Melech v. Life Insurance Company of North America et al

Filing 259

ORDER granting 216 Motion to Strike ; granting 196 Motion for Summary Judgment as set out in order. Signed by Judge Kristi K. DuBose on 8/10/2015. (cmj)

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DIANE G. MELECH,
Plaintiff,
vs.
LIFE INSURANCE COMPANY OF
NORTH AMERICA, et al.,
Defendants.

)

)
)

)

)
)

)

)

)

)

CIVIL ACTION NO.: 10-00573-KD-M

ORDER

This action is before the Court on Defendants Life Insurance Company of North

America, Hertz Corporation, and Hertz Corporation Pension and Welfare Committee’s motion
for summary judgment, memorandum of law in support, proposed determinations of undisputed
facts and conclusions of law, and evidentiary submissions (docs. 196-199), Plaintiff Diane
Melech’s response in opposition and appendix (docs. 209, 210, 238 (under seal)), and
Defendants’
 reply (doc. 215); and Defendants’
 motion to strike Plaintiff’s exhibits submitted in
support of her response, Plaintiff’s response to the motion to strike and Defendants’
 reply (docs.
216, 220, 237). Upon consideration and for the reasons set forth herein Defendants’
 motion for
summary judgment is granted and Defendants’ motion to strike is granted.

I. Background

Plaintiff Diane Melech was employed as a Location Manager for Hertz Corporation. She
was the beneficiary of an employee welfare benefit plan provided by Hertz. As part of the Plan,
Plaintiff was the beneficiary of a disability insurance policy, which was insured and administered
by Defendant Life Insurance Company of North America (LINA). Plaintiff applied for long-term

disability under the Plan on basis she could no longer perform her job because of pain in her
neck, shoulder, and back, headaches, and numbness in her right arm and hand. In November
2007, LINA denied the application and Plaintiff appealed. At that time, Plaintiff’s application
for Social Security Disability Income was pending before the Social Security Administration. In
February 2008, she was awarded SSDI benefits. Plaintiff notified LINA of the award of benefits.
LINA subsequently denied both of Plaintiff’s administrative appeals.

In October 2010, Plaintiff 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, Plaintiff brought Count One for failure to provide plan documents. However, Plaintiff
withdrew that claim for relief in her response to the motion for summary judgment. Plaintiff’s
remaining Count 2 alleged a claim for long-term disability benefits pursuant to 29 U.S.C. §

1132(a)(1(B). Plaintiff alleged that she was disabled under the terms of the Plan. The Court
granted the Defendants’
 motion for summary judgment on basis that the decision to deny
Plaintiff’s claim for long-term disability benefits was not de novo wrong. The Court also granted
judgment in Defendants favor on Plaintiff’s argument that the action should be remanded, or
benefits awarded, because she did not receive a full and fair review of her claim.

Plaintiff appealed the decision. The Eleventh Circuit Court of Appeals vacated the
decision and remanded to this Court with instructions to remand the matter to Defendants,
specifically, LINA. The Eleventh Circuit explained as follows:

We are similarly struck by the procedural unfairness created by LINA’s approach.
We conclude that LINA’s treatment of Melech’s SSA application is inconsistent
with the fundamental requirement that an administrator’s decision to deny benefits
must be based on a complete administrative record that is the product of a fair

2

claim-evaluation process. Because LINA’s decision to deny benefits here was
based on an administrative record that did not contain the information from
Melech’s SSA file, the proper course of action is to remand Melech’s claim to

LINA rather than to evaluate the merits of Melech’s claim for benefits under the
Policy using evidence that LINA did not consider. See Levinson v. Reliance
Standard Life Ins. Co., 245 F.3d 1321, 1330 (11th Cir. 2001) (“[A]s a general
rule, remand to the plan fiduciary is the appropriate remedy when the plan
administrator has not had an opportunity to consider evidence on an issue.”)
(citing Jett, 890 F.2d at 1140)).

Therefore, we vacate the District Court’s grant of summary judgment in favor of
LINA and remand to the District Court with instructions to remand the matter to
LINA. In doing so, we do not pre-judge the ultimate outcome. LINA may be able
to draw a principled distinction between its own standards for granting disability
benefits under the Policy and the SSA’s standards for awarding SSDI. All we
require of LINA is to decide Melech’s claim with the full benefit of the results
generated by the SSA process that it helped to set in motion.

(Doc. 172, p. 26-27) (footnote omitted).

On remand, Defendant LINA considered the evidence from Plaintiff’s existing file, the
SSA file, and the SSA decision as well as additional review by a psychiatrist, orthopedic
surgeon, vocational rehabilitation counselor and an appeal specialist. LINA denied Plaintiff’s
claim. This action was reopened and Plaintiff filed her first amended complaint.

Plaintiff raises four claims in her first amended complaint. In Count I, she claims longterm disability benefits. In Count II, she claims attorney’s fees and expenses incurred in the
recent claim decision on remand. In Count III, she claims attorney’s fees and expenses incurred
obtaining the reversal in the Eleventh Circuit. Count IV, wherein Plaintiff claimed failure to
provide documents, has been dismissed.

3

Defendant filed its motion for summary judgment as to Count I, on basis that Plaintiff
does not qualify for long-term disability benefits. Plaintiff responds and seeks denial of
Defendant’s motion and moves the Court to enter summary judgment in her favor.

II. Findings of fact1

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 insures the
Policy and serves as the claims administrator with responsibility for adjudicating claims for longterm 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, First Administrative Record).

In relevant part, 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
1

Plaintiff responded to the Defendants’ suggested determinations of undisputed facts by stating
as follows: “Melech submits that the records and documents upon which this Court must base its
review in this ERISA case speak for themselves. To the extent LINA’s ‘Proposed
Determinations of Undisputed Fact and Conclusions of Law’ are inconsistent with those
documents, she denies those assertions of fact and law and submits her own statement below.”
(Doc. 209) As Defendants’ point out, Local Rule 7.2(b) for the Southern District of Alabama in
effect at the time of response, stated that the opposing party “shall point out the disputed facts
appropriately referenced to the supporting document or documents filed in the action. Failure to
do so will be considered an admission that no material factual dispute exists.” S.D. Ala. LR
7.2(b). Defendants assert that Plaintiff’s statement of facts should be stricken and the
Defendants’ facts adopted in full. (Doc. 215, p. 3) However, the Court denies the Defendants’
request to strike. But, the Court will not compare Defendants’ statement of facts to the “records
and documents upon which this Court must base it review” and figure out the inconsistencies
that Plaintiff has denied. That was Plaintiff’s responsibility. Additionally, the Southern District
of Alabama adopted new local rules effective August 1, 2015. As to summary judgment, “[t]he
Court will deem uncontroverted material facts to be admitted solely for the purpose of deciding
the motion for summary judgment.” S.D. Ala. Civ. LR 56(e).

4

benefits will be paid. The Disability Benefit is shown in the Schedule of
Benefits.

The Insurance Company will require continued proof of the Employee’s Disability
for benefits for continue.

(Doc. 112-2, p. 125, Policy) “The Elimination Period is the period of time an Employee must be
continuously Disabled before Disability Benefits are payable.” (Doc. 112-2, p. 125) The
Elimination Period lasts 26 weeks. (Doc. 112-2, p. 101)

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)

B. Plaintiff’s Regular Occupation

 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)

5

LINA identified Plaintiff as a “Service Manager”
 as found in The Dictionary of
Occupational Titles, 4th ed., Rev. 1991, at listing 185.167-058. (Doc. 197-2, p. 18) The
occupation is considered Light Work, which requires as follows:

Exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force
frequently, and/or a negligible amount of force constantly (Constantly: activity
or condition exists 2/3 or more of the time) to move objects. Physical demand
requirements are in excess of those for Sedentary Work. Even though the weight
lifted may be only a negligible amount, a job should be rated Light Work: (1)
when it requires walking or standing to a significant degree; or (2) when it
requires sitting most of the time but entails pushing and/or pulling of arm or leg
controls; and/or (3) when the job requires working at a production rate pace
entailing the constant pushing and/or pulling of materials even though the weight
of those materials is negligible.

DOT at Appendix C, Part IV, Physical Demands –
 Strength Rating.

Defendant Hertz describes Plaintiff’s occupation as Location Manager. The physical
requirements were:

Sitting
Walking
Climbing
Pushing/Pulling
Lifting
Bending/Twisting
Driving

4 hours

8 hours

0 hours

0 hours

2 hours

3 hours

8 hours

(Doc. 112-2, p. 354)

Plaintiff 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.)

6

C. Plaintiff’s initial claim

Plaintiff began working for Hertz Corporation on June 3, 1977 and worked full time as a
Location Manager. Plaintiff 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) Plaintiff’s last day of employment was May 8, 2007. (Doc. 112-2, p. 366)
Plaintiff left work with complaints of neck, shoulder and back pain, headaches, and numbness in
her right arm and hand. (Doc. 112-2, p. 184)

Dr. Edmund C. Dyas IV, Plaintiff’s orthopedic treating physician, examined Plaintiff on
May 10, 2007, for complaints of chronic neck and right shoulder pain. 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) (bracketed text added)

From May 14, 2007 through June 20, 2007, Plaintiff 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 Plaintiff 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

7

strength and improve Plaintiff’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 Plaintiff
attended therapy in May through June 20, 2007, and was to continue treatment for two to three
more weeks, but did not. (Doc 112-2, p. 249-250).

Plaintiff’s last physical therapy session was June 20, 2007, and there is no indication that
she resumed any physical therapy treatment after that date. The therapist wrote “Pt. notes that
she had a headache yesterday”
 but the remainder of the assessment is unreadable. (Doc. 112-2, p.
250). One readable assessment was written on June 18, 2007, Plaintiff’s next to last session –

“Pt reports that she got a bad headache Fri. that started at base of head”
 “Pt. tol therap well. No
complaints of pain or discomfort.”
 (Doc. 112-2, p. 251) Another readable assessment was
written on June 13, 2007 – “Pt cont. to note pain in [cervical] spine”

 “Overall cervical mobility
and [head ache] pain are improving. Though still stiff esp[ecially] the upper C & T spine. Needs
to cont[inue] to advance postural program to help [decrease] strain ___?__ C spine.”
 (Doc. 1122, p. 252)

Hertz Corporation referred Plaintiff to Dr. Todd Engerson, an orthopedic physician, for
an independent medical examination and a second opinion. On May 18, 2007. 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].

8

X-Ray C-spine show significant cervical [degenerative disc disease] at 5-6 and 67 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) (bracketed text added)

Dr. Dyas saw Plaintiff again on Thursday, 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) From this an implication arises that Dr. Dyas kept Plaintiff off work until
“next Tuesday”, which was May 28, 2007.

