McLaren-Knipfer v. ArvinMeritor, Inc. et al
Filing
78
MEMORANDUM OPINION & ORDER: 1) Defts' motion to strike 63 is GRANTED and the parties' cross-motions for summary judgment are GRANTED IN PART AND DENIED IN PART ( 53 , 65 ), consistent with this Memorandum Opinion; 2) W/i n 30 days of entry of this Memorandum Opinion and Order, the parties shall file a status report advising the Court whether they have reached an agreement as to the amount of disability benefits to which Pltf is entitled. Signed by Judge William O. Bertelsman on 6/27/2012.(ECO)cc: COR
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON
CIVIL ACTION NO. 2:11cv16 (WOB-CJS)
LORRAINE McLAREN-KNIPFER
VS.
PLAINTIFF
MEMORANDUM OPINION & ORDER
ARVINMERITOR, INC.
DEFENDANT
Plaintiff brings this action under the Employee Retirement
Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132(a).
This matter is presently before the Court on the parties’ crossmotions for summary judgment, a motion to strike certain
evidence, the ERISA plan, and the Administrative Record.
See
Doc. 30 (“Amended Complaint”); Doc. 53-1 (“Plf. MSJ”); Doc. 66
(“Meritor Sealed MSJ”); Doc. 63 (motion to strike); Docs. 40-1 –
40-6 (“Plan”) (citation to internal pagination); Doc. 44
(“Sealed Record”) (citation to Bates-stamp pagination).
Having previously heard oral argument on this motion, the
Court now issues the following Memorandum Opinion and Order.
BACKGROUND
A.
Parties
Plaintiff initially named as defendants her former employer
ArvinMeritor, Inc. (“Meritor”), and Meritor’s insurer and claims
fiduciary CIGNA Corporation.
The parties subsequently agreed to
substitute the Life Insurance Company of North America (“LINA”)
for CIGNA, after which they reached a confidential settlement on
the claim for long-term benefits.
The short-term disability
benefits are self-insured by Meritor.
See Docs. 21, 73, 74; see
also Meritor Sealed MSJ at 2, n.1.
Different LINA/CIGNA individuals were involved with
Plaintiff’s claim, and CIGNA is the corporate entity that
appears on the appeal documents.
Meritor is “responsible for
making the final decision with respect to all claims,” Plan at
161, and is the ERISA fiduciary, see id. at 161, 164.
Meritor
acquiesced in the final result without issuing a separate
decision.
See, e.g., Doc. 71-1 at 1 (letter dated 11/2/10 –
“your second appeal . . . was denied . . . Your claim is
closed”).
The Court collectively refers to those involved with
the claim as “reviewers.”
B.
Chronological Overview
Meritor hired Plaintiff in 1988, when she was thirty-nine
years old.
She performed customer service jobs for more than
two decades and has been a Plan participant since 2004.
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She
suffers from Chronic Obstructive Pulmonary Disease (“COPD”).
Due to problems associated with that condition, Plaintiff’s last
day at work was February 10, 2010.
Plaintiff’s appeal of her
application for short-term benefits concluded on November 1,
2010, when the reviewers issued a letter that explained the
reason for the denial.
See, e.g., Amended Complaint at 3; Plf.
MSJ at 2-3; Meritor Sealed MSJ at 3, 6; Doc. 53-4 (“Plf. Aff.”).
After the denial and further correspondance with
Plaintiff’s treating physician, Dr. Robert Otte, Meritor issued
a “termination” letter to Plaintiff on December 2, 2010, based
on her “inability to perform the essential functions of her
job.”
Doc. 71-4 at 1.
The Social Security Administration
subsequently granted Plaintiff disability benefits on December
17, 2010, with a start date for the award of February 11, 2010.
See, e.g., Plf. Aff. ¶¶ 13-14, 16.1
C.
Plan Terms
The Plan provides short-term disability benefits for
“disabled” employees for up to twenty-six weeks per episode, and
offsets any payment with other benefits received, such as Social
Security disability awards.
See Plan at 44-47.
1
If a disability
Plaintiff began receiving retirement benefits in October 2011.
Plf. Aff. ¶ 15.
