Johnson v. Life Insurance Company of North America

Filing 68

ORDER AFFIRMING TERMINATION OF BENEFITS. ORDERED: 1. Plaintiff's Motion for Bench Trial on the Record 57 and the parties' Joint Motion for Determination 61 are GRANTED; 2.Johnson's Motion to Strike 66 is DENIED AS MOOT; 3 . Defendant's decision to terminate benefits is AFFIRMED; 4. The Clerk shall enter final judgment in favor of Defendant and against Plaintiff; and 5. The parties shall bear their own attorney's fees and costs, by Judge William J. Martinez on 3/28/2017. (dhans, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 15-cv-0699-WJM-MEH
JULIE JOHNSON,
Plaintiff,
v.
LIFE INSURANCE COMPANY OF NORTH AMERICA,
Defendant.

ORDER AFFIRMING TERMINATION OF BENEFITS

In this case brought pursuant to 29 U.S.C. § 1132(a) of the Employee
Retirement Income Security Act of 1974 (“ERISA”), Plaintiff Julie Johnson (“Johnson”)
challenges the decision of Defendant Life Insurance Company of North America
(“LINA”) to terminate her long-term disability insurance benefits. (ECF No. 1.) Currently
before the Court is Johnson’s Motion for Bench Trial on the Record (ECF No. 51) and
the parties’ Joint Motion for Determination (ECF No. 61). Both motions seek the same
thing: administrative review of LINA’s decision. For the reasons explained below, the
Court finds that LINA’s choice to terminate Johnson’s disability benefits was not
arbitrary or capricious, and its decision is therefore affirmed.
Also before the Court is Plaintiff’s Motion to Strike. (ECF No. 66.) The Court
denies this motion as moot.

I. BACKGROUND
A.

The Plan
On October 19, 2007, UBS Financial Services (“UBS”) hired Johnson as a “Vice

President Financial Advisor/Consultant” at a salary of $10,833.33 per month. (ECF No.
51 at 11–12, ¶¶ 4, 6.) 1 Johnson then became covered under the UBS Long-Term
Disability Plan (“Plan”). (Id. ¶¶ 1, 5.) That Plan provides long-term disability benefits in
two phases. The first phase defines disability as follows: “if, because of Injury or
Sickness, you are unable to perform all the material duties of your regular occupation,
and solely due to Injury or Sickness, you are unable to earn more than 80% of your
Indexed Covered Earnings.” (Administrative Record (“R.”) (ECF Nos. 17, 29, 37) at
3178 (emphasis added).) The second phase applies after benefits under the first
phase have been paid for 24 months, and tightens the definition of disability by
requiring more than just inability to perform the individual’s regular occupation: “if your
Injury or Sickness makes you unable to perform all the material duties of any
occupation for which you may reasonably become qualified based on education,
training or experience, and solely due to Injury or Sickness, you are unable to earn
more than 80% of your Indexed Covered Earnings.” (Id. (emphasis added).)
Defendant LINA administers claims under the Plan. (ECF No. 51 at 11, ¶ 3.)
LINA also pays any approved benefits. (Id.)

1

All ECF page citations are to the page number in the ECF header, which does not
always match the document’s internal pagination, particularly in documents with prefatory
material such as a table of contents.

2

B.

Short-Term Disability Claim
Johnson applied for short-term disability benefits (not the same as the “regular

occupation” long-term benefits discussed above) on October 6, 2010. (R. at 341.) For
some time prior to this date, Johnson had been struggling with various medical
conditions largely flowing from dysautonomia, a disease in which the autonomic
nervous system fails to function properly. Dysautonomia manifested itself in Johnson
primarily through an erratic heart rate and unpredictable drops in blood pressure, w hich
in turn could lead to syncope (fainting due to insufficient blood flow to the brain),
headaches, slow thinking, severe fatigue, impaired speech, and inability to cope well
with stress. (ECF No. 51 at 13–14, ¶ 9.)
Many of Johnson’s treating physicians submitted their diagnoses to LINA. In
addition to the above-stated diseases and symptoms, these physicians also noted
bradycardia (abnormally slow heart activity), lack of coordination, dizziness, hand
tremors, postural tremors, fibromyalgia, and sleep disruption. (Id. at 14–18, ¶¶ 11–20.)
In December 2010, LINA awarded short-term disability benefits to Johnson, effective
through April 3, 2011 (the maximum length available for such benefits). (Id. at 18, ¶ 22.)
C.

“Regular Occupation” Long-Term Disability Claim
In February 2011, LINA “transitioned” Johnson’s short-term disability claim to a

review of entitlement to the first phase of long-term disability benefits, i.e., under the
“regular occupation” standard. (Id. at 18, ¶¶ 23–24.) In a disability questionnaire filled
out in March 2011, Johnson reported her “primary physical and/or mental condition
preventing [her] from working now” as follows: “Cognitive dysfunction, bad balance,

3

dizziness, headaches, black outs, fibromyalgia = pain, challenge in articulating
thoughts, especially under stress.” (R. at 983.)
That same month, Johnson’s neurologist, Dr. Maureen Leehey, submitted a
“Medical Request Form” to LINA. (R. at 977.) In the form’s box labeled “What is the
primary diagnosis?”, Dr. Leehey wrote, “dysautonomia[,] fibromyalgia[,] tremor.” (Id.) In
the form’s box labeled “What are the specific additional factors impacting return to work,
if any?”, Dr. Leehey wrote, “hand tremor limits ability to perform routine activities[,]
lightheadedness, sometimes severe headaches (daily, continuous)[,] severe fatigue[,]
poor sleep[,] cognitive dysfunction[,] gait impairment[,] inability to tolerate extended
standing.” (Id.) Dr. Leehey further wrote that the symptoms resulted from her primary
diagnoses “and prevent any sustained mental or physical activities.” (Id.)
In April 2011, LINA denied Johnson’s long-term disability claim, largely citing the
results of a neuropsychological evaluation LINA had ordered, which suggested that
Johnson could continue to perform her normal job with certain “assistive strategies.”
(R. at 612.) Johnson then invoked LINA’s internal appeals process and submitted
various additional letters from her treating physicians and from other medical
professionals. (ECF No. 51 at 20–22, ¶¶ 33, 35, 39, 40.) Johnson also challeng ed
LINA’s classification of her former employment as “office and clerical” with a specific job
description of the “brokerage clerk II.” (Id. at 21–24, ¶¶ 38, 41–45.) Johnson
considered her correct job title to be “financial consultant.” (Id. at 22, ¶ 42.)
As part of reviewing Johnson’s appeal, LINA sent Johnson’s medical file for
review to a third-party physician, Ira Weisberg, and a third-party psychologist, Monica
Lintott. Dr. Weisberg found insufficient objective evidence of Johnson’s disability, and
4

reported a conversation with Dr. Leehey in which Dr. Leehey expressed her view that
“there was a fair amount of somatization on [Johnson’s] part” (R. at 693), or in other
words, expressing psychological symptoms as physical symptoms. Dr. Lintott,
however, evaluated Johnson’s neuropsychological testing and agreed with Johnson’s
position that she had significant impairments preventing her from continuing as a
financial consultant in light of that profession’s high-responsibility, detail-oriented
nature. (Id. at 24, ¶¶ 46–47.) In December 2011, LINA reversed its previous denial
and approved Johnson’s long-term disability claim. (Id. ¶ 48.)
D.

Social Security Disability Award
In the midst of the foregoing, LINA required Johnson to apply for Social Security

Disability benefits, which, if awarded, would reduce LINA’s payment obligation dollar for
dollar. (Id. at 25, ¶ 49.) LINA paid for a third-party organization to represent Johnson in
that process, and the application was filed in March 2011. (Id. ¶ 50.)2 A Social Security
Disability Examiner physician determined (apparently based on a file review) that
Johnson’s severe, medically determinable impairments were recurrent arrhythmias,
fibromyalgia, disorders of the autonomic nervous system, discogenic and degenerative
disorders of the back, and organic brain syndrome. (Id. ¶ 51.) The examiner concluded
that Johnson could not sustain a 40-hour work week due to her impairments. (Id. ¶ 53.)
In June 2011, the Social Security Administration found Johnson disabled and awarded
her SSDI benefits. (Id. ¶ 54.)

