Berges v. Standard Insurance (704 F. Supp. 2d 1149, 2010)

MEMORANDUM AND ORDER

DAVID J. WAXSE, United States Magistrate Judge.

Pending before the Court are the following motions: (1) Defendant Standard Insurance Company’s Motion for Judgment on the Administrative Record (doc. 15); and (2) Plaintiff Marcey Berges’ Motion for Summary Judgment (doc. 28). For the reasons set forth below, the Court will construe Defendant’s motion as one for summary judgment, and will grant it. The Court will deny Plaintiffs motion for summary judgment.

I. Nature of the Matter Before the Court and Background Information

This is an action brought pursuant to section 502(a)(1)(B) of the Employment Retirement Income Security Act (“ERISA”) to recover benefits Plaintiff claims are due her under the terms of a long-term disability plan. Plaintiff was a participant in her employer’s long-term disability plan, which was insured and administered by Defendant. Plaintiff filed a claim for long-term disability benefits that Defendant denied. She now seeks judicial review of Defendant’s decision denying her benefits.

Before proceeding further, the Court notes that Defendant’s motion seeks “judgment on the administrative record.” As the Tenth Circuit recognized in an ERISA case similar to this one, “[t]he Federal Rules of Civil Procedure contemplate no such mechanism as ‘judgment on the administrative record.’ ” The Tenth Circuit thus held that “[pjarties should avoid the practice of requesting it, and courts should avoid purporting to grant it.” It did not provide specific guidance, however, as to how the lower court should treat such a motion.

Here, Defendant states that it “files this Memorandum in Support of its Motion pursuant Local Rule ... 56.1,” which addresses motions for summary judgment. The Court will therefore treat Defendant’s motion as one for summary judgment. The Court notes, however, that the distinction between a motion for judgment on the administrative record and a motion for summary judgment is really more a matter of form than substance, because the Court’s review of the facts in an ERISA case such as this is limited to the facts that are in the administrative record

II. Summary Judgment Standard

Summary judgment is appropriate if the moving party demonstrates that there is “no genuine issue as to any material fact” and that it is “entitled to judgment as a matter of law.” In applying this standard, the court views the evidence and all reasonable inferences drawn from the evidence in the light most favorable to the nonmoving party. This legal standard does not change where, as here, the court is ruling on cross-motions for summary judgment, for each party has the burden to establish its entitlement to judgment as a matter of law.

The Court notes that in ERISA cases seeking review of a denial of ERISA benefits, the court’s review is “limited to the administrative record,” i.e., the materials compiled by the ERISA plan’s administrator in the course of making its decision. Thus, any evidence presented to the Court on summary judgment motions in this type of ERISA case is limited to the administrative record. At the same time, however, the Court notes that its review of the facts is not necessarily limited to the facts that the parties set forth in their briefs as the “uncontroverted facts.” As is discussed in more detail below in Part V, the Court must review the administrative record in this case to determine whether Defendant’s decision to deny Plaintiff benefits was arbitrary and capricious. And in doing so, the Court should consider whether “substantial evidence” supported the decision. Whether evidence is “substantial” must be “evaluated against the backdrop of the administrative record as a whole.” Thus, in ruling on the parties’ summary judgment motions in this case, the Court must evaluate the entire administrative record and not just those particular facts the parties have plucked from the administrative record and inserted into their summary judgment briefs.

In ruling on the parties’ motions, the Court must keep in mind that cross-motions for summary judgment “are to be treated separately; the denial of one does not require the grant of another.” To the extent the cross-motions overlap, however, the court may address the legal arguments together. The Court notes that in this case, the legal issues and arguments made with respect to both motions are virtually identical. Thus, the Court will address the legal issues together.

III. Summary of the Parties’ Arguments

As is discussed below in greater detail, to recover on her ERISA claim, Plaintiff must establish that Defendant’s decision to deny her long-term disability benefits was arbitrary and capricious. One way to do that is to show that the decision was not supported by substantial evidence. Plaintiff contends that Defendant’s decision to deny her benefits was arbitrary and capricious and unsupported by substantial evidence. Plaintiff asserts the following seven reasons as grounds for the Court to enter summary judgment in her favor and award her benefits under the long-term disability plan.

' First, the plan provides that the definition of disability applicable to a participant “will be the definition approved for your Employer by [Defendant]”; however, Plaintiff contends Defendant “has asserted nothing regarding the ‘definition approved for your employer.’ ”

Second, Plaintiffs job with her employer KCM Capital, Inc. required her to travel extensively and internationally, and Defendant failed to take this travel into consideration in concluding that Plaintiff was not disabled.

Third, the Dictionary of Occupational Titles (“DOT”) 186.117-054, which Defendant relied upon, defines the occupation of “President, Financial Institution,” and not “Chief Financial Officer.” Plaintiff therefore contends that it was improper for Defendant to refer to and rely upon DOT 186.117-054 in determining that Plaintiff was not disabled. It was also improper for Defendant to ignore Plaintiffs other job title of Chief Compliance Officer.

Fourth, Defendant never provided its two consulting physicians, Dr. Douglas Haselwood and Dr. Shirley Ingram, with Plaintiffs job titles, job descriptions, or statements made by Plaintiff regarding the requirements of her job.

Fifth, Drs. Haselwood and Ingram are not vocational experts.

Sixth, the administrative record does not make it clear what medical records Drs. Haselwood and Ingram reviewed.

Seventh, Defendant denied Plaintiff benefits without substantial evidence to support the decision.

Defendant, on the other hand, contends that its decision was not arbitrary and capricious, and that it was supported by substantial evidence. Defendant contends that it carefully and fully reviewed the medical and psychological evidence in the record. Defendant consulted two board-certified rheumatologists who reviewed the medical records and concluded that Plaintiff was not disabled from systemic lupus erythematosus (“SLE”), Raynaud’s syndrome, or arthritis, the diseases she claimed resulted in her disability. Furthermore, Defendant reviewed and considered the reports of Plaintiffs treating rheumatologist, Dr. Kathryn Welch, who relayed Plaintiffs self-report that Plaintiff could not work but who never stated in her own treatment records that Plaintiff was disabled or could not work. Defendant therefore asks the Court to uphold its decision denying benefits as supported by substantial evidence.

