Giberson v. Unum Life Insurance Company of America

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

AT BLUEFIELD

WALTER W. GIBERSON,

Plaintiff,

v. CIVIL ACTION No. 1:21-00305

UNUM LIFE INSURANCE

COMPANY OF AMERICA,

Defendant.

MEMORANDUM OPINION

By Order entered September 30, 2022, the court GRANTED

defendant’s motion for summary judgment and DENIED plaintiff’s

motion for summary judgment. The reasons for that decision

follow.

Background

On September 21, 1997, plaintiff, Walter J. Giberson, was

hired by Princeton Community Hospital (“PCH”) as a Security &

Safety Officer. See Administrative Record (“AR”) 52. PCH

purchased a long-term disability plan from Unum Life Insurance

Company (“Unum”), Policy No. 580366 (“the Plan” or “the Policy”),

and it provided long-term disability coverage, effective January

1, 2004, to all full-time employees as defined by the Policy. See

AR 117, 121. As a full-time employee of PCH, plaintiff was a

participant in the long-term disability plan offered by his

employer. See AR 372. The Plan is governed by the Employee

Retirement Income Security Act of 1974 ("ERISA"). See AR 117.

On December 30, 2005, Giberson submitted a claim for long-

term disability benefits to Unum. See AR 49-67.1 In support of

his claim, Giberson submitted an Attending Physician’s Statement

from his cardiologist, Dr. Naeem A. Qazi, opining that Giberson

was totally disabled on July 21, 2005, by cardiac conditions

(hypertension and angina) complicated by his status post kidney

transplant.2 See AR 50-51.

Unum found that Giberson was eligible to receive long-term

disability benefits under the Policy. See AR at 372. However,

1 Of what Giberson had to provide in support of his claim

for benefits, the Policy provided:

WHAT INFORMATION IS NEEDED AS PROOF OF YOUR

CLAIM?

Your proof of claim, provided at your expense,

must show:

- that you are under the regular care of a

physician;

- the appropriate documentation of your

monthly earnings;

- the date your disability began;

- the cause of your disability;

- the extent of your disability, including

restrictions and limitations preventing

you from performing your regular

occupations; and

- the name and address of any hospital or

institution where you received treatment,

including all attending physicians.

AR 124.

2 On June 25, 2003, plaintiff had undergone a kidney

transplant. See AR 71.

2

because the Policy contained a 180-day elimination period3 prior

to eligibility for long-term disability benefits, see AR 121, 134,

he did not begin receiving benefits until January 18, 2006. See

AR 372.

The long-term disability plan at issue herein is a two-tier

plan with the first tier covering the first 24 months a person

receives benefits under the Plan while the second tier governs

persons receiving benefits under the Plan for greater than 24

months. See AR 134. Eligibility for each tier is different. For

initial payments under the plan, a person is deemed disabled and

eligible for payments if "Unum determines that: - you are limited

from performing the material and substantial duties of your

regular occupation due to your sickness or injury; and - you have

a 20% or more loss in your indexed monthly earnings due to the

same sickness or injury." AR 134. In order to continue to

receive payments under the Plan after 24 months of payments, Unum

must determine "that due to the same sickness or injury, you are

unable to perform the duties of any gainful occupation for which

you are reasonably fitted by education, training or experience."

Id. In addition, the Policy also requires that a claimant “be

under the regular care of a physician in order to be considered

disabled.” Id. Obviously, the standard for demonstrating

3 “Elimination Period” is defined as “a period of

continuous disability which must be satisfied before you are

eligible to receive benefits from Unum.” AR 155.

3

continued eligibility beyond 24 months is more rigorous because a

person must be deemed by Unum as unable to perform the duties of

any gainful occupation,4 rather than just unable to perform the

duties of his or her regular occupation as is required for the

first 24 months.

Giberson received benefits under the Plan for the initial 24

months, see AR 372, and was also deemed eligible to receive

benefits under the Plan beyond that time under the second tier.

See AR 774-78. He received benefits under the Plan for fourteen

years.5

On January 6, 2020, Unum informed Giberson that it would be

performing a review of his benefit eligibility and requested proof

of his continued disability. See AR 124, 1820-21. To that end,

the Policy provided:

We may request that you send proof of continuing

disability indicating that you are under the regular

care of a physician. This proof, provided at your

expense, must be received within 45 days of a request by

us.

In some cases, you will be required to give Unum

authorization to obtain additional medical information

and to provide non-medical information as part of your

4 “Gainful Occupation” is defined as “an occupation that

is or can be expected to provide you with an income at least

equal to your gross disability payment within 12 months of your

return to work.” AR 155.

5 During that period, Giberson’s LTD benefit was

terminated twice, but on both occasions the decision to terminate

benefits was reversed on appeal. See AR 512, 714, 719, 1600,

1723, 1726.

4

proof of claim, or proof of continuing disability. Unum

will deny your claim, or stop sending you payments, if

the appropriate information is not submitted.

AR 124.

Giberson’s disability update form was provided to Unum on

February 10, 2020. See AR 1828-31. Giberson reported that he was

under the care of three medical providers: 1) Dr. Parrish

(internal medicine); 2) Dr. Sekkarie (nephrology); and 3) Dr.

Africa (general surgery, kidney transplant). See AR 1829. He

further reported that he had received a cardiac work-up at

Princeton Community Hospital in August 2019. See id. Giberson

stated that he was able to care for himself without assistance and

perform day-to-day activities, including light housework, laundry,

email, watching television, reading, cooking, and visiting his

mother 2 to 3 times a week. See AR 1828.

On April 23, 2020, Giberson informed Unum that Dr. Parrish

had given him a referral for a functional capacity evaluation

(“FCE”), but he was having difficulty finding someone to perform

it because of his insurance. See AR 2064. He also reported that

he was currently suffering from rheumatoid arthritis in both hands

and his lower back, making it difficult to even open a bottle of

water or stand straight for more than 5-6 minutes. See id.

Giberson mentioned having a cardiac workup because of chest pains

and shortness of breath while walking through the house. See id.

Of his kidney function, Giberson reported that it “has started

5

going down,” “[c]reatinine [is] running higher than they want,”

and “[he’s] thinking 45 or 50% kidney function is all I got.” Id.

On May 19, 2020, Unum contacted plaintiff to see if a FCE was

pending. See AR 2106-07. Giberson stated that he had not

scheduled a FCE because it was not covered by his insurance. See

id. When asked why his recent medical records did not reflect

treatment for rheumatoid arthritis, Giberson told Unum that most

medication cannot be prescribed because of his kidney transplant.

See id. He reported that he walked on the treadmill every other

day and had stopped a different exercise program when his

creatinine levels increased. See id. He shared his fear that his

transplanted kidney was declining/wearing out, that he was having

difficulty sleeping, and that he may have undiagnosed sleep apnea.

See id. Unum reminded Giberson to provide all information and/or

evidence he wanted considered during his claim review. See id.

Unum gathered and reviewed medical records from each of

Giberson’s physicians. See AR 2003-42, 2045-62, 2066-76. Unum

also requested of each provider information related to Giberson’s

functional capacity.

Dr. Parrish did not offer an opinion on plaintiff’s

functional capacity. See AR 2009. Unum’s records revealed that

Dr. Parrish did not do so because he believed doing so would

require an FCE and Dr. Parrish did not do those. See id. Dr.

