Atkins v. Guardian Life Insurance Company of America
Filing
27
MEMORANDUM OPINION & ORDER: Defendant's decision to terminate Plaintiff's benefits was neither arbitrary nor capricious. Accordingly, IT IS HEREBY ORDERED that Defendant's Motion for Judgment as a Matter of Law be SUSTAINED. Signed by Judge Henry R. Wilhoit, Jr on 8/26/2013.(KSS)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
ASHLAND
Civil Action No. 12-70-HRW
FRANCES ATKINS,
v.
PLAINTIFF,
MEMORANDUM OPINION AND ORDER
GUARDIAN LIFE INSURANCE COMPANY OF AMERICA,
DEFENDANT.
This matter is before the Court upon the parties' cross Motions for Judgment as a Matter
of Law [Docket No. 19 and 20]. The motions have been fully briefed by the parties [Docket Nos.
21,22,23,24,25 and 26]. The Court having reviewed the parties' briefs as well as the
Administrative Record [Docket No. 15] finds that the Defendant is entitled to judgment as a
matter of law.
I.
FACTUAL AND PROCEDURAL BACKGROUND
This lawsuit arises from Defendant Guardian Life Insurance Company of America's
(hereinafter "GUC') termination of Plaintiff's Frances Atkins' long-term disability benefits.
Plaintiff seeks reinstatement of her benefits under § 502(a)(l)(B) of ERISA, 29 U.S.C. § 1132.
In addition to a reinstatement of her benefits, Plaintiff seeks an award of attorneys' fees and
costs.
A.
The Plan
Plaintiff began working as a Family Youth Specialist at Specialized Alternatives for
Family and Youth (hereinafter "SAFY") in July of 2004.. As a benefit of her employment, she
1
obtained long-term disability insurance coverage under a Guardian Group Insurance Plan
sponsored by SAFY ("the Plan"). The Plan is insured and administered for purposes of claims
adjudication by GLIC. The Plan expressly designates GLIC as the "Claims Fiduciary with
discretionary authority to determine eligibility for benefits and to construe the terms of the plan
with respect to claims." [See Administrative Record (hereinafter "ARlO), Docket No. 15 at 43].
The Plan also provides, "[w]e [GLIC] decide: (a) if you are eligible for this insurance; (b) if you
meet the requirements for benefits to be paid; and
what benefits are to be paid by this plan."
[AR 24].
The Plan offers monthly disability benefits equal to 60 percent of a participant"s
"insured earnings," as defined by the Plan. [AR 29]. A participant is "disabled" if she has
"physical, mental or emotional limits caused by a current sickness or injury" and as a result of
those limits she "[is] not able to perform the major duties of [her] own occupation or any gainful
work." [AR 37]. The "own occupation" definition of disability applies during the first
twenty-four months of benefit payments; thereafter, the "any gainful work" or "any occupation"
standard applies. Id. Upon a determination of disability by GLIC, benefits are payable
following a ninety-day elimination period. [AR 23]. Plan benefits are offset by certain kinds of
other income, such as workers" compensation benefits and Social Security disability benefits.
[AR 101].
Generally, "any occupation" benefits are payable for as long as the disability continues,
up to age 65. Id. Benefits terminate prior to age 65, if, among other things, the participant is no
longer disabled or fails to provide "required current proof of loss." [AR 27].
"Special limitations" can also affect the maximum period for which benefits are payable.
2
For a disability due to mental or emotional conditions, the maximum payment period is
twenty-four months. [ AR 28]. A twelve-month lifetime payment limit applies to "subjective
disorders," defined as "a condition that cannot be proved using current clinical standards." Id.
The Plan also excludes disabilities due to a pre-existing condition until the participant has
been actively employed by the plan sponsor for twenty-four months. [AR 105]. Pre-existing
conditions are those for which the participant was treated during the six-month period
immediately preceding the effective date of the participant"s coverage under the Plan. Id.
