Opinion
CASE NO. 8:12-CV-2473-T-17TBM
09-26-2014
BARBARA J. MACDONALD, Plaintiff, v. ANTHEM LIFE INSURANCE COMPANY, Defendant.
ORDER
This cause is before the Court on:
Dkt. 35 Motion for Summary Judgment (Defendant)
Dkt. 36 Statement of Undisputed Facts
Dkt. 39 Motion for Summary Judgment (Plaintiff)
Dkt. 40 Statement of Undisputed Facts
Dkt. 41 Response
Dkt. 42 Notice
Dkt. 47 Response
Dkt. 49 Sealed Notice of Exhibit
In the Complaint, Plaintiff Barbara J. MacDonald seeks the payment of long term disability benefits, reinstatement of all other benefits, including the waiver of premiums as if benefits had never been terminated, the award of attorney's fees and costs, and other appropriate relief.
Defendant Anthem Life Insurance Company ("Anthem") moves for entry of summary judgment affirming the termination of Plaintiff's long term disability benefits at the end of the 24-month "own occupation" period. Defendant Anthem determined that Plaintiff MacDonald was capable of performing other gainful occupations and no longer met the Policy's definition of disability. During the initial and appeal review, Plaintiff did not submit any proof of her inability to perform other gainful occupations; Defendant Anthem relied on current evidence of Plaintiff's functional capacity.
Plaintiff MacDonald moves for entry of summary judgment in favor of Plaintiff, on the basis that it was wrong and arbitrary and capricious for Defendant to have relied, in part, on the restrictions and limitations provided by Dr. Krost, but not to have conducted a new TSA (Transferable Skills Assessment) to determine whether the new restrictions would prevent Plaintiff from working at any gainful occupation.
Plaintiff MacDonald also contends that Defendant's decision was wrong and arbitrary and capricious because, in Defendant's denial letter, Defendant Anthem relied only on a portion of the limitations expressed by Dr. Krost, ignoring the restrictions and limitations most damaging to Defendant's position. Dr. Krost completed a PCA (Physical Capacity Assessment) which included restrictions which would prevent Plaintiff from using her left hand for all work activities. Dr. Krost's PCA indicates that Plaintiff could not use her left hand for any of the activities specified, and found that Plaintiff could not return to her own sedentary occupation. Defendant ignored how Plaintiff's inability to use her left hand affected her ability to work at any level (sedentary or light) and the more extensive restrictions and limitations were never submitted for occupational review. I. Standard of Review A. Rule 56
Summary judgment should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits, show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56 (c).
"The plain language of Rule 56(c) mandates the entry of summary judgment after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
The appropriate substantive law will guide the determination of which facts are material and which facts are...irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson, 477 U.S. at 248. But, "[i]f the evidence is merely colorable...or is not significantly probative...summary judgment may be granted." Id. at 249-50.
The Court notes the discussion in Curran v. Kemper Natl. Servs., Inc., 2005 WL 894840 *7 (11th Cir. 2005)(unpublished) and Crume v. Met. Life Ins. Co., 417 F.Supp.2d 1258 (M.D. Fla. 2006). While there may be unresolved factual issues evident in the administrative record, ....unless the administrator's decision was wrong, or arbitrary and capricious, these issues will not preclude summary judgment as they normally would. Pinto v. Aetna Life Ins. Co., 2011 WL 536443 (M.D. Fla. Feb. 15, 2011). Conflicting evidence on the question of disability alone cannot create an issue of fact precluding summary judgment, since an administrator's decision that rejects certain evidence and credits conflicting proof may be reasonable. 417 F.Supp.2d at 1273. B. ERISA
In reviewing a plan administrator's benefits decision, the Court performs the following analysis:
(1) Apply the de novo standard to determine whether the claim administrator's benefits-denial decision is "wrong" (i.e., the court disagrees with the administrator's decision); if it is not, then end the inquiry and affirm the decision.See Blankenship v. Met. Life Ins. Co., 644 F.3d 1350, 1354 (11th Cir. 2011)(citing Capone v. Aetna Life Ins. Co., 592 F.3d 1189, 1195 (11th Cir. 2010)).
(2) If the administrator's decision in fact is "de novo wrong," then determine whether he was vested with discretion in reviewing claims; if not, end judicial inquiry and reverse the decision.
(3) If the administrator's decision is "de novo wrong" and he was vested with discretion in reviewing claims, then determine whether "reasonable" grounds supported it (hence, review his decision under the more deferential arbitrary and capricious standard).
(4) If no reasonable grounds exist, then end the inquiry and reverse the administrator's decision; if reasonable grounds do exist, then determine if he operated under a conflict of interest.
(5) If there is no conflict, then end the inquiry and affirm the decision.
(6) If there is a conflict, the conflict should merely be a factor for the court to take into account when determining whether an administrator's decision was arbitrary and capricious.
The Court's review of an ERISA benefits decision is "limited to consideration of the material available to the administrator at the time it made its decision." Blankenship v. Met. Life Ins. Co., 644 F.3d 1350, 1354 (11th Cir. 201 Inciting Jett v. Blue Cross and Blue Shield of Alabama, Inc., 890 F.2d 1137, 1140 (11th Cir. 1989).
Statement of Facts
1. Plaintiff Barbara J. MacDonald was employed by Wellpoint, Inc. as a medical claims processor commencing on September 4, 2007. Plaintiff's last day worked was May 23, 2009.
2. Plaintiff MacDonald was a participant in an employee welfare benefit plan sponsored by Wellpoint, Inc., which included Wellpoint Group Long Term Disability Plan.
3. The Wellpoint Group Long Term Disability Plan is governed by ERISA.
4. Wellpoint Group Long Term Disability Plan is funded through policy of insurance issued by Anthem Life Insurance Company.
5. Anthem Life was the claim administrator and administered benefits under the terms of the Policy.
6. The Policy defines "Disability" as meaning, during the Elimination Period and the next 24 months because of Your injury or sickness, all of the following are true:
You are unable to do the Material and Substantial duties of your Own Occupation; and
You are receiving Regular Care from a doctor for that injury or sickness; and
Your Disability Work Earnings, if any, are less than or equal to 80% of
Your Indexed Pre-Disability Earnings.
