Fife v. Cooperative Benefit Administrators, Inc

Filing 71

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 9/10/2014. (JLC)

FILED
2014 Sep-10 AM 11:22
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
KIMBERLY FIFE,

)
)
Plaintiff,
)
)
v.
) Case No.: 4:12-CV-3602-VEH
)
COOPERATIVE BENEFIT
)
ADMINISTRATORS, INC., and the )
NATIONAL RURAL ELECTRIC
)
COOPERATIVE ASSOCIATION
)
GROUP BENEFITS PROGRAM,
)
)
Defendants.
)

MEMORANDUM OPINION
This case is brought under the Employee Retirement Income Security Act of
1974, 29 U.S.C. § 1001 et seq. (“ERISA”). The plaintiff, Kimberly Fife, alleges that
defendant Cooperative Benefit Administrators, Inc. (“CBA”), wrongfully denied her
long term disability (“LTD”) benefits allegedly due her under a long term disability
plan (the “Plan”) provided by her former employer, Cherokee Electric Cooperative
(“Cherokee”). (Doc. 1-1, at 3). On January 8, 2013, the plaintiff filed a document
entitled “Amended Complaint” which added the National Rural Electric Cooperative
Association Group Benefits Program (“NRECA”) as a defendant, alleging that
“[p]laintiff has long term disability protection through the National Rural Electric

Cooperative Association Group Benefit Plan which is administered by Cooperative
Benefit Administrators, Inc.” (Doc. 9 at 1).1
The case is now before the court on the plaintiff’s motion for summary
judgment (doc. 36), the defendants’ motion for summary judgment (doc. 50), the
plaintiff’s objection to and motion to strike portions of an affidavit offered in support
of the defendants’ motion for summary judgment (doc. 55), the plaintiff’s objection
to and motion to strike certain facts proffered in support of the defendants’ motion
for summary judgment (doc. 56),2 and the plaintiff’s motion to allow supplemental
authority (doc. 62). For the reasons stated herein, the motion to allow supplemental
authority will be GRANTED; the objection to and motion to strike portions of an

1

Rule 8 of the Federal Rules of Civil Procedure requires a claim for relief to contain:

(1) a short and plain statement of the grounds for the court’s jurisdiction, unless
the court already has jurisdiction and the claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is entitled to
relief; and
(3) a demand for the relief sought, which may include relief in the alternative or
different types of relief.
Fed. R. Civ. P. 8(a). The original and amended complaints are each six sentences long. If they
contain the above items, they do so only barely. This issue has not been raised by the parties and
the court raises it here only to note that a much better job of pleading could have been done. For
example, although the plaintiff is clearly seeking long term disability benefits, neither version of
the complaint states that such benefits have been denied, and/or who denied them.
2

Document 56 is not referenced as a motion in the court’s CM/ECF system.
2

affidavit offered in support of the defendants’ motion for summary judgment will be
treated as a objection and will be SUSTAINED; the objection to and motion to strike
certain facts proffered in support of the defendants’ motion for summary judgment
will be treated as an objection and will be SUSTAINED in part and OVERRULED
in part as noted herein; the plaintiff’s motion for summary judgment will be
DENIED; and the defendants’ motion for summary judgment will be GRANTED.
I.

THE PLAINTIFF’S MOTION TO ALLOW SUPPLEMENTAL
AUTHORITY (DOC. 62)3
The motion will be GRANTED. The court has considered the supplemental

authority and argument contained in the motion and the response thereto (doc. 63).
II.

THE PLAINTIFF’S MOTION TO STRIKE (DOC. 55)
It has long been the law in this circuit that, when deciding a motion for

summary judgment, a district court may not consider evidence which could not be
reduced to an admissible form at trial. See Macuba v. Deboer, 193 F.3d 1316, 1323
(11th Cir. 1999). But, until 2010, Rule 56 lacked a formal procedure to challenge
such inadmissible evidence. In 2010, the advisory committee added Rule 56(c)(2),
which provides:
A party may object that the material cited to support or dispute a fact cannot
be presented in a form that would be admissible in evidence.
3

The document appears in the court file as a “notice.” (Doc. 62).
3

Fed. R. Civ. P. 56(c)(2). Although the plaintiff has styled the motion as a motion to
strike, the motion is, in substance, a challenge to the admissibility of the defendants’
evidence. Therefore, the court will treat the motion as an objection under Rule
56(c)(2).
The advisory committee’s note to Rule 56(c)(2) provides that:
[An] objection [under Rule 56(c)(2)] functions much as an objection at
trial . . . . The burden is on the proponent to show that the material is
admissible as presented or to explain the admissible form that is
anticipated.
Fed. R. Civ. P. 56 advisory committee’s note to 2010 amendments (emphasis added).
The entirety of the plaintiff’s short motion reads:
Plaintiff moves to strike the following:
The following portions of Peter Baxter’s affidavit . . . as
submitted by CBA and as attached to this Motion:
26. DMS is an independent contractor that provides
services to CBA consisting of reviewing CBA’s file,
investigating an appeal through, among other things,
consultation with consulting physicians, and providing
recommendations to CBA in connection with plan
participant appeals.
28. Consistent with Section 3 (d) of the agreement between
DMS and the Plan, DMS provides these services solely in
a consultative capacity and without having or exercising
any fiduciary or discretionary authority regarding the Plan
or plan participants’ claims for benefits.

4

The contract is in evidence and speaks for itself. Mr. Baxter’s
characterization of the contract and the relationship of the entities is not
admissible. Fife has been denied discovery so Mr. Baxter cannot be
deposed.
(Doc. 55 at 1-2). The motion cites no rule of evidence, case, or other authority for
why this evidence should be stricken.
This is the second motion to strike Baxter’s affidavit that the plaintiff has filed.
In the first such motion, which was filed as part of the response to the defendants’
motion for summary judgment on the applicable ERISA standard of review, the
plaintiff sought to strike the entire affidavit, arguing: “Peter Baxter’s affidavit is not
included in the claim file and Peter Baxter is not listed on the initial disclosures.
Plaintiff objects to adding affidavits to the Administrative Record[.] Defendants are
not entitled to supplement the record.” (Doc. 30 at 2). In that motion as well, the
plaintiff provided no legal support for her argument. The court denied the motion
holding that “the issue in the instant motion is not denial of benefits. It is the proper
standard of review and whether to consider an alleged conflict of interest in this case.
Accordingly, the court may look outside the administrative record.” (Doc. 46 at 5).
Now, in response to the instant motion, the defendants explain, and the court
agrees, that the affiant’s statements relate for the most part only to the capacity in
which DMS functions, not the terms of any contract. Of course, as the defendants also

5

note, the capacity in which DMS functions is only relevant to the determination of the
proper standard of review. It has already been determined that the proper standard of
review in this case is “arbitrary and capricious.” See, doc. 46 at 33, 41. “To be
admissible[,] evidence must be relevant.” Williams v. Bd. of Regents of Univ. Sys. of
Georgia, 629 F.2d 993, 999 (5th Cir. 1980).4 The defendants, upon whom the burden
falls to establish admissibility, fail to show why this evidence might otherwise be
relevant.5 Accordingly, the objection to this evidence will be SUSTAINED.

4

The Eleventh Circuit has adopted as binding precedent all Fifth Circuit decisions issued
before October 1, 1981, as well as all decisions issued after that date by a Unit B panel of the
former Fifth Circuit. Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir. 1982); see also
United States v. Schultz, 565 F.3d 1353, 1361 n.4 (11th Cir. 2009).
5

In a response equally as short as the plaintiff’s motion, the defendants write:

While these facts are relevant to the proper standard of review, the Court has
already determined the applicable standard of review. Fife v. Cooperative Benefit
Administrators, 2013 WL 5519720 (N.D. Ala. Oct. 1, 2013).
Moreover, the court has already decided that DMS was an independent
contractor, 2013 WL 5519720 at *6, that DMS acts in a consultative capacity, id.
at *6-7 and 12, and that the “evidence is overwhelming that DMS did not make
the decision” denying Fife’s claim, id. at *12. Thus, Fife is asking the Court to
ignore facts the Court has already found undisputed.
But Fife has no basis for the Court to reconsider it[s] earlier ruling. Instead
Fife would need to show an intervening change in controlling law, the existence
of new evidence that was not previously available or a clear error or manifest
injustice that needs to be corrected through reconsideration. Busby v. JRHBW
Realty, Inc. D/b/a RealtySouth, 642 F. Supp. 2d 1283, 1286 (N.D. Ala. 2009)
(Hopkins, J.). She has made no effort to meet this standard.
(Doc. 61 at 1-2). The court does not see the motion as asking the court to reconsider an earlier
ruling. The defendants’ response does not explain why the evidence might be relevant.
6

III.

THE PLAINTIFF’S OBJECTION TO AND MOTION TO STRIKE
CERTAIN FACTS PROFFERED IN SUPPORT OF THE
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DOC. 56)
In an undeveloped and unsupported argument, the plaintiff argues first that

materials in the administrative record which relate to the plaintiff’s condition and
ability to work, but which were first considered before remand by this court, should
not be considered herein because “[t]he only decision under review is the opinion of
the Appeals Committee . . . after the remand by the [c]ourt.” (Doc. 56 at 1). This
objection is without merit and will be OVERRULED.
The plaintiff also objects to any discussion of the plaintiff’s respiratory and
psychological issues “because Fife claims benefits due to pain, [f]ibromyalgia, and
effects of medication.” (Doc. 56 at 2). The court agrees that, to some extent, this
information is irrelevant. However, as is noted in the summary judgment opinion
which follows, some of that information is important to include to make the
discussion of the plaintiff’s medical history more clear. The objection will be
SUSTAINED in part and OVERULLED in part. The court will note in the opinion
where information has been excluded and included and for what reason.
IV.

THE SUMMARY JUDGMENT MOTIONS (DOCS. 36 and 50)
A.

Standard

Under Federal Rule of Civil Procedure 56, summary judgment is proper if there
7

is no genuine dispute as to any material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986) (“[S]ummary judgment is proper if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”) (internal quotation
marks and citation omitted). The party requesting summary judgment always bears
the initial responsibility of informing the court of the basis for its motion and
identifying those portions of the pleadings or filings that it believes demonstrate the
absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the
moving party has met its burden, Rule 56(e) requires the non-moving party to go
beyond the pleadings in answering the movant. Id. at 324. By its own affidavits – or
by the depositions, answers to interrogatories, and admissions on file – it must
designate specific facts showing that there is a genuine issue for trial. Id.
The underlying substantive law identifies which facts are material and which
are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All
reasonable doubts about the facts and all justifiable inferences are resolved in favor
of the non-movant. Chapman, 229 F.3d at 1023. Only disputes over facts that might
affect the outcome of the suit under the governing law will properly preclude the
8

entry of summary judgment. Anderson, 477 U.S. at 248. A dispute is genuine “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. If the evidence presented by the non-movant to rebut the moving party’s
evidence is merely colorable, or is not significantly probative, summary judgment
may still be granted. Id. at 249.
How the movant may satisfy its initial evidentiary burden depends on whether
that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v.
City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant bears the burden
of proof on the given issue or issues at trial, then it can only meet its burden on
summary judgment by presenting affirmative evidence showing the absence of a
genuine issue of material fact – that is, facts that would entitle it to a directed verdict
if not controverted at trial. Id. (citation omitted). Once the moving party makes such
an affirmative showing, the burden shifts to the non-moving party to produce
“significant, probative evidence demonstrating the existence of a triable issue of fact.”
Id. (citation omitted) (emphasis added).
For issues on which the movant does not bear the burden of proof at trial, it can
satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16.
First, the movant may simply show that there is an absence of evidence to support the
non-movant’s case on the particular issue at hand. Id. at 1116. In such an instance, the
9

non-movant must rebut by either (1) showing that the record in fact contains
supporting evidence sufficient to withstand a directed verdict motion, or (2)
proffering evidence sufficient to withstand a directed verdict motion at trial based on
the alleged evidentiary deficiency. Id. at 1116-17. When responding, the non-movant
may no longer rest on mere allegations; instead, it must set forth evidence of specific
facts. Lewis v. Casey, 518 U.S. 343, 358 (1996). The second method a movant in this
position may use to discharge its burden is to provide affirmative evidence
demonstrating that the non-moving party will be unable to prove its case at trial.
Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering
evidence sufficient to withstand a directed verdict at trial on the material fact sought
to be negated. Id.
Although there are cross-motions for summary judgment, each side must still
establish the lack of genuine issues of material fact and that it is entitled to judgment
as a matter of law. See Chambers & Co. v. Equitable Life Assur. Soc. of the U.S., 224
F.2d 338, 345 (5th Cir. 1955); Matter of Lanting, 198 B.R. 817, 820 (Bankr. N.D.
Ala. 1996). The court will consider each motion independently, and in accordance
with the Rule 56 standard. See Matsushita Elec. Indus. Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587-88 (1986). “The fact that both parties simultaneously are arguing
that there is no genuine issue of fact, however, does not establish that a trial is
10

unnecessary thereby empowering the court to enter judgment as it sees fit.” See
WRIGHT, MILLER & KANE, FEDERAL PRACTICE AND PROCEDURE § 2720, at 327-28
(3d ed. 1998).
B.

The Plaintiff’s Failure To Comply with the Summary Judgment
Scheduling Order

The plaintiff’s submissions in support of her motion for summary judgment
fail, in many respects, to comply with this court’s summary judgment scheduling
order. (Doc. 2 at 14-21). Document 36, which is the motion for summary judgment
itself, is 48 pages long and is comprised of facts, argument, and in depth discussion
of evidence. In addition, the plaintiff has submitted document 38, which is entitled
“Plaintiff’s Memorandum In Support of Summary Judgment.” The length and content
of the motion are a clear attempt by the plaintiff to enlarge the number of pages in
which she has to argue the issues.6 The scheduling order allows the submission of “a”
brief, not “two” briefs. Document 36 will be STRICKEN to the extent that it does
anything other than put the court on notice that the plaintiff has filed a motion for
summary judgment. Document 48, which is the defendants’ response to document 36,
will also be STRICKEN.
Turning to the plaintiff’s actual brief (doc. 38), it too fails to comply with this
6

The defendants have objected to the motion as being in contravention of this court’s
scheduling order. (Doc. 49 at 6-7).
11

court’s scheduling order. First, it fails to include a table of contents. (See, doc. 2 at
15 (“Briefs that exceed twenty pages must include a table of contents that accurately
reflects the organization of the document.”)). Second, the court’s scheduling order
states “[t]he parties’ submissions in support of and opposition to summary judgment
motions must consist of: (1) a brief containing, in separately identified sections, (i)
a statement of allegedly undisputed relevant material facts and (ii) a discussion of
relevant legal authorities.” (Doc. 2 at 15). It also states that “[a]ll briefs submitted
either in support of or opposition to a motion must begin with a statement of allegedly
undisputed relevant material facts.” (Doc. 2 at 16) (emphasis added). Not only does
the plaintiff’s brief not begin with the facts, it also includes an eight page introduction
which includes facts and argument (doc. 38 at 1-8), a separate statement regarding the
ERISA standard of review (doc. 38 at 8), and a separate statement of “issues” which
reads like argument (doc. 38 at 9). In its scheduling order the court “reserve[d] the
right sua sponte to STRIKE any statements of fact or responsive statements that fail
to comply with these requirements.” (Doc. 2 at 19) (italics in original). In accordance
with that provision, pages 1-9 of the plaintiff’s initial brief will be STRICKEN as in
violation of the court’s scheduling order. The defendants’ response to these sections

12

(doc. 49 at 7-19) is also STRICKEN.7
Also in contravention of this court’s orders, pages 3-12 (up to the response to
the defendants’ statement of facts) of the plaintiff’s opposition to the defendants’
motion for summary judgment (doc. 57) includes additional facts and argument. That
portion of document 57 will be STRICKEN. Defendants’ response to this section
(doc. 59 at 7-9) will also be STRICKEN.
Finally, the court’s scheduling order requires that the statement of facts
themselves be “set out in separately numbered paragraphs. Counsel must state facts
in clear, unambiguous, simple, declarative sentences. All statements of fact must be
supported by specific reference to evidentiary submissions.” (Doc. 2 at 16). The facts,
as stated by the plaintiff, fail in several cases to follow these guidelines. (See doc. 38
at facts no. 1, 3, 10, 15). However, the court will not strike the plaintiff’s facts, but
will instead treat each sentence as a separate stated fact and determine whether it is
supported by the record.

