Sonja S. Sisung v. Unum Life Insurance Company of America

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11593
Non-Argument Calendar
____________________
SONJA J. SISUNG,
Plaintiff-Appellant,
versus
UNUM LIFE INSURANCE COMPANY OF AMERICA,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:20-cv-00497-WMR
____________________
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2 Opinion of the Court 21-11593
Before GRANT, LAGOA, and B RASHER , Circuit Judges.
PER CURIAM:
Sonja Sisung worked as a pharmacist from the time she
earned her doctorate in pharmacology in 1996 until she was injured
at work in January 2016. At the time of her injury, she was working
as a hospital pharmacist for Emory Healthcare, Inc. As part of its
employee welfare benefit package, Emory provided Sisung with a
long-term disability insurance plan issued and administered by
Unum Life Insurance Company of America. The plan is governed
by the Employee Retirement Income Security Act of 1974 (ERISA),
29 U.S.C. §§ 1001–1461.
Sisung brought suit under ERISA seeking judicial review of
Unum’s denial of continued long-term disability benefits. The dis-
trict court found that Unum had a reasonable basis for its decision
and entered judgment in Unum’s favor. After a careful review of
the record and the parties’ briefs, we conclude that Unum’s denial
of continued benefits was not reasonable, and we therefore re-
verse.
I.
Sisung was working the night shift at Emory on January 19,
2016, when she fell backward off a rolling metal stool and injured
her back. She felt immediate pain that increased later in the day
and the next day, and which interfered with her ability to work
during the following weeks. She was initially treated with
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21-11593 Opinion of the Court 3
medication and physical therapy, but after months of conservative
treatment, she continued to complain of significant lower back
pain and remained out of work on medical leave. In April 2016,
her treating orthopedist ordered an MRI of her lumbar spine,
which showed mild facet arthropathy and mild bulging of several
disks, without significant nerve impingement. Her physician tried
medial branch blocks and steroid injections, but Sisung reported no
improvement.
Sisung filed a claim for benefits under the Unum long-term
disability plan. The plan provides that an employee is initially con-
sidered disabled if she cannot perform the duties of her regular oc-
cupation. After benefits are paid for 24 months, however, the
plan’s definition of disability changes and an employee is only con-
sidered disabled if, due to the same sickness or injury, she is “unable
to perform the duties of any gainful occupation for which” she is
“reasonably fitted by education, training, or experience.” Unum
determined that Sisung was unable to perform the duties of a phar-
macist—which, according to the database used by Unum, is a “light
duty” occupation requiring the ability to push, pull, or lift up to 20
pounds occasionally—and paid benefits under the plan for 24
months.
During this initial two-year period, Sisung continued to re-
port severe lower back pain that radiated into her left leg, as well
as neck pain and headaches. She described daily activities that were
somewhat limited by pain and difficulty twisting, bending, and lift-
ing. In March 2017, more than a year after her injury, a neurologist
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4 Opinion of the Court 21-11593
recommended diagnostic testing, including nerve conduction stud-
ies and a new MRI. But on the advice of her workers’ compensa-
tion attorney, Sisung declined any further diagnostic workup.
During the spring and summer of 2017, Sisung’s healthcare
providers gave varying reports of her physical status. A neurologist
noted her continued complaints of lower back and neck pain and
restricted her to lifting no more than 15 pounds and sitting for no
more than 30 minutes at a time. A physical therapist evaluated her
and documented severe low back pain, muscle wasting and atro-
phy, and 3/5 muscle strength. Sisung’s workers’ compensation
physician, orthopedist Daniel Silcox, noted that a radiofrequency
ablation procedure provided significant pain relief, recorded 5/5
muscle strength with good flexion and range of motion, and opined
that she could return to medium-duty work (pushing, pulling, or
lifting up to 40 pounds).
Sisung did not return to work, however, and in June 2017
she reported that the radiofrequency ablation had stopped helping.