Parrish saw Giberson six times between February 2019 and February

6

2020. See AR 2049-61. On April 9, 2019, Giberson was seen for a

routine follow-up with no complaints, “said he feels fine” and

reported “taking and tolerating medications well without noted

difficulty or side effects.” AR 2059. Dr. Parrish identified

hypertension, hyperlipidemia, rheumatoid arthritis, gout, chronic

kidney disease, and recurrent cold sores as the conditions being

monitored. See AR 2059-61. Dr. Parrish also reported that

Giberson’s chronic illnesses were “stable.” AR 2059.

On May 24, 2019, Giberson was seen by Nurse Practitioner

(“NP”) Beverly Whitt complaining of chest congestion and cough and

was diagnosed with headache syndrome and sinusitis. See AR 2056-

58. On that visit, the medical records show that a chest and lung

cardiovascular exam were “normal.” AR 2057-58.

On August 12, 2019, Giberson was again seen by NP Whitt and

diagnosed with sciatica and gastroesophageal reflux disease. See

AR 2055. The medical records from that visit once again showed

that the chest and lungs and cardiovascular examination were

“normal.” AR 2054-55.

Two weeks later, on August 26, 2019, Dr. Parrish saw Giberson

for complaints of chest pain/pressure after “bench pressing more.”

AR 2053. According to Giberson’s self-report, the onset of the

pain was “sudden” and “worsening.” Id.

On October 9, 2019, Giberson was seen for a routine follow-up

with no complaints. See AR 2052. Dr. Parrish further noted that

7

plaintiff’s chronic illnesses were “stable” and that Giberson

reported “taking and tolerating medications well without noted

difficulty or side effects.” Id.

On February 11, 2020, NP Whitt saw plaintiff for a sore

throat, congestion, and cough, and diagnosed him with an acute

upper respiratory infection. See AR 2049-51. On that visit, it

was noted that Giberson’s heart rhythm was “regular” and his heart

sounds were “normal.” AR 2051.

Dr. Sekkarie's records indicated that Giberson had been seen

by him on October 15, 2019, for routine follow-up monitoring of

his kidney transplant status, and related hypertension and

hyperarathyroidism conditions. See AR 1942. According to Dr.

Sekkarie’s records: “There have been no medication changes.

Since the last visit the patient denies problems with chest pain,

edema, nausea, vomiting, urinary symptoms, fever, at this time."

Id. Dr. Sekkarie concluded that Giberson’s hypertension and

hyperparathyroidism were stable, although his kidney function had

worsened. See AR 1943. Nevertheless, Dr. Sekkarie continued

Giberson on all the same medications and wrote that he should

return for a follow-up in twelve months. See id.

On behalf of Dr. Africa, a nurse named Melissa F. at the

Charleston Area Medical Center's Renal Transplant department,

wrote of Giberson's medical condition that "from transplant

standpoint patient is stable." AR 1965. That same letter also

8

stated that the transplant clinic did not complete disability

forms. See id. Unum received a record of an office visit from

Dr. Africa's office dated June 29, 2019, an annual follow-up on

Giberson’s transplant monitoring. See AR 1971-74. It appears

that Giberson was examined on that date by Nurse Practitioner

Lorie D. Lipscomb. See id. Of that encounter, NP Lipscomb wrote:

Patient's creatinine is 2.3 today over the past couple

years the patient's baseline has increased to 1.82.2

range. Historically the patient ran a baseline of 1-

1.3-1.5 the patient underwent kidney biopsy in 2016

which was negative for rejection showed acute tubular

injury. States he has been lifting weights and working

our recently. . . .

The patient reports he's had no issues in the last year

no admission the only issue he has had was a Upper

respiratory infection. . . . He reports chronic

shortness of breath which has been evaluated and the

patient was told that they thought he had underlying

asthma which she [sic] states he had as a child.

* * *

creatinine 2.3 slightly above his baseline patient

reports he has been lifting weights to build muscle

mass. . . .

Id.

Unum reached out to Dr. Qazi, who had previously opined that

Giberson was disabled. See AR 1838-40. The statement received

from Dr. Qazi, dated February 27, 2020, indicated that he was

unaware of any recent medical procedures or hospitalization,

described Giberson’s treatment plan as “conservative management,”

and stated that he was otherwise unable to opine on Giberson’s

functional capacity or any physical restrictions from a cardiac

9

perspective because he had not seen Giberson since December 11,

2018. See id.

Plaintiff was seen by Dr. Qazi on March 3, 2020. See AR

1928-37. Dr. Qazi’s records indicated that Giberson was seen for

a routine follow-up and to discuss a stress test taken in

September 2019. See AR 1929. The results of the stress test were

not produced. See AR 1928-37. Dr. Qazi noted that Giberson

“state[d] he is doing well, no new concerns.” AR 1929. Dr. Qazi

further reported that Giberson "has been doing okay denies any

chest pains or dyspnea." AR 1937. Unum followed up with Dr. Qazi

to see if he had an opinion on Giberson’s functional capacity,

having seen him on March 3. Dr. Qazi responded on March 31, 2020,

indicating that he did not believe Giberson could lift, carry,

push or pull and that he was not able to perform the listed

occupational demands on a full-time basis. See AR 2014-15. On

May 20, 2020, a medical consultant for Unum, Dr. Wendy Weinstein,

contacted Dr. Qazi’s office to discuss the missing stress test.

See AR 2124. Dr. Weinstein was informed that the test was

unremarkable with no ischemia identified. See id.

On April 30, 2020, Megan M. Yeaton, RN, BSN, undertook an

internal clinical review and analysis of Giberson’s file on behalf

of Unum. See AR 2100-05. Ms. Yeaton concluded that based on the

record, she was unable to identify evidence that Giberson could

not perform sedentary work. See AR 2105. Specifically, Yeaton

10

noted that Giberson's nephrology records showed "no acute cellular

rejection" and that he had "not been hospitalized or shown

concerns for organ rejection." AR 2104. Nurse Yeaton noted a

"slow, gradual increase in BUN and baseline creatinine" but that

there had "been no changes to antirejection medications and the

frequency of the treatment plan has remained unchanged." Id.

According to Yeaton, "[t]he frequency of follow up care with

transplant clinic and the nephrologist is consistent with chronic,

stable kidney disease." Id.

Of Giberson's complaints regarding fatigue, Yeaton found the

"medical records, specifically the review of systems, fail to

capture consistent reports of fatigue to support impairment." Id.

She likewise found Giberson's complaints regarding side effects

from his medications were not supported by the medical records.

See id. Finally, based on her review of Giberson's cardiology

records, Yeaton could find "no support for cardiac-based"

restrictions or limitations. Id.

Dr. Weinstein also reviewed Giberson’s file on behalf of

Unum. In so doing, she reached out to Dr. Qazi’s office on June

3, 2020. See AR 2121-25. In her letter to Dr. Qazi, Dr.

Weinstein wrote:

You indicated on a Work Capacity Narrative dated 3/31/20

that Mr. Giberson could not perform the listed sedentary

occupational demands which include lifting, carrying,

pushing or pulling up to 10 pounds occasionally.

11

Mr. Giberson has noted activities including working out

with lifting weights and bench pressing, taking short

walks, driving and doing light housework.

It does not appear that the clinical information which

notes stable cardiac and kidney function with no

physical examination abnormalities or decline in

functional activites is consistent with an impairment

precluding Mr. Giberson from performing the listed

sedentary occupational demands on a full-time basis.

