United States District Court, W.D. Texas, San Antonio Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
RICHARD B. FARRER UNITED STATES MAGISTRATE JUDGE.
Honorable United States District Judge Fred Biery:
Report and Recommendation concerns the cross-motions for
summary judgment filed by Plaintiff Christine Botello and
Defendant AT&T Umbrella Benefit Plan No. 3 (the
“Plan”) in this denial-of-benefits case under
§ 502(a)(1)(B) of the Employee Retirement Income
Security Act of 1974 (“ERISA”). See Dkt.
Nos. 22 & 23. The District Court referred the case
pursuant to Western District of Texas Local Rule CV-72 and
Appendix C. See Dkt. No. 27. Authority to enter this
recommendation stems from 28 U.S.C. § 636(b)(1)(B).
reasons discussed below, the Plan's Motion, Dkt. No. 23,
should be GRANTED, and Botello's motion,
Dkt. No. 22, should be DENIED. The Plan did
not abuse its discretion in discontinuing Botello's
long-term disability benefits as of July 1, 2015, and
substantial evidence supports that decision. The District
Court, however, should deny the Plan's request for
attorneys' fees and costs.
Factual and Procedural Background
Botello is a former Senior Project Manager-Network Management
for an affiliate of SBC, Inc., where she earned $31.50 per
hour. See ATT502; ATT1833. Previously Botello served
as a Customer Sales Associate and then as an Area
Manager-Network Management Operations. See ATT502;
ATT1833. Botello stopped working in September 2002, alleging
disability due to Major Depressive Disorder, Anxiety,
Diabetes Mellitus, Carpal Tunnel Syndrome, Hyperlipidemia,
Obesity, and Bipolar Disorder. See ATT1830; ATT205.
approximately May 14, 2004, Botello qualified for and
received long-term disability benefits under her
employer's ERISA-qualifying disability-income program.
See ATT24-25. As a result of developments not
relevant here, the AT&T Disability Income Program came to
have responsibility for the administration of Botello's
benefits. The long-term disability benefits plan in effect
when Botello's alleged disabling condition began was the
SBC Disability Income Plan, and it remains the governing plan
for present purposes and provides the relevant criteria
addressing eligibility for benefits. See Siegel
Decl. ¶ 4, Dkt. No. 32. According to the governing plan,
a qualifying plan-participant employee, like Botello, can
receive benefits if the individual is “Totally
Disabled, ” which means that “because of Illness
or Injury, an Employee is prevented from engaging in any
employment for which the Employee is qualified or may
reasonably become qualified based on education, training, or
experience.” ATT5780. Employment which precludes an
award of long-term disability benefits under the plan must
pay at least 50% of the Employee's Basic Wage Rate at the
time long-term disability benefits began. Id.
her initial qualification for and receipt of long-term
disability benefits, Botello periodically provided updates to
the benefits administrator, Sedgwick Claims Management. As a
result, she received multiple extensions of her benefits that
extended them up through May 31, 2014. ATT130; ATT1450; Def.
Mot. at 4; Pl. Resp. at 1.
September 2014, Botello returned a disability questionnaire
dated September 15, 2014 that indicated she may no longer
meet the governing disability criteria. See
ATT1895-ATT1898. So Sedgwick, as the benefits administrator,
requested that Botello and her providers supply updated
medical information. ATT134-35; ATT1455-56.
response, Botello's treating psychiatrist Dr. David G.
Johnson completed a Mental Health Provider Statement in which
he diagnosed her with Major Depression Recurrent, Severe and
Anxiety. ATT1881-82. Although Dr. Johnson opined that
Botello's memory and ability to concentrate were
impaired, he did not provide any observed evidence of the
impairment. Instead, Dr. Johnson wrote: “working with 3
grandchildren.” See Id. Dr. Johnson also did
not describe Botello's day-to-day functioning, as had
been requested by Sedgwick. Nor did he address whether she
needed assistance to complete any activities of daily living.
reviewing Dr. Johnson's Statement, along with
Botello's September 2014 questionnaire providing her
reported activities of daily living, Sedgewick referred the
claim to independent physician-examiner psychiatrist Dr.
Reginald A. Givens for review. See ATT1877-79. After
reviewing Botello's medical records, Dr. Givens found
“insufficient objective observable evidence to support
[Botello's] cognitive impairment or impairment in
activities of daily living to a degree that would impair
[Botello] from performing occupational duties.”
ATT1877. Shortly thereafter, on November 4, 2014, Dr. Johnson
and Dr. Fleishman, a representative of Dr. Givens, spoke
regarding Botello's mental capacity. See
ATT1870. During this teleconference, Dr. Johnson reported
that he had seen Botello on August 20, 2013, January of 2014,
May of 2014, and again on September 22, 2014. See
Id. During the last visit, Dr. Johnson noted Botello was
“very anxious and depressed, had lack of focus, poor
concentration, and was feeling hopeless and helpless.”
