Shirley Lacko v. United of Omaha Life Insurance

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 18‐2155

SHIRLEY LACKO,

Plaintiff‐Appellant,

v.

UNITED OF OMAHA LIFE

INSURANCE COMPANY,

Defendant‐Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:17‐cv‐02100 — Jorge L. Alonso, Judge.

____________________

ARGUED NOVEMBER 5, 2018 — DECIDED JUNE 12, 2019

____________________

Before BAUER, ROVNER, and ST. EVE, Circuit Judges.

ROVNER, Circuit Judge. Shirley Lacko filed suit against

United of Omaha Life Insurance Company (“United”), chal‐

lenging United’s denial of her claims for short‐term and long‐

term disability insurance. Those claims were brought pursu‐

ant to group insurance policies issued by United to her em‐

ployer, BKD, Inc., an accounting firm. Specifically, BKD pro‐

2 No. 18‐2155

vided two group insurance policies, Group Short Term Disa‐

bility Insurance Policy No. GUC‐ABF3 (the “STD” plan) and

the Group Long Term Disability Insurance Policy No. GLTD‐

ABF3 (the “LTD” plan). Both policies were issued by United,

who also served as the claims review fiduciary for claims to

STD and LTD benefits.

Lacko based her claims for STD and LTD benefits on the

adverse combination of a number of impairments, including

but not limited to gastroparesis, diabetes, rheumatoid arthri‐

tis, congestive heart failure, breathing difficulties, anxiety,

musculoskeletal impairments, and cognitive difficulties re‐

lated in part to the medication needed to manage the other

conditions. The district court opinion details the extensive

medical evidence presented to United in support of Lacko’s

disability benefits claims. It includes reports from numerous

physicians, as well as objective evidence such as MRI, X‐ray,

and lab reports. An exhaustive recitation of that evidence,

however, is unnecessary to resolve the issues presented in this

case. Therefore, we will set forth the evidence only to the ex‐

tent that it is necessary to decide the issues in this appeal and

defer to the district court the more extensive recitation.

Although United initially approved her claims for STD

benefits on three occasions for the time period spanning Oc‐

tober 12, 2015 through November 22, 2015, it denied STD ben‐

efits on June 16, 2016 for the period beyond November 22,

2015, concluding the records failed to demonstrate a change

in Lacko’s medical condition at the time she stopped working

or subsequently. United also denied her claim for LTD bene‐

fits. Lacko then filed this action in the district court under the

Employee Retirement Income Security Act of 1974 (ERISA),

29 U.S.C. § 1001 et seq., challenging the denial of LTD benefits,

No. 18‐2155 3

and the denial of STD benefits from the period of November

22, 2015 until December 27, 2015 (at which time LTD benefits

would apply). The district court granted summary judgment

in favor of United, and Lacko now appeals that decision to

this court.

I.

Lacko began working for the predecessor to BKD in ap‐

proximately January 1999 and worked until September 25,

2015. She applied for benefits under the STD plan on October

2, 2015. At the time that she ceased working, her position at

BKD was that of Senior Manager in the Audit Department,

with an annual salary of $93,250.04.

The two disability plans covered different time periods.

The first 90 days of disability are covered by the STD plan,

which in relevant part provides benefits when ,“because of an

Injury or Sickness, a significant change in Your mental or

physical functional capacity has occurred in which: … You

are prevented from performing the Material Duties of Your

Regular Job (on a part‐time or full‐time basis) or are unable to

work Full‐Time … .” STD Plan at 27. The STD plan defines

“Material Duties” as encompassing “the essential tasks, func‐

tions, and operations relating to Your Regular Job that cannot

be reasonably omitted or modified,” and “Regular Job” is de‐

fined as “the occupation You are routinely performing when

Your Disability begins.” Id. at 28–29.

The LTD plan applies beyond that 90‐day period and in‐

cludes slightly different requirements. Instead of speaking in

terms of the claimant’s ability to perform her regular job, the

LTD plan provides benefits when the claimant is incapable of

4 No. 18‐2155

the material duties of her regular occupation. Specifically, the

LTD plan provides:

Disability and Disabled means that because of

an Injury or Sickness, a significant change in

your mental or physical functional capacity has

occurred in which You are:

(a) prevented from performing at least

one of the Material Duties of Your Regu‐

lar Occupation on a part‐time or full‐time

basis; and

(b) unable to generate Current Earnings

which exceed 99% of Your Basic Monthly

Earnings due to that same Injury or Sick‐

ness. …

Material Duties means the essential tasks, func‐

tions, and operations relating to an occupation

that cannot be reasonably omitted or modified.