2

Obviously, March 2011 precedes the December 2011 date on which LINA awarded
long-term disability benefits. No party explains why LINA was seeking to reduce its payment
obligation at a time when it believed it had no payment obligation.

5

E.

“Any Occupation” Long-Term Disability Review
In August 2012, LINA informed Johnson that the second phase of long-term

disability benefits would apply beginning in April 2013. (Id. at 26, ¶ 55.) In other words,
Johnson’s entitlement to benefits beginning in April 2013 would turn on whether she
was incapable of performing “any occupation for which [she] may reasonably become
qualified based on education, training or experience” that would pay her 80% of her
prior salary. (R. at 3178.) LINA informed Johnson that it had “begun a review to
determine if [Johnson would] remain eligible for benefits” under that standard. (R. at
586.) LINA noted that it would request “current information from both [Johnson] and
[her treating] physicians.” (Id.)
In truth, LINA had begun requesting updated information from Johnson the
previous month. Specifically, on July 16, 2012, LINA sent Johnson a form to fill out
titled “Disability Questionnaire & Activities of Daily Living.” (R. at 588–91.) Johnson
filled out and returned that form about a week later. (See R. at 2456.) The form begins
by stating, “In your own words, tell us why you cannot work in your own or in any
occupation.” To this, Johnson responded, “Need to nap every day, dizzy/syncope
often, chronic migraines, poor memory, hospitalization.” (R. at 2458.) In response to
the question, “What is [the] primary physical and/or mental condition preventing you
from working now?”, Johnson answered, “Migraines, syncope, poor mental acuity.” (Id.)
Johnson noted that she frequently needed to use the handrails in her home to go up
and down stairs, and that she had “oxygen to help.” (Id.) She also stated that she goes
for walks “3 days/week” but “not far” and only for “15–20 minutes with help.” (Id.)

6

LINA then obtained updated information from Johnson’s physicians. In August
2012, it received a Physical Ability Assessment (“PAA”) from Dr. Howard Weinberger,
Johnson’s cardiologist. (R. at 2452.) In the PAA, which is similar to a residual
functional capacity assessment in Social Security disability cases, Dr. Weinberger
diagnosed syncope, autonomic dysfunction, and migraine headaches. (Id.) He then
opined that Johnson could perform the following activities “Constantly” (greater than 5.5
hours per day): sit, reach, manipulate with both hands, grasp with both hands, see,
hear, and use lower extremities for foot controls. (Id. at 2452–53.) Dr. Weinberger
further opined that Johnson could perform the following activities “Occasionally” (from
zero to 2.5 hours per day): standing, walking, lifting up to twenty pounds, and carrying
up to twenty pounds. (Id.)
In September 2012, LINA received a response from Dr. Leehey, Johnson’s
neurologist, to a letter sent by LINA the month before asking for recent medical records.
(R. at 2189.) Dr. Leehey wrote in that response that Johnson “cannot do prolong ed
activity of any kind, including mental activity under pressure,” that she “needs frequent
rest periods [due to] fatigue,” and that “tremor causes dexterity problems, [she] needs
longer to do things.” (Id.) Dr. Leehey also returned a PAA on which she diagnosed
tremor, postural imbalance, migraines, concentration deficit, and episodic
lightheadedness. (R. at 2191.) Dr. Leehey opined that Johnson could sit only
“Occasionally” throughout the day, as compared to Dr. Weinberger’s “Constantly.” Dr.
Leehey also opined that Johnson could manipulate and grasp “Frequently” (2.5–5.5
hours per day), as compared to Dr. Weinberger’s “Constantly.” (Id.)
In October 2012, LINA received a response from Dr. Donald Rollins, Johnson’s
7

pulmonologist, to a letter sent by LINA asking for recent medical records. (R. at 2131.)
Dr. Rollins referred LINA to Dr. Weinberger with respect to Johnson’s “history of
autonomic dystonia and syncope, which is the reason for her disability.” (Id.)
Dr. Rollins then attached an August 2012 treatment note from Dr. Weinberger, which
stated, among other things, the following:
There has been some suspicion and some evidence of
possible autonomic dysfunction; however, recent evaluation
at [the] Mayo Clinic did not find definitive evidence for
autonomic failure or multisystem atrophy. The patient did
have one episode of syncope in 06/2012 associated with an
acute [gastrointestinal] illness, but otherwise has had no
other true syncope since 09/2011.
(R. at 2135.)
These somewhat conflicting reports from Johnson’s physicians apparently raised
LINA’s suspicions, because LINA next arranged for covert surveillance of Johnson from
October 18 through October 20, 2012. (R. at 2102.) The surveillance contractor
reported no activity on the first day. (R. at 2109.) The second day, however, was much
more eventful. In the mid-morning, Johnson exited her house and went on a 35-minute
walk around her neighborhood while pushing a baby stroller and walking two dogs.
(R. at 2110.) “She appeared to perform this activity in a fluid manner.” (Id.) In the late
morning, Johnson again left her house and drove approximately twenty miles to a
restaurant where “she sat, ate, and spoke to an unidentif ied female.” (R. at 2111.) She
again “appeared to perform this activity in a fluid manner.” (Id.) Johnson was then
observed going into a nearby movie theater with her lunch companion, and exiting
about ninety minutes later, yet again performing all of these activities “in a fluid
manner.” (R. at 2112.) She finally drove herself home in the mid-afternoon. (Id.)
8

On the morning of the third day of surveillance, Johnson was observed putting
gas in her car at a gas station “nearby” her home, then briefly visiting a tire store, and
then spending 84 minutes at a park approximately eight miles from her home, where
her children were playing a soccer game. (R. at 2114.) She then briefly went back to
the tire store, and finally returned home in the early afternoon. (R. at 2115.) All of this
was apparently done “in a fluid manner.” (R. at 2114.) The surveillance contractor
observed nothing else of interest that day.
LINA next arranged for an independent medical examination (“IME”). A thirdparty vendor scheduled that IME with John Bermundez, Ph.D., a psychologist. (R. at
2076, 2085.) Either shortly before or after the exam, which took place on December
17, 2012, Dr. Bermundez reviewed 720 pages of Johnson’s medical records. (R. at
2085, 2087.) At the exam itself, Johnson “had a wheeled oxygen tank in tow, and she
kept the can[n]ula [tube delivering oxygen to the nostrils] in place during the
examination and testing.” (R. at 2089.) Dr. Bermundez also noticed “a rather co[a]rse
tremor of the fingers of the right hand at the start of the examination,” but the tremor
“ceased with distraction and was absent for the remainder of the examination except for
one or two very brief moments” when Johnson “seemed to be gazing at her hand.” (Id.)
With respect to Johnson’s syncope, Johnson reported to Dr. Bermundez that her
symptoms were “due to orthostatic hypotension [sudden drop in blood pressure when
quickly standing up]” and were “manageable by not rising too quickly from a seated or
reclining position.” (Id.)
Dr. Bermundez administered numerous psychological tests over approximately
five hours. (Id.) In evaluating Johnson’s testing performance, Dr. Bermundez reported
9

