Opinion
1:21-cv-02116
04-01-2022
JOSEPH SNAPPER, Plaintiff, v. UNUM LIFE INSURANCE COMPANY OF AMERICA, Defendant.
William Reynolds DEBOFSKY SHERMAN CASCIARI REYNOLDS, PC William T. Reynolds Attorney for Plaintiff
William Reynolds
DEBOFSKY SHERMAN CASCIARI REYNOLDS, PC
William T. Reynolds
Attorney for Plaintiff
Hon. John Z. Lee, Judge.
PLAINTIFF'S MEMORANDUM IN SUPPPORT OF HIS MOTION FOR ENTRY OF JUDGMENT
Jeffrey Cummings, Magistrate Judge. i
Table of Contents
I. Introduction ..................................................................................................... 1
II. Jurisdiction ...................................................................................................... 2
III. Summary of Facts ............................................................................................ 2
IV. Argument ......................................................................................................... 9
A. Standard of Review and Basis for Trial on the Papers .................................... 9
B. Unum Life's Claim Termination was Wrong and Should be Overturned ...... 10
1. Unum Life Ignores and Mischaracterizes the Material Duties of Snapper's Occupation....................................... 10
2. The PWPE Report Provides Corroborative Objective Evidence of Snapper's Disabling Restrictions and Limitations ........ 14
3. The Court Should Give No Weight to the Opinion of Unum Life's Medical Director, Dr. Scott Norris ................. 18
V. Conclusion and Remedy ................................................................................. 21 ii
PLAINTIFF'S MEMORANDUM IN SUPPPORT OF HIS MOTION FOR ENTRY OF JUDGMENT
I. Introduction
Severe, radiating pain forced Joseph Snapper to abandon his successful law career at Mayer Brown LLP on February 19, 2019 at the age of 42. Over the next sixteen months, Snapper would undergo two spinal surgeries in four months, unsuccessfully attempt pain management with an implanted medical device, receive multiple rounds of physical therapy without improvement, fail an intensive pain management program, and undergo extensive diagnostic imaging in a desperate search to identify a way to relieve his unrelenting pain. The only answer, unfortunately, has been and remains Snapper's ever-increasing reliance on prescription pain medication to numb his pain long enough to allow him to attempt to exercise and otherwise complete the basic activities of daily living.
There is simply no way that Snapper could have even attempted to complete the demands of his former job at the time Unum Life terminated his long-term disability benefit claim on July 17, 2020. The medical records do not simply show that Snapper continued to complain of severe left leg pain after his surgeries; Snapper's condition is shown to have worsened when he became unable to continue with his swimming program due to COVID-19 closures in March 2020. Snapper's Gabapentin dosage was increased just six weeks prior to benefit termination, and he reported needing to take an extra Percocet to get through his workout the week after Unum closed his claim. A three-hour Physical Work Performance Evaluation (“PWPE”) performed on September 16, 2020 corroborated Snapper's complaints, finding that despite pain medication he was unable to even occasionally sit, stand, or walk with any reliability, rendering him unable to sustain any full-time work.
Unum Life offers only the non-examining, conclusory opinions of its own medical officers in support of its claim termination. Its medical reports are cherry-picked nonsense that provide no meaningful analysis of the objective medical evidence nor any attempt to meet the “higher-than marketplace quality standards” imposed by ERISA. Those reports, combined with Unum's continued mischaracterization of Snapper's job duties, fit a pattern and practice of Unum Life's biased claims handling which continues uninhibited despite numerous rebukes from federal courts. For the reasons detailed below, the Court should enter judgment in Snapper's favor.
II. Jurisdiction
The Court's subject matter jurisdiction is based on ERISA §§ 502(e)(1) and (f) (29 U.S.C. 1132(e)(1) and (f)), as well as 28 U.S.C. § 1331. (Def.'s Ans., ECF No. 10, ¶¶ 2; 5-6). Venue is proper in this District pursuant to ERISA §502(e)(2) (29 U.S.C. §1132(e)(2) and 28 U.S.C. §1391, because Plaintiff resides in this District and a substantial part of the events or omissions giving rise to his claim occurred within this District. (Def.'s Ans., ¶¶ 4-5). ERISA provides a mechanism for internal appeals of benefit denials at 29 U.S.C. §1133, which Plaintiff has exhausted, making this matter ripe for adjudication. (Def.'s Ans., ¶ 3).
