Summary
finding decision to be arbitrary and capricious in part due to use of generic "administrative assistant" DOT occupation without considering evidence that plaintiff had heavier lifting requirements
Summary of this case from Rucker v. Life Ins. Co. of North AmericaOpinion
Case No. 2:09-CV-290.
May 17, 2010
OPINION AND ORDER
I. INTRODUCTION
This matter is before the Court on Defendant, Hartford Life and Accident Insurance Company's ("Hartford") Motion for Judgment on the Administrative Record (Doc. 17) and on Plaintiff, Connie Bowers's ("Bowers") Motion for Judgment on the Administrative Record (Doc. 19.) Pursuant to the Employee Retirement Income Security Act ("ERISA"), Bowers claims entitlement to long-term disability ("LTD") benefits from the Long Term Disability Plan ("the Plan") established by her employer, Kenworth Truck Company, a division of PACCAR, Inc. ("PACCAR"). Bowers contends that Hartford wrongfully terminated her LTD benefits. For the reasons set forth below, Hartford's Motion for Judgment on the Administrative record is DENIED and Bowers's Motion for Judgment on the Administrative Record is GRANTED in part.
II. BACKGROUND A. Plaintiff's Occupation
Bowers is fifty-five year old high school graduate. For a period of seventeen years, she was employed by Kenworth Truck Company ("Kenworth"), a division of PACCAR. (HLI00550.) During the first six years of her employment with Kenworth, Bowers worked as an office assistant. For the following ten years, Bowers was employed as an assembly specialist, who worked in the yard on the equipment. According to Bowers, after she underwent shoulder surgery, and because of a diagnosis of arthritis in her hands, she became a Senior General Office Administrator, a position which she held for one year. As a Senior General Office Administrator, Bowers's duties were primarily clerical, and included using a computer, calculator, telephone and filing. (HLI00523-24.) The physical demands to fulfill these duties include sitting for six hours, standing for one hour each day, walking for an hour each day, with the ability to alternate between standing and sitting as needed, and pushing, pulling, lifting, or carrying up to 15 pounds. Id. The position also required occasional balancing, stooping, kneeling, and reaching. Id. The individual who completed the Physical Demands Analysis for Hartford specifically noted that this position can not be modified. (HLI00118; HLI00523)B. The ERISA Plan
As an employee of PACCAR, Bowers participated in an employee welfare benefit plan that is insured by Hartford and governed by ERISA. Pursuant to the terms of the insurance policy, Policy Number 83123837 (the "Policy"), Bowers was potentially eligible to receive short-term disability ("STD") and LTD benefits. (HLI00014-41.) The Policy defines "Disability" to mean that "during the Elimination Period and the following 24 months," the insured is "continuously unable to perform the Material and Substantial Duties of [the insured's] Regular Occupation and . . . not Gainfully Employed." (HLI00020) (emphasis in original). Under the terms of the Policy, "Material and Substantial Duties" are "the necessary functions of [the insured's] Regular Occupation which cannot be reasonably omitted;" and "Regular Occupation" is defined as "the occupation that [the insured] is performing for income or wages on [the] Date of Disability. It is not limited to the specific position [the insured] held with [the] Employer. (HLI00034) (emphasis in original). The Policy gives to Hartford "sole discretionary authority . . . to determine the insured's] eligibility for benefits and to interpret the terms and provisions of the plan and any policy issued in connection with it." (HLI00036.)
C. Plaintiff's Disability and Application for Benefits
In July 2007, Bowers experienced "a significant pull in her low back" that was followed by "constant pain" after lifting a bag of mulch. (HLI00242.) Initially, Bowers sought treatment from Dr. Jeffrey Hanes, a chiropractor. (HLI00291-93.) Dr. Hanes referred Bowers for an MRI. The physician reviewing the MRI reached the following conclusions:
1. Broad-based disc bulging at L4-L5 without evidence of neural compression. Coexisting degenerative facet arthropathy produces bilateral foraminal stenosis of moderate severity and is accompanied by right-sided facet capsulosynovitis.
2. Left-sided extraforaminal disc protrusion involving L2-L3 and L3-L4, exhibiting foraminal encroachment and abutment of the L2 and L3 exiting nerves.
The findings of the MRI were as follows:
L2-L3 disc dehydration is noted. Left posterolateral subligamentous disc protrusion extends into the left neural foramen, resulting in abutment of the L2 exiting nerve.