strong indications of feigned symptoms that seemed to be
selectively focused to present her as afflicted with both
memory impairments and impaired ability to calculate and to
process symbols. This was demonstrated by her
extraordinar[ily] biased test responses, and by selectively
slower production on certain timed tasks, and spontaneous,
rapid responses in other contexts. Therefore, certain of her
test results are in my opinion invalid representations of true
weakness, if any, [and are] inconsistent with [Johnson’s]
described complaints and symptoms. Based on clinical
observation and analysis of her test abilities it is my
professional opinion that her concentration, memory and
attention are intact and unimpaired.
(R. at 2090–91.) Dr. Bermundez further reported that Johnson’s test scores “were so
unlikely that the results could statistically and reasonably only have been due to
deliberate selection of incorrect responses. . . . The possibility of malingering could not
be ruled out.” (R. at 2091.) Dr. Bermundez ultimately concluded that Johnson
possessed all of the “[t]emperaments and [a]ptitudes” necessary to perform well in a
high-responsibility, detail-oriented workplace. (R. at 2096.)
In January 2013, LINA sent Dr. Bermundez’s report to Michele Colella, an inhouse vocational rehabilitation counselor, for a “transferable skills analysis.” (R. at
2082.) Colella determined that the “brokerage clerk II” job title relied upon in Johnson’s
earlier “own occupation” proceedings was incorrect in light of Johnson’s self-reported
work history. (R. at 221; see also Part I.C, above.) Colella determined that “registered
representative” was the appropriate title. (R. at 221.) Applying that title, Colella
determined that Dr. Bermundez’s findings showed Johnson capable of continuing to
work as a registered representative, her “previous occupation.” (R. at 2082.) Thus,
there was at least one job Johnson could perform, according to Colella, who then
turned to the “any occupation” disability definition’s requirement that the job earn at
10

least 80% of Johnson’s prior salary. Colella calculated Johnson’s “indexed” monthly
earnings at $11,180 per month, meaning that a registered representative must normally
make $8,944 per month or LINA cannot consider it when determining Johnson’s
disability status. (Id.) Colella found, however, that registered representatives in the
Denver-Aurora metropolitan statistical area (which encompasses Johnson’s home) earn
$9,561 per month, or more than 80% of Johnson’s indexed monthly wage. (Id.) Thus,
according to Colella’s analysis, Johnson no longer qualified as disabled.
At the same time Colella was preparing her analysis, LINA was continuing to
review Johnson’s eligibility in other ways. On January 3, 2013, a LINA employee called
Johnson to find out whether the Social Security Administration had recently reevaluated
Johnson’s SSDI benefits. (R. at 231.) According to LINA’s report of the call, Johnson
responded that a reassessment took place “approximately 6 mo[nths] ago.” (Id.) The
next day, LINA called again “to clarify when [Johnson] had her testing and evaluation by
the SSA.” (R. at 230.) This time Johnson reported that she was “not sure when she
had the re-evaluation by SSA but she know[s] it was last year but not sure if it was in
the last 6 months.” (Id.) LINA therefore secured Johnson’s authorization to obtain her
file directly from the Social Security Administration. (R. at 560–61.) LINA obtained that
file in February 2013 and learned that all of the medical documents dated from 2010
and 2011 (R. at 222), or in other words, the Social Security Administration had not
recently evaluated Johnson’s disability status.
LINA’s final step before concluding its “any occupation” investigation was to send
Dr. Bermundez’s IME report to some of Johnson’s physicians, including Dr. Weinberger
(cardiologist), Dr. Rollins (pulmonologist), and Dr. Leehey (neurologist). (R. at 550–55.)
11

Each of these letters stated in relevant part,
We received the results of an Independent Medical
Evaluation (IME) conducted on December 17, 2012
regarding your patient, Julie Johnson. The [IME] report
concluded that your patient demonstrated an ability to
perform sedentary work . . . .
We are currently reviewing your patient’s claim [of] Long
Term Disability benefits. Please review and respond to the
attached [IME] report. . . . If the requested information is not
received by February 20, 2013, we will make a decision
based on the information we currently have on file.
Please indicate whether you agree or disagree with the
[IME] report enclosed. If you agree, please check the
appropriate box [below] and return this letter via fax. If you
disagree with this report, please provide [a] detailed
objective rationale and office records to support your
findings.
(See, e.g., R. at 550.)
Dr. Weinberger faxed a response on February 19, 2013. (R. at 2030–32.) He
checked the “No, I disagree” option but provided no support beyond a single sentence:
“Pacemaker has not resolved episodes of syncope.” (R. at 2031.)
No other physician responded by the February 20 deadline, in spite of LINA’s
efforts to ensure a response. In particular, LINA left voicemails for Dr. Leehey on
February 14 and February 15, seeking confirmation that Dr. Leehey had received the
February 13 fax and that she was aware of the February 20 deadline. (R. at 210.)
On February 20 itself, LINA asked one of its in-house physicians, Dr. Donald
Minteer, to review the documentation gathered to date regarding Johnson. (R. at
205–07.) Dr. Minteer’s major findings were as follows: (1) information from
Dr. Weinberger showed the ability to perform “a sedentary to light functional capacity”
12

job; (2) information from Dr. Rollins did not suggest that any pulmonary condition
contributed to Johnson’s alleged disability, and in particular, “[t]here is no
documentation on why she was using the oxygen [tank]”; (3) Dr. Bermundez’s IME
report “opines there probably is no true cognitive disorder”; (4) covert surveillance
showed Johnson “to be quite active” without the need for supplemental oxygen; and
(5) Dr. Leehey’s most recent treatment notes stated that Johnson’s symptoms were
“well controlled with present treatment,” and that “[t]he next exam [was] scheduled for
6 months [from her previous exam] which implies a stable status.” (R. at 206.)
Dr. Minteer therefore opined that “there are no current consistent objective clinical
exam, clinical testing[,] or imaging documentation to support a significant ongoing
physical or cognitive impairment which would preclude at least a sedentary[-]level
occupation.” (R. at 207.)
By letter dated February 21, 2013, LINA informed Johnson that she would not
qualify for “any occupation” disability benefits and therefore her benefits would end on
April 4, 2013. (R. at 497.) LINA’s letter summarized its investigation, with emphasis on
the covert surveillance, Dr. Bermundez’s report, and the lack of “consistent clinical
exams, clinical testing or imaging documentation to support a significant ongoing
physical or cognitive impairment which would preclude at least a sedentary[-]level
occupation.” (R. at 498–99.) The letter further announced LINA’s conclusion that
Johnson could work as a registered representative (what LINA had determined to be
Johnson’s prior occupation), and that such employment satisfied the earnings
requirement. (R. at 499.)

13

F.

Post-Termination Records Submitted & First Appeal
On February 22, 2013 (the day after LINA announced its decision), a nurse

practitioner under Dr. Leehey, Carol Hennessy, reviewed LINA’s February 13 letter and
checked the space for “No, I disagree [with Dr. Bermundez’s report].” (R. at 2007.) 3
Hennessy further explained,
There has been no change in the following symptoms that
limit Julie’s ability to work at even sedentary jobs. Her ability
to perform any level of activity for an extended time (eg an 8
hr day) is limited by fatigue, frequent lightheaded &
presyncopal episodes, and difficulty concentrating and
performing higher level cognitive functions under pressure,
all of which are due to or exacerbated by dysautonomia,
fibromyalgia, and other medical conditions. In addition[,]
severe incapacitating migraines continue to occur approx.
once a week despite Botox injections.
(Id.)
It is not clear precisely when Nurse Hennessy transmitted this to LINA. A
handwritten notation on the same document says “faxed 2-22-13” (id.), but it apparently
became part of a package that was actually faxed to LINA on March 5, 2013 (R. at
2004). That package included an additional communication from Nurse Hennessy,
3

This document contains a handwritten notation, “rec’d 2-21-13,” which Johnson
interprets to mean that LINA actually never sent the February 13 letter until February 21, thus
intentionally preventing Dr. Leehey’s office from timely responding by the already-elapsed
deadline of February 20. (ECF No. 51 at 29, ¶ 70; id. at 75.) However, Hennessy’s response
shows a facsimile transmission header stating that the document was originally received by
Dr. Leehey’s office on February 13, 2013 (R. at 2006), just as LINA claims. But, adding to the
confusion, someone from Dr. Leehey’s office called LINA on March 1, 2013, to request another
copy of the February 13 letter because the original was supposedly lost. (R. at 199.)
Nonetheless, given the facsimile header and the undisputed record evidence, discussed
previously, that LINA called Dr. Leehey’s office on February 14 and 15 to confirm receipt of the
February 13 letter and Dr. Leehey’s understanding of the response deadline, the Court finds
that LINA engaged in no subterfuge to obstruct Dr. Leehey’s response. The Court presumes
that “rec’d 2-21-13” refers to when Nurse Hennessy was first given a copy of the February 13
letter.