In no event will We consider working an aver‐

age of more than 40 hours per week in itself to

be part of material duties. One of the material

duties of Your Regular Occupation is the ability

to work for an employer on a full‐time basis. …

Regular Occupation means the occupation You

are routinely performing when Your Disability

begins. Your regular occupation is not limited to

the specific position You held with the Policy‐

holder, but will instead be considered to be a

similar position or activity based on job descrip‐

tions included in the most current edition of the

No. 18‐2155 5

U.S. Department of Labor Dictionary of Occu‐

pational Titles (DOT). We have the right to sub‐

stitute or replace the DOT with a service or

other information that We determine of compa‐

rable purpose, with or without notice. To deter‐

mine Your regular occupation, We will look at

Your occupation as it is normally performed in

the national economy, instead of how work

tasks are performed for the specific employer, at

a specific location, or in a specific area or region.

LTD Plan at 29–31.

Therefore, Lacko’s entitlement to benefits under the LTD

plan hinges upon whether Lacko was capable of fulfilling the

material duties of her regular occupation. That focus on her

occupation sets the stage for a major point of contention in

this appeal, which is whether United used an appropriate oc‐

cupational classification in determining her eligibility for ben‐

efits. As we will explore in detail later, United classified her

position as that of a Department Manager under the Diction‐

ary of Occupational Titles (“DOT”), but the Social Security

Administration (SSA) used a different DOT title in assessing

Lacko’s claim for benefits, classifying her position as that of

an Auditor or Accountant.

After Lacko’s requests for STD and LTD benefits were de‐

nied, Lacko requested reconsideration of those determina‐

tions from United. With respect to the STD benefits claim,

United in that appeal considered the evidence as to her gas‐

troparesis, back pain, and osteoarthritis, and determined that

she was capable of performing the duties of her job.

6 No. 18‐2155

In appealing the denial of LTD benefits, Lacko provided

United with the SSA decision granting benefits, but United

again determined that the denial of LTD benefits was appro‐

priate. In its determination denying that appeal regarding

LTD benefits, United stated that it had considered her claim

that she was disabled due to chronic pain, fatigue, congestive

heart failure, hypertension, osteoarthritis, diabetes, asthma,

gastroparesis, sleep disturbance, vertigo, vitamin D defi‐

ciency, anxiety and depression. United acknowledged that

the file revealed a history of back pain and diffuse joint pain

complaints, and that MRI studies of the lumbar, thoracic, and

cervical spine documented multi‐level degenerative changes

with disc bulging in some areas. Additionally, it noted that

X‐rays confirmed arthropathy in Lacko’s hands and feet. Ac‐

cordingly, United determined that she would be restricted to

sedentary work activities and should pursue continued treat‐

ment for pain management. It also found that her obstructive

sleep apnea and the resulting fatigue could also support that

limitation to sedentary work, and opined that her chronic ob‐

structive pulmonary disease and asthma would not preclude

sedentary work activities. Although it recognized other med‐

ical conditions, it did not find that they supported any further

limitations. For instance, it recognized that she suffered from

diabetes, but held that her diabetes was controlled with treat‐

ment and regular visits to her endocrinologist and therefore

would not require any restrictions or limitations. It also

acknowledged that she was diagnosed with chronic gastritis

and with gastroparesis due to diabetes requiring treatment

with medications. United found no limitations related to her

vertigo or dizziness, or from cardiac conditions or hyperten‐

sion. Finally, United recognized that symptoms of anxiety,

depression and memory loss had been reported. It held that

No. 18‐2155 7

there was no indication of an inability to perform the activities

of daily living or of cognitive issues or memory impairment

to preclude work activities. United noted that Lacko was eval‐

uated by Dr. Steven Fritz, Psy.D., for a mental residual func‐

tional capacity assessment as a part of the Social Security re‐

view, and it stated that the evaluation found no evidence of

memory impairment or cognitive impairment. United

acknowledged that Lacko has multiple medical complaints

requiring medication and regular visits to health providers,

but tracking the language of the LTD plan, it held that it did

not find evidence of a significant change in her physical or

mental functional capacity on or around her last date worked

to preclude her from continuing to perform the material du‐

ties of her regular occupation. It conceded that she had been

found disabled by the SSA and was receiving disability bene‐

fits but held that the SSA decision did not affect its disability

determination, stating only that “[e]ligibility requirements for

Social Security Disability may differ from the eligibility re‐

quirements under this policy.”

II.

Lacko subsequently filed this ERISA action seeking STD

benefits from November 22, 2015 through December 27, 2015,

and LTD benefits thereafter, under § 502 of ERISA, 29 U.S.C.

§ 1132(a)(1)(B), which provides that “[a] civil action may be

brought … by a participant or beneficiary … to recover bene‐

fits due to him under the terms of his plan, to enforce his

rights under the terms of the plan, or to clarify his rights to

future benefits under the terms of the plan.” The district court

granted summary judgment to United.

First, the court considered the decision as to STD benefits.

