Foster v. Principal Life Insurance Company et al

Filing 37

ORDER denying 25 Motion for Judgment on the Pleadings; granting 26 Motion for Judgment as a Matter of Law. Signed by Judge Nannette Jolivette Brown. (jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
AMANDA C. FOSTER

CIVIL ACTION

VERSUS

CASE NO. 16-1270

PRINCIPAL LIFE INSURANCE COMPANY, et al.

SECTION: “G”(2)

ORDER AND REASONS
This is an action for review of the denial of long-term disability benefits and life insurance
waiver of premium benefits under an employee welfare benefit plan governed by the Employee
Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq. (“ERISA”). The parties,
Plaintiff Amanda Foster (“Foster”) and Defendant Principal Life Insurance Company
(“Principal”), have filed cross motions for judgment on the administrative record. 1 Having
considered the motions, the memoranda, the record, and the applicable law, the Court grants
judgment in favor of Principal. The Court declines to award attorney’s fees or costs to either party.
I. Background
A.

Factual Background
Amanda Foster began working at the law firm Sullivan, Stolier & Knight in November

2005 as a healthcare attorney. 2 Foster described her job duties as “review and draft leases and
agreements; research and advise clients regarding government laws and regulations; represent

1

Rec. Docs. 25, 26.

2

Rec. Doc. 25-1 at 1.

1

clients in administrative appeals; draft compliance plans.” 3 On March 8, 2013, Foster decreased
her work hours to part-time capacity, allegedly due to intractable headaches. 4 Foster took complete
disability leave from Sullivan, Stolier & Knight on July 1, 2013. 5
Principal Life Insurance Company (“Principal”) issued a group benefits plan to Sullivan,
Stolier & Knight that provides long term disability benefits (“LTD”) 6 and life insurance coverage7
to eligible employees (“Group Policy”). 8 The group term life insurance policy contains a
“Coverage During Disability” provision (“LCDD”), 9 which Foster claims entitles her to life
insurance waiver of premium benefits (“LWOP”) during the period of her total disability. 10
There is no dispute that the Group Policy and Foster’s claims for LTD and LWOP are
governed by the Employee Retirement Income Security Act of 1974, codified at 29 U.S.C. § 1001,
et seq. (“ERISA”). 11 It is also undisputed that the Group Policy confers upon Principal the
“discretion to construe or interpret the provisions of [the] Group Policy, to determine eligibility

3

AR 5222.

4

Rec. Doc. 25-1 at 1.

5

Id.; Rec. Doc. 2601 at 2.

6

GLT 1026572, AR 1 – 100.

7

GL 1026572, AR 103 – 184.

8

Rec. Doc. 26-1 at 1.

9

AR 141.

10

The life insurance waiver of premium (“LWOP”) is a benefit of the group life insurance policy’s coverage
during disability provision (“LCDD”). Although Foster refers to her claim as a denial of LWOP, Principal refers to
the claim as LCDD.
11

Rec Doc. 26-1 at 1.

2

for benefits, and to determine the type and extent of benefits, if any, to be provided” 12 for both
LTD and life insurance benefits. 13 Thus, Principal served as the insurer and the plan
administrator. 14
B.

Procedural Background
On July 8, 2013, Foster filed a claim for long-term disability benefits pursuant to the Group

Policy issued by Principal, alleging that she was “unable to practice law due to pain of headaches”
as of March 8, 2013. 15 Principal approved Foster’s LTD claim effective September 4, 2013, after
the 180 day elimination period was met. 16 Foster also claims entitlement to LWOP benefits during
her disability.
On May 1, 2014, Principal denied Foster’s claim for Life Coverage During Disability
(“LCDD”) benefits that would have covered her life insurance premiums while she was disabled. 17
Foster appealed this decision on September 30, 2014, 18 alleging that Dr. D.C. Mohnot, Foster’s
treating neurologist, and Phyllis Shnaider, L.C.S.W., Foster’s therapist, both opined that Foster

12

AR 22; Rec. Doc. 26-1 at 1; see Rec. Doc. 25-1 at 9.

13

The life insurance policy similarly provides: “The Principal has complete discretion to construe or interpret
the provisions of this group insurance policy, to determine eligibility for benefits, and to determine the type and extent
of benefits, if any, to be provided.” AR 117.
14

Rec. Doc. 25-1 at 10; “To the extent that benefits are provided by the Group Policy, the administration
and payment of claims will be done by Us [Principal] as an insurer.” AR. 66.
15

AR 5634.

16

AR 4677.

17

AR 4022. Principal explained that based on the medical information received, Foster was capable of parttime sedentary work; thus, Foster was not considered “Totally Disabled” under the definition of disability in the life
insurance policy. AR 4023.
18

AR 3824-3825.

3

was unfit for full or part-time employment. 19 On December 1, 2014, Principal upheld its denial of
LCDD, noting that the medical evidence demonstrated that Foster was not unable to work in any
occupation on a full or part-time basis and that because Foster stopped working full-time on March
8, 2013, her group life insurance coverage ceased on April 1, 2013. 20
By correspondence dated December 18, 2014, Principal terminated Foster’s LTD benefits
beyond December 9, 2014, 21 concluding that Foster no longer met the Policy’s definition of
disability, 22 and denied Foster’s appeal as to the LCDD claim. 23 Foster appealed Principal’s
termination of LTD benefits on January 23, 2015, and provided Principal with additional medical
records on April 28, 2015. 24 Principal denied the appeal on July 24, 2015. 25 Foster filed a second
appeal on July 31, 2015. 26 After receiving additional records and obtaining a neuropsychological
evaluation, Principal upheld its prior determination and denied additional benefits on December
21, 2015. 27 On January 27, 2016, Foster provided Principal with additional evidence to support
her claim. 28 On February 3, 2016, Principal informed Foster that all appeal options had been

19

Id.

20

AR 2164.

21

AR 2151 – 2154.

22

Id.

23

Id.

24

AR 2149, 2017–2023, 1158-1164.

25

AR 1806-1809.

26

AR 1799.

27

Rec. Doc. 26-1 at 14, 15.

28

Id. at 15.

4

exhausted. 29 Foster then instituted this litigation.
II. Parties’ Arguments
A.

Foster’s Motion for Judgment on the Administrative Record
Foster asserts that she is entitled to judgment in her favor and against Principal awarding

her LTD disability benefits retroactive to the date of the discontinuance, with judicial interest, and
reinstatement of benefits, including LWOP. 30
1.

Foster’s Arguments in Support of the Motion
a. Principal’s conflict of interest in acting as plan administrator and payer of
benefits must be considered by the Court in determining whether Principal
abused its discretion in denying benefits

Foster concedes that Principal’s denial of benefits is reviewed under an abuse of discretion
standard. 31 However, Foster argues, when an insurance company acts as plan administrator and
ultimate payer of benefits, a structural conflict of interest exists that must be considered by the
Court in determining whether the plan administrator abused its discretion in denying benefits.32
Foster contends that Principal, as plan administrator and payer of benefits, disobeyed ERISA’s
mandate that it discharge its duties in the interest of plan participants and beneficiaries, and instead,
Principal went out of its way to deny Foster benefits. 33 This inherent conflict of interest, Foster
maintains, should weigh in favor of finding that Principal abused its discretion in denying Foster

29

Id.