-3-
See
recurs within three months, the Plan considers it to be “a
resumption of the prior” disability.
Id. at 47.
The Plan defines “disabled” in two ways.
See id. at 45.
As applicable here, the “occupation qualifier” test considers
employees “disabled” if they are “[c]ontinuously unable to
perform the material and substantial duties of [their] regular
occupation.”
Id. (internal emphasis omitted).
The duties are
those “normally required for the performance” of the employee’s
regular occupation.
Id.
Plaintiff’s customer service position was sedentary and
performed exclusively in an office environment.
Both parties
cite a written job description as the source of her duties:
Providing timely customer ordering, order maintenance and
process resolution services as well as order-board
management.
Receives and processes customer orders, in a fast[-]paced
setting, according to specified policies and procedures.
Interfaces with Inventory, Pricing, Marketing, Sales,
Customer Credit, Specifications, and Operations groups, as
well as external customers, to ensure prompt and efficient
order processing.
* * * * *
Ability to handle multiple tasks simultaneously.
* * * * *
Displaying professional phone communication skills and a
‘customer service’ attitude.
Sealed Record at 627; see also Plf. MSJ at 2; Meritor Sealed MSJ
at 3, 8.
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Plaintiff’s affidavit describes the work-related activities
that would be physically too taxing, even with full-time use of
an oxygen tank.
See Plf. Aff. ¶ 10.
It states that her COPD
“rendered her incapable of carrying on the ‘fast paced’ work at
her former employment or at any other employment,” id. ¶ 9, and
that her former job, “although sedentary in nature, was
extremely stressful,” id. ¶ 10.
She elaborates that:
Her health condition has made it difficult for her to
stay on the telephone for long periods of time, to do
the required extensive filing because of fatigue, and
the oxygen dependency from which she suffers increases
in severity with any stress or engagement in any
physical activity; she has a very difficult time going
up and down any stairs, which is sometimes required
for her to go on a company break or to attend company
‘fire drills’.
Additionally, she has difficulty
driving to and from work, walking around the building,
and tolerating the air quality at work because of the
COPD.
. . . since she must carry a tank of oxygen with her
at all times, she periodically has to go to her
automobile, while on the job, to get additional oxygen
tanks in order to make it through the day.
. . . [Dr.] Otte . . . has indicated that any exercise
or other stress will increase her oxygen dependency.
Id. ¶¶ 10-12.
The Plan provides that it will not pay short-term benefits
if any of four conditions occur, one of which is if the employee
“[f]ail[s] to provide proof of [his or her] Disability –
including any medical documentation that may be requested.”
Plan at 47.
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D.
Proof Submitted For Claim
Plaintiff was ill with bronchitis and sprained ribs for
seventeen days in January 2010, and she received short-term
benefits for her absence from work.
seventeen days and left work.
She returned to work for
The reviewers considered
Plaintiff’s absence in February a “recurrent” claim, and the
claims representative told Plaintiff the Plan would reopen her
earlier claim and request additional medical records.
See
Meritor Sealed MSJ at 6; see also Sealed Record at 427.
The reviewers initially denied the claim on April 13, 2010.
Given the earlier claim, they knew that Plaintiff had minor
heart failure in 2007 with chest pains that resulted in a
hospitalization for one month.
In 2008 she was prescribed
oxygen as needed for breathing difficulties.
She was out on
short-term disability leave in August 2009 due to COPD with a
comorbid sinus infection.
470, 643-44, 656.
See Sealed Record at 420, 424, 425,
Plaintiff underwent pulmonary testing on
September 17, 2009 – the “Spirometry Report Puritan-Bennett
Renaissance II.”
See id. at 597, 664-65.
This test assessed
Plaintiff with a “mild obstruction” that did not improve after
medication.
It listed her having “lung age” of an “80” year
old, which somebody highlighted by circling it.
65.
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See id. at 664-
For her February absence, Plaintiff reported to the
reviewers that she “feels tired, hard to fucntion (sic), goes
home and takes 3 hour naps . . . can’t really breath (sic) well
when she walks now . . . said its been happening [duration
unspecified].”
Id. at 420 (note created 3/1/10); see also id.
at 424, 425, 643-44 (same note created 2/23/10, 2/17/10, and
3/10/10).
