Card v. Principal Life Insurance Company

Filing 138

OPINION AND ORDER:The Court hereby ORDERS as follows:1. Dft Principal Life Insurance Company's motion to alter and amend 112 is DENIED;2. Dft shall REMIT a pmt of $47,635.00 in atty fees and $857.92 in costs to Ptf Susan Card within 30 days of the entry date of this Opinion & Order;3. Ptf's motion for judgment 117 is GRANTED in part and DENIED in part;4. Ptf's LTD and LCDD claims through 1-1-15 are REMANDED to dft for a new determination consistent with this Opinion; 5. The Dept of Labor's regulations regarding the deadlines for processing ERISA claims SHALL GOVERN the timing of dft's new determination;6. The Court will enter a judgment contemporaneously with this Order. Signed by Judge Karen K. Caldwell on 09/05/2023.(KCF)cc: COR

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
SUSAN CARD also known as Karen Card,

CIVIL ACTION NO. 5:15-139-KKC

Plaintiff,
v.

OPINION AND ORDER

PRINCIPAL LIFE INSURANCE
COMPANY,
Defendant.

*** *** ***
This matter is before the Court on Defendant Principal Life Insurance Company’s
motion to alter and amend the Court’s October 27, 2022 Opinion (DE 112) and Plaintiff Susan
Card’s motion for judgment (DE 117). For the following reasons, the Court denies the motion
to alter and amend, and grants in part and denies in part the motion for judgment.
I.

Facts
The history of this case is extensive, and the Court has discussed the facts of the case

at length in its prior opinions in this matter. Accordingly, the Court will focus only on the
facts most salient to the instant motions.
A.

Procedural History
1.

Initial Motions for Summary Judgment

On May 17, 2015, Plaintiff Susan Card filed her initial complaint against Defendant
Principal Life Insurance Company (“Principal”), seeking judicial review of Principal’s denial
of her claims for disability benefits under the Employee Retirement Income Security Act of
1974 (“ERISA”), 29 U.S.C. § 1132. (DE 1; DE 3 ¶¶ 4, 7-8.) Principal is the underwriter,
insurer, and administrator of disability benefits provided by Card’s employer. (DE 3 ¶ 7.)

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Following the conclusion of discovery, parties filed cross-motions for summary
judgment. (DE 68; DE 71.) The Court granted summary judgment for Principal, finding that
the arbitrary and capricious standard of review was appropriate and concluding that
Principal’s denial of disability benefits was supported by “substantial evidence.” (DE 81 at
4-7.) Card appealed (the “First Appeal”). (DE 83.)
On the First Appeal, the Sixth Circuit affirmed the Court’s standard of review
analysis and applied the arbitrary and capricious standard of review. (DE 85 at 6.) The
Sixth Circuit also determined that Principal’s denial was arbitrary and capricious because,
among other things, Principal: (1) failed to adequately account for the strength level required
by Card’s job duties as a licensed practical nurse and a charge nurse; (2) disregarded the
restrictions placed on Card’s exertional level by her treating physician; (3) ignored the
restrictions from Card’s treating physician limiting her exposure to persons with infection
and disease; (4) based its denial on Card’s failure to show that she was under “the Regular
and Appropriate Care of a Physician” but provided no evidence to show that Card failed to
follow the treatment plans of her physicians or failed to attend her appointments as directed;
(5) relied on the opinions of its own file reviewers over the opinions of Card’s treating
physicians without providing an explanation for that preference; (6) based its denial solely
on Card’s medical records; (7) failed to consider Card’s ability to perform her job duties in
light of her diagnosis of chronic lymphocytic leukemia and its resulting symptoms; and (8)
relied on file reviewers that failed to critically assess Card’s health issues against the actual
demands of her job. (Id. at 14-20.) Accordingly, the Sixth Circuit vacated the judgment and
“remand[ed] the case to [Principal] for further proceedings.” (Id. at 21.) The Sixth Circuit
issued its mandate on December 12, 2019. (DE 88.)

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2.

Remand Review

Following the remand from the Sixth Circuit, Principal approved Card’s claim for
short term disability benefits (“STD”). (Administrative Record Supplement [hereinafter “AR
Suppl.”] at 1670.) In the approval letter dated December 18, 2019, Principal requested
various medical information from Card’s counsel so that it could review her remaining claims
for long term disability (“LTD”) and life coverage during disability (“LCDD”) benefits. (Id.)
Specifically, Principal requested medical records from all providers from January 1, 2015,
through the current date; pharmacy records from January 1, 2015, through the current date;
a copy of Card’s Social Security claim file; and a completed HIPAA form. (Id.) Card’s counsel
responded to the letter on December 27, 2019, stating that Principal was “already in
possession of the information it had when it terminated Ms. Card’s benefits—the only
information Principal previously believed necessary to render its decisions.” (Id. at 1659.)
Counsel noted that Card would respond to Principal’s request for information “shortly.” (Id.
at 1660.) Principal replied on January 8, 2020, informing Card’s counsel that the requested
information was necessary for evaluation of Card’s LTD claim because Principal only had
medical documentation for her through January 1, 2015. (Id. at 1655-56.) Card sent a signed
authorization for the release of her medical information to Principal on January 13, 2020.
(Id. at 1632.) Principal followed up regarding the requested information on January 17, 2020,
and asked for a list of her providers with their contact information so that Principal could
request Card’s medical records directly. (Id. at 1629.) According to records maintained by
Principal for Card’s claims, Principal also followed up via phone with Card’s counsel to
inquire about the status of her records on February 13, 2020, and February 17, 2020. (Id. at
1598.)
On February 26, 2020, Card filed a motion to reopen her case. (DE 95.) At that time,

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Card had only provided Principal with a copy of her exception request and her executed
HIPAA release form. (DE 101-1 at 6.) Card had not provided any other information that
Principal had requested from her, nor had Principal issued any decision on her claims for
LTD and LCDD benefits. (Id.) On May 7, 2020, Principal formally denied Card’s claims for
LTD and LCDD benefits. (DE 101-1.)
In addition to the motion to reopen, Card also filed a separate motion to recover the
attorney’s fees and costs incurred in achieving a remand during the First Appeal. (DE 89.)
The Court denied both motions, finding that it lacked jurisdiction to consider them because
the Sixth Circuit had instead remanded the matter directly to Principal. (DE 103.) Card
appealed that decision (the “Second Appeal”). (DE 104.)
3.

The Second Appeal

On the Second Appeal, the Sixth Circuit vacated the Court’s order, concluding that
the Court had jurisdiction to consider Card’s motions. (DE 106 at 8.) In its opinion, the Sixth
Circuit noted that it has “uniformly reversed and remanded . . . case[s] to the district court
with instructions that the district court, in turn, remand the beneficiary’s claim to the
administrator.” (Id. at 6.) In those instances, “the district court retains jurisdiction over the
case while the administrator reassesses its benefits decision.” (Id.) However, the Sixth
Circuit stated that “on its face,” its prior opinion “seemed to engage in a previously unheardof procedural innovation[,]” and “phrased its ‘decretal language’ in a way that . . . sowed
great confusion. “(Id. at 7.) The opinion then clarified:
As in every other ERISA case in this procedural posture, we interpret our prior
decision as remanding to the district for it to retain jurisdiction while
[Principal] engaged in the new benefits determination. The district court thus
had jurisdiction to consider Card’s motions to reopen and for attorney’s fees.