7

Although the lengths of all briefs exceed what is typically allowed by this court (see
doc. 2 at 15), on September 12, 2013, this court entered an order which provided:
The parties may file opening memoranda in support of their Summary Judgment
motions that shall not exceed 50 pages in length. Responses to opening
memoranda in support of Summary Judgment motions shall also not exceed 50
pages in length. Reply briefs shall not exceed 25 pages in length.
(Doc. 42 at 1). The court applies this order retroactively to the plaintiff’s brief in support of her
motion for summary judgment.
13

C.

Facts
1.

Kimberly Fife

Fife was an employee of Cherokee which is a member of the NRECA. Among
the services the NRECA provides for its members is a long-term disability plan (“the
LTD Plan”) which is a self-insured Plan subject to ERISA. CBA, the claims adjuster,
is a wholly-owned subsidiary of the NRECA. Cherokee offered the LTD Plan to its
employees.
The National Rural Electric Cooperative Association Group Benefits Program
has an appeals administration agreement with Disability Management Services, Inc.
(DMS) to review appeals of LTD claims. DMS, in turn, hired MLS National Medical
Evaluation, Inc. to obtain medical record reviewers.8
2.

The NRECA Long Term Disability Plan

Under the Plan, a participant must be “prevented from performing any or all of
the Material and Substantial Duties of [her] Own Occupation due to any accidental
bodily injury [or] sickness ….” (Doc. 52 at 36, § 2.04). After 24 months, a participant
must be “unable to perform any or all of the Material and Substantial Duties of any
Gainful Occupation.” (Id.). “Material and Substantial Duties” are “the essential tasks

8

The plaintiff’s fact number 3, proffered in her brief in support of her motion for
summary judgment, is merely argument followed by a five page block quotation from the
decision of the Appeals Committee. (Doc. 38 at 11-17). The fact will not be included.
14

of an occupation that cannot reasonably be modified or omitted, not including
overtime work.” (Doc. 52 at 37, § 2.12). The term “Own Occupation” is defined as
any similar job that involves Material and Substantial duties of the same
general nature as the Participant’s regular job at the Participating
Cooperative when the disability begins. It does not mean the specific job
the Participant is performing for a specific Participating Cooperative or
at a specific location.
(Doc. 37 at § 2.15). Further, a claimant seeking disability payment is subject to a
“Benefit Waiting Period” -- a 13 week period during which she must demonstrate a
“continuous Disability” before benefit payments could commence. (Doc. 52 at 35-36,
42, §§ 2.02, 7.07). Fife sought benefits in September 2010, claiming she could not
work as an Accounting – Payroll Clerk.
3.

Fife’s Job

Fife’s employer confirmed that her position as an Accounting – Payroll Clerk
was “sedentary work.” Fife submitted her job description with her initial LTD claim
on 9/21/10, which includes:
The Accounting Clerks’/Staff Accountants’ positions are assigned
specific responsibilities and may be reassigned at management’s
discretion. Therefore, the Accounting Clerks/Staff Accountants are
placed in charge or a particular accounting function but may be moved
if decided upon by management. The specific major accounting
areas/functions that may be assigned and reassigned are:
1. ACCOUNTS PAYABLE – JOB RESPONSIBILITIES

15

…
2. CONSUMER ACCOUNTING – JOB RESPONSIBILITIES
…
3. PAYROLL ACCOUNTING – JOB RESPONSIBILITIES
…
4. WORK ORDER ACCOUNTING – JOB RESPONSIBILITIES
…
5. MATERIAL ACCOUNTING – JOB RESPONSIBILITIES
…
6. GENERAL ACCOUNTING – JOB RESPONSIBILITIES
…
7. ACCOUNTING/CUSTOMER SERVICE/ENGINEERING – JOB
RESPONSIBILITIES
(Doc. 65-17 at 53-57).9 Fife’s employer confirmed her position entailed, among other
things, approximately 7 hours a day of sitting; 1 hour a day of talking; no lifting or
carrying ;“simple grasping” with both hands; but no “firm grasping,” no “fine
manipulation” and no “pushing/pulling.” (Doc. 36-11 at 7). The Appeals Committee

9

The court realizes that this fact, which was proffered by the plaintiff exactly as it
appears, omits the actual job responsibilities under each category. As they were not important
enough for the plaintiff to include, the court will not substitute its judgment for the plaintiff’s and
guess as to which responsibilities should be included here.
16

also found that the plaintiff was “required to occasionally bend, squat[,] and reach.”
(Doc. 36-6 at 3).
4.

Fife’s Medical Treatment Records10

10

Rule 56 requires the court to only consider materials which were cited. Fed. R. Civ. P.
56(c)(3). The plaintiff does not set out the contents of her records, writing only:
4. Fife submitted substantial and convincing evidence of disability including:
Ex. 1: Favorable Social Security Decision 7/2/12 with disability onset of 6/8/10
(NRECA 131-140) and eight medical records on which the SSA Award was based
(NRECA 24-130). Ex. 11: Dr. Rainer’s, Plaintiff’s treating physician,
confirmation of disability on 12/3/10 (Ex. 11, NRECA 720-721)
Ex. 12: Medical records of Dr. Rainer, which supported his opinions (Ex. 12,
NRECA 851-853), 11/30/09, 2/8/10, 5/19/10, 5/25/10, 6/7/10, 6/16/10, 6/21/10,
7/6/10, 7/27/10, 8/4/10, 8/18/10, 9/20/10 (NRECA 229-264).
Ex. 15: Dr. Chindalore’s records for fibromyalgia, osteoarthritis, neck pain
7/21/09, 12/4/09, 3/22/10, and 6/30/10. (Ex. 15, NRECA 265-296)
Ex. 16: Dr. Bowen’s records of Birmingham Neurosurgery and Spine Group
4/27/10-5/6/10 showing stenosis C6-7 bilaterally and some stenosis at C5-6. (Ex.
16, NRECA 731-742)
Ex. 17: Report of Medical Record Reviewer by Dr. Mary Beth Scholand
(Pulmonologist) of Medical Review Institute of America - 12/15/10 who
supported disability on the basis of pain. (Ex. 17, NRECA 713-718)
Ex. 20: Fife appeal to CBA 3/1/11 (NRECA 636-638) with submissions of new
evidence from Dr. Alexander 12/3/09 (NRECA 647-653) and updated records
from Dr. Conner3 11/24/10, 12/21/10, 1/20/11, 1/25/11, 2/10/11, 2/16/11
(NRECA 282-296) (NRECA 667-676) and MRI results and an explanation that
fibromyalgia and osteoarthritis were not included because CBA told her to list
only the reason she was out of work that week. Fife explained that her disability
was not just the pulmonary issues.
Ex. 29: Fife’s second appeal notice 8/24/11 (NRECA 474-482) with a
chronological history of relevant medical records including a fall in 11/09, history
of back pain, confirmation of fibromyalgia with trigger points on 3/22/10, active
17

right C7 radiculopathy and C6 disk pathology on 5/18/10, and diagnosis of
disabling pain of 6/19/11 by Dr. Conner. (Ex. 29)
Ex. 31: Vocational report by Dr. Crunk confirming total disability. (Ex. 31)
Ex. 34: Cherokee Health Clinic Records Dr. Ranier 11/30/09, 2/8/10, 5/19/10,
5/25/10, 6/7/10, 6/16/10, 6/21/10, 7/6/10, 7/27/10, 8/4/10, 8/18/10, 9/20/10:
(NRECA 229-264)
Ex. 36: Dr. Henry Ruiz, neurosurgeon 5/18/10 (NRECA 765-768):
“Impression: Active right C7 radiculopathy secondary to c6 disk
pathology, both degenerative and due to calcification in nature.”
Ex. 37: Evaluation by Dr. Henry Born, examining physician for the SSA,
confirming of isability. (Ex. 7, NRECA 693-697; Ex. 37, NRECA 693-697)
Ex. 38: Dr. Connor’s records at Pain & Wound Care Center for fibromyalgia,
neck and hip pain with herniated disc in neck 8/8/10-4/17/12: (Ex. 38, NRECA
302-307, 310-315, 318-348, 356-358, 364, 370-371, 374-375, 380-381, 385-387,
389-398)
Ex. 40: MRI’s of 4/27/10, Cherokee Health Clinic. (NRECA 163-174)
(Doc. 38 at 6-8). She has technically “cited” this evidence. However, this technique basically just
alleges that, somewhere in these records, there is medical and vocational evidence which
supports her claim. She puts the onus on the court to “dig it up” on her behalf. Literally hundreds
of pages of records have been cited without any explanation as to which portions of what records
constitute “substantial and convincing evidence of disability.” The plaintiff might have just as
well have cited to “the court file” generally. Still, the court has made an effort to review and
summarize here the key portions of the records cited by the parties. However, the court cannot be
faulted for failing to consider some aspect of those records upon which the plaintiff relies but
which she failed to specify. “‘There is no burden upon the district court to distill every potential
argument that could be made based upon the materials before it on summary judgment. Rather,
the onus is upon the parties to formulate arguments.’” McIntyre v. Eckerd Corp., 251 F. App’x
621, 626 (11th Cir. 2007) (quoting Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599
(11th Cir.1995). The court also notes that the plaintiff’s counsel refers to a summary of medical
records that he prepared. (Doc. 38 at 7-8 (citing 65-10 at 4-12)). The court has not considered
this summary as it is only counsel’s opinion as to what the records say.
18

a.

Fife’s Regular Treating Physicians11

Fife’s complaints of fibromyalgia and neck/back pain were supported primarily
by records from her treating physicians: Dr. Vishala L. Chindalore, a Rheumatologist
at Anniston Medical Clinic, Dr. Ryan Rainer at Cherokee Health Clinic, and Dr.
Odene H. Connor at the Pain and Wound Care Clinic.12
(1)

Dr. Vishala L. Chindalore, M.D.

Dr. Chindalore frequently noted the plaintiff’s complaints of pain and her
diagnosis of fibromyalgia. (Doc. 65-1 at 27 (January 23, 2009), 32 (March 16, 2009);
32-33 (April 24, 2009); 33 (July 21, 2009); 34 (December 21, 2009); and 37 (June 30,
2010)). But he also frequently noted that Fife had good range of motion: “Both the
hands, wrists, elbows, shoulders, ankles, knees and hips have good range of motion
without any effusions.” (Doc. 65-1 at 27 (January 23, 2009); 32-33 (April 24, 2009);
at 33 (July 21, 2009); 34, 37 (March 22, 2010); and 37 (June 30, 2010)). Dr.

11

The plaintiff was originally evaluated for a number of alleged disabilities, including
respiratory and psychological issues. As noted previously, the plaintiff has abandoned all
arguments that she is disabled for these reasons. Accordingly, the court will omit from these facts
any discussion of those records or issues.
12

This fact was offered by the defendants and admitted by the plaintiff. However, in
addition to admitting the fact, the plaintiff includes argument and additional facts. The court’s
summary judgment scheduling order provides that the opponent’s response to the movant’s facts
“must consist of only the non-moving party’s disputes, if any, with the moving party’s claimed
undisputed facts.” (Doc. 2 at 17). Because the additional material is presented in violation of the
court’s order, it, and all other such material which appears in the plaintiff’s response, will be
STRICKEN.
19

Chindalore reported numerous times that Fife’s “[l]ow back appears benign.” (Doc.
65-1 at 27 (January 23, 2009), 32 (March 16, 2009); 32-33 (April 24, 2009); 33 (July
21, 2009); 34 (December 21, 2009); and 37 (June 30, 2010)). Fife’s lumbosacral
“spine flexion” was consistently “within normal limits.” (Doc. 65-1 at 27 (January 23,
2009), 32 (March 16, 2009); 32-33 (April 24, 2009); 33 (July 21, 2009); 34
(December 21, 2009); and 37 (June 30, 2010)).
Dr. Chindalore consistently noted that Fife’s “[g]ait is normal.” (Doc. 65-1 at
27 (January 23, 2009), 32 (March 16, 2009); 32-33 (April 24, 2009); 33 (July 21,
2009); 34 (December 21, 2009); and 37 (June 30, 2010)). Dr. Chindalore also
consistently noted that Fife had “[n]o myopathy or radiculopathy.” (Doc. 65-1 at 27
(January 23, 2009), 32 (March 16, 2009); 32-33 (April 24, 2009); 33 (July 21, 2009);
34 (December 21, 2009); and 37 (June 30, 2010)). Fife had “[n]o vasculitic
lesions.”(Doc. 65-1 at 27 (January 23, 2009), 32 (March 16, 2009); 32-33 (April 24,
2009); 33 (July 21, 2009); 34 (December 21, 2009); and 37 (June 30, 2010)). Dr.
Chindalore frequently noted that Fife’s neck was “supple with good C-spine range of
motion.” (Doc. 65-1 at 32 (March 16, 2009); 32-33 (April 24, 2009); 33 (July 21,
2009); 34 (December 21, 2009)). On April 24, 2009, Dr. Chindalore noted that “[s]he
had a lot of joint pains last time. Toradol helped her a lot.” (Doc. 65-1 at 32). On
March 22, 2010, he noted that “[s]he is doing reasonably well on current therapy.”
20

(Doc. 65-1 at 34). Only on December 21, 2009, did Dr. Chindalore indicate that all
of the fibromyalgia “trigger points” were positive. (Doc. 65-1 at 34). Other times,
both before and after that date, Dr. Chindalore noted only that “some” or “a few” of
the trigger points were positive. (Doc. 65-1 at 27 (January 23, 2009), 32 (March 16,
2009); 32-33 (April 24, 2009); 33 (July 21, 2009); and 37 (June 30, 2010)). She was
a “no show” for her October 2010 appointment with Dr. Chindalore. (Doc. 65-12 at
27).
(2)

Dr. Ryan Rainer, M.D.