On March 10, 2010, Nurse Kimberly Baker concluded that
Plaintiff should be awarded benefits because Plaintiff’s claim
was “medically supported through 3/14 as evidenced by dx of
severe COPD, cs is on continuous o2, S[hortness] O[f] B[reath],
chills, fatigue.”
Id. at 643.
The next day, Claim Manager,
Joseph Glaise, revised the award through the end of the month.
He concluded it was “reasonable” to extend benefits “through
3/31 due to cx having o2 treatment dependency” while the
reviewers followed-up with “updated medical.”
Id. at 416; see
also id. at 415.
Dr. Otte’s “Medical Request Form,” dated March 12, 2010,
informed the reviewers that Plaintiff is “unable to work due to
breathing difficulty.”
Id. at 639.
He indicated that Plaintiff
should not work, rest at home, and could return to work without
restrictions in mid-May. Id.
The reviewers initially assumed that Meritor would not
accommodate “continuous oxygen usage” at work.
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See id. at 407,
625.
However, Meritor responded that it would “not have a
problem with her using oxygen at her desk.”
Id. at 625.
Thus,
by the end of March, the reviewers were focused on ascertaining
Plaintiff’s functional capacity.
See id. at 408, 624.
A lack of documentation by Dr. Otte defeated Plaintiff’s
claim and the reviewers informed Plaintiff of the same by letter
dated April 13, 2010.
The letter provides that they denied the
claim because they could not “determine” she was “totally
disabled” from performing her “job duties.”
also id. at 602.
Id. at 287; see
The letter detailed the lack of evidence and
the reviewers’ unsuccessful efforts to contact Dr. Otte to
obtain additional information.
On March 12, 2010, we requested from your provider any
and all pulmonary functions tests, oxygen saturated
tests or spirometry results, any laboratory results
and any cardiac testing such as cardiac stress test,
EKG, echocardiogram, with ejection fraction or cardiac
classification.
We did not receive any new medical
[information] from your provider other then (sic) the
office visit note and the medical request form.
* * * * *
In addition, our Nurse Case Manager contacted your
provider’s office twice on April 5, 2010 and left
voice messages, however to[-]date there was no
response provided.
We also contacted your provider’s
office on April 12, 2010 for additional information,
however no new medical information was provided.
We
did receive a phone call from your provider’s office
on April 13, 2010 and we confirmed that we had all the
current medical information in your file and there was
no new medical information provided.
There were (sic) no documentation of clinical findings
that would indicate severity of symptoms, that would
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preclude you from returning to work after March 31,
2010.
Id. at 286-87.
Though the reviewers had Plaintiff’s September
2009 pulmonary function results, they “need[ed] current medical
information to support your claim.”
Id.
While they also had
Dr. Otte’s March “Medical Request Form” restricting Plaintiff to
“no work” until Mid-May, the reviewers were of the view that his
restriction was not “medically supported from the information
[he] provided.”
Id.
After the initial denial, Plaintiff underwent two new
pulmonary tests.
On April 20, 2010, Dr. Otte performed an
“oxygen saturation test” with Plaintiff using “2L of oxygen.”
Id. at 622.
At rest, Plaintiff “had a saturation of 94% and
pulse rate of 107,” but when she walked, her saturation rate
“dropped to 88% with a pulse of 127.”
Id.
In this report he
gave his “medical opinion” that Plaintiff “is unable to sustain
any type of employment.”
Id.
Also on April 20, 2010, Plaintiff repeated the same
pulmonary tests she underwent in September 2009.
597, 620-22.
See id. at
The new tests did not persuade the reviewers
because “FVC of 82 and 85 . . . are within normal limits and do
not prevent claimant from functioning.”
Id. at 603; see also
id. at 285 (letter dated May 19, 2010, stating new spirometry
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results “does not change our prior decision” and advising about
appeal rights).
E. Additional Evidence In The Appeals
After the reviewers advised Plaintiff she could submit
additional information for appeal, see id. at 281, 283, she
called to tell them “there were no more tests,” id. at 380, and
to again explain her condition.