Dr. Silcox noted that there was no change in her overall physical
examination, and in July 2017, he stated that Sisung was more likely
than not at her pre-injury pain level and opined that she could re-
turn to work full duty. Sisung herself continued to complain of low
back pain that radiated upward when she walked and burning pain
down her left leg when she sat. She described her daily activities
as mostly sitting or lying down, with some light cooking or clean-
ing.
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21-11593 Opinion of the Court 5
In the fall of 2017, Sisung began seeing neurologist Allen
Lifton for pain management. Dr. Lifton’s nurse practitioner, Brian
Vereb, completed work status forms stating that Sisung was lim-
ited from heavy lifting or prolonged standing due to severe lower
back pain with lumbar spasms. Vereb noted that Sisung had lim-
ited range of motion and diminished lower extremity strength due
to pain and indicated that Sisung could not perform work that
would require her to lift 20 pounds.
In November 2017, Dr. Lifton prescribed gabapentin to treat
Sisung’s back and leg pain. Sisung reported good results for pain
treatment, but she also reported that she had trouble thinking
clearly when she took the medication. In response to an inquiry by
Unum in March 2018, Vereb stated that Sisung did not have the
capacity for sedentary work at that time. He explained that her
medications were causing problems with her cognitive function-
ing, but without the medication, her activities were limited by pain.
Over the next several months, Dr. Lifton and Vereb encour-
aged Sisung to try decreasing the dosage of gabapentin. On her
second attempt, Sisung managed to decrease the dosage of
gabapentin for about a month, but (according to her own report)
she did not experience any improvement in cognitive side effects
and resumed taking the full dosage.
In the meantime, as the initial 24-month period of benefits
neared its end, Unum’s employees gathered and reviewed infor-
mation relevant to its determination of whether Sisung could en-
gage in “any gainful occupation” commensurate with her
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6 Opinion of the Court 21-11593
education and experience—if so, her long-term disability benefits
would end on July 18, 2018; if not, Unum would be required to
continue paying benefits under the plan. As part of this process,
Unum’s representative spoke with Sisung about her daily activities.
Sisung reported that she was able to ride a stationary bicycle, exer-
cise with her exercise ball, do yoga, walk up to a quarter mile, and
do light cooking and cleaning. She played games or shopped on
her phone and engaged in crafts like basket-making that she could
do while seated on the couch. Sisung also told the Unum repre-
sentative that her medication made her dizzy, and that when she
was on the medication, she was not able to think as she normally
would.
Next, Unum’s vocational specialist conducted an assessment
and noted that viable employment options were available at the
sedentary exertion level, absent Sisung’s reported cognitive impair-
ment. An in-house registered nurse concluded that the records in
Sisung’s file, including Sisung’s own report of her daily activities,
indicated that she likely had the capacity to perform sedentary
work. She also noted that although Sisung continued to report cog-
nitive impairment, her records showed essentially unremarkable
physical examinations. An in-house physician called and spoke
with Mr. Vereb, who ultimately agreed that there was nothing to
prevent Sisung from performing “sedentary office/desk-type
work.” Based on that phone call and her own record review,
Unum’s in-house physician determined that Sisung could work at
a sedentary-level occupation. The vocational specialist then
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21-11593 Opinion of the Court 7
identified three sedentary-level pharmacy jobs in Sisung’s labor
market: pharmacy area supervisor, pharmacy manager, and phar-
macy supervisor.
Unum concluded that, as of July 2018 when the initial 24-
month period of benefits ended, Sisung could perform the duties
of a gainful occupation appropriate to her training, education, or
experience. It therefore denied her continued benefits under the
long-term disability plan.
Several months later, Sisung appealed the denial of contin-
ued benefits. With her appeal, she submitted a functional capacity
examination conducted by a physical therapist and a neuropsycho-
logical evaluation conducted by a psychologist. The physical ther-
apist who conducted the functional capacity examination con-
cluded that Sisung was not physically capable of performing seden-
tary-level work because, among other things, she could not safely
lift more than negligible weight from floor to waist or more than
five pounds from waist to overhead, she could not safely carry
more than five pounds, she would require breaks to lie down dur-
ing the day, and she could not work a full eight-hour shift.
