APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. José Antonio Fusté, U.S. District Judge.
Pedro J. Landrau-López, for appellant.
Lourdes C. Hernández-Venegas, with whom Elizabeth Pérez-Lleras, Shiara L. Diloné -Fernández and Schuster Aguiló LLP, were on brief for appellees.
Before Torruella, Baldock,[*] and Kayatta, Circuit Judges.
TORRUELLA, Circuit Judge.
Plaintiff-Appellant Rolando Ortega-Candelaria (" Ortega" ) appeals the district court's dismissal of his claims under the Employee Retirement Income Security Act (" ERISA" ), 29 U.S.C. § § 1001-1461. Before the district court, Ortega sought judicial review of the decision to terminate payment of disability benefits to him under Johnson & Johnson's Long-Term Disability Plan (the " Plan" ). Ortega requested a judgment restoring his terminated benefits and ordering payment of past benefits. The district court dismissed Ortega's claims with prejudice.
On appeal, Ortega argues that Johnson & Johnson and Medical Card System, Inc. (" MCS" ) (collectively, the " Appellees" ) arbitrarily and capriciously terminated his disability benefits. Ortega contends that the Appellees erroneously credited an examination by a physical therapist over the opinion of his treating physician. Given the substantial record evidence supporting the Appellees' determination, we find that the decision to terminate Ortega's benefits did not constitute an abuse of discretion and was neither arbitrary nor capricious. We affirm.
A. The Plan
Johnson & Johnson sponsors the Plan to provide long-term disability benefits for its employees and the employees of its affiliated companies. Ortega received coverage under the Plan while working in Puerto Rico as an electrician for Ortho Biologics LLC, a subsidiary of Johnson & Johnson.
In order to be eligible for plan benefits, a participant must be considered " totally disabled." During the first twelve months of an injury or sickness, a plan participant must be unable to perform the essential functions of his or her " regular job" in order to qualify as " totally disabled." If the injury or sickness lasts longer than twelve months, the participant must remain completely unable " to do any job" -- " with or without reasonable accommodation," and " for which the Participant is (or may reasonably become) qualified by training, education, or experience" -- in order to continue to be classified as " totally disabled."
Pursuant to the Plan, the plan administrator maintains " the right to conduct evaluations of a Participant's medical status and eligibility for benefits" at any time while a claim is pending or the participant is receiving benefits. The Plan further
grants the plan administrator the sole discretion " to construe and interpret" the Plan's terms and the sole discretion to determine whether there exist grounds for termination of a participant's benefits. Under the Plan, such grounds include a claimant's failure to cooperate with respect to any procedure or evaluation in connection with the Plan.
A participant making a claim for benefits under the Plan must provide " all information necessary to evaluate his or her medical condition and functional capacity." At the plan administrator's discretion, " the evaluation may include medical examination(s) by a Plan Provider." Further, " [o]ne or more Independent Medical Examination(s) (IME) and Functional Capacity Examination(s) (FCE) may be required at any time during the claim evaluation process."
B. Ortega's Claim Under the Plan
As an electrician for Ortho Biologics LLC, Ortega held a " mostly active" job that required " bending, walking, climbing, [and] working [in a] standing position for long period[s] of time," and which required him to " pull, push, lift/carry and squat" on a " routine basis."
Ortega alleges that since 2002, he has been unable to work due to constant pain caused by vertebral herniations, degenerative scoliosis, osteoarthritis, and radiculopathies. He also claims to suffer from anxiety, panic disorder, and depression. As a result of these conditions, Ortega went on non-occupational disability leave, and he began receiving short-term disability benefits on October 28, 2002. Subsequently, on June 3, 2003, Ortega submitted his first claim for long-term disability benefits, in which he asserted that he was unable to bend or walk, experienced consistent pain in his legs and back, and suffered from anxiety, panic attacks, and depression.
Shortly thereafter, MCS received two " Attending Physician Statements" in support of Ortega's claim. The first of these statements addressed Ortega's mental and emotional condition, concluding that Ortega suffered from panic disorder as well as " major depression." The second statement, regarding Ortega's physical ailments, specified that he suffered from radiculopathies, herniation of lumbosacral
discs, degenerative scoliosis, and osteoarthritis.
