Truitt v. Unum Life Ins. Co. of Am.

• Decision Date: 06 September 2013
• Docket Number: No. 12–50142.,12–50142.
• Citation: 729 F.3d 497
• Parties: Terri TRUITT, also known as Truitt Terri Griffith, Plaintiff–Appellee v. UNUM LIFE INSURANCE COMPANY OF AMERICA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

729 F.3d 497

Terri TRUITT, also known as Truitt Terri Griffith, Plaintiff–Appellee

v.UNUM LIFE INSURANCE COMPANY OF AMERICA, Defendant–Appellant.

No. 12–50142.

United States Court of Appeals,Fifth Circuit.

Sept. 6, 2013.

Rickey J. Brantley, Attorney, Fort Worth, TX, for Plaintiff–Appellee.

Lauren Ann Welch, Director, McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch, New Orleans, LA, for Defendant–Appellant.

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

Before DAVIS, GRAVES and HIGGINSON, Circuit Judges.

HIGGINSON, Circuit Judge:

Plaintiff–Appellee Terri Truitt claimed that her lower-back, leg, and foot pain prevented her from working as an attorney. Defendant–Appellant Unum Life Insurance Company of America (“Unum”) awarded Truitt long-term disability benefits. Years later, a former companion of Truitt provided Unum with emails indicating that, while claiming to be disabled, Truitt engaged in activities, such as traveling abroad, that were inconsistent with her asserted disability. Based, in part, on these emails, Unum denied Truitt's claims, and sought more than $1 million in reimbursements for benefits paid.

The district court found that there was substantial evidence to support Unum's denial of benefits. Nonetheless, the district court held, among other things, that the denial was procedurally unreasonable, and therefore an abuse of discretion, because Unum did not fulfill its duty to “consider the source” of the emails. In evaluating whether a plan administrator wrongfully has denied benefits under the Employee Retirement Income Security Act (“ERISA”), however, this court never has imposed a duty to investigate the source of evidence. Instead, the burden is on the claimant to discredit evidence relied on by the plan administrator. Because we find that Unum did not act arbitrarily and capriciously, we REVERSE.

I. FACTS AND PROCEEDINGS

Truitt worked as a partner in the Houston office of the Mayer Brown law firm. Her expertise was international oil and gas litigation. In that capacity, she traveled abroad, to countries including Sweden and Turkmenistan, for arbitrations. “Lifting and handling boxes in excess of 25 pounds” was a “frequent requirement” of these trips.

Truitt claimed that she first experienced numbness and pain in her lower back, left leg, and left foot in 1999. Citing her continued pain and lack of mobility, Truitt stopped working in 2002. She also applied for long-term disability benefits.

The benefits plan (the “Plan”), administered by Unum, defined “disability” to mean that, “because of injury or sickness”:

1. the insured cannot perform each of the material duties of his regular occupation; or

2. the insured, while unable to perform all of the material duties of his regular occupation on a full-time basis, is:

a. performing at least one of the material duties of his regular occupation or another occupation on a part-time or full-time basis; and

b. earning currently at least 20% less per month than his indexed pre-disability earnings due to the same injury or sickness.

Note: For attorneys, “regular occupation” means the specialty in the practice of the law which the insured was practicing just prior to the date disability started.

Finding that Truitt was disabled under the terms of the Plan, Unum awarded her benefits in a May 2003 letter. However, Unum advised Truitt that it required updated medical information to “clarify [her] current restrictions and limitations.” Unum also notified Truitt that it reserved the right to discontinue benefits, and to seek repayment of benefits paid, if, after receiving the updated information, it determined that she was no longer disabled.

Unum's continued review of Truitt's claim produced some evidence that supported Truitt's asserted disability. For example, neurologist Igor Cherches found: that Truitt had “constant intractable pain”; that she was unable to stand or walk for more than thirty minutes; and that she could not lift more than ten pounds. Internist Karen Hoermann found that Truitt was “unable to carry legal files required for employment,” and that “pain prevent[ed]” her from “remaining seated for” more than one hour.

This continuing review also produced evidence inconsistent with Truitt's disability. For example, surveillance videos showed Truitt walking, driving, and bending down, and lifting and carrying boxes, bags, coolers, pumpkins, and a dog. After conducting an Independent Medical Examination (“IME”), orthopedic surgeon Michael Graham found that “it is clear that [Truitt] has little or no physical impairment.”