On August 13, 2009, the plaintiff presented to Dr. Rainer complaining of
“diarrhea and abdominal cramping for 2 days,” along with “obesity.” (Doc. 65-17 at
3).
On November 30, 2009, the plaintiff presented to Dr. Rainer complaining of
“low back and left sciatic pain of 4 days duration without lateralizing deficits but with
spasm and tenderness to palpation.” (Doc. 65-17 at 2). On exam it was noted that the
plaintiff had “[t]enderness to palpation over left sciatic notch and lower lumbar area
without deficits.” (Doc. 65-17 at 2). Dr. Rainer’s impression was “[l]eft sciatica/[l]ow
back pain. (Doc. 65-17 at 2). His plan was to treat the plaintiff with medications. The
record is difficult to read, but it appears that one of those medications was Percocet.
(Doc. 65-17 at 2).
21

The plaintiff next saw Dr. Rainer on February 8, 2010, with complaints of
“bilateral ear and intermittent hip pain.” (Doc. 65-17 at 1). Dr. Rainer’s impression
was “BOM/Bilateral hip pain,” and his plan was to treat her with medications. (Doc.
65-17 at 1). The names of the medications are unclear from the record.
The record reflects the following visits to Dr. Rainer solely for respiratory
issues:13
– February 22, 2010 – cough and left ear pain for several days and myalgias
(doc. 65-16 at 41); “impression/plan” was “Myalgias/LOM/Cough” and he
planned to treat the plaintiff with medications “along with symptomatic
treatment” (doc. 65-16 at 41);
– May 19, 2010 – cough and congestion (doc. 65-16 at 39-40);
– May 25, 2010 – congestion; prescribed Depo-Medrol and IM Rocephin (doc.
65-16 at 37-38);
– June 7, 2010 – “congestion and [a] cough;” prescribed Bicillin (doc. 65-16
at 35-36);
– June 16, 2010 – “coughing and congested” (doc. 65-16 at 33);
– June 21, 2010 – admitted to the hospital for bronchitis/bronchial spasms.

13

Because the plaintiff has cited to nearly all of Dr. Rainer’s records generally, the court
includes this discussion even though any disability claim based upon this ailment has been
abandoned.
22

(doc. 65-16 at 30-32);
– July 6, 2010 – respiratory symptoms including “side pain, wheezing [and] .
. . “coughing”

(doc.

65-16

at

28);

assessment

was

“Chronic

Bronchitis/Bronchialspams” and “Pleurisy” (doc. 65-16 at 29); prescribed
medications for her conditions and referred to a pulmonologist (doc. 65-16 at
29);
– July 27, 2010 – respiratory issues and migraine headaches (doc. 65-16 at 26);
assessed as having “Migraines, Sinusitis, and Asthma” (doc. 65-16 at 27);
asthma noted to be stable and medications prescribed for her other conditions
(doc. 65-16 at 27); and
– August 4, 2010 – coughing and shortness of breath (doc. 65-16 at 25);
assessment was “Bronchitis/Asthma” (doc. 65-16 at 25); prescribed
medications and referred to Dr. Grubbe (allergist). (Doc. 65-16 at 25); note
indicated that plaintiff did not feel that she could return to work due to
coughing and shortness of breath; advised to remain out of work.
Dr. Rainer does not begin to note pain issues with the plaintiff until an August
18, 2010, visit. Even then, the plaintiff only complained to Dr. Rainer about having
a cough. (Doc. 65-16 at 22). She stated to Dr. Rainer that she was “scared to go back
to work now because her job is demanding and she doesn’t feel she can do it currently
23

. . . . feels beat down right now.” (Doc. 65-16 at 22). She noted that she had seen Dr.
Grubbe for her respiratory issues. (Doc. 65-16 at 22). Dr. Rainer noted that the
plaintiff had seen Dr. Connor that same morning for neck pain and Dr. Connor had
prescribed Percocet and Lidocane patches. (Doc. 65-16 at 22). Dr. Rainer’s
assessment was she had “neck pain, asthma, and Allergic Rhinitis.” (Doc. 65-16 at
23). His plan was for her to continue her current medications and see her specialists.
(Doc. 65-16 at 23).
Dr. Rainer saw the plaintiff on September 20, 2010, for a check up. (Doc. 6516 at 20). Her chief complaint on that visit concerned symptoms regarding her
asthma. (Doc. 65-16 at 20). Although she also complained of “neck pain,” Dr. Rainer
noted that she was “seeing Dr. Connor for pain management,” that it was “going
well,” and the her “TENS unit helps a lot.” (Doc. 65-16 at 20). Dr. Rainer’s
assessment was:
Asthma, Allergic Rhinitis, possible sarcoidosis > undergoing evaluation
at UAB allergy shot today.
Neck pain; back pain – seeing Dr. Connor
(Doc. 65-16 at 21).
On December 3, 2010, Dr. Rainer completed a form entitled “Long Term
Disability Benefits Claim – Attending Physician’s Statement of Disability.” (Doc. 65-

24

14 at 8-9).14 Dr. Rainer noted that the plaintiff:
– ceased work in June of 2010;
– had a primary diagnosis of “Rheumatoid Arthritis,” with a secondary
diagnosis of “Lung manifestations [of Acute Respiratory Acidosis], Asthma”
(doc. 65-14 at 8);
– had the subjective symptoms of “severe joint pain, severe neck pain, severe
fatigue, [and] severe dyspnea” (doc. 65-14 at 8);
– had objective findings which included “[a]bnormal joints on exam, [g]eneral
debility worsening over 6 months, [w]orsening lung function over 6 months”
(doc. 65-14 at 8);
– had the following diagnostic tests performed “[a]bnormal pulmonary
function tests, abnormal allergy testing” (doc. 65-14 at 8);
– could lift/carry less than 10 pounds occasionally; has sustained tolerance to
sit for 2 hours, stand for 1 hour, and walk for 1 hour; could not use her
extremities for simple grasping, pushing and pulling, or fine manipulations;
was not able to climb, bend/stoop, kneel, crouch, crawl, handle, or finger;
could occasionally balance between 0 - 2.5 hours per day; could occasionally

14

In its March 20, 2013, decision, the Appeals Committee noted that an earlier form,
dated September 23, 2010, had been completed by Dr. Rainer. (Doc. 36-6 at 3). The parties have
not cited the court to that form, and the court has been unable to find it in the record.
25

reach above her shoulder between 0 - 2.5 hours per day (doc. 65-14 at 8); and
– had not reached maximum medical improvement (doc. 65-14 at 8).
(3)

Dr. Odene H. Connor, M.D.

The plaintiff was initially assessed at the Pain and Wound Care Center on
August 18, 2010. (Doc. 65-5 at 25). It was noted that she had had pain for “7-8
years,” and that she had “a herniated disc in [her] neck,” “a lot of joint pain especially
in her hips,” and that she “complains of low back pain [which] can come in
gradually.” (Doc. 65-5 at 25). Dr. Connor also noted that the plaintiff has
fibromyalgia. (Doc. 65-5 at 27). Dr. Connor noted only “moderately decreased” range
of motion in the plaintiff’s cervical and lumbar spine, while measuring strength in all
extremities at a 4/5 level. (Doc. 65-5 at 26). These same results were noted in exams
on September 1, 2010 (doc. 65-5 at 35), September 28, 2010 (doc. 65-5 at 38),
October 27, 2010 (doc. 65-5 at 41), November 24, 2010 (Doc. 65-6 at 3), December
21, 2010 (doc. 65-6 at 9), January 25, 2011 (doc. 13), February 16, 2011 (doc. 65-6
at 16), March 16, 2011 (doc. 65-6 at 23), April 28, 2011 (doc. 65-6 at 25), May 24,
2011 (doc. 65-6 at 27), June 20, 2011 (doc. 65-6 at 31), July 19, 2011 (doc. 65-6 at
33), August 10, 2011 (doc. 65-6 at 35), September 26, 2011 (doc. 65-7 at 50),
October 26, 2011 (doc. 65-8 at 4), November 22, 2011 (doc. 65-8 at 10), January 19,
2012 (doc. 65-8 at 15), February 23, 2012 (doc. 65-8 at 23), March 22, 2012 (doc. 6526

8 at 25), April 17, 2012 (doc. 65-8 at 27). At some point, Dr. Connor prescribed a
lumbar back brace to assist with thoracic and lumbar back pain, a cervical collar to
assist with a cervical radiculopathy, and a TENS unit for pain relief.15
Dr. Connor requested a cervical MRI without contrast which occurred on
February 10, 2011. (Doc. 65-7 at 35). The report noted: “Very small broad-based
subligamentous bulge at C6-7 causing mild impression upon on the ventral thecal sac
but no significant spinal canal stenosis.” (Doc. 65-7 at 35). Also at Dr. Connor’s
request, an MRI of plaintiff’s lumbar spine was performed that same day which found
no evidence of disc bulge, spinal canal stenosis or foraminal narrowing but noted a
right-sided pseudomeningocele at L4 and L5 with questionable right S1
pseudomeningocele. (Doc. 65-7 at 36).
A September 27, 2010, “Electrodiagnostic Report” from Dr. Connor also
appears in the record. In that report, Dr. Connor includes a presumptive diagnosis of
“[c]ervical plexopathy without motor deficit.” (Doc. 65-7 at 43). A January 20, 2011,
“Electrodiagnostic Report” from Dr. Connor also appears in the record. In that report,
Dr. Connor includes a presumptive diagnosis of “[l]umbosacral plexopathy without

15

The fact that Dr. Connor prescribed these items is undisputed. The Appeals Committee
wrote that they were prescribed on September 1, 2010. (Doc. 36-6 at 6). Most of what Dr.
Connor wrote is illegible to the court. Accordingly, it cannot verify the date upon which these
items were prescribed.
27

motor deficit.” (Doc. 65-6 at 10). A February 21, 2012, “Electrodiagnostic Report”
from Dr. Connor includes a presumptive diagnosis of “cervical plexopathy without
motor deficit.” (Doc. 65-8 at 18).16
b.

Other Tests

An April 27, 2010 cervical spine MRI described the abnormalities as: “Early
spondylotic and degenerative changes C6 with associated spur and/or bar formation
and concurrent mild broad-based bulging of the C6 intervertebral disc.” (Doc. 65-14
at 80).

16

The plaintiff’s counsel prepared a summary of her medical records. (Doc. 65-10 at 412). Although the court does not consider this “summary” to be evidence in the case, it notes that
plaintiff’s counsel has stated that Dr. Connor made the following “clinical assessment of pain”
on June 19, 2011:
(1). Pain is present to such an extent as to be distracting to adequate performance
of daily activities or work. (2). Physical activity greatly increases pain to such a
degree as to cause distraction from task or total abandonment. (3). Medications
which are prescribed can be expected to impact patient with significant side
effects which may limit the effectiveness of work duties or the performance of
everyday tasks. (4). Pain and/or drug side effects can be expected to be severe and
to limit effectiveness due to distraction, inattention, drowsiness, etc. (5) Long
term prospects for recovery in regard to pain will remain a significant element in
this person’s life. (6) Treatments for pain have had no appreciable effect or have
only briefly altered the level of pain this patient experiences.
(Doc. 65-10 at 7). If Dr. Connor’s statement appears in the record somewhere other than in this
summary, it has not been cited by the parties and the court has not been able to find it. This
“summary,” which is not evidence, cannot and will not be considered by the court. The court has
found where a disability questionnaire was forwarded to Dr. Connor, in response to which
someone in his office replied “Dr. Connor does not fill out [d]isability forms.” (Doc. 65-13 at 5).

28

c.

Clay Alexander, D.C.

The plaintiff first saw Clay Alexander, a chiropractor, on January 23, 2009,
where it was noted that the plaintiff had “[a] headache, neck pain, mid back pain.”
(Doc. 65-12 at 22). She visited Alexander’s office with similar complaints of pain on:
– December 3, 2009 – “slipped on ramp . . . jerked low back [and] since then
low back pain has become worse with mid back pain” (doc. 65-12 at 21):
– December 7, 2009 – “still has pain in mid back and low back worse on
standing or walking” (doc. 65-12 at 20):
– December 28, 2009 – “pain in lower back into left hip and left leg . . .
[p]atient states she has had shingles . . . mid back soreness” (doc. 65-12 at 19);
– December 29, 2009 – “severe palpatory tenderness along left sciatic nerve in
buttock and left hip . . . suspected post herpatic pain” (doc. 65-12 at 18); and
– October 21, 2010 – “neck and mid back pain;” stated that “she has been out
of work due to lung disorders and has been coughing a lot” (doc. 65-12 at 1617).17

17

The record reflects an additional visit (doc. 65-12 at 17), but the date of that visit is
unreadable. Further, the record appears to be only a treatment note without much additional
information. The defendants proffer: “34. Dr. Alexander’s records also suggest a considerable
gap in chiropractic treatment (presumably for alleged pain and orthopedic problems) from
December 2009 to October 2010 [Exh. F at 95 - 96].” This is argument and will not be included.
29

d.

Dr. Henry Ruiz, M.D.

On May 18, 2010, the plaintiff was seen by Dr. Ruiz at the Ruiz Neurosurgery
Clinic. (Doc. 65-14 at 53). She complained of a “12-14 month history of mechanical
cervical pain.” (Doc. 65-14 at 53). She also complained of lumbar pain, but stated that
the cervical pain was “definitely worse.” (Doc. 65-14 at 53). Dr. Ruiz noted that the
April 27, 2010, MRI “reveals an extruded and partially calcified C6 disk with an
indention on the ventral portion of the thecal sac. There is a small, clinically
unimportant spondylitic spur at C5.” (Doc. 65-14 at 53). His impression was “Active
right C7 radiculopathy secondary to C6 disk pathology, both degenerative and due
to calcification in nature.” (Doc. 65-14 at 54). He scheduled the plaintiff for an
anterior cervical discectomy and fusion on June 23, 2010. (Doc. 65-14 at 54). The
record does not indicate if the procedure was actually performed.
e.

Dr. Henry Born, M.D.

Fife was also examined for her claim for SSDI benefits by Dr. Born, a family
practitioner. Dr. Born noted that the plaintiff complained “of numerous aches, pains,
and muscular problems.” (Doc. 65-13 at 22). Dr. Born did not opine that Fife was
disabled, but noted a number of conditions that were either diagnosed or “probable.”
(Doc. 65-13 at 24). Dr. Born documented that, on exam, the plaintiff had intact
muscle strength with no atrophy. (Doc. 65-13 at 23). She had “normal grip strength
30

and normal finger/hand dexterity bilaterally.” (Doc. 65-13 at 23). Dr. Born noted that
the plaintiff “complain[ed] of weakness in all her muscles, but we do not see any
atrophy and there is more of a subjective sensation of weakness than any real muscle
atrophy or weakness.” (Doc. 65-13 at 23). His exam showed intact muscle strength
in the lower extremities as well. (Doc. 65-13 at 23). The plaintiff had no distress in
her gait which Dr. Born described as “very good.” (Doc. 65-13 at 23). He described
her as being able to “move the neck fairly well.” (Doc. 65-13 at 24). Despite point
tenderness, he noted that the plaintiff “is moving actually pretty well.” (Doc. 65-13
at 24). Examination of the shoulders, elbows, wrists, hands, and fingers revealed
“normal range of motion” with “generalized tenderness.” (Doc. 65-13 at 24). He also
noted that “[e]verything seems to hurt, but there are no localizing findings.” (Doc. 6513 at 24). At the hips, knees, ankles, and feet, Dr. Born noted “no pain, no swelling,
no tenderness, and no bogginess.” (Doc. 65-13 at 24). Dr. Born noted that the
plaintiff’s “gait is only minimally slow. We asked the [plaintiff] to walk on her toes
and heels and she does this fairly well. . . . We also asked the [plaintiff] to squat and
arise and we can get her to do this too[.]” (Doc. 65-13 at 24). He noted that the
plaintiff reported that she might have neck surgery, but that while “the CT scans of
the neck [show] some abnormalities . . . it does not appear that there is anything that
would warrant an operation at this time.” (Doc. 65-13 at 24).
31

Dr. Born did note that the plaintiff had “point tenderness” on examination of
the lumbosacral spine, and “pain on range of motion here and pain on straight leg
raising at 60 degrees without radiation.” (Doc. 65-13 at 24). His impression was: 1)
fibromyalgia, 2) probable degenerative arthritis, 3) possible early rheumatoid arthritis,
4) degenerative arthritis, cervical spine and lumbosacral spine, 5) depression, and 6)
recurrent asthma. (Doc. 65-13 at 24). He described her symptoms as “chronic” and
stated that it is quite likely that they will persist. (Doc. 65-13 at 24).
f.