AR 2123. Thereafter, on June 4, 2020, Dr. Qazi stated that he

believed “from a cardiac standpoint” Giberson could perform the

stated functions although he continued to check the "No" box. AR

2125, 2122-23. Dr. Weinstein concluded that she was unable to

identify any evidence in the records indicating that Giberson was

unable to perform sedentary work. See AR 2127-28.

On June 8, 2020, a vocational assessment was completed by

Beth S. Darman, M.Ed., NCC, CRC, LPC, Senior Vocational

Rehabilitation Consultant, to assess Giberson’s ability to engage

in a gainful occupation based on his education, training and/or

experience. See AR 2129-32. Upon consideration of the record

evidence, Ms. Darman concluded that there were at least three

sedentary job classifications she believed Giberson was capable of

performing: Dispatcher, Information Clerk, and Call Center

Representative. See AR 2130-31. She further stated that these

occupations existed in Giberson's labor market and they "are not

intended to constitute a complete list of occupations the claimant

can perform." AR 2131.

12

On June 9, 2020, Unum terminated Giberson’s benefits. He was

informed by phone and letter. See AR 2154, AR 2138-44. In

denying Giberson’s claim, Unum wrote:

Information that Supports Our Decision

To remain eligible for benefits you must be disabled

from performing the material and substantial duties of

your pre-disability occupation or alternate gainful

occupations you are qualified to perform.

* * *

You went out of work on July 22, 2005, due to chest

pain. You also have history of a kidney transplant in

2003, reported rheumatoid arthritis, hypertension and

COPD.

We contacted you physicians and asked them to comment on

your ability to work full-time within the following

occupational demands:

• Mostly sitting

• Standing or walking for brief periods of

time

• Ability to make positional changes

• Exerting up to 10 pounds occasionally to

lift, carry, push, or pull.

• Occasional keyboarding

• Frequent handling, fingering, feeling

• Frequent reaching at desk level

Your transplant nephrologist, Dr. Africa, responded that

he does not complete disability forms; however, states

you are stable from a transplant standpoint.

Your primary care physician, Dr. Parrish, referred you

for a Functional Capacity Evaluation, however, you have

not found a facility that will take your insurance.

Your cardiologist, Dr. [Q]azi, indicated you were unable

to work and noted you were unable to do any lifting,

carrying, pushing or pulling.

Your file was reviewed to determine if the information

available supports you would be precluded from

13

performing the above noted demands on a full-time basis.

Our review has concluded the medical information does

not support you are impaired from performing the above

referenced occupational demands.

At the time of our last medical review of your claim

there was concern regarding possible graft versus host

disease, however, your nephrology records reflect no

acute cellular rejection rather a biopsy showed evidence

of acute tubular injury.

Your labs show gradual increase in BUN and baseline

creatinine, however, there ha[ve] been no changes to

your anti-rejection medications. As noted, your

transplant nephrologist has indicated you are stable

from a transplant standpoint.

You report the inability to return to work due to

fatigue, immunosuppression, and rheumatoid arthritis

affecting your hands and back. You also report getting

short of breath just walking through your house.

Through review of your records there have been no

reports to your providers of impairing fatigue or

treatment for fatigue. Although you remain on

immunosuppressants, other than upper respiratory

infections in 2019 and February 2020, you have not

experienced repeated infections. The records do not

document significant side effects from your medications.

It is noted you reported back and hand pain at your

visit with Dr. Africa in June 2019. Your

musculoskeletal exam noted you had normal range of

motion and no tenderness or swelling was noted. Records

from Dr. Parrish do not reflect any functional deficits

from rheumatoid arthritis. Your gait and posture are

described as normal and you are able to use a computer

on a daily basis.

It is noted you have had asthma since childhood as well

as allergies and COPD. You have not been noted to be

short of breath or have labored breathing in your

doctor’s examinations. Your room air oxygen saturation

levels are normal and your pulmonary examinations are

overall normal with the exception of 2 prior respiratory

infections.

14

Your hypertension is well controlled and your heart rate

is within normal limits with regular rhythm. A December

2018 echocardiogram showed adequate heart function.

Your treatment records reflect you were exercising

including lifting weights, including bench pressing. We

discussed this and you indicated you were at one time

lifting light weights, however, [you] ceased this

activity as it increases your creatine. You note now

you only walk for exercise.

It was unclear why Dr. Qazi was indicating you were

unable to lift, carry, push or pull up to 10 pounds

given your stable cardiac function. Our physician

contacted him to clarify this further. Upon further

consideration of your stable cardiac function he has

released you to work full-time within the demands noted

above.

There is currently no physician supporting continued

impairment and our review of the available information

does not support your medical conditions would preclude

you from performing the above noted demands.

Our evaluation of your claim included a review of your

medical restrictions and limitations, your employment

history, and your educational background. With the

assistance of our Vocational department, we have

identified the following occupational options within

your capacity as outlined above:

1. Dispatcher Sedentary $16.29

2. Information Clerk Sedentary $11.87

3. Call Center Representative Sedentary $11.08

Our review has concluded you are not disabled from

performing alternate gainful occupations. Your claim

has been closed effective June 10, 2020.

AR 2139-41. Giberson was further informed of his right to appeal

Unum’s decision. See AR 2143.

By letter received on June 26, 2020, Giberson appealed Unum’s

decision. See AR 2158-62. Attached to his notice of appeal was a

letter from NP Lorie Lipscomb from the CAMC Renal Transplant Unit,

15

excusing Giberson from work due to COVID-19 concerns. See AR

2162. According to Lipscomb, "it will not be safe for patients

undergoing immunosuppression possibly for the remainder of the

year." Id.

In response to Giberson’s appeal and NP Lipscomb’s letter,

Dr. Weinstein reached out to NP Lipscomb on July 14, 2020. See AR

2184-86, 2196. NP Lipscomb explained that her concern was that

Giberson had been out of work for a prolonged period of time and

would likely require "one-on-one interaction with a trainer" to

return to work, thereby increasing his risk of COVID-19 exposure.

AR 2196. As a result of this conversation, Unum sent a list of

questions to Dr. Africa c/o NP Lipscomb. See AR 2196-97. NP

Lipscomb responded on July 27, 2020, agreeing with Unum that

Giberson’s COVID-19 risk would be satisfactorily mitigated if, in

addition to a prospective employer’s management of infection

control, he used personal protective equipment (“PPE”) and adhered

to the advice of OSHA and the CDC. See AR 2190-92. NP Lipscomb

also opined that Giberson was otherwise capable of performing

sedentary work. See id.

On August 6, 2020, Giberson was notified that his claim had

been reconsidered in light of the COVID-19 risk identified by NP

Lipscomb, and that after consulting NP Lipscomb, Unum had decided

its decision did not need to be delayed due to COVID-19. See AR

2203-05. Unum informed Giberson:

16

An updated vocational review was completed to determine

the risk of exposure in the identified occupations.

Their review concluded these occupations would present

low risk of coronavirus exposure with the use of

personal protective equipment such as use of a face

covering or mask, wearing gloves and following CDC

guidelines such as washing hands and social distancing.

The occupations identified are performed in an office

environment and would be considered low risk for

exposure.

