Submitted: March 2, 2018
from United States District Court for the Western District of
Arkansas - Fayetteville
COLLOTON, BOWMAN, and BENTON, Circuit Judges.
COLLOTON, Circuit Judge.
appeal arises from Liberty Life Assurance Company's
denial of Damon Zaeske's application for long-term
disability benefits under his employer's welfare benefit
plan. After Zaeske sued under the Employee
Retirement Income Security Act (ERISA), 29 U.S.C. §
1132(a)(1)(B), the district court ruled that Liberty
Life's denial was an abuse of discretion and ordered the
company to pay Zaeske benefits and attorney's fees.
Liberty Life appeals, and we conclude that its decision was
not an abuse of discretion, so we reverse the judgment.
worked at Walmart as a project manager. On April 4, 2014, he
stopped working due to chronic back pain. As a Walmart
employee, Zaeske was a member of Walmart's
Associates' Health and Welfare Plan, a plan insured and
administered by Liberty Life. After his last day of work,
Zaeske applied to Liberty Life as administrator for long-term
disability benefits under the plan.
evaluate Zaeske's claim, Liberty Life obtained medical
records from his treating physicians-Dr. Garrett, Dr. Potts,
and Dr. Nunley. The administrator then submitted those
records to Dr. Shannon, an independent consulting physician.
Dr. Shannon gave her assessment to Liberty Life on May 30,
on Zaeske's medical records, including the results of
magnetic resonance imaging in 2013, Dr. Shannon diagnosed
Zaeske with chronic low back pain and recently increased back
and leg pain due to disc protrusion with severe stenosis.
From this diagnosis, Dr. Shannon concluded that Zaeske's
current estimated work capacity was limited to sedentary
work, rather than the light work required by his job at
Shannon explained, however, that the usual recovery time for
Zaeske's primary impairing condition was three to six
months. In a later portion of her report, when asked to
address the estimated duration of Zaeske's restrictions
and limitations, Dr. Shannon stated: "An additional 3
months and depe[n]dent on response to treatment." Dr.
Shannon suggested that Liberty Life continue to obtain
updated office notes from Zaeske's treating physicians
for ongoing review of his condition. Liberty Life then
approved Zaeske's claim on June 4, subject to periodic
evaluation of his disability.
began receiving benefits on July 6. As part of its periodic
evaluation, Liberty Life sent requests for updated medical
records to Zaeske's treating physicians on October 12 and
October 27. Although Liberty Life received Dr. Potts's
responses to a generic restrictions form and an office visit
summary from a new treating physician, Dr. Randolph, the
administrator did not receive a response from Dr. Nunley or
updated medical records from any of the physicians. On
November 14, Liberty Life notified Zaeske that it had
suspended his benefits and that Liberty Life would close his
claim if it did not receive updated records by December 11.
On December 12, Liberty Life had not received any updated
records and thus denied Zaeske further benefits.
December 15, Liberty Life received updated medical records
from Dr. Potts, Dr. Nunley, and Dr. Randolph for May 9 to
November 7, 2014. The same day, Liberty Life sent the records
to Dr. Glassman, a second independent consulting physician,
for his assessment. Dr. Glassman attempted to contact each of
Zaeske's treating physicians three times, but received no
report dated December 23, Dr. Glassman observed that Zaeske
had been diagnosed with lumbar degenerative disc disease and
bulging discs, and that he suffered from spinal stenosis. Dr.
Glassman noted that there was no evidence of any side effects
from the medication that Zaeske used to control his pain.
From Zaeske's records, Dr. Glassman concluded that the
only diagnosis causing his impairment was lumbar degenerative
disc disease and back pain. Dr. Glassman then opined that
"a gentleman who is 51 years old with a history of
lumbar degenerative disc disease, but no evidence of any disc
herniation" could perform full-time activities
throughout an eight-hour work day, five days a week. Liberty
Life concluded, based on Dr. Glassman's assessment, that
Zaeske was not entitled to long-term disability benefits and
denied his claim.
February 20, 2015, Zaeske appealed the denial and submitted a
number of documents. These included treatment notes from Dr.
Potts dated December 29, 2014, in which she found that Zaeske
was "[p]ositive for back pain," but did not address
whether the pain was uncontrolled. In a letter dated February
10, 2015, Dr. Potts stated that "[Zaeske] is unable to
work due to severe back pain and medication that causes
drowsiness and inability to concentrate." But Liberty
Life declined to change its determination, because it had
received no ...