III. Summary of Facts
Snapper's history of low back and lower extremity pain dates back nearly 15 years. (Pl.'s Proposed Statement of Facts [“PSF”], ¶ 17). He sought test-taking accommodations while in law school in 2008 due to his inability to sit for long periods of time and underwent an L5-S1 microdiscectomy in 2012. (Pl.'s PSF, ¶¶ 1; 18). Snapper reports that his brother has also undergone multiple spinal surgeries and that his mother suffers from chronic vertebral disc disease. (Pl.'s PSF, ¶ 17).
Snapper was hired as an attorney by Mayer Brown LLP in August 2013. (Pl.'s PSF, ¶ 1). His job was performed in the typical manner of a litigation attorney; he reviewed and analyzed complex and sophisticated sets of facts, issues, and risks, performed technical legal research on complex issues, formed complex legal theories, and advanced effective litigation strategy. He was expected to draft clear, cogent, and well-structured written materials, handle oral presentations to judges, colleagues, and clients, and regularly juggle competing deadlines. (Pl.'s PSF, ¶ 9). Snapper regularly walked from his office to courthouses in Chicago and traveled by car and airplane to prepare for and attend out-of-town depositions and court hearings as needed. (Pl.'s PSF, ¶¶ 10-12). He generally worked ten or more hours per day and over 40 hours per week. (Pl.'s PSF, ¶ 13).
In September 2016, Snapper was injured in a motor vehicle accident that worsened his pre-existing lumbar spine issues. (Pl.'s PSF, ¶ 19). He continued to suffer worsening low back and left-sided buttocks pain, radiating down into his left hamstring, calf, and toes over the next eighteen months. (Id.) Following review of an MRI performed April 8, 2018, Snapper's treating neurosurgeon, Dr. Wellington Hsu, directed Snapper to take a leave of absence to focus on controlling his back and left leg pain. (Pl.'s PSF, ¶¶ 20-21). Snapper was out of work until July 2018, during which time he received epidural steroid injections from pain management specialist Dr. Dost Khan and physical therapy at the Shirley Ryan AbilityLab in Chicago. (Pl.'s PSF, ¶¶ 22-25).
Snapper continued to suffer severe, radiating leg pain with prolonged sitting in the months after his return to work. By December 2018 he was reporting no relief with steroid injections and was forced to increase his pain medication to manage his symptoms. (Pl.'s PSF, ¶¶ 26-28). Updated MRI and CT scans taken on February 4, 2019 revealed spinal abnormalities most significant at the L5-S1 level, impinging the S1 nerve root. (Pl.'s PSF, ¶ 29). Snapper began a second leave of absence on February 18, 2019 and has not worked since that date. (Pl.'s PSF, ¶ 30).
Three days after ceasing work, Snapper was diagnosed with Failed Back Syndrome and was recommended to undergo a spinal cord stimulator trial. (Pl.'s PSF, ¶ 31). The procedure was unsuccessful; Snapper reported that the stimulator aggravated his pain, and the leads were removed six days later. (Pl.'s PSF, ¶ 33). Snapper subsequently sought opinions from four different neurosurgeons regarding the potential efficacy of another spinal surgery. (Pl.'s PSF, ¶¶ 34; 36-38). After three neurosurgeons recommended against additional surgery due to the lack of expected benefit, Dr. Daniel Laich offered to perform another surgery based on the level of severity of Snapper's pain and his exhaustion of all other options. (Pl.'s PSF, ¶ 38).
On June 25, 2019, Snapper underwent his second spinal surgery, an L5-S1 extra-pedicular decompression, foraminotomy, ligamentectomy, discectomy, and osteophytectomy performed by Dr. Laich. (Pl.'s PSF, ¶ 39). At a three-week follow up appointment, Snapper reported improvement in his low back pain but complained of continued pain down his posterior thigh and leg to the bottom of his foot. (Pl.'s PSF, ¶ 40). Snapper began receiving bi-weekly physical therapy treatment shortly thereafter, but after ten days he reported to Dr. Laich that his pain was worsened with physical therapy and was now the same or worse as compared to pre-surgery. (Pl.'s PSF, ¶¶ 41-42).
On or about July 29, 2019, Snapper submitted a claim for long-term disability benefits under the Policy to Unum Life. (Pl.'s PSF, ¶ 66). Unum Life notified Snapper on August 16, 2019 that his claim was approved in the amount of $17,000 per month with a benefit start date of August 18, 2019. (Pl.'s PSF, ¶ 67).
