499 F.3d 389 (5th Cir. 2007), 05-50983, Corry v. Liberty Life Assur. Co. of Boston

Docket Nº:05-50983.
Citation:499 F.3d 389
Party Name:Valerie L. CORRY, Plaintiff-Appellee, v. LIBERTY LIFE ASSURANCE COMPANY OF BOSTON, Defendant-Appellant.
Case Date:August 28, 2007
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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499 F.3d 389 (5th Cir. 2007)

Valerie L. CORRY, Plaintiff-Appellee,



No. 05-50983.

United States Court of Appeals, Fifth Circuit.

August 28, 2007

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[Copyrighted Material Omitted]

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W. Bailey Barton (argued), Law Offices of W. Bailey Barton, San Marcus, TX, for Plaintiff-Appellee.

Scott A. Lemond (argued), Lemond & Ross LLC, Anouchka Maria Oppinger, Joseph Tan Tung, Seyfarth Shaw, Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas.

Before JOLLY, PRADO, and OWEN, Circuit Judges.

E. GRADY JOLLY, Circuit Judge.

This appeal requires us to determine whether a long-term disability plan administrator, Liberty Life Assurance Company of Boston ("Liberty"), abused its discretion by terminating disability benefits to Valerie L. Corry ("Corry"), whose claim for disability arises from fibromyalgia. The primary focus of the appeal is the district court's holding that Liberty's decision to terminate benefits was arbitrary and capricious because it discounted and ignored Corry's subjective claims of pain and disability. We conclude that Liberty, and its physicians, considered Corry's subjective claims of pain and disability and thus Liberty did not abuse its discretion in failing to consider relevant evidence. Furthermore, we conclude that Liberty's decision denying benefits is supported by substantial evidence, which includes the opinions of three medical specialists stating that there is no verifiable medical evidence that would preclude Corry from performing full-time sedentary work. We therefore REVERSE, RENDER, and REMAND for entry of judgment in favor of Liberty.


In 1991, Corry began working for Dell Computer Corporation as a "Sales Manager IV." According to her job description, Corry was "[r]esponsible for managing the internal sales force selling to large complex customers within a limited geographic region and within a specific market." As listed in her job description, her principal duties included managing a business unit, attaining sales goals, analyzing sales reports, working with other departments to resolve customer concerns, and participating in and closing large sales opportunities. Her job description states that her job required strong organization, communication, and presentation skills. Corry was a participant and beneficiary of a Group Disability Income Policy ("Policy") administered by Liberty.

Sometime in 1995, Corry became ill. In August 1995, Corry took a medical leave of absence on the advice of her treating family care physician, Dr. Robert Norris. In December 1995, she applied for long-term disability benefits, which Liberty approved and began paying in April 1996. Under the Policy, Corry also received retroactive benefits back to November 3, 1995. Additionally, Corry applied for Social Security disability benefits, which were granted.

A complete diagnosis of the cause of Corry's disability has never been clear. The parties agree that Corry suffers from a seizure disorder, fibromyalgia, 1 and a

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rotator cuff sprain in her shoulder. The parties disagree, however, as to whether her pain could also be attributed to Chronic Fatigue Syndrome, 2 lupus, 3 Sjogren's Syndrome, 4 undifferentiated5 or mixed connective tissue disease, 6 or some other rheumatic or musculoskeletal disorder. (The accompanying footnotes provide information not necessarily found in the record and are supplied only to inform the reader generally of terms reflected in the medical records in this case. None of these definitions are determinative of the outcome of this case.)

Liberty initially approved disability benefits for Corry. Under the Policy, a person is considered disabled during the initial 36 months of benefits if "the Covered Person is unable to perform all of the material and substantial duties of his occupation on an Active Employment basis because of an Injury or Sickness." After the initial 36 months, a person continues to receive benefits only if "the Covered Person is unable to perform, with reasonable continuity, all of the material and substantial duties of his own or any other occupation for which he is or becomes reasonably fitted by training, education, experience, age and physical and mental capacity." Additionally, the Policy provides that "Liberty shall possess the authority, in its sole discretion, to construe the terms of this policy and to determine benefit eligibility hereunder."

From 1996 to 2001, Corry received benefits from Liberty while she sought medical treatment. Corry continued to be

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treated by Dr. Norris. Corry also sought evaluation by Dr. Michael Pickrell, a rheumatologist recommended by Dr. Norris. In February 1996, Dr. Michael Pickrell's impressions of Corry included "[n]onspecific symptoms of fatigue, recurrent rashes, vague musculoskeletal pain--all possibly related to systemic rheumatic disorder."