14

specifically, a February 28 letter that reads in relevant part as follows: “Dr[.] Leehey and
I are following Ms[.] Johnson for autonomic dysfunction. She reports more frequent
presyncopal episodes and reduced exercise tolerance. She suffered a seizure
yesterday following a syncopal episodes [sic]. . . . We continue to feel that Julie is
unable to work.” (R. at 2005.)
On March 6, 2013, Dr. Rollins (Johnson’s pulmonologist) transmitted to LINA a
February 28 “followup letter” to his September 2012 letter. (R. at 2002.) “Subsequent
to that [September 2012] letter,” Dr. Rollins wrote, “[Johnson] continues to have neuro
cognitive disabilities, syncopal spells, and yesterday was actually taken by ambulance
from her children’s school after a syncopal spell and seizure.” (Id.) Dr. Rollins further
stated, “it is my understanding that [Johnson] is disabled because of her random
episodes of syncope, cognitive dysfunction, [and] frequent episodes of dizziness, which
have . . . caused her to have numerous hospitalizations and ER evaluations as
recent[ly] as yesterday.” (R. at 2002–03.)
On March 25, 2013, LINA received from Johnson a handwritten letter stating,
“I want to Appeal my Long Term Disability denial. I will be sending in more information
from doctors as test results are evaluated.” (R. at 1692.) Apparently one of these tests
was a neuropsychological evaluation performed on April 9, 2013 by Abigail Ritchie,
Psy.D., a neuropsychology fellow at the University of Colorado School of Medicine.
(R. at 3045.) Dr. Ritchie performed this evaluation at Dr. Leehey’s request for “a
second opinion regarding [Johnson’s] cognitive functioning” in light of Dr. Bermundez’s
opinions. (R. at 3041.) Dr. Ritchie major impression after administering numerous tests
was as follows: “Unfortunately, symptom validity testing during the current evaluation
15

revealed a pattern of suboptimal effort on some cognitive testing. Consequently
cognitive test scores could not be reliably interpreted as a valid reflection of the
patient’s full cognitive abilities.” (R. at 3044.)
Dr. Ritchie’s findings and report were reviewed by Thomas Wodushek, Ph.D., a
neuropsychologist and assistant professor at the University of Colorado School of
Medicine. (R. at 3045.) Dr. Wodushek stated no disagreement with Dr. Ritchie, and
perhaps for this reason, subsequent documents in the record, and the parties
themselves, generally attribute Dr. Ritchie’s report to Dr. Wodushek. For consistency,
the Court will do the same.4
Around the same time, Johnson underwent further pulmonary testing with
Dr. Rollins, leading to a letter Dr. Rollins transmitted to LINA in mid-May 2013. (R. at
3024.) Dr. Rollins reported a recent “pulmonary exercise test” in which Johnson
“developed hypotension during the study, was unable to complete the study[,] and
clearly had cardiac limitation.” (Id.) Dr. Rollins opined that Johnson is “unable to work
at a full-time job or as a financial planner or consultant at this time . . . due to her
recurrent orthostatic hypotension and cognitive decline in the context of her autonomic
dysfunction, as discussed in detail in Dr[.] W einberger’s consultations.” (R. at 3025.)
Also in mid-May 2013, another neurologist, Dr. Katalin Pocsine, reported to LINA
her evaluation of Johnson after visits from Johnson in the previous two months. (R. at
2039.) Dr. Pocsine opined that Johnson suf fered from “bradycardia, orthostatic

4

It is not clear when or how LINA received Dr. Wodushek’s report, but it certainly did, as
evidenced by its presence in the administrative record and LINA’s consideration of it during
appeal proceedings, discussed below.

16

intolerance, irritable bowel syndrome, chronic fatigue, concentration difficulty, and
mixed headache disorder.” (Id.) Dr. Pocsine further opined that Johnson could not
return to her previous job or “any other job that requires concentration, [and] decision
making. She would not be able to handle [the] daily stress and pressure of an office
job. [¶] This patient [is] unable to stand or sit for prolonged period[s] of time. She needs
to take frequent naps. The patient still suffers from recurrent syncopes.” (Id.)
In June 2013, Dr. Weinberger wrote to LINA, stating that Johnson “continues to
have episodes of syncope and near syncope, which are unpredictable in nature and are
not controlled with her current pacemaker or with continued medication adjustment.
She also complains of significant cognitive impairment, concentration and memory
problems and inability to do simple calculations when previously she could do quite
complex mathematic calculations in her head.” (R. at 3028.)
In September 2013, Johnson formally appealed LINA’s termination of benefits,
submitting additional medical records, physician opinions, and argument regarding
LINA’s alleged errors in evaluating her claim. (ECF No. 51 at 33, ¶ 88.) LINA asked a
third-party vendor to review the relevant records. (Id. at 34, ¶ 91.) The vendor then
produced two “peer review reports,” one from a physician and the other from a
psychologist. (R. at 1666–83.)
The psychologist’s report, dated November 22, 2013, was authored by Kristin
Fiano, Ph.D., who specializes in clinical neuropsychology. (R. at 1683.) Dr. Fiano’s
report recounts a telephone conversation she had with Dr. Leehey on November 21,
2013. (R. at 1675–76.) In that conversation, Dr. Leehey stated that Johnson had last
been seen in July 2013 and “is still an active patient.” (R. at 1676.) Dr. Fiano
17

specifically asked Dr. Leehey about whether she “was aware of the validity issues
raised in [Dr. Bermundez’s IME report]. [Dr. Leehey] seemed unsure and looked up the
chart while we were on the phone.” (Id.) Dr. Fiano’s summary of the conversation
contains nothing about whether Dr. Leehey ever directly responded to the question.
Dr. Fiano also asked about Dr. Wodushek’s “second opinion,” obtained at Dr.
Leehey’s request, regarding Johnson’s cognitive functioning. (Id.) Dr. Fiano
emphasized that Dr. Wodushek, like Dr. Bermundez, “identified problems with test
validity.” (Id.) Dr. Fiano’s summary of the conversation again contains nothing about
whether Dr. Leehey ever directly responded to the question. However, Dr. Leehey
offered that Johnson’s central nervous system had become “extra sensitive” and,
consequently, Johnson “presents with ‘a little bit of this and little bit of that, and her
perception of this is overwhelming.’” (Id.) “Dr. Leehey acknowledged,” however, “that
what she is able to measure objectively is not that significant. Even so, Dr. Leehey said
she feels that [Johnson] ‘can’t do the job she did bef ore, but I can see we can’t
measure a lot of disability.’” (Id.) Dr. Leehey also stated that her prescribed work
restrictions were “related to fatigue[,] and said ‘the whole syndrome is the reason’
[Johnson] cannot work.” (Id.)
Dr. Fiano, for her own analysis, summarized Johnson’s extensive medical
records (R. at 1676–81) and ultimately opined that the record did not support any
disabling mental, cognitive, or behavioral impairment (R. at 1681–82). She concluded,
“Overall, [Johnson’s] self-report is not considered a reliable source of data, and
objective measures have shown less than optimal effort on testing.” (R. at 1682.)