Our physician board certified in Internal Medicine

contacted Dr. Africa and Ms. Lipscomb to clarify if you

are able to work within the above noted demands with the

use of personal protective equipment and adherence to

CDC guidelines. They confirmed you are able to work

full-time.

As such, your claim will remain closed and will be

referred to our Appeals Department for further review.

AR 2204.

On August 31, 2020, Giberson submitted a note to Unum

attaching a lab test result from July 12, ordered by Dr. Africa,

reflecting an abnormal renal function test. See AR 2273-75. He

also provided records from three visits at Dr. Parrish’s office.

On May 26, 2020, Giberson saw Dr. Parrish for "thyroid issues,"

complaining of difficulty sleeping and worsening arthritis,

including left hip pain and pain with walking. See AR 2284-87.

Dr. Parrish recommended blood work that was not produced. See id.

On July 23, 2020, Giberson was seen by NP Whitt because he had

fallen and injured his left arm. See AR 2289-91. NP Whitt

recommended x-rays that were not provided. See id. On August 26,

2020, Giberson saw Dr. Parrish for a follow-up and complained of

shortness of breath, collar bone pain, and pain in his hips. See

17

AR 2276-83. Dr. Parrish noted that Giberson was taking and

tolerating his medications well and without noted difficulty or

side effects and that the chronic illnesses being monitored by him

were stable. See id. Dr. Parrish recommended bloodwork and

referred Giberson to Rheumatology, recommending that he follow up

in six months or as needed. See id.

In connection with his appeal, Unum interviewed Giberson on

August 25, 2020. See AR 2264-66. During that interview, Giberson

stated (1) that his medications cause him fatigue, weakness, and

drowsiness; (2) that he has shortness of breath he believes is

caused by asthma or his kidney transplant; (3) that his blood

pressure sometimes runs high; (4) that his hands are swollen and

his right hand may be “turning to one side;” (5) that his prior

medical records referring to weight lifting/bench pressing were

taken out of context by his doctors, and refer only to his use of

“light resistance bands” and “5-8 pound dumbbells;” and (6) that

he has a compromised immune system. He offered to have an FCE

performed. See id.

Giberson also reported that although his kidney is

functioning, "they are keeping a closer eye on" it. AR 2264. He

also stated that his creatinine and BUN are starting to be

"unstable." Id. Giberson indicated his belief that he was pre-

diabetic and had cysts on his kidney. See id. Giberson

attributed his hip pain to the medications he was taking which he

18

believed eroded the hips over time. See AR 2264-65. He further

stated that he was able to walk in his yard and exercise with

light weights only a couple of days a week. See id. Giberson did

acknowledge that his doctors recommend he move as much as possible

but he is fearful of his kidney and does not want to risk it. See

id. He indicated that he planned to see a rheumatologist although

he had not seen one in 17 years. See id.

As part of Giberson’s appeal, additional medical information

from Giberson’s medical providers was received by Unum. Giberson

was seen by NP Lipscomb (of Dr. Africa’s office) on June 18, 2020,

who reported that Giberson had been “feeling down,” depressed, or

hopeless because of “Social Security wanting him to go back to

work especially in the middle of the” COVID-19 pandemic. AR 2269.

Giberson also told NP Lipscomb that he was “under a lot of stress”

and that he had been advised “not to return to the workforce at

this time due to too many unknown variables and the life and death

consequences of returning to work during a pandemic.” Id.

Giberson reported not taking all prescribed medications due to

cost. See id. His blood pressure was “slightly elevated” and

kidney function was “stable.” AR 2270. His creatinine was 1.9.

See id.

Dr. Qazi provided records from an appointment on September 3,

2020, where Giberson complained of shortness of breath and hip

pain. See AR 2299-302. Dr. Qazi noted that he advised Giberson

19

to walk/get some exercise. See id. Dr. Qazi stated that Giberson

“does have multiple medical problems and is completely disabled at

this time.” AR 2302. Dr. Qazi also provided the results from the

September 2019 stress test discussed above, the results of which

were unremarkable. See AR 2312-13.

Unum obtained records from Dr. Syed Ahmad, the rheumatologist

Giberson saw on September 22 and 30, 2020. See AR 2335-45. On

September 22, 2020, Dr. Ahmad diagnosed Giberson with rheumatoid

arthritis with negative rheumatoid factor and generalized

hypertrophic osteoarthritis. See AR 2341. Dr. Ahmad recommended

using heat, rubs, and analgesic creams and encouraged Giberson to

undertake a low-impact exercise program. See AR 2344. Dr. Ahmad

did not make any changes to Giberson's medications. See id.

On September 30, 2020, Dr. Ahmad reviewed Giberson’s x-rays

with him. See AR 2335-39. According to Dr. Ahmad, the x-rays

showed the following: that his right wrist showed mild

degenerative osteoarthritis changes; his left wrist showed minimal

narrowing of the radiocarpal joint with no evidence of osseous

erosion; his pelvis and knee x-rays showed those joints to be well

preserved and free of any focal tissue swelling. See AR 2336.

Dr. Ahmad prescribed hydroxychloroquine. See AR 2339.

On September 24, 2020, Unum obtained another vocational

assessment from Kelly Marsiano, M.Ed., CRC, a Senior Vocational

Rehabilitation Consultant. See AR 2317. Ms. Marsiano reviewed

20

Ms. Darman’s vocational assessment of June 8, 2020, as well as the

new evidence produced on appeal. See id. Ms. Marsiano concluded

that Ms. Darman’s analysis remained valid because the jobs she had

identified allowed for Giberson’s ability to take breaks from

sitting, to stand or walk for brief periods of time throughout the

day, and were still gainful occupational options for Giberson.

See id.

Also on September 24, 2020, Unum obtained a supplemental

independent medical analysis of Giberson’s record from Dr. Suzanne

E. Benson. See AR 2319-27. Dr. Benson was board certified in

Physical Medicine & Rehabilitation, Pain Medicine, and

Electrodiagnostic Medicine. See AR 2324. Dr. Benson concluded

that the evidence in the record, including that produced on

appeal, did not support restrictions and/or limitations that would

preclude Giberson from working in a sedentary occupation. See AR

2322-24. According to her, "[e]xaminations have not documented

any physical deficits that would preclude the sedentary physical

activity being considered." AR 2323.

On October 13, Unum commissioned the services of Dane Street

to identify a cardiologist to coordinate and perform an

Independent Medical Examination (“IME”) for Giberson. See AR

2373-86. The IME was conducted on December 3, 2020 by Dr. Roger

Seagle of Cardiology Associates of the Carolinas. See AR 2393-97.

As to Giberson’s rheumatoid arthritis, Dr. Seagle opined that

21

“[i]t does not appear that he has limitation of activity with

arthritis.” AR 2396. Of Giberson’s kidney disease, Dr. Seagle

acknowledged that Giberson “has chronic renal disease with a

history of renal transplantation” but that “[h]is renal function

has been stable.” Id. Dr. Seagle wrote of Giberson’s report that

his creatinine has increased over the last year but noted that

Giberson “is followed on an annual basis by nephrology and no

changes have been made in his regimen.” Id. Dr. Seagle opined

that his renal condition “would not appear to affect his day-to-

day activity except for the risk of infection due to his

immunocompromised status and the potential of exposure to

infectious agents.” Id. According to Dr. Seagle, "Mr. Giberson

would be precluded from work activity from 6/10/2020 in a public

setting due to his immunocompromised state. During the COVID-19

pandemic his risk for infection is greatly increased due to the

anti-rejection medication which he is taking. He would be able to

do sedentary work with rest breaks in an isolated setting." AR

2418.

