and its de-emphasis of the opinions of Plaintiff's treating physicians is a ‘serious concern’ that

‘taken together with some degree of conflicting interests’ can properly be the basis for setting aside

an insurer's discretionary decision.”) (quoting Glenn, 554 U.S. at 118). United does not point to

any evidence to the contrary. See Glenn, 554 U.S. at 117. Accordingly, this factor, to some extent,

casts its review process in an even more dubious light.

C. Conclusion

All told, United’s “unsupported (and at times internally inconsistent) rejection of the

opinions of [Whetstone’s] treating medical providers, coupled with its questionable reliance on

file reviews that were, under the circumstances, insufficient” to justify its final conclusion,

rendered its denial of Whetstone’s LTD benefits claim arbitrary and capricious. Haning, 140 F.

Supp. 3d at 675 (citing Smith, 275 Fed. Appx. at 509). This holding is not the result of any “single

factor.” Id. Rather, it is the “cumulative” product of the Court’s foregoing findings—all of which

demonstrate, on a collective scale, that United’s decision to deny Whetstone LTD benefits was

both substantively and procedurally irrational. Id.

IV. REMEDY

The Court, having determined that United’s denial of benefits was arbitrary and capricious,

now turns to the proper remedy. This requires it to answer two threshold questions: (1) whether

the LTD Policy’s “Mental Disorder Limitation” applies, and (2) whether Whetstone has

sufficiently proven that he is entitled to LTD Benefits. It answers both questions in the affirmative.

A. The “Mental Disorder Limitation” Applies

United argues in the alternative that, if Whetstone is entitled to benefits under the LTD

Policy, his benefits award should be capped to twenty-four months pursuant to the policy’s

“Mental Disorder Limitation.” (Def.’s Mot., ECF No. 13 at PageID #1082.) Whetstone disputes

this. (Pl.’s Resp., ECF No. 20 at PageID #1142.) He contends that, because the genesis of his

disability (PTSD) manifests “neurobiological changes” (i.e., “low cortisol”), as well as other

physical symptoms such as “headaches, sleep disturbance, nightmares, and flashbacks,” he is

physically disabled—and, therefore, that the Mental Disorder Limitation need not apply. (Id. at

PageID #1142-43.) In support, he points to one out-of-circuit case which reiterates that the

symptomology of PTSD can satisfy the “physical consequences” requirement of a negligent

infliction of emotional distress claim. See Sawyer Bros., Inc. v. Island Transp., 887 F.3d 23, 40-

41 (1st Cir. 2018).

The rules of tort law, however, do not apply here; the LTD Policy’s terms do. See, e.g.,

Javery, 741 F.3d at 701 (“To succeed in his claim for disability benefits under ERISA, Plaintiff

must prove by a preponderance of the evidence that he was ‘disabled,’ as that term is defined in

the Plan.”) And, here, that policy generally capped a claimant’s recovery period for any “Disability

[that] is a result of a Mental Disorder” to twenty-four months. (R. at 272.) It also, as noted, defined

the term “Mental Disorder” to include “any condition or disease, regardless of cause, listed in the

most recent edition of the International Classification of Diseases (ICD) and the Diagnostic and

Statistical Manual of Mental Disorders (DSM) as a mental disorder.” (R. at 282.) Post-traumatic

and “acute stress” disorders fall within the ambit of that definition during the relevant time-period.

(See, e.g., R. at 210, 333, 339) (referencing the ICD codes and DSM axes of acute stress reactions

and PTSD).

The gravamen of Whetstone’s disability stemmed from his susceptibility to driving-

induced panic attacks (or other “fear responses”) that could spontaneously force him off the road.

The symptoms associated with these episodes may be physical in nature, but they still “resulted”

from PTSD/acute stress—that is, from a “Mental Disorder.” There is no way to interpret

Whetstone’s disability claim otherwise. Accordingly, the Court finds that the LTD Policy’s

“Mental Disorder Limitation” applies.

B. Whetstone Is Entitled to LTD Benefits

Once a court determines that a plan administrator acted arbitrarily and capriciously, it “may

either award benefits to the claimant or remand to the plan administrator.” Elliott, 473 F.3d at 621.