7. After 24 months, "Disabled" and "Disability" mean because of Your injury and sickness all of the following are true:
You are unable to do the duties of any Gainful Occupation for which You are or may become reasonably qualified by education, training or experience; and
You are receiving Regluar Care from a doctor for that injury or sickness; and
Your Disability Work Earnings, if any, are less than or equal to 80% of your Indexed Pre-Disability Earnings.
Your Disability must start while You are insured under the Policy.
Your loss of earnings must be a direct result of Your injury or sickness.......
8. The Policy defines "Injury" and "sickness":
Injury means a bodily injury that occurs while you are insured and is the direct result of an accident and not related to any other cause.
Sickness means an illness or disease. It also includes an injury which occurs before you are insured.
9. The Policy defines Regular Care:
Regular Care means:
you personally visit a doctor as often as is medically required to effectively manage and treat your disabling condition(s), according to generally accepted medical standards:
AND
you are receiving appropriate treatment and care, according to generally accepted medical standards. Treatment and care for the sickness or injury causing your disability must be given by a doctor whose specialty or experience is appropriate.
10. The Policy provides that disability payments will stop on the earliest of the following dates:
......
[W]hen you have received 24 or more months of payments from us and you are able to:
1. Work in a gainful occupation, part-time or full-time, but you do not do so;
2. Increase your disability work earnings working full-time or part-time in any gainful occupation but you do not do so.
11. "Material and Substantial Duties" are duties that:
(1) Are normally required for the performance of your Own Occupation or any occupation; and
(2) Cannot be reasonably omitted or modified, except that We will consider You able to perform the Material and Substantial Duties if You are working or have the capability to work your normal scheduled work hours.
12. The Policy defines "Own Occupation":
Own Occupation means the occupation that You regularly performed and for which You were covered under the Policy immediately prior to the date Your Disability began. The occupation will be considered as it is generally performed in the national economy, and is not limited to the specific position You had with your employer.
13. The Policy defines "Gainful Occupation":
Gainful Occupation means an occupation that is or can be expected to provide You with an income within 12 months of Your return to work (and before taxes), that is at least equal to your gross monthly payment.
14. The Policy defines "Disability Work Earnings":
Disability Work Earnings means for Long Term Disability benefits, monthly earnings which You receive while You are Disabled and working, plus the earnings You could receive if You were working to Your Maximum Capacity.
Maximum Capacity means, based on Your restrictions and limitations:
1. For the first 24 months of payments from us, the greatest extent of work You are able to do, and which is reasonably available, in Your Own Occupation.
2. Following 24 months of payments from us, the greatest extent of work You are able to do in any Gainful Occupation for which You are reasonably qualified by education, training, or experience.
15. Plaintiff's salary was $2,028.22 per month and her gross monthly disability payment was $1216.93, 60% of pre-disability earnings. A "Gainful wage" is $14,603.00 per year.
16. The Policy limits benefit payments to 24 months for "disability due to mental illness, substance abuse, or self-reported symptoms."
17. Under the Policy, Anthem Life is authorized to determine eligibility for benefits. The Policy states:
We have discretionary authority to determine your eligibility for benefits and to construe the terms of the policy to make a benefits determination.
18. Plaintiff MacDonald had a motorcycle accident on May 23, 2009, in which Plaintiff sustained injuries. Plaintiff's first day of disability was May 26, 2009.
19. Wellpoint, Inc. approved Plaintiff's request for FMLA leave commencing on May 23, 2009 and approved Plaintiff's application for salary continuation/STD benefits.
20. Plaintiff MacDonald saw Dr. Martha Aliwalas, Plaintiff's primary care physician, on May 26, 2009. Dr. Aliwalas certified Plaintiff was unable to work due to severity of pain, and multiple contusions and abrasions, as to Plaintiff's FMLA leave through June 30, 2009. Dr. Aliwalas prescribed physical therapy and pain medication. Plaintiff saw Dr. Michael Vella, Syracuse Orthopedic Specialists on June 10, 2009; Dr. Vella recommended a bone scan. Plaintiff had a bone scan on June 15, 2009, and saw Dr. Daniel Murphy, Syracuse Orthopedic Specialists, on June 16, 2009 for pain in her left shoulder and stiffness, swelling and pain in the hand.
21. The bone scan of June 15, 2009 showed increased activity in the left acromioclavicular joint (joint at top of shoulder). On June 19, 2009, after review of x-rays and an examination, Dr. Daniel Murphy found a Grade II AC separation in Plaintiff's shoulder, a contusion sprain of Plaintiff's left hand and "Plaintiff is developing an early RSD." Dr. Murphy recommended referral for evaluation for possible sympathetic block.
22. The APS of Dr. Aliwalas reflects treatment on July 24, 2009, August 14, 2009, and August 31, 2009 for left elbow, left wrist, and left shoulder pain evidenced by swelling, decreased range of motion and decreased strength. Dr. Aliwalas further certified Plaintiff as unable to work for July 24, 2009 through August 31, 2009 for FMLA leave.
23. On July 22, 2009, Plaintiff MacDonald saw Pain Management Consultant Dr. Rina Davis, New York Spine and Wellness Center, July 29, 2009, on referral from Dr. Murphy. Dr. Davis prescribed medication and recommended nerve blocks. Plaintiff had trigger point injections to left trapezius and posterior cervical paraspinals. Plaintiff was to continue physical therapy.
24. On July 30, 2009, Plaintiff scheduled an appointment with Dr. Kevin Setter, Upstate Medical University, State University of New York, for September 17, 2009. An NCV was scheduled for September 9, 2009.
25. On August 7, 2009, Plaintiff MacDonald submitted Plaintiff's Supplemental Disability Application.
26. On August 31, 2009, Dr. Aliwalas requested Plaintiff be excused from work from August 31, 2009 through September 30, 2009, and submitted a Supplemental Physician's Statement of Disability on September 6, 2009.
27. Plaintiff submitted a Supplemental Disability Application on August 31, 2009.
28. Plaintiff continued to receive STD, and was notified that Plaintiff would need to apply for LTD; Plaintiff submitted records from Dr. Aliwalas, Dr. Davis and Dr. Setter.
