United States District Court, D. Oregon
J. Olson HARRANG LONG GARY RUDNICK, PC Attorney for Plaintiff
B. Miller KILMER, VOORHEES & LAURICK, PC Attorney for
OPINION & ORDER
A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE
Alison Gary brings three claims in this action under the
Employee Retirement Income Security Act of 1974, 29 U.S.C.
§§ 1001-1461 (“ERISA”), alleging that
Defendant Unum Life Insurance Company of America wrongfully
denied her application for long-term disability
(“LTD”) benefits under the LTD Plan entered into
by Defendant and Plaintiff's former employer. Plaintiff
contends that she is entitled to LTD benefits from April 6,
2015, to the date of judgment in this case.
Court already ruled on the merits of Plaintiff's second
claim, as explained below. Now, both parties move for summary
judgment on Plaintiff's first and third claims. In
addition, Plaintiff moves to strike portions of
Defendant's supplemental materials from the
Administrative Record. The Court grants Plaintiff's
motion to strike but denies Plaintiff's motion for
summary judgment. The Court grants Defendant's motion for
Court summarized the background of this case in its March 12,
2018 Opinion & Order, as follows:
In September 2012, Plaintiff became employed as an attorney
at Dickstein Shapiro LLP. FAC ¶ 5. Dickstein Shapiro has
a Group Long Term Disability Plan administered by Defendant.
Id. ¶¶ 1, 2. Plaintiff asserts that she
became totally disabled and that her physician ordered her to
cease practicing law on November 27, 2013. Id.
¶ 5. She stopped practicing law the next business day,
December 1, 2013, and alleges that she has been unable to
practice law since that date. Id.
On September 1, 2016, Plaintiff filed a claim for long-term
disability (LTD) benefits with Defendant, seeking benefits
since the November 27, 2013 disability onset date. Olson Nov.
30, 2017 Decl. ¶ 1, ECF 10. In seeking LTD benefits,
Plaintiff noted that she “is, and was at all times from
the beginning” of her eligibility, “disabled
under the terms of the policy.” Miller Jan. 5, 2018
Decl., Ex. 1 at 1, ECF 20-1. She asserted that she became
disabled one year after she began working at Dickstein
Shapiro, and “continues to remain unable to work as an
attorney[.]” Id., Ex. 1 at 2. She recited
several facts about her impairments and treatment from
November 2013 through October 2016 and in conclusion asserted
that she “is and has continuously since November 2013
been completely disabled under the terms of the LTD
Plan.” Id., Ex. 1 at 5. She also included more
than sixty pages of medical records. Id., Ex. 1 at
Defendant initially responded with a request for additional
information and a one month payment of benefits under a
reservation of rights. Olson Nov. 30, 2017 Decl. ¶ 3
& Ex. 1, ECF 10-1. Then, on February 24, 2017, Defendant
sent a letter to Plaintiff denying her claim (“the
February 24, 2017 decision letter” or “the
Initial Denial”). Id. ¶ 4 & Ex.
ECF 10-2. In the section entitled “Decision/Reason,
” Defendant wrote: “We have determined your
client was not disabled through the 180 day elimination
period. Because [Plaintiff] was not disabled through this
period, according to the policy, benefits are not
payable.” Id., Ex. 2 at 1. Defendant's
February 24, 2017 decision letter included two single-spaced
pages under the heading “Information That Supports Our
Decision, ” discussing the evidence Defendant reviewed
in assessing Plaintiffs claim. Id., Ex. 2 at 2-4.
First, Defendant explained that the policy has a 180-day
elimination period during which time the claimant must be
continuously disabled in order to receive disability
benefits. Id., Ex. 2 at 2. In this case, the
elimination period began on November 27, 2013 and ended May
25, 2014. Id. Next, Defendant cited to various
medical records provided by Plaintiff. Id., Ex. 2 at
2-4. Following that, Defendant provided relevant policy
provisions for defining disability, the elimination period,
and termination of coverage. Id., Ex. 2 at 4-5.
