Submitted: December 11, 2018
from United States District Court for the Western District of
Missouri - Western Division
SMITH, Chief Judge, WOLLMAN and GRASZ, Circuit Judges.
Johnston appeals a district court order finding that
Prudential Insurance Company of America
("Prudential") did not abuse its discretion when it
terminated his long term disability benefits. We affirm the
district court's order.
was an Enterprise Storage Engineer in the computer department
at Commerce Bancshares, Inc. ("Commerce"). As part
of an employee welfare benefit plan (the "Plan"),
Commerce provided its employees long-term disability
("LTD") insurance from Prudential.
2013, Johnston became unable to continue working due to
complications from hydrocephalus, which ultimately led to
surgery to remove a colloid cyst from his brain. Johnston
filed a claim for LTD benefits with Prudential. Dr. Kala
Danushkodi, Johnston's treating physician, submitted a
statement that Johnston had "cognitive impairment /
moderate to severe" and was unable to return to work due
to the impairment.
sent Johnston a letter approving his claim for LTD benefits
in November 2013. Prudential also requested the results of
two neuropsychological examinations "for the ongoing
review of your claim and benefits beyond December 31,
2013." It further advised that it would
"periodically review your claim, and request or obtain
information, to ensure that you meet all eligibility
receiving and reviewing the results of Johnston's
examinations, Prudential staff noted that one of the tests
was not valid due to Johnston's inconsistent performance.
After Johnston underwent an additional surgery in March 2014
to place a shunt in his head, Prudential decided that another
neuropsychological evaluation was needed to determine whether
he continued to be disabled.
Dr. Robert Denney examined Johnston in June 2014. Dr. Denney
used multiple tests for the validity of Johnston's
responses, both "embedded" and
"free-standing." He was unable to determine whether
Johnston was cognitively impaired because Johnston failed
almost all of the validity tests. Dr. Denney opined that two
of the free-standing validity tests indicated that Johnston
"was actively attempting to perform poorly." In a
supplemental addendum to his report, Dr. Denney reviewed the
data from two of Johnston's previous examinations. He did
not change his conclusions about Johnston because one
examination had failed validity indicators, while the other
examination had inconsistent results that suggested
on Dr. Denney's report and addendum, Prudential
terminated Johnston's LTD benefits as of September 1,
2014. It determined that Johnston had failed to support his
claim that he was still unable to work due to cognitive
appealed the termination of his LTD benefits. In support of
his appeal, he submitted a statement from his therapist, Dr.
Marcia Meyer, explaining that he was exhausted by Dr.
Denney's tests and that he was unable to maintain the
focus and concentration needed for his job.
reviewing Johnston's appeal, Prudential sought a second
neuropsychological examination. Dr. Michelle Zeller examined
Johnston in June 2015, and she reported that he failed all
nine validity measures on the tests she administered. She
concluded that he was attempting to appear more impaired than
he actually is, and she stated that she was unable to
determine his level of impairment. Dr. Zeller explained:
"Failure on any one of these measures would raise the
possibility of negative response ...