IV. Facts

A. General Information

Plaintiff Marcey Berges was an employee of KCM Capital, Inc. (“KCM”) and served as its Chief Financial Officer. Plaintiff also contends that she was employed as KCM’s Chief Compliance Officer. In May 2006, Plaintiff was a participant in a long-term disability plan sponsored by KCM (the “LTD Plan”). The LTD Plan was an “employee welfare benefit plan” within the meaning of § 3(1) of ERISA. The LTD Plan provided disability benefits to eligible qualifying participants who complied with its terms and conditions.

Plaintiff stopped working for KCM on January 30 or 31, 2006. Plaintiff filed a claim for long-term disability benefits on June 7, 2006, using Defendant’s form, entitled “Employee’s Statement.” On the Employee’s Statement, Plaintiff listed SLE, Raynaud’s, and arthritis as the illnesses contributing to her “being unable to work at [her] occupation.” She described her symptoms as “fatigue, pain, seizures, difficult breathing, [and] weakness.”

B. Plaintiffs Job with KCM

On the Employee’s Statement, Plaintiff identified her job title as “CF-Admin-CCO.” On the “Employer’s Statement,” however, Plaintiffs employer, KCM, listed her job title as “CFO.” On July 24, 2006, KCM submitted a job description for Plaintiffs job that was entitled “Chief Financial Officer/Chief Compliance Officer.” That job description summarized the job as follows: “Head a staff of four employees. Work closely with Portfolio Managers, Controller, Brokers and Prime Broker to manage trading, performance, research, and marketing elements of three hedge funds.” Either Plaintiff or her employer submitted a page from KCM’s online personnel directory that identified Plaintiff as “CFO.”

In Plaintiffs “Attending Physician’s Statement,” which was a form completed by both Plaintiff and her treating physician, Plaintiff listed her occupation as “CFO.” This statement was submitted to Defendant in April 2006.

On July 28, 2006, Plaintiff provided a memo to Defendant outlining her job responsibilities which stated that her position “was at an executive level as the Chief Financial Officer, Chief Compliance Officer and as the acting Chief Operations Officer.” In that memo, Plaintiff listed fifteen duties, all but one of which were also listed in the job description provided by her employer a few days earlier. Both Plaintiffs memo and the job description submitted by her employer listed international travel as an element of her job, as follows: “traveled to Hong Kong and Shanghai to oversee the activities of co-fund managers.” Plaintiffs memo also stated that she had “marketed for the business, negotiated contracts and traveled all over the US, Hong Kong, China and Europe.”

On September 7, 2007, after Defendant had denied her claim for disability benefits on two occasions, Plaintiffs counsel submitted to Defendant a job description, which differed somewhat from the two earlier-submitted descriptions. That job description summarized Plaintiffs duties as follows:

The overall function of the Chief Financial Officer is to coordinate and oversee all aspects of financial and administrative functions of the Company, as well as to play a major role in the marketing and investment functions. The function of the Chief Compliance Officer is to coordinate the development, implementation, and operation of the compliance policies and procedures.

According to this job description, Plaintiff represented the company “at industry events around the world.”

In Plaintiffs counsel’s September 7, 2007 cover letter enclosing the job description, he informed Defendant that Plaintiff “was required to travel internationally, market the business, speak publicly, have changing stock and investment information memorized for trading purposes and generally work at a high pace from sun up to sun down.”

C. Relevant Provisions of the LTD Plan

To receive LTD Benefits under the LTD Plan, the participant must be disabled as defined by the terms of the LTD Plan. The LTD Plan defines disability as follows:

DEFINITION OF DISABILITY

The definition of Disability applicable to you will be the definition approved for your Employer by Standard. See your Certificate Label.

1. THE OWN-OCC TO AGE 65 DEFINITION

2. THE 80/80 DEFINITION

Until LTD Benefits have been paid for 24 months, you are Disabled if, as a result of Sickness, Accidental Bodily Injury, or Pregnancy, you are either:

a. Unable to perform with reasonable continuity the material duties of your own occupation; or

b. Unable to earn more than 80% of your Indexed Predisability Earnings while working in your own occupation.

After LTD benefits have been paid for 24 months, you are Disabled if, as a result of Sickness, Accidental Bodily Injury, or Pregnancy, you are either:

a. Unable to perform with reasonable continuity the material duties of any gainful occupation for which you are reasonably fitted by education, training, and experience; or

b. Unable to earn more than 80% of your Indexed Predisability Earnings while working in your own or any other occupation.

3. THE 80/50 DEFINITION

Indexed Predisability Earning means an amount determined as follows:

Until you have been Disabled for one year your Indexed Predisability Earnings will equal your Predisability Earnings on your last full day of Active Work before you became Disabled....

Plaintiffs “Certificate Label” contained certain information regarding the LTD Plan specific to Plaintiff. Among other things, it set forth Plaintiffs name, Member ID, Employer ID, and her employer’s name and address. It also stated: “60% PREDISABILITY EARNINGS: $2500 MONTHLY MAXIMUM; 90 DAY ELIMINATION PERIOD; 80/80 DEFINITION; MEMBER DEFINITION 1.”

To receive benefits under the LTD Plan, a participant must provide adequate written proof of “loss” within the meaning of the Plan. The LTD Plan provides as follows:

Satisfactory written proof of loss in connection with a claim for benefits must be provided to Standard at the expense of the person filing a claim.

No benefits will be paid until Standard has received satisfactory written proof of loss in connection with the claim for benefits. Standard must receive satisfactory written proof of the following before LTD benefits will be paid:

1. That you became Disabled while insured under the Group Policy;

2. That you were disabled throughout the respective Elimination period and the period for which LTD benefits are claimed;

3. That your disability results from a cause not excluded in the Group Policy;

4. That you are under the regular care of a Physician; and

5. Such additional information as Standard may reasonably require in connection with your claim.

Defendant insures the benefits provided by the LTD Plan. The LTD Plan grants the following authority to Defendant:

Except for those functions which the Group Policy specifically reserves to the Policyowner or Employer, we have full and exclusive authority to control and manage the Group Policy, to administer all claims, and to interpret the Group Policy and resolve all questions arising in the administration, interpretation, and application of the Group Policy.

Our authority includes, but is not limited to:

1. The right to resolve all matters when a review has been requested;

2. The right to establish and enforce rules and procedures for the administration of the Group Policy and any claim under it;

3. The right to determine:

a. Eligibility for insurance;

b. Entitlement to benefits;

c. The amount of benefits payable; and

d. The sufficiency and the amount of information we may reasonably require to determine a. b. or c. above.

