Smith v. Mutual of Omaha Insurance Company

Filing 27

ORDER ADOPTING REPORT AND RECOMMENDATION 24 . It is ordered granting (Doc. 17 ) Mutual of Omaha's Motion for Decision on the Administrative Record; and denying (Doc. 18 ) Ms. Smith's Motion for Summary Judgment. It is further ORDERED that the Clerk of the Court enter judgment in favor of Defendant Mutual of Omaha and close this case. Signed by Chief Judge Raner C Collins on 8/4/14. (KAH)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Laurie Smith,

10

No. CV-13-00405-TUC-RCC
Plaintiff,

11

v.

12

ORDER

Mutual of Omaha Insurance Company,

13

Defendant.

14
15

Before the Court are Mutual of Omaha’s Motion for Decision on the

16

Administrative Order (Doc. 17), Ms. Smith’s Motion for Summary Judgment (Doc. 18),

17

and Magistrate Judge Rateau’s Report and Recommendation on these two motions (Doc.

18

24).

19

documents and conducted a de novo of the underlying facts in this case. The Court is

20

prepared to adopt Magistrate Judge Rateau’s Report and Recommendation and hereby

21

incorporates Doc. 24 by reference.

22

Ms. Smith’s Objections to Magistrate Judge Rateau’s Report and Recommendation

23

Ms. Smith contends that Magistrate Judge Rateau’s Report and Recommendation

24

reaches findings which are not supported by the record due in part to mistakes of fact and

25

conclusions based on an evaluation of the record. (Doc. 25). Specifically, Ms. Smith

26

contends that 1) Judge Rateau’s findings that there were no tests conducted after January

27

2012 is incorrect, 2) Dr. Sullivan’s and not Dr. Scherer’s opinions as to Ms. Smith’s

28

disability should be controlling, and 3) the Administrator’s Review was Thorough but

The Court has reviewed all of the responses, replies and objections to these

1

Incorrect, to the effect that the Magistrate’s Report has multiple errors and the Court

2

should instead find in favor of Ms. Smith.

3

Ms. Smith Was Not Entitled to Short-Term Disability Benefits After March 26, 2012

4

Upon the Court’s de novo review of all relevant pleadings and the 282 page

5

administrative record submitted, the Court finds that Ms. Smith was not entitled to short-

6

term disability benefits after March 26, 2012.

7

Magistrate Judge Rateau carefully outlined and addressed all of Ms. Smith’s

8

concerns and contentions in her Report and Recommendation. As the Court now sees it,

9

this case essentially boils down to Dr. Scherer’s and Dr. Sullivan’s competing opinions

10

on whether Ms. Smith was disabled or could perform her job duties with modifications.

11

As Magistrate Judge Rateau correctly found, Dr. Scherer’s opinion could be afforded

12

controlling weight in determining that Ms. Smith was not disabled during the relevant

13

time period.

14

Ms. Smith’s arguments to the contrary are not persuasive. First, while there are

15

records of Ms. Smith’s abnormal CPK levels conducted after January 2012, this fact

16

alone does nothing to undermine Dr. Scherer’s explanation that “[e]levated CPK/aldolase

17

in themselves are not a diagnostic of any specific disorder, and although it can be seen in

18

a variety of neuromuscular conditions, it can also be a normal result of muscle trauma

19

and exercise,” or, more importantly, Dr. Scherer’s observations that Ms. Smith “moved

20

about with ease, and did not have any difficulty walking, standing up from the chair,

21

climbing or moving around on the exam table” and “did not appear to be in any kind of

22

distress.”

23

Similarly, Ms. Smith’s arguments that Dr. Sullivan’s opinions should be

24

controlling instead of Dr. Scherer’s are not persuasive. The Court here agrees with

25

Magistrate Judge Rateu’s finding that while Ms. Smith’s contention that Dr. Scherer’s

26

opinions as to Ms. Smith’s veracity are in part due to animosity is reasonable, Dr.

27

Scherer’s objective records of Ms. Smith’s ability to move during her examination are

28

also reasonable. As to Ms. Smith’s contention that Dr. Sullivan’s opinion should be

-2-

1

afforded controlling weight because it is backed by Ms. Smith’s irregular lab results, the

2

Court finds this argument unpersuasive because Dr. Scherer’s report also acknowledges

3

and explains these irregular lab results to reach a different conclusion.

4

Finally, Ms. Smith’s arguments that the administrator’s review was incorrect

5

because it did not afford sufficient weight to Dr. Sullivan’s opinions that Ms. Smith was

6

at risk for kidney failure if she were not careful due to her CPK and myoglobin levels is

7

unpersuasive because the administrator analyzed the record in total and evaluated the

8

conflicting opinions.

9

While there is no doubt Ms. Smith was in pain and had abnormal lab results, Ms.

10

Smith failed to meet her burden that she was disabled per the plan’s definition on the

11

relevant dates. Accordingly,

12

IT IS HEREBY ORDERED adopting Magistrate Judge Rateau’s Report and

13

Recommendation (Doc. 24); granting (Doc. 17) Mutual of Omaha’s Motion for Decision

14

on the Administrative Record; and denying (Doc. 18) Ms. Smith’s Motion for Summary

15

Judgment.

16
17
18

IT IS FURTHER ORDERED that the Clerk of the Court enter judgment in favor
of Defendant Mutual of Omaha and close this case.
Dated this 4th day of August, 2014.

19
20
21
22
23
24
25
26
27
28

-3-