30

Rec. Doc. 25-1 at 24.

31

Id. at 9.

32

Id. at 10.

33

Id. at 10-11.

5

benefits. 34
b. Foster is plainly disabled under the terms of the Group Policy
In support of the motion for judgment on the administrative record, Foster argues that she
is plainly disabled under the terms of the Group Policy. 35 According to Foster, her inability to
continue to perform at least one of the essential duties of her occupation as a healthcare attorney
is evident from her medical records. 36 Foster asserts that her medical records provide
overwhelming evidence of “persistent, intractable headaches.” 37 Foster argues that her medical
records demonstrate that she has a history of debilitating headaches, which began to increase in
intensity and frequency in 2011. 38 Foster asserts that she has daily headaches, as well as severe
headaches between two to three times per week. 39 Foster further asserts that she has tried multiple
interventions, such as hypnosis, acupuncture, rest, pharmaceuticals, and Botox, which have been
ineffective. 40
Second, Foster maintains that her doctors have “unanimously supported” her disability
claim. 41 In support, Foster cites to the findings of her treating physicians and other healthcare
professionals. Foster argues that Dr. D.C. Mohnot, her treating neurologist and headache specialist,
34

Id. at 10.

35

Id. at 11.

36

Id.

37

Id.

38

Id. at 12.

39

Id.

40

Id. at 13.

41

Id. (citing AR 408, 871, 1000–1001, 1430–1445).

6

opined on June 1, 2013, that Foster is unable to work due to intractable migraines for which he is
treating Foster with Hydrocodone, Topomax, Botox, and Notripline. 42 Additionally, Foster
contends, Phyllis Schneider, LCSW, head of Clinical Social Work for Ochsner Health System,
explained on September 26, 2014, that Foster has “disabling headaches several times weekly,” and
that “[i]t is not realistic to plan for Ms. Foster to work at a job requiring scheduling and
commitments to clients when she is unable to predict when she is well and when she is unable to
function.” 43 According to Foster, Ms. Schneider opined on January 27, 2016, that Foster should
not work as an attorney until “her migraine headaches can be controlled or eliminated.” 44 Foster
also argues that Dr. Narinder Gupta, pain management, opined that Foster is fully disabled.45
Finally, Foster argues that Dr. Shelly Savant, IME, recognized that Foster suffers from “refractory
pain sequelae” which prevents her from returning to work as a healthcare attorney and that because
a migraine is a clinical diagnosis, the lack of objective findings on the imaging studies is
unsurprising. 46 Foster asserts that Dr. Savant agreed that her history, examination, and medical
records are consistent with the diagnosis of migraine headaches as opined by Dr. Mohnot.
Third, Foster argues that other evidence, including an email from a fellow attorney
describing an episode at work and a declaration from her employer, Jack Stolier, support her claim
that her medical condition precluded her from meeting the demands of her practice as a healthcare

42

Rec. Doc. 25-1 at 13; AR 408. Dr. Mohnot noted the migraines were “disabling.” AR 871.

43

Rec. Doc. 25-1 at 13; AR 1000-1001.

44

Rec. Doc. 25-1 at 13; AR 298-299.

45

Rec. Doc. 25-1 at 13; See AR 1430-1445.

46

Rec. Doc. 25-1 at 13.

7

attorney, 47 which required “the utmost ability to concentrate” and “maintain a high level of
intellectual ability.” 48 Foster contends that her disability application also supports her claim for
benefits as it details specific job requirements including drafting and reviewing lease agreements,
researching and advising clients on government laws and regulations, representing clients in
administrative appeals, and drafting compliance plans. 49 Foster contends that all of this evidence
demonstrates that Foster is plainly precluded from performing the “intellectually rigorous job
duties” associated with her job as a healthcare attorney. 50 According to Foster, the Social Security
Administration has determined that her medical condition precludes her from performing the
duties of any occupation and that at least two of Principal’s own peer reviewing doctors agreed
that Foster would not be able to tolerate her job duties. 51
c. Principal’s denial of LTD and LWOP benefits based on a lack of objective
evidence is an abuse of discretion
Foster asserts that Principal’s denial of her LTD and LWOP claims based on an alleged
lack of objective proof of Plaintiff’s migraines constitutes an abuse of discretion. 52 According to
Foster, migraines are diagnosed clinically, so an absence of abnormalities on diagnostic testing is

47

Id. at 14 (citing AR 509, 1183)

48

Id. (citing AR 545).

49

Id.

50

Id. at 15 (citing AR 1239–1245).

51

Id. Foster does not cite to social security records within the Administrative Record and this issue appears
to be beyond the scope of the Court’s review.
52

Id.

8

consistent with a headache disorder. 53 Foster cites to a decision by a court in the Northern District
of California, Hegarty v. AT&T Umbrella Benefit Plan No. 1, in which she asserts that the court
found that the absence of neurological deficits, cognitive abnormalities, and observable objective
findings did not support the denial of benefits where a plan member had migraines. 54 Foster
contends that she is similar to the plaintiff in Hegarty but that unlike the Hegarty plaintiff, Foster
argues, her cognitive deficits have been demonstrated in neuropsychiatric testing by Dr. Chafetz. 55
Foster also cites to a decision by a court in the Western District of North Carolina in which Foster
asserts that the court held that denial of benefits to a claimant who suffered from migraine
headaches constituted an abuse of discretion. 56
d. Principal’s failure to analyze Foster’s medical condition in relation to the
actual duties of her occupation is an abuse of discretion
Foster next asserts that Principal’s failure to consider her medical condition in relation to
the actual duties of her occupation constitutes an abuse of discretion. 57 According to Foster, the
Fifth Circuit has made clear that a plaintiff must be able to perform all material duties of plaintiff’s
occupation in order to be found not disabled under an “own-occupation policy” like the policy at
issue in this case. 58 Foster asserts that an insurer abuses its discretion when it determines that a

53

Id.

54

Id. at 15–16 (citing Hegarty v. AT&T Umbrella Benefit Plan No. 1, 109 F.Supp.3d 1250, 1258 (N.D. Cal.

55

Id. at 16 (citing AR 362).

56

Id. (citing Boyd v. Liberty Life Assurance Co. of Boston, 362 F.Supp.2d 660, 669 (W.D.N.C. 2005)).

57

Id.

58

Id. (citing Ellis v. Liberty Life Assurance Co., 394 F.3d 262 (5th Cir. 2004)).

2015)).