We vacate the district court’s order and remand for consideration of
Card’s motions.

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(Id. at 8 (emphasis added). Card’s case was therefore remanded once again.
4.

Motions for Attorney’s Fees and to Reopen

After the Sixth Circuit’s decision on the Second Appeal, the Court granted Card’s
motion for attorney’s fees and motion to reopen. (See DE 110.) The Court concluded that
Card achieved “some degree of success on the merits” in connection with the Sixth Circuit’s
first remand of her case, and that an award of attorney’s fees and costs was warranted. (Id.
at 6-12.) In calculating the amount of fees owed, the Court relied on a reasonable hourly rate
of $525/hour for attorney Michael Grabhorn because Principal failed to submit any evidence
disputing that this was the prevailing market rate for attorneys performing similar work in
Eastern Kentucky. (Id. at 14.) Moreover, the Court used its discretion to rely upon Mr.
Grabhorn’s current hourly rate to account for the years-long delay in payment of the fees.
(Id. at 14-15.) 
The Court also deemed Card to have exhausted her administrative remedies for her
claims because Principal did not issue a determination of her claims within the Department
of Labor’s 45-day deadline for ERISA claims. (Id. at 23-27.) This meant that Card could seek
judicial review of her claims, and the Court reopened her case. (Id. at 26-27.) Nonetheless,
Principal’s May 7, 2020 denial letter was the “operative denial” of her claims. (Id. at 28.)
B.

Instant Motions
Principal now moves to alter and amend the Court’s October 27, 2022 Opinion

granting Card’s motion for attorney’s fees and motion to reopen. (DE 112.) Card also moves
for a judgment reversing Principal’s denial of her claims. (DE 117.)

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1.

Relevant Plan Provisions

The Plan provides:
A Member1 will qualify for Disability benefits if all of the following apply:
a.

The Member is Disabled under the terms of this Group Policy.

b.

The Disability begins while he or she is insured under this Group Policy.

c.

The Disability is not subject to any Limitations listed in this PART IV, Section
O.

d.

An Elimination Period of 90 days is completed.

e.

A Benefit Payment Period is established.

f.

The Member is in the Regular and Appropriate Care of a Physician.

g.

The claim requirements listed in this PART IV, Section Q are satisfied.

(Administrative Record [hereinafter “AR”] at 137, PART IV, Section A, Article 1.)
Under Principal’s LTD Policy, a Member is considered Disabled if she “cannot perform
the majority of the Substantial and Material Duties of [her] Own Occupation” during the
Elimination Period and the Own Occupation Period. (Id. at 110, PART I.) After completing
the Elimination Period and the Own Occupation Period, the Member only qualifies for LTD
benefits if she “cannot perform the majority of the Substantial and Material Duties of any
Gainful Occupation for which [she] is or may reasonably become qualified based on education,
training, or experience.” (Id.) Pursuant to Principal’s LCDD Policy, a member qualifies for

The Plan defines a “Member” as “Any PERSON (OTHER THAN DIRECTOR, MGMT OR
ADMIN), residing in the United States, who is a U.S. citizen or is legally working in the
United States, who is a full-time Employee of the Policyholder or a Participating Unit and
who regularly works at least 24 hours a week.” (AR at 13.) Parties do not appear to dispute
that Card is a Member under the Plan, so the Court assumes the same.

1

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LCDD if she:
(1) become[s] Totally Disabled while insured for Member Life Insurance; and
(2) become[s] Totally Disabled prior to the attainment of age 60; and
(3) remain[s] Totally Disabled continuously; and
(4) [is] under the regular care and attendance of a Physician; and
(5) send[s] proof of Total Disability to the Principal when required; and
(6) submit[s] to Medical Examinations or Evaluation[s] when required; and
(7) return[s] to [Principal], without claim, any individual policy issued under
his or her Individual Purchase Rights . . .
(Id. at 248.) A Member is “Totally Disabled” if she is unable, “due to sickness or injury, to
perform the majority of the material duties of any occupation for which [she] is or may
reasonably become qualified based on education, training, or experience.” (Id. at 220.)
PART IV, Section Q includes several provisions that require Members to submit proof
of their claim. Upon request, “[f]urther proof that the Disability has not ended must be sent.”
(Id. at 154, PART IV, Section Q, Article 3.) “Failure to comply with the request of [Principal]
could result in declination of the claim.” (Id.) The Plan also requires Members to submit
“satisfactory Written proof of loss” to Principal. (Id., Part IV, Section Q, Article 3A.) Proof
of loss may include, among other things, “[d]ocumentation that the Member is under Regular
and Appropriate Care by a Physician;” “[c]opies of medical records, test results and/or
Physician’s progress notes;” or “[o]ther proof of loss as required by [Principal].” (Id. at 15455.) Principal will not pay any benefits until it receives the requested proof of loss. (Id. at
154.) Moreover, even after a claim is approved, “no benefits will be continued beyond the end
of the period for which the Member has provided [Principal] with satisfactory proof of loss.”
(Id. at 155, PART IV, Section Q, Article 3C.) As reiterated in PART IV, Section M, Article 1
of the Plan, “in no event, will benefits continue beyond . . . the date the Member fails to
provide any required proof of Disability . . .” (Id. at 147, PART IV, Section M, Article 1.)

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2.

Principal’s May 7, 2020 Denial Letter

In its May 7, 2020 denial letter, Principal formally denied Card’s claims for LTD and
LCDD benefits. (DE 101.) Principal relied upon the exact same file reviewers from its initial
denial of Card’s claims and the exact same reports created by these file reviewers. (Compare
DE 101-1 at 2 with AR at 541-42, 563-68, 579-87, 853-57, 831.) These file reviewers were Dr.
Polanco, Dr. Antin, and Dr. Chedid. (Id.) In concluding that Card was not eligible for LTD
or LCDD benefits, Principal assessed Card’s eligibility for benefits based solely on her
objective medical records. (DE 101-1 at 1-2, 4.) Principal also used a prior occupational
analysis that found that Card’s job as a licensed practical nurse was a “Medium Strength”
occupation. (Id. at 3.)
In its analysis of Card’s claims, Principal briefly addressed the opinion of Card’s
treating physician, Dr. Baum, stating,
Dr. Baum provided restrictions which indicated Ms. Card could not perform
even sedentary work. He also indicated she was unable to be exposed to sick
patients due to her diagnosis. However, these restrictions are not supported
since Ms. Card’s medical records did not demonstrate any clinical or diagnostic
findings that supported that her condition was functionally impairing,
including her inability to be exposed to sick patients. This is evidenced in the
reports from Dr. Polanco, Dr. Antin and Dr. Chedid.
(Id. at 4.) Principal also mentioned Card’s subjective complaints of her chronic lymphocytic
leukemia (“CLL”) symptoms in passing, writing, “Dr. Chedid notes that while Ms. Card
complained of severe fatigue, exhaustion and weakness, her CBC is essentially normal and
from an oncology standpoint, there were no clinical findings to support any functional
limitations or physical restrictions due to her chronic lymphocytic leukemia.” (Id. at 2.)
Principal found that Card had no restrictions or limitations that prevented her from
performing “medium strength” work, as required to qualify for LTD benefits. (Id. at 4.) For
the same reason, Principal found that Card was not prevented from performing “[A]ny

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[O]ccupation” with regard to her LCDD claim. (Id.)
Principal further noted that it requested updated medical information from Card and
that Card’s claim file did not contain any medical records from providers beyond December
2014. (Id. at 1-2.) Principal outlined all of the instances in which it contacted Card in order
to obtain that information. (Id. at 6.) Principal cited to Section Q, Article 3 of the Plan and
stated that it  “must receive satisfactory Documentation of Loss” for Card to qualify for
benefits. (Id. at 5-6.) Principal concluded,
Since we have not been provided with updated medical information, and we
have not been provided with a list of medical providers to request updated
medical information from, despite our multiple requests to you, we have
completed our review of Ms. Card’s claim based on the medical [information]
contained in the claim file, which is dated through December 19, 2014, and her
LTD and LCDD claims are denied.
(Id. at 6.)
II.