Plaintiff returned to Dr. Dyas on June 7, 2007. He 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 cannot go back to this job.

(Doc. 112-2, p. 339) (underlining added)

Also, on June 7, 2007, Dr. Dyas wrote as follows:

To Whom it May Concern

The above captioned patient is under my care. She is permanently and totally
disabled. She cannot return to her present job. . . .

(Doc.
 112-­‐2,
 p.
 340)

On
 June
 12,
 2007,
 the
 MRI
 of
 Melech’s
 cervical
 spine,
 that
 Dr.
 Dyas
 had
 ordered,

showed:

Clinical History: Neck and Right Upper Extremity Pain.

9

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)

Plaintiff did not return to Dr. Dyas until September 13, 2007. Dyas 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, Plaintiff applied for long-term disability benefits with
LINA and her initial claims manager was Eric Poliziani. (Doc. 112-2, p. 4 “Primary Claim File.”)
Her 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 Plaintiff, which confirmed
receipt of the claim, explained certain aspects of the claims process, and requested additional
information. (Doc. 112-2, p. 83-84)

On October 12, 2007, Plaintiff 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

10

examination, Dr. Miller noted that all “[j]oints show full range of motion”
 and that Plaintiff’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 and Sports Medicine. 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
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, Plaintiff completed a “Disability Questionnaire & Activities of
Daily Living”
 form for LINA. (Doc. 112-2, p. 184-187). Plaintiff stated that
 “her neck hurts very
11

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. 112-2, p187) She
indicated her visits with Dr. Dyas were on an “as needed”
 basis. (Doc. 112-2, p. 187)

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
[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 Plaintiff’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
Plaintiff’s “condition and work status.”
 (Doc. 112-2, p. 79-80). The letter asked Dr. Dyas to
advise whether he had seen Plaintiff since September 13, 2007, to “provide objective findings to
12

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, Marianna DiLeo conducted a “second eye review”
 of Plaintiff’s
claim. (Doc. 112-2, p/ 24-25) She reviewed the claims processing including such procedures as
reviewing and addressing eligibility and functionality, and found that an appropriate decision had
been made and approved the decision letter.

On November 29, 2007, Poliziani wrote Plaintiff that LINA was unable to approve her
claim. (Doc. 112-2, p. 172-176) Poliziani explained that Plaintiff’s job of Location Manager
was categorized as Light Work in the U.S. Department of Labor Dictionary of Occupational
Titles (DOT) and that LINA must look at Plaintiff’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 Plaintiff’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 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
13

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)

Plaintiff 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).

Plaintiff returned to Dr. Dyas on January 3, 2008. At this time, she had not seen Dr.
Dyas since September 13, 2007. His notes state that

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).

14

On January 31, 2008, Plaintiff 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 & [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) (sic) (bracketed text added).

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
15

[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 Plaintiff that the
denial had been upheld on appeal. (Doc. 112-2, p. 157-158). Shimko identified Plaintiff’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 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 Plaintiff 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.)

16

Dr. Dyas examined Plaintiff on May 22, 2008. He noted that she “continues to have
increasing neck pain”
 and injected a sensitive area at the “lower cervical region”. (Doc. 112-2, p.
144) He noted that Plaintiff 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. Plaintiff provided a copy of the MRI results. As to her right
shoulder, the radiologist found “no evidence of rotator cuff tear” but instead the test was
“consistent with tendinitis or tendinopathy”
 of the shoulder, and “mild osteoarthritic spurring
neighboring the AC joint with peri-articular edema.”
 (Doc. 112-2, p. 143)

The report of the MRI of Plaintiff’s cervical spine stated as follows:

There is a diffuse degenerative disc desiccation with moderate spondylitic disc
space narrowing at C5-6 and C6-7. The C7-T1 level demonstrates mild
spondylitic protruding disc and is otherwise unremarkable. There is a broad
based central disc extrusion at C6-7 resulting in mild central stenosis with left
greater than right foraminal protruding disc. The central canal is narrowed to
approximately 9mm. There is a right paracentral disc extrusion at C5-6 resulting
in mild central stenosis. Disc material minimally contacts the right ventral cord.
The canal is narrowed to 9mm. There is right foraminal spondylitic spurring.

The C4-5 and C3-4 levels are essentially unremarkable.

Impression:

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. 2

2

This may be incorrect. In the report, a mild spondyltic disc protrusion was found at the C7-T1,
but not at the C4-5, which was noted as “essentially unremarkable.” (Doc. 112-2, p. 143) The
possible error, however, does not affect the overall impression that Plaintiff’s degenerative disc
disease was identified as either mild or moderate.

17

(Doc. 112-2, p. 143)

On October 10, 2008, Plaintiff wrote LINA and requested another review of the decision.
Plaintiff provided Dr. Dyas’ notes from May 2008 and reports from her treating psychiatrist and
therapist. She advised LINA that she was receiving Social Security Disability benefits. Plaintiff
stated that

According to your job description, I am being evaluated using the duties
associated with service manager, however the duties listed do not describe the
job I performed for Hertz. While the job title you received from my employer
was that of Location Manager, CIGNA evaluated my claim using U.S.
Department of Labor [Dictionary] of Occupational Titles 185.167-058. This
description is for service manager which does not describe the job of location
manager. I request that CIGNA evaluate the disability I have based on the job
description that correctly explains the job for which I performed.

(Doc. 112-2, p. 141-142) 3

Plaintiff submitted psychiatric records from August and September 2008 office visits
with a therapist, Kim Dyson at AltaPointe Health Systems, and the most recent October 1, 2008
psychiatric evaluation. (Doc. 197-3, p. 85-91)4 The page captioned “Current Diagnosis”
 shows
the principal diagnosis as “mood disorder due to . . . (indicate the general medic”
 (sic)) (Id. p.
87). Relevant to her claim for disability based upon physical limitations, the therapist noted
Plaintiff
 “had a series of back problems related to her job and finally went out on disability”
 and

3

LINA referenced DOT 185.167-058, which defines Service Manager (automotive).
http://www.occupationalinfo.org/18/185167058.html.

4

The mental health examination report dated October 1, 2008 was first submitted to the Court in
June of 2012. That copy was substantially redacted or highlighted in a manner that it was
unreadable. After remand, the first administrative record was submitted again. This time, the
document is legible. (Compare Doc. 112-2, p. 150-151, 153-156 with Doc. 197-3, p. 85-86, 8991)

18

noted Plaintiff’s report that “her level of pain is high and coupled with insomnia feels exhausted
all of the time.”
 (Id., p. 88-89)

As to daily activities, Plaintiff reported that she could care for herself. For recreational
activities, she “spends time with boyfriend, adult children and her dog, loves music, the beach
and going fishing”. (Id., p. 89) The psychiatrist Dr. Bland diagnosed mood disorder and “C-spine
injury” and recommended a change from Xanax5 to Klonopin, start Lexapro, and return in six
weeks for a follow-up. (Id., p. 90) Plaintiff did not return for any further psychiatric treatment.

On October 15, 2008, Tracy Shimko, Appeals Claims Manager, wrote Plaintiff to explain
that accepting a second appeal is voluntary on the part of LINA and that LINA had decided not
to accept Plaintiff’s second appeal. Shimko discussed the psychiatric records received and
concluded that the records did not demonstrate that Plaintiff was psychiatrically impaired from
May 2007 to the present. Shimko wrote as follows:

We received on October 15, 2008 your appeal request along with the May 23,
2008 MRI results of your right shoulder and cervical spine imaging. The right
shoulder MRI showed no evidence of a rotator cuff tear as was previously
reported by Dr. Dyas. The MRI of your cervical spine revealed mild spondylitic
disc changes at C4-5 and degenerative changes at C5-7 with broad based extruded
disc resulting in mild central stenosis. The May 22, 2008 office note from Dr.
Dyas is devoid of any physical exam findings demonstrating the severity of any
motor, sensory, vascular or neurological deficits impairing your ability to
function. We are unable to consider your appeal at this time since you have not
provided medical documentation that would alter our previous decision.

The information you submitted fails to demonstrate a physical or psychiatric
impairment from May 10, 2007 through the present.

5

In October 2007, Dr. Miller had prescribed Ambien for insomnia instead of Xanax. (Doc. 1122, p. 192)

19

As stated in your previous denial letter, you will need to provide us with medical
documentation to support your appeal. Medical documentation includes, but is
not limited to, physician’s office notes, hospital records, consultation reports, test
result reports, therapy notes, treatment history including a list of prescribed drugs
along with their dosages, frequency and response relevant to the time period in
question and/or a letter from your physician indicating why you are unable to
perform the duties of your occupation. These medical records should cover the
period of May 10, 2007 through the present.

(Doc. 112-2, p. 139)

Plaintiff then filed an action in this Court on October 15, 2010. Summary judgment was
granted in favor of Defendants as to Plaintiff’s claim that she did not receive a full and fair
review. As to her claim for disability benefit, the Court applied the de novo standard at step one
of the framework for deciding ERISA claims for benefits. The Court “reviewed the medical
evidence before LINA”
 and found that the “decision was de novo correct.”
 (Doc. 162, p. 24) The
parties did not dispute that LINA was granted authority to decide disability claims. However,
the Court did not proceed to any other step in the review process and therefore, did not “ascertain
whether the decision was arbitrary and capricious.”
 (Id.)