B.
The Accident
On December 10, 2004, Plaintiff was working on a case near Vanceburg, Kentucky. She
left the foster home and was on her way to pick up some clothing for the child when she was
struck, nearly head-on, by another vehicle. Her head struck the steering wheel and she was
briefly rendered unconscious. She was transported by ambulance from the scene of the accident
to Meadowview Medical Center and was released that day. That evening she experienced
dizziness and nausea as well as neck and back pain. The next day she went to the Emergency
Room at Kings Daughters Medical Center. X-rays revealed "mild frontal scalp soft tissue
swelling." [AR 322]. She was released that day. On December 16,2004, Plaintiffretumed to
King"s Daughters for a CT examination of her cervical spine, which revealed "[n]o evidence of
post traumatic injury." [AR 321].
C.
Plaintiff's Application for Disability
GLIC received Plaintiff's application for long-term disability benefits and supporting
documentation on May 17, 2005. [AR 292-337]. According to the attending physician's
statement Plaintiff's diagnoses were "Displaced Cervical & lumbar Disc."; "Vestibulopathy";
3
and "Brain Concussion." [AR 300]. Her complaints were "severe neck & low back pain." Id.
GLIC requested medical records from Plaintiffs physicians. [AR 344-52]. GLIC also
requested additional information from the Plaintiff, including a copy of an Independent Medical
Evaluation ("IME") report relating to her workers" compensation claim. [AR 398]. In addition,
in June 2005 GLIC"s claims specialist referred the file to Karen Waiczer, R.N. for follow-up and
further investigation with respect to the Plaintiff's medical issues. [AR 128].
On July 19, 2005, GLIC paid Plaintiff four months worth of benefits ($5,968.00) "on an
administrative basis to assist [her] during [GLIC"s continued] investigation" of her claim. [AR
584]. The payment was made under a reservation of rights and was based on Plaintiff's
conditions of displaced cervical and lumbar disc and concussion, which were not pre-existing
conditions under the terms of the Plan. [AR 585]. GLIC referred the matter to its Special
Investigation Unit to follow up on reports that Plaintiff was working at her husband's health food
store instead of reporting for work at SAFY. [AR 580-82]. Monthly benefit payments were made
to Plaintiff during GLIC's investigation.
Plaintiff continued to see Dr. Bansal for various complaints of back, neck, and knee pain,
along with problems with concentration, memory, and dizziness, during the remaining months of
2005 and into 2006. [E.g., AR 662,661,660,658-59,656-57]. Dr. Bansal performed a nerve
conduction study and electromyography on May 19, 2005. The report states: "[e]ssentially
normal study; [t]here was no indication of any cervical radiculopathy or lumbosacral
radiculopathy and there was no evidence of any myopathy or neuropathy from this study." [AR
654-55]. On November 22,2005, Plaintiff was evaluated at Tri-State Otolaryngology for
problems walking due to poor balance. [AR 527-28]. The evaluator found "no significant
4
evidence" to support a conclusion that Plaintiff's disequilibrium was due to "vestibular insult"
and recommended physical therapy. [AR 528].
Plaintiff underwent an extensive
neuropsychological examination which entailed visits on July 20, September 27, October 30,
2005, and January 17,2006. [AR 608-3 I]. As this evaluation was conducted over an extended
period of time, Plaintiff requested and GLIC gave her an extension of time for submitting
information needed to complete the review of her claim. [AR 136-40].Meanwhile, in December
2005 GLIC learned that the Plaintiff had been awarded Social Security disability benefits in
January 2004 for depression, anxiety, and panic attacks. [AR 536].
By letter dated June 1,2006, GLIC notified Plaintiff that she was eligible for Plan
benefits. AR669-70. Such benefits were payable under the Plan's "own occupation"
definition of disability. GLIC also determined that the Social Security disability benefits Plaintiff
had been receiving since January 2004 were properly offset against benefits under the Plan and
requested repayment of $2,970.82 in overpayments. [AR 676-77]. Plaintiff was not able to
satisfy the overpayment in a lump sum, so GLIC began withholding installments from her
monthly benefits. [AR 683].