Finally, the February 24, 2017 decision letter included an
explanation of Plaintiffs right to appeal, how to pursue an
internal appeal, and if necessary, the right to file an ERISA
action in court. Id., Ex. 2 at 6-7.
Plaintiff filed her administrative appeal on June 8, 2017.
Olson Nov. 30, 2017 Decl. ¶ 5. In support, she submitted
a fifty-one page, mostly single-spaced letter, along with
thirty-two exhibits totaling more than two hundred pages.
Miller Jan. 5, 2018 Decl. ¶ 3 & Ex. 2, ECF 20-2.
Defendant responded to the appeal in a July 26, 2017 letter
(“the Final Decision.”). Olson Nov. 30, 2017
Decl. ¶ 6 & Ex. 3, ECF 10-3. The Final Decision
explained Defendant's “Appeal Decision” as
On appeal, we have determined [Plaintiff] was disabled from
Nov. 27, 2013, through April 6, 2015. We are approving LTD
benefit payments for that period.
After April 6, 2015, we have concluded [Plaintiff] was able
to perform the duties of [her] regulation occupation and no
longer met the definition of disability in the policies.
Id., Ex. 3 at 2. The Final Decision included a
several page, single-spaced section with information
supporting Defendant's decision, followed by applicable
policy provisions including the definition of disability.
Id., Ex. 3 at 2-9. It also explained that if
Plaintiff disagreed with the decision, she could file a civil
ERISA suit. Id., Ex. 3 at 10. No. right to an
internal review was mentioned. This lawsuit followed.
Gary v. Unum Life Ins. Co. of Am., No.
3:17-CV-01414-HZ, 2018 WL 1309991 at *1-2 (D. Or. Mar. 12,
filed this action on September 8, 2017. Compl., ECF 1. She
subsequently filed a First Amended Complaint
(“FAC”), in which she brought three claims for
relief. FAC, ECF 24. On March 12, 2018, this Court granted in
part Plaintiff's motion for summary judgment on her
second claim. Gary, 2018 WL 1309991 at *7. The Court
held that the Final Decision articulated a new or different
reason than the reason given in the Initial Denial and,
therefore, violated Plaintiff's right to a “full
and fair review” of the denial of her claim under 29
U.S.C. § 1133 and its implementing regulation, 29 C.F.R.
§ 2560.503-1. While the Court found that Defendant
violated Plaintiff's right to a full and fair review, it
denied Plaintiff's requested relief of ordering
retroactive payment of LTD benefits from April 6, 2015 to the
date of judgment in this case. Id. at *9. Instead,
the Court held that the appropriate remedy was to allow
Plaintiff to supplement the record. Id.
parties subsequently engaged in motion practice regarding (1)
Plaintiff's request to supplement the Administrative
Record with medical records relevant to her condition from
April 2015 to the present; and (2) her request the Court rule
that a de novo standard of review applies.
See Pl.'s Mot. Expand Record and Adopt De Novo
Standard of Review, ECF 35. On September 6, 2018, the Court
granted in part Plaintiff's motion to expand the
Administrative Record by allowing Plaintiff to supplement the
record with medical evidence in existence on or before
January 22, 2018. Sept. 6, 2018 Opinion & Order, ECF 45
(“Sept. 6, 2018 Op.”). The Court denied the
motion to adopt a de novo standard of review.
Id. The Court held that “an abuse of
discretion standard applies with the appropriate level of
skepticism to be determined as part of the merits.”
Id. at 17.