The note associated with that
call memorializes the reviewer’s own observation about
Plaintiff’s breathing difficulties:
call from CX – she said that she went to the doctor on
Thursday and he said there were no more tests. Joseph2
told her to call me or send letter explaining
condition. She has trouble just walking into work due
to COPD and this is detrimental because it affects her
heart. She had to take 2 – 3 hour naps when she gets
home at night.
Still then goes to bed at regular
time.
She said that everything has been sent in.
Explained that I will document this and begin review.
She went back to work and went out again.
Walking
from room to room she gets winded.
She can’t go out
if too hot or cold or muggy.
She was noticeably SOB
and said she had just gone from kitchen to bathroom.
Has been dealing with it for about 2 years. She kept
getting bronchitis tmt plan – inhalers.
Seeing
provider once a month.
Id. (emphasis added).
Although the reviewers did “not dispute [she] may have been
somewhat limited or restricted due to your diagnosis,” they
2
Presumably claim manager Joseph Glaise.
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concluded on August 17, 2010, that “based on the provided
records, there is no documentation of significant measured
physical limitations and/or functional deficits to continuously
support the extension of restrictions from your regular
occupation from April 1, 2010 forward.”
added).
Id. at 276 (emphasis
They interpreted the spirometry FVC result of 82% to be
“within the normal range of eighty percent or higher,” and the
FEV1 result of 61% to “reveal[] a mild impairment.”
Id.
Since
these “test results provided only showed a mild impairment which
is improved with the use of oxygen,” and since Meritor
“confirmed they were able to accommodate the use of oxygen,” the
reviewers again denied the claim.
Id.
In a further appeal, Plaintiff’s then-attorney Holly A.
Daugherty resubmitted the 2010 spirometry test results, along
with Dr. Otte’s August 26, 2010 “Medical Assessment of Ability
To Do Work-Related Activities” and a current list of Plaintiff’s
medications.
Id. at 592.
indicated Plaintiff:
Among other things, Dr. Otte
could sit/stand/walk less than 1 hour a
day and cannot stand or walk without interruptions; becomes
short of breath with any exertion or speaking; should not be
exposed to environmental factors including temperature changes
or dust; is oxygen dependent; and cannot work.
96.
See id. at 594-
Plaintiff’s handwritten note on a list of her medications
states “Dr. Otte didn’t write it but my oxygen wouldn’t last the
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full workday either[,] so I’d have to bring extra tanks to
work.”
Id. at 598.
The November 1, 2010 final denial stated that the review
was based on “the complete file, including any additional
information . . . in its entirety without deference to prior
reviews,” id. at 270 (emphasis added), but reached the same
conclusion.
The “medical information does not support a
disability of a severity that would preclude” Plaintiff from
performing her “sedentary occupation” because Meritor would let
her use an oxygen tank, her FVC result was normal, her FEV1
result only showed a “mild” impairment, and Dr. Otte’s
“limitations and restrictions” were not accompanied by
“objective clinical testing to support those restrictions.”
Id.; see also id. at 369.
ANALYSIS
A.
Even Without Materials Meritor Seeks To Strike,
Denial Was Arbitrary And Capricious
In general, this Court should not consider anything that
was not before the reviewers, for example, “any depositions,
affidavits, or similar litigation-related materials.”
Univ.
Hosps. of Cleveland v. Emerson Elec. Co., 202 F.3d 839, 845 n. 2
(6th Cir. 2000).
Meritor asks the Court to ignore and strike
any documents that post-date the November 1st final decision,
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including the Social Security award, Plaintiff’s affidavit, and
anything Dr. Otte or counsel communicated after that date.
e.g., Doc. 72 at 2-3.3
See,
Plaintiff does not make the sort of due
process, procedural or bias challenges that are the exceptions
to this general rule.
See, e.g., Neubert v. Life Ins. Co. of N.
Am., No. 5:10CV1972, 2012 WL 776992, at *11 (N.D. Ohio Mar. 8,
2012) (and Sixth Circuit decisions cited therein).
Thus, the
Court should ignore any information generated after the final
judgment and will grant the motion.
Regardless, Plaintiff is
entitled to summary judgment.
