Charnetski v. Metropolitan Life Insurance Company

Filing 21

MEMORANDUM OPINION. Signed by US Magistrate Judge T Michael Putnam on 12/17/2013. (KAM, )

FILED
2013 Dec-17 PM 04:49
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION

MARCUS CHARNETSKI,
Plaintiff,
vs.
METROPOLITAN LIFE INSURANCE
COMPANY,
Defendant.

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Case No. 7:12-cv-01937-TMP

MEMORANDUM OPINION
This action is before the court on the motion by Marcus Charnetski (“Plaintiff”), filed on
April 22, 2013, for judgment as a matter of law. (Doc. 11). Plaintiff argues that there is no
genuine issue of material fact as to whether he is disabled and whether Metropolitan Life
Insurance Company’s (“MetLife”) decision to deny his claim was wrong, unsupported by the
evidence, and arbitrary and capricious. The matter has been briefed by both parties, and both
parties have submitted evidence in support of their positions. Parties have consented to the
exercise of jurisdiction by the undersigned pursuant to 28 U.S.C. § 636(c); accordingly, the court
enters this memorandum opinion.

I. SUMMARY JUDGMENT STANDARD
Under Federal Rule of Civil Procedure 56(c), summary 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.” Fed. R. Civ. P. 56(c). The party asking for
summary judgment “always bears the initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). The movant can meet this burden by presenting
evidence showing there is no dispute of material fact, or by showing that the nonmoving party
has failed to present evidence in support of some element of its case on which it bears the
ultimate burden of proof. Celotex, 477 U.S. at 322-23. There is no requirement, however, “that
the moving party support its motion with affidavits or other similar materials negating the
opponent’s claim.” Id. at 323.
Once the moving party has met his burden, Rule 56(e) “requires the nonmoving party to
go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to
interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine
issue for trial.’” Id. at 324 (quoting Fed. R. Civ. P. 56(e)). The nonmoving party need not present
evidence in a form necessary for admission at trial; however, he may not merely rest on his
pleadings. Celotex, 477 U.S. at 324. “[T]he plain language of Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and upon motion, against a party who fails
to make a showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Id. at 322.
After the plaintiff has properly responded to a proper motion for summary judgment, the
court must grant the motion if there is no genuine issue of material fact, and the moving party is
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entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The substantive law will identify
which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute is genuine “if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Id. at 248. “[T]he judge’s function is not himself to weigh
the evidence and determine the truth of the matter but to determine whether there is a genuine
issue for trial.” Id. at 249. His guide is the same standard necessary to direct a verdict: “whether
the evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.” Id. at 251-52; see also Bill Johnson’s
Restaurants, Inc. v. N.L.R.B., 461 U.S. 731, 745 n. 11 (1983). However, the nonmoving party
“must do more than show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). If the
evidence is merely colorable, or is not significantly probative, summary judgment may be
granted. Anderson, 477 U.S. at 249 (citations omitted); accord Spence v. Zimmerman, 873 F.2d
256 (11th Cir. 1989). Furthermore, the court must “view the evidence presented through the
prism of the substantive evidentiary burden,” so there must be sufficient evidence on which the
jury could reasonably find for the plaintiff. Anderson, 477 U.S. at 254; Cottle v. Storer
Communication, Inc., 849 F.2d 570, 75 (11th Cir. 1988). Nevertheless, credibility
determinations, the weighing of evidence, and the drawing of inferences form the facts are the
function of the jury, and therefore the evidence of the non-movant is to be believed and all
justifiable inferences are to be drawn in his favor. Anderson, 477 U.S. at 255. The non-movant
need not be given the benefit of every inference but only of every reasonable inference. Brown v.
City of Clewiston, 848 F.2d 1534, 1540 n. 12 (11th Cir. 1988).
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II. FACTS
Plaintiff asserts claims arising from the denial of his application for benefits under the
Barkley Pontiac-Cadillac-GMC Trucks, Inc. long-term disability plan (the “Plan”), of which
MetLife is the fiduciary. Plaintiff asserts that denial of his application for long-term disability
benefits was in violation of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C.
§ 1001 et seq. Plaintiff is an insured under the long-term disability policy available through
Barkley Pontiac-Cadillac-GMC.
For purposes of deciding Plaintiff’s motion for summary judgment, the following facts
are considered to be undisputed or viewed favorably to the non-moving defendant.

