LOUCKA v. LINCOLN NATIONAL LIFE INSURANCE COMPANY

Filing 31

MEMORANDUM OPINION re Plaintiff's 20 Motion to Strike, Plaintiff's 16 Motion for Summary Judgment, and Defendant's 17 Cross Motion for Summary Judgment. Signed by Judge Trevor N. McFadden on 11/7/2018. (lctnm2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WESLEY LOUCKA,
Plaintiff,
v.

Case No. 1:17-cv-01375 (TNM)

LINCOLN NAT’L LIFE INS. CO.,
Defendant.
MEMORANDUM OPINION
This case involves the fraught question of insurance coverage for individuals with
symptoms associated with Lyme disease. Wesley Loucka brought this action under the
Employee Retirement Income Security Act of 1974, see 29 U.S.C. § 1132, claiming that Lincoln
National Life Insurance Company improperly denied him disability benefits. Mr. Loucka says
that Lincoln unreasonably concluded that he suffers from Chronic Fatigue Syndrome (“CFS”), a
condition that the relevant policy limits to 24 months of long-term disability benefits. He asserts
the he has Lyme disease, which is not subject to the policy’s 24-month benefits limitation.
Lincoln, however, maintains that the medical evidence shows that Mr. Loucka does not have
Lyme disease and his symptoms suggest CFS. The parties have filed cross motions for summary
judgment. Mr. Loucka has also moved to strike exhibits from Lincoln’s summary judgment
papers. For the reasons explained below, Mr. Loucka’s Motion to Strike will be denied, his
Motion for Summary Judgment will be denied, and Lincoln’s Cross Motion for Summary
Judgment will be granted.

I.
Wesley Loucka worked as a Systems Administrator at NOVA Corporation, which offered
its employees long-term disability coverage through a group policy (the “Policy”) issued by
Lincoln National Life Insurance Company, the Policy’s insurer and claims administrator. See
LIN00125–205. The Policy is subject to ERISA. See, e.g., LIN00140.
Insureds seeking long-term disability benefits must first show that they meet the Policy’s
definition of “disabled.” LIN000150. If an insured is disabled primarily because of certain
“Specified Injuries or Sicknesses,” then benefits are limited to 24 months. LIN000157. One
such illness is “Chronic Fatigue Sickness,” “a sickness that is characterized by a debilitating
fatigue, in the absence of other known medical or psychological conditions. It includes, but is
not limited to . . . chronic fatigue syndrome . . . .” Id.
A.
In 2013, Mr. Loucka sought treatment for fatigue, joint pain, and muscle soreness. That
May he tested negative for Lyme disease and his metabolic screening panel came back normal.
See LIN00621. Mr. Loucka was tested again in November 2013. See LIN05157–60. That test
was also negative for Lyme disease. Id. Still, he sought treatment from Dr. Joseph Jemsek,
whose clinic specializes in Lyme disease treatment. See LIN09169. During their initial meeting,
Mr. Loucka told Dr. Jemsek that he had “had extensive exposure to ticks” and had found ticks on
him, “but [they] never attached.” Id. He also reported that he began noticing symptoms in
February 2013 “with the onset of fatigue” and that only three months later he “notic[ed]
excessive fatigue.” Id.
Dr. Jemsek ordered another round of blood testing, and a private laboratory called
IGeneX conducted IgM and IgG Western Blot tests. See LIN07246–47. The IgM and IgG

