Tassone v. United of Omaha Life Insurance Company et al

Filing 61

MEMORANDUM Opinion and Order. Signed by the Honorable Robert W. Gettleman on 8/30/2017. Mailed notice (tt, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GINA TASSONE,
Plaintiff,
v.
UNITED OF OMAHA LIFE INSURANCE
COMPANY; and MIRAMED GLOBAL
SERVICES, INC. LONG TERM DISABILITY
PLAN,
Defendants.

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Case No. 15 C 8557
Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER
After plaintiff ceased working as a finance manager for her previous employer, MiraMed
on March 30, 2012, due to a variety of ailments including morbid obesity, left lateral L4-L5 disc
herniation with facet synovitis and synovial cyst producing foraminal stenosis, pulmonary
embolism, fibromyalgia, and deep vein thrombosis (“DVT”), she applied for long term disability
(“LTD”) benefits, which defendant United of Omaha Life Insurance Company (“United of
Omaha”) approved and paid from June 2012 through June 30, 2014. Defendant continued
paying from July 1, 2014 through August 31, 2014, under a reservation of rights while reviewing
whether plaintiff was entitled to a continuation of benefits. Defendant terminated plaintiff’s
benefits on August 31, 2014. After exhausting her appeals, plaintiff brought the instant action
against defendants United of Omaha and MiraMed Global Services, Inc. Long Term Disability
Plan (the “Plan”)1, pursuant to ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), seeking
reinstatement of LTD benefits. The parties have stipulated that the court will review: (1) the

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United of Omaha, the plan administrator, made the decision with respect to plaintiff’s
LTD claims. The Plan is a necessary party to this action. The court will refer herein to both as
the “defendants.”

administrative record containing approximately 5,400 pages of medical records; (2) an April 6,
2016 Functional Capacity Evaluation (“FCE”); a report of Dr. Jared Reeves, performed at the
request of Administrative Law Judge (“ALJ”) who ultimately awarded plaintiff social security
disability benefits; and (4) the ALJ decision awarding those benefits. The parties have also
stipulated that the court may conduct a trial on the papers and issue judgment pursuant to Fed. R.
Civ. P. 52, and have filed cross motions for judgment supported by statements of material fact in
the form used to support motions for summary judgment. For the reasons that follow, plaintiff’s
motion (Doc. 44) is granted, and defendants’ motion (Doc. 47) is denied.2
FACTUAL BACKGROUND
Plaintiff suffers from a variety of conditions and ailments, including: morbid obesity; left
lateral L4-L5 disc herniation with facet synovitis and synovial cyst producing foraminal stenosis;
bilateral C5-C6 and C6-C7 paraspinals with neurogenic denervation myofascial pain; cervical
radiculitis; bilateral leg radiculopathy; fibromyalgia; interstitial cystitis; and a history of atrial
fibrillation, pulmonary embolism, and deep vein thrombosis. Her health and ability to work
began to deteriorate in December 2011 when she suffered a pulmonary embolism as a result of
DVT in her left leg. Her treating physicians prescribed anticoagulants (Coumadin) to treat her
DVT. She also had, however, a lengthy history of dysfunctional uterine bleeding that had not
responded to treatment. As a result, plaintiff constantly required ongoing care for the interplay
between the anticoagulants for the DVT and its effect on her dysfunctional uterine bleeding.

