Melech v. Life Insurance Company of North America et al
Filing
162
ORDER granting 109 Motion for Summary Judgment as set out. Signed by Judge Kristi K. DuBose on 9/18/2012. (cmj)
IN
THE
UNITED
STATES
DISTRICT
COURT
FOR
THE
SOUTHERN
DISTRICT
OF
ALABAMA
SOUTHERN
DIVISION
DIANE
G.
MELECH,
)
)
Plaintiff,
)
)
vs.
)
CIVIL
ACTION
NO.:
10-‐00573-‐KD-‐M
)
LIFE
INSURANCE
COMPANY
OF
)
NORTH
AMERICA,
PENSION
AND
)
WELFARE
PLAN
ADMINISTRATION
)
COMMITTEE
–
THE
HERTZ
)
CORPORATION,
HERTZ
CUSTOM
)
BENEFIT
PROGRAM,
AND
THE
HERTZ
)
CORPORATION,
)
)
Defendants.
)
ORDER
This
action
is
before
the
Court
on
motion
for
summary
judgment
filed
by
defendants
Life
Insurance
Company
of
North
America,
Pension
and
Welfare
Plan
Administration
Committee
–
The
Hertz
Corporation,
Hertz
Custom
Benefit
Program,
and
The
Hertz
Corporation
(defendants),
memorandum
in
support, proposed
determinations
of
undisputed
facts
and
conclusions
of
law,
and
evidentiary
submissions
(docs.
109-‐112);
the
response
and
evidentiary
submissions
filed
by
plaintiff
Diane
G.
Melech
(Melech)
(docs.
143-‐145);
and
defendants’
reply
(doc.
150).
Upon
consideration
and
for
the
reasons
set
forth
herein,
the
motion
for
summary
judgment
is
GRANTED.
1
2
1
LINA’s
motion
to
strike
(doc.
151)
Melech’s
Exhibit
2
(Social
Security
claim
file)
and
Exhibit
3
(Melech’s
Declaration)
(doc.
144)
submitted
in
support
of
her
response
is
GRANTED
to
the
extent
that
the
Court
will
not
consider
any
evidence
in
Melech’s
Social
Security
claim
file
that
was
not
before
LINA.
In
Blankenship
v.
Metropolitan
Life
Ins.
Co.
644
F.3d
1350,
1354
(11th
Cir.
2011),
the
Court
of
Appeals
for
the
Eleventh
Circuit
explained
that
“[r]eview
of
the
plan
administrator's
denial
of
benefits
is
limited
to
consideration
of
the
material
available
to
the
administrator
at
the
time
it
made
its
Melech
filed
her
complaint
for
legal
and
equitable
relief
for
violations
of
the
Employee
Retirement
Income
Security
Act
(ERISA),
pursuant
to
29
U.S.C.
§
1132(a)(1).
Initially,
Melech
brought
Count
One
for
failure
to
provide
plan
documents
(doc.
1,
p.
6).
However,
Melech
withdrew
that
claim
for
relief
in
her
response
to
the
motion
for
summary
judgment
(doc.
145,
p.
4).
Melech’s
remaining
Count
2
alleges
a
claim
for
long
term
disability
benefits
pursuant
to
29
U.S.C.
1132(a)(1(B).
Melech
alleges
that
she
is
disabled
under
the
terms
of
the
Hertz
Custom
Benefit
Program
(the
Plan),
an
employee
welfare
benefit
plan
or
an
employee
pension
plan
as
defined
in
29
U.S.C.
§§
1001,
et
seq.
I.
Findings
of
Fact
A.
The
Policy
LINA
issued
Group
Policy
VDT-‐960024
to
The
Hertz
Corporation.
The
Hertz
Corporation
is
the
Plan
Sponsor
and
the
Plan
Administrator
for
the
Plan.
LINA
serves
as
decision[.]”
(citations
omitted);
see
also
Ray
v.
Sun
Life
&
Health
Ins.
Co.,
443
Fed.
Appx.
529,
533
(11th
Cir.
2011)
(“Based
on
the
administrative
record
available
to
Sun
Life
when
it
made
its
decision,
.
.
.
we
can
not
say
that
Sun
Life's
denial
of
benefits
was
de
novo
wrong.”)
(citing
Blankenship,
644
F.3d
at
1354
for
the
premise
that
“review
of
benefits
denial
is
limited
to
consideration
of
the
material
available
to
the
administrator
at
the
time
it
made
its
decision”).
2
Melech
moves
the
Court
to
strike
defendants’
argument
at
pages
seven
to
thirteen
of
the
reply
on
the
basis
that
it
is
a
new
ground
for
summary
judgment
which
cannot
properly
be
raised
in
the
reply.
(Doc.
153,
motion;
Doc.
158,
defendants’
response).
Defendants
respond
that
their
arguments
are
not
new
arguments
or
theories
for
relief
but
instead
were
raised
to
address
Melech’s
arguments
in
her
response.
The
motion
to
strike
is
DENIED.
In
Count
II
of
her
complaint,
captioned
“Action
for
Benefits
under
29
U.S.C.
§
1132(a)(1)(B)”,
Melech
made
statements
that
defendants
had
not
complied
with
“29
U.S.C.
§
1133’s
requirement”
regarding
the
wording
of
the
denial
letter
and
that
she
did
not
receive
a
“full
and
fair
review
of
the
decision
denying
the
claim
as
is
required
by
29
U.S.C.
§
1133
and
29
C.F.R.
2560.503-‐1.”
(Doc.
1,
¶
48-‐50,
52).
However,
Melech’s
“Statement
of
Facts”
does
not
contain
any
factual
allegation
to
form
the
basis
of
a
claim
of
violation
of
procedural
requirements
such
as
would
put
defendants
on
notice
of
the
specific
violations
that
were
asserted.
Therefore,
defendants
properly
moved
for
summary
judgment
as
to
Melech’s
“Action
for
Benefits”
asserting
that
Melech
received
a
full
and
fair
review
of
her
claim
initially
and
on
appeal
and
properly
replied
to
Melech’s
response
wherein
she
identified
for
the
first
time
the
underlying
factual
basis
for
her
claim.
2
the
claims
administrator
with
responsibility
for
adjudicating
claims
for
long
term
disability
benefits
made
by
participants
of
the
Plan
(doc.
112-‐1,
p.
2-‐3,
Affidavit
of
Kellie
Downey,
Senior
Operations
Representative
at
LINA);
(doc.
112-‐2,
Administrative
Record).
Under
the
Policy,
the
claimant
Melech
must
provide
proof
of
disability
in
order
for
benefits
to
be
paid.
The
policy
states
as
follows:
The Insurance Company will pay Disability Benefits if an Employee becomes Disabled
while covered under this Policy. The Employee must satisfy the Elimination Period, be
under the Appropriate Care of a Physician, and meet all other terms and conditions of the
policy. He or she must provide the Insurance Company, at his or her own expense,
satisfactory proof of Disability before benefits will be paid. The Disability Benefit is
shown in the Schedule of Benefits.
(Doc. 112-2, p. 125, Copy of Policy).
The Policy defines “Total Disability” as follows:
Definition of Disability/Disabled
The Employee is considered Disabled if, solely because of Injury or Sickness, he
or she is:
1. unable to perform the material duties of his or her Regular Occupation; and
2. unable to earn 80% or more of his or her Indexed Earnings from working in
his or her Regular Occupation.
(Doc. 112-2, p. 110, 118).