On December 11, 2020, Unum asked Dr. Seagle to supplement his

report to additionally consider whether his opinion would be

impacted if Giberson used PPE and complied with CDC guidelines.

See AR 2409. In Dr. Seagle’s report, as supplemented on December

27, 2020, he opined that Giberson was capable of sedentary work

with rest breaks in an isolated setting or, with the use of PPE

22

and following CDC guidelines, in a non-isolated setting. See AR

2409-19. Dr. Seagle also opined that Giberson was capable of

performing light activity that involves mostly sitting and walking

for brief periods of time if permitted to make positional changes

and frequent keyboarding as well as handling, fingering, and

feeling at desk level, with lifting, carrying, pushing, and

pulling limited to occasional and weight up to 10 pounds. See AR

2413-19.

On January 8, 2021, Ms. Marsiano was asked to reconsider her

vocational assessment and opinion in light of Dr. Seagle’s report.

See AR 2422-23. Ms. Marsiano concluded that the vocational

options presented on June 8, 2020, Dispatcher, Information Clerk,

and Call Center Representative, remained “viable” options for

Giberson. AR 2423.

On January 13, 2021, Unum informed Giberson that his appeal

had been denied. See AR 2429-37. In denying Giberson’s appeal,

Unum wrote:

You stopped working on July 23, 2005 due to coronary

artery disease and underwent a cardiac catheterization

on August 25, 2005. Your medical records document a

history of asthma, arthritis, renal failure and kidney

transplant in 2003.

Your Long Term Disability claim was approved on April

13, 2006 as the medical information supported that you

were unable to perform the material and substantial

duties of your regular occupation as a Security Guard.

After 24 months of benefits, the Long Term Disability

definition of disability changes. As of January 18,

2008, you must be unable to perform the duties of any

23

gainful occupation for which you are reasonably fitted

by education, training or experience.

* * *

It was determined that you could perform the duties of

alternate gainful sedentary occupations. You were no

longer disabled under the policy and benefits were no

longer payable beyond June 9, 2020.

After the claim closed, you provided a letter from Lori

Lipscomb (Nurse Practitioner) noting that you were

currently undergoing immunosuppression and due to COVID

concerns, it was not safe for you to return to work.

The file was returned to the Benefits Center for review

and reconsideration.

The Benefits Center completed an updated vocational

review of the alternate sedentary occupations. They

concluded that the occupations would be considered low

risk with the use of personal protective equipment (PPE)

and following CDC guidelines. Examples could be the use

of mask[s], wearing gloves, washing hands, and social

distancing. The alternate options are performed within

an office environment and it would be reasonable [to

conclude] these would be considered low risk.

The Benefits Center completed peer contact with Lori

Lipscomb. Your provider indicated that you could

perform full time sedentary work (as noted above) if

using the appropriate PPE and following CDC guidelines.

The decision did not change and the file was returned to

appeals for review.

Appeal Decision:

We determined the decision on your claim was correct.

Information that Supports our Decision:

Vocational Consideration:

On appeal, we completed a vocational review of the

alternate sedentary occupations. In addition to the

demands noted above, the occupations allow for the

ability to take breaks from sitting to stand or walk for

brief periods of time throughout the day.

24

Medical Consideration:

On appeal, a physician board certified in Physical

Medicine and Rehabilitation independently reviewed your

file, including but not limited to the additional

information you submitted, and gave appropriate weight

to the opinion of your treating providers. The focus of

the appeal review was to determine if you continued to

be disabled beyond June 9, 2020. Our review documents

the following:

The medical records in the file document that you

continue to be treated by Dr. Naeem Qazi (Cardiology),

Dr. Christopher Parrish (Internal Medicine), Dr.

Mohammed Sekkarie (Nephrology), Dr. Syed Ahmad

(Rheumatology) and the Kidney Transplant Clinic.

Cardiac Condition

On December 11, 2018, you underwent an echocardiogram

which showed mild tricuspid regurgitation and normal

left ventricular ejection fraction.

On September 3, 2019, you underwent Lexiscan Stress Test

and Cardiolite Myocardial Perfusion test. This showed

no ischemia, no infarct, and normal left ventricular

ejection fraction. Testing supported functional cardiac

reserve, and Dr. Qazi continued to advise walking and

lifting weights through the September 3, 2020 visit.

The medical condition in the file failed to support an

impairing heart condition.

Rheumatoid Arthritis

Rheumatoid arthritis (RA) was included in the medical

records and your CCP antibody test was elevated, which

is consistent with this condition. The office visit

dated August 26, 2020 with Dr. Parrish documented ulnar

deviation of metacarpal joints, which is also consistent

with the diagnosis.

The office visit on June 20, 2019 with the Transplant

Clinic documented normal range of motion and strength

with no tenderness or swelling. There was no

documentation of findings consistent with active RA.

25

During a telephone conversation on August 25, 2020, you

indicated that you had not seen your Rheumatologist in

years as you could not take medications for this

condition. You stated that you regularly take

medications (Cyclosporine, Prednisone) to decrease the

risk of renal transplant rejection and these medications

also treat RA.

The medical records and most recent examinations in the

file document normal range of motion, gait and strength.

Exercise was an ongoing recommendation, which is

inconsistent with inability to perform sedentary

activity.

The medical records in the file do not document

significant joint findings approaching June 10, 2020

(the date benefits ended) that would support active RA

of a severity to preclude full time sedentary activity.

Renal Condition

While a higher Creatinine level was reported by your

cardiologist on September 3, 2020, stable kidney

function was noted by the Transplant Clinic on June 18,

2020.

The transplant clinic noted that you were able to

perform full time sedentary work with appropriate use of

PPE in a July 27, 2020 narrative.

The medical records in the file do not support that your

renal condition limited you from performing full time

sedentary work as of June 10, 2020.

Other Medical Conditions

The medical records dated July 23, 2020 document that

you fell and hurt your left arm. The records in the

file do not support residual injury that would be

expected to preclude full time sedentary activity.

You have co-morbid medical conditions of hypertension,

hyperlipidemia and gout. These conditions are not being

asserted as impairing and on analysis, there is no

evidence that these issues rise to a level of impairment

that would warrant any restrictions or limitations.

26

Medication Side Effects

You reported medication side effects in your appeal

letter. Dr. Qazi also indicated in your September 3,

2020 office visit that you had side effects from your

steroid and anti-rejection medications.

However, you denied medication side effects to Dr.

Parrish on April 9, 2019. You also denied medication

side effects on October 9, 2019 to Nurse Practitioner

Whitt and again to Dr. Parrish on August 26, 2020. The

office visits with Dr. Parrish documented that you were

alert and oriented with no impairment of memory,

attention or concentration.

The medical records and examinations do not support

impairing medication side effects as of June 10, 2020.

Our review concluded that the information in your claim

file does not support that you are limited from

performing full time sedentary work as referenced in the

above noted vocational reviews. During a telephone

conversation on August 25, 2020, you requested an

Independent Medical Examination.