The Court of Appeals of the Eleventh Circuit vacated the District Court’s order on
summary judgment and remanded the action to the District Court “with instructions to remand
Melech’s claim to LINA for its consideration of the evidence presented to the SSA.”
 (Doc. 172,
p. 4) The Eleventh Circuit did not “judge the propriety of LINA’s ultimate decision to deny
Melech’s claim for benefits under the Policy because [it] held that LINA had an obligation to
consider the evidence presented to the SSA.”
 (Id.) The Eleventh Circuit explained that the “crux
of our holding lies in the relationship between LINA’s claim-evaluation process and the parallel

20

SSA process.”
 (Id.) The Eleventh Circuit discussed LINA’s requirement that claimants apply for
Social Security Disability Income when applying for benefits under the Policy and that SSDI
benefits are deducted from any benefits award by LINA. The Eleventh Circuit found that “in
Melech’s case, LINA initially sent her to the SSA but then decided she was not eligible for
benefits under the Policy. Because it no longer needed to protect its SSDI deduction, LINA
ignored the status of Melech’s SSDI application and the SSA’s eventual decision to award
benefits.”
 (Id., p. 4-5)

The Eleventh Circuit stated that “the SSA process produces more than just a final sum of
money –
 it also may produce additional evidence that is relevant to the claimant’s physical
condition and vocational capacity.”
 (Id., p. 5) After addressing the Policy terms regarding
LINA’s monitoring and participation in the SSA process, the Eleventh Circuit stated that “LINA
may be able to draw a principled distinction between its own standards for granting disability
benefits under the Policy and the SSA’s standards for awarding SSDI. All we require of LINA is
to decide Melech’s claim with the full benefit of the results generated by the SSA process that it
helped to set in motion.”
 (Doc. 172, p. 26-27)

D. Plaintiff’s claim on remand

On July 29, 2014, LINA instructed its claims department “to adjudicate Ms. Melech’s
claim on remand under the instructions from the Court …
 which require you to consider all of
the evidence generated by Ms. Melech’s Social Security Application that resulted in her award of
Social Security benefits.”
 (Doc. 197-2, p. 178) LINA sent the Eleventh Circuit Opinion, this
Court’s prior orders, and the SSA record to the claims department. (Id., p. 179-209)

21

The SSA awarded Social Security Disability Income benefits on February 16, 2008. The
SSA stated that “[w]e found that you became disabled under our rules on May 27, 2007.”
 (Doc.
197-2, p. 226) The letter does not state the rules or rationale in support of the decision. 6

In addition to the 2007-2008 treatment records from Dr. Dyas, previously submitted to
LINA, Dr. Dyas’
 records from 2004-2006 were included in the SSA record. On March 25,
2004, Dr. Dyas treated Plaintiff for right shoulder pain of one month duration. He noted that
Plaintiff was “hurting in her neck, right shoulder, sternoclavicular joints quite swollen and
painful as is her lower back. She is neurologically intact.”
 (Doc. 197-2, p. 242) He ordered MRI
tests and saw Plaintiff the next week.

On April 1, 2004, Dr. Dyas noted a follows:

This patient is having a lot of pain in her neck that is radiating down into her
shoulder and into her arms. She has got a partial tear of the rotator cuff which is
some of it, but I think some of it is also coming from the degenerative change in
her neck. We are going to get Dr. Volkman to see what he thinks about her neck.
We did a subdeltoid injection in her shoulder today in the clavicular joint which
we saw to be markedly swollen last week. It has gone down a great deal. I did not
inject it. I don’t think we are going to need it now. So, we will just get Dr.
Volkman to see and she is to call us next week and see what the shoulder joint is
doing.

(Doc. 197-2, p. 241)

Plaintiff returned on April 7, 2004 and was seen by Dr. Volkman. He noted her history
and then, on examination, found as follows:

On exam, Mrs. Melech has about 90% normal cervical motion. Extremes seem to
aggravate some of the symptoms in the shoulder and proximal brachium. Biceps,
6

The SSA record contains treatment notes from Plaintiff’s gynecologist and urologist. Those
records do not appear to contain any opinion as to Plaintiff’s physical functional limitations.
(Doc. 197-2, p. 243-255; 282-296)

22

wrist extensors, triceps, finger flexors and interossei are 5/5. Upper extremity
reflexes are symmetric. Some swelling at the sternoclavicular joint on the right
side. No instability or redness or warmth.

I’ve reviewed the MR scan of her neck and she has some stenosis at C5-6 as well
as the C4-5 levels. Radiographs show some spondylosis at the same levels.

This was discussed with Mrs. Melech. She is already taking Bextra. I’ve added
Zanaflex and a handout of the cervical stretching exercises. We’ll give this about
3 weeks and if the parascapular and trapezial ridge pain are not improving, we
will consider an epidural steroid injection. I will check her back in 3 weeks.

(Doc 197-2, p. 241)

Plaintiff was examined again on June 17, 2004. Dr. Dyas noted that her neck, shoulder,
right arm and SC [sternoclavicular) joints were “very tender”. She was injected in the SC joint
that same day. (Doc. 197-2, p. 240) Plaintiff was prescribed a 30-day supply of Lortab 5 in
June, July, August, September (twice), November, and December of 2004. (Doc. 197-2, p. 239)

In January 27, 2005, Plaintiff had a checkup and reported that her “right shoulder is
hurting.”

 Dr. Dyas noted
 “She’s got a partial rotator cuff tear. We did a subdeltoid injection
today.”
 (Doc. 197-2, p. 242) Lortab 5 was prescribed. (Id., p. 239)

Plaintiff renewed her prescription for Lortab 5 in April, May, and June of 2005 (Doc.
197-2, p. 237). On June 23, 2005, Plaintiff complained that her right shoulder was hurting. Dr.
Dyas noted that Plaintiff has “chronic tendinitis and a slight tear of the rotator cuff. She also has
osteoarthritis in the sternoclavicular joint on that side and tendinitis in the left elbow.”
 (Id.) He
prescribed Mobic and injected the right subdeltoid. (Id.)

Plaintiff’s prescription for Lortab 5mg was renewed monthly for July through December
of 2005. (Id., p 237-238) And again renewed monthly from January through May 2006 (Doc.
197-2, p. 235, 238)

23

On May 4, 2006, Plaintiff was diagnosed with “cervical radiculitis on the right”
 and her
“subscapular bursa”
 was injected. She was prescribed Naprelan, Soma and Lortab 5. Dr. Dyas
noted that Plaintiff was “intact neurologically”. (Doc. 197-2, p. 235)

On May 25, 2006, Dr. Dyas noted as follows:

Patient is hurting more and having pain radiating down her right arm. Numbness
and weakness in her hand. She was working at a bad job at a desk at a computer,
and that seems to be aggravating the situation. Her reflexes are intact. Strength
may be off a bit. . . . We are going to get the MRI repeated. She may need an
epidural or surgery.

(Doc. 197-2, p. 235) Dr. Dyas renewed monthly prescriptions for Lortab 5 for July through
December 2006, and January 2007. (Doc. 197-2, p. 236)

Plaintiff returned to Dr. Dyas in February 2007 with complaints of “continuing
intermittent episodes of sciatica with radiculitis in the right arm.”
 (Doc. 197-2, p. 233) Dr. Dyas
found “tenderness of the subscapular today. Did not want to see about surgery. We injected the
subscapular bursa and renewed her pain medication.”
 (Id.) On February 15, 2007, Plaintiff saw
Dr. Dyas after twisting her foot. This appears to be an isolated injury.

On May 20, 2007, Plaintiff returned to Dr. Dyas. His records from May 2007 forward
were part of LINA’s administrative record and identified herein. (See supra page 7-11) The
SSA record also contained the physical therapy notes from Fleming Rehabilitation that were part
of LINA’s administrative record. (See supra p. 7; Doc. 197-2, p. 262-282)

The SSA record shows Jennifer Jackson, Psy.D., examined Plaintiff on December 18,
2007. Dr. Jackson noted that Plaintiff had applied for disability benefits “due to degenerative disc
disease in her neck, tendinitis in her right arm, numbness and swelling in her arms and hands,

24

arthritis, acid reflux, a chronic kidney stone, and anxiety.”
 (Doc. 197-3, p. 28) Plaintiff reported
that she often felt “anxious, restless or keyed up,”
 and “worried”
 since her husband died four years
prior.”
 (Id). Dr. Jackson noted that Plaintiff’s gynecologist had prescribed Xanax, which Plaintiff
reported relaxed her “so [she] can sleep.”
 (Id.) Dr. Jackson noted that Plaintiff’s “mood and affect
seemed appropriate”, that “she did not appear anxious”, and that she “was oriented to time, place
and person.”
 (Id., p. 29) Dr. Jackson found Plaintiff had “no signs of confusion, loose
associations, tangential or circumstantial thinking,”
 “no signs or reports of hallucinations or
delusions,”
 no distorted thinking, no suicidal or homicidal ideations, and “no unusual behaviors.”

(Id., p. 30) Dr. Jackson found that Plaintiff’s “judgment seemed appropriate,”
 with “adequate
insight into herself and her condition”, and no memory deficits (Id.)

As to daily activities, Dr. Jackson noted that Plaintiff watched television, listened to the
radio, sometimes did laundry, fed her animals, straightened her house and bathed. (Id.) Dr.
Jackson diagnosed Plaintiff with generalized anxiety disorder with the following prognosis: “It
appears that a favorable response to treatment could be expected within 6-12 months.”
 (Id.)

Dr. Eugene Bass with the Disability Determination Service examined Plaintiff on

December 15, 2007. He obtained a lumbar spine x-ray. The x-ray showed “mild narrowing of
the L5-S1 disc space”
 with no compression fractures and no spondylosis or spondylolisthesis.
The radiologist noted “mild degenerative disc disease L5-S1.” (Doc. 197-3, p. 34)

Dr. Bass noted Plaintiff’s report of her present illness as chronic neck pain, varying in
severity and arm pain aggravated by work with Hertz, and numbness and tingling in the right

25

arm and hand that worsened in the past year. He also noted her report of lower back pain that
flares with prolonged standing. Dr. Bass also reviewed Dr. Dyas’
 records. (Doc. 197-3, p. 32)

On examination, Dr. Bass found “an unremarkable gait pattern”. (Doc. 197-3, p. 33) As
to Plaintiff’s neck and upper extremities, he found “right and left lateral rotation of 55 [degrees],
…
 35 degrees of flexion and extension, …
 no tenderness or spasm”
 but Plaintiff reported
“increase pain on range of motion testing of the neck.”
 (Id.) He also found that the “remainder of
the upper extremity examination is unremarkable at this time.”
 (Id.). As to Plaintiff’s back, Dr.
Bass found she was able to stand erect, and there was no spasm but some tenderness in the

right upper gluteal region. He found Plaintiff had 105 degrees of flexion and 30 degrees of
extension without pain. (Id.) Her lower extremities were unremarkable.

On neurological examination, Dr. Bass found “no focal strength deficits noted in the
upper or lower extremities. She is able to heel and toe walk and is able to squat and arise again.
Reflexes and sensation are intact in the upper and the lower extremities. Straight leg raising
exam is negative for radicular complaints.”
 (Id., p. 33) Dr. Bass noted his impression as “1.
Degenerative disc disease at C5-6 and C6-6 with stenosis and radiculitis of the right upper
extremity. 2. Lumbar degenerative disc disease. X-rays reported as mild degenerative disc
disease at L5-S1.”
 (Id.).