A. BARKLEY PONTIAC-CADILLAC-GMC TRICKS, INC.’S DISABILITY PLAN
Barkley Pontiac-Cadillac-GMC Trucks, Inc. is the plan sponsor and plan administrator.
MetLife is the Plan’s claim administrator. The Plan provides long-term disability benefits to
eligible employees. It is funded by MetLife through a group insurance policy. MetLife, the
defendant, is the claim administrator, but not the plan administrator. (Doc. 11-3, P. 4).
According to MetLife, the Plan does not grant discretionary authority to determine eligibility for
plan benefits. (Doc. 11-3, P. 4-5). Under the Plan:

“Disabled” or “Disability” means that, due to sickness, pregnancy or accidental
injury you are receiving Appropriate Care and treatment from a Doctor on a
continuing basis; and

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1. during your Elimination Period and the next 24 month period,
you are unable to earn more than 80% of your Predisability
Earnings or Indexed Predisability Earnings at your Own
Occupation from any employer in your Local Economy; or

2. after the 24 month period, you are unable to earn more than
60% of your Indexed Predisability Earnings from any employer in
your Local Economy at any gainful occupation for which you are
reasonably qualified taking into account your training, education,
experience and Predisability Earnings.

(Doc. 11-1, P. 18).

The Plan limits the duration of monthly benefit payments to 24 months if the participant
is disabled due to “neuromusculoskeletal and soft tissue disorder ... unless the disability has
objective evidence of seropositive arthritis; spinal tumors, malignancy, or vascular
malformations; radiculopathies; myelopathies; traumatic spinal cord necrosis; or
musculopathies.” Radiculopathy, with which Plaintiff claims to be suffering, is defined as a
“disease of the peripheral nerve roots supported by objective clinical findings of nerve
pathology.” (Doc. 11-1, P. 27).
In order to qualify for disability benefits, the Plan requires that the claimant provide proof
of disability. The Plan’s definition of proof includes, but is not limited to, 1) the date disability
began, 2) the cause of disability, and 3) the prognosis of the disability. The Plan also requires the
claimant to provide a signed authorization for MetLife to obtain medical information that may be
reasonably required to support the disability claim. (Doc. 11-1, P. 31). Although the Plan

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defines what may be considered “proof” of disability, it does not define what will be considered
“objective evidence” to support the diagnosis of radiculopathy under the Plan.

B. CHARNETSKI’S HISTORY
Plaintiff was employed by Barkley Pontiac-Cadillac-GMC Trucks, Inc., as an automotive
technician, for approximately 7 years. His disability claim is based on a back injury he sustained
in 2005 while lifting a heavy transmission on the job. On August 12, 2005, Plaintiff underwent
an L4-5 hemilaminectomy with microdiskectomy, performed by Dr. Bryan Givhan. Plaintiff
returned to work, but continued to suffer from back pain. Eventually, Plaintiff was referred for
chronic pain management. On March 10, 2009, Plaintiff became unable to do his job due to pain
from the injury. Plaintiff applied for Social Security Disability Insurance Benefits, as required by
the Plan, and was ultimately approved. MetLife is entitled to offset the amount of benefits it
pays out under the Plan by the amount of monthly Social Security benefit Plaintiff receives.
Plaintiff has been diagnosed with chronic low back pain, left leg pain, status post
diskectomy at L4-5 with continued L5 radiculopathy. (Doc. 11-1, Pp. 382, 562). Russ Gurley
(“Gurley”), a licensed professional counselor, performed a vocational evaluation on Plaintiff on
August 29, 2011. Based on Gurley’s own examination of Plaintiff, along with medical records
completed by Dr. Givhan and Plaintiff’s treating physician, Dr. Frederick S. Graham
(“Graham”), Gurley found that Plaintiff “is 100% disabled from his previous work as a mechanic
and 100% disabled from all other full time gainful employment of any kind.” (Doc. 11-1, P.
390).