D.
GLIC's Determination of Non-Eligibility for "Any Occupation" Benefits
GLIC continued to monitor Plaintiff's condition, seeking information concerning her
ongoing medical care and her own assessment of the effect of her symptoms on daily activities.
[AR 698-70]. On October 31, 2006 and again on February 12, 2007, GLIC notified
Plaintiff that effective March 11, 2007, the Plan's "any occupation" definition of disability
would apply, such that benefits would continue if Plaintiff was "unable to perform the duties of
5
any occupation for which [she was] suited by education, training, or experience." [AR
714, 715]. It was not until September of2007 that GLIC received the information
necessary to complete its review; benefit payments continued in the meantime.
In connection with GLIC's review, Kevin Duncan, an independent functional capabilities
therapist retained through United Review Services, Inc., the evaluated Plaintiff on August 2, 2007.
He noted that her participation was self-limiting in seventeen out of twenty-one tasks. [AR
769]. Such performance indicates that it is likely that "psychosocial and/or motivational factors
may be influencing physical performance." [AR 770]. Still, the functional capabilities evaluation
("FCE") report concluded that the Plaintiff's results "indicate the ability to function at the
sedentary level of work at this time," which conclusion was consistent with a Physical
Capabilities Evaluation completed by Dr. Bansal on April 26, 2007. [AR 769; AR 737-39].
GLIC forwarded a copy of the Mr. Duncan"s FCE report to Dr. Bansal for comment on August
23, 2007, and telephoned his office twice, but did not receive a response from the doctor. AR
172].
The medical information was also reviewed by a GLIC's rehabilitation specialist for
purposes of performing a transferable skills assessment. [AR 787-825]. Taking into account
Plaintiff's performance on the FCE and her education and professional experience, the analyst
identified several viable employment options for the Plaintiff which were available in the
6
relevant geographic area, Northeast Kentucky, and which met the target wage, $11.86 per hour.
[AR 787].
By letter dated September 11, 2007, GLIC advised the Plaintiff of its determination that
she was not eligible for benefits under the Plan's any occupation standard. [AR 830-37]. Based
on that evidence, GLIC concluded that the Plaintiff was not eligible for additional benefits under
the terms of the Plan as of March 11, 2007 -the effective date of the "any occupation" standard.
[AR 835]. GLIC nevertheless paid benefits through September 10,2007 while expressly stating
that such accommodation was not an admission of liability. Id. The September 11, 2007 letter
also advised the Plaintiff of her right to appeal the adverse determination, described the
information that should be provided in support of appeal, and enclosed a copy of the Plan's
appeal procedures. [AR 835-37].
E.
Appeal of GLIC's Adverse Benefits Determination and Conditional
Approval of the Claim Under the "Any Occupation" Standard
Plaintiff appealed GLIC's September 11,2007 decision on March 7,2008. [AR 839]. In
support of the appeal, Plaintiffs counsel submitted a September 19,2007 medical report from
Dr. BansaL AR 840-41. According to Dr. Bansal, "the patient at this time is totally disabled to
be employed into any sustained gainful employment, even light duty work, even on a part-time
basis because of symptoms of post concussive syndrome which has nothing to do with her
chronic cervical, thoracic and lumbosacral sprain or other physical problems." [AR 841].
7
GLIC's claims representative referred the file to medical specialist Dawn Wright, R.N.
