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Willcox v. Liberty Life Assur. Co.: ERISA - insurance company abused discretion ignoring evidence regarding Long Term Disability Plan

1The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.
United States Court of Appeals
No. 08-1311
Theresa Willcox, *
Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Liberty Life Assurance Company *
of Boston, *
Defendant-Appellant. *
Submitted: November 14, 2008
Filed: January 12, 2009
Before MURPHY, HANSEN, and RILEY, Circuit Judges.
MURPHY, Circuit Judge.
Theresa Willcox brought this action against Liberty Life Assurance Company
of Boston (Liberty Life) pursuant to the Employee Retirement Income Security Act
of 1974 (ERISA), alleging that Liberty Life had wrongfully denied her claim for long
term partial disability benefits. Both sides moved for summary judgment, and the
district court1 granted Willcoxs motion after concluding that Liberty Life had abused
its discretion by ignoring evidence in support of her claim. Liberty Life appeals, and
we affirm.
Theresa Willcox was working as a claims adjustor for Blue Cross Blue Shield
of Minnesota (BCBS) when she was injured in an automobile accident in March
2003. Willcox reports that as a result of the accident she has suffered from severe
pain in her lower back and lower left leg. After chiropractic treatments failed to
relieve her symptoms, Willcox sought more aggressive alternatives. In November
2004 she underwent a spinal discectomy and fusion. After several months
recuperating, Willcox resumed part time work from home in February 2005. The
surgical procedure appeared to alleviate the pain in her back, but Willcox claims to
continue suffering from pain radiating into her lower left leg due to an ongoing
irritation of the nerve root emanating from the L5 segment of the spine, a condition
known as an L5 radiculopathy.
Willcox asserts that as a result of her continuing leg pain she is unable to return
to full time work. The evidence regarding Willcoxs alleged radiculopathy is
complicated and spans several years of diagnosis and treatment. Medical information
about her condition was obtained from electrodiagnostic tests, physical examinations,
imaging scans, and epidural injections.
Over the relevant period Willcox underwent three electromyograms (EMGs).
The first two predated her November 2004 lumbar fusion surgery and produced
normal results. The third, performed in March 2005, was postoperative and showed
a slight abnormality which could be associated with an S1 radiculopathy. The
abnormality, however, could also have been a result of Willcoxs surgery.
2Foot drop occurs when muscle weakness causes the foot to slap against the
floor while walking.
3During an SLR test a patient sits or lies on the examining table and the
examiner attempts to elicit, or reproduce, physical findings to verify the patients
reports of back pain by raising the patients legs when the knees are fully extended.
Phillips v. Barnhart, 91 F. Appx 775, 777 n.4 (3d Cir. 2004) (unpublished).
Willcox appeared for at least fifteen physical examinations with a variety of
clinicians over the period from November 2003 through November 2005. During
these examinations, the attending clinicians evaluated Willcox for some combination
of muscle weakness, sensory loss, foot drop2 and straight leg raising (SLR) ability.
These various objective physical symptoms may be associated with an L5
radiculopathy. Based on our review of the record, we note the following:
Seven exams found no indication of muscle weakness. At least two found
generalized weakness in the left leg, but nothing distinct to the areas served by
the L5 nerve. Three others found weakness indicating a possible L5
Two exams found no loss in sensation. Another two found evidence of
impaired sensation consistent with L5 radiculopathy.
In four exams there was no observed foot drop. The condition was
observed in two exams.
Seven SLR tests3 were negative for L5 radiculopathy. Another produced
mixed results. Two others were positive.
One exam revealed no discernible deficits without discussing specific
A magnetic resonance imaging (MRI) procedure performed in April 2003
revealed moderate disc bulging at the L5-S1 segment of Willcoxs spine and mild
front/back left foraminal narrowing and mild flattening of the left L5 ganglion. This
condition may put pressure on the L5 nerve, causing radicular symptoms. A second
MRI in February 2004 showed essentially the same condition, but a reviewing
clinician noted the scan did not necessarily indicate definite nerve root
impingement. A computed tomography (CT) scan in January 2005 showed that the
[l]umbosacral foramina are widely patent and normal in caliber, suggesting no
pressure on the nerve root.