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This order contains both findings of fact (“Findings”) and conclusions of law
(“Conclusions”). To the extent that any Findings may be deemed conclusions of law, they shall
also be considered Conclusions. To the extent that any Conclusions may be deemed findings of
fact, they shall also be considered Findings. See Miller v. Fenton, 474 U.S. 104, 113-14 (1985).
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In February 2012 she experienced a sudden onset of chest pain, shortness of breath and
heart palpitations. She went to the emergency room and was admitted for a full “work up.” The
work up revealed no new DVT or pulmonary embolism. Following that hospitalization, her
primary care physician referred her to Dr. Inderjit Hansra-Godfrey, who examined plaintiff and
put her on Prednisone. Dr. Hansra-Godfrey instructed plaintiff to visit the emergency
department if her symptoms did not improve, and referred her for a polysomnogram (all night
sleep study).
On March 6, 2012, Dr. Leela Rao conducted a pulmonary evaluation. Dr. Rao noted that
plaintiff’s use of anticoagulants has caused her stress and anxiety and that she had some
unresolved sub-segmental thrombi. Plaintiff had been started on a small dose of anti-anxiety
medication and had been feeling better. Dr. Rao assessed plaintiff’s physical abilities using the
Eastern Cooperative Oncology Group (“ECOG”) performance status grading. She graded
plaintiff at a 2, meaning that plaintiff was ambulatory and capable of all self-care, unable to carry
out any work activities, but that she is up and about more that 50% of waking hours. Dr. Rao’s
plan was for plaintiff to continue taking Coumadin, repeat a thrombophilia work up in six
months because her lupus anticoagulant tests were positive, and at least six months of
anticoagulation because her December 2011 DVT was her first. Dr. Rao ordered plaintiff to
follow up with her gynecologist and opined that plaintiff might need a hysterectomy if she
required long term anticoagulation.
On March 7, 2012, plaintiff was evaluated by Dr. James McMahon, a cardiologist. Dr.
McMahon determined that plaintiff’s heart palpitations were low risk for V arrhythmia due to
known hyperdynamic LV systolic function and a structurally normal heart. Dr. McMahon

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placed plaintiff on a monitor to assess her tachypalpitations while plaintiff was on anticoagulants
for DVT.

Dr. McMahon also determined that plaintiff had an abnormal echocardiogram,

and that her condition remained stable.
On Monday, April 2, 2012, following plaintiff’s last day of work, she went to the
emergency room due to groin pain. She underwent several imaging studies including hip x-rays,
MRI of her hip, x-ray of the lumbar spine, and a CT scan of the abdomen with pelvis. On
April 6, plaintiff had reported pelvic and leg pain with fatigue, menstrual periods lasting 14-17
days, increased urinary frequency and positional pain when sitting down, leaning back while
sitting, reaching from side to side while sitting, and standing up. Plaintiff applied for short term
benefits by phone on April 3, 2012, and had been ordered to remain off work for four weeks by
Dr. Beth Froese, plaintiff’s physiatrist.
On May 1, 2013, Plaintiff applied for LTD benefits under the Plan. Defendants
determined that plaintiff’s regular occupation as a finance manager is considered a sedentary
occupation. Defendants approved plaintiff’s claim and provided her LTD benefits under the
policy’s “Regular Occupation” definition of disability retroactive to July 1, 2012, acknowledging
that plaintiff had been diagnosed with fibromyalgia, chronic myofascial pain, far left lateral disc
herniation of the L4-L5 with fact synovitis and foraminal stenosis, and comorbidity factors of
“asthma, interstitial cystitis, history of pulmonary embolism, and deep vein thrombosis.”
On June 6, 2013, plaintiff saw Dr. John Hong, a pain management specialist for a follow
up appointment because she was having pain in her left leg. She reported her pain as a 4 on a 10
point scale. Dr. Hong continued all of plaintiff’s medications and scheduled a follow up two
months later. She returned to Dr. Hong’s office less than a week later on June 12, 2013, due to