Shortly after Snapper's LTD claim was approved, Dr. Laich recommended a follow-up lumbar spinal surgery. (Pl.'s PSF, ¶ 43). On October 8, 2019, Snapper underwent his third lumbar spine surgery, an L5-S1 discectomy and anterior lumbar interbody fusion (“ALIF”). (Pl.'s PSF, ¶ 44). He returned to Dr. Laich on November 7, 2019, again noting improvement with back pain but reporting severe, unresolved radiating left leg pain. (Pl.'s PSF, ¶ 45). Snapper restarted bi-weekly physical therapy at the Shirley Ryan Ability Lab on November 8, 2019 and was discharged from physical therapy on December 13, 2019 with no change in his level of pain after nine sessions. (Pl.'s PSF, ¶ 46). Dr. Laich ordered Snapper to increase his Gabapentin dosage to 600mg three times per day, to be taken with his ongoing prescription of Percocet, 10-325mg as needed. (Pl.'s PSF, ¶ 47).
On December 3, 2019, Dr. Laich reported to Unum Life that Snapper recently had spinal surgery and would not be able to return to work for at least a year. (Pl.'s PSF, ¶ 68). Dr. Laich provided a second update of Snapper's condition to Unum Life two weeks later, stating in part that Snapper was unable to lift more than ten pounds, unable to twist/turn at the waist, and unable to walk, stand, or sit for prolonged periods of time. (Pl.'s PSF, ¶ 69).
On January 13, 2020, Snapper noted a worsening in confusion following his recent increase in Gabapentin and reported that although he can swim 1000-1500 yards in the pool, it was difficult for him to walk the two blocks and one flight of stairs to get to the pool and that he needed to take “a couple” breaks along his way due to pain. (Pl.'s PSF, ¶ 48). He began the Shirley Ryan AbilityLab intensive pain management program one week later under the supervision of Dr. Karina Bouffard. (Pl.'s PSF, ¶ 49). At the end of the first day of the program, he reported an excruciating amount of pain and later reported that he required additional pain medication that evening. Id. Snapper was unable to complete the second day of the program due to pain and was discharged by Dr. Bouffard on January 22, 2020. Id.
On January 23, 2020, Snapper reported to Unum Life that there was no improvement in his symptoms and stated that he was “largely confined to his residence, except for physical therapy and very occasional social outings.” (Pl.'s PSF, ¶ 71). Unum Life again wrote Dr. Laich on January 27, 2020 asking for an updated status of Snapper's functionality, and Dr. Laich responded on February 1, 2020 that Snapper remained unable to perform his work duties. (Pl.'s PSF, ¶ 72). Dr. Laich again reported to Unum Life on March 19, 2020 that Snapper was unable to perform his work duties; and on March 23, 2020, Snapper completed a Disability Status Update form at Unum Life's request, again stating that he mostly stays at home due to pain. (Pl.'s PSF, ¶¶ 72-73).
Snapper returned to Dr. Laich (virtually, due to COVID-19 protocol) on May 21, 2020, reporting that due to COVID-19 facility closures he had been unable to swim or receive muscle activation therapy and had subsequently experienced a worsening in symptoms. (Pl.'s PSF, ¶ 52). Dr. Laich increased Snapper's Gabapentin dosage to 600mg four times daily. Id. On June 23, 2020, Dr. Laich provided another update to Unum Life on Snapper's status, stating:
Due to Covid-19, Joseph has not completed his full medical rehabilitation. He is still with episodic pain limiting his work hours to [less than] 6 hours/day with breaks, lifting 5-7 pounds, sitting [with] breaks every 20 minutes, and travel be automobile restricted to 20 minutes. We recommend resuming rehab program and evaluating his MMI [maximum medical improvement] at his 1 year anniversary in October 2020. Further work capacity will be evaluated at this time.(Pl.'s PSF, ¶ 74). Unum Life nonetheless terminated Snapper's LTD benefit claim on July 17, 2020 based on the erroneous conclusion that his condition had improved. (Pl.'s PSF, ¶ 75).
Snapper was again evaluated by Dr. Laich virtually on July 24, 2020, where he reported that his pain was worse when “vertical (stand, sit, walk)” and that his entire left leg was a “crescendo of pain.” (Pl.'s PSF, ¶ 53). He reported being able to swim and use a stairmill to exercise but reported that he needed to take 1-2 Percocet to exercise. Id. On August 3, 2020, Snapper wrote Dr. Khan reporting that he had experienced no sustained improvement in the burning sensation in his left leg since surgery and that he was taking Gabapentin, 600mg four times per day and Percocet, 10-325mg two times per day. (Pl.'s PSF, ¶ 54).