Subject to the review procedures of the Group Policy, any decision we make in the exercise of our authority is conclusive and binding.

D. Defendant’s Initial Determination and Review of Plaintiffs Disability Claim

1. Defendant’s initial determination

In support of her disability claim, Plaintiff presented medical records from her rheumatologist, Dr. Kathryn Welch, who treated Plaintiff for her claimed SLE, Raynaud’s syndrome and arthritis. Records were provided for the period November 2, 2004 through July 2006. Dr. Welch’s report of Plaintiffs November 29, 2005 visit indicated that Plaintiff reported having tachycardia and “increasing joint pain with the weather changes though overall her joints are doing fairly well.” It also indicated that Plaintiff reported having trouble sleeping because of the tachycardia and that “[t]he Raynaud’s is worse with weather changes.” The report states that Plaintiff informed Dr. Welch that “[s]he is planning for a three month leave of absence to start late in January to see if she can get herself doing better so that she can do better at work.” The report further states:

We talked at length about her plans for her three months off. I told her she really needs to rest and let her body catch up and then she needs to get going on a good exercise program and a good schedule. I told her this was a great opportunity for her to get control of her health and hopefully then she will feel better enough that she can go back to work.

Dr. Welch saw Plaintiff again on January 26, 2006. Dr. Welch’s report for that visit indicates:

She reports that she has not had a big flare since her last visit, but she does not feel very well. Her fatigue is still a huge problem.... She is having less palpitations of her heart. Joints and muscles are better. She still has the Raynaud’s but there are no ulcers. She has some joint complaints, but overall her joints are doing fairly well. She is planning to start a three month leave of absence next week and hopefully be able to get her disease under better control and her fatigue also better.

The report notes that Plaintiff was able to successfully decrease her prednisone dosage. The report also indicates that Dr. Welch and Plaintiff “discussed the need for an increase in her activity and exercise as tolerated.”

Dr. Welch’s records regarding Plaintiffs March 23, 2006 visit indicate that Plaintiff was still fatigued and had morning stiffness and significant joint pain, but with little joint swelling. Plaintiff was walking daily and had lost 10 pounds. Plaintiff reported that she was busy with her daughter and helping with Girl Scouts and her activities. Dr. Welch’s records regarding a May 25, 2006 visit reflect that Plaintiff reported feeling tired and had pain in her calves and lower legs. Plaintiff reported that she was regularly walking, practicing yoga and stretching and had lost 27 pounds, and reported that these activities made her feel better.

None of the above-cited records show that Dr. Welch directed or recommended that Plaintiff stop working.

At Defendant’s request, Dr. Welch completed an “Attending Physician Statement” in April 2006 to help Defendant “determine whether the clinical condition of your patient is disabling.” On that Statement, Dr. Welch indicated that Plaintiffs “primary diagnosis was systemic lupus erythematosus and second diagnosis was fatigue.” Dr. Welch also listed “other diagnoses” of “arthralgial, tachycardia, inflammatory arthritis, seizure disorder, Raynaud’s and ‘SVT.’” She listed Plaintiffs symptoms as joint pain, morning stiffness, inflammation/synovitis of joints, fatigue, headaches, and seizures. In addition, Dr. Welch identified January 30, 2006 as the date she recommended Plaintiff should stop working and identified the reasons as “fatigue & very active SLE.” Dr. Welch described Plaintiffs “physical, mental and cognitive limitations and work activity limitations” as “joint pain and stiffness limiting mobility, fatigue limiting work hours and activity & inflammatory arthritis.” She noted that treatment was ongoing with immunosuppressive medication. The report was dated April 6, 2006.

Defendant obtained other records from Plaintiffs treating physicians, including a neurologist, Dr. Elizabeth Bryniarski; a cardiologist, Dr. Martin Emert; a gynecologist, Dr. Larry Batty; and Dr. Moriarty, Plaintiffs primary care physician. None of those records express any opinion that Plaintiff was unable to work or perform the material and substantial duties of her occupation. Moreover, none of those doctors ever imposed any restrictions or limitations upon Plaintiffs activities.

On September 7, 2006, Defendant submitted Plaintiffs medical records to a consulting doctor, Shirley Ingram, M.D., who is a board certified rheumatologist. The cover memo sent to Dr. Ingram indicated that the claimant “is a 38/yo female CFO who ceased work on 1/30/06 and is claiming Disability due to systemic lupus erythematosus and fatigue. Other diagnoses noted include seizure disorder, tachycardia, inflammatory arthritis, and Raynaud’s disease.” It further stated that “[m]edieal records from Dr. Welch, Dr. Bryniarski (neurology), Dr. Moriarty (PCP) and Dr. Emert (cardiology) are available for our review at this time.” The memo asked Dr. Ingram to review the medical documentation available and address the following:

1. What is/are the claimant’s primary conditions(s)?

2. What level of functional impairment is supported by the records; reasonable limitations and restrictions?

3. Please describe and note a reasonable duration of impairment, and prognosis for recovery.

Dr. Ingram reviewed the records and responded to Defendant with a “Physician Consultant Memo” signed on September 20, 2006. In that memo, Dr. Ingram noted that the claimant is a 38-year old chief financial officer who ceased work on January 30, 2006. She goes on to state: “I am asked to review her file.... The entire file is reviewed.” She then states:

Medical records are available from rheumatologist Dr. Welch from November 2, 2004 through July 2006, as well as neurology records from Dr. Bryniarski from October 29, 2004 through September 30, 2005; cardiology records from Dr. Emert in fall 2005, and cardiology records from Dr. Kramer in February 2006; as well as gynecology records from Dr. Batty from 2003 through June 21, 2006.”

Dr. Ingram also noted there were “primary care records from Dr. Moriarty.

According to Dr. Ingram’s September 20, 2006 memo, Plaintiffs medical records showed that Plaintiff had been diagnosed with SLE, history of Raynaud’s phenomenon, arthralgias, possible seizure disorder, mild episodic lymphoenia and history of photosensitive rash. Dr. Ingram observed in her memo that at the time Plaintiff stopped working on January 30, 2006, Plaintiffs serologies were negative, her joint exam was normal, her SLE and arthritis conditions were stable with medication, and Plaintiffs prednisone dosage was being tapered. Dr. Ingram also noted the following based on her review of the records: Plaintiff remained physically active after stopping work. Plaintiff had planned two months in advance to stop working in January 2006. Dr. Ingram also noted that there was no indication or notation in Dr. Welch’s treatment records that Dr. Welch had ever recommended that Plaintiff stop working.