September 27, 2018, the Court held a telephone scheduling
conference with the parties, in which the Court set a
schedule for summary judgment briefing and supplementing the
Administrative Record. On October 18, 2018, Plaintiff filed a
supplemental record and on November 30, 2018, Defendant filed
a supplemental record.
before the Court are the parties' cross-motions for
summary judgment and Plaintiff's motion to strike
Defendant's supplemental materials from the
Plan provides for a monthly disability income benefit after
an initial 180-day elimination period. AR 388. The Plan defines
disabled when Unum determines that due to your sickness or
1. You are unable to perform the material and substantial
duties of your regular occupation and are not
working in your regular occupation or any other occupation
2. You are unable to perform one or more of the material and
substantial duties of your regular occupation, and you have a
20% or more loss in your indexed monthly earnings
while working in your regular occupation or in any
You must be under the regular care of a physician in order to
be disabled. The loss of a professional or occupational
license or certification does not, in itself, constitute
Regular occupation means the occupation you are routinely
performing when your disability begins. Unum will look at
your occupation as it is normally performed in the national
economy, instead of how the work tasks are performed for a
specific employer or at a specific location. For attorneys,
“regular occupation” means your specialty in the
practice of law which you are routinely performing when your
Plaintiff's Medical History and Records
Court provides background information on Plaintiff's
medical conditions prior to April 6, 2015, as they are
necessary to understand her conditions after that date.
However, because there is no dispute as to Plaintiff's
disability between November 27, 2013 and April 6, 2015, the
Court focuses on her medical history after April 6, 2015. The
following summary is based on all the medical evidence in the
Administrative Record, including the supplemental records
submitted by Plaintiff and the supplemental records submitted
by Defendant, to the extent they are allowed in the
Administrative Record, as explained below.
Treatment and evaluation-through October 6, 2014
initial application for LTD benefits, Plaintiff described her
inability to continue her full-time attorney position
“on account of a series of inter-related medical
conditions, resulting in major surgery, which disabled her a
year after she began working for the [law] firm.” AR
sought treatment in November of 2013 because of concerns with
her cognition that were affecting her work. AR 229. She had
previously experienced joint issues related to Ehlers-Danlos
syndrome (“EDS”), Type III. AR 229. After
reviewing an MRI of Plaintiff's cervical spine, Dr.
Pocinki, an expert in joint mobility and EDS, diagnosed
Plaintiff with “cervicomedullary syndrome, a condition
where pressure on the brain stem causes numerous and varied
neurological, including in her case cognitive problems,
weakness, impaired coordination, bladder problems, numbness,
tingling, and other sensory disturbances.” AR 230.
Plaintiff had a limited ability to concentrate and would have
brief fainting spells, “precipitated by a
‘pop' in her neck, which would cause her suddenly
to fall to the ground and lose consciousness.” AR 230.
Besha conducted a neuropsychological evaluation of Plaintiff
on January 7, 2014, in which she concluded that depression
was the “most prominent finding” and Plaintiff
was “cognitively okay.” AR 215. Dr. Besha noted
that Plaintiff had not had “significant problems with
driving, but she had instances of forgetting how to steer her
car backwards.” AR 215. Dr.
concluded that Plaintiff performed well on the
with most scores falling in the superior to average range,
suggesting that she has sufficient cognitive resources to
function productively. She was somewhat slow on a test of
simple psychomotor speed, but she performed normally on a
more difficult test of complex psychomotor speed and she was
not particularly slow on other timed tasks. Taken together,
her pattern of performance is not particularly suggestive of
difficulty with processing speed. Her other poor performance
occurred on a test of sustained visual attention and
inhibitory control, which could be related to her significant
symptoms of depression, medication side effects (tramadol,
nortriptyline, carisoprodol, Percocet), recent marijuana use,
chronic pain, and subcortical white matter change. Of marked
concern in this case is Ms. Gary's affective functioning.
She has a history of severe depression with a suicide
attempt. Currently, she reported experiencing significant
symptoms of depression, particularly moderate to severe
cognitive and affective depressive symptoms, on self-report
AR 218. Dr. Besha noted that Plaintiff was taking medications
that could negatively affect her cognition and that, because
cognitive deficits are associated with acute cannabis use,
Plaintiff was encouraged to stop using marijuana. AR 218.