William A. Crunk, PhD, CRC

Crunk evaluated Fife on October 24, 2011. (Doc. 65-9 at 29). Crunk’s letter
reflects that he interviewed the plaintiff, and also reviewed medical records from Dr.
Henry Ruiz, Dr. Henry Born, and Dr. Connor. (Doc. 65-9 at 30).18 He then opined that
“[s]he would be considered totally disabled as it related to work.” (Doc. 65-9 at 30).
g.

Dr. Samuel R. Bowen, II, M.D.

On November 17, 2010, the plaintiff saw Dr. Bowen at Birmingham
Neurosurgery Group. (Doc. 65-14 at 20). The plaintiff complained of “a history of
neck pain and right arm pain . . . severe over the last three weeks. She also complains

18

Crunk noted the aforementioned evaluation by Dr. Connor, which has not been cited to
nor found by the court (see n. 16, supra), where he says Dr. Connor noted that her pain “would
disable her from work,” and “was so intense that it would be distracting to adequately perform
her daily activity and would cause distraction from tasks or total abandonment of a work setting.”
(Doc. 65-9 at 30).
32

of numbness in the 4th and 5th digits of the right hand.” (Doc. 65-14 at 20). Dr.
Bowen noted “[c]omplaints of joint pain, leg cramps, thoracic pain, cervical pain,
[r]ight [a]rm (burning, aching, numbness, tingling, weakness); [r]ight [l]eg
(numbness, tingling, sharp shooting); [l]eft [l]eg (aching, numbness).” (Doc. 65-14
at 21). Dr. Bowen reviewed the April 27, 2010, MRI of the plaintiff and found that
it showed “stenosis 6-7 bilaterally and some at C5-6 more to the left.” (Doc. 65-14
at 22). He noted normal gait, posture, and strength in the upper and lower extremities.
(Doc. 65-14 at 24). He opined that he “do[es] think that she has [cervical] stenosis
and problems form this.” (Doc. 65-14 at 25). He ordered a myelogram and wanted the
plaintiff to follow up thereafter. There is no indication that the myelogram was
performed, and there are no further records from Dr. Bowen.
h.

Dr. Mary Beth Scholand, M.D.

Dr. Scholand is a pulmonologist affiliated with Medical Review Institute of
America, Inc. She reviewed Fife’s records and wrote:
During the phone conversation with Dr. Connor, [she] stated the patient
suffers primarily from her fibromyalgia. The MRI from 4/10 was
reviewed, which described the disc bulge. Her EMG has mild
abnormalities in C5, C6 and C8. Per her pain physician, her position as
an accountant doing word processing with a bent neck will exacerbate
this mild radicular pain.
(Doc. 65-14 at 2). Dr. Scholand also noted that: “[T]here is no evidence to support

33

pulmonary functional impairment in this patient.” (Doc. 65-14 at 4). There is no
indication that Dr. Scholand spoke with Dr. Rainer.
Dr. Scholand stated that “after review it appears the [plaintiff] has an
established diagnosis of fibromyalgia and cervical osteoarthritis with bone spurs and
disc bulge that causes radicular pain that might be exacerbated by the specific duties
of her job.” (Doc. 65-14 at 3). She noted that “[t]he chart includes documentation of
rheumatoid arthritis and sarcoid, both of which the [plaintiff] does not have.” (Doc.
65-14 at 4). She also wrote: “Based on review of the documents and discussion with
the treating physicians, the diagnoses of fibromyalgia, cervical stenosis/cervical
radiculopathy and allergies are supported.” (Doc. 65-14 at 4). Dr. Scholand was
specifically asked if there was medical evidence to support functional impairment, to
which she answered: “There is no evidence to support pulmonary functional
impairment.” (Doc. 65-14). She did not address the question as to the plaintiff’s other
issues.

Dr. Scholand herself opined only that her radicular pain “might be

exacerbated by the specific duties of her job.” (Doc. 65-14 at 3) (emphasis added).
i.

Dr. Paul Lafavore, M.D.

Dr. Lafavore, who is Board Certified in Anesthesiology and Pain Medicine,
also reviewed Fife’s records. (Doc. 65-13 at 37-41). He noted that the plaintiff’s “pain
related issues . . . are primarily and confined to the [plaintiff’s] cervical pain.” (Doc.
34

65-13 at 38). While he saw some objective evidence of abnormalities in Fife’s
cervical spine, he found no disabling orthopedic condition:
There are a few records pertaining to neck pain and treatment. No
conclusions can be made based on records reviewed that functional
impairment and/or limitations are present…. It cannot be said that
impairments/restrictions are present based on available data reviewed in
this case.
(Doc. 65-13 at 38-39). Dr. Lafavore also found that “[t]here is insufficient evidence
presented to definitively support fibromyalgia.” (Doc. 65-13 at 39). He found “no
impairing pain conditions based on the records reviewed.” (Doc. 65-13 at 39). He also
noted that: “There [is] insufficient medical evidence to support functional impairment
as related to cervical spinal stenosis and/or fibromyalgia.” (Doc. 65-13 at 39). He
stated that “[o]bjective testing” which “would include a functional capacity
examination,” “may define [the plaintiff’s] limitations.” (Doc. 65-13 at 39).
j.

Dr. Richard Kaplan, M.D.

On March 1, 2011, Fife appealed the denial of her claim.19 CBA retained
Disability Management Services, Inc. (“DMS”) to assist in reviewing Fife’s appeal.20

19

In her brief in support of her motion for summary judgment, the plaintiff proffered fact
number 10, which, in large part, consists of a block quote without a citation. This fact has not
been included.
20

This fact, offered by the defendants, is disputed by the plaintiff, who argues that “CBA
was under contract with DMS to review and decide appeals.” (Doc. 57 at 18). This court has
already considered this argument and held that “[t]he evidence is overwhelming that DMS did
not make the decision.” (Doc. 46 at 27).
35

DMS, in turn, arranged to have Fife’s records reviewed by Dr. Richard Kaplan, a
physician who is Board Certified in Physical Medicine and Rehabilitation.21
Dr. Kaplan reviewed Fife’s allegations of orthopedic and pain-related
limitations. Dr. Kaplan noted that “[n]umerous medical records in the file are
handwritten and illegible to this reviewer.” (Doc. 65-10 at 51). Later in his report, Dr.
Kaplan identifies the specific records as those from Dr. Connor at the Pain and
Wound Care Center, and from Clay Alexander. (Doc. 65-10 at 53).
Dr. Kaplan acknowledged that Fife had certain orthopedic issues, but found
the medical evidence demonstrated that she could work, noting, for example, that
“multiple physical examinations and radiographic findings demonstrate excellent
retained physical ability.” (Doc. 65-10 at 56). His report reflects that he attempted to
speak, without success, with Drs. Alexander, Dransfield, Connor, Grubbe, Bowen,
and Chindalore. (Doc. 65-10 at 53-55). Dr. Kaplan did interview Dr. Rainer on May
2, 2011, and summarized their conversation in a letter (which Dr. Rainer
acknowledged in writing) that noted: “[Dr. Rainer] feels that due to the claimant’s
overall joint pain, fatigue, and dyspnea, she would not be able to work at any job
other than a solely sedentary job. Dr. Rainer feels that she likely could do a sedentary

21

Dr. Leonard Cosmo, M.D., a pulmonologist, was also asked to review the records.
Because the plaintiff is not claiming disability based on her pulmonary functions, Dr. Cosmo’s
opinion will not be included.
36

sitting job but the claimant perceives she is not able to do that….” (Doc. 65-11 at 21).
Notably, Dr. Kaplan also took into account Fife’s fibromyalgia diagnosis,
including Dr. Chindalore’s December 2009, records which noted “positive
flbromyalgia trigger points [and] painful range of motion” but also noted “normal gait
and no myelopathy or radiculopathy.” (Doc. 65-10 at 51). Dr. Kaplan noted that Dr.
Chindalore diagnosed the plaintiff with “a flare up of arthralgias and myalgias as well
as a chronic pain syndrome treated with Loricet and stable back pain, leg pain[,] and
myalgias.” (Doc. 65-10 at 51).
Dr. Kaplan also noted how Dr. Chindalore’s March 22, 2010, records
confirmed that Fife’s “hands, wrists, shoulders, elbows, ankles, knees, and hips had
good range of motion without any effusion,” that her “low back appeared benign,” her
spine “demonstrated flexion within normal limits,” and that her “gait was normal.”
(Doc. 65-10 at 51-52). Dr. Kaplan noted that Dr. Chindalore thought the plaintiff was
doing reasonably well on her current therapy, but with continued pain in her neck and
back. (Doc. 36-6 at 7). Dr. Kaplan also noted that Dr. Chaindalore described the April
27, 2010, MRI as “demonstrating early spondylitic and degenerative changes at
multiple levels with no specific focal neurological deficits.” (Doc. 65-10 at 52).
Dr. Kaplan also noted that, on May 6, 2010, the plaintiff had a neurosurgery
evaluation by Dr. Bowen where she complained of “neck pain and right arm pain
37

which was severe for several weeks with associated numbness in the 4th and 5th
digits of the right hand.” (Doc. 65-10 at 52). Dr. Kaplan noted that Dr. Bowen
described “normal range of motion of all joints and with no deformity,” a “normal
cognitive examination,” a “detailed motor neurological examination” that was “within
normal limits,” normal gait and an absence of paraspinal muscle spasm. (Doc. 65-10
at 52).
Dr. Kaplan also cited the May 18, 2010, neurosurgical evaluation done by Dr.
Ruiz where Dr. Ruiz
felt that claimant had subtle 4/5 weakness in the right triceps and flexors
of the wrist as well as absent triceps reflex. Overall Dr. Ruiz felt that
based on the claimant’s MRI and physical examination that she had an
active right C7 radiculopathy due to C6 pathology. He recommended a
C6 anterior cervical discectomy and fusion.
(Doc. 65-10 at 52).
Dr. Kaplan noted that Dr. Connor has prescribed a back brace, cervical collar
and TENS unit. (Doc. 65-10 at 53). Dr. Kaplan commented that the February 10,
2011, MRI “demonstrated a right-sided pseudomeningocele at L4 and L5 with a
questionable right S1 pseudomeningocele. No spinal stenosis was identified. No disc
bulge or spinal canal stenosis or foraminal narrowing was identified.” (Doc. 65-10
at 53).
Dr. Kaplan noted that Dr. Gaunzra, a rheumatologust, “wrote a narrative report
38

opining the claimant has the diagnosis of fibromyalgia versus less likely
inflammatory arthritis. No erosive disease was identified on plain films of the hand.”
(Doc. 65-10 at 53).
He noted that “multiple physical examinations and radiographic findings
demonstrate excellent retained physical ability.” (Doc. 65-10 at 56) (emphasis added).
Ultimately, Dr. Kaplan concluded that:
From a physical medicine and rehabilitation perspective, the medical
evidence does not support a musculoskeletal condition or conditions that
would support impairment for a sedentary occupation. Rather, the
records outline proposed diagnoses and retained physical abilities such
that continuation of a sedentary occupation would not only be possible
but likely therapeutic for this claimant.
(Doc. 65-10 at 57). In support of this conclusion, Dr. Kaplan noted:
She has been diagnosed with fibromyalgia though with very limited
objective impairing factors. For example, on 7/21/09 Dr. Chindalore
noted that the claimant had good range of motion of the hands, wrists,
elbows, shoulders, ankles, knees and hips without any effusion and her
low back exam was benign and her lumbosacral flexion was normal. She
had no evidence of myopathy and radiculopathy on examination and no
vasculitic lesions.
(Doc. 65-10 at 56). He also noted that the April 27, 2010, MRI “demonstrated early
spondylitic and degenerative changes.” (Doc. 65-10 at 56).
k.

Fife’s SSDI Award

After Fife filed this lawsuit, the parties agreed to a remand for review of Fife’s

39

July 2, 2012, award of SSDI benefits. Fife was awarded SSDI benefits based on the
ALJ’s conclusion that she was disabled by orthopedic issues, arthritis, fibromyalgia,
asthma, and depression. (Doc. 65-2 at 52-60). Yet the ALJ also found that Fife “has
the residual functional capacity to perform a significant range of light work as defined
in 20 C.F.R. § 404.14567(b) except the claimant has distracting pain that is increased
with physical activity to the abandonment of tasks, and medication side effects that
limit effectiveness due to distraction, inattention, drowsiness, etc.” (Doc. 65-2 at 58).
In the decision, the ALJ noted that “[g]reater weight is given to the treating source
records than the reports of the non-examining, reviewing sources at the State agency
….” (Doc. 65-2 at 59). 71. The ALJ noted that “[m]edical improvement is expected,
with appropriate treatment,” and noted the need for another review in 18 months.
(Doc. 65-2 at 60). The ALJ did not have, and therefore could not consider, certain
evidence found in the administrative record here, including the opinions of Drs.
Scholand, Lafavore, Cosmo, Kaplan, Litow, and Goldman, and the statements by two
of Fife’s treating physicians, Drs. Grubbe and Rainer.
l.

Dr. Francesca Litow, M.D.

The SSDI decision and other information Fife’s counsel provided was reviewed
in early 2013 in a court-approved remand. In that review, the Appeal Committee
considered all of the evidence cited above including a new medical opinion from Dr.
40

Francesca Litow, who is board certified in occupational medicine.22
Regarding Fife’s complaints of pain, Dr. Litow noted that Fife had a variety of
complaints, but found her “conditions were noted to be chronic and stable.” (Doc. 65
at 35).23 When asked whether Fife had any physical conditions that were functionally
impairing, Dr. Litow found “no physical conditions supported by the clinical evidence
that are functionally impairing.” (Doc. 65 at 37). To support this conclusion, Dr.
Litow noted:
– contemporaneous records of a May 6, 2010, physical examination by Dr.
Bowen documented normal upper extremity strength (doc. 65 at 36, 38-39);
– the April 27, 2010 MRI findings were “consistent with mild degenerative
disc disease of the cervical spine” (doc. 65 at 38);
– the physical examination documented by Dr. Born on February 23, 2011 ,
which documented a decreased range of motion in Fife’s cervical and lumbar
spine, but also documented normal upper and lower extremity strength (with

22

The Appeals Committee also asked Dr. Marcus Goldman, a board certified psychiatrist,
to review the plaintiff’s potential psychological issues. Dr. Goldman’s evaluation is not relevant
here.
23

The defendants proffer: “Dr. Litow’s conclusion about the chronic and stable nature of
Fife’s complaints is supported by, among other things, treatment for fibromyalgia by Dr.
Chindalore dating back at least to 2004 [Exh. F at 691], Fife’s allegation that she was diagnosed
with fibromyalgia as early as 2001 [Exh. F at 637], and several years of chiropractic records
which demonstrated that Fife had previously been able to work despite similar complaints of
pain. [Exh. F at 47-96]. (Doc. 51 at 23). This statement is argument and will not be included.
41

no atrophy in extremity muscles), normal sensory exam, normal reflexes, and
normal gait (doc. 65 at 38); and
– the medical records from Dr. Connor, ranging in dates from August 18, 2010
through April 17, 2012, consistently noted only a moderate decrease in cervical
range of motion while measuring strength in all extremities at a 4/5 level (doc.
65 at 37).24
Dr. Litow found no evidence of side effects from the plaintiff’s medications. (Doc.
65 at 39).
D.