[AR 178]. Ms. Wright reviewed the medical records in the file, with particular attention to the
cognitive problems referenced by Dr. Bansal and others. [AR 179-85]. She noted that the FCE
had demonstrated that Plaintiff was capable of working from a physical standpoint, but it was not
clear that Plaintiffs cognitive status had been taken into account. [AR 184]. Ms. Wright
concluded, "[i]t appears that medical supports the functional limitations and restrictions as set
forth by Dr. Bansal for own and any occupation" and recommended a neuropysch IME ''to gain
an objective assessment of the claimant's functional limitations for any occ[upation] from a
cognitive perspective." [AR 184-85].
On April 4, 2008, GLIC reversed its September 2007 decision and reinstated benefits
as of September 11, 2007, subject to its right to continued investigation of the claim. [AR
847-48; AR 849].
F.
GLIC's Continued Investigatiou and Determination of Special
Limitation
Through PsyBar, LLC, GLIC referred the file to an independent neuropsychologist, Nick
A. DeFilippis, Ph.D., for a file review in July 2008. [AR 905-12]. Dr. DeFilippis responded to a
number of questions posed by GLIC. His July 23, 2008 report is marked by repeated references
to examining physicians' observations of possible malingering and conscious exaggeration of
8
symptoms. E.g., AR 910,911,912. He also discussed Plaintiffs history of drug and alcohol
abuse (reportedly dating from 1981) and her continuous use of narcotic pain relievers and
tranquilizers while being treated by Dr. Bansal following the December 2004 accident. [AR 909].
Dr. DeFilippis concluded that "the records do not document the presence of psychological or
neuropsychological impairments in this claimant because of the lack of historical information
and indications of her unreliability in reporting difficulties." [AR 912]. Among other things, he
recommended that she "speak to a mental health care professional who can explain to her that
she is showing signs of conscious exaggeration of problems and that there are many
inconsistencies in her records." ld.
In accordance with this information, GLIC undertook to schedule a neuropsychological IME,
again with the assistance of PsyBar. Efforts were made to identify a qualified neuropsychologist
within a reasonable traveling distance from the Plaintiff s home without success. [AR 186, 191].
Finally, GLIC arranged for a neuropsychologist, 1. Robert Yohman, Ph.Dto conduct the testing.
[AR 193]. The examination took place on December 18,2008.
Dr. Yohman's observations and conclusions closely resembled those of Dr. Phifer
in many respects. Dr. Yohman reported that the Plaintiff had arrived for the exam twenty-five
minutes late "and immediately began crying and cursing the examiner, saying "[y]ou all have
f----ed me over."" [AR 978]. Dr. Yohman, like Dr. Phifer, also concluded that several of the test
results were invalid due to inconsistent or poor effort. [AR 986,987-88,989]. During the exam,
9
Plaintiff relayed her family history, stating that she had been both physically as well as sexually
abused and had a history of drug and alcohol abuse. Dr. Yohman opined: "[t]here is no objective
evidence of consequences of a traumatic brain injury. There is no evidence of a panic disorder.
Her failure on specific effort measures, as well as other indicators of inconsistent or poor effort,
makes the diagnosis of Malingering most appropriate. Id. He further concluded "[t]here are no
limitations in the claimant"s ability to perform daily tasks now or in the future." [AR 991].
In furtherance of its investigation, GLIC sought a multi-disciplinary peer panel review
from MLS National Medical Evaluation Services, Inc. (hereinafter "MLS"), an independent
medical review consultant. [AR 1209-1209]. This review was done by Dr. Applebaum who
diagnosed Plaintiff as "malingering." He opined: "[t]here is no documentation of significant
post-concussive syndrome except per the patient's subjective complaints of headaches and
memory loss." [AR 1222].