Motion to Alter and Amend
Pursuant to Federal Rule of Civil Procedure 59(e), a party must file a motion to alter

and amend2 “no later than 28 days after the entry of the judgment.” Fed. R. Civ. P. 59(e).
The standard for a motion to alter and amend under Rule 59(e) is “necessarily high.” Hewitt
v. W. & S. Fin. Grp. Flexibly Benefits Plan, CIVIL ACTION NO. 16-120-HRW, 2017 WL
2927472, at *1 (E.D. Ky. July 7, 2017). The moving party may not use a Rule 59(e) motion
as a tool to “re-litigate issues the Court previously considered.” Id. at *1. A court may only
grant a Rule 59(e) motion if the moving party sets forth (1) a clear error of law; (2) newly
discovered evidence; (3) an intervening change in the controlling law; or (4) a manifest
injustice. GenCorp, Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999) (citations
omitted).

Such a motion is also known as a motion for reconsideration, so the Court will use the terms
interchangeably.

2

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A.

Timeliness of Motion
Before reaching the merits of the motion, the Court must consider Card’s argument

that Principal’s motion to alter and amend the Court’s October 27, 2022 Opinion is untimely.
Card argues that Principal was required to file its motion by Friday, November 25, 2022, the
day after Thanksgiving. (DE 116 at 5.) Principal argues that the deadline was Monday,
November 28, 2022, the day it filed the motion. (DE 121 at 5-6.)
The Court entered the relevant opinion on October 27, 2022, so Principal had 28 days
after that date to file its motion. See Fed. R. Civ. P. 59(e). The 28-day deadline fell on
Thursday, November 24, 2022, which was the Thanksgiving holiday. Under the Local Rules,
“[w]hen any period of time set by Order of the Court or otherwise ends on a date certain and
that date certain falls upon a Saturday, Sunday or legal holiday, the period of time continues
to run until the end of the next day that is not a Saturday, Sunday or legal holiday.” Local
Rule 6.2. Thanksgiving is undisputedly a legal holiday. Fed. R. Civ. P. 6(a)(6)(A).3 The
question is whether the Friday after Thanksgiving constitutes a “legal holiday.”
Under Federal Rule of Civil Procedure 6(a)(6)(C), a “[l]egal holiday” includes “for
periods that are measured after an event, any other day declared a holiday by the state where
the district court is located.” Fed. R. Civ. P. 6(a)(6)(C). Kentucky state law closes state offices
and provides state employees with a holiday on “[t]he fourth Thursday in November plus one
(1) extra day.” Ky. Rev. Stat. § 18A.190(1)(i).4 Presumably, that “extra day” is the Friday

“‘Legal holiday’ means . . . the day set aside by statute for observing . . . Thanksgiving Day[.]”
Fed. R. Civ. P. 6(a)(6)(A).
4 In her response, Card includes language from the Western District of Kentucky’s online
court calendar stating that the Friday after Thanksgiving is an “administrative leave” day
that does not qualify as a legal holiday for purposes of calculating time under the Federal
Rules of Civil Procedure. (DE 116 at 5-6.) Upon review of the calendar, the Court cannot
locate this language. In any event, while the Eastern District of Kentucky jointly shares
Local Rules with the Western District of Kentucky, this Court is not convinced that such a
3

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after Thanksgiving. The Kentucky state government website for state employees lists the
Friday after Thanksgiving as a state holiday. Holidays & Leave, Team Kentucky Personnel
Cabinet, https://personnel.ky.gov/Pages/Holidays-and-Leave.aspx. And at least one other
court in this district has recognized that “the Friday after Thanksgiving has been declared a
holiday in the state of Kentucky.” Crawford v. Tilley, Civil Action No. 5:18-cv-623-CHB, 2020
WL 6947479, at *10 (E.D. Ky. Nov. 25, 2020), rev’d on other grounds by 15 F.4th 752 (6th Cir.
2021).
Based on Kentucky state law and consistent with the interpretation of that law by the
Kentucky state government and other courts in this district, this Court agrees that the Friday
after Thanksgiving is a “legal holiday” for purposes of calculating time. Therefore, Principal
needed to file its motion to alter and amend by Monday, November 28, 2022. Because
Principal filed its motion by that date, the motion is timely, and the Court may properly
consider it.
B.

Grounds for Reconsideration
Principal brings it motion to alter and amend the Court’s October 27, 2022 Opinion

on the following grounds: (1) the Court never remanded the case back to Principal for review;
(2) Principal “waited” for a directive and remand from this Court before beginning its review
of Card’s claims and was “confused” about the proper timing of the review; (3) the Court relied
upon case law that post-dated Principal’s actions on remand; and (4) the Court overlooked
case law mandating that an attorney’s hourly rate at the time he performed the work governs
the fee award rather than the hourly rate at the time the motion was filed. (DE 112 at 1-2,
5-8.) While Principal does not identify the basis for its Rule 59(e) motion, the Court assumes

policy, located outside the four corners of the Joint Local Rules, is binding on the courts of
this district. 
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Principal files the motion based on either a clear error of law or a manifest injustice. See
GenCorp, Inc., 178 F.3d at 834.
1.

The Court’s Lack of Remand to Principal

Principal’s first two objections go hand and hand, so the Court will address them
together. The gist of these arguments is that Principal claims that it never knew when it
was supposed to start its review on remand, so the Court should not penalize Principal for
its late decision under the Department of Labor’s guidlines given this lack of clarity. (DE
112 at 5-7.)
Principal misconstrues the nature of the Sixth Circuit’s opinion reversing this Court’s
holding that it lacked the jurisdiction to consider Card’s motions for attorney’s fees and to
reopen the case. While the Sixth Circuit noted the “confusion” associated with its prior
opinion that “‘remand[ed] the case to [Principal] for further proceedings’” and recognized that
cases are typically remanded to “the district court with instructions that the district court, in
turn, remand the beneficiary’s claim to the administrator,” the issue in front of the Sixth
Circuit was not whether the Court needed to remand the case back to Principal in this
instance. (DE 106 at 3, 6-7.) The customary remand did not and could not happen due to the
confusion over the verbiage in the Sixth Circuit’s initial opinion. Instead, the narrow issue
on the Second Appeal was whether the Court lacked jurisdiction to consider Card’s motions
for attorney’s fees and to reopen the case. This is reflected in the language of the Sixth
Circuit’s opinion for the Second Appeal, which stated that “we interpret our prior decision as
remanding to the district [court] for it to retain jurisdiction while [Principal] engaged in the
new benefits determination.” (DE 106 at 8 (emphasis added).) The Sixth Circuit accordingly
held that “[t]he district court thus had jurisdiction to consider Card’s motions to reopen and
for attorney’s fees” and therefore, “vacate[d] the district court’s order and remand[ed] for
consideration of Card’s motions.” (Id.) The Sixth Circuit never directed this Court to remand
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the matter back to Principal again. By considering Card’s motions instead of remanding the
case to Principal, the Court complied with the Sixth Circuit’s precise directive.
To the extent that Principal argues that it was “waiting” for a remand from this Court
before ruling on Card’s claims, that argument is disingenuous and belied by the record. While
the motion to reopen was still pending, Principal issued its decision letter denying Card’s
claims. (DE 101.) If Principal was, in reality, waiting for a remand from the Court before
reviewing Card’s claims, the Court questions why Principal issued a decision at all. Neither
Principal’s response to the motion to reopen nor its brief for the Second Appeal mention any
argument that Principal was awaiting a remand from this Court before acting. Instead,
Principal relied on the (albeit incorrect) assumption that the Sixth Circuit remanded Card’s
claims directly back to Principal for review. In its response to the motion to reopen, Principal
argued that “not only was it not the District Court, who remanded the case, but the Appeals
Court, which vacated the District Court’s judgment, holding that instead, the case should
have been remanded to [Principal] for further review.” (DE 98 at 4.) Likewise, during oral
argument for the Second Appeal, Principal stated, “The language of the decision . . . remanded
it directly to the claims administrator, which is certainly what [the Court] picked up on and
decided to base [its] ruling on.”