In June 2003 Willcox received an epidural injection of a local anesthetic at her
left L5 nerve root, producing 80% initial improvement in her symptoms. This relief
lasted about one day and suggested that irritation of her L5 nerve could be responsible
for her pain. In March 2004 Willcox was administered an epidural at her S1 nerve
root which first produced a 70% decrease in her symptoms but ultimately
aggravated her condition, causing her to miss a week of work.
BCBS provided Willcox with short term partial disability payments for six
months following her November 2004 disc fusion surgery. It maintained long term
disability coverage for its employees through Liberty Life, and Willcox sought
continuing benefits from Liberty Life when her short term benefits expired on May
22, 2005. In February 2006 Liberty Life concluded, based in large part on an
evaluation of the medical evidence by neurologist Dr. David Marks, that Willcox was
capable of performing her job as a claims adjustor and was therefore not entitled to
disability benefits. Willcox appealed, and in May 2006 Liberty Life affirmed its
earlier determination. Thereafter Willcox filed this suit pursuant to ERISA 502, 29
U.S.C. 1132.
Willcox submitted fifteen exhibits to the district court which were drawn from
publicly available sources. They mainly consisted of generic anatomical charts,
medical dictionary entries, journal articles, and the like. One exhibit concerned the
qualifications of Liberty Lifes reviewing physician, Dr. Marks. None of the exhibits
contained any medical data or diagnostic results specific to Willcox or her injury.
Liberty Life moved to strike the exhibits, noting that none of them had been provided
to the company nor considered by it during its administrative process. Liberty Life
argued in the alternative that if the district court were inclined to receive the exhibits,
it should permit the company to offer rebuttal exhibits and remand the case for the
companys further administrative review rather than usurp the plan administrators
ability to weigh and consider evidence in the first instance.
The district court observed that it was generally not appropriate in ERISA cases
for a reviewing court to consider evidence outside the administrative record. It
therefore decided to remand the case back to Liberty Life so that the company could
conduct an initial review and evaluation of the additional evidence. In returning the
case for further administrative review the district court ordered Liberty Life to
consider Willcoxs fifteen proffered exhibits, the rebuttal exhibits the company had
identified, and [a]ll other evidence relating to the parties positions. Liberty Lifes
request for permission to move for reconsideration was denied.
Following the district courts order Willcox submitted her generic exhibits on
remand. In addition she produced personal medical records related to treatments she
received in 2006 and 2007, questionnaires completed by two of her treating physicians
regarding the specifics of her diagnosis, and two witness statements (one by her)
attesting to her physical limitations. Liberty Life retained neurologist Dr. Steven
McIntire to conduct an independent peer review. After reviewing the supplemented
administrative record, Dr. McIntire concluded that Willcox might be restricted in her
ability to walk, stand, or lift objects, but that such limitations ought not to affect her
performance as a sedentary claims adjustor. Based on his findings, Liberty Life again
denied Willcoxs claim.
The case then returned to district court which took up the competing motions
for summary judgment. The district court determined that Liberty Life had abused
its discretion by failing to evaluate Plaintiffs medical records in their totality and
by blindly relying on Dr. McIntires cursory medical opinion which it
characterized as almost devoid of any rationale, and granted summary judgment to
Willcox. Its order makes no reference to any of the exhibits Willcox submitted after
the initial administrative review, and the district court does not appear to have relied
on them in its decision. Liberty Life appeals, challenging both the decision to reopen
the administrative record as well as the courts conclusion that the company abused
its discretion.
The parties agree that the insurance policy at issue is governed by ERISA and
that Liberty Lifes decision to deny Willcoxs claim is subject to deferential review
for abuse of discretion. As the district court recognized, the general rule is that
review under the deferential standard is limited to evidence that was before the
administrator. Cash v. Wal-Mart Group Health Plan, 107 F.3d 637, 641 (8th Cir.
1997) (internal quotation marks omitted). After considering the arguments made by
the parties to the district court, however, it decided to remand for Liberty Life to
consider the new submissions by Willcox and [a]ll other evidence relating to her
claim put forward by either party. We review a decision to remand a case for
additional administrative action for abuse of discretion. Cf. Ingram v. Barnhart, 303
F.3d 890, 893 (8th Cir. 2002) (applying abuse of discretion standard to the district
courts decision to remand to the commissioner of Social Security Administration).