9

claimant is capable of working without providing an analysis of the demands of claimant’s job.59
Foster argues that in each of Principal’s denial letters, Principal failed to address the material duties
of Foster’s occupation as a healthcare attorney. 60 Moreover, Foster asserts that Principal did not
ask its reviewing medical experts to comment on whether Foster would be able to perform such
duties. 61 Foster avers that Principal never mentioned the mentally taxing aspects of her job which
required complicated analytical skills and the ability to manage a caseload involving complicated
government relations, demanding clients, court deadlines, etc. 62 Foster contends that such failure
to consider Foster’s condition in light of her job duties as a healthcare attorney is an abuse of
discretion. 63
e. Principal’s select review of the evidence is an abuse of discretion
Foster next argues that Principal abused its discretion by focusing on evidence that
supported denial of Foster’s claim while ignoring other evidence that supported her entitlement to
benefits. 64 As an example, Foster asserts that Principal refused to address the testimony of her coworker and employer corroborating her symptoms. 65 According to Foster, Principal received a

59
Id. at 17 (citing Elliott v. Metropolitan Life, 473 F. 3d 618, 618 (6th Cir. 2006), Burtch v. Hartford, 314
Fed. Appx. 750 (5th Cir. 2009), Miller v. Am. Airlines, Inc., 632 F. 3d 837, 855 (3d Cir. 2011), Roig v. The Limited
Long Term Disability Program, 2000 WL 1146522, *14 (E.D. La. 2000)).
60

Id.

61

Id.

62

Id.

63

Id. (citing Rucker v. Life Ins. Co. of N. Am., 2012 WL 956507, at *9 (E.D. La. 2012); Digiamco v.
Liberty Life Assurance Co. of Boston, 2004 WL 1628588, at *6 (N.D. Cal. 2004); Burdett v. Unum Life Ins. Co. of
Am., 2008 WL 4469094, at *14 (E.D. La. 2008)).
64

Id. at 18.

65

Id.

10

total of seven peer review medical reports, only three of which could arguably support Foster’s
ability to return to work. 66 However, Foster argues, the opinions of the three doctors 67 that could
support a finding that Foster could return to work did not address Foster’s job duties as a healthcare
attorney. 68 Moreover, Foster argues, the reviewing opinions of those three doctors that there is no
clinical evidence supporting a finding of debilitating migraine headaches is inconsistent with
Foster’s medical records, as well as the diagnosis of her treating doctors and Dr. Savant after an
independent medical examination. 69 While an insurer does not have to give deference to a treating
physician, Foster recognizes, the U.S. Supreme Court has held that an abuse of discretion may
occur where an administrator emphasizes a medical report that favors a denial of benefits and deemphasizes other reports that suggest a contrary conclusion. 70 Foster contends that Principal
abused its discretion in relying on the opinions of peer review physicians who were not advised of
Foster’s job duties and deemphasizing the opinions of her treating physicians and other peer review
physicians. 71
f. Principal’s denial of Foster’s life insurance waiver of premium (“LWOP”)
claim is an abuse of discretion

66

Id.

67

Foster contends that only the opinions of Dr. Hoenig, Dr. Miller, and Dr. Chafetz arguably support the
conclusion that Foster should be able to return to full time sedentary work. Id. at 20.
68

Id.

69

Id. at 20-21.

70

Id. at 21 (citing Metlife v. Glenn, 554 U.S. 105, 118 (2008)). Foster contends that Principal relied on the
peer reviews by Drs. Miller, Hoenig and Chafetz and failed to address the opinions of Drs. Condon and Kondapaneri
because those opinions support Foster’s inability to return to work. Id.
71

Id.

11

Next, Foster argues that Principal’s denial of Foster’s life insurance waiver of premium
claim also constitutes an abuse of discretion. 72 Foster contends that Principal relied on the opinion
of Dr. Pranathi Kondapaneri who determined that Foster would be able to work on a part-time
basis, while failing to address the opinion of another peer review physician, Dr. Ethel F. Condon,
who found that Foster was totally disabled and unable to work at all. 73 Foster avers that Dr.
Condon’s opinion mirrors that of Foster’s treating physicians and therapist, Dr. Mohnot, Dr.
Gupta, and Ms. Shnaider. 74 Foster contends that in denying her LWOP appeal, Principal abused
its discretion by focusing only on the opinions supporting denial of the claim and ignoring the
opinions in favor of her claim. 75
Foster also challenges Principal’s interpretation of the group life insurance policy’s
provisions. Foster argues that Principal denied LWOP benefits on May 1, 2014, concluding that
Foster ceased to be a full-time employee on April 1, 2013, and therefore, was no longer a
“member” entitled to LWOP coverage. 76 Foster argues that Principal does not cite to any policy
provisions that would support the proposition that Foster lost coverage when she was forced to
decrease her hours due to her worsening medical condition. 77 Foster contends that her attempt to
decrease her hours in order to continue working before taking disability leave “should be

72

Id. at 22.

73

Id. (citing AR 647–649).

74

Id.

75

Id.

76

Id.

77

Id.

12

commended” but that Principal is unfairly penalizing her for trying to work. 78 According to Foster,
she was a full-time employee before her health began to deteriorate, she qualified for the LWOP
benefit under the Policy, and Principal should not be able to benefit from Foster’s attempt to
continue working. 79 Foster argues that the unsuccessful three month trial period of part-time work
further evidences that she is totally disabled and Principal’s failure to discuss this in its letters
denying the LWOP claim demonstrates that Principal was primarily focused on denying benefits. 80
2.

Principal’s Arguments in Opposition to Foster’s Motion
a. Under the deferential standard of review, Principal’s determination can
only be reversed if it is not supported by substantial evidence in the
administrative record

Principal notes that Foster concedes that the Group Policy grants Principal discretionary
authority to determine eligibility for benefits and to construe the terms of the plan. 81 Thus,
Principal contends, its denial of benefits can only be reversed if the denial was not supported by
substantial evidence in the administrative record. 82 Substantial evidence is such evidence that a
reasonable mind might accept as sufficient to support a conclusion. 83 A plan administrator’s
determination is an abuse of discretion only if there is no rational connection between the known

78

Id. at 23.

79

Id. at 23–24.

80

Id. at 24.

81

Rec. Doc. 30 at 11.

82

Id.

83

Id.

13

facts and the decision. 84 According to Principal, the Fifth Circuit has noted that the review of the
administrator’s decision need not be complex or technical and need only assure that the plan
administrator’s decision falls somewhere on the continuum of reasonablenesss. 85 Moreover, the
job of weighing conflicting medical opinions is not a job for the courts; rather, that job has been
given to the plan administrators of ERISA plans. 86
b. No evidence exists of a conflict of interest
Principal argues that whether a conflict of interest exists in the administration of the claim
is just one factor in determining whether the plan administrator abused its discretion in denying
benefits. 87 Principal contends that Foster cites to no evidence for the proposition that Principal’s
determination as to Foster’s benefits was tainted by a conflict of interest. 88 Principal argues that it
provided Foster with a thorough and unbiased review of her claims, including a request for an
independent neuropsychological evaluation. 89 Principal avers that it attempted on several
occasions to actively further dialogue between Dr. Mohnot and the independent specialist involved
in claim review. 90 Principal further states that it is within its discretion to depart from a treating
physician’s opinion and adopt the conclusions of a medical consultant as long as the medical

84

Id.