Snapper returned to Dr. Khan for a telehealth visit on August 20, 2020, reporting a “burning, shooting pain that is constant in nature, located in his left low back, left buttock, with radiation into the hamstring into the calf and involving the entirety of his foot” as well as excessive sedation with Gabapentin. (Pl.'s PSF, ¶ 55). Following examination, Dr. Khan opined:
Patient with continued FBSS [Failed Back Surgery Syndrome] status post L5-S1 microdiscectomy x 2 and most recently L5-S1: PSF. Symptoms appear to be S1 [nerve] mediated, and he has failed PT, exercise program, caudal ESI's, S1 TFESI's, and conventional SCS trial. Options going forward are to maximize neuropathic medications, which he has previously tried and failed, or to consider S1 DRG stimulator trial to see whether more targeted stimulation could provide improved analgesia. We will have patient come in to clinic in 4 weeks for re-evaluation. In the interim we will discontinue Gabapentin and start Lyrica 100 mg 3 times daily. . . .Id. Snapper wrote Dr. Khan on September 8, 2020 reporting that the side effects with Lyrica were worse than with Gabapentin, and Dr. Khan re-prescribed Gabapentin, 600mg four times daily shortly thereafter. (Pl.'s PSF, ¶ 57). Dr. Khan offered to evaluate Snapper for a different type of spinal stimulator but concluded that if it failed the “only option is to maintain him on long-term medications, including opiates.” Id.
Snapper submitted an appeal of Unum Life's termination on December 4, 2020, challenging the opinions of Unum Life's file review physicians as well as Unum Life's misclassification of material duties of his occupation. (Pl.'s PSF, ¶ 76). In support of his appeal, Snapper provided a comprehensive vocational report prepared by Keith Moglowsky, M.S., C.R.C., L.P.C., and underwent a three-hour Physical Work Performance Evaluation (“PWPE”) performed by Angela Pennisi, PT, MS. (Pl.'s PSF, ¶ 58). PT Pennisi found that Snapper was physically unable to sit, stand, or walk for any sustainable length of time, and Moglowsky opined that those limitations established disability because Snapper's job required the ability to sit at length without regular breaks and “at least Light physical demand work, with possibility of some in the Medium category when performing his job duties.” (Pl.'s PSF, ¶¶ 59-64; UA-CL-LTD-004518. Dr. Laich later reviewed and adopted the PWPE findings as consistent with his own examinations. (Pl.'s PSF, ¶ 65).
Upon receipt of Snapper's appeal, Unum Life obtained a file review medical opinion from another one of its Medical Directors, Dr. Scott Norris, and an updated vocational review from employee Kelly Marsiano, M.Ed., CRC. (Pl.'s PSF, ¶ 77). Based on those opinions, Unum Life upheld its claim termination on March 21, 2021, precipitating this lawsuit. (Pl.'s PSF, ¶ 79).
Snapper has been and remains unable to work as a litigation attorney and has been approved for Social Security Disability Insurance benefits since Unum Life's final determination. He therefore remains eligible for ongoing LTD benefits from Unum Life in the amount of $17,000 per month.
A copy of Snapper's November 19, 2021 Notice of Decision - Fully Favorable from the Social Security Administration is attached as Exhibit A to Snapper's Request for Judicial Notice, which is filed concurrently with his Motion for Entry of Judgment.
IV. Argument
A. Standard of Review and Basis for Trial on the Papers
Courts often adjudicate matters such as the present case pursuant to Fed.R.Civ.P. 52, which permits the parties to submit documentary evidence in lieu of live testimony and allows the court to resolve factual disputes. See, e.g., Halley v. Aetna Life Ins. Co., 141 F.Supp.3d 855, 857 (N.D. Ill. 2015) (collecting cases); Fontaine v. Metro. Life Ins. Co., 800 F.3d 883 (7th Cir. 2015). Instead of applying a summary judgment paradigm, the court weighs the evidence and independently resolves the principal factual dispute as to whether a plaintiff satisfies the policy's terms for coverage. To this end, the parties stipulated to utilize the Rule 52 paradigm to adjudicate the merits of this case. (Parties' Joint Status Rpt., ECF No. 14, ¶ 3).