Analysis
1.

Applicable Standard

ERISA does not contain a standard of review for actions brought under 28
U.S.C. § 1132(a)(1)(B) challenging benefit eligibility determinations. Firestone Tire
& Rubber Co. v. Bruch, 489 U.S. 101, 108-09 (1989) (“Although it is a
‘comprehensive and reticulated statute,’ ERISA does not set out the appropriate
standard of review for actions . . . challenging benefit eligibility determinations.”).
Moreover, the case law that has developed over time governing such standards has
significantly evolved. A history of the evolution of these standards is useful to track

24

Dr. Litow’s opinion was also based on evidence concerning the plaintiff’s respiratory
issues which is not relevant here.
42

its development and shed light on the current framework.
In Firestone, the Supreme Court initially established three distinct standards
for courts to employ when reviewing an ERISA plan administrator’s benefits
decision: “(1) de novo where the plan does not grant the administrator discretion; (2)
arbitrary and capricious where the plan grants the administrator discretion; and (3)
heightened arbitrary and capricious where the plan grants the administrator discretion
and the administrator has a conflict of interest.” Capone v. Aetna Life Ins. Co., 592
F.3d 1189, 1195 (11th Cir. 2010) (citing Buckley v. Metro. Life, 115 F.3d 936, 939
(11th Cir. 1997) (discussing Firestone, 489 U.S. at 115)). In Williams v. Bellsouth
Telecomms., Inc., 373 F.3d 1132, 1137 (11th Cir. 2004), overruled on other grounds
by Doyle v. Liberty Life Assurance Co. of Boston, 542 F.3d 1352 (11th Cir. 2008), the
Eleventh Circuit fleshed out the Firestone test into a six-step framework designed to
guide courts in evaluating a plan administrator’s benefits decision in ERISA actions.
When the Eleventh Circuit created the Williams test, the sixth step of the sequential
framework required courts reviewing a plan administrator’s decision to apply a
heightened arbitrary and capricious standard if the plan administrator operated under
a conflict of interest. See id. The Eleventh Circuit later modified this step in response
to the Supreme Court’s ruling in Metropolitan Life Insurance Co. v. Glenn, 554 U.S.
105, 115-17 (2008), which concluded that a conflict of interest should be weighed
43

merely as “one factor” in determining whether an administrator abused its discretion.
See Doyle, 542 F.3d at 1359 (“As we now show, Glenn implicitly overrules and
conflicts with our precedent requiring courts to review under the heightened standard
a conflicted administrator’s benefits decision.”). The Eleventh Circuit’s current
iteration of the Firestone standard-of-review framework is found in Blankenship v.
Metro. Life Ins. Co., 644 F.3d 1350 (11th Cir. 2011), cert. denied, 132 S. Ct. 849:
(1) Apply the de novo standard to determine whether the claim
administrator’s benefits-denial decision is “wrong” (i.e., the court
disagrees with the administrator’s decision); if it is not, then end the
inquiry and affirm the decision.
(2) If the administrator’s decision in fact is “de novo wrong,” then
determine whether he was vested with discretion in reviewing claims;
if not, end judicial inquiry and reverse the decision.
(3) If the administrator’s decision is “de novo wrong” and he was
vested with discretion in reviewing claims, then determine whether
“reasonable” grounds supported it (hence, review his decision under the
more deferential arbitrary and capricious standard).
(4) If no reasonable grounds exist, then end the inquiry and reverse
the administrator’s decision; if reasonable grounds do exist, then
determine if he operated under a conflict of interest.
(5) If there is no conflict, then end the inquiry and affirm the
decision.
(6) If there is a conflict, the conflict should merely be a factor for the
court to take into account when determining whether an administrator’s
decision was arbitrary and capricious.

44

Id. at 1355.25 All steps of the analysis are “potentially at issue” where a plan vests
discretion to the plan administrator to make benefits determinations. See id. at 1356
n.7. Conversely, then, where a plan does not confer discretion, the court simply
applies the de novo review standard established by the Supreme Court in Firestone.
See 489 U.S. at 115 (“[W]e hold that a denial of benefits challenged under §
1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan
gives the administrator or fiduciary discretionary authority to determine eligibility for
benefits or to construe the terms of the plan.”).
This court has previously held that the “[t]he more deferential arbitrary and
capricious standard will be applied to the decision to deny benefits,” and that “[t]here
is no conflict here.” (Doc. 46 at 33, 41). Accordingly, even if the decision to deny
benefits was wrong, it will be upheld if “reasonable” grounds supported it.26
Under the above cited framework, Fife bears the burden of proving that she is
disabled and that the benefit decision is wrong. Herring v. Aetna Life Ins. Co., 517
F. App’x 897, 899 (11th Cir. 2013) (citing Glazer v. Reliance Standard Life Ins. Co.,

25

“In ERISA cases, the phrases ‘arbitrary and capricious’ and ‘abuse of discretion’ are
used interchangeably.” Blankenship, 644 F.3d at 1355 n.5. Part of the plaintiff’s argument in her
initial brief in support of her motion for summary judgment is directed to this formulation. (Doc.
38 at 38-42). The court will not address that argument except to say that it has set out the
appropriate formulation here.
26

For these reasons the court has not considered the plaintiff’s argument that a conflict of
interest tainted the decision. (Doc. 38 at 35-38).
45

524 F.3d 1241, 1247 (11th Cir.2008)). If Fife satisfies this burden, she then must
demonstrate that the decision to deny her LTD benefits was arbitrary and capricious;
that is, she must show that the defendants had no reasonable grounds to support the
decision. Herring, 517 F. App’x at 899 (citing Glazer, 524 F.3d at 1247)). It is not
the defendants’ burden to show that the denial was correct or reasonable.
2.

The Appeals Committee Decision Was De Novo Correct and
Supported by Reasonable Grounds
a.

The Plan’s Disability Criteria

Under the Plan, a participant must (among other things) be “prevented from
performing any or all of the Material and Substantial Duties of [her] Own Occupation
due to any accidental bodily injury [or] sickness ….” (Doc. 52 at 36, § 2.04). After
24 months, a participant must be “unable to perform any or all of the Material and
Substantial Duties of any Gainful Occupation.” (Id.). “Material and Substantial
Duties” are “the essential tasks of an occupation that cannot reasonably be modified
or omitted, not including overtime work.” (Doc. 52 at 37, § 2.12). The term “Own
Occupation” is defined as
any similar job that involves Material and Substantial duties of the same
general nature as the Participant’s regular job at the Participating
Cooperative when the disability begins. It does not mean the specific job
the Participant is performing for a specific Participating Cooperative or
at a specific location.

46

(Doc. 37 at § 2.15). Further, a claimant seeking disability payment is subject to a
“Benefit Waiting Period” -- a 13 week period during which she must demonstrate a
“continuous Disability” before benefit payments could commence. (Doc. 52 at 35-36,
42, §§ 2.02, 7.07).
b.

The Basis for Fife’s Claim that She Is Disabled

In this case, the basis for the plaintiff’s claim is that she is disabled, as that term
is defined under the policy, because of pain.27 In her memorandum, the plaintiff states
that “[t]he record is replete with objective, clinical[] evidence that Fife suffers from
severe pain due to cervical degenerative disc disease, lumbar pain, arthritis, and
fibromyalgia.” (Doc. 38 at 26) (emphasis added); (see also doc. 38 at 31 (mentioning
“objective clinical evidence that [p]laintiff suffers from severe pain”) (emphasis
added). Elsewhere, she argues that she is disabled because she has “an established
diagnosis of fibromyalgia and cervical osteoarthritis with bone spurs and disc bulge
that causes radicular pain.” (Doc. 38 at 32) (see also doc. 38 at 32 (mentioning
“diagnosis and treatment of fibromyalgia and pain”)) (emphasis added). The plaintiff
also argues that “the ‘big picture’ combination of effects from her primary and

27

The plaintiff has abandoned any claim that she had a respiratory disability. (Doc. 57 at
12) (“Fife objects to these facts because she is not claiming disability on pulmonary/respiratory
problems”); doc. 38 at 33 (citing “normal” pulmonary tests and noting that “Fife is not claiming
disability on pulmonary disease”)). Further, she has abandoned any claim that she was disabled
based on a mental condition. (Doc. 57 at 37).
47

secondary health issues and medications” entitle her to benefits. (Doc. at 33).
c.

The Medical Evidence Supports the Decision of the
Appeals Committee

The court exhaustively set out the evidence above and will not do so again
here. However, the court will note that the plaintiff has the burden to show that the
decision is de novo wrong and, even if it was incorrect, that no reasonable grounds
support it. She has made no attempt to do so.
Instead, the plaintiff merely writes that “[c]ounsel has summarized the evidence
of disability on pages 4-7 of this brief,” and then refers the court to several pages of
her brief which the court has already stated it will strike for failure to comply with its
scheduling order. (Doc. 38 at 34) (referring the court to doc. 38 at 6-8). However,
even if the pages were not stricken, they do not help the plaintiff. The plaintiff writes:
4. Fife submitted substantial and convincing evidence of disability
including:
Ex. 1: Favorable Social Security Decision 7/2/12 with disability onset
of 6/8/10 (NRECA 131-140) and eight medical records on which the
SSA Award was based (NRECA 24-130).
Ex. 11: Dr. Rainer’s, Plaintiff’s treating physician, confirmation of
disability on 12/3/10 (Ex. 11, NRECA 720-721)
Ex. 12: Medical records of Dr. Rainer, which supported his opinions
(Ex. 12, NRECA 851-853), 11/30/09, 2/8/10, 5/19/10, 5/25/10, 6/7/10,
6/16/10, 6/21/10, 7/6/10, 7/27/10, 8/4/10, 8/18/10, 9/20/10 (NRECA
229-264).
48

Ex. 15: Dr. Chindalore’s records for fibromyalgia, osteoarthritis, neck
pain 7/21/09, 12/4/09, 3/22/10, and 6/30/10. (Ex. 15, NRECA 265-296)
Ex. 16: Dr. Bowen’s records of Birmingham Neurosurgery and Spine
Group 4/27/10-5/6/10 showing stenosis C6-7 bilaterally and some
stenosis at C5-6. (Ex. 16, NRECA 731-742)
Ex. 17: Report of Medical Record Reviewer by Dr. Mary Beth Scholand
(Pulmonologist) of Medical Review Institute of America - 12/15/10 who
supported disability on the basis of pain. (Ex. 17, NRECA 713-718)
Ex. 20: Fife appeal to CBA 3/1/11 (NRECA 636-638) with submissions
of new evidence from Dr. Alexander 12/3/09 (NRECA 647-653) and
updated records from Dr. Conner3 11/24/10, 12/21/10, 1/20/11, 1/25/11,
2/10/11, 2/16/11 (NRECA 282-296) (NRECA 667-676) and MRI results
and an explanation that fibromyalgia and osteoarthritis were not
included because CBA told her to list only the reason she was out of
work that week. Fife explained that her disability was not just the
pulmonary issues.
Ex. 29: Fife’s second appeal notice 8/24/11 (NRECA 474-482) with a
chronological history of relevant medical records including a fall in
11/09, history of back pain, confirmation of fibromyalgia with trigger
points on 3/22/10, active right C7 radiculopathy and C6 disk pathology
on 5/18/10, and diagnosis of disabling pain of 6/19/11 by Dr. Conner.
(Ex. 29)
Ex. 31: Vocational report by Dr. Crunk confirming total disability. (Ex.
31)
Ex. 34: Cherokee Health Clinic Records Dr. Ranier 11/30/09, 2/8/10,
5/19/10, 5/25/10, 6/7/10, 6/16/10, 6/21/10, 7/6/10, 7/27/10, 8/4/10,
8/18/10, 9/20/10: (NRECA 229-264)
Ex. 36: Dr. Henry Ruiz, neurosurgeon 5/18/10 (NRECA 765-768):
“Impression: Active right C7 radiculopathy secondary to c6 disk
49

pathology, both degenerative and due to calcification in nature.”
Ex. 37: Evaluation by Dr. Henry Born, examining physician for the
SSA, confirming of disability. (Ex. 7, NRECA 693-697; Ex. 37, NRECA
693-697)
Ex. 38: Dr. Connor’s records at Pain & Wound Care Center for
fibromyalgia, neck and hip pain with herniated disc in neck
8/8/10-4/17/12: (Ex. 38, NRECA 302-307, 310-315, 318-348, 356-358,
364, 370-371, 374-375, 380-381, 385-387, 389-398)
Ex. 40: MRI’s of 4/27/10, Cherokee Health Clinic. (NRECA 163-174)
(Doc. 38 at 6-8).28 Conclusorily citing to a mass of records, with very little, if any,
discussion, does not satisfy the plaintiff’s burden to show both functional limitations
and how those limitations “prevent[] [her] from performing any or all of the Material
and Substantial Duties of [her] Own Occupation.” (Doc. 52 at 36, § 2.04). The
plaintiff makes no attempt to argue how any specific finding or record satisfies this
burden. For this reason alone, the defendants are entitled to summary judgment.
Further, without going into extensive detail again, the court notes by way of
summary that the medical evidence supports the Appeals Committee’s opinion that
she is not disabled. Certainly there is evidence that Fife complained to some of her
regular physicians about pain. However, none of the records of these of physicians

28

The court notes that this language does not come from pages 4-7 of the plaintiff’s brief.
However, the court assumes that the plaintiff meant to refer to the section the court quotes as it
specifically refers to “substantial and convincing evidence of disability,” and no other section
within the pages the plaintiff cites has such a designation.
50

reflect that plaintiff was “disabled” as defined by the Plan.
There is no evidence that primary treating physicians thought she was disabled.
Dr. Connor’s records consistently noted only a moderate decrease in cervical range
of motion while measuring strength in all extremities at a 4/5 level. In May of 2011,
Dr. Rainer, one of the physicians to whom she complained of pain, opined that the
plaintiff “likely could do a sedentary . . . job.” (Doc. 65-11 at 21). Finally, Dr.
Chindalore frequently noted that Fife had good range of motion, that her low back
appears benign, that her lumbosacral “spine flexion” was consistently “within normal
limits, she had normal gait, no myopathy or radiculopathy, no vasculitic lesions, her
neck was supple with good C-spine range of motion. Only on December 21, 2009, did
Dr. Chindalore indicate that all of the fibromyalgia “trigger points” were positive.
(Doc. 65-1 at 34). Other times, Dr. Chindalore noted that only “some” or “a few” of
the trigger points were positive. (Doc. 65-1 at 27 (January 23, 2009), 32 (March 16,
2009); 32-33 (April 24, 2009); 33 (July 21, 2009); and 37 (June 30, 2010)). The
plaintiff offers no analysis or explanation as to how these findings do not at least
reasonably support the decision of the Appeals Committee.
Further, the results from two cervical spine MRIs on the plaintiff’s back
conducted in April 27, 2010, and February 10, 2011, described only “[e]arly
spondylotic and degenerative changes,” “mild broad-based bulging of the C6
51

intervertebral disc,” and a “[v]ery small broad-based subligamentous bulge at C6-7,”
which was causing a “mild impression upon on the ventral thecal sac but no
significant spinal canal stenosis.” (Doc. 65-7 at 35; doc. 65-14 at 80). The plaintiff
cites no opinion of any expert, and does not otherwise explain how these test results
do not reasonably support the decision of the Appeals Committee.29 A February 2011
lumbar MRI found no evidence of disc bulge, spinal canal stenosis or foraminal
narrowing but noted a right-sided pseudomeningocele at L4 and L5 with questionable
right S1 pseudomeningocele. Again, the plaintiff cites no expert who opines that the
results of this test show that she was disabled in any way.
Dr. Born documented normal upper and lower extremity strength (with no
atrophy in extremity muscles), normal sensory exam, normal reflexes, and normal
gait. (Doc. 65-13 at 23-24). Dr. Lafavore wrote: “There [is] insufficient medical
evidence to support functional impairment as related to cervical spinal stenosis and/or
fibromyalgia.” (Doc. 65-13 at 39). Dr. Scholand could only opine that the plaintiff’s
radicular pain “might be exacerbated by the specific duties of her job.” (Doc. 65-14
at 3) (emphasis added). Dr. Scholand did not opine that the plaintiff was “disabled”
or unable to perform any of the duties of her job. The plaintiff has not addressed the