It held that United denied STD benefits on the basis that there

8 No. 18‐2155

had been no change in Lacko’s functional capacity that would

prevent her from performing her job. The court found that it

was reasonable for United to focus on whether Lacko had ex‐

perienced a change in medical symptoms, because the plain

language of the STD plan requires a change. According to the

court, when Lacko was first granted STD benefits by United,

it had received medical records from April 2015 that showed

Lacko was “feeling good,” and records from September 2015

showing that Lacko reported feeling pain all over, thus indi‐

cating a “change.” Subsequently, United received additional

medical records which showed that Lacko had suffered gas‐

troparesis since at least 2011, and degenerative disc disease

from at least 2013, and evidence that she had taken opiates for

pain for a decade. The court held that “[g]iven that plaintiff’s

medical conditions were of long duration, it was reasonable

for defendant to conclude that plaintiff had not experienced a

change in functional capacity.” Dist. Ct. Memorandum and

Order of May 15, 2018 (hereinafter “Dist. Ct.”) at 20.

The court then turned to United’s denial of LTD benefits.

First, it held that United did not err in relying on the DOT for

her job description, because the LTD plan explicitly allows for

such an approach. The court also rejected the argument that

United erred in relying on the opinions of non‐examining

physicians. The court noted that Lacko supplied medical rec‐

ords from eight treating physicians, but six of them described

only Lacko’s symptoms and diagnoses without translating

those into work restrictions. Of the two doctors that described

work restrictions, the court described one—Dr. Daniel

Hirsen—as providing useful but imprecise information in

stating that Lacko was unable to sit for long periods of time

due to neck and back pain and unable to do computer work

due to joint swelling. The other doctor who identified work

No. 18‐2155 9

restrictions, Dr. Vanessa Hagan, checked boxes indiscrimi‐

nately, indicating that pain rendered her unable to perform

every task on the list including basic tasks such as following

rules and relating to co‐workers. The court acknowledged

that Dr. Hagan subsequently provided additional infor‐

mation about Lacko’s restrictions, stating that Lacko’s pain

medication makes it difficult for her to focus such that she

could not work if she took her medications as prescribed. The

court countered, however, that “[s]eparately and to the con‐

trary, the Social Security Administration concluded that

plaintiff was capable of performing light‐duty work.” Id. at

23. Based on the competing conclusions and the imprecise re‐

strictions, the court concluded that it was reasonable for

United to seek review of the records by non‐examining phy‐

sicians and adopt their conclusions that she was restricted to

sedentary work.

The court next considered whether United properly con‐

sidered her various ailments in combination when determin‐

ing her restrictions. The court noted that the treating physi‐

cians had determined that her physical ailments limited her

to sedentary work. The court noted, however, that the seden‐

tary restriction related only to her physical capability, and

that Dr. Hagan had noted, in describing the combined effect

of Lacko’s ailments, that the medications for those conditions

affected Lacko’s ability to focus. The court rejected Lacko’s ar‐

gument that United failed to take that mental impairment into

account. The court noted that in its decision, United specifi‐

cally recognized that Lacko had seen Dr. Fritz for a mental

residual capacity evaluation in connection with her applica‐

tion for Social Security benefits. The court stated that “[t]he

10 No. 18‐2155

result of that evaluation was that plaintiff had sufficient con‐

centration and attention to work.” Dist Ct. at 24. The court

held that United’s analysis was therefore reasonable.

Finally, the court considered Lacko’s argument that the

denial of benefits was arbitrary and capricious because

United failed to properly consider the SSA decision granting

her benefits. The court held that United reviewed that deci‐

sion and noted that the standard for disability benefits from

SSA is not the same as the terms of the Plan. In addition, the

court noted that the SSA decision concluded that Lacko could

perform light work, but granted benefits because her age, ed‐

ucation and lack of transferable skills made an award manda‐

tory. The Plan in this case does not require benefits based on

age and skill. In conclusion, the court stated that United did

not ignore the SSA decision; rather, United “reviewed the ev‐

idence, was persuaded by some of it (including Dr. Fritz’s as‐

sessment) and rejected some of it (including the conclusion

that plaintiff could do light duty work; defendant concluded

plaintiff was more restricted).” Dist. Ct. at 25. The district

court therefore granted summary judgment to United.

III.

On appeal, Lacko raises a number of challenges to

United’s denial of her LTD and STD benefits. First, she alleges

that United erred in concluding that there was no change in

her physical functional capacity which would prevent her

from performing the material duties of her job, and that it fur‐

ther erred in using an incorrect occupational description. She

also argues that United’s decision is deficient in that it failed

to adequately address the grant of Social Security disability

benefits. Moreover, Lacko asserts that United, in denying ben‐

efits, failed to address the combination of impairments, and

No. 18‐2155 11

improperly relied on the opinions of non‐examining physi‐

cians who ignored objective medical evidence.