Plaintiff reported that she smoked marijuana the day before
the evaluation. AR 216.
year of experimentation with conservative treatment measures
and multiple visits to Dr. Pocinki and Dr. Fraser Henderson,
a neurosurgeon, Drs. Pocinki and Henderson recommended
surgery. On October 6, 2014, Plaintiff underwent a
“suboccipital decompression, reduction, and
occipitoaxial fusion-stabilization surgery.” AR 254-57.
Plaintiff was advised by Dr. Henderson that, because of the
EDS, “there would be a number of symptoms that remain
and may progress even after surgery and despite a successful
surgical procedure.” AR 255. He also noted that while
this had been a successful surgery for some patients,
sometimes it could take “six months for normal
activation of the muscle and return to normal neck
function.” AR 860.
the surgery helped with Plaintiff's cognitive issues, it
did not resolve them completely, nor did it resolve her
physical problems such as chronic pain. AR 237. Soon after
the surgery, Plaintiff moved from Maryland to Oregon, where
she has been under the care of multiple health care providers
and specialists to help recover from the surgery and to treat
the symptoms related to the underlying diseases which caused
the need for surgery. She has also returned as needed to
Maryland for follow-up consultations with Drs. Pocinki and
Recovery from surgery and ongoing medical issues-October
6, 2014 to April 6, 2015 (date of termination of
Plaintiff's LTD benefits)
November 18, 2014, Plaintiff was evaluated by Physical
Therapist Chelsea Mills at the Southtowne Medical Clinic in
Oregon, who noted Plaintiff's decreased postural and core
strength, inability to sit for more than 20 minutes, and
inability to walk for more than 16 minutes, due to neck pain,
spasms, and decreased strength following her surgery. AR 252.
November 25, 2014, Plaintiff was seen by Dr. William Hinz at
the Gateway Medical Center Rheumatology in Oregon, to
reestablish care for her EDS. AR 276. Dr. Hinz noted that
“technically there is no intervention for
Ehlers-Danlos” but he monitored her joint pain and
symptoms from hypermobility. AR 276. Dr. Hinz noted that
Plaintiff wore a neck stabilizing brace. AR 276. He discussed
with Plaintiff the importance of limiting her overall stress
and anxiety in order to improve her joint pain. AR 277 He
also noted that Plaintiff inquired about the use of medical
marijuana, which he opined was “a reasonable option
although we would have to have a discussion about the use of
marijuana and opioids.” AR 277.
December 13, 2014, Dr. Pocinki submitted an “Attending
Physician's Statement” to Mass. Mutual Financial
Group, an additional insurer of Plaintiff. AR
1539. He stated that Plaintiff was unable to perform
sedentary work and he would expect her to be able to return
to work in October of 2015. AR 1539.
January 5, 2015, Plaintiff returned to Maryland for a
post-surgery follow-up appointment with Dr. Henderson. AR
237. Dr. Henderson found the following:
She has done very well. She obviously looks very much
brighter. Her brain fog, dysphagia, and dysarthria have
largely cleared. Her imbalance, clumsiness, weakness, word
finding problems, cognitive issues, and memory problems have
largely cleared. She does report, however, that now she is
feeling more pain in her joints, particularly her shoulders,
hips, and knees. We speculate this may be because her nerves
are working better. She does not take NSAIDs because she is a
AR 237. He recommended a CT scan, as well as medication for
her pain and anxiety. AR 237.
seen the following day by Dr. Pocinki, who noted that her
cognitive function was much better, and she was thinking more
clearly. AR 1359. However, her fatigue was still severe and
“even upright posture wipes her out after about 40-45
minutes, ” AR 1359, which he attributed to long illness
and inadequate pain control, AR 1356. Dr. Pocinki wrote that
overall Plaintiff's “pain is worse.” AR 1356.
Dr. Pocinki noted lots of spasms in Plaintiff's neck,
shoulders, and chest. AR 1356. Further, Plaintiff's
subluxed knee was very painful. SR 1356.
Pocinki opined that it would likely take 12-18 months to
rebuild Plaintiff's tone, stabilize large joints, and
restore energy reserves. AR 1356. He increased her painkiller
prescription amounts. AR 1356.