The Policy also provides that “[a]fter Disability Benefits have been payable for 24
months, the Employee is considered Disabled if, solely due to Injury or Sickness, he or she is:
1. unable to perform the material duties of any occupation for which he or she is,
or may reasonably become, qualified based on education, training or experience;
and
2. unable to earn 60% or more of his or her Indexed Earnings.
The Insurance Company will require proof of earnings and continued Disability.”
(Doc. 112-2, p. 110, 118).
3
The
Policy
defines
“Regular
Occupation”
as
“[t]he
occupation
the
employee
routinely
performs
at
the
time
the
Disability
begins.
In
evaluating
the
Disability,
the
Insurance
Company
will
consider
the
duties
of
the
occupation
as
it
is
normally
performed
in
the
general
labor
market
in
the
national
economy.
It
is
not
work
tasks
that
are
performed
for
a
specific
employer
or
at
a
specific
location.”
(Doc.
112-‐2,
p.
136).
The
terms
and
conditions
of
the
Policy,
provide
that
benefits
become
payable
as
detailed
below:
The
Insurance
Company
will
pay
Disability
Benefits
if
an
employee
becomes
Disabled
while
covered
under
this
Policy.
The
Employee
must
satisfy
the
Elimination
Period,
be
under
the
Appropriate
Care
of
a
Physician,
and
meet
all
the
other
terms
and
conditions
of
the
Policy.
He
or
she
must
provide
the
Insurance
Company,
at
his
or
her
own
expense,
satisfactory
proof
of
Disability
before
benefits
will
be
paid….
The
Insurance
Company
will
require
continued
proof
of
the
Employee’s
Disability
for
benefits
for
continue.
(Doc.
112-‐2,
p.
125).
B.
The
Claim
Melech
began
working
for
Hertz
Corporation
on
June
3,
1977
and
worked
full
time
as
a
Location
Manager.
Melech
was
responsible
for
managing
the
service
lot
and
its
rental
counter.
(Doc.
145,
p.
5).
Her
duties
required
that
she
be
able
to
sit
for
four
hours,
walk
for
eight
hours,
stand
for
eight
hours,
lift
for
two
hours,
bend
or
twist
for
thee
hours
and
drive
for
eight
hours.
(Doc.
112-‐2,
p.
354).
Melech’s
last
day
of
employment
was
May
8,
2007.
(Doc.
112-‐2,
p.
366).
Melech
left
work
with
complaints
of
neck,
shoulder
and
back
pain,
headaches,
and
numbness
in
her
right
arm
and
hand.
(Doc.
112-‐2,
p.
184).
4
Melech was treated by Dr. Edmund C. Dyas, IV, an orthopedic physician on May 10,
2007, for chronic neck and right shoulder pain.3 Dr. Dyas noted as follows:
Patient is having more and more neck and shoulder pain on the right.
She’s got bad degenerative disc disease at 5-6, 6-7 with stenosis. She’s
also got frank tendinitis in the right shoulder. She works with a computer
50 hours a week, and I think that’s entirely too much for her. We’ll take
her off work 2 weeks, put her on PT [physical therapy] and we injected the
subscapular bursa today and renewed her Lortab 5. We’ll see her back in
2 weeks.
(Doc. 112-2, p. 339).
From May 14, 2007 through June 20, 2007, Melech went to physical therapy at Fleming
Rehab and Sports Medicine two to three times per week. (Doc. 112-2, p. 249-267). The
physical therapists’ assessment notes are generally unreadable either because of poor
handwriting or use of symbols and acronyms. However, an overall review indicates that Melech
initially had tenderness in the cervical spine, reduced strength (“3” out of “5”) and limited range
of motion in her neck and right shoulder. The therapist’s goal was to increase the range of
motion and strength and improve Melech’s posture which was initially noted as “head forward”,
“shoulders rounded” and “c spine flexed”. (Doc. 112-2, p. 266-267). The notes indicate that
Melech attended therapy in May and June 2007, and was to continue treatment for two to three
more weeks, but did not, (Doc 112-2, p. 249-250). One readable assessment was written on June
13, 2007, Melech’s next to last session – “Pt. tol therap well. No complaints of pain or
discomfort.” (Doc. 112-2, p. 251). Another readable assessment was written on June 11, 2007 –
3
In
Melech’s
proposed
statement
of
facts,
she
states
that
she
first saw Dr. Dyas on April 1,
2004 with complaints of neck pain radiating down her shoulder into her arm. She provides an
insufficient cite to the record for this statement of fact. Melech cites to “Plaintiff’s Evidentiary
Submission “Pl’s Evid. Sub.”) D.E. 144 at Exh. 2). Docket entry 144, Exhibit 2 is Melech's
Social Security Claim file which consist of 148 pages. The Court has stricken Exhibit 2 to the
extent that any evidence therein was not before LINA on the administration of Melech’s claim.
Additionally, without a cite to a specific page among the 148 pages, the Court will not search
Docket Entry 144 to find Melech’s evidence.
5
“Overall cervical mobility
and
[head
ache]
pain
are
improving.
Though
still
stiff
esp[ecially]
upper
C
&
T
spine.
Needs
to
cont[inue]
to
advance
postural
program
to
help
[decrease]
strain
___?__
C
spine.”
(Doc.
112-‐2,
p.
252).
On May 18, 2007, Melech was referred to Dr. Todd Engerson, an orthopedic physician,
for a second opinion. Dr. Engerson noted as follows:
[Physical Examination] Healthy appearing lady. She has some cervical
spasm, some tenderness diffusely in the interscapular region, upper
trapezius on the right side. Full [range of motion] of her right shoulder
with mild impingement signs. Does have some pain with resisted
abduction and forward elevation. Gross motor and sensory testing upper
extremities basically [within normal limits].
X-Ray C-spine show significant cervical [degenerative disc disease] at 5-6
and 6-7 with some good sized posterior osteophytes, loss of the normal
cervical lordosis associated with spasm.
[Impression]: Cervical [degenerative disc disease] with exacerbation.
[Recommendation]: I agree with Dr. Dyas’ treatment and have written a
note back to that effect. See Dr. Dyas in follow-up
(Doc. 112-2, p. 237).
Dr. Dyas saw Melech again on May 24, 2007, he noted as follows:
A little better with her physical therapy and rest. We will keep her off
until next Tuesday and see her back here in two weeks.
(Doc. 112-2, p. 339).
On June 7, 2007, Dr. Dyas noted as follows:
Patient is having more pain in her neck, shoulder and arm. She is intact
neurologically. She is depressed about her job situation and I think that
we need to get a MRI scan of her neck to see if it is any worse as it has
been over a year. I also think that she can not go back to this job.
(Doc. 112-2, p. 339).
Also, on June 7, 2007, Dr. Dyas wrote as follows:
6
To Whom it May Concern
The above captioned patient is under my care. She is permanently and totally
disabled. She can not return to her present job. . . .
(Doc. 112-2, p. 340).
On June 12, 2007, the MRI of Melech’s cervical spine showed:
Clinical History: Neck and Right Upper Extremity Pain.
Findings: Spin-echo sagittal, axial and STIR sagittal images were
obtained. The cervical spine is in anatomic alignment. There is mild
flattening of the C5-6 and C6-7 intervertebral disc without evidence of a
disc protrusion and there is also bilateral spondolytic change at these 2
levels with foraminal encroachment. No other abnormality of the cord is
seen. Bone marrow signal is within normal limits.
Impression: Bilateral spondylosis C5-6 and C6-7 with foraminal
encroachment.