The psychologist who conducted the neuropsychological
examination concluded that Sisung could not perform her job as a
pharmacist because of cognitive impairments that were apparently
related to pain and medication side effects. He explained that Sis-
ung achieved low average scores on intelligence testing—an esti-
mated ten-point drop in her IQ—and had mild difficulty with exec-
utive and organizational skills and mildly to moderately impaired
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8 Opinion of the Court 21-11593
memory, attention, and processing. He also stated that because
she would appear to others to be impaired, she would not be able
to work as a manager or supervisor. The psychologist noted that
Sisung scored within normal limits on several tests designed to
measure effort and detect malingering, and that she was not found
to be consciously overreporting her symptoms.
In considering Sisung’s appeal, Unum had an in-house neu-
rologist, Jacqueline Crawford, review Sisung’s file. Dr. Crawford
concluded that Sisung’s medical records and description of her
daily activities were inconsistent with the physical and cognitive
impairments shown in the evaluations submitted with her appeal.
Based on Dr. Crawford’s review and the vocational specialist’s ear-
lier identification of suitable sedentary occupations, Unum upheld
its denial of continued long-term disability benefits.
Sisung filed a claim under ERISA for judicial review of
Unum’s denial of benefits. After an extended discovery period, the
parties filed cross-motions for judgment on the administrative rec-
ord. The district court found that Unum’s decision to deny contin-
ued benefits was not arbitrary and capricious and entered judg-
ment for Unum. Sisung now appeals.
II.
We review a district court’s ruling affirming or reversing a
plan administrator’s denial of benefits de novo, using the same le-
gal standards as the district court.
Blankenship v. Metro. Life Ins.
Co., 644 F.3d 1350, 1354 (11th Cir. 2011). We have established a
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21-11593 Opinion of the Court 9
multi-step inquiry for judicial review of the plan administrator’s
benefits decision: to begin, the court reviews the administrator’s
decision using the de novo standard; if the court agrees with the
decision under this standard, then it ends the inquiry and affirms
the decision.
Id. at 1355. If not, and if (as here) the plan vests the
administrator with discretion in reviewing claims, then the court
must review the decision using an arbitrary-and-capricious stand-
ard.
Id. Under this deferential standard, the court must determine
whether reasonable grounds exist for the decision.
Id. If so, then
the decision was not arbitrary and capricious, and the court must
affirm.
Id. If not, then the court must reverse the administrator’s
decision.
Id.
If the plan administrator was operating under a conflict of
interest—for example, where (as here) the plan administrator both
decides whether an employee is eligible for benefits and pays any
benefits it awards from its own funds—then the court must take
the conflict of interest into account in determining whether the de-
nial of benefits was reasonable.
Id.;
see Metro. Life Ins. Co. v.
Glenn, 554 U.S. 105, 117 (2008). The presence of such a conflict
does not by itself render an administrator’s denial of benefits un-
reasonable, but it may act as a tiebreaker in close cases.
Glenn, 554
U.S. at 117. A plan administrator’s conflict of interest should be
given greater weight where “circumstances suggest a higher likeli-
hood that it affected the benefits decision, including” where the in-
surance company administrator has a history of biased claims ad-
ministration.
Id. The conflict takes on less importance “where the
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10 Opinion of the Court 21-11593
administrator has taken active steps to reduce potential bias and to
promote accuracy, for example, by walling off claims administra-
tors from those interested in firm finances.”
Id.
Judicial review of the denial of benefits under an ERISA-
governed plan is “limited to consideration of the material available
to the administrator at the time it made its decision.”
Blankenship,
644 F.3d at 1354. The claimant bears the burden of proving that
she is entitled to benefits.
Horton v. Reliance Standard Life Ins.
Co., 141 F.3d 1038, 1040 (11th Cir. 1998).