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lower back pain that had been radiating to her left anterior thigh. She characterized the pain as
intermittent, moderate and throbbing. The pain worsened when she sat and she felt relief when
she stood. Dr. Hong opined that plaintiff may benefit from an another transforaminal epidural
injection. She had been utilizing an increased dose of Norco to manage her pain, but Dr. Hong
cautioned her regarding the increased use of pain medication.
On June 12, 2013, Dr. Rao, plaintiff’s hematologist, evaluated her prior to scheduling
surgery for a hysterectomy. Dr. Rao summarized plaintiff’s hematological health in a letter to
other specialists. In that letter Dr. Rao explained that plaintiff’s clots had resolved, but since
going off the hormonal therapy she had had heavy irregular periods, and endometrial ablation
had not been effective after initial benefit. Dr. Rao recommended that plaintiff would need DVT
prophylaxis with anticoagulant therapy for eight weeks, an IVC filter if anticoagulation is not
going to be used during surgery, and a suppository to address hemorrhoidal bleeding.
On June 26, 2013, Dr. Hong administered a transforaminal epidural steroid injection on
plaintiff with sedation at L3-L4, L4-L5, and L5-S1. A week later, on July 4, 2013, Dr. Hong
conducted a follow up evaluation due to generalized pain, low back pain, and leg pain. He noted
plaintiff’s history of fibromyalgia and left sided lower back and left leg paresthesias. He also
noted evidence of lumbar spine degenerative changes and neuroforaminal stenosis, and did not
recommend further steroid injections because plaintiff was receiving only temporary relief.
Instead he recommended another surgical consultation and referred plaintiff to neurosurgeon,
Dmitry Ruban.

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Plaintiff saw Dr. Hong again on July 18, 2013, complaining of increased lower back pain.
Her pain medication, Nucynta, was no longer controlling her pain and Dr. Hong discontinued its
use.
On July 20, 2013, Dr. Hong sent plaintiff for lumbar imaging. The L4-L5 level
demonstrated a diffuse disc bulge with a left paracentral and foraminal broad-based disc
protrusion, resulting in severe narrowing of the lateral recess and moderate to severe left
foraminal comprise. The radiologist opined that there was mild central canal stenosis and
moderate facet and ligamentum flavum hypertrophic changes.
Plaintiff saw neurosurgeon Dr. Ruban on August 28, 2013. He opined that plaintiff was
suffering from a left-sided L4 and a component of L5 radiculopathy secondary to a broad-based
disc bulge at L4-L5. He discussed surgical options and advised that a fusion procedure would be
a much more invasive and difficult surgery than a discectomy, but that it might be necessary to
address plaintiff’s problems. Also on that day Dr. Harel Deutsch, co-director of the Rush Spine
Center evaluated plaintiff and opined that her latest MRI studies showed degeneration, lumbar
spondylosis, and far lateral disc herniation at L4-L5 on the left side. Due to the severity of
plaintiff’s pain and failed conservative measures, he considered surgery as an option and
recommended a left L4-L5 far lateral discectomy.
Plaintiff underwent the discectomy on September 5, 2013. Two weeks later she
contacted Dr. Deutsch’s office complaining that she was having severe pain in her left leg and
hip. The following day Dr. Deutsch prescribed a course of steroids. On September 24, plaintiff
reported that the steroids provided no relief, and Dr. Deutsch order an MRI. After reviewing the

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MRI Dr. Deutsch indicated that plaintiff would not benefit from further surgery and that her pain
was likely caused by fibromyalgia.
Two weeks later plaintiff saw Nitin Malhotra, a pain management physician associated
with Dr. Hong, due to pain in her left leg. Plaintiff also had increased swelling in her lower legs.
Dr. Malhotra recommended that plaintiff make an appointment with her surgeon as soon as
possible. On September 23, Dr. Rao evaluated plaintiff. Dr. Rao noted that no clots were found
during her venous Doppler studies the previous week. The following day, plaintiff saw Dr.
Hong. She had completed a course of steroids and found no benefit. She continued to take
morphine and Norco, both narcotic pain medications, which helped lower her pain from a 6 to a
5 on a scale of 10. She told Dr. Hong that her acute exacerbations of pain usually occurred when
she was standing or walking. Dr. Hong’s goal was for plaintiff to control her pain and taper off
the extended release medication due to the risks associated with opioid medication. Plaintiff saw
her primary care physician a few days later because the pain in her legs had gotten worse.
Plaintiff continued to see Dr. Hong for monthly visits. There appeared to be no
significant change in her pain location or intensity. She continued to experience left leg pain and
numbness and increased muscular tension and trigger point pain. She reported that she found
herself often dropping pans when she attempted to cook and had tried to strengthen her muscles
through physical therapy, which had not be successful. In November Dr. Malhotra treated
plaintiff’s myofascial pain syndrome with trigger point injections.
On November 26, 2013, plaintiff returned to Dr. Hong due to her ongoing pain. Her leg
pain had improved somewhat since the surgery, but her neck and upper back pain were constant.