We review de novo a district court’s grant of summary

judgment. Hennen v. Metro. Life Ins. Co., 904 F.3d 532, 539 (7th

Cir. 2018); Holmstrom v. Metropolitan Life Ins. Co., 615 F.3d 758,

766 (7th Cir. 2010). But where, as here, a plan grants to the

administrator the discretionary authority to determine bene‐

fits, we review the decision of that administrator under the

more stringent arbitrary and capricious standard. Id. Alt‐

hough that standard is necessarily deferential, it is “’not a rub‐

ber stamp’” and we will not uphold an administrator’s deci‐

sion “’when there is an absence of reasoning in the record to

support it.’” Id.

A.

“In conducting this review, we remain cognizant of the

conflict of interest that exists when the administrator has both

the discretionary authority to determine eligibility for bene‐

fits and the obligation to pay benefits when due.” Jenkins v.

Price Waterhouse Long Term Disability Plan, 564 F.3d 856, 861

(7th Cir. 2009); Metro. Life Ins. v. Glenn, 554 U.S. 105, 112, 114

(2008); Hennen, 904 F.3d at 539; Dragus v. Reliance Standard Life

Ins. Co., 882 F.3d 667, 673 (7th Cir. 2018). Both parties

acknowledge that United stands in that position, as the deter‐

miner of eligibility for benefits and the payor of benefits.

The Supreme Court and this court have clearly and con‐

sistently held that a conflict of interest is present where the

administrator has both the authority to determine benefits

and the obligation to pay them, and that such a conflict is

weighed as a factor in determining whether there is an abuse

12 No. 18‐2155

of discretion, and can act as a tiebreaker when the other fac‐

tors are closely balanced. Glenn, 554 U.S. at 117; Hennen, 904

F.3d at 539; Dragus, 882 F.3d at 673. Surrounding circum‐

stances may increase or decrease the likelihood that the con‐

flict of interest impacted the disability determination. For in‐

stance, a conflict of interest “should prove less important (per‐

haps to the vanishing point) where the administrator has

taken active steps to reduce potential bias and to promote ac‐

curacy, for example, by walling off claims administrators

from those interested in firm finances, or by imposing man‐

agement checks that penalize inaccurate decision‐making ir‐

respective of whom the inaccuracy benefits.” Glenn, 554 U.S.

at 117. Similarly, the potential adverse impact of a conflict of

interest can be ameliorated where an administrator uses sep‐

arate third‐party vendors to secure independent physicians

who then review the claim. See Dragus, 882 F.3d at 673. United

argues that it employed such procedures here, which can cre‐

ate a distance between the conflict and the decision thus de‐

creasing the likelihood that the disability determination was

impacted by the conflict.1

In contrast, “a conflict may carry more weight when the

‘circumstances suggest a higher likelihood that it affected the

benefits decision,’ as when an insurer has a history of biased

claims administration,” takes inconsistent positions in the So‐

cial Security disability proceedings and its own disability de‐

termination, constantly changes its demands to avoid award‐

1 As we will discuss later, however, in this case the use of independent

examiners does not insulate United from the decision because those ex‐

aminers did not consider the cognitive limitations and would still be lim‐

ited by the evidence and job descriptions provided by United.

No. 18‐2155 13

ing benefits, or engages in selective consideration of the evi‐

dence. Raybourne v. Cigna Life Ins. Co. of New York, 700 F.3d

1076, 1082 (7th Cir. 2012) quoting Glenn, 554 U.S. at 117;

Holmstrom, 615 F.3d at 772, 777–78. For instance, where the

administrator assists the claimant in obtaining Social Security

disability benefits, arguing that she is unable to engage in any

work, and then after obtaining those benefits, denies disabil‐

ity benefits under its own plan, the self‐dealing can signal that

the administrator is acting in its own interests rather than that

of the claimant. The Plan benefits in such a situation because

it is often entitled to recover some of the Social Security bene‐

fit awarded to the claimant, and it avoids the payment of

money to the claimant in denying benefits under its own plan.

We have recognized that “this scenario justified the reviewing

court in giving more weight to the conflict because the seem‐

ingly inconsistent positions taken by the insurer were both fi‐

nancially advantageous to the insurer.” Raybourne, 700 F.3d at

1088; Glenn, 554 U.S. at 118; Holmstrom, 615 F.3d at 777. Such

concordance between the actions and positions taken by the

administrator and its own financial interest suggest a higher

likelihood that the conflict of interest affected the benefits de‐

cision. See Raybourne, 700 F.3d at 1088. That is the scenario

present in many cases in which we have held that the conflict

of interest could have impacted the disability determination,

but there is no evidence that United engaged in self‐dealing

of that nature here. United argues that Raybourne is inapplica‐

ble because that involvement in the social security process

was absent here, but that self‐dealing is merely one factor im‐

pacting the weight given to that structural conflict of interest,

and does not mean that no structural conflict exists. Courts

must consider all surrounding circumstances in determining

14 No. 18‐2155

whether that conflict of interest could have impacted the dis‐

ability determination.