The Plan grants Meritor “complete discretion and exclusive
authority to . . . administer claims . . . interpret the terms
3
Meritor moves to strike materials contained in Plaintiff’s motion for
summary judgment under Rule 12(f). See Doc. 63 at 1. A recent decision
from the Northern District of Ohio involving LINA notes that the motion is
procedurally improper because Rule 12(f) applies to “pleadings” and
“[a]rguments contained in a dispositive motion are not ‘pleadings’ within
the meaning of [Rule] 7(a) and are therefore not subject to a motion to
strike under Rule 12(f).” Neubert, 2012 WL 776992, at *11. That court
also recognized, however, that ERISA review generally is confined to the
evidence and facts before the plan administrator at the time it made its
decision. Id.
Disability awards by the Social Security Administration are not
binding but are relevant to the issue of arbitrariness. However, the
parties have not cited, and the Court has not found, any authority that
exempts these awards from the general requirement that the information
must have been before the reviewers when they made their decision. See,
e.g., Costello v. Sun Life Assurance Co. of Canada, No. 1:08-CV-00157-M,
2012 WL 1155142, at **2, 4-5 (W.D. Ky. Apr. 5, 2012) (administrator
obtained copy of Social Security Administration’s file); Neubert, 2012 WL
776992, at *19 (administrator assisted applicant with applying for Social
Security benefits); Deel v. United of Omaha Life Ins. Co., Civil Action
No. 11–12751, 2012 WL 928349, at *12 (E.D. Mich. Feb. 27, 2012) (postdecision Social Security award is immaterial, even if the employer had a
duty to inquire about pending application); Kaye v. Unum Group/ Provident
Life and Accident, No. 09-14873, 2012 WL 124845, at *6 (E.D. Mich. Jan.
17, 2012) (administrator reviewed Social Security file).
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of the . . . Plan . . . including the sufficiency and amount of
information that may be required to make its determinations,
including those pertaining to claims and appeals.”
Plan at 161.
As such, and as the parties agree, this Court cannot overturn
the decision to deny Plaintiff benefits unless it was arbitrary
and capricious.
“An administrator’s decision is not arbitrary or capricious
if it is the result of a deliberate, principled reasoning
process and if it is supported by substantial evidence.”
Lewis
v. Cent. States, Se. & Sw. Areas Pension Fund, No. 10-4259, 2012
WL 1736409, at *3 (6th Cir. May 17, 2012) (internal quotations
and citations omitted).
This is a highly deferential standard
of review, though “not . . . without some teeth,” and simply
because the Court’s review is deferential “does not mean [it]
must also be inconsequential,” since “federal courts do not sit
in review . . . only for the purpose of rubber stamping” them.
Costello, 2012 WL 1155142, at *3 (internal quotations and
citations to Sixth Circuit authorities omitted).
This Court’s
review “inherently includes some review of the quality and
quantity of the medical evidence and the opinions on both sides
of the issues,” as well as “whether the plan administrator based
its decision to deny benefits on a file review instead of
conducting a physical examination of the applicant.”
(same).
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Id. at *4
Here, the terms of the Plan grant benefits when an employee
is unable to perform his or her job.
Thus, a diagnosis is not
determinative, and Plaintiff’s functional capacity is key. The
main requirements of plaintiff’s job according to Meritor’s own
description are working at a fast pace while multi-tasking, and
displaying a professional demeanor while talking on the phone.
There is no dispute that, when Plaintiff applied for shortterm benefits, her health had deteriorated to the point where
she needed to use an oxygen tank on a full-time basis.
No
reviewer questioned Plaintiff’s need for full-time oxygen, or
that exertion causes shortness of breath (as one reviewer in
fact perceived first-hand and documented), yet none of them
discussed what that meant in terms of the particular
requirements of Plaintiff’s own job.
In short, the reviewers’
analysis is devoid of the very comparison of functional
abilities to job requirements that the Plan requires.
Though they did not directly say so, the reviewers also
wholly ignored Plaintiff’s subjective assessment of her
abilities and what they personally observed about her shortness
of breath, instead using the latest pulmonary test results as a
proxy for functionality.
Yet, nothing in those test results
inherently reflects on the stamina or skills required of
Plaintiff for her particular job.
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Even if the results conceivably could be construed in that
manner, it is clear from the face of the results that the
reviewers were selective about which results they considered.