L3-L4 lefts-sided extraforaminal disc protrusion is demonstrated, extending slightly into the neural foramen, resulting in abutment of the L3 left exiting nerve. Degenerative facet arthropathy produces bilateral foraminal stenosis of mild severity.
L4-L5 disc dehydration is noted. Broad-based posterior annular bulging is demonstrated without evidence of neural compression. Corresponding extradural defect is noted on the 3D MR myelogram data set. Degenerative facet anthropathy produces bilateral foraminal stenosis of moderate severity and is accompanied by right-sided facet capsular edema. A small extraarticular synovial cyst is demonstrated, communicating with the posterior aspect of the right facet articulation.
L5-S1: Degenerative facet arthropathy is demonstrated without substantive formaminal stenosis. The disc appears hydrated and there is no evidence of disc placement.
(HLI00289.)
(HLI00289.) On August 7, 2007, Hartford sent to Bowers a letter approving her claim and awarding Bowers STD benefits. Bowers submitted the MRI, dated July 31, 2007, along with an Attending Physician's Statement of Continued Disability, dated August 30, 2007, to Hartford with her application for benefits and to supplement her file. On September 22, 2007, Hartford notified Bowers that it had extended her STD benefits through October 25, 2007. (HLI00559-60.) Hartford further informed Bowers that if her claim continued beyond the STD benefits period, it would be "processed according to the provisions of the Long Term Disability (LTD) policy" and that she could expect to hear from Hartford as they continued to evaluate Bowers's claim as it transitioned to LTD. (HLI00559.) On November 27, 2007, Hartford requested Bowers's medical records from Dr. Bonasso. On November 30, 2007, before Dr. Bonasso responded to Hartford's request, Hartford approved Bowers's claim for LTD benefits. (HLI00535-36.)
The letter specified that Bowers's benefits commenced July 17, 2007 and were to run through August 1, 2007. (HLI00578.)
D. Continued Medical Treatment
Meanwhile, Bowers continued to seek treatment for her physical condition. After reviewing the results of the MRI, Dr. Hanes referred Bowers to a neurosurgeon. (HLI00287, 289-90.) The initial neurosurgeon to whom Dr. Hanes referred Bowers was not on her health insurance plan. (HLI00242.) Bowers sought treatment from her family physician, Dr. Lawrence Frick, M.D. Id. August 24, 2007, Bowers told Marsha Ward, Dr. Frick's nurse practitioner that she was experiencing "pain that radiates around the right buttock and the right leg feels weak at times. No numbness or tingling past her knee. No tripping or recent falls." (HLI00242.)On September 25, 2007, Bowers had an appointment with Dr. Christian Bonasso, a neurosurgeon. (HLI00125.) Dr. Bonasso recommended either spinal epidural nerve blocks or surgery to treat the back pain Bowers was experiencing. Id. Dr. Bonasso made Dr. Hanes aware of this recommended course of treatment in a letter, dated September 25, 2007, stating "I told Mr. Bowers that at this point I would recommend obtaining diagnostic facet blocks at L4-L5 along with epidural steroids. I told her to save surgery as a last resort." (HLI00215.)
On October 25, 2007, Dr. Lisa Choung performed the first of three lumbar epidural steroid injections on Bowers. (HLI00512-13.) On November 8, 2007 Dr. Choung performed the second injection (HLI00514-15); and on December 20, 2007, she performed the third. (HLI00516-17.) On January 7, 2008, Bowers again met with Dr. Choung. Dr. Choung noted that Bowers "continues to have a significant amount of pain, mainly on the right side of her low back, which is elevated with extension and rotation. She is rating her pain today as a 10/10. She also reports some cramping in her right lower extremity in the calf and feet." (HLI00518.) On February 25, 2008, Bowers had an appointment with Alisia Mitchell, CNP. HLI00232-33.) In her notes Ms. Mitchell noted that Bowers was "very uncomfortable with palipitation of the right distal lumbar region. She notes that sitting or standing for any length of time causes significant discomfort. She shifts her position frequently. . . . She sits leaning forward. Upon my entering the room she was standing, leaning forward over reading a magazine on the counter." Id. Ms. Mitchell noted that she was "requesting authorization for a radiofrequency ablation of the right side at L3, L4-5, L5-S1 in an effort to achieve relatively long term pain control for Ms. Bower [sic]. I have explained to her that we would be looking for approximately a 50% reduction in overall discomfort, but I do not believe in any way that she would be pain free." Id.