Dr. Ingram opined that the medical records supported a possible/probable minor seizure disorder but that it was “unlikely it would be limiting for [Plaintiffs] own occupation.” Dr. Ingram also opined that the records “do not support an active autoimmune disease by physical exam, laboratory report, or medication change at the time of [Plaintiffs] cease work, nor is there support for specific physical limitations for a full-time sedentary to light occupation.” Dr. Ingram observed that Plaintiffs medications “would not be expected to be limiting, and indeed she had been on stable medications for several months prior to her cease work, and indeed medications had been tapered for her supraventricular tachycardia....” Dr. Ingram also stated:

While chronic autoimmune disease can cause fatigue, one would expect the fatigue to be improved with the significant medication she is on, and as her complaints are static through the 2 years of these medical records, there is a higher likelihood, then, that her complaints are not related to active autoimmune disease. She has complaint of insomnia, and this may be a separate or primary contributor to her fatigue, but this would not be expected to be limiting.

On September 15, 2006, Dr. Ingram wrote Dr. Welch asking for further support for Plaintiffs asserted limitations. In that letter, Dr. Ingram indicated that she is a board-certified rheumatologist who had been asked by Defendant to review, in connection with Plaintiffs disability claim, Dr. Welch’s medical records from November 2004 through summer 2006, as well as records from cardiologist Dr. Emert and neurologist Dr. Bryniarski. Dr. Ingram stated that she could not detect any specific change in Plaintiffs physical condition or any treatment indicating that Plaintiff was having limitations from an active autoimmune disease. Dr. Ingram further stated: “It would be very helpful to Ms. Berges if you could respond with a brief narrative detailing any specific findings that would support a limitation from her performing her own occupation (which may require up to two-thirds of the day walking and standing, and on occasion lifting, carrying, pushing, pulling up to 10 pounds), or any other extenuating circumstances or conditions that I have overlooked in her medical records.”

When no response from Dr. Welch was forthcoming, Defendant informed Plaintiff in a letter dated November 1, 2006 that, based on the information Defendant had to date, Plaintiff had not provided proof of loss that supported her claim of being unable to perform the material duties of her occupation. The letter stated that although the medical information indicated Plaintiff had some “active health problems in the past,” at the time she ceased work, her conditions “were well stabilized.” Furthermore, the letter noted that Dr. Welch’s records revealed that Plaintiff had planned in advance to take a three-month leave of absence in January 2006 to become healthier and improve her work performance. The letter also notified Plaintiff of the review conducted by a physician consultant, Dr. Ingram, who determined that the laboratory tests and physical examinations, both before and after Plaintiffs cease work in January 2006, did not support findings of such severity to prevent Plaintiff from continuing work. Finally, the letter requested that Plaintiff ask Dr. Welch to respond to Dr. Ingram’s request for additional information and that if no response was forthcoming within thirty days, Defendant would decide her claim without that information.

On November 16, 2006, Dr. Welch responded to Dr. Ingram’s request, stating:

Mrs. Berges is a 38 year-old white female with a diagnosis of systemic lupus erythematosus. This has been manifested by a seizure disorder, inflammatory arthritis, neutopenia and a positive ANA in the past. She currently has not had active synovitis, but continues to complain of significant fatigue, memory problems, joint pain and Raynaud’s.

The reason that she has told me she is unable to work is because of her severe fatigue, her joint pain and problems with her thinking. I understand that her inflammatory markers have recently been normal and that her disease modifying medications do appear to be controlling the inflammatory component of her disease, but she continues to have these other problems.

Dr. Ingram reviewed Dr. Welch’s November 16, 2006 letter and informed Defendant that the additional information provided did not alter her earlier conclusions. Dr. Ingram stated: “Ms. Berges does not have a physical condition that limits or restricts her from her own full-time light occupation as a chief financial officer. There is no additional physical exam, radiologic or laboratory test that provides further documentation for specific limitations beyond what I have reviewed previously.”

Thereafter, Plaintiffs claim file was reviewed by one of Defendant’s Vocational Case Managers, Jeffery Smith, who has a Bachelor of Science Degree in vocational Rehabilitation and is a Certified Disability Management Specialist. Mr. Smith relied upon the Dictionary of Titles (“DOT”) 186.117- 054 in determining whether Plaintiff could perform the occupation of Chief Financial Officer. Mr. Smith stated in his November 29, 2007 report that DOT 186.117- 054 “best identifies the claimant’s Own Occupation [of chief financial officer] based on information provided on the job description, the Employer’s Statement, the Employee’s Statement, and correspondence from the claimant to the Disability Benefits Analyst dated August 28, 2006....”

Attached to the vocational consultant’s report was a printout for DOT 186.117-054, which provided the following description of job duties for “Chief Financial Officer (financial)”:

Plans, develops, and directs financial policies and practices of bank, savings bank, commercial bank, trust company, mortgage company, credit union, or company dealing in consumer credit, such as finance company, to ensure that financial objectives, goals, and institutional growth are met and in accordance with policies of Board of Directors or corporate charter and government regulations: Plans and develops investment, loan, interest, and reserve policies to ensure optimum monetary returns in accordance with availability of investment funds, government restrictions, and sound financial practices. Coordinates communication and reporting activities between divisions, departments, and branch offices to ensure availability of data required for efficient daily operations. Delegates to subordinate corporate officers authority for administering activities and operations under their control. Reviews reports and financial statements to determine policy changes due to changes in economic conditions. May serve as bank representative in professional, business, and community organizations to promote bank services. May plan budget and monitor financial activities, using computer. May serve on Board of Directors. May be designated according to type of financial institution as President, Commercial Bank (financial); President, Credit Union (financial); President, Finance Company (financial); President, Mortgage Company (financial); President, Savings Bank (financial); President, Trust Company (financial).

The vocational consultant’s report also showed that DOT 186.117-054 identifies the physical demands of the job as: “Strength: Sedentary. Exert force to 10 lbs. occasionally, or a negligible amount of force frequently to lift, carry, push, pull, or move objects. Other Physical Demands: CL-Climbing-Not Present.” Mr. Smith thus determined that Plaintiffs “own occupation is considered sedentary as it is performed in the general economy.” He noted that although the Plaintiffs own job appeared to require overseas travel, “jobs within her own occupation do exist where this type of extensive travel would not be required.”