Nor did they explain what they used as the source for deeming a
value “normal” or “mild.”
Also, the reviewers plainly
mischaracterized some of the results.
For example, while the 2009 and 2010 tests both showed
abnormal results marked “*”, Plaintiff’s 2010 test results were
clearly worse.
A comparison of the initial graphs show the same
predicted value arc spiking to above 5, and whereas Plaintiff’s
2009 results showed her results in the 3 to 4 range, her 2010
results showed the same at 2.5 and below.
620, 664.
See Sealed Record at
Although the 2010 results did not list a “lung age,”
that report now assessed Plaintiff with “moderate obstruction.”
Id. at 620.
And, the FVC (and later, FEV1) measurements the
reviewers found significant were clearly lower in 2010 as
compared to 2009.
2009 Trial 1
FVC
91
FEV1
70*
FEV1%
77*
(no “Best FEV1%
Trial 2
FVC
FEV1
FEV1%
results)
94
70*
74*
Id. at 664.
2010 Trial 1
FVC
FEV1
FEV1%
Best FEV1%
Trial 2
FVC
FEV1
FEV1%
Best FEV1%
82
61*
73*
60%*
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85
60*
71*
58%*
Id. at 620.
The reviewers initially cited the FCV above 80% as “normal”
to justify denying benefits, without consideration of the other
asterisked values.
When they later cited the abnormal 2010 FEV1
value, they labeled the result as a “mild” designation but the
overall 2010 test results designated Plaintiff as having a
“moderate” condition.
Nowhere do those 2010 results mention a
“mild” condition.4
At the hearing, defense counsel mentioned in passing that
the oxygen saturation tests Dr. Otte performed were “normal”
because the percentage was in the mid-nineties.
As noted above,
however, it was only at rest that Plaintiff had 94% saturation
4
Their mischaracterization is further confirmed by reference to
recognized Internet sources. Information about the percentages the
reviewers cited is readily available on the Internet, beginning with
the National Institutes of Health (“NIH”). Courts routinely take
judicial notice of medical websites such as the NIH for definitional
purposes, with or without notice to the parties. See, e.g., Hicks v.
Corr. Corp. of Amer., No. CIV.A.CV08-0687-A, 2009 WL 2969768, at **6,
9, 21 & nn. 4-5, 10-11 (W.D. La. Sept. 11, 2009); Phelps v. Astrue,
No. 7:09CV0210, 2010 WL 3632730, at *5, n.2 (W.D. Va. Sept. 9, 2010);
In re Nixon, 453 B.R. 311, 316 n.2 (Bankr. S.D. Ohio 2011).
Spirometry results include different measurements and compare
them to “predicted” values. The NIH website provides that “[n]ormal
results are expressed as a percentage. A value is usually considered
abnormal if it is less than 80% of your predicted value.”
http://www.nlm.nih.gov/medlineplus/ency/article/003853.htm
The 80% cut-off between normal and abnormal results is found in
the “GOLD Spirometric Criteria for COPD Severity.” The “Gold”
criteria contrast “mild” COPD, something a patient probably is unaware
of, with “moderate” COPD, where the patient is developing shortness of
breath on exertion.
http://copd.about.com/od/copdbasics/a/stagesofcopd.htm.
-17-
rate with a pulse rate of 107.
When she exerted herself by
walking, her saturation rate dropped to 88% and her pulse rate
rose to 127.
Since that test was performed while Plaintiff was
using oxygen, it shows that exertion has consequences for
Plaintiff, and that fact is no doubt why the reviewers’ focus
was on the results of the spirometry results, and not Dr. Otte’s
oxygen saturation test.
In addition, although the Supreme Court has held the
“treating physician rule” from the Social Security context does
not apply in the ERISA context, it “did not prohibit a reviewing
court from applying the applicable standard of review to the way
in which the plan administrator dealt with an opinion from a
treating physician, noting that ‘[p]lan administrators, of
course, may not arbitrarily refuse to credit a claimant’s
reliable evidence, including the opinions of a treating
physician.’”
Combs v. Reliance Standard Life Ins. Co., No.