18

The physician’s peer review report that LINA received as part of evaluating
Johnson’s appeal was dated December 2, 2013, and authored by Dr. Frank Polanco,
whose specialty is occupational medicine. (R. at 1673.) As he prepared his report,
Dr. Polanco spent four days attempting to contact Dr. Leehey by telephone, but he
never received a return call. (R. at 1667.) Dr. Polanco also attem pted to speak with
Drs. Rollins and Weinberger, but only managed to speak with “Cliff, the assistant for
both providers,” who stated that “no restrictions were placed on [Johnson]” by
Drs. Rollins and Weinberger. (Id.) “This,” said Cliff, “was left to the other treating
providers.” (Id.)
Following this account, Dr. Polanco, like Dr. Fiano, summarized Johnson’s
medical records going back to 2010. (R. at 1668–71.) Dr. Polanco f ound that
Johnson’s hypotensive incident during pulmonary testing, as reported to LINA by
Dr. Rollins in May 2013, supported certain functional limitations, specifically, only
occasional lifting and carrying of 20 pounds. (R. at 1671.) Dr. Polanco also
“recommended that [Johnson] not perform commercial driving (although she is noted to
be driving per the records), work around heavy machinery or at heights.” (Id.) But
Dr. Polanco opined that “[c]linical and neurological examinations reported are
essentially unremarkable with no clinical findings that would limit normal and routine
activities such as standing, walking, sitting, or use of upper and lower extremities.” (R.
at 1671–72.)
By letter dated December 13, 2013, LINA informed Johnson that it had affirmed
its prior decision to terminate benefits. (R. at 484.) LINA’s explanation summarized the
medical records and opinions received since it made its original decision, with emphasis
19

on Dr. Rollins’s report of the hypotensive incident during pulmonary testing, Dr.
Wodushek’s report, and the peer review reports from Dr. Fiano and Dr. Polanco
(particularly Dr. Fiano’s report of her conversation with Dr. Leehey). (R. at 485–87.)
Given LINA’s decision on appeal, LINA informed Johnson that she could
immediately file an ERISA lawsuit. (R. at 488.) LINA also stated, however, that
Johnson could file a second appeal, which LINA would consider if Johnson had
“different or additional information to submit.” (Id.)
G.

Second Appeal
In February 2014, Johnston announced her intent to f ile a second appeal, and

formally filed that appeal in May 2014. (ECF No. 51 at 36, ¶¶ 101–02.) T he formal
appeal included an April 2014 letter from Dr. Leehey regarding Dr. Fiano’s report of
their telephone conversation. Dr. Leehey stated that Dr. Fiano’s report
does not represent my medical opinion very well. I should
not have said that “we can’t measure a lot of disability”. I do
not measure disability; I measure signs. Ms. Johnson has
cognitive deficits, tremor, gait instability and an abnormal
drop in her blood pressure when going from lying to
standing. She reports a number of symptoms, e.g., fatigue,
that in conjunction with her neurological findings have led
me to diagnose her with central sensitivity syndrome. It is
these signs and symptoms in total that, in my opinion, would
result in disability.
(R. at 2574 (emphasis in original).)
Johnson’s second appeal also included a letter f rom Dr. Laur M. Birlea, a
neurologist who was treating Johnson specifically “for her chronic migraine[s].” (R. at
2596.) Dr. Birlea reported “frequent headaches [that] are worsened by and prevent her
from doing even routine activities during an episode.” (Id.) Given Johnson’s various
20

other diagnoses, “especially autonomic dysfunction, chronic fatigue syndrome, [and]
pulmonary and gastrointestinal chronic conditions, the treatment options for migraine
have been limited and she continues to suffer from disabling chronic migraine[s],
making her unable to work.” (Id.) Dr. Birlea also noted that The Lancet reported in
2012 that chronic migraine is “the 4th most common disabling condition in women.”
(Id.)
In addition, Johnson submitted a letter from another neurologist, Dr. Andreas
Michas-Martin. (R. at 2475.) Dr. Michas-Martin’s relationship to Johnson is unclear.
Like Drs. Leehey, Pocsine, and Birlea, he is a member of the University of Colorado
Hospital’s neurology department, but the parties have not pointed the Court to anything
in the record showing that he treated Johnson. In any event, apparently drawing on his
department’s treatment records going back to 2010, Dr. Michas-Martin stated that
Johnson “has multiple medical conditions that in sum are disabling and that, along with
cognitive difficulties, preclude her from working as a financial consultant or in any
comparable capacity.” (Id.)
By letter dated October 7, 2014, LINA again affirmed its decision to terminate
benefits. (R. at 476.) LINA found nothing in the second-appeal submissions that
changed its conclusion that Johnson suffers from no true disability. (R. at 477.)
Johnson then filed this lawsuit. (ECF No. 1.)
II. STANDARD OF REVIEW
ERISA governs employee benefit plans, including disability benefit plans.
29 U.S.C. §§ 1101 et seq. “When an individual covered by the plan makes a claim for

21

benefits, the administrator gathers evidence, including the evidentiary submissions of
the claimant, and determines under the plan’s terms whether or not to grant benefits. If
the administrator denies the claim, the claimant may bring suit to recover the benefits
due to him under the terms of his plan.” Jewell v. Life Ins. Co. of N. Am., 508 F.3d
1303, 1308 (10th Cir. 2007) (internal quotation marks omitted; alterations incorporated).
Federal courts have exclusive jurisdiction over such suits, as ERISA preempts most
relevant state laws. 29 U.S.C. § 1144(a).
Normally when the ERISA-governed plan at issue “gives the administrator or
fiduciary discretionary authority to determine eligibility for benefits or to construe the
terms of the plan,” the plan administrator’s denial of benefits is reviewed under an
arbitrary-and-capricious standard. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101,
115 (1989). The Plan at issue here reserves such discretionary authority to LINA. (R.
at 3203.) Johnson argues, however, that such a reservation is not permitted by
Colorado Revised Statute § 10-3-1116(2): “An insurance policy, insurance contract, or
plan that is issued in this state that offers health or disability benefits shall not contain a
provision purporting to reserve discretion to the insurer, plan administrator, or claim
administrator to interpret the terms of the policy, contract, or plan or to determine
eligibility for benefits.” If this statute nullifies the Plan’s reservation, then this Court’s
review of LINA’s decision would be de novo. See Firestone, 489 U.S. at 115.
In McClenahan v. Metropolitan Life Insurance Co., 621 F. Supp. 2d 1135 (D.
Colo. 2009), aff’d, 416 F. App’x 693 (10th Cir. 2011), the Hon. Robert E. Blackburn held
that § 10-3-1116(2) could not be applied retroactively to ERISA plans that came into
force before the statute’s effective date of August 6, 2008, at least when “all of the
22

events relevant to the [appeal to the district court], including the filing of the [appeal
itself],” also occurred before that date. Id. at 1142–43. In Hollingshead v. Stanley
Works Long Term Disability Plan, 2012 WL 959402 (D. Colo. Mar. 21, 2012), the
undersigned held that McClenahan’s reasoning applies equally well to ERISA claims
arising entirely after August 6, 2008, so long as the plan at issue came into force before
that date. Id. at *2.
The LINA Plan governing Johnson’s claim came into force on January 1, 2002.
(R. at 3166.) Thus, under Hollingshead and McClenahan, it would appear that § 10-31116(2) cannot apply and the Court’s review would be under the arbitrary-andcapricious standard. For the first time in her reply brief, however, Johnson argues that
the Plan renews itself annually—a circumstance never raised in Hollingshead—and
therefore application of § 10-3-1116(2) cannot be considered retroactive application.
(ECF No. 59 at 6–9 (citing R. at 3133, 3166 (establishing a “policy anniversary date”
every January 1)).)
Given the untimeliness of the argument, but also in light of its importance, the
Court solicited a surreply from LINA. (See ECF No. 65.)5 LINA does not contest that
the policy anniversary date equates to a renewal. LINA’s surreply instead counters with
Mustain-Wood v. Northwestern Mutual Life Insurance Co., 938 F. Supp. 2d 1081, 1085
(D. Colo. 2013), in which the Hon. Wiley Y. Daniel rejected an argument materially

5

LINA’s surreply contains a footnote stating that “New York law governs the Plan, not
Colorado law.” (Id. at 2 n.1.) This is the first mention by any party that Colorado law might not
govern here, and Johnson therefore moved to strike. (ECF No. 66.) However, LINA never
actually argues from New York law, even in the surreply. Thus, LINA has already forfeited the
argument on account of its untimeliness and its inadequate development, and Johnson’s motion
to strike will be denied as moot.