GLIC then arranged for an psychological IME by Dr. Bobby Miller in on January 14,
2010. [AR 1323]. He diagnosed Plaintiff wit Dissociative Identity Disorder and Borderline
Personality Disorder. Dr. Miller further explained that the origin ofthose conditions "is
ritualistic childhood physical and sexual abuse perpetrated by her mentally ill mother." Id. He
concluded that although she had recovered from her post-concussive disorder, the continues to
meet diagnostic criteria for Postconcussive Disorder but her concussion allowed her
personality to disintegrate." Her psychological limitation, according to Dr. Miller, "is that she is
unable to contain her alter egos and her preferred personality state is abrasive, defensive, is not
10
intelligent and lacks education." [AR 1329]. With respect to the Plaintiff's ability to work,
Dr. Miller noted that "Mrs. Atkins is currently working" on a daily basis at a business owned
by her and her husband selling vitamins and nutritional supplements. Id. He also opined,
however, that "[i]t is unlikely that she will work again as a mental health professional." [AR
1330]. On May 17,2010, GLIC advised Plaintiff's attorney that it had "determined that Ms.
Atkins is unable to return to work performing the major duties of any gainful occupation, due to
a diagnosis of multiple personality disorder, which is a mental and/or emotional condition and
not due to a physical condition." [AR 1363]. As such, effective May 11,2010 Plaintiff's
disability payments would be issued under the "Special Limitations" provisions of the Plan,
specifically, the twenty-four month limitation for mental or emotional disabilities. Id.
Accordingly, benefits would continue until May 11,2012 and then terminate.
G.
Plaintiff's Appeal and GLIC's Final Decision
Plaintiff's appealed to no avail. The final decision of the Plan Administrator provided, in
pertinent part:
Based on the preponderance ofmedical evidence, the condition causing limitations
and restrictions that may interfere with gainful work for Ms. Atkins is Dissociative Identity
Disorder. This condition is considered a mental or emotional condition, therefore, falls
under the Special Limitations provision of the plan which limits the maximum payment for
such conditions to 24 months.
At the conclusion of our investigation in 2010, Guardian made the determination to
apply the Special Limitations provision as of the beginning of the next benefit payment
period, or May 11,2010. This decision was re1ayed to you in our May 17, 2010 letter.
Therefore, the maximum payment period of 24 months will expire on May 10, 2012.
11
Based upon our appeal review, we have determined that this decision is correct
and in accordance with [the Plan].
[AR. 1414].
This lawsuit followed.
II.
STANDARD OF REVIEW
Where, as here, an ERISA plan grants the administrator discretionary authority to
determine benefit eligibility, this Court reviews benefit denials or terminations under the
arbitrary-and-capricious standard. Shelby Cnty. Health Care Corp. v. lviajestic Star Casino, 581
F.3d 355, 365 (6th Cir.2009). The administrator's decision will be upheld" ifit is the result ofa
deliberate, principled reasoning process and if it is supported by substantial evidence. "Glenn v.
MetL~re,
461 F.3d 660, 666 (6th Cir.2006) (quoting Baker v. United Mine Workers ofAm. Health
& Ret. Funds, 929 F.2d 1140, 1144 (6th Cir.1991)), afJ'd, 554 U.S. 105 (2008). Review for
arbitrariness or capriciousness "is the least demanding form ofjudicial review of administrative
action .... When it is possible to offer a reasoned explanation, based on the evidence, for a
particular outcome, that outcome is not arbitrary or capricious." Perry v. United Food &
Commercial Workers Dist. Unions, 405 & 442,64 F.3d 238,241 (6th Cir.1995) (citations and
internal quotation marks omitted). This Court must accept a plan administrator's rational
interpretation of a plan even in the face of an equally rational interpretation offered by the
participants." Morgan v. SKF USA, Inc., 385 F.3d 989, 992 (6th Cir.2004).
12
III.
ANALYSIS
There can be no doubt that the Plan's terms authorize limiting benefits to twenty· four
months for mental/nervous disabilities. The Plan's "Special Limitations" section provides:
We limit the maximum payment period, if you are disabled due to: (a) a
mental or emotional condition; (b) drug or alcohol abuse; and ( c)a
subjective disorder. ....
The maximum payment period for all periods of disability due to
mental or emotional conditions or drug or alcohol dependence is
24 months. This is a combined maximum for all such
conditions and all periods of disability.