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Physical therapy had not helped. Dr. Hong prescribed a new muscle relaxer and explained the
pain medication may affect her ability to drive and operate heavy machinery.
In early December 2013 plaintiff was experiencing fatigue, sore throat, respiratory pause
causing her to have difficulty breathing, and heart palpitations. Her primary care physician
admitted her to the hospital to be evaluated with a CT chest scan for chronic embolism in the
sub-segmental arteries, and a hematology evaluation, as well as a venous Doppler evaluation.
Plaintiff’s CT scan revealed linear nonocclusive central filling defects in the branches of her
right pulmonary artery, where a more occlusive clot was demonstrated on the earlier CT in
February 22, 2012. These defects may have represented a chronic clot. Dr. Rao ordered plaintiff
to undergo leg Doppler studies to look for other causes of her shortness of breath. The Doppler
examinations revealed no evidence of DVT in either of her extremities.
On December 19, 2013, she followed up with Dr. Malhotra, who reviewed her most
recent MRI of her spine and opined that a transforaminal epidural steroid injection may be
helpful for her residual post-surgical pain. Plaintiff could not, however, have an injection at that
time because after her recent pulmonary embolism she had been put on Xarelto, an
anticoagulant.
On January 20, 2014, plaintiff saw Dr. Hong for a follow up visit. At that time he
prescribed physical therapy. The next month, she saw Dr. Ruban who evaluated her neck pain
after her lumbar discectomy. Her leg pain had not completely resolved and her neck, shoulder
and arm pain traveling to her head with headaches and spinal pain had developed since the last
time he had evaluated plaintiff. Dr. Ruban examined her cervical spine MRI which revealed
evidence of disc degeneration at C5-C6 and C6-C7 level with disc bulging. Dr. Ruban did not

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see evidence of severe stenosis, and opined that plaintiff was suffering from axial neck pain with
pain in her head and down her spine, but because he did not see any instability, he did not
recommend surgical intervention until all conservative measures were exhausted. Plaintiff
continued to see Dr. Hong periodically. Dr. Hong had noted that Dr. Ruban did not recommend
surgery but plaintiff had continued to have upper extremity pain extending from the elbows
diffusely into the hands.
At the end of March 2014, plaintiff underwent an EMG /nerve conduction test which
revealed bilateral C5-C6 and C6-C7 paraspinals showing mild to moderated neurogenic
denervation changes. Dr. Li Zhang, the interpreting neurologist, opined that the objective study
was abnormal showing mild to moderate bilateral radiculopathy that was more significant on the
left side.
On April 17, 2014, plaintiff went to the emergency room due to chest pain radiating into
her right arm, headache, heart palpitations, and weakness. She was found to be in atrial
fibrillation with rapid ventricular response. She was immediately placed on a Cardizem drip and
her heart reverted back to normal. She was then admitted to the hospital for further evaluation.
She maintained a normal sinus rhythm overnight and Dr. McMahon released her the following
day.
Plaintiff visited Dr. Rao two weeks later. Dr. Rao determined that plaintiff is capable of
self-care but unable to perform any work activities. On May 19, 2014, Dr. Rao determined that
plaintiff’s left leg was swollen and changed her Xarelto prescription to 20mg per day, and
ordered follow up with the cardiologist.