Another circumstance that should alert the court that the

conflict of interest may have influenced the decision is found

where the administrator engages in only a selective presenta‐

tion of the evidence in the record, focusing on the portions

that will support a denial of the claim and ignoring or misrep‐

resenting the facts that could demonstrate the disability. See

Holmstrom, 615 F.3d at 777; Raybourne, 700 F.3d at 1082; Glenn,

554 U.S. at 118. As we will discuss, this case does present such

a selective presentation of some of the evidence in the record.

In fact, the failure to consider some of the evidence requires a

remand here even absent a consideration of the conflict of in‐

terest, because it renders the decision arbitrary. Holmstrom,

615 F.3d at 776–77 (in addition to showing that the conflict of

interest may have influenced the decision, selective consider‐

ation of the evidence can indicate that a decision was arbitrary

even aside from that conflict). Although the conflict of interest

is therefore a factor, which is weighed more heavily in light

of that selective presentation of the evidence, that conflict

does not act as a tiebreaker here because a remand is required

even absent that conflict.

B.

We turn first to the claim that United failed to adequately

address the Social Security disability determination, because

that issue touches upon at least two other arguments pre‐

sented by Lacko—namely, her argument as to the proper oc‐

cupational description and her argument that United failed to

address the combination of impairments. SSA determined

that Lacko was entitled to benefits. That determination in‐

No. 18‐2155 15

volved the application of SSA’s five‐step sequential evalua‐

tion process. See 20 C.F.R. § 404.1520. Under the first three

parts of the test, SSA determined that Lacko was not engaged

in substantial gainful activity, that she had severe medically‐

determinable impairments consisting of inflammatory arthri‐

tis, disorders of back—discogenic and degenerative, chronic

heart failure, and affective disorders, and that her impair‐

ments did not meet or equal a listing. See id. Before proceed‐

ing to the fourth step, the regulations require SSA to assess

the claimant’s residual functional capacity, which it then uses

at steps four and five when evaluating the claim at those

steps. 20 C.F.R. § 404.1520(a)(4). SSA conducted a physical re‐

sidual functional capacity assessment and a mental residual

functional capacity assessment (“MRFC”). The MRFC was

conducted by Dr. Fritz and determined that Lacko had under‐

standing and memory limitations. Although he found that

Lacko was not significantly limited in her ability to remember

locations and work‐like procedures and her ability to under‐

stand and remember very short and simple instructions, Dr.

Fritz concluded that she was moderately limited in her ability

to understand and remember detailed instructions. He fur‐

ther concluded that she sustained concentration and persis‐

tence limitations which rendered her moderately limited in

her ability to carry out detailed instructions. Finally, he also

determined that she had adaptation limitations, in that she

was moderately limited in her ability to respond appropri‐

ately to changes in the work setting.

SSA applied that MRFC in considering at step four

whether she was capable of performing her past relevant

work. First, it identified the DOT title for her past relevant

work, determining that the job titles of Field Auditor and Ac‐

countant were proper. SSA determined that Lacko could not

16 No. 18‐2155

perform her past relevant work because her MRFC reduced

her skill level. It determined that her past relevant work was

skilled work, and that her impairments limited her to un‐

skilled, light work.

United and the district court both recognized that SSA had

limited her to light work, a higher level than the sedentary

work limitation that United found, but neither addressed her

mental limitations. Neither United nor the district court

acknowledged or addressed the determination that she was

limited to unskilled work based on the MRFC. In fact, the de‐

cisions by United and the district court mischaracterized the

SSA decision. United characterized Dr. Fritz’s evaluation as

finding no evidence of memory impairment or cognitive im‐

pairment, but that is unsupportable. The SSA decision, and

specifically the MRFC within it, found her moderately limited

in her ability to understand and remember detailed instruc‐

tions, carry out detailed instructions, and respond appropri‐

ately to changes in the work setting, and based on that MRFC

she was deemed limited to unskilled work and therefore un‐

able to perform her past work which was skilled work. United

never acknowledged those memory and cognitive limitations

found by Dr. Fritz, nor the limitation to unskilled work that

followed from that MRFC.

Similarly, United again acknowledges only part of Dr.

Fritz’s findings on appeal, characterizing them as follows:

A mental status assessment conducted on June

24, 2016 by Dr. Steven Fritz, Psy. D. found Ms.

Lacko to have (1) sufficient attention and con‐

centration to persist at and complete work activ‐

ities for the usual periods required in the gen‐

eral work force; (2) the capacity for adequate

No. 18‐2155 17

pace and perseverance to maintain a schedule

and on time attendance and (3) the capacity to

complete a normal work day and work week on

a regular basis. Dr. Fritz also determined that

psychologically based symptoms would not

markedly impair Ms. Lacko’s capacity to com‐

plete a normal work week.