The de novo standard of judicial review applies to the adjudication of this ERISA-based benefit dispute in accordance with Firestone Tire v. Bruch, 489 U.S. 101 (1989), which makes the de novo judicial review standard the default unless there is language in the governing plan that would trigger a deferential review standard. No such language exists here; and even if there was such language, 50 Ill. Admin. Code § 2001.3 would disable any discretion according to Fontaine, supra. The court's role under the de novo standard is to reach an independent decision as it would in any other breach of contract action. Krolnik v. Prudential Ins. Co. of Am., 570 F.3d 841, 843-44 (7th Cir. 2009).
B. Unum Life's Claim Termination was Wrong and Should be Overturned
1. Unum Life Ignores and Mischaracterizes the Material Duties of Snapper's Occupation
The Policy provides disability benefits to Snapper if he is unable to perform each of the material and substantial duties of his regular occupation, with regular occupation defined for attorneys as “the material and substantial duties that you are performing just prior to disability.” (Pl.'s PSF, ¶¶ 5-6). Notably, this attorney-specific definition of regular occupation is distinct from the Policy's definition of own occupation for non-attorneys, which allows Unum to consider how the job is “normally performed in the local economy, instead of how the work tasks are performed [at Mayer Brown].” (Pl.'s PSF, ¶ 6).
“Material and substantial duties” are those duties that “are normally required for the performance of your regular occupation; and cannot be reasonably omitted or modified.” (Pl.'s PSF, ¶ 7).
Unum Life's interpretation of Snapper's job duties fails to conform to the Policy language. Instead of considering Snapper's actual job duties, Unum's final denial letter cites the “national standard” definition of a litigation attorney, calling it a sedentary occupation as defined by the DOT and eDOT to ignore and reject the more strenuous aspects of Snapper's job. (UA-CL-LTD-04554 - “Mr. Snapper's regular occupation is most consistent with the occupation of Litigation Attorney. This occupation is performed at a sedentary level of physical demand.”). The “sedentary” classification also fails to consider any of the cognitive requirements of Snapper's occupation. See, e.g., Hertan v. Unum Life Ins. Co. of Am., 111 F.Supp.3d 1075, 1087 (C.D. Cal. 2015) (“Rather than address the cognitive demands of Hertan's occupation as an attorney, Unum consistently focused almost entirely on the physical requirements of what they concluded was a “sedentary” occupation.”).
Unum Life's vocational report defines “sedentary” work capacity as “Lifting, Carrying, Pushing, Pulling 10 Lbs. occasionally. Mostly sitting, may involve standing or walking for brief periods of time.” (UA-CL-LTD-002860).
The DOT is the Dictionary of Occupational Titles, an attempted comprehensive listing of occupations developed by the Department of Labor that was last updated in 1993. The eDOT is proprietary vocational software created by ERI Economic Research Institute, Inc. See, Economic Research Institute (available at https://www.erieri.com/) (last accessed March 25, 2022).
The “sedentary” work definition is not a proper substitution for Snapper's own occupation. As a litigation attorney at Mayer Brown LLP, Snapper was responsible for developing and leading litigation strategies, meeting strict deadlines, working closely with co-workers and supervisors, and coordinating with clients to ensure his representation is completed effectively, efficiently, within scope, and within budget. Those responsibilities required Snapper to work long hours, travel, and remain in a seated position for long periods of time. The job is high stress, highly technical, and has a very low tolerance for error. Those types of job duties are plainly ignored by Unum Life's definition of “sedentary” work.
To further detail his material and substantial job duties, Snapper provided Unum Life with a vocational report completed by Keith Moglowsky. Moglowsky opined that each of the responsibilities listed Mayer Brown's Attorney job description were “material and substantial” to Snapper's occupation and that Snapper's need to change positions at will to manage pain was not reasonable in his line of work. (UA-CL-LTD-004517-4518). Moglowsky noted that Snapper was required to walk about half a mile to and from his office to the federal and county courthouses in downtown Chicago and that he was required to sit for extended periods of time without the ability to get up or move around during depositions, trials, and office meetings. (UA-CL-LTD-004516-4517). In the instances where he had to travel via automobile or airplane, Moglowsky noted that Snapper traveled not only with his own luggage, but with case material as well - in Banker's boxes that could easily weigh over 25 pounds. (UA-CL-LTD-004516). Finally, Moglowsky additionally concludes that it was “reasonably indicated by Mr. Snapper that with increased [pain] symptoms over the workday, he was experiencing decreasing levels of attention, concentration, and focus which eventually led to his inability to continue work as a Lawyer/Litigation Attorney.” (UA-CL-LTD-004518).