(Doc. 112-2, p. 339).
On September 13, 2007, Melech saw Dr. Dyas again and he noted as follows:
Continues to have disabling pain in her neck and shoulder. I injected the
trigger area in her neck and renewed her medicine today. We will see her
back here as needed. She still can’t work with all of these problems.
(Doc. 112-2, p. 311, 339)
On or about October 2, 2007, Melech applied for long term disability benefits with LINA
and her initial claims manager was Eric Poliziani. (Doc. 112-2, p. 4 “Primary Claim File.”)
Melech’s occupation was identified as “Station Manager” with an occupational category of
“Office and Clerical”. (Doc. 112-2, p. 66). Her medical condition was identified as “severe
degenerative disk disease”. (Id.) On or about October 4, 2007, a letter was mailed to Melech
which confirmed receipt of the claim, explained certain aspects of the claims process, and
requested additional information. (Doc. 112-2, p. 83-84).
7
On October 12, 2007, Melech saw Dr. Jonathan Miller with complaints of abdominal
pain and diarrhea. (Doc. 112-2, p. 192). Dr. Miller noted her history of “some degenerative disk
disease, some hand pain, some anxiety and insomnia” and her current medications were
“Prevacid, Xanax, Soma, occasional Lortab, fish oils and some vitamin E”. (Id.) On physical
examination (relevant to the issues before the Court), Dr. Miller noted that all “[j]oints show full
range of motion” and that Melech’s neck was “Supple. No [jugular vein distension].
Nontender.” (Id.) Dr. Miller prescribed Ambien for insomnia instead of Xanax and Nexium for
gastroesophageal reflux disease. (Id. p. 193).
On October 12, 2007, Poliziani, faxed a letter and form to Dr. Dyas asking that he
provide office notes, answer questions regarding prognosis for recovery, return to work, and
referral to other specialist, and also asking Dr. Dyas to “help [LINA] understand [Melech’s]
current level of functional ability by completing the enclosed Physical Abilities Assessment
form.” (Doc. 112-2, p. 342-345).
On October 18, 2007, Dr. Dyas faxed the form and letter back to Poliziani. On the face
of the letter Dr. Dyas appears to have written “Pt is permanently & totally disabled.” He did not
complete the Physical Abilities Assessment form but did sign it. (Doc. 112-2, p. 341-345).
On
October
24,
2007,
Poliziani
contacted
Fleming
Rehab.
Poliziani
asked
for
rehabilitation
notes
from
May
2007
to
the
present,
prognosis,
and
any
return
to
work
plan.
(Doc.
112-‐2,
p.
322-‐323).
He
also
asked
for
“help
[to]
understand [Melech’s] current level of
functional ability by completing the enclosed Physical Abilities Assessment form.” (Id.)
Fleming Rehab responded by letter stating that “we have not seen Ms. Melech since June 20,
2007 and cannot make any recommendations or assessments at this time” and that “we will need
8
to re-evaluate her or schedule a functional capacity evaluation (FCE) to determine her work
ability.” (Doc. 112-2, p. 321). No FCE was obtained.
On November 6, 2007, Melech completed a “Disability Questionnaire & Activities of
Daily Living” form. (Doc. 112-2, p. 184-187). Melech stated that “her
neck
hurts
very
badly
when
sitting
at
computer
causing
severe
headaches
and
neck
pain,
right
arm
and
hand
goes
numb.
Lower
back
hurts
when
standing
or
bending.
For
period
of
time
using
phone
causes
pain
in
neck.”
(doc.
112-‐2,
p.
185).
She
stated
that
she
could
drive
“as
needed”
and
regularly
cooked,
cleaned,
shopped,
did
laundry,
read,
watched
television,
and
attended
church.
(Id.)
For
recreation
she
stated
that
she
“watched
football,
visit
with
family
&
friends,
go
out
to
eat,
lay
on
beach
during
summer”
(Id.)
She
also
reported
that
she
attended
to
all
her
personal
grooming
and
dressing
needs.
(Id.)
As
to
exercise,
she
stated
that
her
therapist
had
told
her
to
“___
with
elastic
bands”
(Doc.
112-‐2,
p.
186).
Her
medications
were
identified
as
Nexium
once
daily,
Lortab
as
needed,
Soma
as
needed,
Xanax
at
night,
and
Estrace
once
daily.
(Doc.
187).
She
indicated
her
visits
with
Dr.
Dyas
were
on
an
“as
needed”
basis.
(Doc.
187).
Melech
described
the
“Major
Duties”
of
her
job
as
“Doing
reports,
handling
customers,
renting
cars,
making
schedules
for
employees,
safety
issues”
.
(Doc.
112-‐2,
p.
186).
She
described
the
“Minor
Duties”
of
her
job
as
“Moving
cars,
cleaning
&
vacuuming
cars,
preparing
cars
where
necessary;
inventory.”
(Id).
She
used
a
computer,
copy
machine,
fax
and
a
vacuum.
(Id.)
On
November
13,
2007,
Poliziani
“sent
a
follow
up
request”
to
Dr.
Dyas.
Poliziani
requested
“objective
findings,
copies
of
June
2007
MRI,
[patient]
reports,
medication,
PAA
9
[physical
abilities
assessment]
and
office
visit
notes
beyond
[last
office
visit]
in
file
of
9/13/07.”
(Doc.
112-‐2,
p.
36).
Dr.
Dyas
did
not
respond
to
the
request.
On
November
20,
2007,
Jeffrey
Weber,
Nurse
Case
Manager,
reviewed
Melech’s
records
and
found
that
[Claimant]
treating
for
neck
pain
due
to
[degenerative
disc
disease].
Cervical
MRI
is
unremarkable.
Dr.
Dyas
states
[claimant]
is
totally
&
permanently
disabled
due
to
pain.
[Record]
does
not
support
no
work.
(Doc.
112-‐2,
p.
183).
On
November
26,
2007,
Weber
faxed
a
letter
to
Dr.
Dyas
requesting
clarification
as
to
Melech’s
“condition
and
work
status.”
(Doc.
112-‐2,
p.
79-‐80).
The
letter
asked
Dr.
Dyas
to
advise
whether
he
had
seen
Melech
since
September
13,
2007,
to
“provide
objective
findings
to
support
Ms.
Melech
being
permanently
and
totally
disabled”,
and
explained
that
“an
‘off
work’
note
is
not
sufficient
documentation
to
certify
disability.”
(Id.).
On
November
29,
2007,
Poliziani
wrote
Melech
that
LINA
was
unable
to
approve
her
claim.
(Doc.
112-‐2,
p.
172-‐176).
Poliziani
explained
that
Melech’s
job
of
Location
Manager
was
categorized
as
Light
Work
in
the
U.S.
Department
of
Labor
Description
of
Occupational
Titles
(DOT)
and
that
LINA
must
look
at
Melech’s
occupation
as
defined
in
the
DOT
and
not
her
specific
job.
He
summarized
the
medical
evidence
including
the
June
12,
2007
MRI
results
and
other
evidence
including
Melech’s
statement
of
daily
activities
that
had
been
reviewed.
Poliziani
explained
as
follows:
Claim
Summary
Upon
review
of
the
documentation
provided,
we
were
unable
to
validate
medical
documentation
which
supported
your
inability
to
perform
the
material
duties
of
your
Regular
Occupation.
In
reviewing
Dr.
Engerson’s
office
notes
,
no
restrictions
were
noted
and
he
concurred
with
Dr.
Dyas
treatment
plan
at
that
time
of
no
work
for
2
weeks.