(citations omitted) Appellee’s Brief at 22. That summary re‐

cites the conclusions of Dr. Fritz as to her ability to fulfill the

duties of unskilled work, but again fails to reflect the areas in

which he found her moderately limited, and which precluded

her from skilled work.

And other than that mischaracterization of the mental lim‐

itations, United in its denial of LTD benefits did not further

attempt to reconcile the SSA determination that she was enti‐

tled to disability benefits, dismissing it with one statement:

“Eligibility requirements for Social Security Disability may

differ from the eligibility requirements under this policy.” See

Dist. Ct. at 16. That trite statement is of no value in any anal‐

ysis. That something “may differ” from the Plan requirements

says nothing, as it is noncommittal as to whether there is any

actual difference. It failed to identify any difference, and to

explain how that difference would impact the disability de‐

termination.

On appeal, United argues that the SSA decision granting

benefits was based in part on her age, and that age is not a

factor under the Plan. The final decision by the SSA, at step

five of the sequential evaluation process, considers whether

the claimant is capable of making the adjustment to other

work, and the claimant receives disability benefits only if the

SSA concludes that she is both not capable of performing her

18 No. 18‐2155

past relevant work and not capable of adjusting to other work.

At step five, the SSA considers factors such as age and educa‐

tion, which are not factors in United’s determination of disa‐

bility. That difference is irrelevant, however, because those

factors are not considered by the SSA at step four in determin‐

ing her ability to perform her past work, and that is the anal‐

ysis that equates with the Plan’s language. The question at

step four of the SSA evaluation process was whether Lacko

was capable of performing her past work as it is performed in

the national economy, and the Plan under which United de‐

nied benefits similarly considers whether she was prevented

from performing the material duties of her regular occupa‐

tion. There is no apparent basis for determining that the SSA

determination of her ability to perform past work is materi‐

ally different from the disability eligibility requirements for

United. That discussion by United is insufficient to constitute

a reasoned consideration of Dr. Fritz’s evaluation or the SSA

decision as a whole.

Moreover, the record lacks any mental or psychological

evaluation that contradicts or casts doubt on the conclusions

by Dr. Fritz, and United has never challenged or questioned

those findings. Those findings indicate that Lacko is incapable

of performing an occupation that requires more than un‐

skilled work. Unskilled work for SSA purposes is work that

“requires little or no judgment to do simple duties that can be

learned on the job in a short period of time (30 days or less).”

Program Operations Manual System (POMS) DI 25015.017.

Skilled work, in contrast, “[r]equires high levels of judgment

and adaptability; [i]nvolves setting realistic goals or making

plans independently; [r]equires understanding, carrying out,

remembering complex instructions; [e]ncompasses abstract

No. 18‐2155 19

ideas and problem solving; … and requires both … work ac‐

tivity exercising judgment beyond carrying out simple duties

… and knowledge of principles and processes of an art, sci‐

ence, or applied trade and the ability to apply that knowledge

in a proper and approved manner.” Id. There is no basis what‐

soever in the record to conclude that a job of Senior Manager

for the Audit Department is anything less than skilled work.

Therefore, because United failed to recognize and address the

cognitive limitations set forth in the SSA decision, there is no

reasoned basis in the decision to support the determination

that Lacko was ineligible for disability benefits.

The district court failed to address that deficiency in

United’s analysis. In addressing the MRFC, the court stated

that “[t]he result of that evaluation was that plaintiff had suf‐

ficient concentration and attention to work,” and held that

United’s analysis was therefore reasonable. Dist. Ct. at 24. On

appeal, United continues in its selective characterization of

the SSA’s decision, stating that “[t]he SSA also found that Ms.

Lacko’s limitations as a result of her pain, weakness, fatigue

and alleged understanding and memory difficulties had not

arisen to such level as to prevent her from participating in

work related activities.” Appellee’s Brief at 23. That of course

is only partially true. The MRFC evaluation indeed deter‐

mined that Lacko possessed sufficient concentration and at‐

tention to “work” if the work was unskilled work. Her limita‐

tions were not so severe as to preclude unskilled work. But it

determined that she lacked the ability to perform her past rel‐

evant work because it was skilled work. The district court,

like United, failed to recognize and address that significant

distinction, which is controlling for the purposes here of de‐

termining her ability to perform the job of Senior Manager.

Moreover, the district court held that United accepted the

20 No. 18‐2155

findings of Dr. Fritz. If, as the district court states, United ac‐

cepted the determination of Dr. Fritz, then it would have to

accept that Lacko possessed mental limitations that rendered

her incapable of work other than unskilled work.

C.