E. Termination of Benefits and Subsequent Appeal
In February 2008, after requests from Hartford, Dr. Bonasso sent Bowers's medical records to the insurer. (HLI00118-19.) Dr. Bonasso also completed an Attending Physician Statement of Continued Disability, informing Hartford that he had seen Bowers on September 25, 2007 and that she was a no-show for her appointment on December 11, 2007. (HLI00505.)Hartford contacted representatives from the offices of Dr. Hanes and Dr. Chuong. Neither physician offered any opinion as to the status of Bowers's disability. Dr. Chuong informed Hartford that she "typically does not get involved in Disability." (HLI00116.) Dr. Hanes informed Hartford that he was not currently keeping Bowers out of work. (HLI00117.)
In its Motion, Hartford states that "it is uncommon for [Dr. Choung's] patients to be off work for more than 1-2 days following a procedure." (Doc. 18 Def. Mot. for Judg. on the Admin. Record p. 9.) This representation was made to Hartford not by Dr. Choung, but by a representative, and is not a formal medical opinion relating to Bowers.
On March 19, 2008, Hartford terminated Bowers LTD benefits. In a letter, Hartford informed Bowers of its determination that she did not meet the LTD policy definition of Disability beyond March 19, 2008, and that Bowers would receive LTD benefits only until that date. (HLI00445.) Additionally, the letter stated that Hartford had "concluded from the combination of all medical information in your file that although you have complaints of chronic back pain, none of your physicians are keeping you out of work due to this condition and there is no evidence of a functional impairment" that would prevent Bowers from fulfilling the duties of her occupation with PACCAR. (HLI00448.)
On April 9, 2008, Bowers appealed Hartford's decision to terminate her LTD benefits. (HLI00434.) Along with her formal notice of appeal, Bowers submitted a letter from Dr. Bonasso, Dr. Bonasso's notes from her April 8, 2008 follow-up appointment, and a listing of her current limitations. (HLI00434-438.) Dr. Bonasso's letter to Dr. Hanes states that Bowers was planned to undergo radio frequency ablations "to see if that will help her long term . . . but she should be off for at least the next 2 months." (HLI00435.) Dr. Bonasso's notes indicated that he estimated Bowers would be able to return to work on June 8, 2008, but that Bowers was "unable to work at this time." (HLI00436.)
Hartford referred Bower's file for an independent medical review to MES Solutions, and a review was done by Dr. Robert Baum, who is board certified in physical medicine and rehabilitation. Dr. Baum reviewed all records in Bowers's file, along with those submitted with her appeal. (HLI00380-82.) Dr. Baum did not speak with Dr. Bonasso as part of his review process:
Dr. Baum was asked by Hartford to do the following:
1. Based on the medicalevidence provided and the conversation with Dr. Bonasso, please clarify claimant's medical status and functionality, and provide your opinion of her work capacity as of 3/20108 in terms of Dept. of Labor work category. Please explain and provide restrictions and limitations, as appropriate that would have been supported as of 3/20/08.
(HLI00380.)
I called Dr. Bonasso's office on May 12, 2008, and talked to his assistant, Laura, for roughly two minutes and ten seconds. She indicated that Dr. Bonasso was unavailable and would be unavailable until Tuesday, May 20. It is already noted that the initial call was May 12, 2008. I subsequently received notification indicating that I should call the office at 4:30 Central Standard Time. A subsequent notification indicated that there had been some changes with the attending physician's office and she then wanted to hear back from them about what to do. I determined to call Dr. Bonasso's office at 4:30 Central Standard Time on Tuesday, which I did. I reached the answering service that indicated if this was a physician I should press one and presumably a covering physician would be paged. I did not feel that this would be fruitful in that there was no assurance that Dr. Bonasso would be taking the call for the group or he would recollect his one visit with Ms. Bowers. In any event, my understanding was that I should proceed if I was not able to discuss anything with Dr. Bonasso.