29. On September 17, 2009, Dr. Kevin Setter examined Plaintiff, and injected the left subacromial region with a mixture of Marcaine, lidocaine and Depo-Medrol. Dr. Setter's impression was Complex Regional Pain Syndrome, or a variant thereof; Dr. Setter also noted signs of impingement syndrome.
30. Nerve blocks were scheduled at New York Spine and Wellness Center on October 1, 2009, October 15, 2009, October 29,2009 and November 12, 2009.
31. Dr. Aliwalas requested that Plaintiff be excused from work from September 30, 2009 through December 31, 2009.
32. In a letter dated October 19, 2009, Anthem Life acknowledged a request for Long Term Disability benefits from Wellpoint on behalf of Plaintiff, and sent forms to Plaintiff to complete and return by November 15, 2009.
33. On October 19, 2009, Dr. Aliwalas provided a letter which certified Plaintiff's temporary total disability due to injuries to bilateral upper extremities especially to the left shoulder:
[Plaintiff's] job involves her sitting at a desk and continuously typing. This requires her to be in the same position for prolonged periods of time and using her arm and hands to process claims. Her left arm has a significant range of motion deficit, and she has severe pain and intermittent severe swelling in her left hand. Due to pain, inability to move and deficit in her fine motor skills, she is unable to perform these job duties. If she tries to type, she will experience pain, and in addition she is not capable to processing the reports with adequate speed or accuracy.
Her current status is temporary total disability, and based on her progress, I will anticipate this status to remain for at least 6-12 months if not longer.
34. Plaintiff saw Dr. Kevin Setter on October 22, 2009. Dr. Setter noted continued pain and CRPS. Dr. Setter deferred to New York Spine and Wellness Center as to treatment of CRPS, and deferred any surgical intervention or injections until after Plaintiff's pain is under better control; Dr. Setter would see Plaintiff on a p.r.n. basis.
35. On October 28, 2009, Plaintiff saw Dr. Aliwalas for re-evaluation of her wrist pain, shoulder pain and elbow pain, and for treatment for depression, anxiety and panic related to the motorcycle accident. Dr. Aliwalas noted decreased grip strength, shiny skin, edema in hand and wrist, and skin discoloration in the fingers. Dr. Aliwalas prescribed Cymbalta.
36. Plaintiff's Claim for LTD benefits was approved on November 13, 2009. The notes of the claim approval state:
Approval Summary: 51 yof claims processor oow since 5-26-2009 due to a motorcycle acct. Clmt did not fx anything but sustained soft tissue/nerve damage to left arm/shoulder/elbow/wrist/hand. Current dx is impingement syndrome/complex regional pain syndrome. Physical exam from 10-2009 notes marked tenderness from left shoulder down to hand. Significant hand swelling with glossy appearance. Clmt. has tried nerve blocks but w/little improvement. Surgery is not suggested or epi injections until pain is better controlled. Clmt's occ is a claim processor which requires freq/constant keying with both hands. Suggest approval and f/u in 2 mths for medical status.
37. Plaintiff applied for Social Security Disability benefits on November 24, 2009.
38. The LTD Policy includes an 180 day elimination period. LTD Benefits began November 22, 2009, and terminated on November 21, 2011.
39. Dr. Setter submitted an APS dated November 18, 2009, noting that Plaintiff was being treated for continued pain, CRPS, by the New York Spine and Wellness Center.
40. Dr. Aliwalas saw Plaintiff on November 30, 2009 and on January 4, 2010, for depression/anxiety/pain and complex regional pain syndrome.
41. On February 13, 2010, Plaintiff's application for Social Security Disability Benefits was approved, and Plaintiff was determined to be entitled to benefits starting on November 1, 2009.
42. On March 1, 2010, Anthem acknowledged receipt of the Social Security Disability Income Award, and requested a refund of the overpayment of $2,361.00.
43. On February 10, 2010, Plaintiff was evaluated by Dr. Kevin Barrett, Mayo Clinic, for the Chiari malformation. Dr. Barrett referred Plaintiff for an MRI, for a pain medicine consultation, and for a consultation with Dr. William Cheshire.
44. On February 10, 2010, Plaintiff was evaluated by Dr. Scott Palmer at the Mayo Clinic for a pain consultation. Dr. Palmer's report states:
PHYSICAL EXAMINATIONDr. Palmer provided a topical compounded cream for pain in the left upper extremity, a prescription for amitryptiline, ordered consultation with Dr. Sletten, Pain Psychology, and consultation with Physical Medicine and Rehabilitation.
The patient was aware, alert and fully oriented in no acute distress. Speech was clear and coherent with no signs of sedation. The patient wore a long-sleeved shirt covering the left arm. She exhibited some mild edema with shininess of skin in the left hand and a somewhat sausage appearance to the digits of that hand. She had some subtle mottling over the forearm which was mildly increased as compared to the right. The left hand was cooler than the right. She did exhibit some pigmented hair around the left elbow that did appear asymmetric from the right side. The patient had at least antigravity strength throughout the left upper extremity. However, she had significant guarding that made it difficult to determine if she had any mild motor deficits. She exhibited allodynia to palpation really throughout the left upper extremity. She was able to elevate her arm at the shoulder to horizontal but she had increased pain trying to go above that. Otherwise, motor function was intact throughout. Sensation was intact to light touch throughout. Gait was normal.
45. Plaintiff had an MRI of the cervical spine at the Mayo Clinic on February 17, 2010, and a neurology consultation with Dr. William Cheshire, Mayo Clinic, on February 25, 2010. The MRI report states:
No significant interval change. Postoperative change lower cervical spine, including C6-C7 ACDF. Artifact associated with surgical hardware limits evaluation o the lower cervical region. Inferior cerebellar tonsillar ectopia (Chiari 1 malformation), more marked on the right. Please refer to
report of today's MCJ MR examination of the brain for further evaluation. No syrinx within the cervical or upper thoracic spinal cord; current field-of-view extends to inferior T5 level. Mild upper cervical spondylosis, including mild narrowing of the right C3-C4 and C4-C5 neuroforamina by combination of facet arthropathy, uncovertebral disease and right posterolateral osteophyte. No significant central spinal stenosis or cord compression.