In considering the SSA decision, United also failed to ad‐

dress the different classification used by the SSA from the Dic‐

tionary of Occupational Titles (4th ed. 1991) (“DOT”). The LTD

plan required United to determine whether Lacko could per‐

form her regular occupation, which it defined as not limited

to her specific position, but “instead will be considered to be

a similar position or activity based on job descriptions in‐

cluded in the [DOT].” In denying benefits, United character‐

ized her job as one of “189.167‐022 Manager, Department,” a

generic classification under the DOT that falls under the gen‐

eral catchall category of “189 Miscellaneous Managers and

Officials, NEC.” According to the DOT, “[t]his group includes

miscellaneous managers and officials, not elsewhere classi‐

fied.” DOT defines this position as applying to one who

“[d]irects and coordinates, through subordinate supervisors,

department activities in commercial, industrial, or service es‐

tablishment,” and the only reference to financial work is that

it can include one who “[m]onitors and analyzes costs and

prepares budget, using computer.” Dictionary of Occupational

Titles 189 (4th ed. 1991)

In contrast, the SSA classified Lacko’s job as falling under

“160 Accountants, Auditors, and Related Occupations,”

which falls under category 16 that “includes occupations con‐

cerned with specialized administrative and managerial func‐

tions which are common to many types of organizations,” and

No. 18‐2155 21

specifically “160.167‐038 Auditor, Tax” and “160.162‐018 Ac‐

countant.” The DOT provides that:

This group includes occupations concerned

with examining, analyzing, and interpreting ac‐

counting records for the purpose of giving ad‐

vice or preparing statements. It also includes oc‐

cupations involved in devising or installing ac‐

counting systems and advising on cost‐record‐

ing systems or other financial and budgetary

data.

Dictionary of Occupational Titles 160 (4th ed. 1991). The titles

used by SSA therefore apply to the audit and accounting man‐

agerial functions common to many organizations. Those ap‐

pear more directly related to the Senior Manager position at

issue here.

They also more closely align with the job description for

the position of Senior Manager in the Audit Department. The

summary of the job description by BKD, upon which the par‐

ties agree, provides that:

The Senior Manager supervises Seniors, Associ‐

ates, and Interns. He or she is responsible for au‐

dit program approval, personnel scheduling,

audit working papers review, financial state‐

ment disclosure footnote approval, day to day

client relationships, determination of billings

for engagements, and evaluation of Interns, As‐

sociates, and Seniors.

Defendant’s Response to Plaintiff’s Local Rule 56.1 Statement

of Material Facts 12 at 5–7. That description indicates that the

position requires the specialized skills of an auditor rather

22 No. 18‐2155

than solely managerial skills. In addition, the job description

includes the following list of “Essential Duties and Responsi‐

bilities,” which more precisely delineate the job requirements:

‐ Manages multiple concurrent engagements

without disruption or loss of control and

within the time allotted

‐ Correctly completes and reviews routine audit

engagement procedures in a timely and profes‐

sional manner

‐ Demonstrates ability to recognize problems

and proposes sensible solutions, with appro‐

priate balance between clients’ needs and

firm’s risk

‐ Establishes accountability for meeting as‐

signed deadlines or budgets and provides

advanced warning of variances

‐ Demonstrates proficiency/subject matter exper‐

tise with industry‐specific technical standards,

participation in specialty professional organiza‐

tions and anticipates impact of specialty with cli‐

ents and BKD teams

‐ Conducts and reviews technical research and ap‐

plies research to findings within complex ac‐

counting areas

‐ Proven ability to supervise and train other

professionals

‐ Balances assigned workload between self

and staff. Provides staff with timely perfor‐

mance feedback

No. 18‐2155 23

‐ Develops contacts and referral sources

through involvement in professional or civic

community organizations as a committee

member or board member

‐ Business Development: sells services to new

and existing clients that provide value to cli‐

ents, building client loyalty and satisfaction.

(emphasis added) Id. As the italicized sections demonstrate,

the essential duties and responsibilities of Lacko’s position re‐

quired technical and specialized expertise and included du‐

ties beyond the common supervisory duties of a manager,

such as the duty to conduct technical research and apply re‐

search to findings within complex accounting areas.

United’s vocational expert nevertheless determined that

only the general, catchall “Manager, Department” title of the

DOT was the most applicable. Tellingly, that vocational ex‐

pert’s listing of the material duties of Lacko’s position in‐

cluded only the general summary of the job description set

forth above, along with an exposition of such standard man‐

agerial responsibilities as that of interviewing, hiring and

training employees and appraising performance. Absent from

the Senior Manager job description set forth by United’s vo‐

cational consultant is any mention of the “Essential Duties

and Responsibilities,” including the more specialized and

technical duties italicized above.

In fact, nothing in the vocational expert’s description mir‐

rors or even alludes to the technical and specialized duties

italicized above, which constitute 3 of the 10 essential job du‐

ties. Moreover, the essential nature of those duties is rein‐

forced by the education and experience requirements of the

24 No. 18‐2155

job, which mandated that the Senior Manager have seven

years of public accounting experience or its equivalent, that

she have certification as a Certified Public Accountant (CPA),

and that she maintain a current CPA license. The vocational

expert’s report fails to mention those job requirements, and

therefore could not properly determine whether the DOT oc‐

cupation of “Manager, Department” was a “similar position

or activity” to her specific position, as required under the LTD

plan. Finally, although United’s vocational consultant dis‐

cussed the physical demand characteristics of the occupation,

identifying it as at the sedentary exertion level, the consultant

never examined the mental characteristics of the occupation,

which would have identified the skill level needed for the po‐

sition.