(HLI00380.) Dr. Baum concluded as follows:
In it's Motion for Judgment on the Administrative Record, Hartford alleges "Dr. Baum attempted to contact Dr. Bonasso, but plaintiff refused to permit Dr. Bonasso to speak with him." (HLI00357-366; HLI00105)." (Doc. 18 Mot. for Judg. on Admin Record p. 11.) The record indicates that on June 23, 2008, Juan Mendez, an Examiner for MES Solutions called "Dr. Bonasso's office and spoke to Laura (secretary) . . . Laura indicated that Dr. Bonasso did not call Dr. Baum (peer reviewer) as clmt. advised him not to call as she has an attorney handling her claim." (HLI00105.) This telephone call, however took place after May 27, 2008, the date of completion found on Dr. Baum's Peer Review Report (HLI00383.) The later explanation received from the MES employee, therefore, does not seem to have had any influence on Dr. Baum's stated decision not to attempt to reach Dr. Bonasso through his answering service. Additionally, there is evidence in the record that Dr. Bonasso tried to contact Dr. Baum, but that he gave up after waiting on hold for 40 minutes. (HLI00107.)
In the absence of any input from Dr. Bonasso, and in the setting of physical findings that demonstrate a broad-based disc bulge on the left and physical findings from Dr. Hanes that define diagnostic findings on the left and physical findings that show diagnostic findings on the right, I think that Ms. Bowers, in the absence of any information to the contrary, could certainly be capable of sedentary work which is defined as follows: "exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, pull or otherwise move objects, including the human body, sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs sedentary of walking and standing are required only occasionally when all other sedentary criteria are met."
Both reports by Dr. Baum include the definition of sedentary work without a citation for the definition. The definition is taken from Appendix C Section IV of the Dictionary of Occupational Titles, which references Physical Demands, available at http://www.occupationalinfo.org/appendxc_1.html#STRENGTH.
On June 16, 2008, Bowers's counsel withdrew her appeal without prejudice. (HLI00376.) On September 12, 2008, Bowers filed a revised appeal containing additional medical records and a functional capacity evaluation completed by Dr. Bonasso. (HLI00212-314.)
Hartford provided this additional information to Dr. Baum, and asked again to review Bowers's file. (HLI00202-03.) Dr. Baum did not speak with Dr. Bonasso, Dr. Choung or Dr. Frick. (HLI00189.) Dr. Baum's report indicated that his medical opinion, originally expressed in his report of May 27, 2008, was unchanged. (HLI00190.) Dr. Baum stated:
Dr. Baum was asked by Hartford to do the following:
1. Based on the additional medical evidence provided and the conversions with the treating physicians please indicate if your opinion from 5127108 remains the same or not? If not please explain your rationale and provide your opinion of her work capacity as 3/20/08 in terms of Department of Labor category. Please explain and provide restrictions and limitations, as appropriate that would have been supported as of 3/20/08.
2. Please indicate if the evidence supports any specific effects from medications that could have impaired claimant's ability to function and work as of 3120/08. Please explain and provide reasonable restrictions and limitation, as appropriate that would have been supported in relation to claimant's medications as of 31201O8.
(HLI00190-91.)
There is, however, no clinical data supporting the claimant not being able to work 8 hours a day, 5 days a week at a sedentary level; a sedentary work level defined as follows: Exerting up to 10 pounds of force occasionally and/or a negligible amount of force, can frequently lift, carry, push, pull or otherwise move objects, including the human body sedentary work that involves sitting most of the time, but may involve walking or standing for brief periods of time.
(HLI00190.)
Hartford also requested an Occupational Analysis to assess Bowers's demands as a Senior General Office Administrator at PACCAR (HLI00188.) The Occupational Analysis found that the essential duties of the Senior General Office Administrator were "reasonably equivalent" to the Department of Transportation's ("DOT") job description for an administrative assistant, with the exception of the lifting requirements. Since the DOT position required only the ability to lift up to 10 pounds occasionally, and the Senior General Office Administrator position required Bowers to lift up to 15 pounds, the physical demands required of Bowers in her job were "greater than those required to perform the occupation within her geographical region when using the comparison occupation as defined in the DOT." (HLI00187.)
The Occupational Analysis notes that the position of Senior General Office Administrator "would be classified as a light duty job," while the DOT administrative assistant position "is a sedentary occupation." (HLI00187.)
On October 27, 3008, Hartford upheld its determination to terminate Bowers's LTD benefits. (HLI00183-186.) In its letter to Bowers, Hartford indicated its reliance on: (1) Dr. Baum's opinion that Bowers could perform sedentary work; and (2) the Occupational Analysis results which indicated that as a Senior General Office Assistant Bowers is required to perform "sedentary level of effort." (HLI00185.)