Angela Lassiter with the SSA completed Plaintiff’s Psychiatric Review Technique on
January 14, 2008. Lassiter reported Plaintiff’s diagnosis of generalized anxiety disorder, but
found only mild restrictions in activities of daily living; mild difficulties in maintaining
concentration, persistence or pace; and moderate difficulties in maintaining social functioning.
No episodes of decompensation were noted. (Doc. 197-3, p. 35-48)

26

Lassiter also completed a Mental Residual Functional Capacity Assessment on January
14, 2008. (Doc. 197-3, p. 57-59) Lassiter found that Plaintiff was moderately limited in her
ability to understand and remember detailed instructions, her ability to maintain attention and
concentration for extended periods, and her ability to “interact appropriately with the general
public” but she was otherwise “not significantly limited”
 in mental functioning. (Id., p. 57-58)
Lassiter determined that Plaintiff “has the ability to understand, remember and carry out short,
simple instructions, . . . can attend for two hours with regularly scheduled breaks”, and that her
“interaction with the general public should be infrequent,”
 but otherwise Plaintiff was “not
significantly limited”. (Id., p. 59)

Lassiter also completed a Physical Residual Functional Capacity Assessment on January
14, 2008. Lassiter identified Plaintiff’s exertional limitations as follows: Plaintiff could
occasionally carry up to 20 lbs., frequently carry up to 10 lbs., stand and/or walk with normal
breaks for about 6 hours in an 8 hour workday, sit with normal breaks for about 6 hours in an 8
hour workday, and her ability to push and pull was unlimited. Lassiter found Plaintiff was
unlimited as to reaching or gross manipulation and she was able to frequently climb ramps and
stairs, balance, stoop, kneel, crouch and crawl, and occasionally climb ladders, ropes or
scaffolds. (Doc. 197-3, p. 49-56) As to the evidence upon which she based this assessment,
Lassiter referenced Plaintiff’s age and education, her subjective complaints of pain, the medical
records from Dr. Dyas, and the examination by Dr. Bass including his assessment of Plaintiff’s
ability to flex and extend. (Id., p. 50-51)

On remand, LINA’s claims manager requested an independent peer review opinion from
an orthopedic surgeon through a third party, Exam Coordinators Network. (Doc. 197-2, p. 172)

27

LINA requested that the peer review orthopedist contact Plaintiff’s health care providers and
evaluate the time period of May 11, 2007 to present. The special instructions asked the peer
review orthopedist to respond whether “Ms. Melech [was] physically functionally limited during
any time period from 5/11/07?” and whether “Ms. Melech” require[d] any medically necessary
work activity restrictions during any time period from 5/11/07? (Id., p. 173) The peer reviewer
was asked to provide a detailed analysis and rationale to support the answer that considered all
the evidence including observations, examination findings, functional assessments and
diagnostic studies. The peer reviewer was asked to “focus on functionality; address functional
limitations and whether work activity restrictions are medically necessary based on risk.” (Doc.
197-2, p. 173)

Orthopedic Surgeon Alfred E. Mitchell, M.D. was assigned to the claim. He reviewed
Plaintiff’s file “from an Orthopedic Perspective only.”
 (Doc. 197-2, p. 164) Dr. Mitchell reviewed
Plaintiff’s medical records including the contents of Plaintiff’s SSA File. 7 (Id., p. 164, 167-168)
On August 25, 2014, Dr. Mitchell issued his peer review report. He provided a brief summary of
Plaintiff’s injury, i.e., her neck and right shoulder pain, and treatment from 2004 through 2008,
including the treating physicians’
 records, diagnostic test results, medication prescriptions and
injections to the neck and shoulder. (Id., p. 164-165) Dr. Mitchell noted that Plaintiff’s treatment
was “conservative consisting of multiple pain medication prescriptions (Lortab 5mg) from 2004
–
 2007 and occasional office injections to the neck and shoulder.”
 (Id., p. 164)

7

Dr. Mitchell listed the medical records, physical therapy records, physical residual functional
capacity assessment, and diagnostic test results that he reviewed – orthopedic and nonorthopedic, submitted by Plaintiff and from the Social Security Administration file – from 1997
through 2007 (doc. 197-2, p. 167-168).

28

From May 10, 2007 forward, Dr. Mitchell found that Plaintiff “underwent conservative
office based treatment consisting of short-term physical therapy, non-invasive intermittent
cervical region injections and narcotic pain medication.”
 (Id.) Dr. Mitchell found that

Objective physical findings revealed decreased range of motion and tenderness
without radicular provocative testing or abnormal neurologic findings. Diagnostic
testing consisted of radiographs and MRI scans. The most consistent diagnosis
was cervical degenerative disc disease. There is no provided documentation of
invasive treatments to the cervical spine of epidural injections or surgery. There
is no record of anti-inflammatory medication courses or neuropathic medication
courses. The last orthopedic office note was May 22, 2008 by Edmund Dyas MD.

(Doc. 197-2, p. 165)

He also provided a detailed summary of Plaintiff’s injury and history of treatment, which
included summaries of records from Dr. Dyas, Dr. Engersen, Dr. Bass, Dr. Jackson, Dr. Bland,
Fleming Rehab and Sport Medicine, MRI and x-ray results, Plaintiff’s statement of her activities
as of November 6, 2007, and the mental and physical residual functional capacities assessments.

In response to the two questions, Dr. Mitchell found as follows:

For the time period of 5/11/07 through the present:

1. Based on the provided records and any conversations you have with the
healthcare provider(s):

Was the claimant physically functionally limited during any time
period from 5/11/07? If so, please provide a detailed
analysis/rationale supporting your answer that considers all the
evidence and includes reference to observations, examination
findings, functional assessments and diagnostic studies.

There are two specific time periods identified as pertinent.

Yes. The claimant was physically functionally limited from her occupation from
May 10, 2007 through June 6, 2007 due to an exacerbation of neck pain from
activities at work. She demonstrated no documented objective physical findings
on examination indicating a severe condition and had no neurological
29

impairment. Radiographs showed cervical degenerative disc disease and MRI
was confirmatory. She improved with physical therapy.

No. The claimant was not physically functionally limited from her occupation
from June 7, 2007 to the present end of the records provided on January 14,
2009. Observations through the claimant's own statements reveal adequate
capability to perform activities of daily and leisure activities. Examination
findings reveal a mild restriction of cervical range of motion but within a
functional range. There are no documented neurologic deficits or positive
radicular provocative testing. Diagnostic radiographs and MRI scans reveal
chronic stable degenerative findings without evidence of trauma. There is no
electrodiagnostic testing. The functional capacity assessment revealed abilities
consistent with the claimant's occupational description. There is no consistent
evidence of worsening of the claimant's condition in regard to increased
frequency of office visits, physical therapy, specialty referrals, chronic pain
specialist intervention, epidural steroid injections or consultation for surgical
management. The claimant's use of narcotic pain medicine was similar if not less
than prior to the May 10, 2007 date of injury.

Did the claimant require any medically necessary work activity
restrictions during any time period from 5/11/07? If yes, please
provide a detailed analysis/rationale supporting your answer that
considers all the evidence and includes reference to observations,
examination findings, functional assessments and diagnostic
studies.

Yes. From June 7, 2007 onward the claimant required medically necessary
work activity restrictions of no repetitive bending and twisting of the
cervical spine as well as alternate neck positions as needed such as every
30 minutes. A maximal weight restriction of 20 pounds occasionally, 10
pounds frequently and negligible amount constantly is appropriate. This is
consistent with a light occupational capacity and is in agreement with the
functional capacity evaluation document. Observations through the
claimant's own statements reveal adequate capability to perform activities
of daily and leisure activities. Examination findings reveal a mild
restriction of cervical range of motion but within a functional range. There
are no documented neurologic deficits or positive radicular provocative
testing. Diagnostic radiographs and MRI scans reveal chronic stable
degenerative findings without evidence of trauma. There is no
electrodiagnostic testing.

30

2. Please address your questions to the claimant's healthcare provider(s) to
clarify return to work capabilities; include a summary of your conversation(s)
with the provider(s) in your report.

This reviewer performed a search of the primary treating
orthopedic surgeon's credentials as is routine in performing peer
and file reviews.

An obituary from Radney Funeral Home in Mobile, Alabama
revealed Dr. Edmund Covington Dyas IV died peacefully at home
January 23, 2011. He was 71 years old. No contact attempt was
made as there was no indication in the provided records of
subsequent treating orthopedic physicians.

(Doc. 197-2, p. 169-170)

LINA also requested a psychiatric independent peer review report. Psychiatrist Marcus
Goldman, M.D. was assigned by Exam Coordinators Network. He completed his review on
August 27, 2014. Dr. Goldman attempted to contract Plaintiff’s former mental health
professionals at AltaPointe Health Systems, Dr. Bland and therapist Dyson, but learned that Dr.
Bland had been “gone for five years”
 and that Dyson “does not know this claimant and does not
have her in the computer.”
 (Doc. 197-2, p. 160)

Dr. Goldman reviewed Plaintiff’s medical and mental health records, including those
completed and collected as part of the SSDI process. After a clinical summary of the documents
reviewed, Dr. Goldman found that for the time period as of May 11, 2007 to the present, the
medical evidence was inadequate because there were only three mental health assessments
covering a period of seven years, and two of the assessments were inconsistent. He found that
the records available were “generally unremarkable but for appropriate sadness”
 and that some
reports noted impaired memory or concentration. He found that Plaintiff did not meet the criteria

31

for a DSM-5 diagnosis and that the “documentation does not support functional impairment or
the inability to function in a work environment due to a mental disorder as of May 11, 2007
onwards.” Dr. Goldman found that “based on the very limited date available for review I would
opine that information tends to rule out a validated mental health difficulty that would preclude
gainful employment.”
 (Doc. 197-2, p. 161-163).

LINA Claim Manager Melissa Graham obtained an additional occupational analysis
based upon the DOT occupation of Service Manager, the restrictions and limitations in Dr.
Mitchell’s report and the psychiatric peer review by Dr. Goldman. (Doc. 197-2, p. 16-18).
Vocational Rehabilitation Counselor Kristina DeSantis conducted the occupational analysis on
September 5, 2014. DeSantis noted that she was requested to “provide comment as to whether
the level of function indicated would be consistent with the customer’s own light occupation.”

(Id., p. 16) DeSantis found as follows:

Per Peer Review by Dr. Mitchell, Ms. Melech required medically necessary work
activity restrictions of no repetitive bending and twisting of the cervical spine as
well as alternate neck positions as needed such as every 30 minutes. A maximum
weight restriction of 20 lbs occasionally, 10 lbs frequently and negligible amount
constantly is appropriate.

Per Peer Review by Dr. Goldman, the documentation does not support functional
impairment or the inability to function in a work environment due to a mental
disorder as of 5/11/2007 onwards.

Customers weight restriction of 20 lbs occasionally and 10 lbs frequently along
with no repetitive bending and twisting of the cervical spine is consistent with the
physical demands of her light occupation as a Service Manager.