"Mental or emotional conditions" include, but are not limited to, H(a) neurosis; (b)
psychoneurosis; ( c) psychosis; (d) psychopathy; and (e) any other mental or emotional
disorder,
including those caused by chemical imbalance."
[AR 39].
In light of these provisions, the question becomes whether GLIC's classification of
Plaintiff s disability as falling within the definition of mental or emotional conditions
IS
supported by substantial evidence and resulted from a principled decision·making process. Plaintiff
does not dispute the diagnoses of dissociative identity disorder and borderline personality disorder.
Nor does she deny that these are mental/emotional, as opposed to physical, conditions. Nor does
she question that the Plan unambiguously limits benefits for a mental/emotional condition to
twenty-four months. Rather, in seeking reinstatement ofbenefits, Plaintiff maintains that the Plan's
13
Special Limitations provision does not apply to her because her limiting mental condition was
triggered by the December 2004 car accident. However, there is evidence in the Administrative
Record, for example, Dr. Miller's opinion, that her mental illness existed long before the accident
and is, in fact, attributable to abuse she suffered as a child.
Indeed, Plaintiff acknowledges she suffered from psychological problems prior to the
incident. As summarized by the Plaintiff, the argument is that "there is ample evidence in the record
that the origin of Plaintiff's admitted disability is due to" physical injuries and impact, made more
complex by the existence of mental problems." [Docket No. 22 at 3]. That statement reveals a
misunderstanding of the nature of "arbitrary and capricious" judicial review. The issue is whether
substantial evidence supports the administrator"s decision and not whether there is evidence that
might support a different result. See, e.g., Morgan v. SKF USA, Inc., 385 F.3d 989, 992 (6 th Cir.
2004). Moreover, the Plaintiff bears the heavy burden ofproof"to show not only disability, but that
the decision was arbitrary and capricious." Rochow v. Life Ins. Co. ofAm., 482 F .3d 860, 865 (6 th Cir.
2007).
Moreover, it is clear from the record that the injuries resulting from the 2004 car accident
were resolved as early as 2006. The injuries Plaintiff suffered were so minor that she was released
from Meadowview Regional Medical Center the same day after x-rays revealed no broken bones.
When she was examined the next day at King"s Daughters, all studies were essentially negative.
There were no broken bones, no evidence ofinjury to the cervical spine, no abnormality with respect
to the lumbar spine, normal studies ofthe chest and pelvis, and no acute intracranial hemorrhage was
14
found on a CT scan of the head. Plaintiff did have" [m] ild frontal scalp soft tissue swelling" - a
small bump on her forehead. [AR 322]. As early as January 6, 2005, an independent examining
physician concluded that "this claimant"s diagnosis referable to the automobile accident of 1211 0/04
is resolved acute cervical and lumbar strains and contusion to both knees and resolved closed head
injury." [AR 579].
Plaintiff relies on a discussion of the "physical" / "mental" distinction found in Roubal v.
Prudential Ins. Co. ofAm., 2009 WL 2487978, Civil Action No. 3:08-cv-10-H (Aug. 14,2009).
See Doc. 24 at 5-6. The underlying facts of that case are described in an earlier opinion - Roubal
v. Prudential Ins. Co. of Am., 2009 WL 1034144, Civil Action No.3 :08-cv-1 O-H (Apr. 16,2009).
The plaintiff was injured in an automobile accident in March 1999 which necessitated a thirteen-day
stay at the University of Louisville hospital. He returned to part-time work one month later; was
briefly hospitalized and stopped working in December 1999; and had gall bladder surgery in
February 2000. Prudential provided long-term disability benefits from June 8, 2000 to December
31, 2000 for reasons of the surgery and depression.