23

identical to Johnson’s:
If renewal of a policy automatically incorporates any and all
statutes affecting a policy which were not in effect at the
time of the policy’s issuance, then at the time of issuance,
neither party can reasonably be expected to know its
obligations under a policy that may or may not be
automatically altered at some future date based on the whim
of Colorado’s legislature. Parties should know and
understand their obligations under a policy at the time of
issuance. Therefore, I find that renewal of the policy does
not automatically render it susceptible to the terms and
conditions found in Colo. Rev. Stat. § 10-3-1116, and the
statute does not apply to the present action.
For the reasons explained below, the undersigned reluctantly agrees with
Mustain-Wood ’s ultimate conclusion, i.e., that § 10-3-1116(2) does not apply even to
policies that have been renewed following its enactment. However, with respect, the
undersigned disagrees with Mustain-Wood ’s reasoning.
In evaluating an argument similar to Johnson’s, but under Illinois law, the
undersigned noted that
[o]ne answer to [Mustain-Wood ’s reasoning] is that [the
insurer’s] contractual obligations remained settled up to the
first renewal of the insurance Policy, at which point [the
insurer] had ample notice of the . . . new requirements and
an opportunity to renegotiate Plan and/or Policy terms,
including by adjusting premiums. The fact it chose not to
alter any terms or raise rates confirms the untenable
potential for [the insurer’s] Plan/Policy to allow insurers to
indefinitely postpone compliance with new insurance
regulations.
Kaferly v. Metro. Life Ins. Co., 189 F. Supp. 3d 1085, 1095 (D. Colo. 2016). In Kaferly,
the undersigned ultimately did not need to adopt this reasoning as a holding because
federal courts in Illinois had already determined that an Illinois insurance regulation
(similar to § 10-3-1116(2)) applies to ERISA plans renewed after the statute’s effective
24

date. Id. at 1095. Nonetheless, the principle remains valid. If renewal has no legal
significance with respect to statutes enacted before renewal, new insurance laws may
never reach those they were intended to protect. Moreover, insurers are encouraged to
seek out every formalistic device by which they can continue administering a plan
without ever changing it in a way that might trigger application of the new laws.
Many years ago the Colorado Supreme Court adopted the view that a renewed
policy “is just as much a new contract as if issued on a form carrying a different number
than the original policy,” and a renewal policy is therefore “subject to the laws in force at
the time it is effected, and at least where there is no provision in the original policy for
its renewal.” Aronoff v. Carraher, 361 P.2d 354, 357 (Colo. 1961) (internal quotation
marks omitted). The last clause of this announcement—regarding whether the original
policy provides for renewal—is curious, and seems to take the Plan outside of the
General rule that renewals incorporate new enactments, given that the Plan indeed
provides for renewal every January 1. But the Court need not speculate on the
significance of the renewal provision under case law such as Aronoff because, as it
turns out, § 10-3-1116(2) is more or less alone among Colorado insurance laws in
failing to specify “renewal” as an event that could trigger the application of the new
statute.
Section 10-3-1116(2) was enacted via H.B. 08-1407. See 2008 Colo. Leg. Serv.
ch. 422 (West). Section 9 of that enactment announced an effective date of August 6,
2008. Section 9, however, stands in contrast to a large number of other Colorado
insurance enactments that specifically announce both their effective date and that the
new enactment would apply to insurance policies issued or renewed (and sometimes
25

reinstated) on or after that effective date. An interesting case study is found in
Colorado Revised Statutes § 10-16-113, which specifies procedures that health
insurers must follow when denying claims for benefits—a matter of obvious significance
under ERISA. One of § 10-16-113’s amending statutes provides, “This act shall take
effect July 1, 1999, and shall apply to health benefit policies and certificates newly
issued or renewed on or after said date.” 1999 Colo. Legis. Serv. ch. 111 , § 6 (S.B.
99-141) (West). There are dozens of similar provisions in the bills by which many other
insurance laws have entered the Colorado statute books. 6
These types of provisions are not limited to enacting bills, however. Many
statutes, as enacted, explicitly declare their applicability to renewal policies. A
particularly salient example is Colorado Revised Statute § 10-16-214(6). Just like
§ 10-3-1116(2), § 10-16-214(6) addresses what certain health-related policies “shall not
contain” (in the case of § 10-16-214(6), an exclusion for injuries sustained while under

6

See, e.g., 2014 Colo. Legis. Serv. ch. 207, § 2 (H.B. 14-1344) (West) (electronic
delivery of insurance documents: “This act applies to insurance policies issued or renewed on
or after the applicable effective date of this act.”); 2009 Colo. Legis. Serv. ch. 353, § 6 (H.B. 091338) (West) (insurers’ use of genetic information: “This act shall take effect July 1, 2009, and
shall apply to policies and contracts issued, delivered, renewed, or reinstated on or after said
date.”); 2006 Colo. Legis. Serv. ch. 118, § 3(3) (H.B. 06-1106) (West) (coverage for injuries
sustained while under the influence: “The provisions of this act shall apply to sickness and
accident insurance policies issued, renewed, or reinstated on or after the applicable effective
date of this act.”); 2005 Colo. Legis. Serv. ch. 99, § 3(3) (H.B. 05-1119) (West) (protections for
deployed servicemembers: “The provisions of this act shall apply to policies issued or renewed
on or after the applicable effective date of this act.”); 2004 Colo. Legis. Serv. ch. 134, § 2 (H.B.
04-1026) (West) (automobile “Med Pay” coverage: “This act shall take effect July 1, 2004, and
shall apply to medical payments coverage policies issued or renewed on or after said date.”);
2002 Colo. Legis. Serv. ch. 106, § 2 (S.B. 02-146) (West) (Medicare: “This act shall take effect
January 1, 2003, and shall apply to medicare supplement policies issued or renewed on or after
said date.”); 2002 Colo. Legis. Serv. ch. 208, § 4(2) (H.B. 02-1263) (West) (coverage for
substance abuse treatment: “Section 1 of this act shall take effect January 1, 2003, and shall
apply to all policies issued or renewed on or after said date.”).