Oral Argument at 16:08-16:23, Susan Card v.

Principal Life Insurance Co. (6th Cir. 2021) (No. 20-6217). Principal’s position is reiterated
in its appellate brief, where it similarly argued that the Sixth Circuit “remanded the case
directly to [Principal] for further proceedings” and that Card “implicitly agreed with this
premise when she argued that the time frame for [Principal] to conduct its remand review of
[her] claim began on the date the mandate was issued – rather than at the date the district
court takes action.”

Brief of Defendant-Appellee at 39, Susan Card v. Principal Life

Insurance Company, No. 20-6217 (6th Cir. 2019), ECF No. 14.

Principal cannot now

manufacture confusion post hoc to avoid the Department of Labor’s mandatory deadlines.
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Therefore, the Court cannot reconsider its October 27, 2022 Opinion on either ground.
2.

Applicability of Subsequent Case Law

Next, Principal argues that, at the time it performed its remand review of Card’s
claims in 2019 and 2020, Kentucky federal courts had yet to issue any clear case law
regarding whether the Department of Labor’s deadlines for ERISA claims applied to
determinations conducted after a court-ordered remand. (DE 112 at 7-8.) In holding that
the deadlines applied to Principal’s remand review, the Court relied on, in part, Bustetter v.
Standard Ins. Co., 529 F. Supp. 3d 693 (E.D. Ky. 2021), a case decided in 2021. According to
Principal, this left it with “no notice that district courts in Kentucky would apply the
Department of Labor claims regulations to a remand review and the timing of its
determination.” (DE 112 at 8.) However, in addition to Bustetter, the Court also relied on
Solnin v. Sun Life & Health Ins. Co., 766 F. Supp. 2d 380 (E.D.N.Y. 2011), Robertson v.
Standard Ins. Co., 218 F. Supp. 3d 1165 (D. Or. 2016), and Spears v. Liberty Life Assurance
Co. of Bos., CIVIL ACTION NO.: 3:11-cv-1807 (VLB), 2019 WL 4766253, at *29 (D. Conn.
Sept. 30, 2019), all of which proceeded Principal’s remand review.5 In fact, both parties
discussed Solnin, Robertson, and Spears in their motion to reopen filings. (DE 95 at 3-4; DE
98 at 3-6; DE 100 at 2-3; DE 110 at 24.) In its response to the motion to reopen, Principal did
not cite to any case law finding that the Department of Labor’s deadlines do not apply to
determinations made post-remand, and in the instant motion, Principal continues to fail to
cite any case law to support its position. Based on case law existing at the time of its remand
review, Principal was on notice that courts had consistently found that the Department of

The Court also relied on Krysztofiak v. Bos. Mut. Life Ins. Co., Civil Action No. DKC 190879, 2021 WL 5304011, at *2-*3 (D. Md. Nov. 15, 2021), which was issued after Principal’s
remand review. Card notified the Court of this decision by filing a notice of supplemental
authority. (DE 108.) Principal never objected or otherwise responded to this notice.

5

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Labor’s deadlines applied to determinations on remand and could expect this Court to follow
suit. Accordingly, the Court denies Principal’s motion to alter and amend as to this ground.
3.

Hourly Rate

Finally, Principal challenges the Court’s decision to calculate attorney’ fees using
Michael Grabhorn’s current hourly rate rather than his hourly rate at the time he performed
the relevant work. (DE 112 at 8.) The Court relied on the current hourly rate to compensate
for the delay in payment of attorney’s fees and costs due to protracted litigation. (DE 110 at
14-15.) Principal argues that because its own actions did not contribute to the delay, the
Court should use Mr. Grabhorn’s historic hourly rate instead. (DE 112 at 8.) The relevant
law does not require the paying party to have contributed directly to the delay in payment in
order for the current hourly rate to apply, and Principal does not cite to any case law to the
contrary. See Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 556 (2010); Missouri v. Jenkins,
491 U.S. 274, 283-84 (1989); Barnes v. City of Cincinnati, 401 F.3d 729, 745 (6th Cir. 2005);
Bank One, N.A. v. Echo Acceptance Corp., 595 F. Supp. 2d 798, 801 (S.D. Ohio 2009); Arthur
S. Langenderfer, Inc. v. S.E. Johnson Co., 684 F. Supp. 953, 958 (N.D. Ohio 1988). In any
case, “parties cannot use a motion for reconsideration to raise new legal arguments that could
have been raised before a judgment was issued.” Roger Miller Music, Inc. v. Sony/ATV
Publ’g, LLC, 477 F.3d 383, 395 (6th Cir. 2007). In its motion to reopen briefing, Principal
could have argued that calculating Card’s attorney’s fees based on her attorney’s current
hourly rate was inappropriate because Principal did not contribute to any delay in litigation,
but Principal never raised this argument. The argument comes too late.
Accordingly, the Court also declines to reconsider its October 27, 2022 Opinion on this
ground. Therefore, the Court denies Principal’s motion to alter and amend the Court’s
October 27, 2022 Opinion in its entirety.

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III.