At oral argument counsel for Liberty Life acknowleged that as part of its
presentation to the district court it had invited remand for consideration of new
evidence and that the real issue on appeal is not the propriety of the order to remand
but the admissibility of Willcoxs supplemental exhibits. Willcox argued that her
proffered exhibits were drawn from widely available public sources and not unique
to her case, distinguishing them from cases in which reviewing courts declined to
consider extra record evidence specific to a plaintiffs symptoms or diagnosis. See,
e.g, Rittenhouse v. UnitedHealth Group Long Term Disability Ins. Plan, 476 F.3d 626,
630 (8th Cir. 2007); Brown v. Seitz Foods, Inc. Disability Benefit Plan, 140 F.3d
1198, 1200 (8th Cir. 1998). Willcox maintained that her exhibits were simply meant
to provide context to assist the district court in interpreting complex medical evidence.
For example, one exhibit provided a medical definition of foot drop, another defined
radiculopathy; others discussed the diagnostic relevance of epidural injections or
suggested that EMGs may fail to detect an active radiculopathy; yet another discussed
how a narrowing of the space through which a nerve root passes could place pressure
on the nerve.
We expressed concern in Cash that explanatory material may be outside the
permissible scope of deferential review, 107 F.3d at 642, but the objectionable
material in that case was an affidavit prepared by the plaintiffs physician in
anticipation of litigation. By contrast, the exhibits offered by Willcox in the district
court were culled from widely available medical publications and websites, all of
which had been produced with no thought to litigation. In previous cases this court
has itself cited public medical sources on its own initiative in order to provide context
for a decision, see, e.g., Barnhart v. UNUM Life Ins. Co. of Am., 179 F.3d 583, 585-
86 nn.4-7 (8th Cir. 1999), and at least one circuit has explicitly held that generic
materials may be introduced in the district court in ERISA cases to provide context
and guidance. Vega v. Natl Life Ins. Servs., Inc. 188 F.3d 287, 299 (5th Cir. 1999)
(en banc) ([E]vidence . . . that assists the district court in understanding the medical
terminology or practice related to a claim would be . . . admissible.). But even if we
decline to adopt a general rule permitting reviewing courts to consider generic medical
exhibits in ERISA cases, the district court did not take it upon itself to review and
consider the new evidence, but rather asked Liberty Life to do so. See King v.
Hartford Life & Accident Ins. Co., 414 F.3d 994, 1006 (8th Cir. 2005) (en banc)
(remand appropriate for the administrator to consider in the first instance evidence
received by the district court, but not presented to the administrator).
The district courts remand order reflected the deference it owed to the plan
[R]emand will allow the administrator to consider the evidence
submitted to the Court but not presented to the administrator. Otherwise,
the Court would be acting as a claims administrator by determining what
Liberty Lifes decision would have been had it been aware of the
information in the exhibits at the time it made the benefits determination.
. . . [T]he Courts responsibility is to determine whether Liberty Lifes
denial of benefits was an abuse of discretionnot whether Willcox was,
in the Courts view, entitled to disability benefits.
The district court thus preserved the companys prerogative to conduct an initial
assessment of the expanded record and to submit its own rebuttal exhibits,
contemplating that Liberty Life would consider all appropriate evidence in the record.
When the case returned after the remand, the district court applied an abuse of
discretion standard rather than attempting a de novo assessment of the evidence.
Liberty Lifes alternative suggestion for a remand opened the door for the
district court to send the publicly available exhibits offered by Willcox to Liberty Life
for further administrative review without reaching the issue of whether the court might
undertake its own review of them. Liberty Life should not now be heard to complain
that the district court followed a path which the company itself had suggested as an
alternative. Based on this record we conclude that it was not an abuse of discretion
for the district court to remand the case. Although the subsequent inclusion of
personal materials in addition to the generic exhibits was more problematic, it does
not appear that the district court considered them in its evaluation of Liberty Lifes
performance as plan administrator. The ultimate issue in this appeal is whether
Liberty Life abused its discretion in either its original review or the one following
remand. Since we conclude that the company abused its discretion in its reviews both
before and after the remand, any issue about the propriety of the remand is essentially
We review de novo the district courts grant of summary judgment, applying
the same deferential abuse of discretion standard to Liberty Lifes denial of Willcoxs
claim. Shipley v. Ark. Blue Cross & Blue Shield, 333 F.3d 898, 901 (8th Cir. 2003).