(Doc. 1970-2, p. 16-17)

32

On September 24, 2014, LINA denied Plaintiff’s claim. After a statement of the policy
definition for disability and the elimination period, LINA found that Plaintiff’s occupation with
Hertz as a location manager, defined in the DOT as service manager, required light demand
activities. LINA then set out the specific demands of light work and discussed the opinions of
Dr. Mitchell and the evidence upon which he based his opinion, Dr. Bass’s orthopedic
consultation, and the findings by its Vocational Rehabilitation Department. LINA then decided
that

Although Ms. Melech had impairments that would have limited her from
performing her regular occupation from May 10, 2007 through June 6, 2007 due
to an exacerbation of neck pain, the medical information on file does not support
continuous disability from her regular occupation throughout the Elimination
Period. We found that the medical information on file and [SSA] file did not
reveal any significant evidence of a functional loss or severe psychiatric
impairment which preclude your client from performing her regular occupation.
Therefore, we must affirm the prior decisions.

Lastly, we considered that your client was awarded [SSDI] benefits; however, the
standard for determining Disability under the [SSA] may differ from the
provisions under this Policy. Disability under the [SSA]’s internal administrative
standards such as deference to the treating providers or advanced age may reduce
the standard of proof required to grant Disability. As outlined above, the
information on file does not support impairment from your client’s regular
occupation.

(Doc. 197-2, p. 83-86)

III. Standard of review

“The court shall grant summary judgment 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). The party seeking summary judgment bears the “initial responsibility of

33

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 v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). If the nonmoving party fails
to make “a sufficient showing on an essential element of her case with respect to which she has
the burden of proof,”
 the moving party is entitled to summary judgment. Celotex, 477 U.S. at
323.
 “In reviewing whether the nonmoving party has met its burden, the court must stop short of
weighing the evidence and making credibility determinations of the truth of the matter ... the
evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his
favor.”
 Tipton v. Bergrohr GMBH–Siegen, 965 F.2d 994, 998–999 (11th Cir.1992).

However, the summary judgment analysis is “applied in a modified manner in an ERISA
case.”
 Rogers v. Hartford Life and Accident, Ins. Co., 2012 WL 1288349, *1 at n. 2 (M.D. Ala.
Apr.16, 2012) (citing Blankenship v. Met. Life Ins. Co., 644 F.3d 1350, 1354 at n. 4 (11th Cir.
2011)). “Because ERISA does not set out a standard of review for challenges to the denial of
benefits brought under 29 U.S.C. §
 1132(a)(1)(B)”
 the Court of Appeals for the Eleventh Circuit
“has developed a multi-part test, relying on the Supreme Court's opinions in Firestone Tire &
Rubber Company v. Bruch, 489 U.S. 101, 109 (1989), and Metropolitan Life Insurance Company
v. Glenn, 554 U.S. 105, 111 (2008).”

 Oliver v. Aetna Life Ins. Co., 2015 WL 4153628, *3 (11th
Cir. 2015). The district courts proceed as follows:

34

(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.

Oliver, 2015 WL 4153628 at *3 (citing Blankenship v. Metro. Life Ins. Co., 644 F.3d 1350, 1355
(11th Cir. 2011).

IV. Conclusions of law

A. Standard of review

Plaintiff states that a “pure de novo standard with no deference to LINA’s decision nor
any limitation on what the Court may consider” should apply. Plaintiff argues that because LINA
did not reach a decision within 45 days as required under ERISA, there has been a “deemed
denial”
 which results in the application of a “pure de novo”
 standard of review. (Doc. 209, p. 15-

35

16); 29 C.F.R. §
 2560.503-1(l) 8; 29 C.F. R. §
 2560.503-1(i)(3)(i) (allowing 45 days for review
of a disability claim)

Defendants reply that this is not an administrative claim or appeal of an administrative
denial, i.e., a claim for benefits as defined in 29 C.F.R. §
 2560.503(1), that would be subject to
the timing requirements in the Department of Labor regulations. Instead, Defendants argue, the
current proceedings are a remand to be conducted in accordance with the requirements of the
Eleventh Circuit’s decision. They also point out that the 45-day time period is triggered by
“receipt of a claimant’s request for review by the plan”, 29 C.F.R. §
 2560.503-1(i), but here an
order of remand started the review.

On the first motion for summary judgment, the Court determined that there was no
dispute that LINA was “vested with discretionary authority to determine eligibility for benefits.”
(Doc. 162, p. 23) The Court stated that it would begin at step one “with a de novo review of
LINA’s decision based on the evidence before LINA as found in the administrative record.” (Id.)
The Court concluded as follows: “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
8

The regulation reads as follows:
(l) Failure to establish and follow reasonable claims procedures. In the case of
the failure of a plan to establish or follow claims procedures consistent with the
requirements of this section, a claimant shall be deemed to have exhausted the
administrative remedies available under the plan and shall be entitled to pursue
any available remedies under section 502(a) of the Act on the basis that the plan
has failed to provide a reasonable claims procedure that would yield a decision
on the merits of the claim.

29 C.F.R. § 2560.503-1(l).

36

the decision was arbitrary and capricious.”
 (Doc. 162, p. 24) The district court reached its
decision at Step One of the framework for evaluating ERISA claims denials.

Also at the time of the first motion for summary judgment, Defendants had moved to
strike Plaintiff’s Social Security Claim file (doc. 151) and Plaintiff’s Declaration/affidavit (doc.
144). (Doc. 162, p. 2, n.1) Relying upon the decision in Blankenship v. Metropolitan Life Ins.
Co., the Court granted the motion to strike. (Id., 644 F. 3d 1350, 1354 (11th Cir. 2011) (“Review
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 decision. Whether the administrator's decision was
either de novo correct or reasonable under this Circuit's Williams framework is a question of
law.“) (citing Jett v. Blue Cross & Blue Shield of Ala., Inc., 890 F.2d 1137, 1140 (11th
Cir.1989)). In keeping with Blankenship, the Court considered only the “evidence before LINA
as found in the administrative record”
 to find that the decision was not de novo wrong and did not
rely upon the SSA records or Plaintiff’s Declaration/affidavit.

Now, Plaintiff relies on the decisions in Kirwan v. Marriott Corp, 10 F. 3d 784 (11th Cir.
1994) 9 and Stefanson v. The Equitable Life Assurance Society of the United States, 2005 WL
2277486, *9-10 (M.D. Ga. Sept. 19, 2005)10 as support for her argument that the “pure de novo
standard”
 should apply because LINA did not issue its remand decision within 45 days. Plaintiff
asserts that under a “pure de novo review”
 the Court can consider evidence beyond the
9

In Kirwan, the Plan at issue did not specifically grant the plan administrator authority to deny
disability claims. Consequently, the Eleventh Circuit found that the district court erred in
applying the arbitrary and capricious standard of review. 10 F. 3d at 789.

10

Stefanson filed his claim in June 2003. By November 12, 2003, no decision had been made
and he filed his complaint in the district court. 2005 WL 2277486, at *2-3.

37

administrative record on remand, such as Plaintiff’s Declaration/affidavit or other documents
produced in discovery.

As Defendants point out, the regulation changed in 2000, after the Kirwan decision.
While 29 C.F.R. §
 2560.503-1(l) once held that if the plan administrator failed to comply with
the time frames for decision-making, a claim was “deemed denied”, now a claim is
 “deemed”
 to
be “exhausted”
 and a claimant may file suit before the plan administrator reaches a decision.

In Torres v. Pittston Co., 346 F. 3d 1324 (11th Cir. 2003), the Eleventh Circuit addressed Torres’

argument that the insurer’s “deemed denial” by failure to act should be reviewed de novo without
deference. Torres argued that “[b]ecause such a denial by operation of law necessarily entails no
exercise of administrative judgment or discretion, . . . no deference is due to the Plan
Administrator.”
 Id. at 1332. The Eleventh Circuit explained that “[s]ome courts have held that, as
Torres argues, a deemed denial receives no deference upon judicial review, since the plan
administrator did not in fact exercise any discretion”
 and that other courts “have held that the fact
that the denial occurs by operation of ERISA regulations does not alter the otherwise-applicable
standard of review”. Id. at 1333. (underlining added) Ultimately, the Eleventh Circuit remanded
Torres’
 action for the district court to address this argument as well as other issues.

Later, in White v. Coca Cola, 542 F. 3d 848 (11th Cir. 2008), the Eleventh Circuit
explained as follows:

In Torres, we addressed whether a “deemed denial”
 of benefits under a plan
receives less deference on judicial review than does a denial that does not occur
by operation of ERISA regulations. We explained that the Labor Department “has
taken the position that”
 failure to comply with minimum procedural safeguards
permits courts to review the decisions of an administrator without deference. Id. at
n. 11. We declined to adopt that broad position. We instead recognized that some
38

courts review deemed denials de novo because they are not the result of plan
administrators' discretion, and other courts “have held that the fact that the denial
occurs by operation of ERISA regulations does not alter the otherwise-applicable
standard of review.”
 Id. at 1332–33. As the district court observed correctly, this
division of authorities was limited to administrative failures to exercise
discretion. This appeal does not involve an administrative failure to exercise
discretion, and Torres does not, in any event, require us to alter our standard of
review.

White, 542 F. 3d at 855-856 (italics added).

The trigger for application of the “pure de novo review”
 appears to be the absence of a
decision by the plan administrator. As in White, this action
 “does not involve an administrative
failure to exercise discretion”. Id. Although LINA’s decision was 17 days beyond the 45-day
period set forth in 29 C.F.R. §
 2560.503-1(i), it issued a decision on the merits of the remand
claim and Plaintiff filed her amended complaint after the decision was made.

Additionally, as Defendants argue, the delay of 17 days was not a substantial violation of
the regulations, was not a serious procedural irregularity sufficient to trigger the de novo review,
and was not due to bad faith or negligence. Defendants point out that additional time was needed
to obtain the two independent medical reviews and for post-remand communications between
LINA and its counsel. Accordingly, the Court finds that the “pure de novo standard of review”
 is
not applicable.

In the order of remand, the Eleventh Circuit recognized that LINA has discretionary
authority and explained that “[w]hen reviewing a claim administrator’s denial of benefits under
an ERISA plan, courts first determine de novo whether the administrator’s decision was correct,
based on the evidence the administrator had at the time.”
 (Doc. 172, n.11) Importantly, the
Eleventh Circuit explained that “[t]he District Court here concluded, under Williams’s first step,
39

that LINA’s decision was correct based on LINA’s administrative record at the time it denied
Melech’s claim”
 which “did not contain the SSA file[.]”
 (Id. at p. 19). Now, “[b]ecause LINA’s
decision to deny benefits here was based on administrative record that did not contain
information from Melech’s SSA file”
 the action has been remanded to LINA “to decide Melech’s
claim with the full benefit of the results generated by the SSA process that it helped to set in
motion”
 (id. at p. 26-27). LINA has now issued a decision after review of the SSA file.
Consequently, the Court will again begin its review at the first step and determine whether the
decision was de novo wrong.

