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Gary v. Unum Life Insurance Co. of America

United States District Court, D. Oregon

April 29, 2019

ALISON GARY, an individual, Plaintiff,
v.
UNUM LIFE INSURANCE COMPANY OF AMERICA, a Maine corporation, as administrator of the Dickstein Shapiro LLP Group Long Term Disability Plan, Defendant.

          Arden J. Olson HARRANG LONG GARY RUDNICK, PC Attorney for Plaintiff

          Robert B. Miller KILMER, VOORHEES & LAURICK, PC Attorney for Defendant

          OPINION & ORDER

          MARCO A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         The 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 summary judgment.

         BACKGROUND

         I. Procedural Background

         The 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 6-69.
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. 2[1], 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 follows:
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, 2018).

         Plaintiff 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.

         The 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.

         On 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.

         Now before the Court are the parties' cross-motions for summary judgment and Plaintiff's motion to strike Defendant's supplemental materials from the Administrative Record.

         II. The Policy

         The LTD Plan provides for a monthly disability income benefit after an initial 180-day elimination period. AR 388[1]. The Plan defines “disability” as:

         You are disabled when Unum determines that due to your sickness or injury:

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 or,
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 occupation.
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 disability.

AR 401.

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 disability begins.

AR 426.

         III. Plaintiff's Medical History and Records

          The 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.

         a. Treatment and evaluation-through October 6, 2014 surgery

         In her 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 229.

         Plaintiff 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.

         Dr. Xi Besha conducted a neuropsychological evaluation of Plaintiff on January 7, 2014[2], 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.

         Besha concluded that Plaintiff performed well on the neuropsychological evaluation,

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 questionnaires.

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.

         After a 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.

         While 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 Henderson.

         b. Recovery from surgery and ongoing medical issues-October 6, 2014 to April 6, 2015 (date of termination of Plaintiff's LTD benefits)

         On 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.

         On 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.

         On December 13, 2014, Dr. Pocinki submitted an “Attending Physician's Statement” to Mass. Mutual Financial Group[3], 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.

         On 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 non-metabolizer.

AR 237. He recommended a CT scan, as well as medication for her pain and anxiety. AR 237.

         She was 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[4] 1356.

         Dr. 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.

         On 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.

         c. Records from April 6, 2015 through July 26, 2017 (date of Defendant's Final Denial)

         On May 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 intact.
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 are identified.
4. Probable postsurgical dystrophic calcification in the soft tissues posterior to C2 and C3.

SR 48.

         On July 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.

         On 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.

         Plaintiff 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 284.

         A month 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.

         On 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.

         On 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.

         NP 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.

         On 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.

         On 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.

         On 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.

         As to 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.

         Dr. 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 ...


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