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Western Blot tests are common Lyme disease diagnostic tests. See Daniel L. Depietropaolo et
al., Diagnosis of Lyme Disease, 72 Am. Fam. Physician 297 (2005) (available at LIN00816–17,
00432–37). But IGeneX did not conduct an EIA/ELISA or IFA test, which the Centers for
Disease Control’s (“CDC”) two-tiered Lyme diagnostic procedure requires before any Western
Blot testing. LIN00212. IGeneX also used its own criteria for interpreting the test results
instead of the CDC’s. LIN007246–47. Ultimately, the IgG blot test was negative for the
presence of Lyme disease under both the CDC’s and IGeneX’s criteria, and the IgM blot test was
negative under the CDC’s criteria but indeterminate under IGeneX’s alternative criteria. Id.
In April 2014, Dr. Jemsek noted that Mr. Loucka was “still unsure about his Lyme
diagnosis.” LIN007140. Nonetheless, he put Mr. Loucka on an intensive antibiotic regime, a
common treatment for Lyme disease. See LIN00210–13. Even with antibiotics Mr. Loucka’s
symptoms persisted: he reported “increased neuropathy;” “increased anxiety, [joint] pain . . . ,
paresthesia[] in the face and brain, as well as ‘body agitation;’” “gastrointestinal tenderness;” and
“increased arthralgias and . . . lower back pain.” LIN007142. After Mr. Loucka began antibiotic
treatments, IGeneX tested Mr. Loucka’s liver tissue looking for evidence of DNA from the
bacterium that cause Lyme disease. LIN07243–44. The tests were negative for bacterial DNA.
Id.
Later that year a psychologist, internal medicine doctor, and infectious disease specialist
at the Mayo Clinic evaluated Mr. Loucka and suggested he had “CFS and GAD [Generalized
Anxiety Disorder].” LIN007146. By September, after several months of antibiotics, Mr. Loucka
continued to have “some ambivalence [about] whether he truly ha[d] tickborne illness,” because
he “had not seen the improvement he was hoping for” despite intensive treatment. Id. His
condition was “only maintaining, maybe even slowly worsening.” Id. Indeed, “[h]e continue[d]

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to have waves of fatigue, increasing[] lightheadedness, moodiness, full[] body agitation, brain
tingling.” Id. But Dr. Jemsek continued to prescribe intensive antibiotic treatments, even though
Mr. Loucka reported “no real clinical progress” and he “[wa]s not responding well to therapy.”
LIN07150.
B.
Ultimately, Mr. Loucka filed a claim for long-term disability benefits, LIN15204–15, and
he included with his application a functional capacity assessment from Dr. Jemsek. He
diagnosed Mr. Loucka with “Lyme borreliosis complex, a chronic, multisystemic, inflammatory
illness.” LIN15216. Lincoln’s experts disagreed. Dr. Gary Greenhood, who is board certified in
internal medicine and infectious disease, reviewed Mr. Loucka’s claim and found that Mr.
Loucka was impaired. LIN00014–15. But Dr. Greenhood warned that the evidence “does not
support that the claimant has Lyme disease. In addition to no report of a first tier test to Lyme
disease, both IgM and IgG Western Blot tests are negative by CDC . . . criteria.” Id. After Mr.
Loucka submitted additional material, Dr. Greenhood conducted a supplemental review, but he
maintained that Lyme disease was unsupported. See LIN00035. He instead concluded that “the
likely diagnosis is Chronic Fatigue Syndrome.” Id.
Dr. Kent Crossley, who is board-certified in internal medicine and infectious disease, also
reviewed Loucka’s medical records for Lincoln. While quibbling with Dr. Greenhood’s
conclusion on impairment, he also found “no evidence of any infectious process including Lyme
disease.” LIN02301. Dr. Crossley noted that Mr. Loucka’s physical limitations were “entirely
self-reported” and that “Western Blot testing was done in February 2014 and was negative.”

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LIN02300. Dr. Crossley agreed that Mr. Loucka’s symptoms “support a diagnosis of Chronic
Fatigue Syndrome.” LIN2301.
Despite the differing opinions with respect to impairment, Lincoln’s claim examiner
approved Mr. Loucka’s claim for long-term disability, effective as of October 5, 2014.
LIN14842. But because Mr. Loucka was found to be disabled due to CFS, the claims examiner
explained that the Policy “limits benefits to 24 months for the condition causing [Mr. Loucka’s]
disability.” LIN14843. In April 2016, Lincoln sent a letter to Mr. Loucka reminding him of the
Policy’s 24-month benefits limitation and informing him that his long-term disability benefits
would end that October. LIN06134. Mr. Loucka appealed Lincoln’s decision through the
company’s appeals process.
Dr. Mireya Wessolossky, who is board certified in infectious disease, reviewed Mr.
Loucka’s appeal. After reviewing the medical evidence, she concluded that there was “a lack of
clinical and laboratory evidence for Lyme disease.” LIN08475. She observed that Mr. Loucka’s
“numerous blood tests” were “normal and negative” for Lyme disease. LIN08474. She also
noted that Mr. Loucka “had endured cycles of antibiotic therapy with lacking improvements.”
Id. And she disagreed with Dr. Jemsek’s interpretation of Mr. Loucka’s Lyme serology, because
“by the CDC’s criteria, [Mr. Loucka]’s tests were repeatedly negative.” Id. Dr. Wessolossky
concluded that Mr. Loucka’s symptoms “seem to be related towards CFS,” and based on the
medical evidence, she was “under the impression that [Mr. Loucka] suffers from chronic fatigue
syndrome (CFS) associated with anxiety and depression.” Id. Based on Dr. Wessolossky’s
report, Lincoln affirmed its decision limiting Mr. Loucka to 24 months of long-term benefits.
Mr. Loucka then filed this suit. But because the Policy requires claimants to exhaust two
levels of appeal before suing, the Court stayed the action to allow Mr. Loucka to pursue a