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Plaintiff continued to see Dr. Hong or his associate throughout May and June of 2014.
She was controlling her pain with Opana ER 20mg/bid, in addition to Lyrica, tizanidine,
Cymbalta and Xanax for other relief.
Plaintiff continued to see her various doctors throughout July and August of 2014,
continuing to complain of pain and decreased range of motion in her neck and arms. On
August 27, 2014, she saw Dr. Hong, who noted that a wrist brace with heat had been helping
somewhat and noted that perhaps plaintiff may be taken off anticoagulants for a period of time
so that she could receive a cervical epidural injection.
Defendants terminated plaintiff’s LTD benefits as of August 31, 2014, concluding that
her subjective pain complaints were not supported by objective evidence.
DISCUSSION
The standard of review in an ERISA action seeking benefits is de novo unless the plan
provides the administrator with discretionary authority to determine eligibility for benefits.
Firestone Tire and Rubber Company v. Bruch, 489 U.S. 101, 115 (1989). The parties agree that
the instant plan does not provide such discretion and that this court’s review is de novo. Under
the de novo standard, rather than determining whether the administrator’s decision was arbitrary
and capricious, the court makes an independent decision as to whether benefits are due. Krolnik
v. Prudential Insurance Co. of America, 570 F.3d 841, 843 (7th Cir. 2009).
In the instant case, the policy provides that after receiving benefits for two years, the
definition of disability changes to “you are unable to perform all the Material Duties of any
Gainful Occupation.” Gainful Occupation is defined as an “occupation, for which You are
reasonably fitted by training, education or experience, is or can be expected to provide You with

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Current Earnings at least equal to 60% of Basic Monthly Earnings within 12 months of Your
return to work.” Based on the Plan definitions and the nature of plaintiff’s position, the parties
agree that the lone issue for the court is whether the evidence establishes that plaintiff can, or
cannot, work in a sedentary capacity on a full time basis.
As an initial matter, the parties have engaged in lengthy arguments about whether
defendant has altered its decision about plaintiff’s disability without any new evidence as
plaintiff argues, or, as defendants argue, they initially awarded plaintiff two years of benefits
under the policy limitation for self-reported symptoms, which provides:
If Your disability is primarily based on Self-Reported symptoms, Your benefits
will be limited to 24 months while You are insured under the Policy, unless You
are confined as a resident impatient in a Hospital at the end of that 24-month
period. The monthly benefit will be paid during the confinement.
Self-Reported Symptoms means the manifestations of Your condition which You
tell Your Physician, that are not verifiable using tests, procedures or clinical
examinations standardly acceptable in the practice of medicine. Examples of
Self-Reported Symptoms include, but are not limited to headaches, pain, fatigue,
stiffness, soreness, ringing in ears, dizziness, numbness, and loss of energy.
The resolution of this argument is unnecessary. Whether defendants initially concluded
that plaintiff was unable to perform the material functions of her job as plaintiff argues, or
whether defendants simply awarded plaintiff benefits based on her subjective self-reported pain
is irrelevant to whether plaintiff had on August 31, 2014, or has now the ability to work full time
in the sedentary position.3 Based on the court’s review of the medical history, including the