26

the influence of a controlled substance). Unlike § 10-3-1116(2), however, § 10-16214(6) announces that the “shall not contain” clause applies to policies “issued,
renewed, or reinstated on or after January 1, 2007.” Similar examples abound in
Colorado’s insurance laws.7
Section 10-3-1116(2), by its plain language, refers only to policies “issued.” In
contrast to dozens of other insurance-related statutes, it says nothing about renewal or
reinstatement or any other event. Given that the Colorado Legislature plainly knows
how to make a new insurance law applicable to renewal policies—and routinely does so
—the Court can only conclude that the Legislature intentionally omitted a renewal
clause from § 10-3-1116(2) and its enacting bill. Cf. Breaux v. Am. Family Mut. Ins.
Co., 554 F.3d 854, 864 (10th Cir. 2009) (“Significantly, § 10-4-710(4) did not include a
reference to policies that were renewed on and after July 1, 1992. This is in contrast to
other statutes and bills that reference both issuance and renewal. . . . The Colorado

7

See, e.g., Colo. Rev. Stat. § 10-4-110.8(12)(b) (“On and after January 1, 2014, an
insurer shall not issue or renew a homeowner’s insurance policy that requires . . . .”); id.
§ 10-4-613(1) (“The provisions of this section shall apply to all policies of insurance delivered,
issued for delivery, or renewed in this state that cover motor vehicles.”); id. § 10-4-633.5(1)(a)
(“An insurer issuing or renewing automobile insurance policies subject to this part 6 shall not
issue or renew a policy unless the text of the policy form does not exceed the tenth-grade
[reading] level . . . .”); id. § 10-16-104(1)(e) (“The requirements of this section shall apply to all
individual sickness and accident policies issued on and after July 1, 1975, and to all blanket and
group sickness and accident policies issued, renewed, or reinstated on and after July 1, 1975,
and to all subscriber or enrollee coverage contracts delivered or issued for delivery in this state
on and after July 1, 1975.”); id. § 10-16-104(1.3)(b)(I) (“All individual and group sickness and
accident insurance policies or contracts issued or renewed by an entity subject to part 2 of this
article on or after January 1, 2008, and all service or indemnity contracts issued or renewed by
an entity subject to part 3 or 4 of this article on or after January 1, 2008, that include dependent
coverage shall provide coverage for . . . .”); id. § 10-16-201(4)(a) (“No policy of sickness and
accident insurance issued, renewed, or reinstated shall contain any provision which limits or
excludes payments under hospital or medical benefits coverage to or on behalf of the insured
because the insured or any covered dependent is eligible for or receiving [public medical
assistance].”).

27

Supreme Court’s application of the canons of statutory construction to look first to the
plain meaning of a statute suggests that the inclusion of ‘issued’ necessarily excludes
‘issued or renewed.’”). Thus, the Court is constrained to hold that § 10-3-1116(2) does
not govern, despite the Plan’s annual renewal many times since the enactment of
§ 10-3-1116(2). The Court will therefore analyze LINA’s decision under the arbitrary
and capricious standard. 8
III. ANALYSIS
A.

Effect of Conflict of Interest
The parties agree that LINA both evaluates and pays any claim for benefits.

LINA therefore has an inherent conflict of interest between its own desire to turn a profit
and its fiduciary duty to fairly evaluate all claims. Metro. Life Ins. Co. v. Glenn, 554 U.S.
105, 112 (2008). The effect of that conflict of interest, if any, is one factor that this
Court must consider when evaluating whether LINA’s decision was arbitrary and
capricious. Id. at 117.
Johnson presents a rather elaborate argument for giving great weight to LINA’s
conflict of interest. Working from discovery the Court permitted into LINA’s
compensation of third-party reviewers, Johnson repeatedly points out the many
thousands of dollars LINA has paid to these reviewers over the last few years, as well
as the fee each reviewer received specifically to evaluate Johnson’s file. Although
Johnson’s payment data might naturally raise eyebrows, it ultimately proves too much.

8

The irony that nearly a decade after its enactment §10-3-1116(2) has yet to bring
within its remedial standard of review provision benefit plan participants like Johnson cannot be
gainsaid. But this state of affairs can only be rectified via future action by the Colorado
Legislature, and not by an order of this Court.

28

If LINA does not hire third-party reviewers to evaluate claims, LINA will face even more
criticism for failing to seek an outside opinion. These third-party reviewers naturally
require payment, and it is unsurprising that their rates are relatively high given their
medical training.
Moreover, this is not a case in which all reviewers paid by LINA offered an
unfavorable opinion and all of Johnson’s providers offered a favorable opinion. After
LINA’s initial denial of “regular occupation” benefits, it referred Johnson’s appeal to a
psychologist, Dr. Lintott, who took Johnson’s side. Despite a simultaneous referral to a
physician who offered an opinion unfavorable to Johnson, LINA reversed its denial and
began paying benefits. (See Part I.C, above.) Conversely, Dr. Wodushek’s report
partially supports LINA’s belief that Johnson has been intentionally withholding effort
during cognitive tests—and Dr. Wodushek is a colleague of Dr. Leehey in the University
of Colorado Health System. (See Part I.F, above.)
Considering all of this, the Court finds that LINA’s inherent conflict of interest had
no discernible effect on its evaluation of Johnson’s eligibility for “any occupation”
benefits, or on its evaluation of her appeals. The Court will therefore not discuss the
conflict of interest further.
B.

Investigation and Termination of Benefits
1.

Job Categorization

Johnson claims that LINA incorrectly categorized her previous profession as
“registered representative,” allegedly leading LINA to mistakenly conclude that Johnson
could perform that job. (ECF No. 51 at 45–50.) The Court disagrees. The Dictionary

29

of Occupation Titles describes “registered representative” as follows:
REGISTERED REPRESENTATIVE (financial) alternate
titles: account executive; broker; investment executive;
securities broker; stock-broker[.] Sells financial products
and services to clients for investment purposes, applying
knowledge of securities, investment plans, market
conditions, regulations, and financial situation of clients[.]
Identifies potential clients, using advertising campaigns,
mailing lists, and personal contacts. Solicits business from
potential clients. Interviews clients to determine financial
position, resources, assets available to invest, and financial
goals. Provides clients with information and advice on
purchase or sale of securities, financial services, and
investment plans, based on review of professional
publications and other financial literature, and knowledge of
securities market and financial services industry. Completes
sales order tickets and submits completed tickets to support
personnel for processing of client requested transaction.
Must pass state examination to receive license and become
registered to sell securities. May read status reports and
perform calculations to monitor client accounts and verify
transactions. May work for firm that offers discounted
brokerage fees and does not offer advice to clients. May
develop and implement financial plans, and sell insurance,
real estate, or securities.
See http://www.occupationalinfo.org/25/250257018.html.9 This appropriately tracks
Johnson’s self-described occupational duties. Indeed, her own attorney at one point
submitted a job description to LINA that listed “registered representative” as an
9

This Internet citation comes from LINA’s brief (ECF No. 55 at 43), to which Johnson
objects as “extra-record information intended to bolster LINA’s decision to terminate benefits”
(ECF No. 59 at 14 n.12). To the extent Johnson means to argue that Colella (the LINA
employee who selected this occupational title) never actually consulted the DOT, Colella’s
record of the reclassification indicates otherwise. (See R. at 221.) To the extent Johnson
means to argue that the definitional text on which Colella relied is not in the record, the DOT is
subject to judicial notice. See, e.g., Hubbard v. Comm’r of Soc. Sec., 348 F. App’x 551, 553 n.1
(11th Cir. 2009); Evans v. Metro. Life Ins. Co., 190 F. App’x 429, 437 n.7 (6th Cir. 2006).
Johnson has not argued that the Internet citation above does not generate the proper definition
of “registered representative,” and the Court’s own Westlaw search (as of March 20, 2017)
revealed 285 federal cases citing to this very website, thus establishing its pervasive use as an
acceptable reference source. The Court therefore takes judicial notice of this definition.

30

alternate title to the “personal financial advisor” title advocated by the attorney. (R. at
799; see also ECF No. 51 at 22, ¶ 41.) LINA did not abuse its discretion, or otherw ise
err, in determining that Johnson had worked as a registered representative.
2.