29

Notably, Dr. Litow wrote that the April MRI findings were only “consistent with mild
degenerative disc disease of the cervical spine.” (Doc. 65 at 38).
52

opinions of these physicians, nor explained why these opinions do not provide
reasonable support for the decision of the Appeals Committee.
Finally, reviews by Drs. Litow and Kaplan found that the plaintiff was not
functionally limited. Dr. Litow noted that Fife had a variety of complaints but found
her “conditions were noted to be chronic and stable.” (Doc. 65 at 35). He also found
“no physical conditions supported by the clinical evidence that are functionally
impairing.” (Doc. 65 at 37). He supported this conclusion with:
– contemporaneous records of a May 6, 2010, physical examination by Dr.
Bowen which confirmed that Fife had significant functional capacity. (Doc. 65
at 36, 38-39).
– the April 27, 2010 MRI findings that Litow noted were “consistent with mild
degenerative disc disease of the cervical spine.” (Doc. 65 at 38).
– medical records from Dr. Connor of the Pain and Wound Care Center, noting
that those records, ranging in dates from August 18, 2010 through April 17,
2012, consistently noted only a moderate decrease in cervical range of motion
while measuring strength in all extremities at a 4/5 level. (Doc. 65 at 37).
– the physical examination documented by Dr. Born on February 23, 2011,
which, while documenting decreased range of motion in Fife’s cervical and
lumbar spine, he also documented normal upper and lower extremity strength
53

(with no atrophy in extremity muscles), normal sensory exam, normal reflexes,
and normal gait. (Doc. 65 at 38).
While Dr. Kaplan acknowledged that Fife had certain orthopedic issues, he
found the medical evidence demonstrated that she could work noting:
– “multiple physical examinations and radiographic findings demonstrate
excellent retained physical ability.” (Doc. 65-10 at 56).
– “[Dr. Rainer] feels that due to the claimant’s overall joint pain, fatigue, and
dyspnea, she would not be able to work at any job other than a solely sedentary
job. Dr. Rainer feels that she likely could do a sedentary sitting job but the
claimant perceives she is not able to do that….” (Doc. 65-11 at 21).
– Dr. Chindalore’s December 2009 records noted “positive flbromyalgia
trigger points [and] painful range of motion” but also noted “normal gait and
no myelopathy or radiculopathy.” (Doc. 65-10 at 51). Dr. Kaplan also noted
how Dr. Chindalore’s March 22, 2010, records confirmed that Fife’s “hands,
wrists, shoulders, elbows, ankles, knees, and hips had good range of motion
without any effusion,” that her “low back appeared benign,” her spine
“demonstrated flexion within normal limits,” and that her “gait was normal.”
(Doc. 65-10 at 51-52).
– the May 6, 2010, office notes from her evaluation by Dr. Browne noted
54

“normal range of motion of all joints and with no deformity,” a “normal
cognitive examination,” a “detailed motor neurological examination” that was
“within normal limits,” normal gait and an absence of paraspinal muscle
spasm. (Doc. 65-10 at 52).
Dr. Kaplan noted that the plaintiff has been diagnosed with firbomyalgia “with very
limited objective impairing factors.” (Doc. 65-10 at 56). He concluded that:
From a physical medicine and rehabilitation perspective, the medical
evidence does not support a musculoskeletal condition or conditions that
would support impairment for a sedentary occupation. Rather, the
records outline proposed diagnoses and retained physical abilities such
that continuation of a sedentary occupation would not only be possible
but likely therapeutic for this claimant.
(Doc. 65-10 at 57).
Based on the evidence in the record, the court determines that the decision of
the Appeals Committee was both de novo correct and, even if it was not de novo
correct, that it was supported by reasonable grounds.
3.

None of the Plaintiff’s Other Grounds for Reversal Have Merit
a.

There Is No “Burden of Explanation” Regarding a
Favorable SSA Decision

The plaintiff claims that the decision of the Appeals Committee should be
reversed because it failed to explain why it reached a decision that the plaintiff was
not disabled when the Social Security Administration reached the opposite
55

conclusion. She states that the committee “failed to explain the discrepancy between
a favorable SSA Award and a denial of LTD benefits for ‘own’ occupation.” (Doc.
38 at 31; doc. 53 at 5-6; doc. 57 at 30-32).30 She refers to this as the committee’s
“burden of explanation.”
(1)

Under These Circumstances, the SSA Decision Is
Not Relevant

In support of her argument, she cites to the following language in Metro. Life
Ins. Co. v. Glenn (Glenn), 554 U.S. 105, 118, 128 S. Ct. 2343, 2352, 171 L. Ed. 2d
299 (2008):
[T]he court found questionable the fact that MetLife had encouraged
Glenn to argue to the Social Security Administration that she could do
no work, received the bulk of the benefits of her success in doing so (the
remainder going to the lawyers it recommended), and then ignored the
agency’s finding in concluding that Glenn could in fact do sedentary
work. See id., at 666–669. This course of events was not only an
important factor in its own right (because it suggested procedural
unreasonableness), but also would have justified the court in giving
more weight to the conflict (because MetLife’s seemingly inconsistent
positions were both financially advantageous).
Glenn, 554 U.S. at 118. She then states that “[c]ircuit courts across the nation have
confirmed that . . . Glenn held that insurers have a ‘burden of explanation’ to address
the contrary conclusion reached by the Social Security Administration (SSA).” (Doc.
53 at 4 (citing Schexnayder v. Hartford Life and Accident Insurance Company, 600

30

She makes a similar argument at doc. 57 at 40.
56

F.3d 465, 470-471 (5th Cir. 2010); Montour v. Hartford Life & Acc. Ins. Co., 588
F.3d 623 (9th Cir. 2009); Salomaa v. Honda Long Term Disability Plan, 642 F.3d
666, 679 (9th Cir. 2011); DeLisle v. Sun Life Assurance Co. of Canada, 558 F.3d 440
(6th Cir. 2008)).
First, the phrase “burden of explanation,” in the context of divergent decisions
on benefits, appears nowhere in Glenn or the other cases cited by the plaintiff.31
Second, Glenn does not stand for the proposition that a contrary decision by the social
security administration must always be considered at every stage of the ERISA
review process.
There are many reasons not to consider a disability decision by the social
security administration. As was recently noted by Magistrate Judge Ott in this district:
First, the standards and procedures that the SSA employs in determining
eligibility for disability benefits under the Social Security Act are
distinct and may differ considerably from those used to determine
whether a claimant is entitled to disability benefits under the terms of an
ERISA plan. See Nord, 538 U.S. at 832–33, 123 S.Ct. 1965; Krolnik v.
Prudential Ins. Co. of Amer., 570 F.3d 841, 844 (7th Cir.2009); Paese
v. Hartford Life & Acc. Ins. Co., 449 F.3d 435, 442–43 (2d Cir.2006);
Smith v. Continental Cas. Co., 369 F.3d 412, 419–20 (4th Cir.2004).
Likewise, the ERISA plan administrator may have considered more
recent or different information or weighed evidence differently. See Ray,
31

It does appear in Salomaa in a different context. See, Salomaa v. Honda Long Term
Disability Plan, 642 F.3d 666, 681 (9th Cir. 2011) (“Nothing in [ERISA] suggests that plan
administrators must accord special deference to the opinions of treating physicians. Nor does
[ERISA] impose a heightened burden of explanation on administrators when they reject a
treating physician’s opinion.”) (emphasis added).
57

443 Fed.Appx. at 533; Schexnayder, 600 F.3d at 471; Wade v. Aetna
Life Ins. Co., 684 F.3d 1360, 1362–63 (8th Cir.2012). It is also possible,
of course, that the SSA’s decision may have itself simply been wrong.
See Glenn, 554 U.S. at 134, 128 S.Ct. 2343 (Scalia, J., dissenting).
Blair v. Metro. Life Ins. Co., 955 F. Supp. 2d 1229, 1247 (N.D. Ala. 2013) aff’d, 1313463, 2014 WL 2809138 (11th Cir. June 23, 2014). That is not to say, of course, that
a decision by the SSA is never relevant. But it is important to note when it is relevant,
and for what purpose.32 To make this determination, a closer examination of the
procedural history and holding of Glenn is appropriate.
Glenn was an appeal from a Sixth Circuit decision. The Sixth Circuit had noted
in its opinion that it was “entitled to take into account the existence of a conflict of
interest that results when, as in this case, the plan administrator who decides whether
an employee is eligible for benefits is also obligated to pay those benefits.” Glenn v.
MetLife, 461 F.3d 660, 666 (6th Cir. 2006) aff’d sub nom. Metro. Life Ins. Co. v.
Glenn, 554 U.S. 105, 128 S. Ct. 2343, 171 L. Ed. 2d 299 (2008). The Sixth Circuit
held:
In discussing the applicable standard of review, the district court
identified this conflict of interest as a relevant factor in determining
whether an abuse of discretion had taken place. See Glenn v.
Metropolitan Life Ins. Co., 2005 WL 1364625 at *4 (S.D.Ohio, June 8,
2005) (citing Firestone Tire & Rubber, 489 U.S. at 115, 109 S.Ct. 948

32

Other than to state that the decision must be considered, the plaintiff makes no attempt
to explain its relevance.
58

(“[I]f a benefit plan gives discretion to an administrator or fiduciary who
is operating under a conflict of interest, that conflict must be weighed as
a ‘facto[r] in determining whether there is an abuse of discretion.’ ”)
(internal citation omitted)). However, the court’s analysis of the plan
administrator’s basis for terminating benefits does not include any
discussion of the role that MetLife’s conflict of interest may have played
in its decision nor appear to give that conflict any weight. It appears to
us, as a result, that this factor did not receive appropriate consideration
by the district court.
Glenn, 461 F.3d at 666 (internal citations omitted). Then the Sixth Circuit wrote:
There is yet another factor that the district court appears to have
given inadequate consideration. The plaintiff contends that the plan
administrator was arbitrary in failing to consider the award of disability
benefits that she secured from the Social Security Administration. The
record reflects that Metlife notified her that payments for long-term
disability were subject to a discount for amounts received from other
sources and steered her to a law firm specializing in securing disability
benefits from the Social Security Administration. After the firm secured
an award of benefits for her based on a claim of total disability, MetLife
deducted the amount of those government benefits from the disability
payments that it was obliged to pay and demanded a refund from Glenn
in the amount of $13,500. And, yet, in making the decision to terminate
payments under the MetLife policy, the plan administrator gave no
weight whatever to the Social Security Administration’s determination
of total disability. Hence, Glenn posits that MetLife took blatantly
inconsistent positions-relying on the finding by the Social Security
administrative law judge that she was totally disabled but contending
that she was capable of performing sedentary work in denying her
ERISA benefits.
The district court recognized this inconsistency but declined to
invoke the doctrine of estoppel. Although we conclude that this ruling
was technically correct, the fact that MetLife and the Social Security
Administration reached contrary conclusions regarding Glenn’s
disability status has two ramifications for this appeal. The first stems
from the fact that MetLife assisted Glenn in obtaining Social Security
59

benefits and reaped a financial benefit of its own when that assistance
was successful. The second issue relates to the fact that, in denying
Glenn continuation of her long-term benefits, MetLife failed to address
Social Security’s contrary determination of Glenn’s status. It is obvious
that both factors are relevant in determining whether MetLife’s decision
was arbitrary and capricious.
Id. at 666-67 (emphasis added). The Sixth Circuit’s opinion stands for the proposition
that a contrary disability determination by the Social Security Administration is
relevant, when there is a conflict of interest, for the purpose of determining whether
the decision was arbitrary and capricious.
The Supreme Court’s decision on appeal did not broaden the scope of the
relevance of an SSA decision. Indeed, that specific issue was not before the court.
The issues before the Court were only: 1) “whether a plan administrator that both
evaluates and pays claims operates under a conflict of interest in making discretionary
benefit determinations,” and 2) “‘how’ any such conflict should ‘be taken into
account on judicial review of a discretionary benefit determination.’” Glenn, 554 U.S.
at 110. After determining that there was a conflict of interest in the circumstances
before it, the Supreme Court held that “when judges review the lawfulness of benefit
denials, they will often take account of several different considerations of which a
conflict of interest is one.” Id. at 117. The Court then noted that “[t]he Court of
Appeals’ opinion in the present case illustrates the combination-of-factors method of
review.” Id. at 118. It then included the passage cited by the plaintiff which, again,
60

reads:
[T]he court found questionable the fact that MetLife had encouraged
Glenn to argue to the Social Security Administration that she could do
no work, received the bulk of the benefits of her success in doing so (the
remainder going to the lawyers it recommended), and then ignored the
agency’s finding in concluding that Glenn could in fact do sedentary
work. See id., at 666–669. This course of events was not only an
important factor in its own right (because it suggested procedural
unreasonableness), but also would have justified the court in giving
more weight to the conflict (because MetLife’s seemingly inconsistent
positions were both financially advantageous).
Glenn, 554 U.S. at 118 (emphasis added).
Placed in context, it is clear that the Supreme Court’s decision only notes the
relevance of an SSA decision when there is a conflict of interest. Indeed, all of the
circuit court cases cited by the plaintiff are conflict cases. See, Schexnayder, 600 F.3d
at 471 (“Failure to address a contrary SSA award can suggest “procedural
unreasonableness” in a plan administrator’s decision. . . . This procedural
unreasonableness is important in its own right and also “justifie[s] the court in giving
more weight to the conflict.”) (citing Glenn, 128 S.Ct. at 2352); Montour, 588 F.3d
at 630 (discussing the weight to be given to several “conflict factors,” including “a
contrary SSA disability determination”); Salomaa, 642 F.3d at 679 (noting that where
there is a conflict of interest, “[e]vidence of a Social Security award of disability
benefits is of sufficient significance that failure to address it offers support that the
plan administrator’s denial was arbitrary, an abuse of discretion”); DeLisle, 558 F.3d
61

at 446 (“Although there is no technical requirement to explicitly distinguish a
favorable Social Security determination in every case, ‘[i]f the plan administrator (1)
encourages the applicant to apply for Social Security disability payments; (2)
financially benefits from the applicant’s receipt of Social Security; and then (3) fails
to explain why it is taking a position different from the SSA on the question of
disability, the reviewing court should weigh this in favor of a finding that the decision
was arbitrary and capricious.’” ) (quoting Bennett v. Kemper Nat’l Servs., 514 F.3d
547, 554 (6th Cir.2008)).33 In this case, the court has already determined that “[t]here
is no conflict here.” (Doc. 46 at 41). Accordingly, the SSA decision is not relevant.34