85

Id. at 12 (citing Holland v. Int’l Paper Co. Retirement Plan, 576 F.3d 240, 246 (5th Cir. 2009) (quoting
Corry v. Liberty Life Assur. Co. of Boston, 499 F.3d 389, 398 (5th Cir. 2007))).
86

Id. (citing Corry, 499 F.3d at 401).

87

Id.

88

Id. at 13.

89

Id.

90

Id.

14

consultant provided non-arbitrary explanations based on the evidence, and the plan itself explained
its decision. 91
c. Foster cannot demonstrate an inability to perform her sedentary level
occupation
According to Principal, Foster cannot meet her burden to demonstrate that she is unable to
perform the material duties of her own occupation, as her claim rests entirely on self-reported
headaches. 92 Principal contends that even if Foster cannot prove her headaches in any other way
than through her own reports, she is still required to present objective proof of the severity of her
headaches that prevent her from performing the material duties of her occupation as a healthcare
attorney. 93 According to Principal, none of Foster’s treating physicians or Foster’s social worker,
Ms. Shnaider, placed “actual restrictions” on Foster, and her neuropsychological examination
confirmed that Foster had the ability to sustain high cognitive functioning despite experiencing a
headache. 94 Principal contends that, contrary to Foster’s assertions, it considered Foster’s medical
condition in relation to the actual duties of her occupation in testing her cognitive functioning
despite experiencing a headache. 95
Moreover, Principal argues, although it is Foster’s burden to demonstrate that she cannot
perform the material and substantial duties of her own occupation, she does not explain in her

91

Id.

92

Id. at 14.

93

Id. at 14–15 (citing Boardman v. Prudential Ins. Co. of Am., 337 F.3d 9, 16–17 (1st Cir. 2003)).

94

Id. at 16 (citing AR 350–374).

95
Id. Principal asserts that Foster does not claim that she cannot sit at a desk as the result of her headaches
shown by the fact that she wrote two books after leaving her employment and going on disability. Id.

15

motion what duties of her occupation as a healthcare attorney she is unable to perform as a result
of her condition. 96 Principal contends that several independent medical specialists in the areas of
psychology, psychiatry and neurology, and neuropsychology confirmed the absence of functional
impairment as a result of Foster’s condition. 97 Contrary to Foster’s assertion, Principal maintains
that the independent consultants were provided with all documents in Foster’s claim file, including
her claim submissions and supplemental forms describing Foster’s job duties as a healthcare
attorney. 98 According to Principal, Foster’s criticism of the independent consultants’ review is
unavailing, because independent consultants do not render opinions as to an individual’s ability to
perform a certain occupation but rather evaluate an individual’s records to describe restrictions
and limitations.99 Because there is a rational connection between the known facts and medical
opinions in the administrative record and Principal’s determination that Foster is not entitled to
any additional benefits, Principal argues, Principal’s decision falls within “the continuum of
reasonableness” and should be upheld. 100
d. Foster’s headaches are connected to psychological difficulties
Additionally, Principal argues, the denial of benefits should be upheld as reasonable,
because Foster’s headaches appear to be connected to Foster’s psychological difficulties.101

96

Id.

97

Id.

98

Id. at 17 (citing AR 4486, 5222).

99

Id.

100

Id. at 18.

101

Id. (citing AR 2185, 2177, 1903–1904).

16

Principal asserts that Foster’s motion is completely void of any discussion of the detailed
psychotherapy notes which provide an undeniable nexus between Foster’s psychological
difficulties and her headaches. 102 Principal asserts that Ms. Shnaider, Foster’s treating social
worker, repeatedly describes Foster’s ability to defer her headaches until after an important event
or talk them down. 103 Principal concludes that Foster’s headaches are a symptom of an emotional
and/or mental disorder rather than physical in nature based on Ms. Shnaider’s classification of
Foster’s headaches as psychogenic and somatic. 104 According to Principal, Foster’s claim file does
not contain any objective evidence that such “emotional and/or mental disorder” had become
disabling. 105
e. If Foster’s symptoms are severe enough to prevent her from performing
the material duties of a healthcare attorney, then Foster’s claim is subject
to the mental health condition limitation
Finally, even if the Court were to find that Foster had met her burden of demonstrating that
her symptoms are severe enough to prevent her from performing the material duties of her
occupation as a healthcare attorney, Principal argues, Foster’s claim would be subject to the Group
Policy’s mental health condition limitation provision, 106 which limits benefits available for a
mental health condition, 107 such as somatic symptom disorder, to a 24-month period.

102

Id.

103

Id. (citing AR 5155, 5154, 5152, 5148, 5182, 3752, 3759, 366).

104

Id.

105

Id.

106

Id. at 19 (citing AR 48).

107

Id. (citing AR 13). The Group Policy provides that a “Mental Health Condition” includes a condition
categorized in the current edition of the American Psychiatric Associations Diagnostic and Statistical Manual of
Mental Disorders or its successor. AR 13.

17

f. Principal’s denial of Foster’s claim for life coverage during disability
benefit was reasonable
Principal next argues that its determination to deny Foster’s claim for LCDD benefits is
also reasonable. 108 According to Principal, even the ability to work part time in any occupation
disqualifies a claimant from the LCDD benefit, and the evidence in the record supports Principal’s
determination to deny Foster such benefit. 109 Moreover, Principal contends that the Group Policy
clearly states that only employees working at least 30 hours per week are entitled to life insurance
coverage and, as a result, LCDD coverage. 110 Thus, under the plain terms of the Group Policy,
Principal argues that Foster lost life insurance coverage when she reduced her hours below full
time or 30 hours per week. 111 Principal maintains that its denial of LCDD benefits was squarely
aligned with the plain language of the Group Policy and was not arbitrary and capricious. 112
g. Foster’s request for attorney’s fees, costs, and interest is premature
Finally, Principal contends that Foster’s request for attorney’s fees, costs, and interest is
premature. 113 Moreover, Principal asserts, these claims are baseless as no evidence exists that
Principal was “culpable” or its position entirely without merit in light of the evidence in the

108

Id.

109

Id. (citing AR 114).

110

Id. at 20 (citing AR 112–113).

111

Id.

112

Id.

113

Id. at 20–21.

18

administrative record. 114
Thus, Principal contends that Foster’s motion for judgment should be denied and
Principal’s cross motion for judgment should be granted. 115
3.

Foster’s Arguments in Reply to Principal’s Opposition
a. Foster satisfied her burden of proving her disability

In reply, Foster maintains that she has satisfied her burden of proving that her headache
disorder prevented her from performing her duties as a healthcare attorney. 116 Foster asserts that
she provided Principal with medical records, opinions from at least three of her doctors, a headache
diary, a sworn statement from her employer, her attendant at an IME, and opinions from two of
Principal’s peer reviewing doctors, who agreed that Foster is unable to perform her job duties. 117
Moreover, Foster argues that her psychotherapist’s medical records further substantiate that she
suffers from intractable headaches. 118 Foster contends that she tried hypnotherapy with Phyllis
Shnaider, LCSW, after other treatments failed including acupuncture, Botox, massage therapy,
injections, medication, tens unit, dilation of sinus cavity, biofeedback, and dietary changes. 119
Foster contends that while her records discuss certain stressors that might cause headaches,
including self-esteem issues, relationship issues, over-productivity, etc., nearly every single chart

114

Id. at 21.