March 2, 2015, Plaintiff was seen again by Dr. Hinz. He wrote
that “she is recovering well and may be able to return
to her law profession in a year or two.” SR 50.
Plaintiff was slowly increasing her physical therapy and
working with a physical therapist. SR 50. Dr. Hinz wrote that
she “is currently disabled.” SR 52.
Records from April 6, 2015 through July 26, 2017 (date of
Defendant's Final Denial)
11, 2015, Plaintiff had a cervical spine CT scan that
revealed the following:
1. There are postsurgical changes at the C1-C2 level from
posterior fusion as described below. The fusion appears
2. Minimal spondylotic changes at the C2-C3 and C3-C4 levels
with right-sided uncinate joint hypertropic changes. No.
other significant degenerative changes are noted.
3. No other radiographic abnormalities of the cervical spine
4. Probable postsurgical dystrophic calcification in the soft
tissues posterior to C2 and C3.
7, 2015, Dr. Pocinki spoke with a consulting doctor from
Mass. Mutual insurance and described Plaintiff's reports
of multiple dislocations exacerbated by deconditioning. SR
12. He anticipated that it might take over a year for the
dislocations to improve as muscle tone improved with physical
therapy. SR 13.
August 11, 2015, Plaintiff was seen by Dr. Hinz. SR 43. He
wrote that she had slowly increased her physical activity and
was working with a physical therapist. SR 43. On exam,
Plaintiff “demonstrate[d] several pain and points in
her back and several painful spinous processes throughout
cervical thoracic and lumbar spine.” SR 45. Her rotator
cuff was intact, and it was an “otherwise normal exam
of bilateral shoulders hips and knees without effusions or
deformity.” SR 45. Her muscle strength was “5 out
of 5 in all extremities.” SR 45. She was in a
neck-stabilizing brace. SR 45.
also sought treatment from a gastroenterologist. On August
14, 2015, she was seen by Dr. Ryan De Lee for abdominal pain,
nausea, vomiting, regurgitation, and dyspepsia. AR 280. Dr.
De Lee noted that Plaintiff's EDS is
“significant”, and she has “spontaneously
subluxed neck vertebrae in her sleep.” AR 280. He also
noted that she was taking tramadol, soma, Percocet,
nortriptyline, oxycontin, Cymbalta, and marijuana. AR 280. He
discussed with Plaintiff that “her medical condition
has seemingly painted her into a corner with narcotics,
” and he wrote that he was unable to prove that she had
EDS-induced gastroparesis, given her multiple medications. AR
later, on September 15, 2015, Plaintiff was seen by Dr. Gary
Brandt at the Oregon Medical Group for follow-up for complex
chronic pain management. AR 286. Dr. Brandt assessed
Plaintiff with chronic multifactorial pain associated with
hypermobility syndrome, EDS, and endometriosis. AR 286.
Plaintiff reported that she was not driving. AR 286.
November 24, 2015, Plaintiff was seen at the OHSU Center for
Women's Health by Nurse Practitioner Meera Kanakia. AR
291-96. Plaintiff needed treatment for chronic pain and a
refill of her oxycontin prescription. AR 292-93. NP Kanakia
agreed to explore an exception to OHSU's policy of not
combining opioids with medical marijuana. AR 296.
February 25, 2016, NP Kanakia saw Plaintiff for
“medication management.” SR 142-146. On July 12,
2016, NP Kanakia wrote a letter regarding Plaintiff, in which
she stated that Plaintiff continued to suffer from multiple
symptoms that prevent her from working, “particularly
as an attorney, ” including intractable muscle spasms
in her neck and shoulders, pain, fatigue, dizziness, and
nausea. AR 291. Plaintiff was unable to drive an automobile
and had to lay down at various unpredictable times throughout
the day due to her symptoms. AR 291. Plaintiff continued to
have impairment of reflexes and balance, and she required
medication that would impair her work performance. AR 291.