The plaintiff contended that Prudential should not have terminated his benefits in
December 2000. Id. at *1. More specifically, the plaintiff claimed that he suffered from
cognitive deficiencies and physical limitations as result of injuries sustained in the March 1999
accident. The court had no trouble in upholding Prudential's determination that the plaintiff was
not precluded from performing his job due to physical1imitations. ld. at *2. "The real issue
here," the court noted, "concerns Plaintiff's neurological disabilities, which everyone agrees
15
comprise the most serious of his complaints." Id. at *3. On that issue, the court determined that
Prudential's denial of disability benefits was arbitrary.
The results of two sets of neuropsychological tests confirmed the plaintiff s complaints of
memory deficits and inefficient cognitive functioning. Both examiners concluded that the
plaintiff"did not exaggerate his symptoms and put forth the appropriate efIort." Id. at *5.
Prudential, however, accepted the two file reviewers' conclusions that the medical records and
testing results did not support a finding of disability due to cognitive disorder. The court found
fault with Prudential's reliance on the non-examining physicians' objections to the treating
doctors' findings:
All ofthese objections essentially attack the reliability or credibility of Plaintiff and
his doctors. A reviewing doctor, who never meets the patient, however, is not in a
good position to determine a patient's credibility .... Likewise, an attack on a
treating physician's reliability or credibility in regards to a diagnosis, is
unfounded where the reviewing doctor has not at least talked to the treating
physician and the patient. ...
[In short,] Prudential's reviewing doctors improperly discounted the findings of
Plaintiffs doctors based on a credibility determination that the reviewing doctors
were not in a position to make. In improperly discounting the findings of
Plaintiff s doctors, Prudential arbitrarily denied benefits to Plaintiff.
Id. (citation and footnote omitted). Having found the Prudential's denial of benefits based on
cognitive deficiencies was arbitrary, the court went on to hold that the plaintiff was disabled on
that basis. Id. at *6. The court then concluded that Prudential properly characterized the
plaintiffs disability as falling within the plan's mental/nervous limitation. Id.
In the subsequent decision, the court revisited that last issue and determined that it could
not conclude, as a matter of law, whether the plan's mental/nervous limitation applied. Roubal,
16
2009 WL 2487978, at *5. The passage from the opinion that is quoted in Plaintiffs brief reflects
the court's analysis ofthe issue. In the court's view, "[c]ognitive disorders resulting from
physical injury to the brain are exempt from the mental health limitation." ld at *6. The court
further stated, "[e]ven though the evidence suggests that a physical trauma to the brain may have
caused diminished cognitive function, no fact finder has thoroughly reviewed the evidence to
make such a determination." ld In those circumstances, "remand to the plan administrator is
appropriate to make such a review." ld
The differences between the Roubal situation and the circumstances of this case are
obvious. In Roubal, for example, the plaintiff's injuries from the accident were such that he was
immediately flown to University of Louisville hospital and treated there for thirteen days.
Plaintiff here was treated and released on the day of the accident, seen again the following day
and a number of times shortly thereafter, and given a battery oftests, all of which were negative,
as were radiological studies performed later. [AR 321-25, 528, 655,1129, 1130, 1121-24].
In addition, in Roubal, the two examining neuropsychologist concluded that the
plaintiffs complaints of memory deficit and inefficient cognitive functioning were supported by
credible evidence, while two reviewing professionals retained by Prudential discounted those
conclusions. In this case, Dr. Phifer, who examined the Plaintiff in 2005, noted evidence of "the
deliberate simulation or exaggeration of illness of disability" and indications of "marked
prominent contribution of non-organic factors to her pain report and/or behavior." [AR 629,
17
628]. Three years later when the Plaintiff was evaluated by Dr. Yohman, testing produced a
primary diagnosis of malingering; "test results provided strong indications of three specific tests
of poor or inconsistent effort"; and "there [was] no objective evidence of consequences of a
traumatic brain injury." [AR 989]. Further, three independent reviewing professionals
(DeFilippis, Applebaum, Carroll) did not find support in the record for functional impairment.