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second-level internal appeal. See Court’s September 13, 2017, Minute Order granting parties’
Consent Mot. to Stay Litigation, ECF # 6. Dr. Joseph Vinetz, who is board certified in internal
medicine and infectious disease, and Dr. Rajendra Marwah, who is board certified in
rheumatology and internal medicine, reviewed Mr. Loucka’s second-level appeal. Citing much
of the medical evidence that has already been discussed, Dr. Vinetz concluded that Mr. Loucka
did not “meet the criteria for the diagnosis of Lyme disease.” LIN00209–10. Dr. Marwah
similarly concluded that Mr. Loucka does not meet the CDC’s criteria for a diagnosis of Lyme
disease. LIN00211. Drs. Vinetz and Marwah also agreed that Mr. Loucka’s symptomology
suggested that he suffers from CFS. See LIN00210–12. Even after Mr. Loucka submitted
additional material, Drs. Vinetz and Marwah maintained that Mr. Loucka did not have clinical
features or laboratory confirmation of Lyme disease based on the CDC’s criteria. See
LIN00238–42.
Lincoln subsequently upheld its decision, see LIN00222–36, and Mr. Loucka returned to
court, again seeking to clarify and enforce his rights under the Policy, as permitted by ERISA,
see 29 U.S.C. § 1132(a). 1
In its summary judgment papers, Lincoln included three footnotes referencing the CDC’s
webpages about the agency’s Lyme-testing criteria and procedures. It also attached a declaration
from Thomas Vargo, Lincoln’s Director of Appeals, about Lincoln’s procedures for reducing
conflicts of interest and promoting accuracy during the claim review process. Mr. Loucka
moved to strike the references to the CDC’s website and Mr. Vargo’s declaration, citing the
general principle that “[c]ourts review ERISA-plan benefit decisions on the evidence presented
to the plan administrators, not on a record later made in another forum.” Block v. Pitney Bowes

1

The Court therefore has subject matter jurisdiction under 29 U.S.C. § 1132(e)(1) and 28 U.S.C.§ 1331.

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Inc., 952 F.2d 1450, 1455 (D.C. Cir. 1998). The motion to strike and the cross motions for
summary judgment are now ripe for decision.
II.
A motion for summary judgment will be granted only if “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 fact is material if it ‘might affect the outcome of the suit under the governing law,’ and a
dispute about a material fact is genuine ‘if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.’” Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The Court must view all
the facts in the light most favorable to the non-moving party. See Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986).
But the non-moving party’s opposition must consist of more than mere unsupported
allegations or denials, and it must be supported by affidavits, declarations, or other competent
evidence setting forth specific facts showing that there is a genuine issue for trial. Id. “The mere
existence of a scintilla of evidence in support of the [non-moving party’s] position [is]
insufficient” to withstand a motion for summary judgment, because “there must be [some]
evidence on which the jury could reasonably find for the [non-movant].” Anderson, 477 U.S. at
252.
The Court “review[s] a denial of benefits challenged under 29 U.S.C. § 1132(a)(1)(B),
under a de novo standard, rather than under the more deferential arbitrary and capricious
standard, ‘unless the benefit plan gives the administrator or fiduciary discretionary authority to
determine eligibility for benefits or to construe the terms of the plan.’” Pettaway v. Teachers
Ins. & Annuity Ass’n of Am., 644 F.3d 427, 433 (D.C. Cir. 2011) (quoting Firestone Tire &