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Plaintiff has been Graham’s patient since prior to 2006. Graham is board-certified in
physical medicine and rehabilitation. Graham stated that he found objective medical evidence of
radiculopathy in the Plaintiff, specifically noting MRIs dated February 20, 2006, and January 14,
2011. (Doc. 11-1, P. 383). Graham stated that Plaintiff “without a doubt” has a disease of the
nerve roots supported by clinical findings of nerve pathology. (Doc. 11-1, P. 384). To help
manage Plaintiff’s pain, Graham prescribes Plaintiff 80mg of Oxycontin 3 times daily; Robaxin,
a muscle relaxer; and Klonopin, which is normally an anti-anxiety drug, to lessen Plaintiff’s
nerve pain. Graham stated that the medications prescribed to Plaintiff adversely affect his ability
to work a full eight-hour day because the side-effects of the medication could cause Plaintiff to
be unsafe when performing certain tasks. (Doc. 11-1, P. 385).
Plaintiff received 24 months of long-term disability benefits under the Plan, but was
denied further long-term disability payments on or about July 8, 2011, based on the Plan’s 24
month limit for disabilities stemming from neuromusculoskeletal and soft tissue disorder.
MetLife determined that Plaintiff’s medical records do not support the existence of any of the
specific conditions or exceptions that can lead to more than 24 months of long-term disability
benefit payments. In its letter denying long-term disability for Plaintiff, MetLife stated that
“while the claimant is unable to perform the duties of his occupation and has been awarded SSDI
benefits, the plan limits benefits for a disability due to a Neuromusculoskeletal and soft tissue
disorder to a period of 24 months.” (Doc. 11-1, P. 422). Petitioner appealed this decision, and
on August 8, 2011, Graham provided a statement indicating that Plaintiff is not capable of
performing a job for eight hours per day and forty hours per week due to severe pain and the side
effects of the narcotic pain medication used to treat the pain. (Doc. 11-1, Pp. 381, 86).
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In a letter dated September 5, 2011, MetLife stated that it would “evaluate all of the
information and advise [Plaintiff] of our determination of appeal within 45 days.” (Doc. 11-1, P.
392). On or around September 20, 2011, MetLife obtained a report from Dr. Neil Edward
McPhee (“McPhee”), an independent physician consultant. McPhee’s report opined that the
record lacked objective evidence of an exception to the Plan’s 24 month neuromusculoskeletal
limitation. McPhee’s report stated that Graham’s “comment about residual weakness was not
consistent with the multiple examinations recorded in the medical record,” that the 2011 MRI
showed “a small recurrent disc protrusion at L4-L5 equivocal for significant neural
impingement,” and that Plaintiff “does not have findings to diagnose an ongoing radiculopathy
such as focal motor weakness, asymmetric deep tendon reflexes, or positive straight leg raise
testing. An electromyogram has not been performed. Such test is commonly used to assess for
radiculopathy.” (Doc. 11-1, Pp. 372-73).
Before September 20, 2011, McPhee attempted to speak with Graham by telephone about
the discrepancies in the two doctors’ findings, but Graham did not return McPhee’s telephone
calls. On September 27, 2011, MetLife sent Graham a copy of McPhee’s report, asking him to
comment if he disagreed with the report. On the same day, MetLife sent Plaintiff’s attorney a
copy of the report and requested that he contact Graham to ensure that Graham received the
report. On October 5, 2011, MetLife wrote Plaintiff’s attorney a letter, informing him that
MetLife was waiting on a response from Graham to McPhee’s report, and requested an additional
45 days to render a decision on the appeal on October 5, 2011. On April 18, 2011, Plaintiff’s
lawyer wrote to MetLife asking about the status of Plaintiff’s claim. On May 15, 2012, MetLife
sent McPhee additional questions about the transcribed interview with Graham that is contained
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in Plaintiff’s record. No decision was ever rendered on the appeal, and on May 22, 2012,
Plaintiff filed suit. On May 31, 2012, McPhee responded to MetLife’s additional questions,
stating that a diagnosis of radiculopathy was not supported by the 2011 MRI or the other
information in Plaintiff’s record.

III. DISCUSSION
At issue is MetLife’s decision to deny Plaintiff long-term benefits beyond 24 months.1 It
is undisputed that Plaintiff received 24 months of benefits. The central question is whether
Plaintiff’s injury falls within any exception to the Plan’s 24-month limit on disability payments
for neuromusculoskeletal disorders, specifically, whether Plaintiff suffers from radiculopathy.
Plaintiff has presented as evidence statements from his treating physician and a fully favorable
decision from the Social Security Administration. MetLife relies on a report submitted by their
reviewing physician, Dr. Neil McPhee, along with subsequent information provided by Dr.
McPhee, in writing.