Independent Medical Examination (IME)

On December 3, 2020, you attended an IME with Dr. Roger

Seagle (Cardiologist). This physician reviewed your

medical history, social history, surgical history,

medications, allergies and family history. He completed

a physical examination. The IME reported the following

assessment:

You have been diagnosed with RA. You have a history of

negative rheumatoid factor as well as no evidence of

erosions or other stigmata of RA on radiographic

examination. The only supporting evidence is an

elevated CCP antibody. Your treatment plan is the

medications prednisone and hydroxychloroquine and your

only significant symptom is that of morning stiffness.

The IME provider noted that your physical examination

was more consistent with degenerative osteoarthritis and

you did not have activity limitation due to arthritis.

Your cardiovascular physical examination noted normal

carotid artery and jugular vein. PMI was not displaced

and the hepatojugular reflux was absent. Normal cardiac

27

rhythm and heart rate. Normal heart sounds with no

murmur and no gallop.

You reported low back pain and neck pain. You had full

range of motion of your cervical and lumbar spine on

physical examination. The x-ray reports showed minimal

degenerative findings. The IME provider noted that you

had no symptoms of degenerative disc disease.

You have been diagnosed with gout. Your treatment plan

is the medication allopurinol. You have not reported

any recent acute flares.

Dr. Seagle concluded that you would be able to perform

activity “which involves mostly sitting and walking for

brief periods of time if permitted to make positional

changes. He should be able to perform frequent

keyboarding as well as handling, fingering and feeling

at desk level. Lifting, carrying, pushing and pulling

would be limited to occasionally with weight up to 10

pounds.”

Dr. Seagle also indicated that you would need rest

breaks in an isolated setting.

Independent Medical Examination Addendum

We requested an IME addendum to clarify the restrictions

of rest breaks in an isolated setting. As noted above,

the alternate sedentary occupations would be considered

low risk with the use of personal protective equipment

(PPE) and following CDC guidelines.

Dr. Seagle opined that you would be able to perform full

time sedentary work with the use of PPE, social

distancing, wearing gloves and frequent handwashing. He

also indicated that you would need frequent breaks of

approximately 15 minutes at two hour intervals during

the work day.

Our appeals vocational consultant further reviewed the

file based on the IME provider’s findings and advised

that the alternate sedentary occupations of Dispatcher,

Information Clerk and Call Center Representative would

allow taking 15 minute breaks after two hours of work.

AR 2429-33.

28

It is this denial of benefits that is the subject of the

Complaint filed herein.

Summary Judgment Standard

“‘When cross-motions for summary judgment are before a

court, the court examines each motion separately, employing the

familiar standard under Rule 56 of the Federal Rules of Civil

Procedure.’” Shupe v. Hartford Life & Accident Ins. Co., 19

F.4th 697, 706 (4th Cir. 2021) (quoting Desmond v. PNGI Charles

Town Gaming, L.L.C., 630 F.3d 351, 354 (4th Cir. 2011)).

Rule 56(a) of the Federal Rules of Civil Procedure provides:

The court shall grant summary judgment if the movant

shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as

a matter of law.

In determining whether a genuine issue of material fact exist, a

court must “‘view the facts and all justifiable inferences

arising therefrom in the light most favorable to . . . the

nonmoving party.’” Shupe, 19 F.4th at 706 (quoting Jacobs v.

N.C. Admin. Office of the Courts, 780 F.3d 562, 565 n.1 (4th Cir.

2015)).

Analysis

A. Standard of Review

In Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115

(1989), the Supreme Court held that “a denial of benefits

challenged under [ERISA} is to be reviewed under a de novo

29

standard unless the benefit plan gives the administrator or

fiduciary discretionary authority to determine eligibility for

benefits or to construe the terms of the Plan.” “If the plan

gives the administrator or fiduciary discretionary authority to

make eligibility determinations, the review is for abuse of

discretion.” Shupe, 706 F.4th at 706 (citing Metro. Life Ins.

Co. v. Glenn, 554 U.S. 105, 111 (2008)).

The Fourth Circuit "does not require specific phrases to

trigger a particular standard of review. Rather, we examine the

terms of the plan to determine if it vests in its administrators

discretion either to settle disputed eligibility questions or

construe doubtful provisions of the Plan." Feder v. The Paul

Revere Life Ins. Co., 228 F.3d 518, 522 (4th Cir. 2000). A court

should “find discretionary authority in the administrator if the

plan's language expressly creates discretionary authority.” Id.

In the case of the long-term disability plan at issue here,

the Policy provides:

You are disabled when Unum determines that:

* you are limited from performing the material

and substantial duties of your regular

occupation due to your sickness or injury; and

* you have a 20% or more loss in your indexed

monthly earnings due to the same sickness or

injury.

After 24 months of payments, you are disabled when Unum

determines that due to the same sickness or injury, you

are unable to perform the duties of any gainful

30

occupation for which you are reasonably fitted by

education, training or experience.

AR at 134. The Policy also contains the following provision:

DISCRETIONARY ACTS

In exercising its discretionary powers under the Plan,

the Plan Administrator and any designee (which shall

include Unum as a claims fiduciary) will have the

broadest discretion permissible under ERISA and any

other applicable laws, and its decisions will

constitute final review of your claim by the Plan.

Benefits under this Plan will be paid only if the Plan

Administrator or its designee (including Unum), decides

in its discretion that the applicant is entitled to

them.

AR at 154. The court concludes that the language cited above is

sufficient to confer discretionary authority to Unum in making

benefit determinations. See Evans v. Eaton Corp. Long Term

Disability Plan, 514 F.3d 315, 321 (4th Cir. 2008) (finding Plan

language giving “discretionary authority to determine eligibility

for benefits” was unambiguous).

The language in the Policy notwithstanding, Giberson argues

that this court’s review should be de novo because of the

operation of Maine statute 24-A M.R.S.A. § 2847-V which provides:

A group health insurance policy, contract or

certificate, including, but not limited to, a group

disability income insurance policy, contract or

certificate, may not contain a provision purporting to

reserve sole or absolute discretion to the insurer to

interpret the terms of the contract, to provide

standards of interpretation or review, to determine

eligibility for benefits, to determine the amount of

benefits or to resolve factual disputes. An insurer

may not enforce a provision in a policy, contract or

certificate that was offered, executed, delivered or

issued for delivery in this State and has been

31

continued or renewed by a group policy holder in this

State that purports to reserve sole or absolute

discretion to the insurer to interpret the terms of the

contract, to provide standards of interpretation or

review, to determine eligibility for benefits, to

determine the amount of benefits or to resolve factual

disputes.

Maine’s statute was effective September 19, 2019. As Unum points

out, there is no indication that the statute was intended to

apply retroactively. Under Maine law, “a statute will be

construed to apply prospectively unless a legislative intent to

make it retroactive is clearly stated.” Salenius v. Salenius,

654 A.2d 426, 429 (Me. 1995); see also Terry v. St. Regis Paper

Co., 459 A.2 1106, 1109 (Me. 1983) (noting that “the fundamental

rule of statutory construction strictly followed by this Court

that all statutes will be considered to have a prospective

operation only, unless the legislative intent to the contrary is

clearly expressed or necessarily implied from the language used”)

(internal citation omitted). The Legislature is required “to

express its intent to apply a statute retroactively in strong,

clear and imperative language” and “a retroactive intent [will be

implied only] when the statute would be inoperative other than

retrospectively.” Terry, 459 A.2d at 1109 (internal quotation

and citation omitted).