A
review
of
the
MRI,
while
noting
some
flattening
of
the
C5-‐6
and
C6-‐7,
noted
your
spine
was
10
in
anatomic
alignment
with
no
disc
pertrusion
and
bone
marrow
signal
being
within
normal
limits.
In
reviewing
Dr.
Dyas’
notes,
while
restrictions
and
limitations
were
noted,
no
findings
supporting
a
no
work
restriction
were
documented.
Dr.
Dyas
notes
contained
no
findings
which
support
his
notice
that
you
are
permanently
disabled.
In
an
attempt
to
gather
additional
documentation
from
Dr.
Dyas,
our
Nurse
Case
Manager
contacted
Dr.
Dyas
office
on
November
21,
2007
for
clarification
of
his
findings
as
they
relate
to
your
restrictions.
On
November
26,
2007,
we
also
contacted
Dr.
Dyas
office
and
requested
his
objective
findings
to
support
his
restrictions
and
limitations.
To
date,
Dr.
Dyas
has
not
responded
to
either
request.
As
the
medical
documentation
contained
in
your
file
does
not
support
a
no
work
restriction
we
are
unable
to
approve
your
claim.
Therefore
at
this
time
we
have
closed
your
claim
and
no
benefits
are
payable
as
the
medical
information
does
not
support
how
you
are
unable
to
work.
(Doc.
112-‐2,
p.
174-‐175).
Melech’s
was
advised
of
her
right
to
appeal
in
the
denial
letter.
The
letter
explained
that
Appeal
Rights
If
you
disagree
with
our
determination
and
intent
to
appeal
this
claim
decision,
you
must
submit
a
written
appeal
.
.
.
You
have
the
right
to
submit
written
comments
as
well
as
any
new
documentation
you
wish
us
to
consider.
If
you
have
additional
information,
it
must
also
be
sent
for
further
review
.
.
.
.
We
would
be
happy
to
consider
any
medical
evidence
which
supports
your
total
disability.
Medical
evidence
includes,
but
is
not
limited
to:
physician’s
office
notes,
hospital
records,
consultation
reports,
test
result
reports,
therapy
notes,
physical
and/or
mental
limitations
(i.e.,
Functional
Capacities
Testing),
etc.
These
medical
records
should
cover
the
period
of
May
2007
through
the
present.
(Doc.
112-‐2,
p.
175).
Melech
returned
to
Dr.
Dyas’
on
January
3,
2008.
His
notes
state
that
11
Patient
continues
to
have
disabling
pain
in
her
neck
and
right
shoulder.
She
has
degenerative
disc
disease
in
her
neck
with
cervical
spondylosis.
I
think
she
has
a
rotator
cuff
tear
in
the
right
shoulder.
We
injected
about
the
base
of
her
neck
today.
We
renewed
her
medication
Lortab
and
Soma.
(Doc.
112-‐2,
p.
170).
On
January
31,
2008,
Melech
appealed
the
decision.
(Doc.
112-‐2,
p.
168).
She
submitted
office
notes
and
a
letter
from
Dr.
Dyas
dated
January
3,
2008,
wherein
he
explained
as
follows:
This
57
year
old
white
female
has
been
followed
since
she
had
to
stop
working
at
Hertz
Rental
Car
because
of
the
chronic
pain
in
her
neck,
right
shoulder
and
low
back.
She
has
been
worked-‐up
in
the
past
and
has
cervical
spondylosis
at
C5-‐6
and
C6-‐7.
Physical
findings
associated
with
that
are
limited
neck
movement
by
50%.
She
also
has
a
rotator
cuff
tear
in
her
right
shoulder
which
is
chronically
and
intermittently
painful
related
to
activity.
She
also
has
chronic
low
back
pain
with
stiffness.
Neurologic
exam
has
appeared
normal.
X-‐rays
of
this
lady
show
degenerative
disc
disease
at
C5-‐6
and
C6-‐7.
Lumbar
spine
shows
she
has
degenerative
changes
at
L4-‐5
and
L5-‐S1.
This
lady’s
job
consisted
of
working
at
Hertz
where
she
was
responsible
for
the
whole
operation
at
times.
She
worked
rotating
shifts
requiring
long
hours
standing
and
walking
in
the
parking
lot
and
cleaning
automobiles,
vacuuming
the
automobiles.
It
has
been
my
opinion
that
this
lady
is
unable
to
do
this
job
and
remains
the
same.
(Doc.
112-‐2,
p.
169).
On
February
5,
2008,
Senior
Claims
Manager
Marianna
Dileo
acknowledged
receipt
of
the
appeal
and
in
the
box
labeled
“Comment/Review
Outcome/
Rationale/Plan”
stated
as
follows:
2/5/08
New
medical
received
fails
to
conclusively
support
the
RL’s
based
on
[diagnosis]
of
cervical
[degenerative
disc
disease].
Only
new
med
received
per
cm
is
an
1/3/08
[Attending
Physician
(AP)]
ortho
on
where
no
measurable
exam
findings
are
provided
to
clarify
limitations
to
functionality.
AP
only
notes
[complaints]
of
disabling
pain
in
neck
&
12
[right]
shoulder.
Does
not
describe
any
dermatomal
findings,
no
ROM
or
muscle
weakness,
no
sensory
loss
or
gait
defects
noted.
(Doc.
112-‐2,
p
163).
Also,
on
February
5,
2008,
a
letter
was
sent
to
Melech
acknowledging
receipt
of
the
records
from
Dr.
Dyas.
The
letter
also
explained
that
The
appeal
request
is
being
referred
to
our
Disability
Appeals
Team.
Any
additional
information
submitted
may
impact
the
appeal
decision.
Therefore,
we
ask
that
you
carefully
review
the
enclosed
original
denial
letter
dated
November
29,
2007
to
ensure
that
any
and
all
available
medical
or
other
documentation
related
to
your
claim
has
been
submitted.
(Doc.
112-‐2,
p.
166).
On
April
16,
2008,
M.J.
Kelly,
RN,
reviewed
the
medical
records.
Kelly
stated
as
follows:
Review
of
medical
[claimant]
saw
2
orthos,
neither
exam
demonstrates
loss
of
strength,
reflexes
or
sensation
of
[upper
extremity].
AP
ortho
Dr.
Dyas
feels
[claimant]
has
[Rotator
Cuff]
tear
but
no
imaging
on
file.
Medical
reviewed
does
not
show
severity
of
symptoms
or
exam
findings
to
support
impairment.
(Doc.
112-‐2,
p.
160).
On
April
17,
2008,
Tracy
Shimko,
Appeals
Claim
Manager,
wrote
Melech
that
the
denial
had
been
upheld
on
appeal.
(Doc.
112-‐2,
p.
157-‐158).
Shimko
identified
Melech’s
occupation
as
Station
Manager
which
“required
light
demand
activities
according
to
the
[DOT]”.
(Id.)
Shimko
explained
as
follows:
To
ensure
appropriate
interpretation
of
medical
documentation,
a
review
was
completed
with
our
Nurse
Case
Manager
(NCM).
The
NCM
commented
that
medical
information
on
file
clearly
documents
your
subjective
complaints
of
pain
in
your
neck,
right
shoulder
and
low
back.
The
MRI
of
your
cervical
spine
performed
June
12,
2007
showed
bilateral
spondylosis
of
C5-‐C7
with
foraminal
encroachment.
The
exam
findings
of
Dr.
Engerson
and
Dr.