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The court rejects any argument that the self-reported limitation bars plaintiff from
receiving any benefits beyond the two years she has already received. The limitation “applies to
illnesses or injuries that are diagnosed primarily based on self-reported symptoms rather than all
illnesses or injuries for which the disabling symptoms are self-reported.” Weitzenkamp v. Unum
Life Ins. Co. of America, 661 F.3d 323, 330 (7th Cir. 2011) Plaintiff’s disabling pain symptoms
continue...
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number of injections and surgery plaintiff received and continues to receive to alleviate her pain,
the court concludes that the answer to that question was and continues to be no.
Indeed, defendants cannot and have not attempted to dispute plaintiff’s history of
treatment in “search of pain relief.” Instead, they argue that plaintiff has not objectively
established that she was incapable of performing a sedentary occupation as a result of her pain.
Relying on Holmstrom v. Met. Life Insurance Co., 615 F.3d 758, 770 (7th Cir. 2010), defendants
argue that “[a] distinction exists however, between the amount of fatigue or pain an individual
experiences which . . . is entirely subjective, and how much an individual’s degree of pain or
fatigue limits his functional capabilities, which can be objectively measured.” (Citing
Williams v. Aetna Life Ins. Co., 509 F.3d 317, 322 (7th Cir. 2007). Thus, without disputing
plaintiff’s subjective complaints, defendants argue that the objective tests in the record
demonstrate that plaintiff is capable of performing at a sedentary level, which requires sitting six
to eight hours a day. See Juszynski v. Life Insurance Co. of North America, 2008 WL 877977
*7 (N.D. Ill. Mar. 28, 2008).
The record contains two FCEs performed on plaintiff. The parties dispute how those
reports should be read. The first, conducted on December 8, 2014, appears to indicate a physical
demand category of “light,” which is one step above sedentary. Plaintiff argues that the report
simply indicates the level at which plaintiff was tested, but the demand category was listed under
“results.” The report indicates, however, that plaintiff had difficulty maintaining one position for
over 15 minutes, affecting her ability to perform in regular full or part time jobs. Her pain

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...continue
are explained by objectively diagnosed infirmities including fibromyalgia, MRIs and surgery.
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increased while performing standing, walking, sitting, and trunk activities. Significantly, the
comments section of the report indicates that plaintiff was “able to sit for only 15 minutes,” and
“stand for 10 minutes.” These results are hardly consistent with an ability to work full time at a
sedentary level, let alone a light level.
The second FCE conducted on April 6, 2016, also lists plaintiff’s “demonstrated physical
demand level” at light. Again, defendants rely on this listing to argue that plaintiff does not
qualify for benefits because she can perform at a light level, which exceeds the necessary
sedentary level. This is, however, an exaggeration of the full report, for the actual testing results
do not suggest that plaintiff could perform full time at any level. For example, the test results
indicate that plaintiff could sit at a 26 minute duration, reporting at 24 minutes that she was in
extreme pain. She was again in extreme pain after standing for 5 minutes. Again, these results
are inconsistent with an ability to perform at a sedentary capacity for a full day.
Defendants denied plaintiff’s benefits based on the opinions of United of Omaha’s two
clinical experts’ review of the medical records, neither of whom ever examined plaintiff. First,
Nurse Terri Cortese, opined that it “would be reasonable to expect [plaintiff] to be able to sit for
6 hours out of an 8 hour day, lifting no more than 10 pounds occasionally with possible frequent
lifting of small objects weighing less than 10 pounds.”
Next, Dr. Thomas A. Reeder, defendant United of Omaha’s medical director, determined
that plaintiff’s medical records: (1) did not document any myelopathy, neuropathy, radiculopathy
or brachial neuritis; (2) demonstrated no focal neurological deficits, impaired range of motion,
muscle weakness or neurological abnormalities; (3) contained defuse pain complaints, regional
pain symptoms, positive Waddell’s tests and non-anatomic sensory findings, which all suggest