Standard of Review
Before reviewing Principal’s denial of Card’s LTD and LCDD claims, the Court must

determine what standard of review applies. Card maintains that the proper standard of
review is de novo review (DE 114), while Principal maintains that the proper standard of
review is arbitrary and capricious review (DE 115). Card argues that de novo review is
warranted because Principal failed to issue a timely decision on her claims in violation of the
Department of Labor’s guideline, specifically, 29 C.F.R. § 2560.503-1. (DE 114 at 4.) The
standard of review depends on whether the 2002 version or the 2018 version of § 2560.503-1
applies.
Both versions of § 2560.503-1 provide:
[I]n the case of the failure of a plan to establish or follow claims procedures
consistent with the requirements of this section, a claimant shall be deemed to
have exhausted the administrative remedies available under the plan and
shall be entitled to pursue any available remedies under section 502(a) of the
Act on the basis that the plan has failed to provide a reasonable claims
procedure that would yield a decision on the merits of the claim.
§ 2560.503-1(l)(1) (2018); § 2560.503-1(l) (2002). In its October 27, 2022 Opinion, the Court
deemed Card to have exhausted her administrative remedies pursuant to this regulation
because Principal failed to issue its determination of her claims on remand by the
Department of Labor’s deadlines. (DE 110 at 26-27.) This allowed Card to pursue judicial
review of her claims once again. (Id.)
However, the 2018 version of § 2560.503-1 contains an additional provision, which
states:
In the case of a claim for disability benefits, if the plan fails to strictly adhere
to all the requirements of this section with respect to a claim, the claimant is
deemed to have exhausted the administrative remedies available under the
plan . . . . Accordingly, the claimant is entitled to pursue any available remedies
under section 502(a) of the Act on the basis that the plan has failed to provide
a reasonable claims procedure that would yield a decision on the merits of the
claim. If a claimant chooses to pursue remedies under section 502(a) of the Act

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under such circumstances, the claim or appeal is deemed denied on
review without the exercise of discretion by an appropriate fiduciary.
§ 2560.503-1(l)(2)(i) (emphasis added).

Therefore, if subsection(l)(2)(i) applies, Card is

entitled to de novo review. But subsection (l)(2)(i) only applies to “claims for disability
benefits filed under a plan after April 1, 2018.” § 2560.503-1(p)(3). The 2002 version of the
regulations does not contain a provision similar to subsection (l)(2)(i). The determinative
question becomes, when did Card “file[]” her claims for LTD and LCDD benefits?
Under both the 2002 and 2018 versions of § 2560.503-1, “a claim for benefits is a
request for a plan benefit or benefits made by a claimant in accordance with a plan’s
reasonable procedure for filing benefit claims.” § 2560.503-1(e) (2018); § 2560.503-1(e) (2002).
“[N]ot all interactions with an administrator constitute new ‘claims for benefits’ after a party
files an initial claim.” Smith v. Hartford Life & Accident Ins. Co., 421 F. Supp. 3d 416, 419
(E.D. Ky. 2019). “Instead, subsequent interactions only constitute claims when they are
actually new requests for plan benefits.” Id. (emphasis added).
Card contends that the Sixth Circuit’s initial mandate essentially constituted a
“claim” because it was a request for plan benefits. (DE 114 at 4.) Because the mandate issued
on December 12, 2019, Card argues that her claim for benefits was made the same day, so
the 2018 version of the regulations governs her claims. (Id.) Based on Card’s theory,
2560.503-1(l)(2)(i) would apply, and de novo review would be the proper standard of review.
Principal disagrees, stating that Card instead filed her claim for benefits in 2013, when she
first submitted her disability benefits claims before seeking judicial review. (DE 115 at 4.)
Therefore, according to Principal, the 2002 version of the regulations applies. (Id. at 3-5.)
Card overlooks the fact that, on remand, Principal was not reviewing a new request
for benefits, and she fails to provide any evidence that she filed any new requests. Instead,
as correspondence between the parties shows, Principal was evaluating Card’s previously

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submitted LTD and LCDD claims. Shortly after the Sixth Circuit remanded Card’s claim,
Principal reached out to Card, requesting updated medical information to further evaluate
her claims. (AR Suppl. at 1670.) Card responded that “Principal [was] already in possession
of the information it had when it terminated Ms. Card’s claims for benefits,” which was “the
only information Principal previously believed necessary to render its decisions.” (Id. at
1659.) This further indicates that Card believed that Principal was reviewing her initial
claims on remand.

Moreover, the remand itself cannot constitute a claim for benefits.

Accordingly, the Court finds that the relevant claims for review on remand were Card’s
original requests for LTD and LCDD benefits, which she filed before the Sixth Circuit’s
remand. Smith, 421 F. Supp. 3d at 420 (declining to find that the claimant requested a new
“claim for benefits” where she filed an initial claim in 2001, that same claim was approved in
2007 following an appeal before the Sixth Circuit, and the same claim was denied in 2018
after reevaluation, even though seventeen years elapsed).
Card filed her claim for LTD benefits in September 2014 (AR at 1049) and her claim
for LCDD benefits in November 2014 (id. at 949). Because both claims were filed before April
1, 2018, the 2002 version of § 2560.503-1 applies to these claims. This means that subsection
(l)(2)(i) does not apply.
Card contends that even if her claims implicate the 2002 version of § 2560.503-1, the
proper standard of review is still de novo review. (DE 114 at 5.) To support her argument,
Card cites to Bustetter v. Standard Ins. Co., 529 F. Supp. 3d 693 (E.D. Ky. 2021). Bustetter
held that under the 2002 version of § 2560.503-1, courts should review claims de novo if the
administrator issued a late decision in violation of the Department of Labor’s regulations.
Id. at 703.
In Daniel v. Eaton Corp., 839 F.2d 263 (6th Cir. 1988), the Sixth Circuit held that the

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proper standard of review in instances where an administrator fails to issue a decision on a
claim (or, in this case, fails to timely issue a decision on a claim) is arbitrary and capricious
review, rather than de novo review. Id. at 267. However, that case involved the pre-2002
version of § 2560.503-1. Bustetter, 529 F. Supp. at 702-03. Bustetter found that “[i]n light of
the substantial changes to the regulations” between the 2002 version of the regulations and
its predecessor, Daniel does not apply to claims filed after the 2002 version became effective.
Id. Therefore, the appropriate standard of review for such claims is de novo review. Id.
Nonetheless, the Eastern District of Kentucky has repeatedly applied Daniel as
binding precedent for cases involving claims filed between 2002 and April 1, 2018, under the
2002 version of the regulations. See Martin v. Guardian Life Ins. Co. of Am., Civil Action No.
5:20-507-DCR, 2021 WL 2516083, at *3-*4 (E.D. Ky. June 15, 2021) (collecting cases). And
other courts in this district have explicitly rejected Bustetter, finding that Daniel remains
binding precedent. See, e.g. id. While the Sixth Circuit has previously noted that “there is
undeniable logic in the view that a plan administrator should forfeit deferential review by
failing to exercise its discretion in a timely manner,” it has yet to overturn Daniel. Univ.
Hosps. of Cleveland v. Emerson Elec. Co., 202 F.3d 839, 846 n.3 (6th Cir. 2000). Absent a
Sixth Circuit decision overturning Daniel, Daniel remains good law and binding precedent
that, unlike decisions promulgated by other district court judges, this Court must follow.6
Consistent with Daniel, arbitrary and capricious review is the proper standard of review

The Court recognizes that it relied on the same Bustetter case in determining that the
Department of Labor’s deadlines apply to determinations made after a court-ordered remand.
(See DE 110 at 24.) Unlike the standard of review issue invoked here, that portion of the
case implicates an entirely different issue for which no binding Sixth Circuit precedent exists
and for which no conflicting case law exists within other district courts in the Circuit.
Therefore, the Court finds it appropriate to rely on Bustetter as to whether the Department
of Labor’s deadlines applied but not as to the proper standard of review.

6

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when an administrator fails to timely issue a benefits determination under the 2002 version
of the Department of Labor’s regulations.
Therefore, this Court will review Principal’s denial of Card’s LTD and LCDD claims
according to the arbitrary and capricious standard of review.
IV.

Review of Principal’s Denial of Card’s LTD and LCDD Claims

A.