Dyas
fail
to
demonstrate
loss
of
strength,
reflexes
or
sensation
of
your
upper
extremities.
Dr.
Dyas
notes
you
have
a
rotator
13
cuff
tear,
however,
there
is
no
imaging
on
file
to
substantiate
this
diagnosis.
The
medical
reviewed
does
not
show
severity
of
symptoms
or
exam
findings
to
support
a
total
impairment
from
your
own
occupation.
In
summary,
a
review
of
the
medical
information
fails
to
provide
evidence
of
any
clinical
findings
to
negate
your
previously
assessed
level
of
function.
In
addition
the
medical
records
do
not
provide
documentation
to
support
the
restrictions
imposed
by
your
physician
or
your
inability
to
function
in
your
own
occupation.
Therefore,
since
the
medical
on
file
does
not
provide
Disability,
we
must
affirm
our
previous
decision
to
deny
benefits.
(Doc.
112-‐2,
p.
157-‐158).
Shimko
also
explained
that
Melech
may
request
a
review
and
that
[i]n
addition
to
any
written
comments,
your
request
for
review
must
include
new
documentation
you
wish
us
to
consider.
This
documentation
includes,
but
is
not
limited
to:
copies
of
office
notes,
test
results,
physical
examination
reports,
mental
status
reports,
consultation
reports,
or
any
other
pertinent
medical
information
from
May
2007
to
the
present.”
(Id.)
Melech
was
seen
by
Dr.
Dyas
on
May
22,
2008.
He
noted
that
Melech
“continues
to
have
increasing
neck
pain”
and
injected
a
sensitive
area
at
the
“lower
cervical
region”.
(Doc.
112-‐2,
p.
144).
He
noted
that
Melech
was
“intact
neurologically”
but
had
“some
soreness,
pain
and
weakness
in
her
right
shoulder.”
(Id.)
Dr.
Dyas
recommended
another
MRI
of
the
cervical
spine
and
shoulder
which
was
obtained
on
May
23,
2008.
Melech
provided
a
copy
of
the
MRI
results.
The
radiologist
found
that
Melech’s
right
shoulder
did
not
have
a
rotator
cuff
tear
but
did
have
tendinitis
or
tendinopathy
and
“mild
osteoarthritic
spurring
neighboring
the
AC
joint
with
peri-‐articular
edema.”
(Doc.
112-‐2,
p.
143).
The
MRI
of
Melech’s
cervical
spine
was
interpreted
as
showing
14
1.
Moderate
degenerative
disc
changes
at
C5-‐6
and
C6-‐7
with
broad
based
extruded
disc
resulting
in
mild
central
stenosis
at
each
of
these
levels.
2.
Mild
spondylitic
disc
changes
at
C4-‐5.
(Doc.
112-‐2,
p.
143).
The
C4-‐5
and
C3-‐4
discs
were
“essentially
unremarkable”
and
the
C7-‐
T1
showed
“mild
spondylitic
protruding
disc”
but
was
“otherwise
unremarkable.”
(Id.)
4
On
October
10,
2008,
Melech
wrote
LINA
and
requested
another
review
of
the
decision.
Melech
provided
records
from
Dr.
Dyas
and
analyses
from
her
treating
psychiatrist
and
therapist.
She
also
advised
LINA
that
she
was
receiving
Social
Security
Disability
Income
benefits.
Melech
also
explained
that
LINA
had
evaluated
her
claim
based
on
the
occupation
of
Location
Manager
as
described
in
the
DOT
185.167-‐058
but
that
title
was
Service
Manager
and
had
different
duties.
Melech
asked
that
her
disability
be
evaluated
based
on
the
job
she
actually
performed
as
Location
Manager
for
Hertz
and
not
the
DOT
description
for
“Service
Manager”.5
(Doc.
112-‐2,
p.
141-‐142).
Melech
provided
Dr.
Dyas’
notes
from
May
2008
and
also
submitted
psychiatric
and
therapy
records
from
August
and
September
2008
and
an
October
1,
2008
psychiatric
evaluation
report.
(Doc.
112-‐2,
p.
148-‐156).
The
records
are
substantially
redacted
or
highlighted
in
a
manner
that
most
are
unreadable.
The
page
captioned
“Current
Diagnosis”
shows
the
principal
diagnosis
as
“mood
disorder
due
to
.
.
.
(indicate
the
general
medic”
(sic)
(Doc.
112-‐2,
p.
152).
4
Item
2
of
the
radiologist’s
impression
may
be
incorrect.
In
the
report,
mild
spondyltic
disc
protrusion
was
found
at
the
C7-‐T1
and
not
at
the
C4-‐5.
The
C4-‐5
was
noted
as
“essentially
unremarkable.”
(Doc.
112-‐2,
p.
143).
The
possible
error,
however,
does
not
affect
the
overall
impression
that
Melech’s
degenerative
disc
disease
was
identified
as
either
mild
or
moderate.
5
LINA
referenced
DOT
185.167-‐058
which
defines
Service
Manager
(automotive).
http://www.occupationalinfo.org/18/185167058.html.
The
only
Location
Manager
definition
found
in
the
DOT
refers
to
“Location
Manager
(motion
picture;
radio-‐tv
broad.)”.
15
On
October
15,
2008,
Tracy
Shimko,
Appeals
Claims
Manager,
wrote
Melech
to
explain
that
accepting
a
second
appeal
is
voluntary
on
the
part
of
LINA
and
that
LINA
had
decided
not
to
accept
Melech’s
second
appeal.
Shimko
discussed
the
psychiatric
records
received
and
concluded
that
the
records
did
not
demonstrate
that
Melech
was
psychiatrically
impaired
from
May
2007
to
the
present.
Shimko
discussed
Dr.
Dyas’
records,
found
that
they
were
“devoid
of
any
physical
exam
findings
demonstrating
the
severity
of
any
motor,
sensory,
vascular
or
neurological
deficits
impairing
[Melech’s]
ability
to
function”
and
stated
that
LINA
was
unable
to
consider
the
second
appeal
because
Melech
had
not
provided
“medical
documentation
that
would
alter
our
previous
decision.”
(Doc.
112-‐2,
p.
139).
The
letter
also
explained
what
type
of
medical
documentation
was
necessary
for
a
second
appeal.
Melech
did
not
file
another
appeal.
This
action
was
filed
on
October
15,
2010.
II.
Conclusions
of
Law
A.
Summary
Judgment
Standard
Summary judgment should be granted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). If a party asserts “that a fact cannot be or is genuinely disputed”, the party must
(A) cit[e] to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or
(B) show[] that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.
Fed. R. Civ. P. 56(c)(1)(A)(B).
16
The party seeking summary judgment bears “the initial burden to show the district court,
by reference to materials on file, that there are no genuine issues of material fact that should be
decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The party
seeking 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.” Clark, 929 F.2d at 608 quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986).
Once the moving party has satisfied its responsibility, the burden shifts to the nonmovant
to show the existence of a genuine issue of material fact. Id. “In reviewing whether the
nonmoving party has met its burden, the court must stop short of weighing the evidence and
making credibility determination of the truth of the matter. Instead, the evidence of the
nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Tipton v.
Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir. 1992) citing Anderson v. Liberty Lobby,
477 U.S. 242, 255, 106 S.Ct. 2505 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-159,
90 S.Ct. 1598, 1608-1609 (1970). However, “[a] moving party is entitled to summary judgment
if the nonmoving party has ‘failed to make a sufficient showing on an essential element of her
case with respect to which she has the burden of proof.’” In re Walker, 48 F. 3d 1161, 1163
(11thCir. 1995) quoting Celotex Corp., 477 U.S. at 323, 106 S. Ct. at 2552. Overall, the Court
must “resolve all issues of material fact in favor of the [non-movant], and then determine the
legal question of whether the [movant] is entitled to judgment as a matter of law under that
version of the facts.” McDowell v. Brown, 392 F.3d 1283, 1288 (11th Cir. 2004) citing Durruthy
v. Pastor, 351 F.3d 1080, 1084 (11th Cir. 2003).
17
B.
ERISA
Standard
of
Review
6
ERISA
provides
no
standard
for
courts
reviewing
the
benefits
decisions
of
plan
administrators
or
fiduciaries;
thus,
the
Supreme
Court
established
guidance
for
same
in
Firestone
Tire
&
Rubber
Co.
v.
Bruch,
489
U.S.
101,
109
(1989)
and
Metropolitan
Life
Ins.
Co.
v.
Glenn,
554
U.S.
105
(2008).
More
recently,
the
Eleventh
Circuit
has
reiterated
a
multi-‐
step
framework
to
guide
lower
courts
when
reviewing
a
plan
administrator's
benefits
decision.
This
framework
consists
of
the
following
“six-‐step
expanded
Firestone”
test:
(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.
Blakenship
v.
Metropolitan
Life
Ins.
Co.,
644
F.3d
1350,
1355
(11th
Cir.
2011)
(citing
Capone
6
The
summary
judgment
analysis
is
“applied
in
a
modified
manner
in
an
ERISA
case.”
Rogers
v.
Hartford
Life
and
Accident,
Ins.
Co.,
2012
WL
12883409,
*1
n.2
(M.D.
Ala.
April
16,
2012)
(slip
copy)
(citing
Blankenship
v.
Met.
Life
Ins.
Co.,
644
F.3d
1350,
1354
n.
4
(11th
Cir.
2011)).
18
v.
Aetna
Life
Ins.
Co.,
592
F.3d
1189,
1195
(11th
Cir.
2010)
and
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)).
“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.
Overall,
Melech
has
the
burden
to
establish
that
she
is
entitled
to
benefits
under
the
Plan.
Watts
v.
BellSouth
Telecommunications,
Inc.,
218
Fed.Appx.
854,
856,
(11th
Cir.
2007).
III.
Analysis
A.
Full
and
Fair
Review
In
response
to
the
motion
for
summary
judgment,
Melech
argues
that
LINA
violated
ERISA’s
procedural
requirements
and
therefore
the
action
should
either
be
remanded
to
LINA
for
a
full
and
fair
review
or
LINA
should
be
ordered
to
pay
the
claim.
Specifically,
Melech
argues
that
LINA’s
initial
denial
letter
violated
29
C.F.R
§
2560.503-‐1(g)(1)(i)
because
LINA
did
not
explain
the
rationale
behind
its
decision
but
instead
stated
only:
“As
the
medical
documentation
contained
in
your
file
does
not
support
a
no-‐work
restriction
we
are
unable
to
approve
your
claim.”
(Doc.
145,
p.
21).
Title
29
C.F.R
§
2560.503-‐1(g)
provides
for
the
“[m]anner
and
content
of
notification
of
benefit
determination.”
Paragraph
(g)(1)(i)
states,
in
relevant
part
as
follows:
(1)
Except
as
provided
in
paragraph
(g)(2)
of
this
section,
the
plan
administrator
shall
provide
a
claimant
with
written
or
electronic
notification
of
any
adverse
benefit
determination.
.
.
.
The
notification
shall
set
forth,
in
a
manner
calculated
to
be
understood
by
the
claimant-‐-‐
(i)
The
specific
reason
or
reasons
for
the
adverse
determination;
29
C.F.R
§
2560.503-‐1(g)(1)(i).
19
Review
of
the
initial
denial
letter
shows
that
it
contained
specific
reasons
for
the
decision
and
satisfied
the
requirements
of
the
regulation.
See
Ecklund
v.
Continental
Cas.
Co.,
415
F.Supp.2d
1353,
1376
(N.D.Ala.
2005)
(addressing
a
similar
argument
regarding
lack
of
a
full
and
fair
review
and
finding
that
CAN
clearly
explained
the
reasons
for
denying
the
claim).
After
discussing
the
medical
and
therapy
records,
LINA
explained
as
follows:
Claim
Summary
Upon
review
of
the
documentation
provided,
we
were
unable
to
validate
medical
documentation
which
supported
your
inability
to
perform
the
material
duties
of
your
Regular
Occupation.
In
reviewing
Dr.
Engerson’s
office
notes
,
no
restrictions
were
noted
and
he
concurred
with
Dr.
Dyas
treatment
plan
at
that
time
of
no
work
for
2
weeks.
A
review
of
the
MRI,
while
noting
some
flattening
of
the
C5-‐6
and
C6-‐7,
noted
your
spine
was
in
anatomic
alignment
with
no
disc
pertrusion
and
bone
marrow
signal
being
within
normal
limits.
In
reviewing
Dr.
Dyas’
notes,
while
restrictions
and
limitations
were
noted,
no
findings
supporting
a
no
work
restriction
were
documented.
Dr.
Dyas
notes
contained
no
findings
which
support
his
notice
that
you
are
permanently
disabled.
In
an
attempt
to
gather
additional
documentation
from
Dr.
Dyas,
our
Nurse
Case
Manager
contacted
Dr.
Dyas
office
on
November
21,
2007
for
clarification
of
his
findings
as
they
relate
to
your
restrictions.
On
November
26,
2007,
we
also
contacted
Dr.
Dyas
office
and
requested
his
objective
findings
to
support
his
restrictions
and
limitations.
To
date,
Dr.
Dyas
has
not
responded
to
either
request.
As
the
medical
documentation
contained
in
your
file
does
not
support
a
no
work
restriction
we
are
unable
to
approve
your
claim.
Therefore
at
this
time
we
have
closed
your
claim
and
no
benefits
are
payable
as
the
medical
information
does
not
support
how
you
are
unable
to
work.
(Doc.
112-‐2,
p.
174-‐175).
Melech
also
argues
that
LINA’s
denial
letter
violated
29
C.F.R
§
2560.503-‐1(g)(1)(iii)
because
LINA
failed
to
describe
“what
kind
of
additional
medical
information”
or
additional
20
material
or
information
was
needed
and
failed
to
explain
why
the
material
or
information
was
necessary.
Title
29
C.F.R
§
2560.503-‐1(g)
provides
for
the
“[m]anner
and
content
of
notification
of
benefit
determination.”
Paragraph
(g)(1)(iii)
states,
in
relevant
part
as
follows:
(1)
Except
as
provided
in
paragraph
(g)(2)
of
this
section,
the
plan
administrator
shall
provide
a
claimant
with
written
or
electronic
notification
of
any
adverse
benefit
determination.
.
.
.
The
notification
shall
set
forth,
in
a
manner
calculated
to
be
understood
by
the
claimant-‐-‐
(iii)
A
description
of
any
additional
material
or
information
necessary
for
the
claimant
to
perfect
the
claim
and
an
explanation
of
why
such
material
or
information
is
necessary;
29
C.F.R
§
2560.503-‐1(g)(1)(iii).
As
stated
above,
the
denial
letter
of
November
29,
2007,
explained
that
Dr.
Dyas
had
not
provided
the
information
requested
by
LINA
and
explained
that
:
In
an
attempt
to
gather
additional
documentation
from
Dr.
