# Giberson v. Unum Life Insurance Company of America

> District Court, S.D. West Virginia · October 12, 2022

URL: https://www.frixlaw.com/law-library/cases/10730625

## Case

- **Court:** District Court, S.D. West Virginia
- **Decided:** October 12, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10730625

## How later opinions describe it (automated extraction)

- finding Plan language giving “discretionary authority to determine eligibility for benefits” was unambiguous
- holding that 1997 amendment to statute did not apply where “statute is unambiguous on its face and carries no necessary implication of retroactive application.”

## Opinion text

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).
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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10730625. Public record. Not legal advice.