In a November 30, 2006 letter (“Denial Letter”), Defendant informed Plaintiff that her claim for LTD benefits was denied. The Denial Letter informed Plaintiff that Defendant had received Dr. Welch’s response to the physician consultant’s (Dr. Ingram) request for information to provide specific findings that would support impairment from Plaintiffs “own occupation.” The Denial Letter further stated that while Dr. Welch’s response had confirmed her SLE diagnosis and that Plaintiff had reported being unable to work, Dr. Welch had concurred with the physician consultant’s findings “that your inflammatory markers have been normal and your medications do appear to be controlling your disease.” The Denial Letter informed Plaintiff that the physician consultant had reviewed Dr. Welch’s November 16, 2006 response and concluded that the response did not (1) alter her previous understanding of Plaintiffs medical records, and (2) did not support Plaintiffs claim that she is unable to continue working. Defendant reiterated the physician consultant’s finding that Plaintiff’s laboratory tests and physical examinations, both before and after her January 30, 2006 cease work date, did not support findings of such severity to prevent Plaintiff from performing sedentary work.

The Denial Letter also informed Plaintiff of the vocational consultant’s finding that Plaintiffs “own occupation” was that of chief financial officer, which qualifies as sedentary work as it is performed in the general economy. The Denial Letter stated that although Plaintiffs own job appeared to require overseas travel, the vocational consultant found that jobs within Plaintiffs “own occupation” exist in the economy that do not require extensive travel. Defendant also informed Plaintiff that while her particular job had required regular overseas travel, this was not a material duty of her “own occupation,” and, thus, the inability to travel extensively did not provide a basis for disability under the LTD Plan.

The Denial Letter summarized Defendant’s conclusion as follows:

In order to be entitled to disability benefits, the information in the file must provide Proof of Loss which supports that you have been unable to perform with reasonable continuity the Material Duties of your Own Occupation. While the medical information in the file indicates that you have had some active health problems in the past, at the time you ceased work your conditions were well stabilized. Dr. Welch confirms that you had planned a three month leave of absence beginning in January 2006 to become healthier and to improve work performance.

The Denial Letter then informed Plaintiff that, on the basis of this information, Defendant had concluded that Plaintiff had not provided sufficient proof of loss to support that she was unable to perform with reasonable continuity the material duties of her “own occupation” of chief financial officer. Her claim was therefore denied,

2. Plaintiffs appeal and the review conducted by the Benefits Department

On May 22, 2007, Plaintiff appealed Defendant’s denial of her claim by submitting a written request for review. The review was conducted by the Benefits Review Department of Defendant.

On July 3, 2007, Plaintiffs counsel provided to the Benefits Review Department a 2007 vocational report by Lesa Keen, along with a number of medical records, including a May 14, 2007 psychological evaluation by David Mouille, Ph.D. Plaintiffs counsel also submitted additional records from Dr. Welch, including a May 18, 2007 narrative report of Dr. Welch. Plaintiff submitted this information in support of her contention that her SLE and arthritis were disabling on January 30, 2006 and that newly diagnosed medical conditions of dementia and depression were also disabling.

The May 14, 2007 psychological evaluation completed by Dr. Mouille, who is a licensed psychologist but not board certified, identified dementia as the primary psychiatric diagnosis and depression as a secondary diagnosis. The Benefits Review Department requested a physician consultant, Dr. Linda Toenniessen, who is board certified in psychiatry, to review Dr. Mouille’s evaluation. Dr. Toenniessen found that the evaluation “is remarkable for the extent to which normal performance is documented.” According to Dr. Toenniessen, the evaluation showed that Plaintiffs “intelligence testing is high average.” Dr. Toenniessen found that Plaintiffs normal performance on testing did not support a finding that Plaintiff had a mental impairment that would prevent her from working in her own occupation of chief financial officer. Dr. Toenniessen also found that Dr. Mouille’s evaluation did not support a diagnosis of major depression or dementia.

Defendant also asked Dr. Ingram, the board-certified rheumatology physician consultant who had previously reviewed Plaintiffs medical records, to review the additional medial records Plaintiffs counsel submitted on July 3, 2007. Dr. Ingram provided a Physician Consultant Memo signed July 21, 2007. Dr. Ingram identified the following medical records that she reviewed: (1) medical records of office visits to Dr. Welch on August 3, October 5 and December 19, 2006, and February 21, 2007, along with a May 18, 2007 letter from Dr. Welch addressed “To Whom It May Concern”; (2) record of Dr. Higgins from June 2, 2006; (3) laboratory tests from June, November 2, and December 19, 2006, and January 10, 2007, and laboratory flow sheets from 200.6, including a December 19, 2006 flow sheet; (4) records of Dr. Amundson from October 4, November 4, and December 20, 2006 and February 20, 2007; (5) MRI on October 9, 2006; (6) gynecology records of Dr. Batty from October 11, 2006 to February 20, 2007; (7) physical therapy notes from February 8, 2005 to January 4, 2007; (8) neurology records of Dr. Arthur Allen, II on August 8, 2001 and January 8, 2007; (9) cardiology records of Dr. Kramern Crouse on July 19 and November, 2005 and February 24, 2006; and (10) phone call records of Dr. Emert for March 2006. She also indicated she had reviewed the vocational report of Lesa Keen dated June 7, 2007.

Dr. Ingram stated in her July 21, 2007 memo that these records did not support a finding that Plaintiff has any active autoimmune disease while Plaintiff remains on treatment. She also found that the submitted orthopedic evaluation for back and leg pain showed improvement with epidural steroid injections and that Plaintiff had no significant neurologic abnormalities, either on examination or on MRI. Dr. Ingram also found that Plaintiffs seizure disorder was well controlled on medications. In addition, Dr. Ingram observed that the only significant change in Plaintiffs medical condition was that Dr. Welch had placed her on Cymbalta for chronic pain and antidepressants in the spring of 2007. Dr. Ingram concluded that the additional records did not change her earlier conclusion that “there is no support for a physical condition that would be expected to limit or restrict a full-time light occupation as of her cease work date.” She did note, however, Plaintiffs complaint of increased low back and leg pain in October of 2006 and found that during the period October through December 2006 Plaintiff might not have been able to work in a full-time light occupation. At the same time though, she noted there were no EMGs, NCVs, MRIs or physical exams finding an actual neurogenic impingement causing abnormalities. She stated that “[w]ith her improvement as of January 2007, there is no longer expected to be a restriction for a full-time light occupation.”