Arbitrary and Capricious Standard of Review
The arbitrary and capricious standard is “the least demanding form of judicial review

of administrative action.” Farhner v. United Transp. Union Discipline Income Prot. Program,
645 F.3d 338, 342 (6th Cir. 2011) (citation and quotation marks omitted).

Under this

standard of review, a court must uphold the plan administrator’s decision “if it is the result
of a deliberate, principled reasoning process and is supported by substantial evidence.” Glenn
v. MetLife, 461 F.3d 660, 666 (6th Cir. 2006) (citation and quotation marks omitted). “Put
another way, ‘when it is possible to offer a reasoned explanation, based on the evidence, for
a particular outcome, that outcome is not arbitrary and capricious.’” Pflaum v. UNUM
Provident Corp., 175 F. App’x 7, 9 (6th Cir. 2006) (quoting Williams v. Int’l Paper Co., 227
F.3d 706, 712 (6th Cir. 2000)). Though the Court’s review under the arbitrary and capricious
standard is “not without some teeth,” it is still extremely deferential. See McClain v. Eaton
Corp. Disability Plan, 740 F.3d 1059, 1064 (6th Cir. 2014).
B.

Card’s Claims through January 1, 2015
As both parties recognize, Principal only has medical information from Card through

January 1, 2015.7 (DE 135 at 14; DE 136 at 17.) Therefore, the Court will separately review

While Principal’s May 7, 2020 denial letter stated that Card’s claim file did not include
medical information past December 2014 (see DE 101-1 at 1-2), Principal only requested
information from January 1, 2015, and beyond (AR Suppl. at 1598, 1629, 1655-56, 1670).
Therefore, the Court uses January 1, 2015, as the dividing line for Card’s claims.
7

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Principal’s denial as it relates to (1) Card’s LTD and LCDD claims through January 1, 2015,
and (2) Card’s LTD and LCDD claims beyond January 1, 2015.
1.

Failure to Remedy Prior Deficiencies

Unfortunately, on remand, Principal fails to remedy many of the deficiencies that the
Sixth Circuit already rendered arbitrary and capricious when reviewing Principal’s initial
denial of Card’s LTD and LCDD claims on the First Appeal. In several instances, Principal
repeats the same mistakes. “[W]hen a case has been remanded by an appellate court, the
trial court is bound to proceed in accordance with the mandate and law of the case as
established by the appellate court.” Goldberg v. Maloney, 692 F.3d 534, 538 (6th Cir. 2012)
(citation and quotation marks omitted). Because the Sixth Circuit already deemed these
actions arbitrary and capricious, this Court is bound to do the same. The Court will further
detail each deficiency below.
a.

Reliance on Previous Medical Opinions

First, the Sixth Circuit found that Principal’s initial denial of Card’s LTD claims was
arbitrary and capricious because Principal’s file reviewers failed to “critically assess[]
plaintiff’s specific health issue, with its attendant fatigue and low resistance to infection,
against the actual demands of her job and the profession.” (DE 85 at 20.) During its remand
review, Principal relied on the exact same reports from the exact same file reviewers to deny
Card’s claims, including reports from Dr. Polanco, Dr. Antin, and Dr. Chedid. (Compare DE
101-1 at 2 with AR at 541-42, 563-68, 579-87, 853-57, 831.) If the Sixth Circuit previously
found that the failure of these file reviewers to assess Card’s health issues against her job
demands was arbitrary and capricious, that failure remains arbitrary and capricious in this
instance.
Relatedly, the Sixth Circuit also took issue with the failure of the file reviewers to
account for Card’s exertional restrictions in their reports. (See DE 85 at 16, 18.) For example,
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the Sixth Circuit stated that Dr. Polanco’s review only mentioned whether Card could
perform “sedentary work” and did not examine if she could perform “medium” strength work.
(Id.; AR at 855.) Card’s occupation is a “medium strength” occupation. (DE 85 at 14; DE 1011 at 3.) The Sixth Circuit further noted that, in his report, Dr. Chedid “did not offer any
explanation” as to why he disregarded the exertional restrictions placed on Card by her
treating physician. (DE 85 at 18; AR at 565, 567.) Because Principal relied on these same
reports during its remand review, Principal’s denial as to Card’s claims through January 1,
2015, is also arbitrary and capricious on this ground.
The Sixth Circuit further found “problematic” that Principal relied on only “objective
evidence” from Card’s medical records without regard to her subjective complaints. (DE 85
at 19.)

On remand, Principal once again denied Card’s claims based solely on its file

reviewers’ assessment of her medical records. (DE 101-1 at 1-2, 4.) To the extent the
determination denied Card’s claims through January 1, 2015, Principal’s denial was
arbitrary and capricious.
As further explained supra, the Court understands that Principal’s determination was
hindered to the extent that Card failed to provide Principal with the updated medical
information it requested from her. (DE 135 at 14; DE 136 at 17.) But Principal does not
identify any obstacle that prevented it from obtaining a new file review with updated medical
opinions that addressed its prior deficiencies based on the information it had through
January 1, 2015. Without updated medical opinions that comply with the Sixth Circuit’s
directive, Principal’s determination was arbitrary and capricious as it relates to Card’s LTD
and LCDD claims through January 1, 2015.
b.

Disregard of Treating Physician’s Medical Opinion

The Sixth Circuit also found that Principal’s initial denial was arbitrary and
capricious because Principal relied on the opinions of its own file reviewers over the opinions
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of Card’s treating physicians without providing an explanation for that preference. (DE 85
at 19.)

Specifically, Principal disregarded her treating physician’s restrictions on her

exertional level and her exposure to infectious persons and diseases. (Id. at 16.) In its
remand review, Principal fails to correct this error.
On remand, Principal acknowledges the restrictions from Dr. Baum on Card’s
exertional level and her exposure to sick patients. Principal discounts the restrictions,
stating, “[T]hese restrictions are not supported since Ms. Card’s medical records did not
demonstrate any clinical or diagnostic findings that supported that her condition was
functionally impairing, including her inability to be exposed to sick patients.

This is

evidenced in the reports from Dr. Polanco, Dr. Antin and Dr. Chedid.” (DE 101-1 at 4.) Even
though Principal references the treating physician’s restrictions, it still fails to explain why
it gave more weight to the reports from its file reviewers over the opinion of Card’s treating
physician. Principal did not require updated information from Card to provide a sufficiently
detailed explanation about why it gave preference to its file reviewers. For this separate
reason, Principal’s denial of Card’s LTD and LCDD claims was also arbitrary and capricious
as to Card’s claims through January 1, 2015.
The Court makes one additional note: Principal provides a detailed, logical
explanation for why it relied on the opinions of its file reviewers over the opinion of Dr. Baum
in its response to Card’s motion for judgment. (See DE 135 at 22-24.) The Court’s task is to
review Principal’s actual determination, and Principal’s denial letter did not contain the
same level of detail. Based solely on its review of Principal’s denial letter, the Court finds
that Principal's explanation was insufficient.
c.