115

Id.

116

Rec. Doc. 35 at 1.

117

Id.

118

Id. at 1–2.

119

Id. at 2.

19

references persistent headaches. 120
Foster contests Principal’s statement that her treating physicians and therapist have not
placed any restrictions or limitations on Foster and cites to evidence in the record, which Foster
represents establishes that doctors have placed restrictions on her. 121 According to Foster, Principal
never asserted that it denied Foster’s claim due to a lack of specific restrictions from her treating
doctors. 122 Foster argues that if Principal had done so, she would have asked her doctors to provide
more specificity as to restrictions placed on her if necessary. 123 Foster contends that Principal’s
argument that Foster’s doctors did not outline specific restrictions is another example of
impermissible post hoc rationale for the denial of benefits. 124
Foster further argues that her doctors, as well as Principal’s doctors, discuss specific
aspects of her job that she cannot perform, including workplace stress, prolonged computer use,
avoidance of prolonged sitting and standing, and avoidance of significant light and sound
exposure. 125 Foster also points to a statement by her employer that her headaches “impaired and
prohibited her from the practice of law.” 126 Foster further asserts that she wrote to Principal
explaining that her headaches impact her on a daily basis, that she spends three to four days per

120

Id.

121

Id. at 2–4 (citing AR 871, 1255–1257, 1763–1764, 3459, 1181, 1476, 1433, 2792, 298–299, 647–649,
860–861, 847).
122

Id. at 4.

123

Id.

124

Id. (citing Univ. Hosp. of Cleveland v. Emerson Elec. Co., 202 F.3d 839 (6th Cir. 2000)).

125

Id. at 4–5.

126

Id. at 5 (citing AR 1183).

20

week in bed because of headache pain, and that on certain days she cannot drive. 127 Foster argues
that the unpredictability of her severe headaches is another factor that prevented her from
continuing to perform her job duties as a healthcare attorney on a consistent basis. 128 According
to Foster, she is highly motivated, which explains her desire to write on her own time when she is
well enough to do so. 129 Foster contests Principal’s argument that there is no objective clinical
evidence of her headaches, as her doctors and three peer reviewing doctors state that Foster’s
detailed headache diary constitutes such evidence. 130
b. Principal did not address her actual job requirements
Next, Foster argues that Principal failed to address Foster’s job requirements. 131 Foster
contends that Dr. Chafetz, who performed the neuropsychiatric examination of Foster, stated that
he could not opine on Foster’s legal reasoning and that Foster could perform complex tasks if they
did not involve “much oversight and responsibility.” 132 According to Foster, she was a partnerlevel attorney at the time she stopped working, and her job “clearly involved responsibility and
oversight.” 133 Foster avers that she submitted sufficient evidence that her job required a high level
of executive function and that she scored in the 45% during neuropsychological testing of her

127

Id. (citing AR 3824–3825).

128

Id.

129

Id.

130

Id. at 6 (citing AR 1763, 847, 1181, 1679, 648).

131

Id.

132

Id. (citing AR 367).

133

Id.

21

executive functioning skills, which Foster asserts is lower than her estimated “pre-morbid
capacity.” 134 Foster argues that Principal never asked any of its peer reviewing doctors if they
believed that Foster could perform her previous job duties as a healthcare attorney. 135
Foster also contests Principal’s assertion that the neuropsychiatric testing revealed no
deficits. 136 According to Foster, when compared to her pre-morbid intellectual capacity, it is clear
that her chronic headaches disorder has caused deficits. 137 In particular, Foster avers that her full
scale IQ score was 16 points lower than her pre-morbid estimated IQ. 138 Foster further avers that
her scores for learning and memory were in the average range, which Foster asserts is consistent
with her complaints of memory loss. 139 By contrast, Foster asserts that she scored in the 96–98th
percentile on the LSAT. 140
Regardless, Foster argues that the usefulness of neuropsychological testing is limited in the
context of evaluating a disability claim based on migraine headaches. 141 Moreover, Foster asserts
that the opinion of the doctor who performed the neuropsychological testing contains

134

Id. at 6–7 (citing AR 545, 1160–1164, 1239–1245, 362).

135

Id. at 7 (citing Schwarzwaelder v. Merrill Lynch & Co., 606 F.Supp.2d 546, 564 (W.D. Pa. 2009);
Moore v. Life Ins. Co. of N. Am., 2011 WL 10453967, at *5 (E.D. La. 2011)).
136

Id.

137

Id.

138

Id. (citing AR 360).

139

Id. (citing AR 364).

140

Id. (citing AR 358).

141

Id. at 8 (citing Hegarty, 109 F.Supp.3d 1250).

22

misstatements. 142 In particular, Foster contends that his opinion that her doctors had not identified
exact triggers for the headaches is incorrect, as her doctors identified stress, hunger, poor sleep,
oversleep, sound, light, and Foster’s menstrual cycle as triggers. 143 Because stress is an inherent
part of the practice of law, Foster argues, it was not sufficient for Principal to simply categorize
her job as “sedentary” and ask its reviewing doctors whether Foster could perform a sedentary
occupation. 144 Foster asserts that the failure of Principal, Dr. Chafetz, and all other peer reviewing
physicians to address her medical condition in relation to her job duties demonstrates that there is
no evidence supporting the termination of benefits. 145
Foster also asserts that the opinions of the psychiatrists who reviewed Foster’s medical
records at Principal’s requests are “suspicious” 146 in that they were unable to provide an opinion
on the debilitating nature of Foster’s headache disorder due to lack of expertise in that area. 147 In
contrast, Foster argues, Dr. Chafetz, who is not qualified to render an opinion on headaches
disorder, seems to suggest that Foster does not suffer from headaches. 148 Foster then argues that
Chafetz’s opinion is of little value because Principal only asked Dr. Chafetz to focus on the
psychological and neuropsychological aspects of Foster’s condition despite the fact that Foster has

142

Id.

143

Id. (citing AR 299, 1255, 3459, 1179).

144

Id. at 9

145

Id. at 8-9.

146

Id. at 9.

147

Id.

148

Id.