46. The report of Dr. Cheshire states:
HISTORY OF PRESENT ILLNESS
......Ever since the accident she has continued to have swelling throughout the left upper extremity without evidence of venous obstruction. Additionally, she has severe constant pain throughout the left arm as well as involving the lateral neck and shoulder regions, with pain maximal in the elbow and wrist. The quality of pain is burning, aching and stabbing and she will awaken due to muscle spasms in the arm. She is unable to grasp with the left hand or lift the arm mainly due to pain. All of the arm is exquisitely sensitive to touch, especially contact with clothing or contact with cold objects. Her arm becomes purple or blotchy and is alternately hot or cold. There has been no unusual sweating. She has noted some change in hair growth at the elbow.
Over time the intensity and location of pain have not substantially changed. No medication has helped until recently, the topical preparation given to her buy Dr. Palmer has been very helpful, containing amitriptyline, gabapentin, lidocaine and ketamine. Previously she has undergone a series of stellate and perhaps other blocks, and had tried a TENS unit, hydrocodone, oxycodone, duloxetine, pregabalin, clonidine and amitriptyline......
NEUROLOGIC EXAMINATION SUMMARY
Comprehensive neurologic examination findings are detailed on the neurology examination sheet. Pertinent findings include: Intact upper extremity reflexes, and no evidence of Horner syndrome. Moderately severe mechanical allodynia as diagrammed encompassing left C3-T4 dermatomes along with absence of sensibility a pinprick or coldness in the same territory. Strength, at least initially, appears normal in most major muscle groups in the left upper extremity except for muscles of the hand
which are more difficult to evaluate due to pain. The left arm is cooler to touch, slightly pale, but there is no abnormal sweating. The patient guards and is not use (sic) her left arm. There is mild dependent edema in the left arm.
REVIEW OF DATA:
3-phase bone scan is normal without reflex sympathetic dystrophy changes in the left upper extremity.
......
IMPRESSION:
1. Left brachial plexus stretch injury May 2009 complicated by ongoing dyesthetic neuropathic pain. Associated vasomotor changes are consistent with complex regional pain syndrome. It may be concluded that the cervical nerve roots are structurally continuous i.e. the patient did not sustain a cervical root avulsion, since her deep tendon reflexes today and outside nerve conduction studies and somatosensory evoked potentials were intact.
2. Symptomatic Chiari one malformation with exertional headaches.......
RECOMMENDATIONS:
The patient is appropriately scheduled for decompression of her Chiari one malformation. It is uncertain whether the procedure will improve her left arm pain. I recommend she continue with the compounded preparation prescribed by Scott Palmer, M.D. and discussed the further option of a trial of a cervical spinal cord stimulator should her pain persist postoperatively. I have added vitamin B12 level to her schedules laboratory draw in March. She is scheduled for followup with Dr. Barrett.
47. Surgery to correct the Chiari one malformation was performed on March 16, 2010 at the Mayo Clinic.
48. Dr. Aliwalas submitted an APS dated April 9, 2010, which stated that Plaintiff is unable to work due to constant pain from June 16, 2009 onward; the APS states that Plaintiff is disabled from Plaintiff's job and any other work, and Dr. Aliwalas does not expect a fundamental change in the future.
49. Dr. John H. Kalosis, Jr., American Medic of Charlotte County, PA, submitted medical records of an evaluation dated July 26, 2010, which states Dr. Kalosis' assessment of CRPS and Chiari malformation, and associated stress, anxiety and depression.
50. On August 4, 2010, Plaintiff was evaluated by Dr. Saeed Shahzad on referral from Dr. Kalosis, for left arm pain, and complex regional pain syndrome. Dr. Shahzad's report states:
HISTORY OF PRESENT ILLNESS:Dr. Shah submitted an APS dated February 3, 2011, reflecting his opinion that Plaintiff is totally disabled from Plaintiff's job and any other work, and Dr. Shah does not expect a fundamental or marked change in the future. Dr. Shah treated Plaintiff on August 4, 2010, and November 22, 2010, with a next appointment scheduled on February 22, 2011. Dr. Shah prescribed medication to treat Plaintiff: amitriptyline, Flexeril, Xanax and hydrocodone. Dr. Shah states a DOT Class 5 physical impairment: severe limitation of functional capacity; incapable of minimum (sedentary) activity (75-100%). Dr. Shah further states a DOT Class 3 mental/nervous impairment: Patient is able to engage in only limited stress situations and engage in only limited interpersonal relations (moderate limitations), defining "stress" as "under stress from left arm pain". Dr. Shah indicates Plaintiff is unable to work from August 4, 2010 onward because of continuing pain and medication. As to Question 9, "Work Limitations," Dr. Shah indicates only: Other: Patient unable to work. Dr. Shah indicates that Plaintiff is not suitable for rehabilitation services, and did not recommend vocational counseling or retraining.
......The patient states her left arm has pain, she does not use it. She is disabled because of the pain and weakness of that arm. The patient states if she tries to use that arm it swells up, becomes red and very painful. The patient is on disability now. The patient denies pain in right upper or both lower extremities. The patient states once in a while she does feel some pain in neck. She is status post cervical fusion many years ago. The patient denies any difficulty with gait or balance. The patient denies any difficulty with sleep. The patient denies any dysarthria, diplopia or dysphagia.
ASSESSMENT AND PLAN:
......
Her left arm pain is under good control with medications, including amitriptyline, Flexeril, Xanax and hydrocodone p.r.n. Her headaches have improved. We will continue her Topamax 75 mg daily for prevention of headache episodes. The patient can continue to take her amitriptyline 25 mg one tablet at night. I will followup and see patient in three months.
51. On April 5, 2011, Plaintiff saw Dr. Amy Mellor, Neurology Associates of Charlotte County, for a second opinion as to Complex Regional Pain Syndrome. Dr. Mellor's records state "current pain control satisfactory." Dr. Mellor observed edema in Plaintiff's left upper extremity. Dr. Mellor prescribed medication, and scheduled a follow up visit in three months. Plaintiff returned on July 12, 2011.