Under the abuse of discretion standard, we look to see whether [the plan
administrators] decision was reasonable. In doing so, we must determine whether the
decision is supported by substantial evidence, which is more than a scintilla, but less
than a preponderance. Clapp v. Citibank, N.A. Disability Plan (501), 262 F.3d 820,
828 (8th Cir. 2001) (internal citations and quotation marks omitted).
Willcoxs initial application for long term partial disability benefits was first
reviewed for Liberty Life by Dr. Thomas Cuevas, a specialist in internal medicine.
Dr. Cuevas concluded that the available records do not establish impairment in her
capacity to perform sedentary activities but suggested that Liberty Life might wish
to obtain the opinion of a neurologist or a specialist in physical medicine. Liberty Life
then requested the opinion of an independent peer review physician, Dr. David Marks
who is a neurologist. Dr. Marks began his report by listing the various medical
records he reviewed. This list indicates that all of the medical evidence discussed here
was in one form or another available to Dr. Marks. By his own estimate Dr. Marks
spent two hours reviewing these materials. He ultimately concluded that Willcox had
no objective evidence of radiculopathy and as of May 21, 2005, was able to work
in her job as a claims adjustor for Blue Cross-Blue Shield on a full time basis.
Adopting Dr. Markss report, Liberty Life denied Willcoxs claim on the basis
that her condition was not disabling. Willcox promptly sought administrative review
of the denial and supplemented her medical records at this time with a letter from her
orthopedic surgeon, Dr. James Schwender. Dr. Schwenders letter elaborated on
Willcoxs symptoms and his opinion that she suffered from a partial, permanent
disability. Liberty Life again denied her claim, concluding that Dr. Schwenders
letter did not contain any new information and quoting Dr. Markss determination
that there was no objective evidence for a radiculopathy. This lawsuit followed.
Liberty Lifes determination is reviewable under a deferential abuse of
discretion standard. Under this standard its decision must be supported by substantial
evidence, which is more than a scintilla, but less than a preponderance. Clapp, 262
F.3d at 828. Liberty Life was entitled to seek and obtain a professional peer review
opinion from Dr. Marks, but it was not free to accept this report without considering
whether its conclusions follow logically from the underlying medical evidence.
Abram v. Cargill, Inc., 395 F.3d 882, 887 (8th Cir. 2005). Dr. Markss
reportintentionally or notmischaracterizes the medical evidence in several
important respects.
First, as the district court noted, Dr. Marks twice claimed in his report that the
medical record showed no objective evidence of radiculopathy. This is not
accurate. The record documents multiple instances of muscle weakness, loss of
sensation, foot drop, positive SLR tests, a positive response to an epidural, and MRIs
consistent with radiculopathy. It may be that Dr. Marks believed these reports were
less compelling than other contrary indications, but this is not what he said. It was not
accurate to claim that the record contained no objective evidence to support Willcoxs
claim. It may also be that Dr. Marks was simply careless in how he chose to
summarize a large volume of conflicting data. It was nevertheless an abuse of
discretion for Liberty Life to rely on his demonstrably incorrect conclusion that there
was no objective evidence in the record to support Willcoxs claim.
Second, Dr. Marks writes that [Willcox] had a left L5 nerve block performed
on 6/12/03 without any relief. This also is not accurate. The diagnostic report
prepared in conjunction with the nerve block could not have been more clearly to the
contrary. Under the prominent heading CONCLUSION, the interpreting physician
wrote 80% initial improvement after injection of steroid and local anesthetic in the
left L5 nerve root sheath. According to Dr. Markss own catalog of the materials
provided to him, this diagnostic report was among the records at his disposal. His
suggestion that the procedure offered Willcox no relief may indicate that he failed to
read the report or consulted it so cursorily that he missed its import. We conclude that
Dr. Markss report reflects an incomplete and selective picture of the medical
Third, even if Dr. Markss report is accepted at face value, it at most addresses
the alleged cause of Willcoxs lower leg pain; it does not in any respect rebut the
existence of the debilitating pain. On this point the record indicates that every medical
professional actually to have examined Willcoxfrom her initial treating physician
to her orthopedic surgeon to pain management consultants to physical
therapistsuniformly accepted that her symptoms were real. There is absolutely no
evidence that she was malingering or that her complaints were manufactured. While
an ERISA plan administrator need not accord special deference to a treating
physicians opinion, Black & Decker Disability Plan v. Nord, 538 U.S. 822, 825
(2003), an administrator may not arbitrarily refuse to credit a claimants reliable
evidence, including the opinions of a treating physician, id. at 834. Moreover,
eliminating one potential cause of a claimants disability may be insufficient to deny
a claim if the symptoms are otherwise credible and other potential causes exist. See
Abram, 395 F.3d at 887 (abuse of discretion to consider only one possible cause of
claimants symptoms and ignore others).