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Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)). Despite Mr. Loucka’s claims to the contrary,
the Policy here explicitly grants Lincoln discretionary authority to “interpret [the Policy’s]
provisions, administer claims,” and make eligibility determinations. LIN00141. Thus, in
reviewing Lincoln’s decision to terminate Mr. Loucka’s benefits after 24 months, the Court must
determine whether that decision was reasonable. See Block, 952 F.2d at 1452. “A decision is
reasonable if it is the result of a deliberate, principled reasoning process and if it is supported by
substantial evidence. Substantial evidence means more than a scintilla but less than a
preponderance.” Buford v. UNUM Life Ins. Co. of America, 290 F. Supp. 2d 92, 100 (D.D.C.
2003) (cleaned up).
Finally, parties may attach affidavits and declarations to their summary judgment papers,
so long as the exhibits are “made on personal knowledge, set out facts that would be admissible
in evidence, and show that the affiant or declarant is competent to testify on the matters stated.”
Fed. R. Civ. P. 56(c)(4). Accordingly, a Court may strike all or part of an affidavit or declaration
for failing to satisfy Rule 56’s requirements. U.S. ex rel. K & R Ltd. P’ship v. Mass. Housing
Fin. Agency, 456 F. Supp. 2d 46, 51 (D.D.C. 2006).
III.
A.
Mr. Loucka initially challenges Lincoln’s inclusion of references to the CDC’s webpages
about the agency’s Lyme-testing criteria and procedures. His argument falls short. True, courts
generally “review ERISA-based benefit decisions on the evidence presented to the plan
administrators and not based on a record made in another forum.” Block, 952 F.2d at 1455. But
courts “may judicially notice a fact that is not subject to reasonable dispute because it can be
accurately and readily determined from sources whose accuracy cannot reasonably be

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questioned.” Fed. R. Evid. 201(b)(2). And courts have often taken judicial notice of information
found on government agency websites. See, e.g., Cannon v. District of Columbia, 717 F.3d 200,
202 n.2 (D.C. Cir. 2013); Hawk Aircargo, Inc. v. Chao, 418 F.3d 453, 457 (5th Cir. 2005).
Here, the CDC’s Lyme-testing criteria and procedures are a matter of public record, and
it cannot be reasonably questioned that the agency’s website is an accurate source for those
standards. Indeed, in Gent v. CUNA Mut. Ins. Soc’y, the First Circuit took judicial notice of
information from the CDC’s webpages about Lyme-testing criteria and procedures, even though
it recognized that it was “unclear to what extent the information on the CDC’s website [wa]s
formally part of the record.’” 611 F.3d 79, 84 n.5 (1st Cir. 2010). The court in Brown v. Fed.
Express Corp. also took judicial notice of the CDC’s webpages about Lyme-testing. 62 F. Supp.
3d 681, 687 (W.D. Tenn. 2014). So too here. 2
Mr. Loucka’s arguments to strike Mr. Vargo’s declaration similarly lack merit. Mr.
Loucka contends that the factual allegations made in the declaration are “inadmissible as they
were not raised during the administrative appeal process and constitute[] . . . post-hoc
rationalization that is clearly barred in ERISA-based cases.” Pl.’s Mot. to Strike, ECF # 20-1,
Page 5. But Mr. Vargo’s declaration is not post hoc argumentation. It addresses only Lincoln’s
procedures for reducing potential bias and promoting accuracy during the claim review process,
which courts may consider when evaluating an administrator’s decision. See Met. Life Ins. Co. v.
Glenn, 554 U.S. 105, 115–17 (2008). It does not address the rationale behind Lincoln’s

2
In any event, the substance of the CDC webpages that Lincoln references—the CDC’s two-step Lyme-testing
procedure, the agency’s standards for evaluating blood-test results, and general information about Lyme disease—is
all available in the administrative record. See, e.g., LIN00212 (discussing the CDC’s two-tiered diagnostic
procedures); LIN07246–47 (explaining the CDC’s criteria for evaluation Western Blot tests). So the premise
underlying Loucka’s argument for striking Lincoln’s references—that the webpages are extra-record evidence—is
flawed.