A. ERISA REVIEW STANDARD
The Eleventh Circuit has explained the framework to be applied in ERISA cases as
follows:

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Although MetLife did not actually render a decision on Plaintiff’s appeal before
Plaintiff filed suit, MetLife’s failure to timely render an opinion constitutes a “deemed denial”
under ERISA, and Plaintiff’s claim is properly before this court. Because MetLife failed to
provide a determination on Charnetski’s appeal within the statutorily prescribed time limit,
despite having ample opportunity to establish an administrative record and make a determination,
MetLife’s Motion for Administrative Remand (doc. 19) is due to be and hereby is DENIED.
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ERISA does not set out standards under which district courts must review an
administrator’s decision to deny benefits. Firestone Tire & Rubber Co. v. Bruch,
489 U.S. 101, 109, 109 S. Ct. 948, 953, 103 L. Ed. 2d 80 (1989). In order to fill
this void, the Supreme Court held in Firestone that district courts should review
de novo benefit decisions made by an administrator who is without discretion to
determine eligibility or construe the terms of an ERISA-governed plan. Id. at 115,
109 S. Ct. at 956. On the other hand, the Court said that where the administrator
exercises discretion, deferential (i.e., arbitrary and capricious)1 review is
appropriate according to trust principles, which guide review of decisions
affecting ERISA-governed plans. Id. at 111, 109 S. Ct. at 954. Finally, the court
observed that when an administrator with discretion operates under a conflict of
interest, “that conflict must be weighed as a ‘facto[r] in determining whether there
is an abuse of discretion.’” Id. at 115, 109 S. Ct. at 957 (quoting Restatement
(Second) of Trusts § 187 cmt. D (1959)).
Following Firestone, we undertook the “task [of] develop[ing] a coherent method
for integrating factors such as self-interest into the legal standard for reviewing
benefits determinations.” Brown v. Blue Cross & Blue Shield of Ala., Inc., 898
F.2d 1556, 1561 (11th Cir. 1990). In Brown, we reasoned that trust principles
mandated that some deferential level of review applies to benefits decisions, id. at
1562. We settled on what came to be known as the “heightened arbitrary and
capricious standard” (hereinafter the “heightened standard”), the hallmark of
which is its burden-shifting requirement. Under this standard, “the burden shifts
to the fiduciary to prove that its interpretation of plan provisions committed to its
discretion was not tainted by self-interest.” Id. at 1566. We said that an
administrator’s plan interpretation that “advances the conflicting interest of the
fiduciary at the expense of the affected beneficiary” was arbitrary and capricious,
unless the administrator “justifies the interpretation on the ground of its benefit to
the class of all participants and beneficiaries.” Id. at 1567.
Our more recent cases condense the holdings of Firestone and Brown into a six
step analysis to guide district courts in reviewing an administrator’s benefits
decision:

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Cases in our circuit equate the arbitrary and capricious standard with the abuse
of discretion standard. See Jett v. Blue Cross & Blue Shield of Ala. Inc., 890 F.2d
1137, 1139 (11th Cir. 1989). We use the terms interchangeably.

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(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 of interest, then apply heightened arbitrary and capricious
review to the decision to affirm or deny it.
Williams v. BellSouth Telecomms., Inc., 373 F.3d 1132, 1138 (11th Cir. 2004)
(summarizing analysis set forth in HCA Health Servs. Of Ga., Inc. v. Employers
Health Ins. Co., 240 F.3d 982, 993-95 (11th Cir. 2001)) (footnotes omitted).

Doyle v. Liberty Life Assur. Co. of Boston, 542 F.3d 1352, 1355-1357 (11th Cir. 2008)
However, in Metro Life Ins. Co. v. Glenn, --- U.S. ----, 128 S. Ct. 2343, 171 L. Ed. 2d
299 (2008), the Supreme Court

held that “a conflict should be weighed as a factor in determining whether there is
an abuse of discretion.” Id. at 2350 (quoting Firestone, 489 U.S. at 115, 109 S.
Ct. at 957) (internal quotation marks omitted). The Court emphasized that “the
word ‘factor’ implies, namely, 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 2351. The Court approved the Sixth Circuit’s
treatment of the conflict as a relevant factor, and affirmed its decision because the
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conflict, along with other factors, showed that MetLife’s decision was arbitrary.
Id. at 2351-52.