In August 2007, Defendant requested one of its Vocational Case Managers, Sandy Johnson, who had not previously reviewed Plaintiffs file, to issue a vocational report. Ms. Johnson has a Master’s degree in Education and is a Certified Rehabilitation Counselor. Ms. Johnson reviewed Plaintiffs “own occupation” and job description and the earlier report by the vocational specialist Jeffery Smith. Ms. Johnson then issued a report dated August 22, 2007, which stated:

The U.S. Department of Labor Dictionary of Occupational Titles occupation of chief Financial Officer (DOT # 186.117-054) had been assigned as the DOT that corresponds with Ms. Berges’ own job by Jeffrey D. Smith, Vocational Case Manager, on 11/29/2006. No additional vocational information has been submitted since that time and the undersigned agreed with this determination as based on a review of the job description in the file from the claimant’s employer....

[The job description] already received from the employer on 7/25/2006 ... describes a number of duties such as negotiating contracts, performing marketing, setting up offshore funds, analyzing executed stock trading ideas, analyzing and projecting performance of long term equity holdings, analyzing investment ideas, managing and tracking venture capital, and tracking treasury and municipal bonds, purchase agreements, and fund performance. The job also involved managing the audit process, managing tax preparation, and supervising personnel including the controller, the business manager, and the analyst. These job duties would correspond with the duties listed in the DOT Chief Financial Officer, as they include overall management functions, supervision, analyzing the performance of holdings, etc.

Ms. Johnson noted that she had also reviewed Dr. Ingram’s August 18, 2007 report which indicated Plaintiff would have been be able to work a light capacity job on a full time basis with the exception of October 2006 through December 2006 due to back and leg pain. Ms. Johnson also noted that she had reviewed Dr. Toenniessen’s July 16, 2007 memo in which she indicated that she did not concur with Mr. Mouille’s conclusions and in which she found Plaintiff had high average intelligence and normal performance on the testing. Ms. Johnson concluded that Plaintiff “retains the mental ability to perform the occupation of Chief Financial Officer.”

Ms. Johnson also reviewed the June 7, 2007 vocational report of Lesa Keen that Plaintiffs counsel had provided to the Benefits Review Department. Ms. Johnson noted that Ms. Keen’s conclusion that Plaintiff would appear incapable of obtaining and maintaining full-time competitive employment was based only on observations made during Ms. Keen’s meeting with Plaintiff and on the psychological evaluation of Dr. Mouille. Ms. Keen observed that Plaintiff forgot some of their appointments and had difficulty recalling all of her employment history. Ms. Johnson stated that “[n]one of these observations would lead me to change my conclusion that Ms. Berges is able to perform her occupation of Chief Financial Officer given the functional capacities outlined by Drs. Ingram and Toenniessen.” Ms. Johnson also noted that Ms. Keen did not address whether Plaintiff was able to perform any occupations or work part-time, and failed to conduct any vocational testing or labor market research.

Defendant notified Plaintiffs attorney in a letter dated August 30, 2007 that the Benefits Review Department found the additional information Plaintiff had provided insufficient to change its original decision to deny benefits. Defendant’s letter set forth the above findings and conclusions of Dr. Toenniessen, Dr. Ingram, and the vocational case manager, Sandy Johnson. The letter also noted that Dr. Mouille’s psychological evaluation took place on May 14, 2007, approximately sixteen months after Plaintiff stopped working and claimed disability. The letter observed that Dr. Mouille never asserted that Plaintiff was mentally impaired on January 30, 2006 (the last day Plaintiff worked), and thus, even if there were a consensus of opinion that Plaintiff was currently impaired, this would not warrant a reversal of Defendant’s decision that she was not impaired on January SO, 2006. In addition, the letter pointed out even if Defendant were to agree with Dr. Mouille’s conclusion that Plaintiff was presently impaired, “[Plaintiffs] insurance ended on February 28, 2006 at the latest, assuming she was on an approved leave of absence following the date she ceased to be a member and she would be ineligible for any benefits on that basis as well.” Defendant informed Plaintiffs counsel that “based on this understanding of the pertinent medical and vocational information,” Defendant had not changed its conclusion that Plaintiff had the functional capacity to perform the material duties of her own occupation of CFO during the relevant time period.

Although its decision to deny Plaintiffs claim had' not changed, Defendant informed Plaintiffs counsel that her file would be forwarded to Defendant’s Administrative Review Unit for yet another review.

3. Review by Defendant’s Administrative Review Unit

At this stage of the review process, Defendant provided Plaintiffs medical records to two consulting physicians, Douglas M. Haselwood, M.D. and Laurence M. Binder, Ph.D. Dr. Haselwood is a Diplomate, American Board of Internal Medicine and Rheumatology, and Fellow, American College of Rheumatology. On October 18, 2007, Defendant asked Dr. Haselwood to conduct an independent rheumatology file review of Plaintiffs records and to address sixteen specific issues, including such issues as: (1) does the medical information in Plaintiffs file support a diagnosis of SLE, and (2) does the information provided support a severity of arthritis symptoms at any time from January 20, 2006 to the present that would preclude full-time sedentary work activity? Defendant informed Dr. Haselwood that Plaintiff was 39 years old and employed from November 24, 1997 to January 30, 2006 as “a CFO.”

After reviewing Plaintiffs medical records, Dr. Haselwood provided Defendant with a written report dated November 8, 2007. In that report, Dr. Haselwood stated:

I am submitting this report outlining my findings and conclusions generated from a review of medical records pertaining to Marcey Berges. This record review was focused on defining the nature and severity of Ms. Berges’ chronic rheumatologic/medical afflictions in the context of objectively defining pathophysiologic parameters of long-term vocational physical disability.

He further stated that “[a] little over six inches of records pertaining to Ms. Berges were submitted for review and these were collated by date and source.... All record entries were personally reviewed, but non-relevant, duplicative, illegible or undated material may not have received citation.”