Here, Unum’s denial of benefits was both wrong on de novo
review and unreasonable. On reviewing the administrative record
de novo, we disagree with Unum’s conclusion that, as of July 19,
2018, Sisung (1) had the physical capacity to perform sedentary-
level work and (2) did not have any cognitive impairment that
would prevent her from working as a pharmacy supervisor, area
supervisor, or manager. And although we conclude that Unum
had a reasonable basis for its determination that Sisung could phys-
ically perform sedentary level work, we find no such support in the
record for its determination that she had no relevant cognitive lim-
itations.
As to Sisung’s physical capacity, Unum relies in part on the
Department of Labor’s Dictionary of Occupational Titles, which
states that sedentary-level work requires, among other things, the
ability to push, pull, lift, and carry ten pounds occasionally. The
functional capacity evaluation is the only medical testing of Sis-
ung’s ability to lift or carry contained in the administrative record,
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21-11593 Opinion of the Court 11
and it showed that although she could push or pull more than 40
pounds, she could not safely lift or carry 10 pounds. None of Sis-
ung’s daily activities showed that she could, in fact, lift or carry that
weight, and the only medical evaluations that specifically men-
tioned Sisung’s lift-and-carry capacity were either consistent with
the functional capacity evaluation or conducted nearly a year be-
fore the July 2018 change-in-definition date. Unlike Unum, we do
not find Mr. Vered’s apparent change of mind about Sisung’s phys-
ical capacity persuasive—Unum’s record of that conversation indi-
cates that the focus was on Sisung’s ability to sit or stand for ex-
tended periods, not whether she could lift or carry ten pounds; and
in any event, Vered’s supervising physician (Dr. Lifton) later over-
rode Vered’s opinion by agreeing with the results of the functional
capacity evaluation.
But although we might reach a different conclusion than
Unum did regarding Sisung’s physical capacity using a de novo
standard, Unum’s decision that Sisung could perform sedentary-
level work was not arbitrary and capricious. Several members of
Unum’s in-house medical staff reviewed Sisung’s records and con-
cluded that the limitations in the functional capacity evaluation
were inconsistent with (1) the reported mechanism of injury and
the relatively innocuous findings in her 2016 MRI; (2) Dr. Silcox’s
evaluations and decision to release Sisung to full duty in 2017, with
no new injury since that time; (3) Sisung’s decision not to have ad-
ditional diagnostic testing recommended by her physicians; (4) Sis-
ung’s own description of her daily activities, which appeared to
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12 Opinion of the Court 21-11593
exceed the requirements for sedentary work; (5) Vered’s agree-
ment that Sisung could perform sedentary-level work; and (6) the
bilateral push/pull and grip-strength results in the functional capac-
ity evaluation. Because substantial reliable evidence existed to sup-
port Unum’s determination that Sisung could physically perform
sedentary-level work, that portion of its decision survives our re-
view under the arbitrary-and-capricious standard.
Unum’s conclusion that Sisung had no cognitive limitations
was not so supported. Here again, the evaluation that Sisung sub-
mitted with her appeal was the only relevant medical testing in the
record. Unlike the question of Sisung’s physical capacity, however,
the medical records available to Unum at the time of its decision
contained no contradictory statements about Sisung’s cognitive
status. Although Unum had the option of obtaining a second opin-
ion through an independent medical evaluation, it did not do so.
Instead, Unum relied on Dr. Crawford’s review of the neuropsy-
chological evaluation and records from Sisung’s treating neurolo-
gist, Dr. Lifton.