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conclusion that Mr. Loucka suffers from CFS, nor does it purport to offer any alternative reasons
why the Policy’s 24-month benefits limitation applies.
What is more, while courts may not consider extra-record evidence about the substance
or basis of an ERISA administrator’s determination, courts have recognized a limited exception
for extra-record evidence regarding an administrator’s alleged conflict of interest. See Murphy v.
Deliotte & Touche Grp. Ins. Plan, 619 F.3d 1151, 1161–62 (10th Cir. 2010). For example,
“[w]hile discovery is generally unavailable where an ERISA plan grants discretion to the
administrator, there are limited exceptions to this prohibition,” including “discovery regarding
alleged conflicts of interest and procedural irregularities.” Crummett v. Met. Life Ins. Co., 2007
WL 2071704, at *3 (D.D.C. July 17, 2007) (collecting cases from the Fourth, Seventh, and Ninth
Circuits); see also Crosby v. Louisiana Health Serv. & Indem. Co., 647 F.3d 258, 263 (5th Cir.
2011).
In Murphy, the court recognized that the established rule precluding consideration of
extra-record material related to a claimant’s eligibility for benefits “does not conclusively
prohibit a district court from considering extra-record materials related to an administrator’s dual
role conflict of interest.” 619 F.3d at 1158. Indeed, courts often rely on affidavits and
declarations submitted during litigation about administrators’ safeguards against conflicts of
interest. See, e.g., Cardoza v. United of Omaha Life Ins. Co., 708 F.3d 1196, 1202 (10th Cir.
2013); Mugan v. Hartford Life Grp. Ins. Co., 765 F. Supp. 2d 359, 373 (S.D.N.Y. 2011). So the
Court may properly consider Mr. Vargo’s declaration. Although, as discussed below, even if the
Court ignored Mr. Vargo’s declaration, Loucka’s claim would still fail.

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B.
Mr. Loucka fares no better on his summary judgment arguments. First, Mr. Loucka
contends that Lincoln bears the burden of proving that the Policy’s 24-month benefits limitation
for certain “Specified Injuries and Sicknesses” applies. He misplaces the burden. Under ERISA,
“the burden of proof is upon the insured as to questions of coverage and disability,” Heller v.
Fortis Benefits Ins. Co., 142 F.3d 487, 494 (D.C. Cir. 1998), and here the Policy provides that
the claimant’s proof of claim “must show the date the disability began, its cause and degree.”
LIN00138 (emphasis added).
Mr. Loucka counters that the burden rests on “administrators to demonstrate how a
specific policy exclusion applies to deny benefits.” Pl. Mot. for Summ. J., ECF # 16-1, Page 30
(citing cases). But while “[f]acially, [a 24-month] limitation might appear to operate much like
an exclusion,” where a policy requires claimants to provide proof of the cause of disability,
“[o]ne could argue that these provisions put the burden on [the claimant] to establish the physical
or organic etiology of h[is] disability in order for h[im] to be eligible to continue receiving
benefits after two years.” Gent, 611 F.3d at 83. Regardless, when, as here, the Court must
decide only whether an administrator’s decision was reasonable, “how the burden is allocated
does not much matter unless one or both parties fail to produce evidence, or the evidence
presented by the two sides is in ‘perfect equipoise.’” Id. (citing LPP Mortg., Ltd. v. Sugarman,
565 F.3d 28, 33 (1st Cir. 2009)).
And here the considerable evidence is not in “perfect equipoise.” The medical evidence
in the administrative record overwhelmingly shows that Lincoln reasonably concluded that Mr.
Loucka suffers from CFS, not Lyme disease. Thus, Lincoln properly limited Mr. Loucka’s
benefits under the Policy. Five physicians—Drs. Greenhood, Crossley, Wessolossky, Vinetz,