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extreme symptom magnification; (4) do not contain any evidence of uncontrolled asthma,
uncontrolled hypertension and adrenal insufficiency; (5) do not contain any evidence of
impairment as a result of interstitial cystitis; (6) do not contain any evidence of impairment as a
result of dysfunctional uterine bleeding; (7) do not contain any evidence of anemia; (8) evidence
resolution of plaintiff’s deep vein thrombosis and pulmonary embolism from December 2011 do
not contain any evidence of further thrombosis or of a hyper-coagulable state; (9) document
exercise stress testing of greater than 10 METs just prior to the date of disability provided
objective evidence of plaintiff’s work capacity, greatly succeeding the demands of a sedentary
occupation; and (10) contain evidence of somatoform symptoms which suggests a psychological
disorder, although there is no evidence of cognitive and psychological impairment.
Dr. Reeder then sent letters to a number of plaintiff’s treating physicians, asking them to
respond to his conclusions, including a clarification regarding their treatment and restrictions and
limitations. In particular, his letter to Dr. Hong, plaintiff’s pain treater, stated that the
restrictions that Dr. Hong had placed on plaintiff “did not appear to be consistent with, or
supported by the documentation in her records.” Each of Dr. Reeder’s letters indicated that if he
did not get a response within 10 days, he would assume that the recipient was in agreement with
his (Reeder’s) conclusions that plaintiff was able to perform at a sedentary level. Not
surprisingly, none of plaintiff’s treating doctors responded to Dr. Reeder’s challenge. Defendant
argues that by failing to disagree, those treaters have tacitly agreed. The court disagrees. The
letters were obviously written in a manner designed to lure the recipient into either agreeing with
Dr. Reeder’s limited and biased review of the records, or enter into a war of diagnoses with him.

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There is no upside for any doctor to engage in a dispute with an in-house physician. Thus, the
court places no significance on the doctors’ silence to such a biased letter.
The court finds that the opinions of Dr. Reeder and Nurse Cortese are entitled to little
weight. First, they are undoubtably biased given that both work for defendants. As for Nurse
Cortese, the court finds nothing in the medical records to even marginally support her opinion
that plaintiff could be expected to be able to sit for 6 hours out of an 8 hour day. That opinion
appears to be woven out of whole cloth.
As to Dr. Reeder, as plaintiff points out, in a very similar case, his credibility and fairness
has been questioned by a district court, given his failure to examine the plaintiff in that case and
his willingness to ignore objective evidence in the medical records. Williams v. United of
Omaha Life Ins. Co., 2013 WL 5519525 *14 (N.D. Ala. Sept. 30, 2013). Dr. Reeder has
similarly ignored the objective evidence in the instant case, particularly the reports of Dr. Hong,
plaintiff’s pain treater, the MRI indicating neurogenic denervation changes and bilateral
radiculopathy, the fibromyalgia diagnosis, and Dr. Rao’s report that plaintiff was unable to
perform any work activities. Indeed, Dr. Reeder’s conclusion appears to be based exclusively on
the reports of doctors treating plaintiff’s maladies unrelated to her pain that, not surprisingly, did
not prevent her from working. Yet, it is plaintiff’s extreme pain that supports her claim for LTD
benefits. It thus appears that “in reaching [their] decision to terminate plaintiff’s benefits,
defendant[s] relied on selective excerpts from it’s medical records rather than the record in its
entirety.” Wilkes v. Unum Life Ins. Co. of America, 2002 WL 926279, *10 (W.D. Wisc. Jan.
29, 2002).

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Thus, the court concludes that defendants’ termination of benefits is “weakened by the
fact that defendant[s] did not conduct an independent medical examination . . . of plaintiff before
reaching [their] decision.” Instead, they relied on their own physician who in turn relied on only
a portion of plaintiff’s medical records and had never seen or examined plaintiff. “The report of
a non-examining, non-treating physician should be discounted when contradicted by all other
evidence in the record.” Id. at *8.
The court also places little weight on the “conclusions” in the FCEs that plaintiff
demonstrated light physical demand levels. As noted already, none of the underlying test results
support a finding of an ability to perform light work full time. Moreover, as noted in Williams,
an FCE provides information as to what physical functions a plaintiff could perform for 2 to 3
hours on a particular given day. It does not effectively demonstrate a plaintiff’s work capacity
day in and day out. A more accurate evaluation would take place over a number of consecutive
days to “gage plaintiff’s response on the following day to the effects of the previous day’s
testing.” Id. at *13. Nothing in those evaluations accurately measured the level of pain plaintiff
suffers or how that pain affects her judgment or distracts from her work tasks. “The evaluation
is only an accurate measurement of her physical ability during those three hours of that particular
day, and can be misleading in a case where the underlying physical condition is fibromyalgia and
rheumatoid arthritis, conditions causing significant pain.” Id.
The court places greater significance on the reports of plaintiff’s treating physicians
because they are more familiar with plaintiff’s conditions and circumstances. See Israel v.
Colvin, 840 F.3d 432, 437 (7th Cir. 2016). In particular, the court credits Dr. Hong’s reports that
plaintiff could sit for no more than four hours per day limited to intervals of one to two hours.