52. Dr. Mellor submitted an APS on September 16, 2011, which reflects treatment with medication for CRPS and depression/anxiety. Dr. Mellor states Plaintiff's Physical Impairment as a Class 5 DOT impairment: Severe limitation of functional capacity; incapable of minimum (sedentary) activity (75-100%). Dr. Mellor states a Class 3 mental/nervous impairment: Patient is able to engage in only limited stress situations and engage in only limited interpersonal relations (marked limitations), defining "stress" as "depression, anxiety over disability." Dr. Mellor states that Plaintiff is unable to perform Plaintiff's job or any other work, and Dr. Mellor does not expect a fundamental or marked change in the future. Dr. Mellor states Plaintiff is unable to work from April 4, 2011 onward due to continuing pain. As to "work limitations," Dr. Mellor states only: Other: Unable to work. Dr. Mellor indicates Plaintiff is not a candidate for rehabilitation services, and does not recommend vocational counseling and/or retraining.
53. On August 29, 2011, Anthem Life advised of Plaintiff MacDonald that under the terms of Plan, beyond 24 months Plaintiff must be disabled not only from her own occupation but also from any occupation, and notified Plaintiff of the transition date was November 22, 2011. Defendant requested a completed Attending Physician Statement, a completed Claimant Questionnaire form, Medical records from all treating physicians from December 1, 2010 to present, a signed Authorization for Release of Information form, and a current resume or detailed work history summary. Plaintiff responded to Defendant's request by providing the requested documents.
54. On September 30, 2011, Beth Szopinski, R.N., noted that the current available clinical records did not support the presence of a functional impairment:
From at least 2010 there has been no objective assessment of left arm. No testing to confirm dx. There is no assessment of skin, no grip strength, no assessment of color, atrophy, or changes in hair and nail growth. EE states she is managing w/her pain meds. Per EE after activity her arms swells and gets red however there is no mention of any of these findings by any of the providers. EE performs household activities. EE is noted to have depression and anxiety/stress however there is no referral or treatment w/mental health provider. Available clinical does not provide objective assessment of deficit. There is subjective comment and lack of clinical assessment of left upper extremity. DCM might consider contact Dr. Mellor to ask what the objective assessment is and to obtain the actual notes not only the APS slips to see if an objective assessment can be provided. If no objective assessment documented and MD cannot verbalize objective findings, what is she predicating inability on?
55. On September 30, 2011, Anthem Life requested a prescription/release for a Functional Capacity Evaluation from Dr. Mellor.
56. Anthem Life referred Plaintiff for a Functional Capacity Evaluation (FCE), which was conducted on 10/18/2011 to determine Plaintiff's general abilities and limitations. The FCE was performed by Gabriel A. Weber, P.T/Cert. MDT.
57. The only listed defects in the FCE were "limited range of motion and strength in the left arm", "guarded left arm and hand movements", and "decreased left arm swing during ambulation."
58. On October 20, 2011, Nancy O'Reilly reviewed the FCE, but noted no handling or fingering was indicated in the testing performed; she requested an update from the provider.
59. On October 21, 2011, the provider responded to the request, pointing out information on pages 3 and 9, and further providing a corrected copy of the report.
60. On October 25, 2011, the provider responded that the information requested was not tested and not included in the FCE protocol.
61. Plaintiff was not rescheduled for additional testing as to handling and fingering.
62. On October 27, 2011, Nancy O'Reilly noted that the FCE states "light work" capacity, but the "own occupation" is "sedentary."
63. Nancy O'Reilly, M.S., CRC, CCM performed a Transferable Skills Assessment (TSA) and Labor Market Survey (LMS) on October 27, 2011. The TSA states the following transferable skills:
The ability to understand instructions and underlying concepts, and to reason and make judgments.The TSA states:
The ability to understand the meaning of words and to use them effectively, comprehend language, understand the relationship between words and the understanding of words and understand the meaning of whole sentences.
The ability to understand simple instructions.
The ability to learn simple processes.
The ability to perform the same task over and over again.
The ability to set and meet standards.
The ability for simple verbal and written communication.
The ability to use a telephone.
The ability and knowledge of how to observe and document observations.
The ability to work effectively as a team member.
The file review and transferable skills assessment has demonstrated the presence of physical and mental capacity which would allow Mrs. MacDonald to perform other occupations as they exist in the national and her local economy.In the TSA, Nancy O'Reilly identifies five examples of occupations that Plaintiff had the potential to perform, based on her education, work history and physical capacity. Two of those examples are classified as sedentary, and three are classified as light work:
Information Clerk
Hotel Clerk
Weight Reduction Specialist
Tanning Salon Attendant
Tourist Information Assistant
64. On November 8, 2011, Defendant Anthem Life determined that Plaintiff MacDonald was not disabled from any gainful occupation, and therefore LTD benefits were terminated effective November 22, 2011.
65. Plaintiff MacDonald appealed the decision terminating her claim in a letter of March 21, 2012.
66. Anthem Life acknowledged receipt of Plaintiff's request for review on March 30, 2012.
67. On appeal, Anthem Life scheduled an IME to be performed by Dr. Stuart B. Krost; Dr. Krost completed a Physical Capacities Assessment (PCA) form dated May 24, 2012, and furnished a separate IME report dated May 4, 2012.
68. In a letter of July 9, 2012, Defendant upheld its decision to terminate Plaintiff's benefits. Anthem Life acknowledged Plaintiff's functional restrictions and limitations as supported by the available clinical evidence:
Capacity to perform light duty work as defined by the DOT
Limited left upper extremity use
No lifting more than 20 pounds on an occasional basis and 10 pounds on a repetitive basis with the right arm
Avoid repetitive tasks above the shoulder level
No restrictions for standing or sitting or use of foot controls.
69. The DOT defines light work:
Light Work - exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently, and/or a negligible amount of force constantly (Constantly: activity or condition exists 2/3 or more of the time) to move objects. Physical demand requirements are in excess of those for Sedentary Work. Even though weight lifted may be only a negligible
amount, a job should be rated Light Work: (1) when it requires walking or standing to a significant degree; or (2) when it requires sitting most of the time but entails pushing and/or pulling of arm or leg controls; and/or (3) when the job requires working at a production rate pace entailing constant pushing and/or pulling of materials even though the weight of those materials is negligible. NOTE: The constant stress and strain of maintaining a production rate pace, especially in an industrial setting, can be and is physically demanding of a worker even though the amount of force exerted is negligible.
70. On appeal, Plaintiff provided additional medical information, photographs of the severe swelling in her left hand, and articles related to CRPS.