Unum explained that, “[d]espite the inconsistencies between Truitt's stated symptoms and observed activities, [it] continued to pay benefits.” Then, on March 1, 2006, occupational therapist Steven Clark conducted a functional capacity evaluation (“FCE”) of Truitt. Clark found: that Truitt was “inconsistent with her gait, lumbar range of motion, and posture”; that Truitt “was observed to be able to sit for up to 60 minutes at a time and stand for up to 50 minutes at a time”; and that Truitt was also “observed to be able to sit for approximately 2 hours of the total time she was observed in the clinic.” Clark observed that, while he could not offer a recommendation because of Truitt's “self[-]limiting behaviors and inconsistencies in abilities,” Truitt's condition improved when she was “unaware of observation.”

Truitt contested Clark's findings. She wrote in an April 24, 2006 letter that Clark had “inflicted ... intense pain” on her, and that, “[a]s a direct result of that exam, I since have been confined to bed rest for approximately 15 hours a day.” However, Unum conducted additional surveillance from April 6–8 that showed Truitt: “removing items from the back seat of [her] Mercedes”; “scrubbing the seats”; driving neighbors; and unloading items from her vehicle.

Given this apparent inconsistency, Unum scheduled another IME. Physician Aaron Levine examined Truitt, reviewed her medical records, and watched her surveillance videos. Levine concluded that, although Truitt suffered from disc degeneration, her scores on physical tests showed a “severe perception of physical disability in excess of her physical findings.” He added that, although sedentary work might “accentuate her symptoms,” there was “nothing objective in my examination to prevent her from doing sedentary work.”

In a twelve-page letter dated August 21, 2006, Unum notified Truitt that it was terminating her benefits. Unum explained that, based on its review of Truitt's medical records and the surveillance videos, there was “no objective information that supports [Truitt's] inability to perform [her] occupational demands as a trial attorney.” Unum added that it believed Truitt could work as a trial attorney because she could “sit[ ] on a frequent to constant basis or on a prolonged nature” and “stand[ ] and walk[ ] for brief periods of time,” and because “[i]t would be reasonable that accommodations c[ould] be made” for her lifting restrictions.

Truitt filed an administrative appeal. She argued, among other things, that Unum did not fully consider the specific demands of her job, in particular her extensive business travel.

Vocational specialist Richard Byard reviewed Truitt's file. He found that Truitt's “occupation [did] not require repetitive bending, climbing, stooping or kneeling motions.” He nonetheless concluded that the “physical demands” of Truitt's job “would exceed [her] level of work capacity” because the “business [-]related travel demands of her occupation,” such as “lengthy flights,” were “incompatible” with the “requirement that she ‘be allowed to change posture as needed, likely 2–3 times per hour.’ ”

Based largely on Byard's findings, Unum notified Truitt in a July 2007 letter that it was reinstating her benefits. Unum again advised Truitt that she would need to provide “periodic updates of her medical status to determine if she remains eligible for continued benefits under the applicable policy provisions.”

Around the same time that Truitt's benefits were reinstated, a man identifying himself as Andrew Mark Thomas called Unum. Thomas said: that he had been in a personal relationship with Truitt for “a number of years”; that Truitt had him “locked up” and deported to the United Kingdom; that, as a result, he wanted “to see the b* * * * locked up”; and that he had photos, travel itineraries, and other documents that showed that Truitt was not totally disabled. Thomas sent Unum a follow-up email asking to be paid six times “the current monthly payments made to” Truitt in exchange for providing “complete evidence that [she] is obtaining monthly (disability) payments under false preten[s]es.” He warned: “This is a one[-]time offer, and no further thought will be given if you decide to decline.”

Unum responded that it “does not pay for fraud[-]related information,” but that Thomas was “free to call” if he was willing “to provide this information without compensation.”

Thomas proceeded to provide, without compensation, some emails purportedly sent by Truitt. Unum asked Thomas if there were “any additional emails/information available which might shed additional light regarding this case?” Responding that “this is personal to me,” Thomas provided Unum with additional emails.¹ In total, Thomas provided more than 600 pages of emails, spanning March 2005 to July 2007.

The emails revealed that, while Truitt claimed to be disabled, she apparently engaged in activities that were inconsistent with her asserted limitations. For example, the emails—which included flight and hotel itineraries, and eTickets—indicated that Truitt flew to: Amarillo, Texas; Oklahoma City; New York City; Akumal, Mexico; Cancun, Mexico; Jamaica; Guatemala; Venezuela; England; Ireland; France; and Italy:

• March 15, 2005: Truitt writes that she is “here in ... NYC.” In a later email, she references “hav[ing] been in NYC.”

• April 6, 2005:...