Conflicting Evidence

As thoroughly described in Part I.E, above, LINA’s “any occupation” investigation
developed conflicting evidence, particularly statements from her physicians suggesting
that her symptoms, to the extent they previously existed, had abated to a substantial
degree. LINA requested video surveillance and discovered that, on the days in
question, Johnson could push a stroller and walk her dogs for thirty-five minutes with no
assistance and no apparent problem—in contrast to her self-reported need for oxygen
simply to walk up stairs, and need for “help” to go on a walk of 15–20 minutes. LINA
also discovered that Johnson could drive more than her self-reported “few miles,” and
could generally be more active than she previously represented.
“Reliance on surveillance evidence in conjunction with medical evidence is not
improper.” Rizzi v. Hartford Life & Acc. Inc. Co., 383 F. App’x 738, 752 (10th Cir. 2010)
(emphasis in original). As noted, LINA already had equivocal medical evidence. It then
developed the record further by referring Johnson to Dr. Bermundez. At that visit,
Johnson’s oxygen tank reappeared, and Dr. Bermundez noticed signs of feigning
tremors. Dr. Bermundez also concluded that Johnson’s cognitive testing scores were
consistent with intentional limitation of her abilities.
Before making any decision based on Dr. Bermundez’s opinions, LINA sent his
report to Johnson’s primary treating physicians. The only response it received was
from Dr. Weinberger, who stated simply that Johnson’s pacemaker had not resolved
31

her episodes of syncope—a matter having nothing necessarily to do with
Dr. Bermundez’s conclusions and otherwise addressed in Dr. Bermundez’s report that
Johnson told him her syncopal episodes are manageable as long as she does not
stand up too quickly. LINA also had an in-house physician, Dr. Minteer, review the file.
Based on all this, LINA concluded that Johnson possessed the capacity to perform her
previous job, which also met the 80% wage requirement in the Plan. Given LINA’s
investigation and the information developed, the Court cannot say that LINA behaved
arbitrarily or capriciously in finding that Johnson would not qualify for “any occupation”
benefits.
C.

First Appeal
During the First Appeal (see Part I.F, above), LINA received additional

statements from Johnson’s treating physicians in support of Johnson’s claim of
disability, but LINA also received more evidence supporting its prior decision. For
example, independent of any individual with which LINA may have contracted,
Dr. Wodushek reached conclusions consistent with Dr. Bermundez that Johnson
intentionally limits her cognitive abilities under testing. LINA’s reviewers also spoke with
some of Johnson’s providers on the telephone and learned that they were somewhat
more equivocal about Johnson’s conditions than their written statements would
suggest. The Court therefore finds that LINA possessed substantial evidence during
the First Appeal to affirm its termination of benefits.
D.

Second Appeal
Johnson’s only argument specific to the Second Appeal is that LINA refused to

32

consider the documents she submitted in connection with that appeal, thus allegedly
demonstrating arbitrary and capricious conduct designed to frustrate her rights. (ECF
No. 51 at 88–89.) LINA indeed originally announced that it would not review Johnson’s
submissions because they did not comprise “new medical information.” (R. at 490,
491.) But LINA eventually changed course and accepted all documents submitted by
Johnson. (R. at 482.) LINA pointed out as m uch in its response brief in these
proceedings (ECF No. 55 at 83), and Johnson’s reply brief contains no rejoinder or
reprisal of the argument (see generally ECF No. 59). Johnson’s argument regarding
the Second Appeal is therefore meritless.
E.

Consideration of Social Security Award
As noted above (Part I.D), the SSA declared Johnson disabled in June 2011.

That is one factor LINA was required to consider in evaluating Johnson’s disability
status. See, e.g., Torrey v. Qwest Commc’ns Int’l, Inc., 838 F. Supp. 2d 1201, 1210 (D.
Colo. 2012). Johnson acknowledges that all three of LINA’s decision letters state that
LINA considered her SSA award. (ECF No. 51 at 81 (citing R. at 477, 487, 499–500).)
More specifically, LINA’s first letter notes that LINA had obtained Johnson’s SSA f ile,
found that “[a]ll the information [there] was from 2010 and 2011,” and concluded that
“[t]he new medical information on file shows improvement with [the] impairments [found
to exist by the SSA].” (R. at 499–500.) Thus, said LINA, “[w]e considered [the SSA
findings] but had more recent information.” (Id. at 500.) LINA’s second letter similarly
noted that the SSA had not reevaluated Johnson since its initial award; “[t]herefore, we
have the most current medical information on file regarding [Johnson’s] condition.”

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(R. at 487.) Finally, the third letter, states that LINA “confirmed that there is no new
information in Ms. Johnson’s Social Security file . . . . As a result, we are in receipt of
more recent information than the SSA had to consider at the tim e of its decision.” (R. at
477.)
Johnson at times characterizes this as a “complete failure to reconcile” the SSA’s
conclusions with LINA’s conclusions. (ECF No. 51 at 77 (formatting normalized).) To
the contrary, LINA was explicit in its reasoning, and its reasoning was not arbitrary or
capricious. No party disputes that LINA had more information than the SSA had at all
relevant times.
Johnson’s real argument appears to be as follows: “LINA’s claim that Johnson’s
chronic incurable conditions had improved since the date of the [SSA] decision is not at
all supported by the record.” (Id. at 81.) For the reasons already explained above, this
is incorrect. Substantial evidence supports LINA’s position that Johnson’s conditions
had abated to a meaningful degree.
The Court accordingly finds no error in LINA’s consideration of the SSA award.
F.

Demands for Policy Documents
Between 2011 and 2014, Johnson made several requests to LINA for a copy of

her claim file. (See ECF No. 51 at 21–36, ¶¶ 34, 90, 95, 101.) Johnson arg ues that
LINA’s failure to provide the requested information within thirty days subjects it to
statutory penalties. (ECF No. 51 at 91.) The statute on which Johnson relies is 29
U.S.C. § 1132(c)(1), which reads in relevant part as follows:
Any administrator . . . who fails or refuses to comply with a
request for any information which such administrator is
required by this subchapter to furnish to a participant or
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beneficiary . . . by mailing the material requested to the last
known address of the requesting participant or beneficiary
within 30 days after such request may in the court’s
discretion be personally liable to such participant or
beneficiary in the amount of up to $100 a day from the date
of such failure or refusal, and the court may in its discretion
order such other relief as it deems proper.
As LINA points out (ECF No. 55 at 1), the Tenth Circuit held in Thorpe v.
Retirement Plan of Pillsbury Co., 80 F.3d 439, 444 (10th Cir. 1996), that “causes of
action [under 29 U.S.C. § 1132(c)(1)] may be brought only against designated plan
administrators.” UBS, not LINA, is the designated plan administrator here. (R. at 3209.)
Thus, says LINA, this penalty provision is unavailable. Johnson replies that the Thorpe
case did not involve a distinction between a plan administrator and claim administrator,
and nothing in 29 U.S.C. § 1132(c)(1) or Thorpe precludes a finding that a claim
administrator such as LINA can be liable to the same extent as a plan administrator,
given the statute’s applicability to “[a]ny administrator.” (ECF No. 59 at 33–34.)
The Court need not resolve this argument. Even if Johnson is correct, the
assessment of a penalty is explicitly “in the court’s discretion.” Among the
considerations that may guide to the Court’s discretion is whether the claimant suffered
any prejudice or injury from the delay. Rosile v. Aetna Life Ins. Co., 777 F. Supp. 862,
874–75 (D. Kan. 1991), aff’d, 972 F.2d 357 (10th Cir. 1992) (table). Johnson asserts
no true prejudice due to LINA’s nonresponsiveness (see ECF No. 51 at 84–88), nor can
the Court discern any prejudice on this record. Accordingly, assuming 29 U.S.C.
§ 1132(c)(1) applies to LINA, the Court in its discretion declines to aw ard any penalty
under that statute.

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IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Plaintiff’s Motion for Bench Trial on the Record (ECF No. 57) and the parties’
Joint Motion for Determination (ECF No. 61) are GRANTED;

2.

Johnson’s Motion to Strike (ECF No. 66) is DENIED AS MOOT;

3.

Defendant’s decision to terminate benefits is AFFIRMED;

4.

The Clerk shall enter final judgment in favor of Defendant and against Plaintiff;
and

5.

The parties shall bear their own attorney’s fees and costs.
Dated this 28th day of March, 2017.
BY THE COURT:

William J. Martínez
United States District Judge

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