Doyle, 542 F.3d at 1359. The Eleventh Circuit has held that “Glenn implicitly overrules and
conflicts with our precedent requiring courts to review under the heightened standard a conflicted
administrator’s benefits decision.” Id.
In the instant case, MetLife maintains that it does not have discretionary authority to
administer the plan.2 Therefore, the review of MetLife’s denial will be de novo, and the court’s
analysis will end at step (1) or step (2) of the Williams six-step analysis. 373 F.3d at 1138. In
order to be entitled to a judgment as a matter of law, the moving party (here, Plaintiff) bears the
burden of proving there is no dispute of material fact, or showing that the nonmoving party has
failed to present evidence in support of some element of its case on which it bears the ultimate
burden. Celotex, 477 U.S. at 322-23. Plaintiff argues that the medical evidence presented in this
case conclusively shows that he is disabled pursuant to the terms of the plan.
The question at issue, however, is not whether Plaintiff is “disabled” under the plan - the
question is whether Plaintiff is entitled to long-term disability benefits beyond 24 months
because his disability results from a diagnosis of radiculopathy, and the diagnosis is supported by
objective clinical findings of nerve pathology. To prove this, Plaintiff does not have to illustrate
that no other reason for his disability could ever be found, only that there is no material question
that objective clinical evidence supports the finding of nerve pathology and the diagnosis of
radiculopathy. Therefore, the fact that MetLife can produce a physician that rebuts the clinical
2

Doc. 17, p. 10 n. 1.; Doc 11-3, p. 4-5.
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evidence produced by Plaintiff is not, on its own, conclusive. Dr. McPhee’s report does not
automatically create a question of material fact. To show a question of material fact, MetLife has
to show, with all reasonable inferences applied in its favor, that a question exists as to whether :
(1) Plaintiff was diagnosed with radiculopathy, or (2) whether that diagnosis was supported by
objective clinical findings of nerve pathology. In his report, Dr. McPhee disagrees with Dr.
Graham’s reading of Plaintiff’s most recent MRI and suggests other tests that could have been
done to support the diagnosis of radiculopathy. (Doc. 11-1, P. 51). This court does not suggest
that, in order to be entitled to summary judgment, Plaintiff must undergo all available medical
tests that could possibly diagnose radiculopathy.
Dr. Graham states in his transcribed interview that he diagnosed radiculopathy based on
viewing Plaintiff’s MRIs, which he considers objective evidence. The Plan does not provide any
indication that an MRI is not objective medical evidence sufficient to support a diagnosis of
radiculopathy. MetLife has not presented any evidence indicating that Graham did not diagnose
Plaintiff with radiculopathy or that Graham’s diagnosis was not supported by objective MRI
evidence. Although MetLife’s reviewing physician, Dr. McPhee, indicated that other tests could
be done to diagnose radiculopathy, neither McPhee nor MetLife presented evidence that an MRI
in itself is not objective medical evidence that could be used to support a diagnosis of
radiculopathy. Plaintiff has met his burden by presenting evidence showing there is no dispute of
material fact. Celotex, 477 U.S. at 322-23. Once the moving party has met his burden, Rule
56(e) “requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by
the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts

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showing that there is a genuine issue for trial.’” Id. at 324 (quoting Fed. R. Civ. P. 56(e)). Even
with all reasonable inferences applied in its favor, MetLife has failed to do so.
Because Plaintiff has illustrated that there is no issue of material fact, and MetLife has
failed to rebut that evidence, Plaintiff is entitled to judgment as a matter of law. MetLife’s denial
of Plaintiff’s long-term disability benefits beyond 24 months was de novo wrong, and MetLife’s
deemed denial of Plaintiff’s administrative appeal was also de novo wrong. Because MetLife, by
its own admission, was not vested with discretion in reviewing claims, the judicial inquiry under
the Williams standard is ended, and MetLife’s decision is due to be reversed. 373 F.3d at 1138.

CONCLUSION
Having reviewed the motion, the briefs, and the evidence and arguments presented by
both parties, and for the reasons outlined above, the court finds that the Plaintiff’s motion for
summary judgment (doc. 11) is due to be GRANTED, and MetLife’s decision is due to be
REVERSED. By the entry of this summary judgment, the court has determined that Plaintiff is
entitled to long-term disability benefits under the terms of the Barkley Pontiac-Cadillac-GMC
Trucks, Inc., Plan retroactive to July 8, 2011. By separate order, the court will Order defendant
Metropolitan Life Insurance Company to pay such benefits.

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The Clerk is DIRECTED to serve a copy of this memorandum opinion upon counsel for
all parties.

DATED this the 17th day of December, 2013.

T. MICHAEL PUTNAM
U.S. MAGISTRATE JUDGE

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