Moglowsky's opinion is consistent with the federal courts' interpretation an attorney's job duties and the impact of pain and other cognitive impairments on the demands of a practicing attorney. In Lain v. UNUM Life Ins. Co. of Am., 279 F.3d 337 (5th Cir. 2002), a real estate attorney with a chronic pain that interfered with cognition was found disabled because she was unable to meet the high mental demands of her occupation on a consistent basis. Likewise, in Hertan v. Unum Life Ins. Co. of Am., 111 F.Supp.3d 1075 (C.D. Cal. 2015), a labor and employment attorney was found disabled because pain and narcotic pain medication impaired her ability to focus and concentrate and impaired short-term memory function. In Heffernan v. UNUM Life Ins. Co., 101 Fed.Appx. 99 (6th Cir. 2004), a litigation attorney with a stress-induced mental illness was found disabled based in part on the court's finding that the job of a litigation attorney was inherently high stress. And in Dewsnup v. Unum Life Ins. Co. of Am., 2018 WL 6478886, at *7 (D. Utah Dec. 10, 2018), a trial attorney that suffered a heart attack was deemed disabled because he could not meet the position's “long hours” and “high cognitive demands - memory, concentration and attention, influencing people in their opinions, attitudes, judgments, performing a variety of duties, dealing with people, and making judgments and decisions.” See also, Ray v. UNUM Life Ins. Co. of Am., 224 Fed.Appx. 772, 784 (10th Cir. 2007) (holding that the location where an attorney performs her work is a material duty of her occupation).
Mayer Brown LLP purchased a disability policy providing its attorneys coverage based on their jobs were personally performed. Unum Life cannot now rewrite those terms to a standard it wishes to substitute. The Court should give little weight to Unum's vocational analysis and adopt Moglowsky's opinion of the material duties of Snapper's occupation, which is consistent with Snapper's job description and a common sense understanding of how a litigation attorney works.
2. The PWPE Report Provides Corroborative Objective Evidence of Snapper's Disabling Restrictions and Limitations
The PWPE report provides convincing evidence of Snapper's entitlement to benefits. As explained in the appeal letter to Unum Life, the PWPE was completed under the ErgoScience Physical Work Performance Evaluation protocol, which has been proven through peer review testing as providing a reliable, accurate, and fully standardized assessment of an individual's functional capacity. The main tasks of Snapper's three-hour examination involved activities-based testing of dynamic strength, position tolerance, mobility, and endurance. For strength activities, values were reported for the maximum weights that can be safely handled by Snapper on the job (except where noted in two instances by Ms. Pennisi). For position and movement demands, the results identified what percent of the workday can be spent in each tested activity. Data from these tests then contributed to the reporting of an overall level of work and tolerance for a full work week. Because this level of testing has been shown to accurately model and predict an individual's functional capacity, several court rulings have relied on functional capacity evaluations as objective, controlling evidence in determining employability, including Love v. National City Corp. Welfare Benefits Plan, 574 F.3d 392 (7th Cir. 2009) and Holmstrom v. MetLife, 615 F.3d 758 (7th Cir. 2010). See also, Brookbank v. Anthem Life Ins. Co., 2016 WL 1611380, at *13 (S.D. Ohio Apr. 20, 2016), adopted, 2016 WL 2853578 (S.D. Ohio May 16, 2016) (“In the ERISA context ... a ‘functional capacity evaluation, [is] a reliable and objective method of gauging the extent one can complete work-related tasks.' ”).
The results of Snapper's PWPE testing were straightforward. Snapper was found to be unable to sit, stand, or walk with any consistency due to severe pain.(Pl.'s PFF, ¶ 61). Ms. Pennisi wrote that Snapper demonstrated “severe deviations” in his sitting and standing tolerance upon testing, such as his “[inability] to maintain an upright posture with hips bent during sitting and a break was taken during grip testing and Stokes protocol due to his inability to sit still for the duration of testing.” (Pl.'s PFF, ¶ 62). Snapper exhibited five position adjustments in just over two minutes of sit testing with a pain score increasing to 8.75 out of 10, leading Ms. Pennisi to halt testing to allow Snapper to immediately lay down to rest. (UA-CL-LTD-001233). Snapper also exhibited five position adjustment over just 55 seconds of stand testing, during which he was noted to be unable to keep his left leg stationary. Id. The PWPE report also notes that Snapper demonstrated decreased overall motor control and impaired left hip strength, among other examination findings. (Pl.'s PFF, ¶ 62). The examination results were found to pass internal validity test measures and demonstrate maximum effort, leading Ms. Pennisi to present the results with a high level of confidence. (Pl.'s PFF, ¶ 60).