Notably, Dr. Crawford did not disagree with the psycholo-
gist’s conclusion that Sisung’s test scores on the neuropsychologi-
cal evaluation, if accurate, showed cognitive impairments that
would prevent her from working in her field. Instead, Dr. Craw-
ford rejected the neuropsychological evaluation as invalid in its en-
tirety, based in part on Sisung’s borderline score on one measure
of validity for memory impairments (the Test of Memory Malin-
gering) and the fact that Sisung’s responses on a test of personality
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21-11593 Opinion of the Court 13
and mental illness were inconsistent, invalidating that part of the
evaluation. But while a borderline score on the Test of Memory
Malingering might be a reason to question whether Sisung was ex-
aggerating her memory impairment, it is not a reasonable basis for
discarding all of the test results when Sisung passed several other
measures of validity. For example, Sisung scored within normal
limits on validity tests measuring cognitive effort in problem solv-
ing, attention, and auditory processing, all areas in which Sisung
demonstrated some level of impairment. And although the psy-
chologist deemed the personality and mental illness assessment in-
valid due to inconsistent responses, he noted that the assessment
showed no evidence that Sisung was consciously overreporting her
symptoms—and in any event, Sisung has never claimed to have a
personality disorder or mental illness.
Dr. Crawford also pointed to an absence of objective evi-
dence of cognitive impairment in Sisung’s records. Specifically, Dr.
Crawford noted that Dr. Lifton and Mr. Vered did not document
drowsiness or difficulty recalling or describing symptoms, did not
order a brain MRI to investigate Sisung’s reported cognitive defi-
cits, and observed no other common side effects from gabapentin
(such as nystagmus or poor coordination) on physical examination.
Dr. Crawford also considered that Sisung’s active pharmacy license
and her use of a computer and management of her finances were
inconsistent with a “functionally relevant cognitive impairment.”
But the fact that Sisung had the cognitive capacity to stay
awake in the doctor’s office, browse the internet, and balance her
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14 Opinion of the Court 21-11593
bank account is not inconsistent with the psychologist’s conclusion
that she lacked the capacity to work as a pharmacist or pharmacy
manager. We also see no logical reason—and Dr. Crawford did
not provide a medical one—why Dr. Lifton should have ordered
brain imaging to investigate impairments that he attributed to
medication side effects, or how the fact that Sisung did not exhibit
other potential side effects from gabapentin is relevant to whether
the cognitive effects she did experience were disabling. In short,
Unum had no reasonable basis for rejecting Sisung’s evidence of
disabling cognitive impairments, and its denial of continued long-
term benefits was therefore arbitrary and capricious.
See Blanken-
ship, 644 F.3d at 1355;
see also Black & Decker Disability Plan v.
Nord, 538 U.S. 822, 834 (2003) (plan administrators “may not arbi-
trarily refuse to credit a claimant’s reliable evidence”).
In making our determination, we have given no significant
weight to the structural conflict of interest caused by Unum’s dual
roles as decisionmaker in eligibility determinations and payor of
benefits. We are cognizant of Unum’s (remote) history of biased
claims decisions, as outlined in the 2004 Report of the Targeted
Multistate Market Conduct Examination, and particularly the con-
cern identified in that report that Unum’s employment of and “ex-
cessive reliance upon” its own in-house medical staff “often re-
sulted in a Company bias and the inappropriate interpretation or
construction of medical reports, to the detriment of claimants.”
Rackemann, Sawyer & Brewster, P.C.,
Report of the Targeted
Multistate Market Conduct Examination (Nov. 18, 2004) at 5–6.
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21-11593 Opinion of the Court 15
The concern for bias raised here by Unum’s reliance on its in-house
medical experts is counterbalanced, however, by its attestation that
it “has taken active steps to reduce potential bias and to promote
accuracy” by, among other things, “walling off claims administra-
tors from those interested in firm finances.”
Glenn, 554 U.S. at 117.
III.
Because we conclude that Unum arbitrarily rejected Sisung’s
evidence of cognitive impairments that rendered her unable to per-
form any gainful occupation for which she is “reasonably fitted by
education, training, or experience,” we reverse the entry of judg-
ment in favor of Unum and remand to the district court for further
proceedings. We leave it to the district court to decide Sisung’s
request for attorney’s fees in the first instance, and to determine
whether a remand to Unum for supplementation of the adminis-
trative record is required to establish the amount of benefits due.
REVERSED AND REMANDED.
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