71. In the IME report, Dr. Stuart B. Krost states:
IMPRESSION:Dr. Krost's IME Report incorporates the FCE dated October 18, 2011. ___ Dr. Krost's Physical Capacities Assessment of May 24, 2012 states:
...... The patient has progressively developed reactive myofascial spasm on the cervical region related to the left. The patient has clinical signs and symptoms of a reflex sympathetic dystrophy of the left upper extremity. The patient is status post cervical fusion with post-procedural improvement. My observation of the claimant were consistent with the physical examination and medical records.
Patient has significant limitations of the left arm for lifting and carrying objects or fine coordination tasks. She has capacity to work light duty tasks based on FCE. She would best be fitted for a job that limits left upper extremity use. This would limit her exacerbations and missed days of work for medical care. I would recommend no lifting more than 20 lbs. on a occasional basis and 10 lbs. on a repetitive basis for the right arm (dominant arm). There are no restrictions for standing or sitting or use of foot controls. I would recommend avoiding repetitive tasks above the shoulder level. Within these restrictions she can return to an eight-hour workday.
Never use left hand to handle (seizing, holding, grasping, or turning with the hands); never use left hand to finger (picking, pinching, or otherwise working primarily with fingers; also includes keyboarding); never use left hand to feel (noting attributes of objects by touching with skin); Could not use left hand to perform a simple grasp, firm grasp or fine manipulation.In the PCA, Dr. Krost estimates Plaintiff's abilities as to lifting and carrying, climbing, balance, stooping, kneeling, crouching, crawling, immediate reach, reach above shoulders, handling, fingering and feeling. Dr. Krost states that Plaintiff can perform repetitive actions with right upper extremity only; Plaintiff can "simple grasp" with her right hand, but not left hand, can "firm grasp" with her right hand, but not left hand, and can perform "fine manipulation" with her right hand, but not left hand. Dr. Krost further states Plaintiff cannot return to her former occupation, but can return to work full-time according to the restrictions defined above [in the PCA form].
72. Dr. Krost specified different restrictions in the PCA compared with the restrictions and limitations previously used to perform the October 27, 2011 TSA. That TSA was based only on the following restrictions:
Limited range of motion and strength in left arm
Guarded left arm and hand movements
Decreased left arm swing during ambulation
73. On May 22, 2014, Kelly Tillotson, Sr. Appeals Specialist, Custom Disability Solutions, recommended to Kristie Woods, Quality Management Specialist/Appeal Coordinator, that Plaintiff be referred to independent vocational specialist for TSA/LMS, since Wellpoint already completed a TSA/LMS.
74. On May 24, 2012, Kristie Woods referred Plaintiff's appeal Wright Rehabilitation Services for an "any occupation" analysis based on the restrictions/limitations in the IME report of Dr. Krost.
75. A new TSA was never performed; on June 15, 2012, Wright Rehabilitation Services performed only a second LMS, based on the restrictions in the FCE of October 18, 2011. The LMS states:
The following listing is not intended to be all-inclusive nor is it put forth that any individual listing for the identified occupations would be appropriate for Mrs. MacDonald. The following are examples of occupations that Mrs. MacDonald has the potential to perform Based on her education, work history and physical capacity. The identified occupations are performed at the sedentary physical demand level can be expected to exist within approximately a 50-mile radius of Mrs. MacDonald's home in North Port, FL.
76. Information Clerk positions were not found in the targeted area.
77. The position of Hotel Clerk described in the second LMS includes tasks that may be done by computer, or may be done manually. The 4Points Sheraton lists "basic computer skills/mouse" among its requirements.
78. The position of Weight Reduction Specialist includes "entering data on client record" but does not specify by what means.
79. The position of Tanning Salon Attendant includes the requirement of "inputting computer commands for tanning."
80. The position of Tourist Information Assistant requires customer service, light clerical and phone tasks. "Light clerical" tasks such as composing letters in response to inquiries, and maintaining personnel, license-sales and other records are tasks that may or may not involve computer use. III. Discussion A. Standard of Review
The parties disagree as to the standard of review that applies to Defendant Anthem Life's decision to deny LTD benefits to Plaintiff MacDonald under the "any occupation" definition of disability.
Plaintiff MacDonald admits that Defendant Anthem Life has discretionary authority to determine eligibility for benefits and to interpret the terms and provisions of the policy. Plaintiff MacDonald further argues that the final decision to deny LTD benefits under the "any occupation" provision was made by Kristie Y. Woods, who is employed by Wellpoint, the parent company of Defendant Anthem Life. Anderson v. Unum Life Insurance Company of America, 414 F.Supp.2d 1079 (M.D. Ala. 2006)(de novo standard applied; final benefits decision made by Unum, a subsidiary of UnumProvident).
Defendant Anthem Life responds that an entity vested with discretionary authority may delegate that authority to another entity without losing discretion. Aschermann v. Aetna Life Ins. Co., 689 F.3d 726, 728-30 (7th Cir. 2012); Zurndorfer v. Unum Life Ins. of America, 543 F.Supp.2d 242, 256-57 (S.D. N.Y. 2008). Defendant argues that Kristie Y. Woods was an authorized agent of Anthem Life, and was delegated discretionary authority to make the final benefit decision. Defendant argues that there is evidence that Kristie Y. Woods worked for and on behalf of Anthem Life, as all correspondence to Plaintiff is on Anthem Life letterhead, including the final determination letter.
The Court finds that the final benefits decision was made by an authorized agent of Defendant Anthem Life. The insurance policy conferred discretionary authority on Anthem Life to determine eligibility for benefits, and to construe the terms of the policy to make a benefits decision. The Court will therefore review the decision of the administrator under the arbitrary and capricious standard of review. B. Plaintiff's Claim for LTD Benefits
Under ERISA, the plaintiff has the burden of showing she is entitled to benefits under the terms of the Plan. Horton v. Reliance Standard Life Ins. Co., 141 F.3d 1038, 1040 (11th Cir. 1998). Plaintiff MacDonald applied for LTD benefits on November 22, 2009; Defendant Anthem Life granted LTD benefits under the "own occupation" definition of disability. At the end of the 24-month "own occupation" period, Defendant Anthem Life terminated Plaintiff's claim for continued LTD benefits. Plaintiff MacDonald appealed the decision; after review by a person who was not involved in the decision to deny LTD benefits under the "any occupation" definition, Defendant Anthem Life again denied LTD benefits. The denial was based on a functional capacity evaluation, an independent medical examination, a transferrable skills analysis, and a labor market survey. Defendant Anthem Life determined that Plaintiff MacDonald was capable of performing other "gainful occupations" and therefore no longer met the Policy's definition of disability.