“A remand to the plan administrator is appropriate ‘where the problem is with the integrity of the

plan's decision-making process, rather than that a claimant was denied benefits to which he was

clearly entitled.’” Haning, 140 F. Supp. 3d at 675 (quoting Elliott, 473 F.3d at 622). Remand,

however, is discouraged to the extent it gives a plan administrator “two bites at the proverbial

apple where the claimant is clearly entitled to disability benefits.” Cooper, 486 F.3d at 172. It is

incumbent on plan administrators to “properly and fairly evaluate the claim the first time around;

otherwise they take the risk of not getting a second chance, except in cases where the adequacy of

claimant’s proof is reasonably debatable.” Id. In that vein, claimants have been awarded benefits

when “objective medical evidence clearly established the claimant’s disability, even in

circumstances where the plan administrator’s decision-making process ‘was unquestionably

flawed.’” Calhoun v. Life Ins. Co. of N. Am., 665 Fed. Appx. 485, 497 (6th Cir. 2016) (quoting

Shaw, 795 F.3d at 551).

Here, objective medical evidence supported Whetstone’s disability claim. As discussed,

Whetstone’s medical records (including his “abnormal” EKGs and the observations of his treating

practitioners), hospitalization, and persistent reliance on a mix of anti-anxiety medications and

weekly psychotherapy all lend credence to the notion that he suffered from PTSD during the

relevant time period. See Hayden, 763 F.3d at 609 (awarding the plaintiff long-term disability

benefits arising from a mental disability claim because “[s]he supported her claim with the

opinions of” her three mental-health care providers, “each of whom separately agreed that she

suffered from anxiety and depression and was significantly impaired in her ability to perform the

functions of her, or any, occupation”). The record also shows that, throughout this period,

Whetstone (1) repeatedly suffered driving-induced panic attacks and (2) demonstrated an

increasing aversion to regular driving, going so far as to try to arrange third-party transportation

to his medical appointments.

While United never fully defined Whetstone’s “Material Duties” (or “Regular

Occupation”),8 it stands to reason that part of those duties included having the capacity to safely

maneuver a tractor trailer in high-stress situations. (See R. at 581, 584.) Whetstone’s condition,

as described, logically precluded that ability. (See Pl.’s Mot., ECF No. 14 at PageID #1096) (“Due

to his illness, in heavy traffic, Mr. Whetstone would likely need to pull of the road unexpectedly

8 United’s only attempt to define Whetstone’s occupation came in its Affirmation Letter, which noted that his position,

according to the DOL, “occasionally” required him to exert “20 pounds to 50 pounds of force.” (R. at 297.) This

reference—notwithstanding the fact that it had little to do with Whetstone’s driving responsibilities—is relevant to

the extent that it shows that United turned to the DOL to decipher Whetstone’s “Material Duties.” The Court, confined

to the record, does the same. (See R. at 581-84.)

to allow his PTSD or panic symptoms to subside. Trying to do this suddenly would be

dangerous.”).

Thus, in light of the foregoing, as well as the fact that United has not argued for remand,

the Court finds that Whetstone was “Disabled” under the LTD Policy—and, accordingly, is

entitled to LTD benefits. See Haning, 140 F. Supp. 3d at 676 (determining that the plan

administrator’s failure to argue for remand “forfeit[ed] the issue”) (citing, inter alia, Shelby Cnty.

Health Care Corp. v. Majestic Star Casino, 581 F.3d 355, 372 n.7 (6th Cir. 2009)).

V. CONCLUSION

For the foregoing reasons, the Court GRANTS Whetstone’s Motion for Judgment on the

Administrative Record (ECF No. 14) and DENIES United’s Motion for Judgment on the

Administrative Record (ECF No. 13). Pursuant to the terms of the LTD Policy, Whetstone is

entitled to benefits from the date his STD benefits expired (November 7, 2018) up to a maximum

period of twenty-four months.

This case is to be closed on the docket of this Court.

IT IS SO ORDERED.

3/28/2022 s/Edmund A. Sargus, Jr.

DATE EDMUND A. SARGUS, JR.

UNITED STATES DISTRICT JUDGE