33

The plaintiff cited as “supplemental authority” the Eleventh Circuit’s recent decision in
Melech v. Life Ins. Co. of N. Am., 739 F.3d 663 (11th Cir. 2014). In that decision the Eleventh
Circuit panel remanded on the basis that the decisionmaker “had an obligation to consider
evidence presented to the SSA,” prior to deciding whether the plaintiff was entitled to benefits.
Melech, 739 F.3d at 666. That issue is not before this court. Further, Melech also involved a
conflict of interest and the court’s decision was based in no small part on “the Policy terms that
required [the plaintiff] to apply for SSDI and LINA’s seemingly selfinterested disregard for her
SSDI application,” which the court said “give us pause.” Id. at 674; see also, id. at 675-676
(discussing “the specter of procedural unreasonableness” and noting “the inconsistency between
an administrator’s policies encouraging its claimants to apply for SSDI (for the administrator’s
financial benefit), and the administrator’s subsequent denial of benefits under the ERISA plan, to
support the court’s decision to reverse the administrator’s denial of benefits.”) (citing Glenn, 461
F.3d at 666–669; Ladd v. ITT Corp., 148 F.3d 753, 756 (7th Cir.1998) (Posner, J.); Montour, 588
F.3d at 635–37). Again, in this case there is no conflict.
34

This same argument was recently before Magistrate Judge John Ott in Blair v. Metro.
Life Ins. Co., 955 F. Supp. 2d 1229, 1246-47 (N.D. Ala. 2013) aff’d, 13-13463, 2014 WL
2809138 (11th Cir. June 23, 2014). The court has reviewed and takes judicial notice of the
pleadings in Blair. The plaintiff’s argument in the instant case closely resembles that in Blair.
(See, doc. 19 at 10-12 in Blair v. Metro. Life Ins. Co., 4:12-cv-01776-JEO (N.D. Ala.). Not
coincidentally, she was represented by the same attorney as the instant plaintiff. However, in
Blair, plaintiff’s counsel recognized that an “indication that conflict of interest tainted the
62

(2)

Even If the SSA Decision Is Relevant, It Was
Considered by the Appeals Committee

Importantly, this case was remanded to the Appeals Committee for the express
purpose of reviewing the favorable SSA decision. The Appeals Committee did so. In
its decision, the Appeals Committee made note of the favorable SSDI award and
wrote that
that award is not binding on the NRECA Long Term Disability Plan
which is governed by the Employee Retirement Income Security Act of
1974 (ERISA). SSDI decisions are determined according to a series of
procedural and regulatory rules that apply to SSDI benefits but not to
ERISA plans. Further, the definition of disability applicable to SSDI
benefits is not the same as the definition in the NRECA Long Term
disability Plan. Our decision is also based on the factual information
contained in the administrative record for Ms. Fife’s claim. That record
contains information that we understand was not provided to the Social
Security Administration when it decided your client’s claim for SSDI
benefits . . . As a result, the SSDI decision is not binding on the NRECA
Long Term Disability Plan because it was a different decision, made
under different procedural standards by a different decisionmaker, and
was based on different evidence.
(Doc. 36-6 at 13). The Eleventh Circuit has found that this type of “explanation” is
enough. See, Blair v. Metro. Life Ins. Co., 13-13463, 2014 WL 2809138 at *4 (11th
Cir. June 23, 2014) (“[C]ontrary to Blair’s assertions, MetLife did consider her
favorable SSA award. MetLife’s January 30, 2009 determination makes note of the

decision to terminate benefits is the disregard for the SSA favorable decision.” (Id. at 10)
(emphasis added).
63

award and explains that the awarding of SSA benefits does not guarantee the approval
or continuation of LTD benefits because the SSA benefits decision is separate from
and governed by different standards than MetLife’s review and determination under
the Plan. Accordingly, this argument fails.”).35, 36
35

In Blair the Eleventh Circuit also affirmed Magistrate Judge Ott after noting that he
“did consider Blair’s favorable award of SSA benefits but found that the only information in the
record relating to Blair’s SSA award was the fact that she was awarded SSA benefits in March
2008. That is all. Accordingly, [the court] could not address the claim in more detail. Blair did
not produce any other information, like, for example, an opinion from an administrative law
judge awarding benefits. The district court did not even know what materials the SSA considered
in making its favorable decision because Blair did not provide it with that information.” Blair v.
Metro. Life Ins. Co., 13-13463, 2014 WL 2809138 at *4 (11th Cir. June 23, 2014). In this case,
while the opinion of the ALJ does appear in the record (doc. 36-1 at 114) plaintiff has made no
attempt to discuss or explain why that decision demonstrates why the decision of the Appeals
Committee was wrong. Notably, the parties agree that Fife was awarded SSDI benefits based on
the ALJ’s conclusion that she was disabled by orthopedic issues, arthritis, fibromyalgia, asthma,
and depression. (Doc. 65-2 at 52-60). Yet the ALJ also found that Fife “has the residual
functional capacity to perform a significant range of light work as defined in 20 C.F.R. §
404.14567(b) except the claimant has distracting pain that is increased with physical activity to
the abandonment of tasks, and medication side effects that limit effectiveness due to distraction,
inattention, drowsiness, etc.” (Doc. 65-2 at 58). In the decision, the ALJ noted that “[g]reater
weight is given to the treating source records than the reports of the non-examining, reviewing
sources at the State agency ….” (Doc. 65-2 at 59). 71. The ALJ noted that “[m]edical
improvement is expected, with appropriate treatment,” and noted the need for another review in
18 months. (Doc. 65-2 at 60). It is undisputed that the ALJ did not have, and therefore could not
consider, certain evidence found in the administrative record here, including the opinions of Drs.
Scholand, Lafavore, Cosmo, Kaplan, Litow and Goldman, and the statements by two of Fife’s
treating physicians, Drs. Grubbe and Rainer. The court finds that even if this award was relevant
under these circumstances, at the very least it provides a support for the proposition that the
decision was reasonably based.
36

The plaintiff also argues that the Appeals Committee relied in error on the presumption
that the definition of disability under the Plan was more strict than Social Security’s definition.
(Doc. 57 at 32-33). The court rejects this argument as the language quoted above shows that the
Committee stated only that “the definition of disability applicable to SSDI benefits is not the
same as the definition in the NRECA Long Term disability Plan.” (Doc. 36-6 at 13) (emphasis
added). Further, the Committee stated that its decision was “based on the factual information
contained in the administrative record for Ms. Fife’s claim.” (Doc. 36-6 at 13).
64

b.

The Appeals Committee Did Not Use the Incorrect
Definition of Disability in the Plan

The plaintiff picks out, and finds fault with, the following phrase form the
Appeals Committee’s decision: “The Committee notes that the information available
is insufficient to support Ms. Fife’s inability to perform the functions of her sedentary
occupation beyond October 22, 2010.” (Doc. 36-6 at 14). Under the Plan, a
participant must (among other things) be “prevented from performing any or all of the
Material and Substantial Duties of [her] Own Occupation due to any accidental bodily
injury [or] sickness ….” (Doc. 52 at 36, § 2.04). In a wholly cursory and
underdeveloped argument, the plaintiff contends that the language she cites reveals
that Appeals Committee used an incorrect standard which required that, in order to
be considered “disabled,” the plaintiff be unable to perform all of the functions of her
previous job, as opposed to just one. (Doc. 38 at 32; doc. 57 at 34, 36-37; doc. 53 at
6).
The Appeals Committee’s noting that the evidence was insufficient to support
her inability to perform the functions (plural) of her sedentary occupation, is not the
same as it finding that she is not disabled for that reason alone. The actual basis and
criteria for its decision can be found one sentence after the sentence which troubles
the plaintiff, where the Appeals Committee clearly stated:
[I]t was the decision of the Committee that, based on their review of the
65

entire file, the medical documentation does not support that Ms. Fife had
any condition that rose to a level of impairment sufficient to cause her
to be unable to engage in any and all of the Material and Substantial
Duties of her Own Occupation as a Payroll Clerk[.]
(Doc. 36-6 at 14) (emphasis added). This language exactly tracks the Plan language.
The Appeals Committee did not use the wrong definition of disability.
c.

The Vocational Evaluation of William A. Crunk, PhD,
CRC

Crunk evaluated Fife on October 24, 2011. (Doc. 65-9 at 29). He opined that
“[s]he would be considered totally disabled as it related to work.” (Doc. 65-9 at 30).
This opinion was not discussed in the Appeals Committee’s decision of March 20,
2013. In its decision of December 30, 2011, the Appeals Committee did consider the
decision and appeared to give it no weight noting “there is no objective information
regarding her functional limitations or restrictions.” (Doc. 65-9 at 27). The plaintiff
writes that
the Appeals Committee abused whatever discretion it had by wrongly
and unreasonably refusing to reinstate benefits . . . because it:
...
failed to consider the vocational evaluation of Dr. Crunk on the second
appeal because “there is no objective information regarding her
functional limitations or restrictions and failed[] to mention the
evaluation in the denial after court remand.
(Doc. 38 at 31, 32; doc. 53 at 6; doc. 57 at 37) (citations omitted) (emphasis in
66

original). The plaintiff provides no other discussion or analysis. The plaintiff has not
explained why failing to consider Crunk’s opinion under these circumstances was
first incorrect, and, even if it was incorrect, how that would make the Committee’s
decision both de novo wrong and not at least supported by a reasonable basis.
Further, while the Appeals Committee did not mention Crunk’s letter in its
final decision, it is clear (and the plaintiff agrees) that it was considered by the
committee in the Second Appeal. (Doc. 65-9 at 27). In that appeal the committee
discounted Crunk’s conclusions because “there is no objective information regarding
her functional limitations or restrictions.” (Doc. 65-9 at 27). As was noted in Howard
v. Hartford Life & Acc. Ins. Co., 929 F. Supp. 2d 1264, 1294 (M.D. Fla. 2013) aff’d,
563 F. App’x 658 (11th Cir. 2014),
“ ‘Even for subjective conditions like fibromyalgia, it is reasonable to
expect medical evidence of an inability to work.’ ” Pinto v. Aetna Life
Ins. Co., No. 6:09–cv–01893–Orl–22GJK, 2011 WL 536443, at *10
(M.D.Fla. Feb. 15, 2011) (quoting Creel v. Wachovia Corp., No.
08–10961, 2009 WL 179584, at *9 (11th Cir. Jan. 27, 2009)).
Howard, 929 F. Supp. 2d at 1295. The plaintiff has not explained why the Appeals
Committee’s conclusion in this regard was incorrect. Further, she has not shown why,
once the committee disregarded this opinion in the Second Appeal, it was error to fail
to mention it in the Third Appeal. Finally, the plaintiff has not shown why, even if
Crunk’s opinion was considered, the decision would not still have a reasonable basis
67

in light of the numerous opinions from medical doctors which support the decision.
d.

A Diagnosis of Certain Conditions Which Cause Pain
Does Not Establish Disability

The plaintiff states that
[T]he Appeals Committee abused whatever discretion it had by wrongly
and unreasonably refusing to reinstate benefits . . . because it:
...
admitted the severity of Fife’s condition and the existence of objective
clinical evidence that Plaintiff suffers from severe pain:
“[Your client had] an established diagnosis of fibromyalgia
and cervical osteoarthritis with bone spurs and disc
bulge that causes radicular pain that might be exacerbated
by the specific duties of your job.”
(Doc. 38 at 31-32; doc. 53 at 6)(quoting doc. 36-6 at 4) (emphasis in original). The
plaintiff makes substantially the same argument in document 57 at page 36, but also
adds the following paragraph from the Appeals Committee’s March 20, 2013,
opinion:
Office notes signed by Dr. Chindalore dated April 16, 2004, through
December 21, 2009, document the claimant’s evaluation and treatment
for myalgias and arthralgias. Dr. Litow noted the physical exam dated
December 21, 2009, indicates “all fibromyalgia trigger points are
positive,” painful range of motion of multiple joints, normal flexion of
the lumbar spine, and normal gait.
(Doc. 57 at 36) (quoting doc. 36-6 at 8). The plaintiff provides no further explanation
as to why these facts might be important.
68

The first quote is based upon the same finding by Dr. Scholand that the
plaintiff has pain which might be exacerbated by the specific duties of her job. This
is speculation. But even if it is not, the statement does conclude that the plaintiff’s
condition is “severe” at all, and certainly does not conclude that her pain would
prevent her from working.
Further, in setting out these quotes, the plaintiff seems to be arguing that the
mere diagnosis of fibromyalgia is sufficient for her to be disabled. While it is true that
CBA and the independent physicians did generally accept the validity of her
diagnoses, a diagnosis alone does not confirm a disability. Howard v. Hartford Life
& Acc. Ins. Co., 929 F. Supp. 2d 1264, 1294 (M.D. Fla. 2013) aff’d, 563 F. App’x 658
(11th Cir. 2014) (“Indeed, doctors’ diagnoses do not in and of themselves, establish
a disability and inability to work.”).
Some people may have such a severe case of fibromyalgia as to be
totally disabled from working, Michael Doherty & Adrian Jones,
“Fibromyalgia Syndrome (ABC of Rheumatology),” 310 British Med.J.
386 (1995); Preston v. Secretary of Health & Human Services, 854 F.2d
815, 818 (6th Cir.1988) (per curiam), but most do not and the question
is whether [the plaintiff] is one of the minority.
Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996). The plaintiff has failed to show
how the quoted sections provide medical evidence of an inability to work.

69

e.

The Defendants Were under No Duty To Have the
Plaintiff Evaluated Further

The plaintiff states that
[T]he Appeals Committee abused whatever discretion it had by wrongly
and unreasonably refusing to reinstate benefits . . . because it:
...
Failed to hire a rheumatologist to assess [p]laintiff’s medical records
regarding diagnosis and treatment of fibromyalgia and pain.
(Doc. 38 at 32; doc. 53 at 6; doc. 57 at 37). The plaintiff does not explain, nor provide
authority for why, considering all of the opinions already in the record, and the
multiple reviews by independent examiners, this additional review was necessary
and/or would have made a difference. This underdeveloped argument is without
merit.
f.