Dr. Haselwood then proceeded to identify the following medical records that he had reviewed of the following health care providers:

1. Kathryn Welch, M.D. Treating Rheumatologist

initial comprehensive consultation report dated 10/26/01

summary letter dated 10/06/03

report dated 02/02/05

report dated 2/17/05

report of 03/08/05

report dated 05/04/05

report dated 06/03/05

report dated 07/29/05

report dated 09/23/05

report dated 11/29/05

report dated 01/26/06

note dated 03/23/06

note dated 5/26/06

report dated 08/03/06

report dated 10/05/06

letter dated 11/16/06

report dated 12/19/06

report dated 02/21/07

letter dated 5/18/07

2. Shirley Ingram, M.D., Rheumatologist

letter dated 09/15/06

memo of 09/15/06

memo of 11/26/06

final memo of 08/13/07

3. Mid-America Cardiology

serial cardiology consultation and treatment reports from 06/21 /01 through 11/30/05

final cardiology note of 11/20/05

4. Linda Toenniessen, M.D., Psychiatrist

memo dated 07/15/07

5. Glenn Amundson, M.D.

consultation report dated 10/04/06

follow-up report of 11/04/06

6. Kimber Eubanks, M.D.

report dated 11/14/06

report dated 11/20/06

report dated 12/06/06

7. Elizabeth Bryniarski, M.D., Neurologist

consultation of 08/14/04

EEG report dated 11/05/04

EEG report dated 02/22/06

8. Arthur Allen, II, M.D., Neurologist

consultation report dated 01/08/07

9. David Bodensteiner, M.D., Hematologist

consultation report dated 04/18/01

10. Sharon Lynch, M.D., Neurologist

consultation report of 12/22/00

11. Lisa Keen, Rehabilitative Consultant

Rehabilitation Services vocational report dated 06/07/07

12. Kramer and Crouse, Cardiology

Serial consultation, treatment and procedural notes from March of 20025 through 02/22/06

13. Diagnostic Imaging Studies

06/03/98 lumbar spine MRI scan

02/08/01 cervical spine MRI study

10/04/06 lumbar spine x-ray

10/09/06 cervical spine MRI scan

10/09/06 lumbar spine MRI scan

14. Diagnostic Laboratory Studies

10/19/01

08/13/02

05/14/04

03/01/05

10/27/05

11/29/05

01/26/06

04/20/06

06/26/06

at least 10 studies from 06/23/06 through 02/21/07

15. Legal Submission (author unknown)

An 86-page document entitled “Facts Supporting Claimant’s Meeting the Definition of Disability and Rebutting Denial Rationale”

After reviewing and providing a written analysis of these records, Dr. Haselwood opined in his November 8, 2007 written report as follows: “Based on the currently available medical record rheumatologic evidence, Ms. Berges should have the physical capacity to perform full-time gainful employment involving a full range of sedentary to light physical activities.” He further opined that the above-cited medical records did not support a diagnosis of SLE. He explained that the American College of Rheumatology requires “a minimal four out of eleven diagnostic criteria for SLE.” He found that the medical records substantiated only two criteria, arthritis and leukopenia. He also found that the medical records did not support Plaintiffs reported symptoms of Raynaud’s syndrome.

Furthermore, Dr. Haselwood opined in his report that it was not reasonable to conclude that Plaintiffs chronic undifferentiated rheumatic disease “would cause sustained or vocationally debilitating fatigue.” He also opined that Plaintiffs medical records did not document any seizure activity during the time period January 30, 2006 through November 8, 2007, or that a seizure disorder in any way impaired her vocational functionality during that same period. In addition, he stated that the medical records did not support the conclusion that objectively substantiated medical/rheumatologie pathophysiology was of such severity so as to preclude Plaintiff from engaging in full-time sedentary work activity.

On October 18, 2007, Defendant also asked Dr. Laurence Binder to conduct an independent neuropsychological file review of Plaintiff and to address nine specific questions about Dr. Mouille’s neuropsychological report. One of those questions was whether Dr. Mouille’s evaluation supported a finding that Plaintiff met the primary criterion for a diagnosis of dementia. Several of the questions dealt with Plaintiffs cognitive function, and Defendant asked Dr. Binder to comment on any significant findings during Dr. Mouille’s evaluation and what they support in terms of cognitive functional impairment.

Dr. Binder, who is a Diplómate in clinical neuropsychology, submitted a written report to Defendant on November 26, 2007. In that report, Dr. Binder indicated that he had asked Dr. Mouille to provide him with the raw data underlying his evaluation, but he was told that the data was “unobtainable.” Dr. Binder proceeded to answer the questions posed by Defendant but qualified his answers as needed due to the lack of the underlying raw data. Dr. Binder expressed concern about the accuracy of the scores Dr. Mouille had provided in his report. Dr. Binder found that there was no support for the inference that Plaintiff has a deficit in executive functioning. He also found that she does not meet the criteria for dementia because “there is no area of cognitive impairment.” Moreover, he noted that Dr. Mouille provided no documentation of “any actual cognitive difficulty performing the job of chief financial officer.”

Dr. Binder opined that “[b]y any reasonable standard, the neuropsychological test results obtained on [Plaintiff] were normal.” He also stated that he was unable to find any evidence of depression in Dr. Mouille’s test results other than a mild elevation on one test, and that could have been caused purely by physical complaints. Dr. Binder also found no evidence that her depression or reported “psychopathology” impairs her ability to perform activities of daily living, the pace at which Plaintiff can understand and perform simple tasks. Nor was there any evidence that it affects her ability to concentrate or maintain an adequate schedule through an average workday.

After making this report, Dr. Binder was eventually able to obtain the raw data underlying Dr. Mouille’s evaluation, and he provided an additional report to Defendant. After reviewing the raw data, he continued to express reservations about the accuracy of the scores provided by Dr. Mouille, and he noted the raw data revealed more errors than he originally observed. Dr. Binder explained the errors he found in the raw data, and observed that those errors “raise additional concerns about the competence of Dr. Mouille.” He stated: “My opinion that there is no basis for diagnosing depression was strengthened by the raw data, and my concerns about the competence of Dr. Mouille were heightened by additional errors detected in the raw data.” He concluded that the raw data did not change his original interpretation or opinions.

In a letter dated March 11, 2008, Defendant notified Plaintiffs counsel that the Administrative Review Unit had completed its review and had concluded that the Benefits Department’s decision to deny Plaintiff benefits was correct and would be upheld. The letter, which was twenty pages long, provided a detailed review and analysis of the medical records, reports and evaluations. It discussed in extensive detail the rheumatology records, neurology records, orthopedic records, cardiology and cardiovascular disease records of Plaintiffs treating physicians; Dr. Mouille’s neuropsychological testing; the reports of the independent physician consultants, including Dr. Ingram, Dr. Haselwood, and Dr. Binder; and the vocational evaluations performed by Lesa Keen and Sandy Johnson.