A plan administrator abuses its discretion when it ignores relevant evidence.
In Norris v. Citibank, N.A. Disability Plan (501), 308 F.3d 880, 885 (8th Cir. 2002),
we held that a plan administrator had abused its discretion in part by failing to
address the extensive medical evidence relating to [the claimants] disability or the
consistent conclusions of her doctors and various [plan administrator] personnel that
she could not work. See also Torres v. UNUM Life Ins. Co. of Am., 405 F.3d 670,
681 (8th Cir. 2005) (abuse of discretion to ignore[] evidence that was directly related
to the Plans definition of disability).
Other circuits have made similar assessments. The Sixth Circuit has recently
concluded that a plan administrator abused its discretion when it
focused on slivers of information that could be read to support a denial
of coverage and ignoredwithout explanationa wealth of evidence
that directly contradicted its basis for denying coverage. Such a
decision-making process is not deliberate or principled, and the
explanation provided was far from reasoned, as it failed to address any
of the contrary evidence.
Metropolitan Life Ins. Co. v. Conger, 474 F.3d 258, 265 (6th Cir. 2007); see also
Moon v. Unum Provident Corp., 405 F.3d 373, 381 (6th Cir. 2005) (abuse of
discretion to conduct selective review of the administrative record rather than
administrative record as a whole). The Seventh Circuit had earlier come to a similar
conclusion. See Govindarajan v. FMC Corp., 932 F.2d 634, 637 (7th Cir. 1991)
([The plan administrators] selective review of the medical evidence and its
completely erroneous assertion that there was no physical cause for the subjective
symptoms of pain renders its decision not only unreasonable but arbitrary and
On remand Liberty Life was given another opportunity to review the record and
assess Willcoxs claim. The company retained independent peer review physician Dr.
Steven McIntire, a neurologist. Although Dr. McIntire concluded that [t]here was
not evidence of an ongoing active radiculopathy, he opined that Willcox should not
stand or walk more than three to four hours in an eight hour day. Based on this
limitation and a vocational case managers assessment of Willcoxs duties as a claims
adjustor, Liberty Life concluded Willcox was able to resume her occupation full time
and again denied her claim for long term partial disability benefits. This post remand
decision is also reviewed for abuse of discretion.
Dr. McIntires report shows that he had access to the same materials relied upon
by Dr. Marks, yet his report is even more cursory. Although he notes in passing some
evidence of generalized weakness in Willcoxs left leg, he neglects to mention other
evidence tending to support her claim. The unmentioned evidence included the results
of her tests for foot drop, positive SLR, decreased sensation, and epidural injections.
Only by ignoring such evidence, however, could Dr. McIntire conclude, as he does,
that [t]here was not evidence of an ongoing active radiculopathy. It was therefore
an abuse of Liberty Lifes discretion to rely on Dr. McIntires incomplete, selective
review of the medical evidence.
It is well settled that in ERISA cases a reviewing court may not substitute [its]
own weighing of the evidence for that of the administrator. Ferrari v. Teachers Ins.
& Annuity Assn, 278 F.3d 801, 807 (8th Cir. 2002). But Liberty Lifes obligation
as an ERISA fiduciary required more than combing the record for evidence in its favor
and abandoning its review upon discovering more than a scintilla of such evidence.
See Metropolitan Life, 474 F.3d at 265. Liberty Life was required to evaluate the
available evidence in its entirety before reaching a determination, particularly after the
district court had ordered it on remand to consider all of the evidence relating to her
claim. The record does not show that the company met this duty, and we therefore
conclude Liberty Life abused its discretion in denying Willcoxs claim.
For the foregoing reasons we conclude that the district court did not abuse its
discretion by accepting Liberty Lifes suggestion to remand the case for further
administrative review but that Liberty Life abused its discretion by relying on the
opinions of two reviewing physicians which mischaracterized the medical evidence
and ignored key findings in support of Willcoxs claim. Accordingly, we affirm the
judgment of the district court.


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