This civil action followed.
III. STANDARD OF REVIEW
Under federal law, a civil action may be brought by a participant or beneficiary of a disability benefits plan "to recover benefits due him [or her] under the terms of his [or her] plan, to enforce his [or her] rights under the terms of the plan, or to clarify his [or her] rights to future benefits under the terms of the plan." 29 U.S.C. § 1132(a)(1)(B). In reviewing a claim for alleged wrongful denial of benefits, the district court must base its decision solely upon the underlying administrative record. Evidence that was not presented to the plan administrator cannot be considered by the court. Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 619 (6th Cir. 1998).
District courts review a plan administrator's denial of ERISA benefits de novo, unless as is the case here, the benefit plan gives the administrator discretionary authority to determine eligibility for benefits or to construe the terms of the plan. Wilkins, 150 F.3d at 613 (6th Cir. 1998) (citing Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)). When such discretion exists, courts review a plan administrator's decision to terminate benefits using the highly deferential arbitrary and capricious standard of review. Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376, 380 (6th Cir. 1996). "This standard `is the least demanding form of judicial review of administrative action. . . . When it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary and capricious.'" Evans v. UnumProvident Corp., 434 F.3d 866, 876 (6th Cir. 2006) (quoting Perry v. United Food Workers Dist. Unions 445 442, 64 F.3d 238, 241 (6th Cir. 1995)). This deferential standard, however, is not a simple formality: "the arbitrary and capricious standard . . . does not require [the Court] merely to rubber stamp the administrator's decision." Jones v. Metropolitan Life Ins. Co., 385 F.3d 654, 661 (6th Cir. 2004). Instead, a plan administrator's decision will only be "upheld if it is the result of a deliberate, principled reasoning process and if it is supported by substantial evidence." Baker v. United Mine Workers of America Health Retirement Funds, 929 F.2d 1140, 1144 (6th Cir. 1991). This requires the reviewing court to weigh "the quality and quantity of the medical evidence and the opinions on both sides of the issues." McDonald v. Western Southern Life Ins. Co., 347 F.3d 161, 172 (6th Cir. 2006).
One further element of the arbitrary and capricious standard of review, relevant to this action in particular, is that an actual conflict of interest exists where the entity adjudicating the claim is also the entity responsible for paying the benefits. Killian v. Healthsources Provident Administrators, Inc., 152 F.3d 514, 521 (6th Cir. 1998). This conflict does not, however, alter the standard of review. Instead, it becomes another factor in analyzing whether the plan administrator's decision was arbitrary and capricious. See Firestone Tire Rubber, 489 U.S. at 115.
IV. LAW AND ANALYSIS
Hartford denied Bowers requests for continued LTD benefits based on its determination that Bowers was no longer Disabled, as defined in the Policy. Hartford argues that it's determination that Bowers is not disabled must be affirmed because: (1) it is supported by evidence; (2) Hartford is not required to defer to Bowers's treating physician; and (3) Bowers's subjective complaints are not sufficient to support her benefits claim.
Bowers argues that Hartford's determination that she was not disabled and subsequent termination of her LTD benefits was arbitrary and capricious because Hartford: (1) ignored Bowers's evidence; (2) unreasonably relied upon Dr. Baum's report; (3) unreasonably relied upon the Occupational Analysis.