Ms. Pennisi reported in the Task Performances section of the PWPE that Snapper could “Never” sit, stand, or walk, but explained that a “never score for sitting, standing, and walking does not mean that the client literally can never sit, stand or walk. The client may be able to sit, stand or walk for brief periods but is not able to sustain these for up to 1/3 of the day as required for the ‘Occasional' category.” (Pf.'s PFF, ¶ 61).
The PWPE report is also consistent with findings and reports of pain and functionality contained in Snapper's medical records. In the months leading up to Unum Life's termination of benefits, Snapper repeatedly reported that his left leg pain was uncontrolled and worsening. (Pl.'s PFF, ¶¶ 45-47). After his early discharge from the intensive pain management program in January 2020, Snapper again reported severe left leg pain to Dr. Laich. (Pl.'s PFF, ¶¶ 48-49; 51). His condition worsened in the early stages of the COVID-19 pandemic with his inability to swim, and by July 2020 Snapper was reporting a “crescendo of pain” in his left leg and an inability to leave the home “not only due to Covid, but due to complaints of pain.” (Pl.'s PFF, ¶ 48). In August 2020, Dr. Samuel Chu opined that Snapper's lower extremity pain was “consistent with chronic lumbosacral radicular pain”; and one month later, Dr. Khan reported that Snapper was likely out of treatment options besides medication management. (Pl.'s PFF, ¶¶ 56-57).
There is no indication in any of the records that Snapper's pain is exaggerated or manufactured. Indeed, Snapper's condition and subsequent pain was so severe that he has undergone three spinal surgeries, received multiple injections into his spinal column, tried and failed intensive pain management, taken powerful medications despite impairing side effects, and attempted a spinal cord stimulator implantation. Snapper's willingness to undergo such painful and risky treatments corroborates the severity of his impairments, as highlighted in Diaz v. Prudential:
Diaz's testimony offers more than a long series of complaints spoken across the breakfast table. It demonstrates the kind of "long history of treatment" that we have found relevant in the past in comparable circumstances:
What is significant is the improbability that [the claimant] would have undergone the pain-treatment procedures that she did, which included not only heavy doses of strong drugs such as Vicodin, Toradol, Demerol, and even morphine, but also the surgical implantation in her spine of a catheter and a spinal-cord stimulator, merely in order to strengthen the credibility of her complaints of pain and so increase her chances of obtaining disability benefits …499 F.3d 640, 645 (7th Cir. 2007); see also Krupp v. Liberty Life Assurance Company of Boston, 936 F.Supp.2d 908, 918 (N.D. Ill. 2013) (“The Seventh Circuit has held that evidence of subjective pain cannot be discounted simply because it is ‘self-serving'”) (citing Diaz). By distilling Snapper's level of pain and postural limitations into functional findings that can be directly compared with Snapper's job duties, the PWPE provides the exact type of evidence needed by Unum Life to corroborate Dr. Laich's opinion and assess Snapper's qualification for ongoing benefits. Unum Life failed to point to any evidence that the PWPE is inconsistent with the treatment record at large or otherwise unreliable. The Court should give controlling weight to the PWPE.
3. The Court Should Give No Weight to the Opinion of Unum Life's Medical Director, Dr. Scott Norris
The only opinion Unum Life obtained following Snapper's appeal submission was that of Dr. Scott Norris. (UA-CL-LTD-004441-4443). Dr. Norris opines that Snapper's restrictions and limitations are not supported for reasons that are easily refuted or provided without any explanation. He claims that the imaging reports after Snapper's third surgery do not identify evidence of findings “commensurate with the degree of impairment [alleged by Snapper]” but fails to discuss the significance of the findings the imaging does provide and does not address the fact that surgical hardware obscures view of the relevant portions of the spinal column (L5-S1). Dr. Norris further claims, without examples, that physical exams showed “highly variable sensory findings . . . and motor deficit patterns that were not consistent between providers and were not consistent with radiographic and electrodiagnostic findings.” Yet the records not only consistently detail Snapper's left leg pain after Snapper's third surgery, but this argument is otherwise irrational - there could be no inconsistency between providers in the months leading up to Unum's termination because Snapper was unable to be examined in person after Dr. Laich's February 13, 2020 appointment due to COVID-19.