2:08–cv–102, 2012 WL 1309252, at *10 (S.D. Ohio Apr. 12, 2012)
(quoting Black & Decker Disability Plan v. Nord, 538 U.S. 822,
834 (2003)).
The Sixth Circuit holds likewise.
See id. (cites
and parenthetical quotes to Evans v. UnumProvident Corp., 434
F.3d 866, 877 (6th Cir. 2006), and Curry v. Eaton Corp., 400 F.
App’x 51, 59 (6th Cir. 2010)).
Citing illustrations from Evans, the Combs decision
discussed several situations where a reviewer’s disregard for
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the opinion of a treating physician can be considered arbitrary.
They are all similar to the situation here, such as:
the reviewer “disregard[s] subjective reports of
symptoms based solely on a review of medical records
which do not contain objective support for the
claimant’s complaints,” id. (citing Calvert v. Firstar
Fin., Inc., 409 F.3d 286, 296 (6th Cir. 2005));
the reviewer relies on an “expert opinion that does
not address crucial aspects of the claimant’s former
job and which is in conflict with other credible
evidence in the record, including the opinion of the
treating source,” id. (citing Kalish v. Liberty
Mut./Liberty Life Assurance Co. of Boston, 419 F.3d
501, 506 (6th Cir. 2005));
“evidence from the treating physicians is strong and
the opposing evidence is equivocal, at best, and also
lacking in evidentiary support,” id. (citing McDonald
v. Western–Southern Life Ins. Co., 347 F.3d 161, 172
(6th Cir. 2003)); or
a “contrary opinion of the non-treating physician was
not based on an examination of the claimant and was
supported only by a selective, rather than a fair,
reading of the medical records,” id. (citing Moon v.
Unum Provident Corp., 405 F.3d 373, 379 (6th Cir.
2005)).
In each of these examples, the reviewers reached their decision
on a selective view of certain medical evidence.
Here, the reviewers’ failure to apply the Plan criteria
which require an assessment of functionality, and their
treatment of the tests results and Dr. Otte’s opinions that
eventually specified Plaintiff’s functional abilities, alone
warrant summary judgment in Plaintiff’s favor.
Such “cherry-
picking” and lack of textual support are grounds to find the
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decision arbitrary and capricious.
See, e.g., Lanier v. Metro.
Life Ins. Co., 692 F. Supp. 2d 775, 786 (E.D. Mich. 2010) (and
cases cited therein).
Other factors in this record underscore that conclusion.
For example, although the Plan clearly contemplates Meritor can
order an independent examination, it chose not to do so.
Thus,
the only physician evidence in the record was that from Dr. Otte
and the tests conducted while Plaintiff was under his care.
Aware of those results and Plaintiff’s condition, he was of the
opinion that Plaintiff could not work.
Dr. Otte’s opinions
about Plaintiff’s functional capacity were the sole evidence on
the subject besides Plaintiff’s description of her abilities.
Yet, the reviewers rejected his opinion out of hand based solely
on their narrow and inaccurate interpretation of the test
results, as opposed to a genuine disagreement among medical
professionals.
Compare, e.g., Costello, 2012 WL 1155142, at *8.
The “Sixth Circuit has repeatedly noted that there is
‘nothing inherently objectionable about a file review by a
qualified physician in the context of a benefits
determination.’”
Id. at *6 (quoting Calvert, 409 F.3d at 296).
“However, ‘the failure to conduct a physical examination -especially where the right to do so is specifically reserved in
the plan -- may, in some cases, raise questions about the
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thoroughness and accuracy of the benefits determination.”
(quoting Calvert, 409 F.3d at 295).
Id.
This is one of those cases.
Finally, another factor at play here is conflict of
interest.
As the “final decisionmaker” and self-insurer,
Meritor assumes that a “structural conflict of interest”
existed, but denies that it had any actual impact on the
decision.
See Meritor Sealed MSJ at 35-37.
With such
conflicts, the Court is entitled to view the reasons for denying
Plaintiff’s claim with “some skepticism,” and weigh this as a
factor in deciding whether the decision was arbitrary or
capricious.
See, e.g., Lewis, 2012 WL 1736409, at *3, n. 5
(citing Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 111–12
(2008)); Costello, 2012 WL 1155142, at *4 (citing Moon, 405 F.3d
at 381-82).