A. Hartford's Conflict of Interest
Under the terms of the Policy, Hartford is authorized to determine whether Bowers is eligible for benefits and when, if ever, benefits should be paid. (HLI00037-38.) This dual function creates "a conflict of interest; that a reviewing court should consider . . . as a factor in determining whether the plan administrator has abused its discretion in denying benefits." Metropolitan Life Ins. Co. V. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 2346 (2008). The significance of this factor "will depend upon the circumstances of the particular case." Id.B. Reliance on Dr. Baum's Report
Hartford asserts that evidence within the administrative record demonstrates that Bowers is capable "of performing the sedentary level work associated with her occupation as a Senior General Office Administrator." (Doc. 18 Def. Mot. for Judg. on the Admin. Record p. 19.) Hartford argues that is not required to defer to Bowers's treating physician, Dr. Bonasso, and that it was entitled to resolve any conflicts that may have existed in Bowers's medical records. Bowers's takes the position that Hartford's reliance on Dr. Baum's report was the sole basis for the decision to deny LTD benefits and that reliance was unreasonable. Bowers argues that Hartford ignored the opinions of Bowers's physicians. Specifically, Bowers notes the absence of any discussion of the Functional Capacity Evaluation, Bowers's other medical records, or Bowers's statement of her own functional ability in Hartford's denial letter of October 27, 3008.ERISA does not require that Hartford give special deference to the opinions of Bowers's treating physicians. Black Decker Disability Plan v. Nord, 538 U.S. 822, 831 (2003). ERISA also does not "impose a heightened burden of explanation on administrators when they reject a treating physician's opinion." Id. Plan administrators, however, "may not arbitrarily refuse to credit a claimant's treating physician." Id. at 834. Plan administrators "must give reasons for adopting an alternative opinon." Williams v. Hartford Life and Acc. Ins. Co., slip op. 2009 WL 3127761, *10 (S.D. Ohio, September 25, 2009) (citing Evans v. UnumProvident Corp., 434 F.3d 866, 877 (6th Cir. 2006) (holding that a plan administrator may not arbitrarily disregard reliable medical evidence proffered by a claimant, including the opinions of a treating physician). The Sixth Circuit has found that a court may consider whether "a consultant engaged by a plan may have an in `incentive' to make a finding of `not disabled'" as a factor in determining whether the plan administrator acted arbitrarily and capriciously. Kalish v. Liberty Mut., 419 F.3d 501, 508 (6th Cir. 2005) (internal citations omitted) Additionally, a court may consider the failure to conduct a physical examination, as it "may raise questions about the thoroughness and accuracy of the benefits determination." Calvert v. Firstar Finance, Inc., 409 F.3d 286, 295 (6th Cir. 2005) ("Where, as here, . . . the conclusions from that review include critical credibility determinations regarding a claimant's medical history and symptomology, reliance on such a review may be inadequate.").
Dr. Baum's Peer Review Report here specifies that his findings are "[i]n the absence of any input from Dr. Bonasso . . . Ms. Bowers, in the absence of any information to the contrary, could certainly be capable of sedentary work." (HLI00382.) Dr. Bonasso's Functional Capacity Evaluation provided an assessment of Bowers's physical limitations. (HLI00306-16.) After reviewing Dr. Bonasso's Functional Capacity Evaluation, Dr. Baum did not alter his opinion, stating "[t]here is, however, no clinical data supporting [Bowers] not being able to work 8 hours a day, 5 days a week at a sedentary level." (HLI00190.)
Dr. Baum's Peer Review Report also specifies that he never spoke with Drs. Hanes or Choung, both of whom treated Bowers. Hartford acknowledges that neither Dr. Hanes nor Dr. Choung offered opinions on Bowers's disability. (Doc. 18 Def. Mot. for Judg. on the Admin. Record p. 20.) Dr. Chuong informed Hartford that she "typically does not get involved in Disability." (HLI00116.) Dr. Hanes informed Hartford that he was not currently keeping Bowers out of work. (HLI00117.) That Drs. Hanes and Choung did not offer opinions on Bowers's disability is not the same as the doctors stating that Bowers is not disabled. Thus, while Hartford argues that it is entitled to resolve conflicts within Bowers's medical records, there do not appear to have been any conflicts between any of the doctors who had treated Bowers. Therefore, Dr. Baum was not in a position where it was necessary to resolve any conflicting opinions.
In its Motion, Hartford states that "it is uncommon for [Dr. Choung's] patients to be off work for more than 1-2 days following a procedure." (Doc. 18 Def. Mot. for Judg. on the Admin. Record p. 9.) This representation was made to Hartford not by Dr. Choung, but by a representative, and is not a formal medical opinion relating to Bowers.
Additionally, though Hartford reserved the right to require Bowers to submit to an independent medical exam or a functional capacity evaluation, Dr. Baum never examined Bowers. (HLI00031.) A "non-examining physician," like Dr. Baum, "is limited to reviewing and accepting documented findings and testings performed by a treating physician." Meyer v. Metropolitan Life Ins. Co., 341 F.Supp.2d 865, 872 (S.D. Ohio 2004). While Dr. Baum is careful to list all of the documents he reviewed from Bowers's file, he does not specify upon which evidence he bases his decision that Bowers is not disabled. Additionally, other courts have recognized a Functional Capacity Evaluation as clinical data that can and should be considered during a file review. See Calvert, 409 F.3d at 297. The Functional Capacity Evaluation conducted on Bowers by Dr. Bonasso is clinical data that Dr. Baum ignored without explanation. Dr. Baum merely mentions the Functional Capacity Evaluation but does not identify his reasons for disagreeing with its findings.