Dyas,
our
Nurse
Case
Manager
contacted
Dr.
Dyas
office
on
November
21,
2007
for
clarification
of
his
findings
as
they
relate
to
your
restrictions.
On
November
26,
2007,
we
also
contacted
Dr.
Dyas
office
and
requested
his
objective
findings
to
support
his
restrictions
and
limitations.
To
date,
Dr.
Dyas
has
not
responded
to
either
request.
(Doc.
112-‐2,
p.
175).
This
statement
was
sufficient
to
put
Melech
on
notice
that
Dr.
Dyas
needed
to
clarify
and
support
his
findings
as
they
related
to
her
restrictions
and
limitations
but
he
had
not
done
so.
Also,
in
the
“Appeal
Rights”
section
of
the
denial
letter,
Melech
was
informed
as
follows:
Appeal
Rights
If
you
disagree
with
our
determination
and
intend
to
appeal
this
claim
decision,
you
must
submit
a
written
appeal
.
.
.
21
You
have
the
right
to
submit
written
comments
as
well
as
any
new
documentation
you
wish
us
to
consider.
If
you
have
additional
information,
it
must
also
be
sent
for
further
review
.
.
.
.
We
would
be
happy
to
consider
any
medical
evidence
which
supports
your
total
disability.
Medical
evidence
includes,
but
is
not
limited
to:
physician’s
office
notes,
hospital
records,
consultation
reports,
test
result
reports,
therapy
notes,
physical
and/or
mental
limitations
(i.e.,
Functional
Capacities
Testing),
etc.
These
medical
records
should
cover
the
period
of
May
2007
through
the
present.
(Doc.
112-‐2,
p.
175).
The
last
paragraph
plainly
sets
out
the
type
of
medical
evidence
Melech
could
provide
to
LINA
including
a
specific
reference
to
“physical
and/or
mental
limitations”
and
“Functional
Capacities
Testing”
which
may
support
her
claim
of
“total
disability”.
Id.
Overall,
Melech
was
given
sufficient
notice
as
to
the
type
of
medical
evidence
she
could
submit
and
why
it
was
necessary,
i.e.,
to
show
that
she
was
disabled.
Melech
next
argues
that
LINA
violated
29
C.F.R.
§
2560.503(h)(2)(iv)
because
it
failed
to
“take
into
account”
all
the
information
she
submitted
for
her
first
and
second
appeals.
Melech
states
that
LINA’s
nurse
case
manager’s
review
on
appeal
took
two
minutes
and
therefore,
was
not
a
meaningful
review.
7
LINA
responds
that
it
did
not
fail
to
take
into
account
Melech’s
submissions.
Title
29
C.F.R
§
2560.503-‐1(h)
provides
for
the
“[A]ppeal
of
adverse
benefit
determinations.”
Paragraph
(h)(2)(iv)
states,
in
relevant
part
as
follows:
7
The
Court
finds
no
merit
to
the
argument
that
LINA’s
Claims
Manager
conducted
a
two
minute
review
on
April
17,
2008,
before
denying
the
appeal.
Melech
acknowledges
that
the
appeal
was
assigned
on
April
15,
2008,
and
that
the
decision
was
made
on
April
17,
2008,
but
she
overlooks
the
date
“April
16,
2008”
in
this
“Appeal
Process”
summary
which
clearly
shows
review
taking
place
on
April
16,
2008.
Also,
it
is
apparent
that
the
time
entry
is
when
the
record
was
created.
(Doc.
112-‐2,
17)
(“Medical
Investigation
Results
4/16/08
review
of
med
w/NCM
MJ
Kelly
.
.
.”).
22
(2)
Full
and
fair
review.
Except
as
provided
in
paragraphs
(h)(3)
and
(h)(4)
of
this
section,
the
claims
procedures
of
a
plan
will
not
be
deemed
to
provide
a
claimant
with
a
reasonable
opportunity
for
a
full
and
fair
review
of
a
claim
and
adverse
benefit
determination
unless
the
claims
procedures—
(iv)
Provide
for
a
review
that
takes
into
account
all
comments,
documents,
records,
and
other
information
submitted
by
the
claimant
relating
to
the
claim,
without
regard
to
whether
such
information
was
submitted
or
considered
in
the
initial
benefit
determination.
29
C.F.R
§
2560.503-‐1(h)(2)(iv).
Review
of
the
record
indicates
that
there
is
insufficient
evidence
to
sustain
a
finding
that
LINA
failed
to
provide
a
full
and
fair
review.
The
comments
and
notes
by
the
claims
managers
and
the
nurse
case
managers
provide
sufficient
documentation
that
LINA
adequately
took
into
account
the
information
submitted
by
Melech
in
support
of
her
appeal.
B.
Was
LINA’s
decision
de
novo
wrong?
The
parties
do
not
dispute
that
LINA
is
vested
with
discretionary
authority
to
determine
eligibility
for
benefits.
(Doc.
112-‐2,
p.
125,
Policy).
Therefore,
the
Court
begins
with
a
de
novo
review
of
LINA’s
decision
based
on
the
evidence
before
LINA
as
found
in
the
administrative
record.
(See
supra
at
note
1)
Defendants
argue
that
LINA
correctly
decided
that
Melech
was
not
disabled
because
the
Administrative
Record
did
not
contain
medical
evidence
of
disability
which
would
preclude
Melech
from
performing
the
material
duties
of
her
light
duty
occupation.
Specifically,
defendants
point
to
the
fact
that
there
is
no
objective
medical
evidence
to
support
Dr.
Dyas’
opinion
that
Melech
was
totally
disabled.8
Defendants
also
argue
that
8
In
addition
to
the
medical
records
from
Dr.
Dyas
which
contain
his
unsupported
opinion,
defendants
point
out
that
there
was
no
referral
for
pain
management,
no
evidence
of
23
Melech’s
mental
health
treatment
records
did
not
indicate
that
she
was
unable
to
work
because
of
a
mental
impairment.
The
Court
has
reviewed
the
medical
evidence
before
LINA,
and
finds
that
the
decision
was
de
novo
correct.
Therefore,
the
Court
need
not
ascertain
whether
the
decision
was
arbitrary
and
capricious.
Brown
v.
Blue
Cross
&
Blue
Shield
of
Alabama,
898
F.2d
1556,
1566
n.
12
(11th
Cir.1990)
(“It
is
fundamental
that
the
fiduciary's
interpretation
first
must
be
‘wrong’
from
the
perspective
of
de
novo
review
before
a
reviewing
court
is
concerned
with
the
self-‐interest
of
the
fiduciary.”)
As
to
clinical
tests
to
support
Melech’s
disability,
on
May
18,
2007,
Dr.
Engerson
obtained
an
x-‐ray
of
Melech’s
cervical
spine
and
found
“significant
cervical
(degenerative
disc
disease)
at
the
5-‐6
and
6-‐7
with
some
good
sized
osteophyties.
Loss
of
the
normal
cervical
lordosis
associated
with
spasm”
(Doc.
112-‐2,
p.
237).9
On
June
12,
2007,
a
cervical
MRI
was
taken.
The
radiologist
noted
his
impression
that
there
was
now
normal
alignment
of
the
cervical
spine
and
that
Melech’s
cervical
degenerative
disk
disease
was
mild
or
moderate.
(Doc.
112-‐2,
p.
339).
A
year
later,
on
May
23,
2008,
Melech’s
cervical
MRI
was
interpreted
as
showing
mild
or
moderate
cervical
degenerative
disc
changes
and
mild
central
stenosis.