Kanakia saw Plaintiff again for medical refills on August 22,
2016. SR 151. NP Kanakia wrote that Plaintiff was having
difficulty with fatigue and attention span. SR 151. Plaintiff
thought she could start working 12 hours a week “as
long as not sitting at a desk which exacerbates her
pain.” SR 151. NP Kanakia noted that Plaintiff
“does not drive” and started regular exercise. SR
152. Plaintiff hoped to start part-time work in October once
she was cleared by her neurosurgeon. SR 154.
October 10, 2016, Dr. Henderson wrote to NP Kanakia,
summarizing his findings after meeting with Plaintiff. AR
853. Dr. Henderson noted that Plaintiff reported that her
memory, sensation, weakness, blackout, and word retrieval
problems had resolved. AR 853. However, Plaintiff still had
some memory, concentration, and reflex issues, according to
Dr. Henderson. AR 853. She also had muscle spasms, urinary
difficulties, and shoulder and neck pain. AR 853. Dr.
Henderson also noted some imbalance, hyperolfaction,
photosensitivity, choking, paresthesias, nausea, dysphagia,
altered “sleep architecture, ” and muscle
cramping. AR 853. Plaintiff described a feeling of
instability in her neck and she had several episodes where
neck spasms caused her to fall with resulting full-body
weakness. AR 853. She also had occasional hallucinations in
her peripheral vision. AR 853. Dr. Henderson examined
Plaintiff and noted that she was “severely
hyperreflexic, ” had some “patchy sensory loss
over the shoulders, ” no specific weakness, normal gait
and cerebellar testing, and significant tenderness behind the
cervical spine. AR 853.
October 11, 2016, Plaintiff was seen by Dr. Pocinki. AR 1421.
While overall her neurological problems were better, she
experienced persistent pain, fatigue, and spasms, including a
pinched nerve in her right shoulder. AR 1421. She had been
doing well exercising in a pool several times a week, but
recently she had more spasms in her neck and shoulder. AR
1421-22. Plaintiff had to wear a hard neck brace to tolerate
more than 15 minutes of sitting and, even then, she could
only tolerate 90 minutes. AR 1422. She was able to walk some
and drive locally to do short errands. AR 1422. However, she
was exhausted by 7 p.m. and probably only capable of 4-5
hours of light activity with frequent breaks. AR 1422. Dr.
Pocinki stated that the addition of a muscle relaxant and
increased tramadol might help Plaintiff, but “finding
the right muscle relaxant might be trial error.” AR
1422. Plaintiff submits a declaration attesting that Dr.
Pocinki told her she could work no more than four hours a
week, two shifts of two hours apiece. AR 1447. He also told
her that working any more than that would adversely affect
her recovery. AR 1447.
November 6, 2016, Dr. Pocinki wrote to Defendant, responding
to a request for additional information and analysis. AR 982.
Dr. Pocinki strongly disagreed with the opinion of Dr. James
Haller, Defendant's medical consultant. AR 982. Whereas
Dr. Haller found that physical examination findings would not
preclude sedentary physical demands, Dr. Pocinki stated that
Plaintiff was not capable of prolonged sitting. AR 984. He
also stated that Plaintiff “could not exert 10 pounds
of force to lift, carry, push, pull, etc. for anything close
to one third of an 8-hour day without sustaining significant
injury.” AR 984.
Plaintiff's cognitive limitations, Dr. Pocinki rebutted
Dr. Haller's conclusion that Plaintiff could direct,
control, or plan activities for others; influence people in
their opinions, attitudes, and judgments; or make judgments
and decisions. AR 984. Dr. Pocinki pointed to his chart notes
from November 19, 2013 and September of 2014. AR 984-85.
Pocinki submitted another “Attending Physician's
Statement on Disability” to Mass. Mutual on November 6,
2016. SR 10-11. Dr. Pocinki opined that Plaintiff was
“[n]ot able to sustain physical or cognitive activity
for more than a few short periods a day” and her
expected return to work date was “unknown.” SR
10-11. He selected “less ...