As with the post-final-decision materials, however,
even if the Court ignores the conflict factor, the result is the
same for all the reasons just discussed.
Accordingly, Plaintiff is entitled to summary judgment on
the short-term benefits claim in Count One of her Amended
Complaint.
B.
Breach Of Fiduciary Claim
In Count Two, Plaintiff alleges a breach of fiduciary duty
under 29 U.S.C. § 1104, and demands as compensation the denied
benefits, damages for emotional distress, and “appropriate
equitable relief.”
See Amended Complaint at 6-7.
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However, the
basis for Count Two is the same as her denial of benefits claim.
For example, she alleges a conflict of interest and arbitrary
and capricious denial of benefits, in addition to a failure to
properly investigate her claim for benefits by conducting an
independent medical or vocational evaluation.
See id. at 7.
Relief is not available for a claimant’s individual
purposes under § 1104.
Any relief under that section is plan-
wide and based on breaches of fiscal-type fiduciary duties
connected with administering a plan, none of which are asserted
or arguably applicable here.
See, e.g., Unaka Co., Inc. v.
Newman, No. 2:99-CV-267, 2005 WL 1118065, at *14 (E.D. Tenn.
Apr. 2, 2005) (and cases cited therein).
The Court notes that Plaintiff cited sections 1132(a)(1)(B)
and 1132(a)(3) at the outset of her allegations, but these also
are not viable alternatives for Claim Two.
Complaint at 1, 5-6.
See Amended
Section 1132(a)(1)(B) is the avenue to
challenge a denial of disability benefits, and the Court has
already ruled in her favor on that aspect of the case.
Subsection (a)(3) does not provide an additional basis for
relief when a denial of benefits is at issue, regardless of
whether the argument is cast in “breach of fiduciary duty”
terms.
See Wilkins v. Baptist Healthcare System, Inc., 150 F.3d
609, 615 (6th Cir. 1998) (“Because § 1132(a)(1)(B) provides a
remedy for Wilkins’s alleged injury that allows him to bring a
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lawsuit to challenge the Plan Administrator’s denial of benefits
to which he believes he is entitled, he does not have a right to
a cause of action for breach of fiduciary duty pursuant to §
1132(a)(3)”); see also e.g. White v. Worthington Indus., Inc.
Long Term Disability Income Plan, 266 F.R.D. 178, 194-96 (S.D.
Oh. 2010) (“1132(a)(3) . . . has been described as a catch-all
section designed to allow plan beneficiaries to seek relief for
violations . . . which would not be addressed simply by an award
of benefits under § 1132(a)(1)(B)”) (internal quotations and
citations omitted); Blair v. Pension Comm. of Johnson & Johnson,
___ F. Supp. 2d ___, ___,
Civil Action No. 11–433–C, 2011 WL
6393571, at **2-3 (W.D. Ky. Dec. 21, 2011) (“Section . . .(a)(3)
acts as a safety net, offering appropriate equitable relief for
injuries caused by violations that § 502 does not elsewhere
adequately remedy.”) (internal quotations and citations
omitted).
Accordingly, Defendant is entitled to summary judgment and
the Court will dismiss Count Two of Plaintiff’s Amended
Complaint.
CONCLUSION
In sum, the Court finds that, even if the motion to strike
is granted, that result has no bearing on the outcome.
The
Court grants summary judgment in favor of Plaintiff because the
decision to deny short-term benefits was arbitrary and
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capricious, and the Court dismisses Plaintiff’s breach of
fiduciary duty claim.
Therefore, having reviewed this matter, and the Court being
otherwise sufficiently advised,
IT IS ORDERED that:
(1) Defendants' motion to strike (Doc. 63) is GRANTED and
the parties’ cross-motions for summary judgment are GRANTED IN
PART AND DENIED IN PART (Docs. 53, 65), consistent with this
Memorandum Opinion; and
(2) Within thirty (30) days of entry of this Memorandum
Opinion and Order, the parties shall file a status report
advising the Court whether they have reached an agreement as to
the amount of disability benefits to which plaintiff is
entitled.
This 27th day of June, 2012.
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