(Doc.
112-‐2,
p.
143).
While
Dr.
Engerson
interpreted
the
initial
X-‐Ray
as
showing
significant
cervical
degenerative
disc
disease
with
loss
of
normal
cervical
lordosis,
the
MRIs
taken
June
12,
2007
and
May
23,
2008,
were
interpreted
to
show
only
mild
or
moderate
cervical
disc
medication
interfering
with
Melech’s
cognitive
or
functional
abilities,
and
no
evidence
that
she
was
referred
for
surgical
evaluation.
9
Although
the
physical
therapy
notes
are
largely
unreadable,
one
of
the
initial
therapy
goals
was
to
improve
Melech’s
“cervical
stability
posture”.
Limited
range
of
motion
and
fair
strength
in
the
cervical
spine
were
noted.
(Doc.
112-‐2,
p.
266-‐267)
24
disease
with
normal
cervical
alignment.
Dr.
Dyas’
opinion
that
Melech
was
totally
disabled
from
her
light
work
occupation
was
not
supported
by
these
tests
without
some
explanation
of
how
the
disease
affected
her
functional
abilities.
As
to
Melech’s
right
shoulder,
there
appears
to
have
been
only
one
test
in
LINA’s
records:
an
MRI
taken
May
23,
2008.
The
MRI
was
interpreted
as
ruling
out
a
rotator
cuff
tear
but
showing
tendinitis
or
tendinopathy
with
“mild
osteoarthritic
spurring
neighboring
the
AC
joint
with
peri-‐articular
edema.”
(Doc.
112-‐2,
p.
143).
Dr.
Dyas’
opinion
that
Melech
could
not
work
because
of
a
torn
rotator
cuff
was
not
supported
by
this
test.
As
to
Melech’s
lumbar
disc
disease,
the
only
clinical
test
is
discussed
in
the
January
3,
2008
letter
Dr.
Dyas
wrote
LINA.
He
stated
that
Melech’s
x-‐ray
showed
“degenerative
changes
at
L4-‐5
and
L5-‐S1”.
(Doc.
112-‐2,
p.
169).
“Changes”
do
not
support
a
finding
of
total
disability
from
light
work.
As
to
functional
limitations
identified
by
the
examining
physicians:10
On
May
10,
2007,
Dr.
Dyas
took
Melech
off
work
for
two
weeks
and
referred
her
for
physical
therapy.
(Doc.
112-‐2,
p.
339).
On
May
18,
2007,
Dr.
Engerson
found
full
range
of
motion
of
Melech’s
right
shoulder
with
“mild
impingement
signs”,
and
“some
pain
with
resisted
abduction
and
forward
elevation”.
He
also
found
that
Melech’s
“gross
motor
and
sensory
testing
upper
extremities
basically
[within
normal
limits].”
He
agreed
with
Dr.
Dyas’
treatment
plan.
(Doc.
112-‐2,
p.
237).
On
June
7,
2007,
Dr.
Dyas
noted
that
Melech
was
“intact
neurologically.”
(Doc.
112-‐2,
p
339).
On
September
13,
2007,
Dr.
Dyas
noted
that
Melech
“still
can’t
work.”
(Doc.
112-‐2,
p.
339).
On
October
12,
2007,
Dr. Miller found all “Joints
10
In
a
readable
section
of
their
notes,
the
physical
therapists
indicated
that
Melech’s
cervical
mobility
and
pain
were
improving
although
she
was
still
stiff.
(Doc.
112-‐2,
p.
252).
25
show full range of motion” and that Melech’s neck was “Supple. No [jugular vein distension].
Nontender.” (Doc. 112-2, p. 193).11
On January 3, 2008, in Dr. Dyas’ letter to LINA, he stated: “Physical findings associated
with [cervical spondylosis at C5-6 and C6-7] are limited neck movement by 50%”. He also
explained incorrectly that Melech “has a rotator cuff tear in her right shoulder which is
chronically and intermittently painful to activity”. As to her lumbar spine, he identified “chronic
low back pain with stiffness.” Again, Melech’s neurological exam was normal. (Doc. 112-2, p.
169). On May 22,
2008,
Dr.
Dyas
noted
that
Melech
was
“intact
neurologically”
but
had
“some
soreness,
pain
and
weakness
in
her
right
shoulder.”
(Doc.
112-‐2,
p.
144).
Despite
Dr.
Dyas’
opinion
that
Melech
was
permanently
and
totally
disabled,
the
only
findings
which
could
reasonably
be
interpreted
as
functional
limitations
are
Dr.
Engerson
finding
of
“mild
impingement
signs”
and
“some
pain
with
resisted
abduction
and
forward
elevation”
in
Melech’s
right
shoulder
(May
18,
2007);
Dr.
Dyas’
finding
of
“some
soreness,
pain
and
weakness”
in
Melech’s
right
shoulder
(May
22,
2008);
and
Dr.
Dyas’
finding
of
“stiffness”
in
the
lumbar
spine,
a
50%
limitation
on
neck
movement
and
pain
in
Melech’s
right
shoulder
related
to
activity
(January
3,
2008).
Dr.
Dyas’
limitations
contrast
with
Dr.
Engerson’s
finding
of
a
full
range
of
motion
in
all
upper
extremities
and
Dr.
Miller’s
finding
of
full
range
of
motion
in
all
joints
and
supple
neck.
Also,
Dr.
Dyas’
finding
of
50%
limitation
on
neck
movement
does
not
explain
how
that
renders
Melech
totally
and
permanently
disabled
or
unable
to
perform
her
job.
12
Therefore,
the
decision
to
deny
11
The
Court
acknowledges
that
Dr.
Miller
is
not
an
orthopedic
physician.
12
Dr.
Dyas’
opinion
appears
to
be
based
on
two
different
work
descriptions
–
First,
he
stated
that
Melech
worked
at
a
computer
50
hours
per
week
(Doc.
112-‐2,
p.
339).
Later
he
explained
that
she
“worked
rotating
shifts
requiring
long
hours
standing
and
walking
in
the
parking
lot
and
cleaning
automobiles,
vacuuming
the
automobiles.”
(Doc.
112-‐2,
p.
169).
26
Melech’s
claim
for
long
term
disability
benefits
is
not
de
novo
wrong
because
Melech
failed
to
sustain
her
burden
to
show
she
could
not,
because
of
functional
limitations,
perform
her
job
as
it
is
normally
performed
in
the
general
labor
market.
IV.
Conclusion
In
accordance
with
the
foregoing,
defendants’
motion
for
summary
judgment
is
GRANTED.
DONE
and
ORDERED
this
the
18th
day
of
September,
2012.
s/
Kristi
K.
DuBose
KRISTI
K.
DuBOSE
STATES
DISTRICT
JUDGE
Melech
described
her
“Major
Duties”
as
“Doing
reports,
handling
customers,
renting
cars,
making
schedules
for
employees,
safety
issues”.
(Doc.
112-‐2,
p.
186).
She
described
her
“Minor
Duties”
as
“Moving
cars,
cleaning
&
vacuuming
cars,
preparing
cars
where
necessary;
inventory.”
(Id).
She
used
a
computer,
copy
machine,
fax,
and
a
vacuum.
(Id.)
Thus,
it
appears
that
she
did
not
work
50
hours
per
week
at
the
computer
and
did
not
spend
“long
hours
standing
and
walking
in
the
parking
lot”
or
cleaning
and
vacuuming
cars.
27
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