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Even this report, which is more liberal than the FCEs that indicate that plaintiff can sit for only
15 or 26 minute intervals, supports a finding that plaintiff cannot work full time at a sedentary
level.
The court also places greater significance on the report of Dr. Jared Reeves, a neutral
expert who issued an independent report to the ALJ deciding plaintiff’s claim for social security
benefits. Dr. Reeves concluded that plaintiff was disabled due to a disorder of the spine, citing
to: (1) plaintiff’s two MRIs of the lumbar spine dated April 22, 2012, and July 20, 2013; (2) a
positive straight leg test; and (3) documented weaknesses of both legs.
Additionally, the court also places greater weight on ALJ Johnson’s decision that
plaintiff is totally disabled. For purposes of social security benefits determinations, “disability”
is defined as the “inability to engage in any substantial gainful activity.” 42 U.S.C. §
423(d)(1)(A). Of course, a decision by the Social Security Administration to award benefits is
not binding on this court. Anderson v. Operative Plasterers and Cement Mason’s Int’l Ass’n
Level 12 Pension & Welfare Plans, 991 F.2d 356, 358-59. Nonetheless, courts in this district
have found that such findings are compelling evidence of a claimant’s disability with respect to
an ERISA claim. Juszynski, 2008 WL 877977 at *12 (listing cases).
In short, the medical records indicate that plaintiff suffers from a significant number of
infirmities that, taken together, leave her in significant pain. She has continually undergone
treatment to alleviate that pain but, in Dr. Hong’s words, has reached maximum medical
improvement. The record unquestionably demonstrates that in her current physical condition she
is unable to work full time at a sedentary level. Consequently, the court concludes that the

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record demonstrates that plaintiff is disabled as defined by the Plan and awards plaintiff LTD
benefits beginning on September 1, 2014.
Plaintiff has requested an award of reasonable attorney’s fees and costs. ERISA
expressly provides that “the court in its discretion may allow a reasonable attorney’s fee and
costs of action to either party.” 29 U.S.C. § 1132. In light of the court’s conclusion that plaintiff
is entitled to LTD benefits, and that defendants’ denial of those benefits was unjustified, it
exercises its discretion to award a reasonable attorney fee. See Hardt v. Reliance Std. Life Ins.
Co., 560 U.S. 242, 255 (2010).
Finally, plaintiff requests an award of prejudgment interest. ERISA does not expressly
provide for such an award. The Seventh Circuit has held, however, that such an award is
presumptively appropriate. Fritcher v. Health Care Service Corp., 301 F.3d 811, 819-20 (7th
Cir. 2002). Consequently the court awards plaintiff prejudgment interest at the prime rate. See
Gorenstein Enterprises, Inc. v. Quality Care-USA, Inc., 874 F.3d 431, 436 (7th Cir. 1989).
CONCLUSION
For the reasons stated above, plaintiff’s motion for judgment (Doc. 44) is granted, and
defendant’s motion for judgment (Doc. 47) is denied. Plaintiff is directed to prepare and present
a proposed judgment order to the court on September 13, 2017, at 9:15 a.m. With respect to the
award of attorney’s fees, the parties are instructed to comply with Local Rule 54.3.

ENTER:

August 30, 2017

__________________________________________
Robert W. Gettleman
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United States District Judge

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