On its face, Maine’s anti-discretionary clause statute does

not apply retroactively. Nor does it carry a necessary

implication of retroactive application. Therefore, the court

32

concludes that Maine’s 2019 anti-discretion statute does not

apply. Cf. Weaver v. New England Mut. Life Ins. Co., 52 F.

Supp.2d 127, 131 (D. Me. 1999) (holding that 1997 amendment to

statute did not apply where “statute is unambiguous on its face

and carries no necessary implication of retroactive

application.”).

In support of his argument that § 2847-V applies to his

case, Giberson points to a recent case from California, Earle v.

UNUM Life Ins. Co. of America, Case No. 15-cv-03305-EMC, 2020 WL

4434951 (C.D. Cal. July 23, 2020). However, Earle actually cuts

against Giberson’s argument. In that case, the court reviewed

the denial of benefits for an abuse of discretion because “Maine

allowed discretionary clauses at all times relevant to

Plaintiff's claim.” Id. at 9. In so doing, the Earle court

expressly acknowledged § 2847-V but found that it did not apply.

See id. at 9 n.16 (“Maine Insurance Code § 2847-V now bans

discretionary clauses in group insurance policies, but the

statute was not in effect during the relevant time period in this

action.”).

B. Unum’s Decision to Terminate Benefits

Because the Policy gives Unum discretion to determine

eligibility for benefits, the court must determine whether the

decision to terminate plaintiff’s benefits was an abuse of

discretion. See Evans, 514 F.3d at 321; see also Booth v. Wal-

33

Mart Stores, Inc., 201 F.3d 335, 341-42 (4th Cir. 2000). In

Evans, the appeals court provided an extensive discussion of what

“abuse of discretion” means. See id. at 322. As the court

explained:

The ERISA context permits a still more

particularized conception of the abuse of discretion

standard. First, in ERISA cases, the standard equates

to reasonableness: We will not disturb an ERISA

administrator’s discretionary decision if it is

reasonable, and will reverse or remand if it is not.

Firestone, 489 U.S. at 111, 109 S. Ct. 948; Booth, 201

F.3d at 342. Second, the abuse of discretion standard

is less deferential to administrators than an arbitrary

and capricious standard would be; to be unreasonable is

not so extreme as to be irrational. See Firestone, 489

U.S. at 109-10, 109 S. Ct. 948; Booth, 201 F.3d at 341.

Third, an administrator’s decision is reasonable “if it

is the result of a deliberate, principled reasoning

process and if it is supported by substantial

evidence.” Bernstein v. CapitalCare, Inc., 70 F.3d

783, 788 (4th Cir. 1995) (internal quotation omitted).

Fourth, the decision must reflect careful attention to

“the language of the plan,” as well as the requirements

of ERISA itself. Booth, 201 F.3d at 342. One adds new

assemblages of words to this legal landscape with

caution, but it seems on the whole that we require

ERISA administrators’ decisions to adhere both to the

text of ERISA and the plan to which they have

contracted; to rest on good evidence and sound

reasoning; and to result from a fair and searching

process.

Under no formulation, however, may a court, faced

with discretionary language . . . forget its duty of

deference and its secondary rather than primary role in

determining a claimant’s right to benefits. The abuse

of discretion standard in ERISA cases protects

important values: the plan administrator’s greater

experience and familiarity with plan terms and

provisions; the enhanced prospects of achieving

consistent application of those terms and provisions

that results; the desire of those who establish ERISA

plans to preserve at least some role in their

administration; and the importance of ensuring that

34

funds which are not unlimited go to those who,

according to the terms of the Plan, are truly

deserving. . . . Thus, the language of discretion in

an ERISA plan is a message to courts, counseling not

judicial abdication to be sure, but a healthy measure

of judicial restraint.

Id. at 322-23. In determining whether a plan administrator’s

exercise of discretion was reasonable, a court may consider

various factors, such as:

(1) the language of the plan; (2) the purposes and

goals of the plan; (3) the adequacy of the materials

considered to make the decision and the degree to which

they support it; (4) whether the fiduciary’s

interpretation was consistent with other provisions in

the plan and with earlier interpretations of the plan;

(5) whether the decisionmaking process was reasoned and

principled; (6) whether the decision was consistent

with the procedural and substantive requirements of

ERISA; (7) any external standard relevant to the

exercise of discretion; and (8) the fiduciary’s motives

and any conflict of interest it may have.

Booth, 201 F.3d at 342–43. All eight Booth factors need not be,

and may not be, relevant in a given case. Helton v. AT&T, Inc.,

709 F.3d 343, 357 (4th Cir. 2013).

1. Language of the Plan

As to the first Booth factor, plaintiff argues that Unum’s

use of Dr. Seagle to perform the IME was in violation of the the

Policy. See ECF No. 16 at 18-19. The Policy language governing

“Appeal Procedures” states that “[i]n a case of a claim denied on

the grounds of a medical judgment, Unum will consult with a

health professional with appropriate training and experience.”

AR 152. According to plaintiff, Dr. Seagle did not have

35

appropriate training and experience because he was a

cardiologist. Although he does not come right out and say it,

Giberson seems to suggest that the IME had to be performed by a

nephrologist.

Giberson’s argument is without merit and Unum’s actions with

respect to the selection of a physician to perform an IME were

consistent with the language of the plan.6 First, Giberson

completely ignores that the medical opinion that he offered in

support of his original claim for disability, cardiac conditions

complicating kidney function, was from Dr. Qazi, a cardiologist.

And plaintiff has continued to maintain that he is disabled by

cardiac conditions. Second, plaintiff offers no reason why Dr.

Qazi would be able to opine on his kidney function as it relates

to his cardiac conditions but Dr. Seagle would not. Finally, as

discussed above, it is clear that Dr. Seagle considered all of

plaintiff’s medical conditions, including his kidney function.

2. Consistency With Earlier Interpretations of the Plan

Giberson argues that Unum’s decision that he was not

disabled was inconsistent with its earlier conclusions that he

6 Plaintiff suggests that Unum selected Dr. Seagle to

perform his IME. See ECF No. 18 at 9 (“Dr. Seagle, the physician

hired by Unum to examine the plaintiff, is a cardiologist. Unum

chose these doctors to review plaintiff’s claim despite its own

recognition that the plaintiff’s kidney problems were the

plaintiff’s ‘impairing physical condition’ that caused him to be

unable to work.”). The record shows, however, that Unum retained

the services of Dane Street to select a physician to perform the

IME. In other words, Dane Street selected Dr. Seagle, not Unum.

36

was disabled. In particular, he argues that Unum concluded that

he was disabled in 2016 based upon his kidney function.

According to him, his kidney function is worse now than it was

then.

When Unum reversed its decision to discontinue Giberson’s

benefits in 2016, it appeared to do so primarily based upon

Giberson’s “worsening renal function.” AR 1724. Nevertheless,

Unum also noted that “it is unclear whether or not the claimant's

worsening renal function is reversible given the available

medical records, [and] follow up records should be obtained in 6

months time.” Id. Furthermore, during the appeal process, Unum

obtained a medical opinion from Dr. Qazi noting Giberson’s renal

function and other ailments and opining that he was totally

disabled at that time. See AR 1616.

In June 2020, when the decision was made to terminate

Giberson’s benefits, Dr. Qazi no longer supported that continuing

disability, see AR 2123, nor did any of his other medical

providers. Furthermore, two medical consultants for Unum, Dr.