B. Analysis

As an initial consideration, Plaintiff did not respond to Defendant’s argument that her
mental health records, from the original administrative record and the record on remand, did not
support a finding that Plaintiff was unable to work from May 2007 through November 2007.
(Doc. 198, p. 20-22) Plaintiff states that “psychiatric issues were never part of”
 her claim for
disability benefits. (Doc. 209, p. 14, n.8) The Court finds that Plaintiff has conceded any claim
for disability benefits based on any mental functional limitations. Therefore, a determination of
whether LINA’s decision was de novo wrong, will be made without consideration of her mental
health records, Dr. Goldman’s peer review, or the Mental Residual Functional Capacity
Assessment.

1. Step One of the framework

On motion for summary judgment, Defendants assert that LINA’s decision on remand is
de novo correct. Defendants argue that the treatment records from Dr. Dyas, the examination
report by Dr. Bass, the Physical Residual Functional Capacity Assessment by Ms. Lassiter, and

40

the peer review opinion by Dr. Mitchell do not support a finding that Plaintiff was precluded
from light work. Therefore, Defendants contend that Plaintiff could perform her regular
occupation during the 26-week elimination period. Defendants point out that this conclusion is
supported by Plaintiff’s statement of her activities of daily living, the absence of document
neurologic deficits or positive testing, and the absence of evidence of worsening of Plaintiff’s
condition.
 (Doc. 215, p. 9)

Plaintiff responds that Dr. Mitchell’s report confirms she is unable to meet the physical
demands of her “Regular Occupation.”
  Plaintiff points out that Plaintiff's work as Location
Manager required 3 hours of bending and twisting per day and that Dr. Mitchell confirmed that
from June 7, 2007 onward, she “required medically necessary work activity restrictions of no
repetitive bending and twisting.”
 (Doc. 209, p. 17) Plaintiff argues that LINA should not have
relied on the DOT description of Service Manager. Rather, LINA should have relied on Hertz'
work description, which precludes Plaintiff from her occupation.

The Policy defines “Regular Occupation”
 as “[t]he occupation the Employee routinely
performs at the time the Disability begins.”
 (Doc. 112-2, p. 136) The Policy also states that “[i]n
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.”
 (Id.)

In determining whether Plaintiff could perform her “Regular Occupation”, LINA obtained
an occupational analysis based upon the DOT occupation of Service Manager and the restrictions
and limitations in Dr. Mitchell’s report. (Doc. 197-2, p. 16-18). The Vocational Rehabilitation
Counselor noted that she was requested to “provide comment as to whether the level of function
41

indicated would be consistent with the customer’s own light occupation.”
 (Id., p. 16) The VRC
found as follows:

Per Peer Review by Dr. Mitchell, Ms. Melech required medically necessary work
activity restrictions of no repetitive bending and twisting of the cervical spine as
well as alternate neck positions as needed such as every 30 minutes. A maximum
weight restriction of 20 lbs occasionally, 10 lbs frequently and negligible amount
constantly is appropriate.

. . .

Customers weight restriction of 20 lbs occasionally and 10 lbs frequently along
with no repetitive bending and twisting of the cervical spine is consistent with the
physical demands of her light occupation as a Service Manager.

(Doc. 197-2, p. 16-17)
“[W]hen the court makes its own determination of whether the administrator was ‘wrong’
to deny benefits under the first step of the Williams analysis, the court applies the terms of the
policy ” Ruple v. Hartford Life and Acc. Ins. Co., 340 Fed. Appx. 604, 611 (11th Cir. 2009);
citing 29 U.S.C. § 1104(a)(1)(D) and Oliver v. Coca–Cola Co., 497 F.3d 1181, 1195 (11th Cir.
2007). The terms of the Policy require that LINA consider whether Plaintiff could perform the
duties of her Regular Occupation as “it is normally performed in the general labor market in the
national economy.” (Doc. 112-2, p. 136) LINA complied with this policy directive by way of
Dr. Mitchell’s Peer Review and the Vocational Assessment based upon his Peer Review. The
Court finds that LINA’s decision to follow the terms of the Policy, as opposed to looking to how
Plaintiff submits her job was performed, does not render its decision de novo wrong.
Plaintiff next argues that the “unanimous” opinions of Dr. Engerson and Dr. Dyas are
prima facie evidence that she is disabled, and create an issue of fact that would preclude
summary judgment for Defendants. Specifically, Plaintiff asserts that Dr. Engerson agreed with
Dr. Dyas’ opinion that Plaintiff was disabled and could not return to her work.

42

This argument is erroneous in that Dr. Engerson did not agree that Plaintiff was disabled.
On May 10, 2007, Dr. Dyas’ treatment plan, in addition to medication, was to “take [Plaintiff]
off work 2 weeks [and] put her on PT”. (Doc. 112-2, p. 339) Dr. Dyas recorded his opinion that
50 hours per week on the computer was “too much”. (Id.) But, he did not state that Plaintiff was
disabled and could never return to work. The next week, on May 18, 2007, when Dr. Engerson
wrote “I agree with Dr. Dyas’ treatment”, all that he agreed with was for Plaintiff to be off work
for two weeks and have physical therapy. (Doc. 112-2, p. 237) A week later, when Dr. Dyas saw
Plaintiff on Thursday, 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) From this an implication arises that Dr. Dyas kept Plaintiff off work until
“next Tuesday”, which was May 28, 2007. Then on June 7, 2007, Dr. Dyas wrote as follows:
To Whom it May Concern
The above captioned patient is under my care. She is permanently and totally
disabled. She cannot return to her present job. . . .
(Doc. 112-2, p. 340) Thus, Dr. Engerson never agreed that Plaintiff was permanently and totally
disabled and could not return to her work. Their opinions are not unanimous and consequently,
do not create the prima facie evidence of disability as Plaintiff argues. Moreover, as noted by
LINA, Dr. Dyas’ opinion is devoid of any supporting documentation.
Plaintiff next argues that LINA failed to give the SSA decision the meaningful
consideration it requires. She argues that the SSA’s review is broader and therefore more
complete and at a minimum, shows that she is arguably disabled under a de novo standard.
Plaintiff also argues that LINA cannot “disregard the vocational aspect” of the decision and that

43

the favorable SSA decision defeats summary judgment because “the inference that decision
creates must be respected.” (Doc. 209, p. 23-24)
Plaintiff’s argument is without merit. LINA did not “disregard the vocational aspect” of
the SSA decision. Instead, LINA’s denial letter on remand set out the results of Dr. Bass’s
examination and stated that medical documentation provided in the SSA file was sent to Dr.
Mitchell for Peer Review. In summarizing the results of his review, LINA stated that Dr.
Mitchell’s restrictions were “consistent with” the Physical Residual Functional Capacity
Assessment from the SSA. (Doc. 197-2, p. 84-85). LINA concluded
We found that the medical information on file and Social Security
Administration file did not reveal any significant evidence of functional loss …
which would preclude your client from performing her regular occupation. . . .
Lastly, we considered that your client was awarded Social Security Disability
benefits; however, the standard for determining Disability under the Social
Security Administration (SSA) may differ from the provisions under this Policy.
Disability under the Social Security Administration’s internal administrative
standards such as deference to the treating providers or advanced age may reduce
the standard of proof required to grant Disability. As outline above the
information on file does not support impairment from your client’s regular
occupation.
(Doc. 197-2, p. 85-86)
Moreover, “[t]he approval of disability benefits by the Social Security Administration is
not considered dispositive on the issue of whether a claimant satisfies the requirement for
disability under an ERISA-covered plan.” Glenn v. American United Life Ins. Co., 604 Fed.
Appx. 893, 896 n.3 (11th Cir. 2015) (noting that the “decision to affirm the denial of long-term
disability benefits and the Social Security Administration’s grant of disability benefits are not
necessarily at odds.”) (quoting Whatley v. CNA Ins. Cos., 189 F.3d 1310, 1314 n. 8 (11th
Cir.1999); Ray v. Sun Life & Health Ins. Co., 443 Fed. Appx. 529, 533 (11th Cir. 2011) (awards

44

of Social Security benefits may be considered but are not conclusive as to whether a claimant is
disabled under an ERISA plan).
Plaintiff also argues that there is no evidence of significant improvement of her physical
capacities after June 6, 2007 (the end of the time period that Dr. Mitchell found Plaintiff was
unable to perform her Regular Occupation). In reply, Defendants argue that the burden does not
shift to Defendants, but rather remains on Plaintiff to prove her eligibility and continuing
disability and that Plaintiff has failed to sustain her burden.
In Ruple v. Hartford Life and Accident Ins. Co., the Eleventh Circuit found that where the
claimant has produced “ample evidence” of disability and there was “scant evidence in the
administrative record supporting the administrator’s finding that the claimant was not disabled”,
the burden may shift to the plan administrator to show plaintiff’s disability has ended. 340 Fed.
Appx. 604, 612-613 (11th Cir. 2009) (discussing Levinson v. Reliance Standard Life Ins. Co.,
245 F.3d 1321 (11th Cir. 2001)). But where “the evidence was not so one-sided or conclusive in
favor of a finding that [the claimant] was disabled so as to shift the burden to” to the plan, the
burden would not shift. Id. at 613. Additionally, in Ruple, the Eleventh Circuit found that the
policy required the claimant to “produce evidence of an ongoing disability.” Id.
The same is true here. In relevant part, the Policy states as follows:
The Insurance Company will pay Disability Benefits if an Employee becomes
Disabled while covered under this 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, Policy)
The Court finds that the evidence is not so “one-sided or conclusive” in favor of Plaintiff
whereas to shift the burden to Defendants. The opinions of Dr. Engerson, Dr. Miller, and Dr.

45

Bass, who examined Plaintiff, her reports of daily activities found in the psychiatric reports from
AltaPointe,11 Plaintiff’s responses to the “Disability Questionnaire & Activities of Daily
Living”,12 and the Peer Review opinion by Dr. Mitchell, are more than “scant evidence” to
support LINA’s decision.
The Court has reviewed Plaintiff’s medical evidence, as well as the new evidence from
Plaintiff’s SSA record including Dr. Bass’
 examination report and the Physical Residual
Functional Capacity Assessment, Dr. Mitchell’s Peer Review, and the VRC’s analysis, all as
summarized herein. The Court finds that LINA’s decision that Plaintiff was not precluded from
performing her Regular Occupation as defined in the Policy was not de novo wrong.
2. Step Three and Step Six of the framework

Assuming for purpose of summary judgment that the decision had been de novo wrong,
LINA was vested with discretion in reviewing Plaintiff’s claim. The Court finds that reasonable
grounds exist to support LINA’s decision; specifically, the grounds upon which the Court
decided that LINA’s decision was not de novo wrong. Therefore, the Court must determine
whether LINA operated under a conflict of interest. The Court finds that because LINA both
insured the Plan and made claims decisions, it operated under a structural conflict of interest.
11

In October 2008, the therapist noted Plaintiff “had a series of back problems related to
her job and finally went out on disability” and that “her level of pain is high and coupled with
insomnia feels exhausted all of the time.” (Id., p. 88-89) As to daily activities, Plaintiff reported
that she could care for herself. For recreational activities, she “spends time with boyfriend, adult
children and her dog, loves music, the beach and going fishing”. (Doc. 197-3, p. 89)

12
In November 2007, Plaintiff 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. 1122, p. 185) However, her medications were identified as Nexium once daily, Lortab as needed,
Soma as needed, Xanax at night, and Estrace once daily. She indicated her visits with Dr. Dyas
were on an “as needed” basis. (Doc. 112-2, p. 187) (underlines added).