23

never claimed a disability due to mental illness. 149
Foster next notes that Principal relies on the opinion of Dr. Hoenig, neurologist, who stated
that there was no objective evidence of a headache disorder because Foster’s diagnostic imaging
was normal. 150 Foster contends that Dr. Mohnot, Dr. Savant, Dr. Condon, and Dr. Kondapaneni
explained that this is “entirely consistent” with a headache disorder. 151 Foster contends that her
headache diary provides objective clinical evidence of her headache disorder and that these four
doctors and Ms. Shnaider agree. 152 Moreover, Foster asserts that her prescription medications
provide objective evidence of headache disorder. 153
c. The mental illness limitation does not apply nor is the issue properly before
the Court
Next, Foster argues that the mental illness limitation does not apply in this case and that
this issue is not properly before the Court. 154 Foster asserts that Principal never raised this issue as
a reason for the denial of benefits during the administrative process; thus, the administrative record
does not contain Plaintiff’s appeal of such a denial. 155 Even if the Court were to rule on the issue,
Foster argues, the mental illness limitation does not apply, as each of her treating doctors agree

149

Id. at 10.

150

Id.

151

Id.

152

Id.

153

Id.

154

Id.

155

Id.

24

that she suffers from a headache disorder that is not psychosomatic or opioid induced. 156 Foster
contends that only one reviewing doctor, Dr. Chafetz, appears to suggest that Foster does not have
a headache disorder and that this single opinion among “the opinions of ten other doctors, vast
medical records, headache journals, letters from peers and employers” does not constitute
substantial evidence supporting the conclusion that Foster does not suffer from a headache
disorder. 157 Moreover, Foster avers, even assuming that anxiety and depression contribute to the
disabling condition, because she is disabled due to the migraines independent of any mental health
issues, then she is disabled according to the Group Policy’s terms, and the limitation in the Group
Policy would not apply. 158 Foster avers that she has never claimed to be disabled due to a mental
illness. 159
d. Principal failed to address all relevant opinions and Foster’s job duties
Foster contends that Principal did not respond to her argument that Principal failed to
address all relevant medical reviews, her job duties, and her employer’s corroborating
testimony, 160 all alleged to be critical pieces of evidence in support of her ongoing entitlement to
disability benefits. 161 According to Foster, Principal’s failure to address this information

156

Id. at 11.

157

Id.

158

Id. (citing George v. Reliance Standard Life Ins. Co., 776 F.3d 349, 355–56 (5th Cir. 2015)).

159

Id. at 11–12.

160

Id. at 12.

161

Id.

25

constitutes an abuse of discretion. 162 Foster further argues that her condition remained chronic
throughout the peer review process; thus, all peer review opinions remain relevant and Principal’s
reliance on the most recent peer review opinions is unjustified. 163
e. Principal’s conflict of interest must be considered
Foster further argues that the Supreme Court has held that an insurance company’s conflict
of interest may be considered in determining whether the insurer has abused its discretion. 164
According to Foster, Principal’s refusal to consider Dr. Condon’s opinion in favor of Foster being
considered disabled indicates that its priority was to deny the claim. 165 Moreover, Foster avers that
the peer reviews of Dr. Miller, Dr. Chafetz, and Dr. Hoenig that Principal discussed in its denial
letters were “tainted by bias,” as Foster argues that their “novel theories” did not comport with
Foster’s medical history and that they did not acknowledge that migraines are a clinical
diagnosis. 166
f. Principal misrepresented facts
Foster argues that Principal fails to mention in its briefing its first peer review in which
Dr. Condon “unequivocally supports Plaintiff’s entitlement to LTD and LWOP benefits.” 167 Foster
further argues the following in response to facts that she avers were either “mispresented or

162

Id.

163

Id.

164

Id. at 12–13 (citing Glenn, 554 U.S. at 117).

165

Id. at 13.

166

Id.

167

Id. at 14.

26

presented out of context:” (1) Foster’s treating physician, Dr. Mohnot, offered to make himself
available after hours to discuss Foster’s treatment with the peer reviewing doctor and responded
to questions in writing, and Principal refused to pay Foster’s doctor for his time; 168 (2) Foster
writes when she feels up to it but cannot write on days when she suffers a severe headache and
cannot keep a regular work schedule; 169 (3) Principal is unreasonable in using her attempts at
productivity against her as writing in her spare time is far different from the stress and deadlines
of practicing law as a healthcare attorney; (4) Foster has not written two books since taking
disability leave, but rather, one short story and an unpublished manuscript; 170 (5) even if her
writing could be construed as employment, the policy provides for continuing disability benefits
if Foster cannot perform the material duties of a healthcare attorney and is unable to earn 80% of
her pre-disability earnings; 171 (6) it appears from Foster’s therapist’s notes that Foster thought that
her headaches were psychogenic at one point, but other medical records and opinions indicate that
her headaches have other causes; 172 (5) the possibility that Foster’s headaches were the result of
an effort to gain closeness with Foster’s husband has been rejected by Foster’s therapist, Ms.
Shnaider. 173
g. Principal wrongly denied Foster’s LWOP claim

168

Id. (citing AR 3824–3825, 942–943, 2170).

169

Id. (citing AR 319, 1179).

170

Id. at 15 (citing AR 3746).

171

Id. (citing AR 11).

172

Id. (citing AR 704).

173

Id. (citing AR 2791–2792, 289–299).

27

Next, Foster argues that Principal wrongly denied her LWOP claim and ignored Principal’s
peer reviewing doctor’s opinion that Plaintiff is unable to work on either a full or part-time basis.174
Although Foster admits that the definition of disability for determination of a LWOP claim differs
from the definition of disability applicable to a LTD claim (inability to perform any occupation v.
inability to perform one’s own occupation), Foster argues that Principal has not identified any
alternative occupation or performed any vocational assessment to determine whether Foster is able
to perform another occupation. 175 Moreover, Foster contends, Principal’s denial letters provide no
reasonable explanation as to why Principal disregarded its own peer reviewing physician’s opinion
that Foster is unable to work either part-time or full-time. 176 According to Foster, it would be
difficult to identify an employer that would be able to accommodate Foster’s unexpected absences
and late arrivals due to incapacitating headaches. 177 Foster further argues that she should not be
penalized with termination of the LWOP benefits for her attempt to continue working reduced
hours. 178 Foster argues that Principal abused its discretion by not considering her LWOP claim
retroactive to the date she reduced her hours on March 8, 2013. 179
h. Attorney’s fees and costs
Finally, Foster explains that she only intends to move for attorney’s fees and costs after the

174

Id. at 16 (citing AR 647–649).

175

Id.

176

Id. (citing AR 647 – 649).

177

Id. at 17.

178

Id.

179

Id.

28

Court has ruled on the merits of the case. 180 Foster notes that the standard for an award of attorney’s
fees is not strict and requires only “some degree of success on the merits.” 181
B.

Principal’s Motion for Judgment on the Administrative Record
1.

Principal’s Arguments in Support of the Motion

In its cross motion for judgment on the administrative record, Principal seeks an order
granting judgment in its favor and awarding Principal reasonable attorney’s fees and costs. 182
Principal argues that its termination of Foster’s disability benefits was reasonable because Foster
did not meet her burden to demonstrate (1) that she is unable to perform the material and substantial
duties of her own occupation as a result of her medical condition, and (2) that Principal’s
determination was arbitrary and capricious. 183
a. Foster’s medical records do not support total disability
According to Principal, the mere diagnosis of a medical condition is insufficient to
establish eligibility for benefits. 184 Rather, Principal avers that Foster bears the burden of proving
that the symptoms of the diagnosed medical condition prevented Foster from performing the
material and substantial duties of her occupation as a healthcare attorney. 185 However, Principal
contends, Foster has failed to objectively establish that the symptoms of her diagnosed condition

180

Id.