Indicia of arbitrary and capricious decision may include a lack of substantial evidence, procedural irregularities, a mistake of law, bad faith and conflict of interest by the fiduciary. Sandoval v. Aetna Life and Cas. Ins. Co., 967 F.2d 377 (10th Cir. 1992); Rekstad v. U.S. Bancorp, 451 F.3d 1114, 1119-20 (10th Cir. 2006): Adams v. SBC Communications, Inc., 200 Fed. Appx. 766, 771-774 (10th Cir. 2006).
A pertinent conflict of interest exists where the ERISA plan administrator both makes eligibility decisions and pays awarded benefits out of its own funds. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008). Where a conflict exists and a court must reach step six, "the burden remains on the plaintiff to show the decision was arbitrary; it is not the defendant's burden to prove its decision was not tainted by self-interest." Doyle v. Liberty Life Assurance Co., 542 F.3d 1352,1360 (11th Cir. 2008). "The effect that a conflict of interest will have...will vary according to the severity of the conflict and the nature of the case: [the Court] look[s] to the conflict's 'inherent or case-specific importance.'" Blankenship v. Metropolitan Life Ins. Co., 644 F.3d 1350, 1355 (11th Cir. 2011)(citing Glenn, 554 U.S. at 118-119).
Even where a conflict of interest exists, courts still "owe deference" to the plan administrator's "discretionary decision-making" as a whole. Doyle, 542 F.3d at 1363; see also Glenn, 554 U.S. 1210 (Roberts, C.J., concurring in part and concurring in the judgment) (noting the "deference owed to plan administrators when the plan vests discretion in them"). 1. Substantial Evidence a. Vocational Assessment
Plaintiff MacDonald was granted LTD benefits based on Plaintiff's inability to perform the duties of her own occupation; after her accident, Plaintiff was treated for complex regional pain syndrome and impingement in her left arm. Plaintiff's work as a medical claims processor included constant keyboarding, which Plaintiff could not do.
After twenty-four months, under the Policy, the definition of disability becomes disability from performing "any occupation" rather than "own occupation." Defendant Anthem Life argues that Defendant accepted the limitations identified in two current medical examinations, and obtained detailed vocational analyses which confirmed the existence of several jobs that Plaintiff could perform within those limitations. The denial of LTD benefits under the "any occupation" definition of disability was based on the FCE, the TSA, the LMS and the IME, which provide a reasonable basis for Anthem Life's conclusion that Plaintiff could perform other gainful occupations. Defendant argues that Plaintiff did not provide updated medical evidence to support her claim, the most updated medical evidence supported Plaintiff's ability to perform up to a light level of work (in excess of the sedentary level of Plaintiff's own occupation).
Courts have recognized that plan administrators routinely rely on FCE's. Townsend v. Delta Familv-Care Disability and Survivorship Plan, 295 Fed. Appx 971 (11th Cir. 2008). A functional capacity evaluation is the best means of assessing an individual's functional level. Lake v. Hartford Life and Acc. Ins. Co., 320 F.Supp.2d 1240, 1249 (M.D. Fla. 2004). The FCE which shows that Plaintiff MacDonald can perform light work with some restrictions supports Defendant Anthem Life's determination that Plaintiff was not disabled from any gainful work. See Muzvka v. UNUM Life Ins. Co. of Am., 195 Fed. Appx. 904 (11th Cir. 2006).
Defendant Anthem Life argues that Dr. Krost's findings in the IME and PCA are consistent with the FCE findings as to Plaintiff's ability to perform light work, and Defendant Anthem Life obtained a more in-depth vocational assessment on appeal. Rehabilitation Counselor Jane Lynn Veal, LA, CRC, spoke with fifteen employers within fifty miles of Plaintiff's home to confirm that, with her restrictions, Plaintiff could perform the five occupations identified, that jobs existed in the targeted area, and that the wages exceed that of the target wage for "gainful" employment under the Policy.
Defendant Anthem Life argues that the medical and vocational evidence on which Defendant relied was undisputed; Anthem Life's decision represents an informed judgment, and articulates an explanation consistent with the relevant facts surrounding Plaintiff's claim for benefits. Defendant argues that Defendant's decision is reasonable and should be upheld.
Vocational evidence, such as the TSA and LMS, is an "effective method of reaching an informed decision as to a claimant's work capability." Richey v. Hartford Life & Accident Insurance Company, 608 F.Supp.2d 1306 (M.D. Fla. 2009). A claims administrator reviewing benefits eligibility under an "any occupation" standard is not required to "collect vocation evidence" in order to "prove there are available occupations for the claimant." Archible v. Metropolitan Life Ins. Co., 85 F.Supp.2d 1203, 1220 n.13 (S.D. Ala. 2000). The burden is on the claimant to provide the administrator with proof of continued disability. b. Opinions of Treating Physicians
Defendant Anthem Life argues the opinions of Plaintiff's treating physicians were outdated, inconsistent with the rest of the medical evidence, and did not address Plaintiff's current level of functioning. Defendant Anthem argues that, where the opinion of the treating physician is conclusory, and the medical consultant provided a detailed explanation of why the plaintiff was capable of work, the reliance of the claim administrator on the opinion of the medical consultant was reasonable and correct. Blankenship v. Metropolitan Life Ins. Co., 644 F.3d 1350, 1356 (11th Cir. 2011)(where plaintiff's own doctors offer different medical opinions than independent medical consultants, plan administrator may give different weight to those opinions without acting arbitrarily and capriciously); Gipson v. Administrative Committee of Delta Air Lines, Inc., 350 Fed. Appx. 389, 395 11th Cir. 2009); Herring v. Aetna Life Ins. Co., 2013 WL 1798263, *2-3 (11th Cir. 2013)(lt is reasonable for an administrator to rely on the findings of two reviewing physicians in conjunction with an IME and vocational report despite the treating physician's opinion that plaintiff was disabled).