C. The Occupational Analysis
Bowers argues that Hartford's reliance on the Occupational Analysis was unreasonable because although PACCAR reported that Bowers's job required her to lift up to 15 pounds, Hartford concluded Bowers was only required to lift 10 pounds. Bowers further asserts that Hartford only ordered the Occupational Analysis after receiving Dr. Baum's report stating his opinion that Bowers was capable of sedentary work.
Hartford argues that, per the terms of the Policy, Bowers is only entitled to receive LTD benefits if she is disabled from her occupation as an administrative assistant; Bowers inability to perform as a Senior General Office Administrator with PACCAR is not outcome determinative.
The Sixth Circuit has previously found that Hartford "will have broad discretion in determining what is an employee's `own occupation,' including the basis for making that determination." Osborne v. Hartford Life and Acc. Ins. Co., 465 F.3d 296 (6th Cir. 2006) The Sixth Circuit has also held that failure to analogize a claimant's job to a job with comparable lifting demands to be arbitrary and capricious. Gilchrest v. Unum Life Ins. Co. Of Am., 255 Fed. App'x 38, 43-44 (6th Cir 2007) ("On this record, and keeping in mind that Unum is a conflicted administrator, we find that the disconnect between Gilchrest's job description and the occupation he was routinely performing made Unum's reliance on the analogy to `Warehouse Manager' arbitrary and capricious.")
Here, the Policy defines "Disability" to mean that "during the Elimination Period and the following 24 months," the insured is "continuously unable to perform the Material and Substantial Duties of [the insured's] Regular Occupation and . . . not Gainfully Employed." (HLI00020) (emphasis in original). Under the terms of the Policy, "Material and Substantial Duties" are "the necessary functions of [the insured's] Regular Occupation which cannot be reasonably omitted;" and "Regular Occupation" is defined as "the occupation that [the insured] is performing for income or wages on [the] Date of Disability. It is not limited to the specific position [the insured] held with [the] Employer. (HLI00034) (emphasis in original).
In this case, Bowers was not employed as an administrative assistant in a regular office setting. She worked for a trucking company, PACCAR, which specifically noted that her job required her to lift up to 15 pounds. (HLI00523-24.) It is not clear here from the administrative record whether the lifting requirement is a "Material and Substantial Duty" which can not be omitted.
Further, Hartford requested the Occupational Analysis on October 21, 2008 "based on the restrictions and limitations indicated by the peer reviewer." (HLI00103.) The referral paperwork for the Occupational Analysis specifies the "need to determine clmt's occupational demands as a Sr. General Office Administrator vs. own occ. requirements" based upon the report by the peer reviewer, Dr. Baum, on October 17, 2008 (HLI00188.) The referral paperwork also notes that Occupational Analysis referrals are "typically made before the LTD initial liability decision." Id. Finally, this Court finds it troubling that Hartford: (1) received a report from Dr. Baum indicating Bowers ability to do sedentary work; (2) deviated from its own norms by ordering an Occupational Analysis that is usually completed before an initial LTD benefits decision; (3) indicated on the referral paperwork that Dr. Baum's report and his determinations were available in the file; and (4) received an Occupational Analysis that Bowers's position is sedentary despite the difference in lifting requirements between the work she actually performed and the DOT's administrative assistant position. Thus, this Court finds Hartford's decision arbitrary and capricious.
V. CONCLUSION
This Court holds that the decision of Hartford was arbitrary and capricious based on: (1) Hartford's conflict of interest; (2) Dr. Baum's failure to document upon which evidence he rests his decision that Bowers is not disabled; (3) Dr. Baum's failure to consider all evidence, specifically, the Functional Capacity Evaluation, when finding a lack of clinical data documenting Bowers disability; and (4) Hartford's failure to consider the actual requirements of Bowers's occupation and the circumstances surrounding the Occupational Analysis. This Court concludes that the appropriate remedy is to remand the case to the Plan Administrator for consideration of whether Bowers's limitations preclude her from performing her former position. Therefore, for the reasons set forth above, Hartford's Motion for Judgment on the Administrative record (Doc. 17) is DENIED, and Bowers's Motion for Judgment on the Administrative Record is GRANTED in part (Doc. 19).