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and Marwah—agreed after reviewing Mr. Loucka’s file that he does not have Lyme disease. See
LIN00014–15 (Dr. Greenhood); LIN02301 (Dr. Crossley); LIN08474–75 Dr. (Wessolossky);
LIN00209–10 (Dr. Vinetz); LIN00210–12 (Dr. Marwah). They cited Mr. Loucka’s various
blood tests, observing that he never underwent the CDC’s two-step Lyme testing protocol and
his IgM and IgG Western blot tests were negative by the CDC’s standards. See, e.g., LIN08474.
Even under IGeneX’s alternative criteria, Mr. Loucka’s IgG Western blot was negative, and his
IgM Western blot was “indeterminate.” LIN07246–47. Drs. Vinetz, Marwah, and Wessolossky
also observed that Loucka saw no improvement despite intensive treatment with antibiotics when
“[m]ost cases of Lyme disease can be treated successfully with a few weeks of antibiotics.” See,
e.g., LIN00210. And all five physicians agreed that Loucka’s symptoms evinced CFS. See
LIN00035 (Dr. Greenhood); LIN02298–2301 (Dr. Crossley); LIN08473–76 (Dr. Wessolossky);
LIN01468–73 (Dr. Vinetz); LIN01458–67 (Dr. Marwah).
In fact, Dr. Jemsek, Mr. Loucka’s treating physician, is the only physician to conclude
that Mr. Loucka suffers from Lyme disease. His conclusion was based, in part, on his opinion
that the CDC’s Lyme-testing criteria and procedures are “antique and obsolete.” See LIN00237.
So Mr. Loucka’s argument, ultimately, is that Lincoln unreasonably credited the reviewing
physicians’ opinions—based on the CDC’s Lyme-testing standards—over his treating
physician’s opinion—based on alternative standards. But if Mr. Loucka’s argument is that Dr.
Jemsek’s opinion is entitled to greater weight because he is Mr. Loucka’s treating physician, the
law disagrees. “[C]ourts have no warrant to require administrators automatically to accord
special weight to the opinions of a claimant’s physician; nor may courts impose on plan
administrators a discrete burden of explanation when they credit reliable evidence that conflicts
with a treating physician’s evaluation.” Black & Decker Disability Plan v. Nord, 538 U.S. 822,

12

834 (2003); see also Marcin v. Reliance Standard Life Ins. Co., 861 F.3d 254, 265 (D.C. Cir.
2017). Dr. Jemsek’s conclusion that Loucka suffers from Lyme disease conflicted with
substantial, reliable evidence in the form of five separate medical opinions that ruled out Lyme
disease and concluded that Loucka most likely suffers from CFS. As in Pettaway, the Court
“cannot conclude that [the plan administrator] acted unreasonably when it valued the opinion of
its own personnel over that of [the insured’s].” 644 F.3d at 435.
If Mr. Loucka’s objection is to Lincoln’s reliance on the CDC’s Lyme-testing standards,
his objection is similarly unavailing. Dr. Jemsek claims that the CDC’s criteria are “antique and
obsolete,” and perhaps he is right that there is reason to question the agency’s Lyme-testing
standards. See e.g., Holly J. Westervelt and Robert J. McCaffery, Neuropsychological
Functioning in Chronic Lyme Disease, 12 Neuropsychology Rev. 153, 156 (2002) (noting that
“[m]any clinicians and scientists feel that [the CDC’s] criteria are too strict”) (available at
LIN01376). But Mr. Loucka’s counsel’s prolix discussion of Lyme disease, with little to no
specific citations to the record or other authoritative material, ultimately does little to advance his
client’s case. Whether the CDC’s Lyme-testing criteria and procedures are medically sound is
not before the Court. The pertinent question is whether it was reasonable for Lincoln to rely on
the CDC’s standards to evaluate Mr. Loucka’s file.
It was. Courts frequently defer to reviewing physicians’ reliance upon the CDC criteria.
For example, the Gent court considered a claim like Mr. Loucka’s, and in affirming the
administrator’s conclusion that the plaintiff did not suffer from Lyme disease, the First Circuit
approvingly cited the administrator’s use of the CDC’s standards. 611 F.3d at 84–86. The court
explained that the “arguments that Gent’s disability was not caused by Lyme disease [was] the
better-supported position,” in large part because the laboratory data, evaluated under the CDC’s