Dr. Norris also makes an issue that Snapper failed to re-enroll in the intensive pain management program after the first attempt failed. But there is no reasonable reason provided as to when or why he would have re-enrolled, nor any recommendation from any physician for him to do so. Finally, Dr. Norris calls Snapper's level of treatment from January 2019 through July 2020 “sporadic and inconsistent” - a time during which he had two surgeries, failed a spinal cord stimulator trial, failed an intensive pain management program, and required increasing medication to manage pain.
This is not the first time that Dr. Norris has provided an unreliable interpretation of a straightforward medical record. In Boykin v. UNUM Life Ins. Co. of Am., 2022 WL 458213, at *17 (E.D. Cal. Feb. 15, 2022), the court gave Dr. Norris' opinion little weight because he failed to explain why he discounted credible FCE findings and reached conclusions that were unreasonable given the fact that he never examined the plaintiff. In Clark v. Unum Life Ins. Co. of Am., 2018 WL 4931935, *15 (M.D. Tenn. Oct. 10, 2018), the court criticized Dr. Norris's review on appeal because his conclusory agreement with the prior file review report “fail[ed] to address the significant ways in which [the plaintiff's] supplemental materials augmented the administrative record - and thereby refuted numerous factual bases upon which her first appeal was denied.” In Christoff v. Unum Life Ins. Co. of Am., 2019 WL 4757884, at *5 (D. Minn. Sept. 30, 2019), the court opined that Dr. Norris' file review opinion contains an “interpretation of the medical records [that] fabricated conflict and inconsistency where none existed - [plaintiff's] submissions have been thorough and consistent, and Unum's evaluators did not directly contradict the evidence presented in support of Christoff's claim.” And in Dewsnup v. Unum Life Ins. Co. of Am., 2018 WL 6478886, at *10, the court concluded that “apart from phone calls, Unum reviewers [including Dr. Norris on appeal] simply parsed [plaintiff's] file and compiled what they believed to be contradictory evidence.” Accord, Carney v. Unum Life Insurance Company, No. 2:20-CV-12599-TGB-RSW, slip. op. at 22; 27-28 (E.D. Mich. March 31, 2022) (“For several reasons, the Court does not accept the contrary conclusions of Dr. Norris and the other Unum file reviewers as persuasive.”); Chicco v. First Unum Life Ins. Co., 2022 WL 621985, at *5 (S.D.N.Y. Mar. 3, 2022) (giving little weight to Dr. Norris's non-examining opinions because the medical evidence supported impairment).
Perhaps Dr. Norris's lack of reliable analysis, in this review and countless others, stems from the fact that he is unqualified to opine on complex spinal impairments and pain, as found in Fleming v. Unum Life Ins. Co. of Am., 2018 WL 6133859, at *10 (C.D. Cal. Nov. 20, 2018), or the fact that he has not treated a patient since at least 2010, as noted in Dwyer v. Unum Life Ins. Co. of Am., 548 F.Supp.3d 468, 483 (E.D. Pa. 2021). Either way, the above demonstrates that Unum Life's ongoing reliance on Dr. Norris for appeal reviews shows that it continues to “exhibit[] a low level of care to avoid improper denial of claims at great human expense.” Curtin v. Unum Life Ins. Co. of Am., 298 F.Supp.2d 149, 159 (D. Me. 2004). Unum Life should not be allowed to continue to rely on his opinion to deny claims. The Court should award benefits to Snapper.
Unum Life's continued reliance on Dr. Norris's unsupported medical reviews also fits a pattern and practice of biased claims handling. In 2004, Unum Life agreed to a Regulatory Settlement Agreement (“RSA”) with state insurance regulators and the U.S. Department of Labor following the finding of an ongoing practice of deficient, self-serving claims handling practices. A recent law review article shows how Unum's behavior in the intervening fifteen years has not improved. Thomas, P. (2021), “Fifteen Years Later - Did the Unum Group Improve Its ERISA Claims Handling Practices?” Mississippi Coll. Law Review: Vol. 39, Issue 2 (available at https://dc.law.mc.edu/lawreview/vol39/iss2/1/) (last accessed March 25, 2022).
V. Conclusion and Remedy
In consideration of the foregoing, the Court should rule in favor of Snapper and against Unum Life and issue an order reinstating his benefit claim and directing payment of all past-due benefits, with interest paid thereon, and payment of all attorneys' fees and costs pursuant to ERISA § 502(g) (29 U.S.C. § 1132(g)). 22