181

Id. (citing Hardt v. Reliance Standard, 560 U.S. 242, 256 (2010)).

182

Rec. Doc. 26 at 1.

183

Rec. Doc. 26-1 at 18–19.

184

Id. at 19.

185

Id. at 19-20.

29

prevent her from performing the duties of her occupation, as Plaintiff has not pointed to “a single
piece of objective clinical evidence in support of her claim.” 186 Principal asserts that Foster’s
medical records do not contain any abnormal test results and none of her treating physicians or her
social worker has placed actual restrictions on Foster. 187 Moreover, Principal contends, Foster had
continuous normal neurological and physical examinations, normal EEGs in September 2011 and
November 2011, normal brain MRI in November 2012, and her neuropsychological examination
revealed full functionality from a cognitive perspective. 188 Specifically, Principal argues that
Foster’s ability to complete a nine hour neuropsychological examination with a headache of 6/10
demonstrates that Foster has the ability to sustain high cognitive functioning despite experiencing
a headache and long hours. 189
Principal further argues that Foster’s therapist identified her headaches as psychogenic and
somatic, thus making them symptoms of an emotional and/or mental disorder, rather than physical
in nature. 190 However, Principal contends, Foster has pointed to no evidence that the mental or
emotional disorder is disabling in its severity. Principal contends that Foster has control over her
headaches, able to defer them and reduce their strength through her mind. 191 Principal argues that
the psychotherapy notes identify the headaches as a means for Foster to put on the “brakes” in her

186

Id. at 21.

187

Id. (citing AR 350 - 374).

188

Id. (citing AR 5345, 5340, 5332, 5327, 5311, 5307, 5296, 5455, 5401, 5396, 350 - 374).

189

Id. (citing AR 350-374).

190

Id. at 22.

191

Id. (citing AR 5155, 5154, 5152, 5148, 5182, 3752, 3759, 366).

30

life whenever she feels overwhelmed, as a method for obtaining closeness to her husband, and as
a way for Foster to stay at home with her children after being shamed by her mother for working
full-time rather than parenting. 192 According to Principal, Foster’s headaches became chronic
when her mother discontinued her willingness to assist with the care of Foster’s children.193
Because Foster did not satisfy the proof of loss requirements set out in the Group Policy and did
not meet her burden of proof, Principal argues, its determination was not arbitrary and
capricious. 194
b. Principal could reasonably rely on the opinions of the independent
physicians involved in the assessment of plaintiff’s medical records
Principal next argues that as a claims administrator evaluating conflicting medical
evidence, it was not required to give deference to Foster’s treating physicians when determining
eligibility for benefits. 195 Principal asserts that it is settled law in the Fifth Circuit that a treating
physician’s opinion receives no special weight and can be rejected on the basis of reliable evidence
with no discrete burden of explanation. 196 Principal asserts that four doctors, Dr. Hoenig, Dr.
Miller, Dr. Harrop, and Dr. Register, all found that Foster did not experience neurological or
psychological impairment preventing her from working full time. 197 Moreover, Principal avers, its
decision to obtain independent medical evaluations is further evidence of a thorough investigation

192

Id. (citing AR 3727, 5180, 5157).

193

Id. (citing AR 5201).

194

Id. at 21.

195

Id. at 22 (citing Black & Decker Disability Plan v. Nord., 538 U.S. 822, 832 (2003)).

196

Id.

197

Id. at 24 (citing AR 2186, 2177, 1942, 1904, 1854).

31

of Foster’s claims. 198 Principal maintains that Dr. Chafetz’s thorough opinion casts doubt on
Foster’s self-reports of physical symptoms and concludes that Foster’s complaints were
psychogenic and somatic in nature. 199 According to Principal, Dr. Chafetz did not believe that
Foster experienced symptoms that impaired her functionality to such a degree as to prevent her
from performing the material and substantial duties of her own occupation. 200 Given the “myriad
of supportive medical opinions” in the record, Principal argues that its decision was not an abuse
of discretion. 201
Additionally, shortly after Principal began paying LTD benefits, Principal obtained
surveillance of Foster. 202 Principal maintains that the surveillance showed Foster shopping, driving
children to and from school, and visiting with friends. 203 Importantly, a surveillance report
identified a company, Confetti Kids, Inc., that was run out of Foster’s home and lists Foster as the
company’s registered agent and principal member. 204
Principal also cites to specific medical records to support its denial of Foster’s claims.
Principal notes that beginning in March 2012, Foster attended psychotherapy sessions with Phyllis
Shnaider, LCSW, for depression and anxiety and that the intake note described Foster as a stay at

198

Id.

199

Id.

200

Id. (citing AR 367-369).

201

Id.

202

Id. at 7 (citing AR 4670, 4668, 4625).

203

Id.

204

Id. (citing AR 4627, 4501-4502, 4494-4495, 4496-4500).

32

home mom. 205 Foster was noted to have difficulty in social and occupational settings and was
diagnosed with depressive disorder NOS and anxiety disorder. 206 Moreover, Principal notes, Dr.
Mohnot diagnosed Foster with menstrual migraines, geniconvulsive epilepsy, transient alteration
of consciousness and intractual + refractory migraines since July 2008. 207 Dr. Mohnot did not
identify any objective findings and did not identify any restrictions or limitations applicable to
Foster nor did he make any recommendation of disability. 208
Principal also notes that on January 22, 2014, Dr. Pranathi Kondapaneni, neurologist and
sleep medicine specialist, opined that “[h]eadaches are often made worse by underlying psychiatric
disease such as anxiety and depression” 209 as well as that “[d]epression and anxiety significantly
worsen headaches.” 210 He restricted Foster to part-time work at that time and recommended reevaluation in one year to see if the restrictions could be lifted. 211 Principal denied Foster’s claim
for LWOP benefits on May 1, 2014 based on this finding. 212
Principal further contends that in May 2014 and September 2014, Dr. Mohnot noted that
Foster could not function with bad headaches, but Dr. Mohnot did not place any restrictions or

205

Id.; AR 5201-5205.

206

Rec. Doc. 26-1 at 6; AR 5196, 5199, 5184, 5179, 5176,5173, 5167, 5114.

207

Rec. Doc. 26-1 at 5; AR 5645.

208

Id.

209

AR 4111.

210

AR 4114.

211

Rec. Doc. 26-1 at 8.

212

Id.