Weinstein and Nurse Yeaton reviewed Giberson’s records and

concluded there was no evidence that would support a conclusion

that Giberson had an ongoing disability or was unable to perform

sedentary work. See AR 2100-15, 2127-28. During the appeal

process, Unum also obtained another medical review of Giberson’s

claim, an updated vocational review, as well as an IME, all of

37

which supported Unum’s decision to terminate Giberson’s benefits.

See AR 2322-24, 2317, 2415-19. Thus, Unum's 2016 decision was

not “inconsistent” because the 2020 termination decision and the

subsequent appellate decision were made with significantly more

medical evidence—the vast majority of which indicated that

plaintiff could return to work full time. See AR 367-73, 507–20,

536–42, 659–60, 701–43, 1146–80.7

3. Conflict of Interest

The court also finds no merit to plaintiff’s argument that

Unum’s conflict of interest was “substantially enhance[d]” in

this case. ECF No. 20 at 2. Giberson bases his argument on the

fact that Unum paid benefits to him for 14 years yet it did not

receive any premiums during this time period because the Policy

had terminated. See id. According to him, “[a]s the Policy had

7 The Policy requires that Giberson continue to be

disabled by the “same sickness or injury.” It appears that

during the fourteen years for which Giberson received benefits

that Unum, at times, treated his kidney function as his disabling

condition. Therefore, if Unum were to have ignored evidence

regarding plaintiff’s kidney function in making its decision to

terminate benefits, that would have been inconsistent with its

earlier position. However, the evidence is that Unum did

consider Giberson’s kidney function in making its determination.

In any event, it is the language of the Policy that should

control and an administrator is not forever bound to apply a

Policy in exactly the same way. See, e.g. Brooks v. Hartford

Life & Accident Ins. Co., 525 F. Supp.3d 687, 703 (E.D. Va. 2021)

(determination that claimant was not disabled under the

provisions of Group Policy was consistent with the language and

past interpretations of the plan even where “defendant changed

its interpretation of plaintiff’s conditions”), aff’d, 2002 WL

2800813 (4th Cir. July 18, 2022).

38

been terminated in September 2005, Unum was receiving no ongoing

premiums from Princeton Community Hospital during the entire

period that Mr. Giberson received benefits. It is little wonder

that Unum was financially motivated to cut off the plaintiff’s

benefits.” Id. at 2-3.

The court recognizes “that an inherent conflict can exist

when a plan administrator has both the discretion to make

eligibility determinations and the responsibility for paying

benefits to those found eligible.” Griffin v. Hartford Life &

Accident Ins. Co., 898 F.3d 371, 383 (4th Cir. 2018). However,

in this case, there is no evidence that the conflict impacted

Unum’s decision to terminate Giberson’s benefits. Plaintiff’s

assertions regarding an enhanced financial conflict are mere

speculation. He points to no evidence in the record to support

his theory. “And the structural conflict, alone, is not

sufficient to render [Unum]’s entire decisionmaking process

unreasonable.” Id.

4. Adequacy of the materials considered

A claim administrator's decision must be supported by

adequate materials and substantial evidence. Hailey v. Verizon

Commc'ns Long Term Disability Plan, No. 1:13-CV-001528-GBL, 2014

WL 5421242, at *5 (E.D. Va. Oct. 22, 2014) (citing Helton v.

AT&T, Inc., 709 F.3d 343, 358–59 (4th Cir. 2013)). Substantial

39

evidence is evidence that “a reasoning mind would accept as

sufficient to support a particular conclusion.” Id.

Importantly, plaintiff bears the burden to show that he is

disabled under the terms of the policy. See Elliott v. Sara Lee

Corp., 190 F.3d 601, 603 (4th Cir. 1999) (“The burden of proving

the disability is on the employee.”); see also AR 124 (Unum may

require claimant to provide “proof of continuing disability.”).

The court finds that the materials upon which Unum based its

termination decision—plaintiff's medical records, an IME report,

two independent physician peer review reports, and the 2020

vocational assessment (which are described in-depth

above)—constitute substantial evidence.

Plaintiff argues that defendant “cherry-picked” evidence in

support of its decision. See ECF No. 20 at 6 (“Unum ignored

everything in the record that occurred from 2005 through 2020 and

then, picked and chose evidence that it contends supports its

decision to cut off plaintiff’s benefits[.]”). However, as the

United States Court of Appeals for the Fourth Circuit has pointed

out “‘picking and choosing’ is just a perjorative label for

‘selecting,’ [and] selectivity . . . is part of an plan

administrator’s job.” Evans, 514 F.3d at 326 (quoting Donovan v.

Eaton Corp., 462 F.3d 321, 329 (4th Cir. 2006)). What is

prohibited is “‘wholesale disregard’ of evidence in [a]

claimant’s favor.” Id. (quoting Donovan, 462 F.3d at 329).

40

Plaintiff’s assertion to the contrary, the record shows that Unum

considered all the evidence and did not disregard evidence

favorable to Giberson. And “it is not an abuse of discretion for

a plan fiduciary to deny disability [ ] benefits where

conflicting medical reports were presented.” Elliott, 190 F.3d

at 606. Unum’s “assessment of the evidence in this case was

fair, and it is entitled to the deference that is the result of

careful work.” Eaton, 514 F.3d at 326.

5. Whether the decisionmaking process was reasoned and

principled

The Fourth Circuit requires a plan administrator to state

their reasoning in denying a claimant's claim for benefits.

Gagliano v. Reliance Standard Life Ins. Co., 547 F.3d 230, 235

(4th Cir. 2008). Importantly, the Plan Administrator must

address conflicting evidence. See White v. Eaton Corp. Short

Term Disability Plan, 308 Fed. Appx. 713, 717–18 (4th Cir. 2009).

In other words, for its decision to stand, Unum must also address

evidence in favor of plaintiff's claim that he is totally

disabled. Unum did so. It addressed conflicting evidence, and

articulated why it found the evidence unpersuasive.

Upon its review of the record, the court finds that Unum

executed a reasonable and principled decision-making process in

both its original decision to terminate Giberson’s LTD benefits

and the subsequent decision to uphold that determination. Rather

than terminating Giberson's claim immediately for lack of

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continuing objective medical support, Unum gave him multiple

opportunities to substantiate his claim, and enlisted several

doctors to review and opine on his functional capacity. Further,

the administrative record Unum had before it at the time it

rendered its decisions supported Unum's decision to terminate

Giberson’s benefits. Unum went to great pains to obtain

plaintiff’s medical records, sought reviews by its own

consultants, paid for an IME, and considered all plaintiff’s

evidence. There is no evidence in the record that the process by

which Unum came to its conclusion was unprincipled or

unreasonable. “When an ERISA administrator rejects a claim to

benefits on the strength of substantial evidence, careful and

coherent reasoning, faithful adherence to the letter of ERISA and

the language of the plan, and a fair and searching process, there

can be no abuse of discretion—even if another, and arguably a

better, decision-maker might have come to a different, and

arguably a better, result.” Evans, 514 F.3d at 325-26.

Conclusion

For the aforementioned reasons, the court found that Unum's

decision was reasonable and granted defendant's motion for

summary judgment and denied plaintiff’s motion for summary

judgment.

The Clerk is directed to mail copies of this Memorandum

Opinion to all counsel of record.

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Tt is SO ORDERED this 12th day of October, 2022.

ENTER:

David A. Faber

Senior United States District Judge

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