Some of the more significant points in the letter were as follows. Dr. Ingram did not find information in the file supporting impairment to a degree that would preclude Plaintiff from performing light work activity. Dr. Ingram had asked Plaintiffs treating rheumatologist, Dr. Welch, to provide a narrative detailing any specific findings that would support that Plaintiff had been prevented from performing her own occupation or any other extenuating circumstances or conditions that Dr. Ingram might have overlooked in Plaintiffs medical records. In response, Dr. Welch reiterated that Plaintiff had told her she was unable to work because of fatigue, joint pain and problems with her thinking. Dr. Welch, however, never rendered any opinion herself that Plaintiff was incapable of performing her regular work activity based on any clinical assessment. Dr. Welch’s response did not change Dr. Ingram’s prior opinion that the medical records did not support impairment to a degree precluding full-time light work activity.

In addition, Defendant’s letter noted that Dr. Haselwood did not find that the medical information supported active SLE or even the diagnostic criteria of SLE as outlined by the American College of Rheumatology. While he did note that Plaintiff had age-appropriate osteoarthritis and discogenic disease in her neck and low back, the medical information did not support impairment to a degree precluding Plaintiff from performing sedentary to light work activity.

Defendant stated in its letter that the Administrative Review Unit found the opinions of Dr. Ingram and Dr. Haselwood to be well reasoned and well supported by the medical information in Plaintiffs file. Defendant further stated that although the medical records showed evaluation and/or treatment for SLE, Raynaud’s, and arthritis dating back several years, there was no documented significant change in Plaintiffs clinical presentation or in her reported symptoms, and no significant change in Plaintiffs recommended treatment. Thus, the Administrative Review Unit had concluded that the medical information in Plaintiffs file did not support that she was unable to perform the material duties of her own occupation as a CFO after January 30, 2006.

With respect to Plaintiffs newly asserted mental impairment, Defendant noted that Plaintiff did not indicate in her July 2006 claim statement that her inability to work was in any way due to mental or cognitive impairment. Further, Defendant noted that Dr. Binder had reviewed Dr. Mouille’s neuropsychological evaluation and found that Dr. Mouille’s conclusions regarding Plaintiffs cognitive functioning, dementia, and depression were not supported by Dr. Mouille’s own test findings. Furthermore, after reviewing the raw data, Dr. Binder even questioned Dr. Mouille’s competence. Defendant concluded that although Dr. Mouille had asserted Plaintiff has cognitive impairment to a degree preventing her from working in any capacity, by his own report, Plaintiff did not demonstrate any significant deficiency on neuropsychological testing.

Finally, Defendant discussed the vocational evaluations of Plaintiff. Defendant analyzed the report of Lesa Keen, which had been submitted by Plaintiff. Defendant noted that Ms. Keen’s evaluation was based only on her interview of Plaintiff and her review of Dr. Mouille’s evaluation. While Ms. Keen reached a conclusion that Plaintiff is incapable of working, she based that conclusion only on (1) Plaintiffs self-report that she could not work; (2) Ms. Keen’s observation that Plaintiff was fatigued during the interview; (3) Plaintiffs difficulty in remembering employment dates during the interview; and (4) Dr. Mouille’s report, which Defendant found to be of questionable value. Defendant thus concluded that Ms. Keen’s interview and review did not constitute a vocational evaluation and did not add substantial information supporting Plaintiffs appeal.

Defendant then discussed the occupation of chief financial officer. It noted that the occupation requires the ability to perform sedentary work, which Drs. Ingram and Haselwood had found Plaintiff could perform. Defendant noted that although Plaintiff may have been required to travel internationally while employed by KCM, “the occupation of Chief Financial Officer, as it is performed [in] that general economy, would not require international travel.”

Based on the foregoing, Defendant informed Plaintiffs counsel that it did not find support for Plaintiffs claim that she was unable to perform with reasonable continuity the material duties of her own occupation. Defendant therefore determined that its decision to deny Plaintiff disability benefits was correct and would be upheld.

V. Legal Standard of Review Under ERISA

Having reviewed the extensive record in this case, the Court will now turn its attention to the legal standard it must apply to determine whether Defendant’s decision to deny Plaintiff disability benefits should be overturned.

ERISA provides a detailed and comprehensive set of federal regulations governing the provision of benefits to employees by employers, including disability benefits. ERISA specifically gives a plan beneficiary the right to federal court review of benefit denials and terminations. The statute, however, does “not establish the standard of review for such decisions.”

In Firestone Tire & Rubber Co. v. Bruch, the Supreme Court established the basic framework for determining the standard of review in ERISA cases that challenge the denial or termination of benefits. The Court held that “a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” If discretionary authority exists, then the proper standard of review is a deferential standard of review, asking only whether the denial of benefits was arbitrary and capricious.

In applying the arbitrary and capricious standard, “the decision will be upheld so long as it is predicated on a reasoned basis.” Under this standard, there is no requirement that the basis relied upon be the only logical one or the best possible one. The reviewing court only inquires whether the administrator’s decision resides “somewhere on a continuum of reasonableness even if on the low end.” In other words, “[t]he decision will be upheld unless it is not grounded on any reasonable basis.” Consequently, the Tenth Circuit has observed that the arbitrary and capricious standard “is a difficult one for a claimant to overcome.”

“Indicia of arbitrary and capricious decisions include lack of substantial evidence, mistake of law, bad faith, and conflict of interest by the fiduciary.” The term “substantial evidence” means “evidence of a sort that a reasonable mind could accept as sufficient to support a conclusion.” It means more than a scintilla, yet less than a preponderance. The substantiality of the evidence must be evaluated “against the backdrop of the administrative record as a whole.”

The Supreme Court in Metropolitan Life Insurance Co. v. Glenn recently analyzed how the arbitrary and capricious standard should be applied when a plan administrator “both evaluates claims for benefits and pays benefits claims.” The Court held that in such a case there is a conflict of interest, which “should be weighed as a factor in determining whether there is an abuse of discretion.” The presence of a conflict of interest may “act as a tiebreaker when the other factors are closely balanced,” with “the degree of closeness necessary depending upon the tiebreaking factor’s inherent or case-specific importance.” The Co