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criteria, “lines up almost uniformly against such a diagnosis.” Id. at 86. And other courts
similarly have determined that administrators may reasonably rely the CDC’s Lyme-testing
criteria to determine whether a claimant has Lyme disease. See, e.g., Brown, 62 F. Supp. 3d at
686–87 (upholding administrator’s denial of benefits where claimant’s Lyme blood tests were
negative under the CDC’s two-step testing regime). Ultimately, even if there is genuine medical
disagreement about the efficacy of the CDC’s Lyme-testing standards, conflicting medical
evidence need not render an administrator’s decision arbitrary and capricious, because “[t]he
ability to choose among conflicting evidence is essentially a natural outgrowth of the discretion
that the plan affords to the plan administer.” Mobley v. Cont’l Causalty Co., 405 F. Supp. 2d 42,
48 (D.D.C. 2005). In short, Lincoln’s reliance on the CDC’s Lyme-testing criteria and
procedures was reasonable.
Mr. Loucka’s final line of attack is to assert that Lincoln’s claim review process suffers
from structural conflicts of interest, a factor courts may consider when reviewing the lawfulness
of an administrator’s decision. See Glenn, 554 U.S. at 115–18. But any one factor will act only
as a “tiebreaker when the other factors are closely balanced, the degree of closeness necessary
depending upon the tiebreaking factor’s inherent or case-specific importance.” Id. at 117. Here,
the evidence is not “closely balanced.” Moreover, to show Lincoln’s alleged bias and conflicts
Mr. Loucka cites cases from other jurisdictions that are unrelated to the current action; some are
nearly two decades old. See Pl. Mot. Summ. J., ECF #16-1, Pages 35–36 (citing, e.g., Vartanian
v. Met. Life Ins. Co. 2002 WL 484852 (N.D. Ill Mar. 29, 2002)).
Mr. Loucka, however, disregards the specifics of this case: Lincoln initially awarded
benefits despite conflicting opinions on whether Mr. Loucka was disabled; it allowed Mr.
Loucka to submit substantial medical evidence and literature—much of which was irrelevant—in

14

support of his claim; it permitted Mr. Loucka to submit a second-level appeal even though his
request was untimely under the Policy; and finally it allowed Mr. Loucka an opportunity to
review and rebut Dr. Vintez and Dr. Marwah’s initial reports from the second-level review.
“None of these actions were in [the administrator’s] interest, and they therefore provide strong
indications that [the administrator] endeavored to administer the plan fairly.” Brown v. Hartford
Life & Accident Ins. Co., 12 F. Supp. 3d 88, 98 (D.D.C. 2014). Certainly, Mr. Loucka’s
evidence of Lincoln’s alleged structural conflicts is not strong enough to overcome the
overwhelming evidence in favor of finding Lincoln’s decision reasonable.
What is more, structural conflicts of interest are less important “(perhaps to the vanishing
point) where the administrator has taken active steps to reduce potential bias and to promote
accuracy.” Glenn, 554 U.S. at 117. Considering the content of Mr. Vargo’s declaration, Lincoln
has taken significant steps to reduce potential bias in the claim review process. Thus, the conflict
factor approaches “the vanishing point” here, and it is even more true that it cannot overcome the
overwhelming evidence supporting Lincoln’s position. Because Lincoln’s conclusion that Mr.
Loucka suffers from CFS, not Lyme disease, is the product of a deliberate, principled reasoning
process and is supported by substantial evidence, its decision to limit Mr. Loucka’s benefits to 24
months under the Policy was reasonable.
IV.
The Court does not doubt that Mr. Loucka has suffered greatly, and it acknowledges the
medical uncertainties surrounding Lyme disease and the added difficulties patients like Mr.
Loucka endure as a result. Unfortunately, these are issues courts of law are ill-equipped to
address. In light of the CDC’s current guidance on Lyme disease and the discretion ERISA

15

grants to plan administrators, plaintiffs face a high bar when challenging an insurance company’s
determination in this area. Mr. Loucka has not cleared this bar.
For all these reasons, Mr. Loucka’s Motion to Strike is denied, Plaintiff’s Motion for
Summary Judgment is denied, and Defendant’s Cross Motion for Summary Judgment is granted.
A separate order will issue.

2018.11.07
18:43:10 -05'00'
Dated: November 7, 2018

TREVOR N. MCFADDEN
United States District Judge

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