See Id. Botello “felt paralyzed and was very
disorganized in her thinking and confused and had what
sounded like a manic episode.” Id. At the same
time, Dr. Johnson projected that Botello should be able to
return to work in a month. See Id. Accordingly, this
teleconference did not change Dr. Givens's opinion.
thereafter referred Botello for an independent medical
evaluation with psychiatrist Dr. Brian Skop. See
ATT1845-57. After examining Botello and reviewing her
previous psychiatric medical records, Dr. Skop diagnosed her
with Major Depressive Disorder, recurrent moderate;
Posttraumatic Stress Disorder; and Unspecified Personality
Disorder. Although previous providers had diagnosed Botello
with bipolar disorder, Dr. Skop found that “the manic
like symptoms [Botello] has are brief in duration and do not
meet the criteria for a hypomanic episode which is necessary
for a diagnosis of bipolar disorder.” ATT1853-54. Such
“brief mood swings, ” Dr. Skop found, “are
usually more indicative of a personality disorder.”
Id. Ultimately, Dr. Skop placed Botello's
limitation “in the mild to moderate range based on
affective instability, mild derailment of her thoughts and
possibly some mild reduction in her grooming.” ATT1856.
Skop found Botello's Global Assessment Functioning to
exceed 40, which contrasted with Dr. Johnson's previous
assessment. In reaching this conclusion, Dr. Skop noted that
Botello “generally takes care of most activities of
daily living. She socializes with some friends. She goes to
church. She cares for three grandchildren, and she does some
volunteer work. While this is intermittent, per her
self-report, it does involve coordinating activities,
interpersonal skills and some computer skills.”
Id. Although Dr. Skop did not believe Botello could
return to her previous employment “as the demands of
that job in conjunction with the current stressors she is
under would probably exacerbate her anxiety and mood
complaints, ” he opined that Botello could probably
perform some “limited employment” that did not
have the job demands of “interpersonally demanding work
or work that would necessitate long hours and travel, ”
as those types of demands “would likely exacerbate her
condition.” Id. Dr. Skop, however, observed
that Botello “did not appear to be invested [in]
returning to work but more so in caring for her
grandchildren.” Id. Finally, Dr. Skop noted
that “per [Botello's] self-report, her ability to
maintain pace at work in a consistent manner may be impaired,
” although Dr. Skop recognized that this was
“difficult to measure” during an examination.
asked to clarify what he meant by work “not demanding
interpersonally, ” Dr. Skop explained that “the
demands of supervisory work would likely aggravate
[Botello's] anxiety and depression but that she could
perform lower level jobs.” ATT1841-2. Despite having
the chronic conditions of major depressive disorder,
posttraumatic stress disorder, and personality disorder, Dr.
Skop observed that Botello “adequately” performed
the “less demanding job of customer service
representative” at a level where she was promoted.
Id. And Dr. Skop clarified that when he opined that
Botello should not work long hours, he was referring
“primarily [to] the stress that extensive travel placed
on [Botello] when she was traveling a lot as part of her
supervisory position. This was the position she was in when
she went on disability, and she described working long hours
(10 hour days) and extensive travel.” Id. Dr.
Skop noted that Botello performed adequately and at a level
where she was promoted when performing a lower level job with
more regular hours i.e.. 8 hour days. Id.
Restricting Botello's work in such a manner would, in Dr.
Skop's view, account for any impairment she might have in
maintaining pace. Id. Given her lengthy absence from
work, however, Dr. Skop observed that Botello “might
benefit from part-time days (4 hour days) and frequent breaks
(approximately a break every hour) for a few weeks
(approximately 4 weeks) to readjust to the work
reviewing Dr. Skop's report, Sedgwick determined that
Botello's case should be reviewed by its Vocational
Specialist to evaluate whether there were appropriate
employment opportunities for Botello in her area and in light
of the restrictions provided by Dr. Skop. See
ATT1475. Although Sedwick believed the evaluation would
likely reveal appropriate employment opportunities for
Botello, it decided to re-evaluate Botello's claim once
those opportunities were identified, given the possibility
that Botello might seek and obtain additional treatment with
a current or new provider. See id.
29, 2015, Job Accommodation Specialist Courtney Janchenko MA,
CRC performed a Transferrable Skills Assessment in which she
assessed Botello's work-related abilities. ATT1823-26.
Taking into account the restrictions imposed by Dr. Skop-no
supervisory responsibility, no travel, and no work over 8
hours-along with Botello's education and skills acquired
from her prior work, Janchenko identified the following
sedentary alternative occupations Botello could perform: (1)
Credit Analyst, Dictionary of Occupational Titles
(“DOT”) #160.267-022 with a median wage of
$25.74; (2) Personnel Clerk, DOT #209.362-026 with a median
wage of $18.07; (3) Audit Clerk, DOT #210.382-010 with a
median wage of $17.20; and (4) Service Clerk, DOT
#221.367-070 with a median wage of $17.41. See Id.
All of these positions were at least 50% of Botello's
Basic Wage Rate at the time her alleged disability began.
this assessment, Sedgwick determined that Botello's
long-term disability benefits should be discontinued.
See ATT162; ATT1482. On July 9, 2015, Sedgwick
advised Botello via letter of her claim denial, effective
July 1, 2015. The letter detailed the reasons for the denial
decision and advised Botello of her rights to appeal.
See ATT1808-15. Specifically, Sedgwick noted that
based on all documentation available there is no observable
clinical evidence substantiating Botello's claims that
she is limited in her day-to-day functioning as a consequence
of a psychiatric condition. See id. In addition,
Sedgwick noted that Botello's reported activities of
daily living, including volunteer work, supported its
decision. See Id. Finally, Sedgwick noted that the
Social Security Administration's determination that
Botello was disabled did not affect its decision. See
Id. While Sedgwick took this ...