46

(Steps Two through Five) Proceeding to Step Six, the conflict is a factor for the Court to
consider when determining whether LINA’s decision was arbitrary and capricious at Step Three.
Oliver, 2015 WL 4153628 at *3 (citing Blankenship, 644 F.3d at 1350 (“(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.”)
Defendants argue that the decision was not arbitrary and capricious because LINA had a
reasonable basis for its decision and that the SSA’s decision does not change that conclusion. 13
Defendants point out that SSA awards are not dispositive of disability under ERISA policies.
Defendants also point out that the SSA decision does not explain its findings or the basis and that
different standards were applied: Giving special weight to the opinion of a treating physician
when the Department of Labor has not promulgated a similar rule for ERISA claimants, and
treating age as a limiting factor.14 (Doc. 198, p. 22-27)
Plaintiff argues that the decision was arbitrary and capricious because of the financial or
structural conflict of interest and because of procedural abuses in the first claims decision and the

13

The Eleventh Circuit found that LINA’s failure to consider Plaintiff’s SSA application and
record was inconsistent with the requirement that a plan administrator’s decision “be based on a
complete administrative record that is the product of a fair-claim evaluation.” (Doc. 172, p. 26)
The Eleventh Circuit noted that it did not “imply that the SSA’s ultimate conclusion that Melech
was ‘disabled’ under the SSA standard creates a presumption that she is eligible for benefits
under the Policy.” (Id., n. 21)

14

After a determination of the residual physical capacities, the SSA may apply the MedicalVocational Guidelines or the “Grids”. 20 C.F.R. Pt. 404, Subpt. P. App. 2. For light exertional
work, Table No. 2 applies. Since Plaintiff was 57 at the time of her SSDI application - a person
of “Advanced Age” (age 55 to 59), a determination of disability could hinge upon whether the
SSA considered her “previous work experience” as “skilled or semiskilled” and whether those
skills were transferrable. Also, Plaintiff is a high school graduate. Her education level may be
considered as to whether her education would “provide for direct entry into skilled work”. 20
C.F.R. Pt. 404, Subpt. P. App. 2, Table No. 2.

47

decision on remand. Addressing the former first, Plaintiff relies upon the 2008 deposition
testimony of two LINA employees in an unrelated action in the District of Idaho that was
previously presented to the Court (docs. 87, 131, 134, and 135) and in Plaintiff’s Rule 56(d)
motion. (Doc. 207) 15 Plaintiff argues that one deponent testified that her employee performance
was “measured at least informally, based on how frequently she … met pre-set claim termination
goals” set by her supervisors. (Doc. 209, p. 35)
Plaintiff also relies upon an “index” of documents that “reveal the existence of additional
documents or information that LINA has knowingly withheld despite this Court’s discovery
directive” with counsel’s explanation as to how these documents suggest an “employee-level
conflict, or at least the potential” for this conflict. (Doc. 209, p. 36) Plaintiff also relies upon
numerous documents obtained in discovery or referenced in a disclosed document: “Three
documents” indicating a “percentage standard” against which LINA’s employees are measured,
one of which “refers to … a specific report used to measure the performance of” claims
managers that may reflect “the value of the claims the employee has been able to close, i.e.,
deny; a document that “discusses . . . the company's performance appraisal or evaluation
process” and notes that year-end reviews begin with employee self-assessments; an email that

15

Plaintiff states that consideration of summary judgment may be “premature unless and until
LINA finally produces the employee evaluations and other information that Melech has sought
in discovery.” (Doc. 209, p. 35) Plaintiff moved to stay consideration and the motion was
granted in order for the parties to conduct discovery. (Doc. 207, Doc. 219) The Court later set
May 19, 2015 as the deadline for Plaintiff to supplement her response to the motion for summary
judgment. (Doc. 244) On May 19, 2015, Plaintiff filed a supplement to her Rule 56(d) motion
to further delay consideration of summary judgment based upon continuing discovery disputes.
(Doc. 247) On June 17, 2015, the Magistrate Judge entered an order stating that no more
discovery was warranted and that the pending summary judgment motion could now be
considered. (Doc. 256) To date, Plaintiff has not supplemented her response to the motion for
summary judgment with any additional evidence regarding employee evaluations or other
information.

48

“identifies the existence of financial incentives for claims personnel and even identifies by name
the program which establishes their goals”; “several pages” of documents that reveal the
“existence of incentives for claims handlers meeting profitability goals, on of which is an email
referring to a “process for measuring employee performance for purposes of rewarding
employees who have contributed to the company’s pursuit of its profit-driven goals in increasing
shareholder value”; and an email that reveals the existence of an unattached “important
memorandum” which “discusses at length LINA’s linking of a manager’s performance . . . [to]
management incentive compensation programs.” (Doc. 209, p. 35-38).
Because LINA makes eligibility decisions and pays benefits, a structural conflict of
interest exists. Blankenship, 644 F.3d at 1355. However, Plaintiff still has the burden to prove
that LINA’s decision was arbitrary and capricious, and LINA does not have to prove that the
decision was not tainted by self-interest. Id. Structural conflicts of interest remain only one
factor in determining whether LINA abused its discretion. Id. The analysis focuses on whether a
reasonable basis existed for LINA’s decision. Id. Even where a conflict of interest exists,
deference must still be given to LINA’s
 “discretionary decision-making”. Id.

Plaintiff has not met her burden to establish that LINA’s structural conflict of interest
“had sufficient inherent or case-specific importance” to support a finding that the decision was
arbitrary and capricious. Blankenship, 644 F.3d at 1357. Alleging the existence of reports to
measure performance which may reflect the value of claims an employee has closed, company
performance appraisals or evaluations, financial incentives for meeting profitability goals,
rewarding employees who contributed to increasing shareholder value, and linking performance
to incentive programs, are not sufficient to show that the conflict influenced LINA’s claims
decision on remand. See Howard v. Hartford Life & Accident Ins. Co., 929 F. Supp. 2d 1264,

49

1301 (M.D. Fla. 2013 (“The financial conflicts of interest about which Howard complains, in the
form company profitability, [and] employee compensation and bonuses . . . are ‘an unremarkable
fact in today's marketplace.’”) (quoting Blankenship, 644 F.3d at 1356.) Additionally, deposition
testimony in an unrelated action is not sufficiently case-specific to support Plaintiff’s burden.
Howard, 929 F. Supp. 2d at 1300. (“Howard cites to extrinsic evidence in the form of deposition
testimony, . . . [and] the testimony of a former Hartford claims adjustor from Georgia who had
nothing to do with this case[.] … Not only does this constitute extrinsic evidence that was not
before the Administrator at the time of the decision, but it also is not case-specific evidence that
Hartford's . . . compensation structure in any way influenced Hartford's decision in this case.”)
More important, whether the decision-maker was influenced by financial concerns still does not
undermine the fact that the evidence simply does not support that Plaintiff was unable to perform
her Regular Occupation as performed in the national economy.
Plaintiff also argues that the numerous procedural abuses16 that occurred in the first
claims decision as well as the procedural abuses that occurred during the remand decision,

16

Plaintiff also argues that the procedural abuses that occurred before the remand, when
considered with the procedural abuses occurring during the remand decision, are evidence that
the Court should enter judgment for Plaintiff. (Doc. 209, p. 31-34) Plaintiff explains that
because the Eleventh Circuit’s remand pretermitted review of all other issues pending inclusion
of the SSA file in the ERISA record, these issues remain live. Plaintiff asks this Court to
reconsider its earlier decision on summary judgment as to these issues. Also, Plaintiff states that
she raises these issues to preserve them for appellate review. Defendants argue that these issues
should not be re-litigated because the sole issue before the Court is the correctness and
reasonableness of the decision on remand.
The issues Plaintiff identified are whether there was a conflict of interest from the beginning of
the claim’s process, whether LINA improperly allowed the same supervisor who decided
Plaintiff’s original claim to participate on appeal in violation of specific ERISA regulations, that
LINA failed to adequately set out its rationale as to how the medical evidence did not support
Plaintiff’s claim, that LINA’s termination letter did not describe with sufficient particularity the
additional material or information Plaintiff should submit to succeed on her claim and explain

50

precluded Plaintiff from a full and fair review of her clam as required by ERISA’s statutory
requirements, 29 U.S.C. 1133 and 29 C.F. R. 2560.503-1(a), and are evidence that LINA’s
conflict of interest influenced the decision. Plaintiff argues that where there are procedural
abuses, even a de novo correct decision or a de novo wrong decision (that is not arbitrary and
capricious) cannot stand and judgment should be entered for Plaintiff.
As to procedural abuses, Plaintiff argues that LINA failed to provide a full and fair
review on remand because it did not consider all the evidence reasonably available including the
original claim file, Plaintiff’s Declaration/affidavit from 2012, and “all other documents
exchanged with LINA’s lawyers throughout this case either in correspondence or in pleadings
over the Court’s ECF system” (doc. 209, p. 29).17 Defendants respond that the Eleventh
Circuit’s remand decision did not suggest that anything filed in the Court or any evidence that
was not before or available to LINA at the time of the decision should be considered on remand.
The Court finds Defendants’ response persuasive. Defendants correctly assert that the
remand decision required LINA to consider the evidence in the SSA file and the administrative
record from the original decision. Without submission of persuasive case law from the Eleventh
Circuit – Plaintiff relies upon a Sixth Circuit decision to argue that the plan administrator must
consider all pertinent information reasonably available - the Court declines to find that because a
document has been exchanged by counsel whether as correspondence or pleadings over the ECF
why that information was necessary, and that LINA’s employees failed to give meaningful
consideration to Plaintiff’s submissions during the original claims process. (Doc. 209, p. 31-33)
The Court declines Plaintiff’s invitation to reconsider its earlier decision.
17