Failure to Discuss Chronic Lymphocytic Leukemia

Finally, the Sixth Circuit also concluded that Principal’s initial denial was arbitrary
and capricious because the denial did not consider Card’s ability to function in a “medium
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strength” work environment in light of the fatigue and weakness that result from her chronic
lymphocytic leukemia (“CLL”) diagnosis. (DE 85 at 18-19.) On remand review, Principal
mentions Card’s CLL diagnosis and her complaints of fatigue and weakness. (DE 101-1 at
2.) But Principal fails to address how her reported symptoms would impact her ability to
perform her job duties, yet again relying solely on a lack of clinical findings to support its
conclusion that Card’s diagnosis does not create any limitations. (Id. at 2.) Since Principal
did not follow the Sixth Circuit’s instruction to consider Card’s reported CLL symptoms
against the demands of her job, Principal’s subsequent denial was arbitrary and capricious
on this additional ground as it relates to Card’s LTD and LCDD claims through January 1,
2015.
Due to the failure of Principal’s remand review to comport with the Sixth Circuit’s
directives, the Court finds that its subsequent denial was arbitrary and capricious to the
extent that the determination denied Card’s LTD and LCDD claims through January 1,
2015.8 The Court grants judgment in favor of Card as to those claims.9
C.

Card’s Claims beyond January 1, 2015
To the extent that Card seeks LTD and LCDD beyond January 1, 2015, Principal’s

decision to deny those claims was not arbitrary and capricious. In its denial letter, Principal
denied Card’s claims, in part, based on her failure to provide satisfactory proof of loss for her

Card raises additional arguments regarding Principal’s purported violation of its exception
procedure, its additional alleged violations of ERISA claim regulations, and its failure to
address her award of Social Security Disability Income benefits. (DE 117 at 19-23.) Because
the Court has already found that Principal’s denial was arbitrary and capricious as to Card’s
LTD and LCDD claims through January 1, 2015, based on the established law of the case,
the Court need not consider these arguments.
9
 To the extent Principal contends that Card’s claims fail because she did not establish that
she was under the “Regular and Appropriate Care of a Physician,” that argument was not
raised in its denial letter, and therefore, is not properly before the Court for review. (DE 135
at 16, 24-25.)
8

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claims. (DE 101-1 at 6.) In doing so, Principal cited to Section Q, Article 3 of the Plan, which
sets forth certain claim requirements that Card must satisfy to qualify for benefits. (Id. at
5-6; AR at 137, PART IV, Section A, Article 1.) Principal reiterated that it “must receive
satisfactory Documentation of Loss” for Card to qualify for benefits and listed its attempts to
contact her for appropriate medical documentation to no avail. (DE 101-1 at 6.) Principal
accordingly reviewed Card’s claims based on the medical information it had through
December 2014. (Id.) Principal denied Card’s claims “[s]ince [it had] not been provided with
updated medical information, and [it had] not been provided with a list of medical providers
to request updated medical information from.” (Id.)
Principal’s decision to deny Card’s claims beyond January 1, 2015, was reasonable,
according to the terms of the Plan and Card’s failure to adhere to the requirements necessary
to qualify for LTD and LCDD benefits. The Plan provides that a Member will only qualify
for Disability benefits if, in addition to other requirements, she satisfies the claim
requirements in PART IV, Section Q. (AR at 137, PART IV, Section A, Article 1.) PART IV,
Section Q contains two related provisions that require Card to submit proof of her claims.
First, when requested by Principal, Card must send “[f]urther proof that the Disability
has not ended.” (AR at 154, PART IV, Section Q, Article 3.) “Failure to comply with the
request of [Principal] could result in declination of the claim.” (Id.) No less than five times,
Principal requested that Card submit further proof of her Disability because her file only
included medical documentation of her alleged Disability through January 1, 2015. (AR
Suppl. at 1598, 1629, 1655-56, 1670.) Card does not deny that she did not submit the
requested information to Principal. (DE 136 at 17.) Based on the terms of the Plan, it was
not arbitrary and capricious for Principal to deny Card’s LTD and LCDD claims beyond
January 1, 2015, because she undisputedly failed to comply with Principal’s multiple
requests for information.
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Second, the Plan also requires the Member to submit “satisfactory Written proof of
loss” to Principal. (Id., Part IV, Section Q, Article 3A.) Proof of loss may include“[c]opies of
medical records, test results and/or Physician’s progress notes” or “[o]ther proof of loss as
required by [Principal].” (Id. at 154-55.) Again, on five occasions, Principal requested that
Card submit updated medical records, updated pharmacy records, and her Social Security
claim file. (AR Suppl. at 1598, 1629, 1655-56, 1670.) The requested information fell within
the categories of proof of loss acceptable under the Plan. Again, Card admittedly never
submitted the requested information. Because Card failed to submit satisfactory proof of loss
as required under the Plan, Principal’s decision was not arbitrary and capricious as it relates
to the denial of her LTD and LCDD claims beyond January 1, 2015.
Since Card did not satisfy the claim requirements set forth in PART IV, Section Q of
the Plan, she plainly did not qualify for LTD and LCDD benefits according to the terms of
the Plan. Therefore, Principal’s determination that Card was ineligible for these benefits
beyond January 1, 2015, was not arbitrary and capricious. Even if Card was initially eligible
for LTD and LCDD benefits, “no benefits will be continued beyond the end of the period for
which the Member has provided [Principal] with satisfactory proof of loss,” (AR at 155, PART
IV, Section Q, Article 3C), and “[i]n no event, will benefits continue beyond . . . the date the
Member fails to provide any required proof of Disability,” (id. at 147, PART IV, Section M).
Since Principal did not have any medical records or other proof of loss from Card beyond
January 1, 2015, any benefits awarded to her would not extend past that date. Accordingly,
Principal reasonably denied Card’s LTD and LCDD claims to the extent that Card seeks
disability benefits beyond January 1, 2015.
Principal’s denial of Card’s LTD and LCDD claims beyond January 1, 2015, was “the
result of a deliberate, principled reasoning process.” Glenn, 461 F.3d at 666. In is denial
letter, Principal cited to the relevant provisions of the Plan and systematically outlined its
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various requests for information from Card. (DE 101-1 at 5-6.) Principal explained how Card
violated the Plan by failing to provide the requested information and denied her claims, in
part, because of this violation. (Id. at 6.) Substantial evidence shows that Principal contacted
Card five separate times for the information, and Card admits that she failed to submit the
requested information. (AR Suppl. at 1598, 1629, 1655-56, 1670; DE 136 at 17.) The Court
agrees with Principal’s determination as it relates to Card’s LTD and LCDD claims beyond
January 1, 2015. Therefore, to the extent that Card moves for judgment on those claims, the
Court denies her motion.
Card raises several arguments to justify her failure to provide the requested
information to Principal. None of those arguments succeed.
First, Card contends that “[t]hroughout this case, Principal has argued the only
relevant timeframe and information for Ms. Card’s claims was from December 2013 through
the elimination periods (e.g., March 2014).” (DE 136 at 8 (emphasis in original).) To support
this argument, Card references a statement from Principal’s appellate brief for the First
Appeal. (Id.) The statement says, in full, “That must hold especially true when the objective
evidence in Ms. Card’s medical records identifies a Stage 0 disease process at the time of
her claim in December 2013 and during the following 90 day Elimination Period . .
. the only relevant time period for Ms. Card’s disability claims.” (DE 100-2 at 2-3
(emphasis added).) While that may have been Principal’s argument upon its pre-remand
review of Card’s claims, the circumstances have changed since the Sixth Circuit first
remanded Card’s case. Over five years passed between March 2014 (the ending date for the
90-day elimination period) and the Sixth Circuit’s remand. Ultimately, Principal’s previous
argument does not change the fact that, under the Plan, Card has the duty to continuously
provide proof of her disability upon request. Card did not fulfill that duty, and Principal
reasonably denied her claims beyond January 1, 2015.
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Card also relies on a statement in Principal’s previous cross-motion for summary
judgment:

“When deciding if [Principal’s] decision to deny benefits is arbitrary and

capricious, the Court is limited to the evidence (and the arguments) that were before
[Principal] at the time of its decision.” (DE 136 at 8 (emphasis in original) (quoting DE
72 at 26).) That statement says nothing about the relevant timeframe for Principal’s review
of Card’s claims. Rather, the statement relates to what evidence the Court may consider
when reviewing Principal’s determination.
Next, Card insists that Principal already had the medical evidence it needed in its
possession. (DE 117 at 4.) Card cites to the May 7, 2020 denial letter, where Principal stated,
“The records we had as of the LTD/LCDD accrual dates and beyond included . . . .” (Id.
(emphasis in original) (quoting DE 101-1 at 2).) Card cherry picked this statement. The
statement reads in full:
The records we had as of the LTD/LCDD accrual dates and beyond included a
letter from Dr. Baum dated September 26, 2014 regarding his recommended
restrictions, office notes from Dr. Baum dated January 28, 2014 and May 28,
2014, office notes from Dr. Shell dated November 12, 2014 and December 9,
2014 and office notes from Dr. Donaldson dated December 5, 2014 and
December 19, 2014.
(DE 101-1 at 2.)

Notably, this statement does not indicate that Principal had any

documentation beyond January 1, 2015, as necessary for Principal to determine if Card is
and continues to be disabled under the Plan.
Card also argues that she provided Principal with a release to obtain her medical
records from her providers. (DE 136 at 8-9.) According to Card, “Principal already knew
who Ms. Card’s treaters were during the relevant time period (i.e., Drs. Baum, Schell,
Donaldson)” but “simply elected to not request any medical records.” (Id. at 9 (emphasis in
original).) While Card undisputedly signed the authorization for the release of her medical
records (AR Suppl. at 1632-33), she admittedly failed to provide Principal with updated

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contact information for her providers or otherwise confirm that her treating physicians
remained the same after January 1, 2015 (DE 136 at 17). Principal had no way of knowing
if Card remained under the care of the same physicians five years later without her
confirmation. A plaintiff seeking benefits “bears the burden of proving by a preponderance
of the evidence that she satisfies the terms of the Plan and qualifies for [the relevant]
benefits.” Dening v. Aetna Life Ins. Co., Civil Action No. 5:21-221-DCR, 2022 WL 2706149,
at *5 (E.D. Ky. July 12, 2022). As such, the claims administrator is “not required to seek out
evidence on its own.” Cassidy v. Aetna Life Ins. Co., Civil Case No. 6:19-cv-000201-GFVT,
2021 WL 1857297, at *3 (E.D. Ky. May 10, 2021). By failing to provide the necessary evidence
from her treating physicians, Card failed to meet her burden to prove that she qualified for
benefits under the Plan. Principal should not be penalized for failing to obtain the evidence
that Card had the burden of submitting. Accordingly, Principal reasonably denied her LTD
and LCDD claims beyond January 1, 2015.
Card maintains that Principal “was not permitted to rely upon new evidence or new
reasons to deny Ms. Card’s LTD or LCDD benefits post-remand—it was restricted to the
Sixth Circuit’s mandate.” (DE 117 at 4 (emphasis in original).) Card does not point to any
language within the Sixth Circuit’s opinion or to any binding precedent limiting Principal’s
review in this way. Instead, the Sixth Circuit’s mandate seemingly compels the opposite.
Citing Elliott v. MetLife Ins. Co. 473 F.3d 613, 621-22 (6th Cir. 2006), the Sixth Circuit
explained that “[i]f a court concludes that an administrator acted arbitrarily and capriciously,
it may either remand the case to the administrator for a new review or award benefits to the
beneficiary.” (DE 85 at 19 n.7 (emphasis added).) The Court remanded the case for new
review, implying that Principal could rely on new evidence or reasoning when assessing
Card’s claims. (Id. at 2, 19.) The Sixth Circuit remanded the case in lieu of automatically
awarding Card benefits because it “[could not] say on the record that plaintiff is entitled to
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short-term and/or long-term disability benefits.” (Id. at 2.) The record was not well developed
enough for the Sixth Circuit to make any determinations regarding Card’s eligibility,
meaning that an expanded record was needed on remand. The Sixth Circuit also found that
“[r]emand [was] necessary because [Principal] failed in at least two stages of its benefits
determination to account adequately for plaintiff’s actual job duties.” (DE 85 at 19 (emphasis
in original).) To adequately account for Card’s job duties, Principal would almost certainly
need to look at new evidence or provide new reasoning in its revised determination.
Throughout the opinion, the Sixth Circuit points to deficiencies in Principal’s decisionmaking process. (DE 85 at 14-20.) The purpose of the mandate was for Principal to correct
those errors, necessarily requiring Principal to provide additional reasoning for its
determination. Therefore, Principal’s request for updated medical information from Card
was entirely consistent with the Sixth Circuit’s mandate.
For Principal to evaluate Card’s claims for LTD and LCDD benefits beyond January
1, 2015, it first and foremost needed updated evidence from Card. Because Principal could
not assess Card’s claims in the first instance due to her refusal to provide the requested
information, any other argument that Principal’s denial of those claims was arbitrary and
capricious fails at the jump. The Court denies Card’s LTD and LCDD claims to the extent
she seeks benefits beyond January 1, 2015.
V.

Remedy
The Court must determine the appropriate remedy in light of its finding that

Principal’s denial of Card’s LTD and LCDD claims through January 1, 2015, was arbitrary
and capricious. “In cases such as these, courts may either award benefits to the claimant or
remand to the plan administrator.” Elliott, 473 F.3d at 621. During the First Appeal, the
Sixth Circuit remanded the case because it “[could not] say on the record that plaintiff is
entitled to short term and/or longterm disability benefits.” (DE 85 at 2.) As explained supra,
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the record before this Court essentially remains the same because Card failed to submit
additional evidence of her LTD and LCDD claims as requested, and Principal’s denial of her
claims through January 1, 2015, suffered from the same deficiencies as its previous denial.
Based on the Sixth Circuit’s initial mandate, the Court also finds that the appropriate remedy
is a remand of those claims to Principal for a new review consistent with this opinion.
To the extent that Card seeks attorney’s fees or any other relief in connection with her
motion for judgment, she may seek those through a separately filed motion.
VI.

Conclusion
The Court hereby ORDERS as follows:
1.

Defendant Principal Life Insurance Company’s motion to alter and amend (DE
112) is DENIED;

2.

Defendant SHALL REMIT a payment of $47,635.00 in attorney’s fees and
$857.92 in costs to Plaintiff Susan Card within thirty (30) days of the entry
date of this Opinion and Order;

3.

Plaintiff’s motion for judgment (DE 117) is GRANTED in part and DENIED in
part;

4.

Plaintiff’s LTD and LCDD claims through January 1, 2015, are REMANDED
to Defendant for a new determination consistent with this Opinion;

5.

The Department of Labor’s regulations regarding the deadlines for the
processing of ERISA claims (29 C.F.R. § 2560.503-1) SHALL GOVERN the
timing of Defendant’s new determination; and

6.

The Court will enter a judgment contemporaneously with this Order.

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This 5th day of September, 2023.

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