To the extent that other evidence in the record suggests Plaintiff is disabled, the plan administrator is entitled to weigh the evidence and resolve conflicting evidence about the claimant's disability. Townsend v. Delta Family-Care Disability and Survivorship Plan, 295 Fed. Appx. 971, 977 (11th Cir. 2008). c. Consideration of Award of Social Security Disability Benefits
Defendant Anthem Life argues that the approval of Social Security benefits may be considered, but is not conclusive on whether a claimant is also disabled under the terms of an ERISA plan. Rav v. Sun Life & Health Ins. Co., 443 Fed. Appx. 529, 533 (11th Cir. 2011). Social Security decisions are not binding on ERISA plan administrators, and are just one factor to consider in evaluating an ERISA disability determination. Paramore v. Delta Air Lines. Inc., 129 F.3d 1446, 1452 n.5 (11th Cir. 1997). Social Security decisions are determined by a uniform set of federal criteria, while benefits under an ERISA plan is controlled by the terms of the Plan, and the definition of ERISA disability usually differs from the SSA definition. Black and Decker Disability Plan v. Nord, 538 U.S. 822, 833 (2003).
In the July 9, 2012 determination letter, Defendant Anthem Life explained that entitlement to Social Security Disability Income benefits is based on a different set of guidelines, and often different medical evidence, which can lead to differing conclusions. 2. Procedural Irregularities a. Selective Review of Records
Plaintiff Macdonald argues that, in her file review, Nurse Szopinski ignored the medical records of Dr. Mellor, which include objective evidence of complex regional pain syndrome, edema and decreased range of motion, as of July, 2011.
Plaintiff argues that when Dr. Krost completed a PCA, Dr. Krost provided a new set of limitations; therefore Defendant Anthem Life should have referred the file for a new TSA to determine whether Plaintiff could perform the previously identified occupations or any other occupations. Plaintiff argues that this case is just like Rementer v. Metropolitan Life Insurance Company, 2006 WL 66721, *3 (M.D. Fla. January 10, 2006); see also Williams v. United of Omaha Life Insurance Co., 2013 WL 5519525, *19 (N.D. Ala. September 30, 2013). Plaintiff MacDonald requests that the Court find that the absence of supporting vocational analysis renders the decision to deny benefits under the "any occupation" definition arbitrary and capricious.
Plaintiff MacDonald argues that, without the use of her left hand, Plaintiff could not perform the five occupations identified in the claim file, which are defined by the DOT, the Occupational Access System (OASYS), the U.S. Department of Labor's 0*Net, and America's Career InfoNet. Plaintiff argues that three of the occupations require computer usage, and the other two require extensive use of hands to clean and maintain equipment, physically assist customers, carry baggage, and perform other such tasks.
Defendant Anthem Life responds that Dr. Krost explicitly found that Plaintiff could perform full-time light work despite some limitations in the use of her left arm. During the FCE, Plaintiff MacDonald admitted to some use of her left arm, despite some limitations in use. Dr. Krost's PCA contains more specific limitations, but Dr. Krost does not opine that Plaintiff MacDonald could not use her left arm at all. Dr. Krost states that Plaintiff needed to limit the use of her left arm, and that Plaintiff could work full-time at a light level with that limitation. Dr. Krost's clinical findings reflect restrictions, not a complete inability to use the left arm.
In light of the consistency of Dr. Krost's limitations and clinical findings with the FCE, the Court finds it was reasonable for Defendant Anthem Life to rely on the jobs identified in the TSA. Plaintiff did not submit contrary vocational evidence and did not contest the jobs identified in the TSA during her appeal. Plaintiff MacDonald did not assert Plaintiff could not use her left arm at all, and did not provide medical records supporting that extreme limitation.
Other courts have held that the consideration of vocational evidence is not necessary where the evidence in the administrative record supports the conclusion that the claimant does not have a disability which prevents her from performing some identifiable job. Hufford v. Harris Corp., 322 F.Supp.2d 1345, 1359 (M.D. Fla. 2004)(citing Schindler v. Metro. Life Ins. Co., 141 F.Supp.2d 1073, 1082 (M.D. Fla. 2001)). When, as here, the evidence shows that a claimant is capable of light and sedentary work, and the claimant's previous employment was not highly skilled or technical, the plan administrator need not conduct a vocational assessment or consider vocational evidence to determine that a claimant is not disabled under the "any occupation" standard. 3. Conflict of interest
Defendant Anthem Life argues that, in considering whether a structural conflict of interest affected Defendant's's benefit determination, the burden remains on Plaintiff to show the decision is arbitrary; it is not Defendant's burden to prove its decision is not tainted by its self interest. Defendant Anthem Life, argues that, in this case, the decision to terminate LTD benefits under the "any occupation" definition was supported by corroborating medical and vocational reviews. Plaintiff has not marshaled any evidence that the structural conflict affected the claim decision. IV. Conclusions A. Defendant's Motion for Summary Judgment
Wellpoint delegated discretion to Anthem Life to determine eligibility for LTD benefits, and to determine claims. The Court concludes that Defendant's decision to deny LTD benefits under the "any occupation" definition of disability to Plaintiff MacDonald was not "wrong"; if the decision is found to be "wrong," the decision to deny further LTD benefits was reasonable. The Court therefore grants Defendant's Motion for Summary Judgment. B. Plaintiff's Motion for Summary Judgment
In determining the standard of review, the Court examined the Plan documents, and found that Wellpoint delegated discretion to Defendant Anthem Life. The Court has concluded that Anthem Life's decision to deny LTD benefits to Plaintiff MacDonald was not wrong. The Court therefore denies Plaintiff's Motion for Summary Judgment. Accordingly, it is
ORDERED that Defendant's Motion for Summary Judgment (Dkt. 35) is granted; Plaintiff's Motion for Summary Judgment (Dkt. 39) is denied. The Clerk of Court shall enter a final judgment in favor of Defendant Anthem Life Insurance Company and against Plaintiff Barbara J. MacDonald, and close this case.
DONE and ORDERED in Chambers, in Tampa, Florida on this 26th day of September, 2014.
/s/_________
ELIZABETH A. KOVACHEVICH
UNITED STATES DISTRICT JUDGE
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