Plaintiff argues that LINA did not provide her Declaration/affidavit to Dr. Mitchell who
evaluated her credibility as to her allegation of pain without “having met her or spoken with her”
or speaking to her doctors. (Doc. 209, p. 29)

51

system, it has become “available” to LINA such that it failed to provide a full and fair review by
not considering those documents.
Plaintiff also argues that LINA failed to provide Plaintiff with the opportunity to provide
written comments, or documents, etc., in response to the new evidence underlying her remand
claim denial – Dr. Mitchell’s Peer Review opinion. Plaintiff asserts that her claim was denied on
a new basis, that she was unable to perform her Regular Occupation from May to June 2007 but
did not meet the 26 week Elimination Period, instead of a denial based on lack of objective
evidence to support Dr. Dyas’ opinion of total disability as found in LINA’s original claim denial
decision. Plaintiff asserts that she should have been given an opportunity to respond before
LINA issued its claims decision.
Again, the Court finds Defendants’ response persuasive. Defendants distinguished the
case upon which Plaintiff relied, Gagliano v. Reliance Standard Life Ins. Co., 547 F. 3d 230 (4th
Cir. 2008), explaining that this is not a case where the decision on remand was based on a wholly
different rationale. Defendants explain that in Gagliano, the claim on remand was denied for the
first time on basis of a pre-existing condition, but here, the original claim and the remand claim
were denied on basis that Plaintiff could perform her Regular Occupation and was not disabled
under the terms of the Policy. Accordingly, the Court finds that there was no failure to provide
Plaintiff with a full and fair review on remand.
Moreover, Plaintiff has not met her burden to establish that LINA’s decision was tainted
by the conflict or by procedural abuses such that it was arbitrary and capricious. Id. at 1355
(“Where a conflict exists and a court must reach step six, ‘the burden remains on the plaintiff to
show the decision was arbitrary; it is not the defendant’s burden to prove its decision was not
tainted by self-interest.’”) With deference to LINA’s decision-making and consideration of

52

conflict of interest as a factor in deciding whether the decision was arbitrary and capricious, the
Court finds that LINA’s decision to deny benefits was reasonable based on the record before it,
and not arbitrary or capricious. See Echols v. Bellsouth Telecommunications, Inc., 385 Fed.
Appx. 959, 961 (11th Cir. 2010) (“[G]iven the eminent reasonableness of the decision, the lack
of evidence that any assumed conflict influenced the claims decision indicates that any assumed
conflict should be given little weight in judging whether the decision was an abuse of
discretion.”); Miller v. Prudential Ins. Co. of America, 625 F.Supp.2d 1256, 1266 (S.D. Fla.
2008) (“malice, self dealing, a parsimonious claims granting history, or other circumstances
[may suggest] a higher likelihood that the structural conflict affected the benefits decision.”)
V. Motion to strike
Defendants move to strike Plaintiff’s Exhibit 2, the Hertz Company Overview
downloaded from the Hertz website (doc. 210-2), Plaintiff’s Exhibit 7, her Declaration/affidavit
signed in 2012 and previously submitted in this action (doc. 144, doc. 210-7) and Plaintiff’s
Exhibit 8, the Targeted Market Conduct Examination Report (doc. 210-8), which are cited in the
Plaintiff’s response. (Doc. 216) Defendants argue that these Exhibits are outside the
administrative record and therefore, were not before LINA when making the claims decisions.18
Plaintiff responds that the Court may conduct a pure de novo review and consider these
exhibits because Defendant LINA did not make a decision within 45 days. This argument is
without merit. The Court has determined that the pure de novo standard of review is not
applicable. See supra p. 39. Generally, only evidence that was before plan administrator may be
considered when determining whether the decision was de novo wrong or arbitrary and

18

In the order granting summary judgment, the Court granted the motion to strike as to
Plaintiff’s Declaration/affidavit. (Doc. 162, n. 1)

53

capricious. Blankenship, 644 F. 3d 1350, 1354 (11th Cir. 2011) (“Review 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 decision. Whether the administrator's decision was either de
novo correct or reasonable under this Circuit's Williams framework is a question of law.“)
However, courts may consider evidence that was not before a plan administrator to ascertain
whether the financial or structural conflict of interest was a factor in the denial. Everson v.
Zurich American Ins. Co. 2015 WL 1708453, *3, n.3 (M.D. Fla. Apr. 15, 2015)
(finding that “courts have permitted discovery regarding a plan administrator's conflict of interest
and the effect it has on the benefits decision” but noting that the court was not addressing the
ultimate admissibility of the documents) (citing Howard v. Hartford Life & Accident Ins. Co.,
929 F.Supp.2d 1264, 1289 (M.D. Fla. 2013); Bloom v. Hartford Life & Accident Ins. Co.,, 917 F
.Supp.2d 1269, 1277 (S.D. Fla. 2013)). But, that evidence must show that the conflict is of
“inherent or case-specific importance.” Blankenship, 644 F. 3d at 1353.
As to the Overview, Plaintiff argues that it was submitted to show that because Hertz is
an “industry leader” which “can be credited with creating or defining the occupation in the first
instance”, and “uniquely positioned” to “know what the occupations in their various industries
entail”, LINA acted arbitrarily and capriciously by ignoring Hertz’s description of Plaintiff’s
occupation. (Doc. 220, p. 6) However, the Policy definition of “Regular Occupation” explains
that “[i]n 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) Regardless of “how big Hertz is” or its status as an “industry giant” (doc. 220, p. 7), it is

54

a “specific employer” and the Overview as evidence of Hertz’ size is not relevant to the issues
before the Court.
Plaintiff argues that the Declaration/affidavit should not be struck because it was actually
in LINA’s possession during the remand claim administration. Plaintiff asserts that all
documents exchanged by counsel during the litigation was available to LINA and can be
considered part of the remand administrative record. Plaintiff asserts that LINA had the
Declaration/affidavit before it on remand when it denied benefits, but Defendants “removed” it
when they “compiled” the claim file. Plaintiff alleges that the Declaration/affidavit was removed
from “the same document [doc. 144] that included” her SSA record, before LINA made its
claims determination on remand. (Doc. 220, p. 8, italics in original) Plaintiff cites to Defendant’s
evidentiary submission (doc. 197-2 and 3) and states that the “cover page for [her] affidavit is
included in the remand claim file, but her affidavit is not.” (Doc. 220, p. 8) 19
As to the removal of the Declaration/affidavit from the claim file, Defendants state that
when Plaintiff filed her SSA file with the Eleventh Circuit, the tab for Doc. 144, Exhibit 2,
included the cover page but not the Declaration/affidavit. (Doc. 237, p. 5, n.4; Doc. 215, p. 1415) Defendants state that this “part of the record was transmitted as the SSA file for LINA’s
remand review” and that Plaintiff incorrectly asserts that LINA personnel received the
Declaration/affidavit. (Id.) In other words, Defendants assert that the Declaration/affidavit was
not received by LINA.
19

Apparently, the document that Plaintiff refers to as the “document” that included her SSA
record and her Declaration was the “Submission of Additional Evidence in Support of Plaintiff’s
Opposition to Defendants’ Motion for Summary Judgment.” (Doc. 197-2, p. 211) The additional
evidence identified was the SSA file (Exhibit 2) and Declaration (Exhibit 3). As Plaintiff states,
the cover sheet for Exhibit 3 is in the record, but the Declaration is not. (Doc. 197-3, p. 73) This
same Submission is found at Doc. 144, in this Court’s docket. The Declaration/affidavit is
attached to Doc. 144.

55

Although a question exists as to whether the Declaration/affidavit was in the remand
administrative record when LINA made its decision, the Eleventh Circuit remanded the action
for LINA to consider “the evidence presented to the SSA” and that all it required of “LINA is to
decide Melech’s claim with the full benefit of the results generated by the SSA process that it
helped set in motion.” (Doc. 172, p. 4, 27) The Court is unable to find any indication that the
Declaration/affidavit that Plaintiff signed in July 2012 was part of her SSA record.
Moreover, Plaintiff argues in response to the motion for summary judgment that Dr.
Mitchell did not consider the Declaration/affidavit when making his Peer Review opinion. That
may be true, but as Plaintiff also points out, her Declaration/affidavit is “consistent with the
questionnaire responses she completed time and again during the administration of this claim.”
(Doc. 209, p. 20) Her statements regarding pain are found in reports from AltaPointe20
 and in
the November 6, 2007 Disability Questionnaire21 for the SSA. These documents, made
contemporaneously with Plaintiff’s application for SSDI and her application for benefits with
LINA, are arguably more relevant and reliable than the Declaration/affidavit made in 2012.
Further, Dr. Mitchell referenced the Disability Questionnaire and the October 1, 2008 report
from AltaPointe in his opinion. (Doc. 197-2, p. 167-168)
As to the Targeted Market Conduct Examination Report, Plaintiff argues that it should
not be struck because it is evidence of a history of biased claims practices, hence a conflict of

20

In October 2008, the therapist noted Plaintiff “had a series of back problems related to
her job and finally went out on disability” and that “her level of pain is high and coupled with
insomnia feels exhausted all of the time.” (Id., p. 88-89)

21
In November 2007, Plaintiff 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. 1122, p. 185)

56

interest. (Doc. 220) Defendants argue that the Market Report, which was part of a Regulatory
Settlement Agreement was not included in the administrative record and should be struck. (Doc.
216) However, as previously explained, evidence used to attempt to establish a conflict of
interest may be considered by the Court. But, in this case, the Plaintiff has dumped a 50-page
Report, which was referenced in one sentence in her response. 22 Plaintiff failed to cite to the
specific sections of the Report that support her argument that LINA committed procedural
abuses during the initial and remand claims determination. The Court will not search the Report
to determine which section may support Plaintiff’s position. See Sharpe v. Global Sec. Int'l, 766
F.Supp.2d 1272, 1282 n.9 (S.D. Ala. 2011) (on summary judgment, “the Court ... will not
independently examine uncited portions of the record in search of support for a particular
proposition”). Therefore, Defendants’ motion to strike is granted.
VI. Conclusion
Upon consideration, and for the reasons set forth herein, Defendants’ motion for
summary judgment is granted and Defendants’ motion to strike is granted.
Final judgment shall be entered by separate document as required in Rule 58 of the
Federal Rules of Civil Procedure.
DONE and ORDERED this the 10th day of August 2015.

s/ Kristi K. DuBose

KRISTI K. DuBOSE

STATES DISTRICT JUDGE

22

“In fact, these same abuses are among those addressed recently by numerous state departments of
insurance, showing that LINA has a history of biased claimed administration. See Appendix, Exhibit
8 (Market Conduct Examination Report).” (Doc. 209, p. 38)

57