Ortega's claim for long-term disability benefits for his physical condition was approved on July 23, 2003, but Ortega was notified that such benefits would apply retroactively beginning from June 24, 2003. Ortega's claim for benefits due to his mental-health symptoms, however, was denied. In its subsequent confirmation of the approval of Ortega's physical claim, MCS advised Ortega that he was required to undergo regular treatment with a specialist and that his case would be reevaluated periodically by MCS's Medical Committee to determine his continued eligibility for long-term disability benefits.
On October 20, 2003, MCS requested that Ortega provide a copy of the medical records held by his attending physicians at the time in order to determine his continued eligibility for long-term disability benefits. Thereafter, on October 30, 2003, Ortega participated in a functional capacity evaluation (" FCE" ) conducted by Rafael E.
Seín, M.D. (" Dr. Seín" ), a physiatrist, or rehabilitation physician.
Dr. Seín reported that Ortega: " demonstrated a very restricted" -- or " sub-minimal" -- " effort during the weighted and non-weighted activities, with a more mental involvement that aggravates his physical condition" ; frequently shifted weight on either leg despite his major pain symptoms being related to his right leg only; " demonstrated inconsistency" on a hand-grip test; and refused to perform some activities due to fear of being injured. On that basis, Dr.
Seín recommended an independent psychiatrist evaluation. He concluded that Ortega had the physical capacity for sedentary work, but with restrictions on prolonged standing, sitting, and walking.
In contrast, in progress notes dated November 4, 2003, Ortega's attending physician -- Oscar E. Ramos Romá n, M.D. (" Dr. Ramos" ) -- stated that Ortega was permanently disabled from work, noting that he still suffered from severe neck and back pain, scoliosis, anxiety, and depression. On November 25, 2003, upon reviewing Dr. Ramos's progress notes and the results of the FCE, MCS's independent medical consultant -- José Ocasio, M.D. (" Dr. Ocasio" ) -- recommended extending Ortega's benefits, but further recommended that Ortega be reevaluated six months later. On April 6, 2004, Ortega underwent a second FCE, again conducted by Dr.
Seín. Following the examination, Dr. Seín's report stated that Ortega demonstrated very inconsistent efforts throughout the FCE and that he refused to attempt several activities, both weighted and non-weighted, which he had performed in the prior FCE. Dr.
Seín again concluded that Ortega had the functional capacity for sedentary activities, albeit with restrictions.
On April 28, 2004, after evaluating Dr. Seín's report, Dr. Ocasio recommended denying Ortega's long-term disability benefits due to his lack of cooperation during the second FCE. However, Dr. Ocasio later reconsidered, and he ultimately recommended approval of the benefits. As before, Dr. Ocasio further recommended that Ortega undergo reevaluation in six months.
On August 19, 2004, MCS informed Ortega that, because Dr. Ramos's progress notes continued to mention Ortega's mental health, MCS was reevaluating the denial of his long-term disability benefits regarding his mental and emotional state. Luis E. Cá nepa, M.D. (" Dr. Cá nepa" ), reviewed a copy of the progress notes regarding Ortega's mental health and concluded that Ortega's emotional conditions seemed moderate in severity. Dr. Cá nepa further recommended that Arlene Rivera-Mass,
M.D. (" Dr. Rivera" ), a psychiatrist, perform an independent medical evaluation of Ortega.
Following this psychiatric medical evaluation conducted on October 13, 2004, Dr. Rivera concluded that, while Ortega presented symptoms compatible with panic and mood disorder, it " seem[ed] that there was a frank exaggeration of symptoms." For example, Dr. Rivera noted that Ortega " claimed extremely poor memory but did not present in the interview [with] such difficulty." Dr. Rivera opined that " the information he gave during the interview is unreliable," and that as a result, further investigation should occur in order to correctly diagnose Ortega's mental and emotional symptoms. After reviewing Dr. Rivera's conclusions, Dr. Cánepa recommended denying Ortega long-term disability benefits based on his mental state.
C. The FCE Conducted by Javier Espina on November 16, 2004
On November 16, 2004, Ortega underwent a third FCE, which was conducted by Javier Espina (" Espina" ), a physical therapist. Espina said that Ortega would only be asked to perform activities he felt capable of completing; Ortega could stop any test that caused him pain, if he so desired. Espina further instructed Ortega to exert his best efforts in attempting each activity. Following the FCE, Espina concluded that Ortega's " ...