There Is No Evidence that the Opinions of the
Plaintiff’s Treating Physicians Were Ignored

The plaintiff states that
[T]he Appeals Committee abused whatever discretion it had by wrongly
and unreasonably refusing to reinstate benefits . . . because it:
...
Disregarded [the] opinion of treating physicians contrary to [the]
instructions of Black & Decker Disability Plan v. Nord, 538 U.S. 822,
834 (2003), in which the U.S. Supreme Court held [the at] fiduciary may
not arbitrarily refuse to credit the opinion of [a] treating physician.
70

(Doc. 38 at 32; doc. 53 at 7; doc. 57 at 37). This underdeveloped argument does not
explain which opinions of what treating physicians were ignored.
Importantly, too, in Black & Decker, the Supreme Court also held that
courts have no warrant to require administrators automatically to accord
special weight to the opinions of a claimant’s physician; nor may courts
impose on plan administrators a discrete burden of explanation when
they credit reliable evidence that conflicts with a treating physician’s
evaluation.
Black & Decker, 538 U.S. at 834. Accordingly, even if the plaintiff has identified
certain favorable opinions of her treating physicians, which she has not, they would
be entitled to no special weight, and the decision would not be unreasonable simply
because of a disagreement between the plaintiff’s treating physician and the Plan’s
record reviewers.37

37

The plaintiff argues that

Several circuits have recently held that it was arbitrary and capricious to rely on
solely record reviewers instead of treating physicians. See Helfman v. GE Group
Life Assurance Company and Sun Life Assurance Company of Canada, 573 F.3d
383 (6th Cir. 2009), Holstrom v. MetLife, 615 F.3d 758 (7th Cir. 2010) and
Montour v. Hartford Life & Accident Ins. Co., 588 F.3d 623 (9th Cir. 2009):
“Another factor is Hartford’s decision to conduct a ‘pure paper’
review in this case, that is, to hire doctors to review Montour’s
files rather than to conduct an in-person medical evaluation of
him.”
(Doc. 57 at 41). Even if the court were bound to follow these cases, the record clearly shows that
the Appeals Committee did not rely “solely” on record reviewers.
71

g.

The Appeals Committee Did Not Err in Requiring
Objective Evidence that the Plaintiff’s Conditions Were
Disabling

The plaintiff argues that the Eleventh Circuit’s opinion in Oliver v. Coca Cola
Co., 497 F.3d 1181, 1197 (11th Cir. 2007) “held that it is arbitrary and capricious to
require objective evidence and to disregard a treating physician’s opinion in favor of
a medical reviewer’s opinion.” (Doc. 57 at 35). She then argues that the Appeals
Committee erred when it “[r]equired objective evidence contrary to Oliver.” Again,
this underdeveloped argument does not explain how the Appeals Committee required
such objective evidence.
First, as has been noted:
Oliver did not create a broadly applicable rule requiring disability plan
administrators to credit, in every case, a claimant’s subjective
complaints of pain. The Oliver Court simply found that in the context of
the plaintiff’s diagnosis and medical records, and under the terms of the
plan at issue in that case, the administrator’s decision to deny benefits
because of a lack of “objective medical evidence” was arbitrary and
capricious.
Tippitt v. Reliance Standard Life Ins. Co., CIV.A.1:02-CV1140JEC, 2007 WL
4054664 (N.D. Ga. Nov. 7, 2007) aff’d, 276 F. App’x 912 (11th Cir. 2008). Further,
in this case, as opposed to Oliver, it is undisputed that the plaintiff has pain from
fibromyalgia and other conditions. In Oliver, by contrast, “Coca–Cola based its
rejection of Oliver’s claim on its contention that Oliver failed to provide ‘objective
72

evidence’ of his disability, stating that the ‘true organic etiology’ of Oliver’s pain had
not been determined.” Oliver, 497 F.3d at 1196. Requiring objective evidence of “the
limitations” the plaintiff claims as a result of her diagnosis is acceptable. Gipson v.
Admin. Comm. Of Delta Air Lines, Inc., 350 F. App’x 389, 395 (11th Cir. 2009);
Keith v. Prudential Ins. Co. of Am., 347 F. App’x 548, 551 (11th Cir. 2009). In Stiltz
v. Metro. Life Ins. Co., 244 F. App’x 260, 264-65 (11th Cir. 2007), the Eleventh
circuit illustrated the difference, writing:
[T]he record does not reveal that MetLife denied benefits based on a
failure to provide objective evidence of Stiltz’s ailments. To borrow the
words of our sister circuit, “MetLife’s communications with [Stiltz]
support its contention that it was requesting only substantiation of the
extent of [Stiltz]’s disability and not an impossible level of objective
proof that [he] suffered from fibromyalgia.” Pralutsky v. Metro. Life Ins.
Co., 435 F.3d 833, 839 (8th Cir.2006). MetLife’s final decision
considered both the subjective and the objective evidence in Stiltz’s file,
and MetLife found that the objective evidence in the functional capacity
evaluation was the more reliable evidence of Stiltz’s ability to work.
Similarly in this case, there is no evidence that the defendants required the plaintiff
to prove, by objective evidence, that she had any of the ailments of which she
complains.38

38

Strangely, after arguing that the Appeals Committee improperly required objective
evidence, the plaintiff also argues that “[t]he [Appeals Committee] failed to objectively consider
Fife’s fibromyalgia.” (Doc. 57 at 41). The court is unsure of exactly what the plaintiff is arguing
here. She includes a lengthy block quotation from Judge Bowdre’s opinion in Williams v. United
of Omaha Life Ins. Co., CV-11-BE-3948-S, 2013 WL 5519525 (N.D. Ala. Sept. 30, 2013), but
omits, without a signal to that effect, multiple paragraphs, and fails to include a pinpoint citation.
Even considering what is included in the block quote it is unclear for what purpose this case is
73

h.

Dr. Litow’s Statement that Fife’s Evaluations Have
Been Normal

The plaintiff states that
[T]he Appeals Committee abused whatever discretion it had by wrongly
and unreasonably refusing to reinstate benefits . . . because it:
...
Relied on Dr. Litow’s statement that “Fife’s evaluations have been
normal” when Dr. Litow was only referring to pulmonary tests.

cited. At one point Judge Bowdre’s opinion notes that it is inappropriate to require objective
evidence of fibromyalgia. Williams, 2013 WL 5519525 at * 11 (“If the court were to require
objective facts such as lab tests or an xray to support a diagnosis, no patient would ever be
disabled based on fibromyalgia.”). She also wrote that she “finds troubling the contrary position
of United of Omaha’s in-house doctor, who is not a rheumatologist but who takes the rather
extraordinary position that no objective evidence supports any of these conditions.” Id. However,
as stated above, it is acceptable to require objective evidence that a condition is disabling. Judge
Bowdre also wrote:
The records of treating physician Dr. McLain are particularly helpful, as he not
only had the opportunity to treat Williams over a period of time and to note the
patterns of her diseases, but he also specializes in rheumatology. His medical
opinion is that Williams’s pain is disabling, that she is not exaggerating her
complaints or malingering, that her complaints of regular pain on a level eight out
of ten were consistent with her medical conditions, and that her pain could
reasonably be expected either to cause serious distraction from job tasks or to
cause her to fail to complete job tasks on more than an occasional basis.
Id. at 12. The plaintiff says that “[a]n appropriate decision in this case would be to substitute the
name of Dr. Chindalore, the treating physician for Dr. McLain.” (Doc. 57 at 43). However, she
provides no additional information, argument, or citations explaining why that would be the case.
The court notes that Dr. Chindalore’s records support the conclusion that the plaintiff had no
functional impairment. Further, only on December 21, 2009, did Dr. Chindalore indicate that all
of the fibromyalgia “trigger points” were positive. (Doc. 65-1 at 34). Unlike Dr. McLain in
Williams, in the instant case the plaintiff cites no opinion of Dr. Chindalore where her condition
is considered “disabling,” or any other opinion regarding her level of pain. Again, as with most
of the plaintiff’s argument, she seems to merely point to the medical records and ask the court to
find supportive evidence for her.
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(Doc. 57 at 36). First, the plaintiff provides no cite for the court to determine to what
tests Dr. Litow was referring. However, the court notes that Litow was asked to
review the plaintiff’s claims to see if she was disabled for pulmonary reasons as well
as for pain. Accordingly, it was not inappropriate to rely on this opinion that
pulmonary tests were normal.
The plaintiff may be arguing that this line of the opinion is misleading in that
it implies that all of the plaintiff’s tests (including non-pulmonary) were normal. That
argument too is without merit as the very next line of the opinion reads that “Dr.
Litow also noted that there were no impairing physical conditions supported.” (Doc.
36-6 at 12). In light of the fact that Dr. Litow evaluated the plaintiff’s capacity to
work based on physical pain and pulmonary issues, this second line, by discussing
only “physical conditions,” clarified that the “normal” tests to which the Committee
referred were only the pulmonary tests. “ Regardless, the record as a whole was
considered by the Committee, and its decision, as a whole, indicates that it considered
the full extent of Dr. Litow’s opinion, as well as the other record evidence.
i.

There Is No Reason To Ignore the Opinions of Dr.
Litow

In arguing that the opinion of Dr. Litow is “flawed,” “biased,” and “not based

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on substantial evidence,”39 the plaintiff makes some of the same underdeveloped
arguments she made above, including that he:
– “misrepresented the status of Fife’s medical records stating that
pulmonary tests were normal. Fife is not claiming disability on pulmonary
disease” (doc. 38 at 33; doc. 53 at 7; 57 at 38) (emphasis in original);
– “failed to consider the favorable SSA decision as evidence” (doc. 38 at 33;
doc. 53 at 7; doc. 57 at 38) (emphasis in original);
– “failed to explain the discrepancy between a favorable SSA Award and a
denial of LTD benefits of ‘own’ occupation” (doc. 38 at 33; doc. 53 at 7; doc.
57 at 38) (emphasis in original); and
– “failed to acknowledge the definition of disability which allows disability
if claimant is prevented from performing any of the material duties of her
occupation.” (doc. 38 at 33-34; doc. 53 at 8; doc. 57 at 39) (emphasis in
original).
These arguments have already been addressed as to the Committee decision. For

39

As with most of her arguments, the plaintiff restates and incorporates this same
argument in multiple submissions. In documents 38 and 53, she states that the opinion of “the
two record reviewers” are flawed, biased and not based on substantial evidence. (Doc. 38 at 32;
doc. 53 at 7) (emphasis added). Although she does not mention him by name, the second
reviewer is Dr. Goldman, a board certified psychiatrist. In Document 57, the plaintiff has
narrowed her complaints to just the opinion of Dr. Litow. This is likely because she has
abandoned a claim based on any psychological disorder. For that reason, the court will address
these complaints only as to the opinion of Dr. Litow.
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those same reasons, they fail here as well.
The plaintiff also argues that Dr. Litow “filed to address the opinion of Dr.
Rainier and the records and report of Dr. Conner, stating that Dr. Conner’s records
were illegible.” (Doc. 38 at 33; doc. 53 at 7; doc. 57 at 38). On the contrary, the
record clearly shows that he found “no physical conditions supported by the clinical
evidence that are functionally impairing” (doc. 65 at 37), a conclusion he supported
in part by medical records from Dr. Connor, ranging in dates from August 18, 2010
through April 17, 2012, which consistently noted only a moderate decrease in cervical
range of motion while measuring strength in all extremities at a 4/5 level. (Doc. 65
at 37).40 Further, the plaintiff does not explain what “illegible” medical records were
not considered, what those records actually showed, and why that would make a
difference. Further, Dr. Litow was clear that he considered the records from “Multiple
Providers at Cherokee Health Clinic, dated 4/17/09 through 3/3/11.” Dr. Rainer was
one of those providers. (See doc. 36-12; doc. 57 at 18-19 (citing to documents from
Cherokee Health Clinic as “[m]edical records of Dr. Rainer, which supported his
opinions”)). If there are other such records which the plaintiff feels should have been
considered, and were not, it was her burden to establish as much. The vague allusion
40

The actual record itself discusses office visits by “various providers” at the Pain and
Wound Care Center. (Doc. 65 at 37). However, the parties have stipulated that these are records
from Dr. Connor. (See doc. 51 at 24 (defendants’ proffered fact number 81); doc. 57 at 23
(plaintiff’s statement that the fact is “admitted, but irrelevant”)).
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to “medical records which were not considered,” does not carry that burden.
The plaintiff claims that Dr. Litow
“[c]herry picked” evidence to substantiate predetermined opinions that
the medical records did not substantiate Fife’s disability while failing to
explain the SSA favorable opinion. Neither of the record reviewers
attempted to assess the Plaintiff’s ability to work based on the ‘big
picture’ combination of effects from the Plaintiff’s primary and
secondary health issues and medications. Instead, the record reviewers’
opinions that the Plaintiff was able to perform some sedentary work
were based on what was, at best, an incomplete picture of the Plaintiff’s
overall health situation.
(Doc. 38 at 33; doc. 53 at 7-8; doc. 57 at 38-39) (emphasis in original). Needless to
say, this vague argument, which makes no attempt to explain which portions of what
favorable evidence were omitted by Dr. Litow, fails to satisfy the plaintiff’s burden.
Further, the argument that the “big picture” was not considered is undercut by the vast
amount of evidence that Dr. Litow states she reviewed, and the fact that she
considered whether the plaintiff was disabled based on both pulmonary and physical
disabilities and still found her not to be functionally impaired.
The plaintiff claims that Dr. Litow “[f]ailed to mention Fife’s pain caused by
fibromyalgia or the effects of pain medications,” and quotes the following question
and answer from her report:
“Are there any physical condition(s) supported by the clinical evidence
that are functionally impairing? Please explain.”
“No, for the timeframe from June 11, 2010 forward, there are no
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physical conditions supported by the clinical evidence that are
functionally impairing.”
(Doc. 38 at 34; doc. 53 at 8; doc. 57 at 39) (quoting doc. 65 at 37). This argument is
without merit. Dr. Litow clearly considered voluminous medical records and test
results in reaching her opinion that the plaintiff was not functionally impaired. Her
report noted that the plaintiff’s medical conditions included “neck pain, back pain,
[and] fibromyalgia.” (Doc. 65 at 36). She also noted and considered the plaintiff’s
complaints of pain which were documented in the various medical records. (Doc. 65
at 36-37). She also noted that the medical records she reviewed “do not support any
evidence of side effects from the claimant’s medications.” (Doc. 65 at 39). The
plaintiff has pointed to no records or alleged side effects from medications which Dr.
Litow did not consider.
The plaintiff argues that Dr. Litow “[f]ailed to dispute the diagnoses of the
[p]laintiff’s treating physicians and failed to dispute that the [p]laintiff’s underlying
conditions can cause the debilitating symptoms she complains of and never examined
or spoke to Fife.” (Doc. 38 at 34; doc. 53 at 8; doc. 57 at 39) (emphasis in original).
As noted above, neither Dr. Litow, nor the defendants, dispute that the plaintiff has
the conditions of which she claims. The issue is only whether those conditions are
disabling. The plaintiff cites to no opinions of treating physicians which were not
considered. Further, there is no requirement that Dr. Litow personally examine or
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speak to the plaintiff for her independent evaluation to have merit. The plaintiff does
not explain why that was necessary or what difference it would have made.
The plaintiff’s motion for summary judgment will be DENIED, and the
defendants’ motion for summary judgment will be GRANTED.
V.

CONCLUSION
For the reasons stated herein the following will be ordered:
1.

The plaintiff’s motion for summary judgment (doc. 36) will be
DENIED;

2.

the defendants’ motion for summary judgment (doc. 50) will be
GRANTED;

3.

the plaintiff’s objection to and motion to strike portions of an affidavit
offered in support of the defendants’ motion for summary judgment
(doc. 55) will be treated as a objection and will be SUSTAINED;

4.

the plaintiff’s objection to and motion to strike certain facts proffered in
support of the defendants’ motion for summary judgment (doc. 56), will
be treated as an objection, and will be SUSTAINED in part and
OVERRULED in part as noted herein;

5.

the plaintiff’s motion to allow supplemental authority (doc. 62) will be
GRANTED; and
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6.

portions of the materials cited by the parties will be STRICKEN as
noted herein. (See Section III. B. of this opinion).

A separate order will be entered.
DONE and ORDERED this 10th day of September, 2014.

VIRGINIA EMERSON HOPKINS
United States District Judge

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