In July 1996, Corry was evaluated by Dr. Carlos Gray, a physician retained by Liberty. Dr. Gray concluded that "based on her medical history I feel Mrs. Corry has chronic fatigue syndrome which is an analysis by exclusion." Dr. Gray evaluated Corry's physical capabilities, concluding that during an eight-hour workday, Corry could sit two hours, stand one hour, and walk one hour. He also concluded that she could lift and carry up to ten pounds frequently, use her hands for grasping and fine manipulation but not pushing or pulling, reach above shoulder level frequently, and bend frequently. He concluded that she could not squat, crawl, or climb. Ultimately, Dr. Gray concluded that he did not feel that Corry could return to her normal job.

In September 1997, Corry visited Dr. Jeffrey Clark, a neurologist at Scott and White Neurology Clinic. Corry reported seizures since childhood, which Dr. Clark noted were controlled "quite well" by Dilantin. Dr. Clark also noted that Corry complained of headaches and joint pain. Dr. Clark reported: "Mrs. Corry is a neatly-dressed, very pleasant and talkative woman who looks her stated age [38]. She provides very detailed information about all of her history, including a long list of symptoms and correct dates without any problem." He further reported: "Mental status exam reveals normal orientation, recent memory, and short-term memory for 3 objects. Again, she provides very detailed information as listed above.... She interpret [sic] abstract phrases well. Language and speech are normal. General information is good. Judgement seemed normal."

In November 1997, Corry sought evaluation by Dr. Michael Pickrell's brother, Dr. Paul Pickrell, also a rheumatologist. Dr. Paul Pickrell concluded that Corry suffered from "[c]hronic arthralgias and myalgias, [and] fatigue." He added: "Given the number of tender points on exam in association with headaches, fatigue, irritable bowel symptoms, and stress, I feel she does meet criteria for fibromyalgia." He also noted: "I reassured both her and her husband that, from an exam standpoint, she does not meet criteria for any specific rheumatologic disorder at this time. I do, however, feel that a diagnosis of undifferentiated connective tissue disease could be made on the basis of her subjective symptoms and positive ANA."7 Dr. Paul Pickrell continued to treat Corry throughout the following years.

In March 1998 and August 1998, Liberty notified Corry that the Policy's definition of "disability" would change on November 3, 1998, the end of the initial 36-month period, and that her case would be reevaluated to determine whether she met the heightened standard of disability.

In February 1999, Corry was admitted to the emergency room at South Austin Hospital. Corry complained of pain across her chest whenever she took a deep breath or coughed. The attending physician, Dr. Michael McElveen, concluded that she likely suffered from an acute flare of lupus.

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As Liberty began to reevaluate Corry's case, it sent Dr. Norris a questionnaire dated March 30, 1999. In response, on April 30, Dr. Norris provided Liberty with an evaluation of Corry in which he reported that her primary diagnosis was a mixed connective tissue disorder and a seizure disorder and that her symptoms included severe fatigue, confusion, malaise, depression, and weakness. In response to questions about when he expected Corry to return to modified function or full function, he noted "n/a." Dr. Norris evaluated Corry's physical capabilities and concluded that she would be capable of the following activities in an eight-hour workday: sitting 100%, lifting 0%, walking 10%, standing 10%, carrying 0%, driving 10%, traveling 0%, and typing 10%. He stated that she could rarely reach, bend, kneel, climb, squat, or twist. Dr. Norris indicated that Corry had a medium degree of manual dexterity and that her lifting ability was 10 pounds or less.

In February 2000, Liberty retained Dr. Walter Chase, a rheumatologist, to examine Corry and evaluate her medical file. In his report, Dr. Chase observed that Corry was "unsteady on [the] tandem walk." Dr. Chase noted, apparently based on Corry's comments, that she experienced pain throughout much of her body, numbness in her feet, dizziness, pleurisy, headaches, and shortness of breath. Dr. Chase also noted that Corry could not perform a long list of basic activities, apparently based on the information she self-reported. For example, according to Corry, she was unable to do her grocery shopping or to go out for more than one and a half hours. Corry also reported that she needed assistance with her shower and much of her daily care. She found it difficult to comb her hair, open doors, cut meat, climb a flight of stairs, and turn a lock...

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