Moreover, Plaintiffs attempt to show a similarity between Roubal and this case by
focusing on Dr. Miller's January 2010 report is unavailing. Dr. Miller was specifically asked to
comment on whether Plaintiffs psychological limitations in functioning, if any, were "directly
related" to her reported post-concussive syndrome. [AR 1327]. As the Plaintiff points out in her
brief, Dr. Miller explained that the accident had triggered "psychic chaos" which "led to an
abrupt and dramatic disintegration of [Plaintiffs] personality structure." [AR 1328]. But,
according to Dr. Miller, Plaintiff had subsequently recovered from her post-concussive disorder
and "has normal neurological function." [AR 1328]; see also id at 1329 ("Clinically, [Plaintiff]
did not manifest any overt or definable cognitive deficit from any psychiatric or neuropsychiatric
origin.").
Thus, there is substantial credible evidence that the Plaintiff here does not have cognitive
dysfunction as a result of a traumatic brain injury of lasting effect. Dr. Phifer observed strong
indications that "non-organic factors" contributed to the her behavior in 2005. [AR 628]. Dr.
18
Yohman found "no objective evidence of consequences of traumatic brain injury" in December
2008. [AR 989]. He concluded "[t]here is no valid objective evidence for functional
impairment or cognitive deficits in the medical records or in the 2005 or December 2008
neuropsychological exams." [AR 1031]. Dr. Miller also opined that Plaintiff had "normal
neurological function" in January 2010. [AR 1328]. Unlike Roubal, this is not a situation in
which ongoing cognitive dysfunction may have resulted from a traumatic brain injury.
Plaintiff also agues that GLIC's investigation of her claim was a result-oriented process
which was, by deliberate design, to result in an adverse determination. The Court disagrees.
During the course ofthe six-plus-year investigation ofPlaintiff"s claim for benefits, Plaintiff was
examined by four independent professionals (Drs. Sheridan, Phifer, Yohman, and Miller) and her
medical records were peer reviewed by three different independent professionals (Drs.
DeFilippis, Applebaum, and Carroll). Five of those seven independent professionals found no
support for concluding that the Plaintiff was functionally impaired, one (Dr. Phifer) rated
Plaintiffs impairment at just 5 percent, and one (Dr. Miller) concluded that the Plaintiff was
psychiatrically impaired such that gainful employment was not practically feasible. But for
Plaintiffs treating physician's persistence in rejecting the views of all of the independent
professionals and ignoring the negative findings of objective testing, GLIC likely would have
terminated Plaintiffs benefits much sooner. Instead, GLIC persisted until it obtained a
well-reasoned clinical explanation for Plaintiffs behavioral issues from an independent source
- Dr. Miller. The Plan defines "mental or emotional conditions" as including, but not being
limited to, "(a) neurosis; (b) psychoneurosis; ( c) psychosis; (d) psychopathy; and (e) any other
19
mental or emotional disorder, including those caused by chemical imbalances." [AR 39].
Taking into account all of the evidence, and exercising its discretion to construe the terms of
the Plan [AR 43], GLIe determined that the condition that limits the Plaintiff from working in
any occupation is a mental or nervous condition within the meaning ofthe Plan's Special
Limitation provision. Because GLIC's interpretation of the Plan's terms is rational, it is
entitled to deference. See Morgan v. SKF USA, Inc., 385 F.3d 989, 992 (6 th Cir. 2004) ("We
must accept a plan administrator's rational interpretation of a plan even in the face of an
equally rational interpretation offered by the participants.").
IV.
CONCLUSION
Defendant's decision to terminate Plaint5iff's benefits was neither arbitrary nor
capricious. Accordingly, IT IS HEREBY ORDERED that Defendant's Motion for
Judgment as a Matter of Law be SUSTAINED.
This 26 th day of August, 2013.
Sp(jB,.
_R.\WhoitJr.
United States Dtstnct Judge
20
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?