We have repeatedly condemned that type of selective con‐

sideration of only the evidence that supports one outcome.

See Holmstrom, 615 F.3d at 777; Raybourne, 700 F.3d at 1082;

Glenn, 554 U.S. at 118. The determination that Lacko’s job fell

within the DOT title “Manager, Department” is rendered

questionable because the vocational expert’s job description

failed to include those essential duties that required her spe‐

cialized audit and accounting skills, and failed to identify the

educational and license requirements of the position. In light

of that deficiency, the failure to acknowledge and reconcile

the alternative DOT title applied by SSA is even more egre‐

gious. That, in turn, impacted the disability determination be‐

cause United never engaged in a determination as to whether

Lacko had the mental and physical capacity to perform the

tasks required of an Auditor or Accountant position under the

DOT.

No. 18‐2155 25

At a minimum, United should have addressed the DOT

classification used by the SSA. Moreover, United should have

reconciled its choice of the more general DOT title in relation

to all of the job requirements, including the requirement that

Lacko maintain a current CPA license.

IV.

Therefore, both in its assessment of Dr. Fritz’s evaluation,

and its consideration of the DOT classification, United pro‐

vided a selective characterization of the record that discussed

only the portions that would favor a determination that Lacko

was not disabled, and ignored or mischaracterized the por‐

tions that would support a finding of disability. We have pre‐

viously held that where an administrator is operating under

a conflict of interest, as United is here, such a selective analy‐

sis is evidence that the conflict of interest may have impacted

the decision. See Holmstrom, 615 F.3d at 777; Raybourne, 700

F.3d at 1082; see also Glenn, 554 U.S. at 118. The potential im‐

pact of that conflict of interest is a factor to consider in deter‐

mining whether the decision was arbitrary. We note that the

use of third‐party reviewers, as United did here, can provide

some separation between the decision and that conflict of in‐

terest, lessening the likelihood that the conflict impacted the

decision, but here that is of little value because those review‐

ers were not asked to opine as to the mental limitations nor is

there any indication that they received the proper description

of the job requirements. In the end, however, our decision that

a remand is necessary does not depend on that conflict of in‐

terest as the tipping point, because even absent a conflict of

interest the decision cannot be sustained based on the failure

to properly characterize and address Dr. Fritz’s evaluation

and the mental limitations, and the failure to address the DOT

26 No. 18‐2155

classification used by the SSA. See Holmstrom, 615 F.3d at 773

(a plan administrator must address the Social Security find‐

ings and evidence in the record and provide a reasonable ex‐

planation for discounting it).

That determination is dispositive as well of Lacko’s claim

that United failed to address the combination of her impair‐

ments.2 United failed to discuss the mental limitations found

by Dr. Fritz, and the impact of Lacko’s medications on her

cognitive and physical functioning. Accordingly, United must

address the combination of all her impairments, including the

impact of medication and treatment for those ailments, on her

ability to perform the material duties of her regular occupa‐

tion. That failure to consider the combination of impairments,

including the mental limitations, on her ability to perform her

job is fatal to the denial of STD benefits as well. Moreover, we

would note that the Plan’s requirement of a “change” in a per‐

son’s physical or mental capacity in order to qualify for bene‐

fits does not by its terms preclude a degenerative condition

from qualifying a claimant for benefits. A condition can exist

for years, and only prevent a person from performing her job

at a later point in time when the worsening condition proves

2 Lacko also asserts that United erred in crediting the opinions of non‐

examining physicians over the opinions of her treating physicians, partic‐

ularly where the Plan allowed United to require Lacko to submit to an

examination from a physician of United’s choice. It is well‐established,

however, that unlike disability claims under SSA, a plan administrator de‐

termining disability benefits is not required under ERISA to give special

deference to the opinions of treating physicians. Black & Decker Disability

Plan v. Nord, 538 U.S. 822, 825 (2003).

No. 18‐2155 27

unmanageable. The deterioration can be sufficient to consti‐

tute a change in conditions under the plain language.

The most common remedy when an ERISA plan adminis‐

trator’s benefits decision is deemed arbitrary is to remand the

matter for a fresh administrative decision, rather than to grant

an outright award of benefits, and we believe that is the ap‐

propriate remedy here. Holmstrom, 615 F.3d at 778; Hennen,

904 F.3d at 542. A remand is necessary for United to reassess

Lacko’s claim in light of the deficiencies identified in this

opinion.

Accordingly, the decision of the district court is

REVERSED and the case REMANDED for further proceed‐

ings consistent with this opinion.