33

limitations on Foster. 213 Dr. Mohnot’s medical records show improvement of headaches with
injections and herbal medications. 214 In May 2014, Ms. Shnaider opined that Foster was fighting
taking her medications and a possible secondary gain motivation for her headaches of achieving
closeness to her husband. 215 Importantly, Principal notes that in July 2014, Ms. Shnaider
documented Foster’s ability to defer headaches until after important events and that Foster was
able to resolve her pain through breathing exercises but that the pain returned when Foster became
anxious.216
In denying Foster’s claims, Principal also relied on the opinions of independent clinical
psychologist, Sydney Kroll Register, Psy.D. who opined on November 26, 2014, that Foster does
not have any “significant functional impairment from a psychological condition.” 217 Principal
further notes that independent neurologist, Dr. David Hoenig, opined in November 2014 that
Foster’s neurological exams and workup, such as EEG and MRI, were consistently normal, and
Dr. Hoenig found no objective evidence of functional impairment. 218 Importantly, Principal
argues, Dr. Hoenig opined that neurologically, there was nothing to indicate that Foster would be

213

Id. at 9; AR 4006.

214

Rec. Doc. 26-1 at 9; AR 3996-3997, 3854.

215

Rec. Doc. 26-1 at 9; AR 3727.

216

Rec. Doc. 26-1 at 9; AR 3752, 3749.

217

Rec. Doc. 26-1 at 10; AR 2186.

218

Rec. Doc. 26-1 at 10; AR 2175.

34

unable to perform sedentary work activities on a full-time basis. 219 Considering this evidence,
Principal denied Foster’s LTD claim as of December 9, 2014. 220
c. Foster’s claim is subject to the mental health condition limitation
Finally, Principal argues that if the Court concludes that Foster has met her burden of
proving that her symptoms were severe enough to prevent her from performing her own occupation
– which Principal denies – then Foster’s claim is subject to the mental health condition limitation
in the Group Policy. 221 According to Principal, the mental health condition limits available benefits
for any condition categorized in the American Psychiatric Association Diagnostic and Statistical
Manual of Mental Disorders, such as somatic symptom disorder, to a period of 24 months. 222
2.

Foster’s Arguments in Opposition to Principal’s Motion
a. Foster’s headaches are not psychogenic or psychosomatic

In opposition, Foster argues that her headaches are not psychogenic or psychosomatic. 223
According to Foster, the only evidence supporting this theory is found in the opinions of two
doctors, Dr. Chafetz and Dr. Miller, both of whom Foster asserts “have a significant litigation
history.” 224 Foster argues that while the doctors opine that her symptoms are psychosomatic and/or
opioid induced, neither doctor attempted to reconcile such theories with the fact that Foster has

219

Rec. Doc. 26-1 at 10; AR 2177.

220

AR 2151.

221

Rec. Doc. 26-1 at 10 (citing AR 48).

222

Id. at 24–25.

223

Rec. Doc. 29 at 1.

224

Id.

35

suffered from headaches since childhood, before she was taking opioids to manage her pain. 225
Foster contends that the Court is not required to rely on the opinions of Principal’s reviewing
doctors without considering whether the reasoning and basis of those opinions is sufficient to
overcome a contrary opinion from a treating physician. 226 Moreover, Foster asserts that Principal
is not free to accept its reviewing physician’s report without considering whether the conclusions
are supported by the underlying evidence. 227 According to Foster, none of the other peer reviewing
doctors hired by Principal believed that her headaches were psychosomatic. 228 Foster argues that
Principal must analyze all of the pertinent evidence in its denial letters but that Principal ignored
those opinions that did not support denial of Foster’s claims. 229
Foster asserts that the opinions of Dr. Chafetz and Dr. Miller are inconsistent with the other
reviewing physicians hired by Principal. 230 Foster points to the following opinions that Foster
contends support her contentions: (1) Dr. Register stated that the record is “suggestive of pain
disorder with no significant mood impairment or other psychological condition;” 231 (2) Dr.
Hoenig’s diagnosis provides “headache… there is no documentation that would lead to the

225

Id. at 1–2.

226

Id. at 2 (citing Kalish v. Liberty Mut., 419 F.3d 501, 508 (6th Cir. 2005); Roig v. The Limited LTD
Prog., 275 F.3d 501, 508 (5th Cir. 2001)).
227

Id. (citing Garrett v. Hartford, 2007 U.S. Dist. LEXIS 82919 (E.D. Ark. 2007)).

228

Id. at 2–3.

229

Id. at 3.

230

Id. at 2.

231

Id. (citing AR 2185).

36

conclusion that Ms. Foster may be magnifying symptoms or having issues with secondary gain;”232
(3) Dr. Harrop diagnosed “cervicogenic headaches complicated by cervical spondylosis…resulting
in chronic daily headaches;” 233 (4) Dr. Condon opined that Foster is unable to work on a full-time
basis and likely unable to work on a part-time basis due to debilitating intractable migraine
headaches; 234 (5) Dr. Kondapaneni found objective clinical evidence of daily migraine headaches,
history of seizure disorder and functional impairment and opined that Foster must avoid prolonged
exposure to lights (i.e. computers) and workplace stress. 235
b. No justification exists for Principal’s termination of benefits before the 24
month mental health limitation
As an initial matter, Foster contends that the mental health limitation is not properly before
the Court, as Principal did not deny Foster’s benefits due to the 24-month limitation. 236 Until Foster
is given a chance to respond to such a denial during the administrative process, Foster argues, the
issue will not be ripe for review. 237 Nonetheless, Foster argues that even if her headaches are
psychosomatic or result from opioid use, which she denies, there would be no justification for
termination of benefits prior to the 24-month mental health limitation outlined in the Policy. 238
c. Dr. Chafetz’s opinion is goal oriented, internally inconsistent, and
misrepresents certain facts found in Foster’s medical records
232

Id. at 3 (citing AR 2176, 2175).

233

Id. (citing AR 1941).

234

Id. (citing AR 647-649).

235

Id. (citing AR 847, 861).

236

Id. at 4.

237

Id. (citing Moore v. Life Ins. Co. of N. Am., 2011 WL 10453967 (E.D. La. 2011)).

238

Id. at 3, 4.

37

Next, Foster contends that the opinion of Principal’s peer reviewing doctor, Dr. Michael
Chafetz, is “goal-oriented, internally inconsistent, and misrepresents certain facts found in her
medical records.” 239 In particular, Foster asserts that Dr. Chafetz did not diagnose Foster with a
headache disorder, which she asserts is inconsistent with the opinions of all doctors who have
reviewed her records or treated her. 240 Foster further asserts that Dr. Chafetz tested for
“malingering” and that the results support that Foster is not motivated by secondary gain.241
Moreover, Foster represents that she scored below her pre-morbid level of functioning on
psychological testing and that Dr. Chafetz noted that he could not opine on Foster’s legal reasoning
ability. 242 Foster contends that Principal and Dr. Chafetz mischaracterize Foster’s statements to
her therapist as indicating that Foster could control her headaches. 243
Moreover, Foster contends that Dr. Chafetz’s opinion is internally inconsistent, as testing
did not demonstrate evidence of somatic disorder. 244 Foster finds Dr. Chafetz’s opinion to be
“suspicious” in that Dr. Chafetz did not diagnose headache disorder despite the clinical diagnosis
shown in her medical records. 245
Finally, Foster argues that she was a high-achieving healthcare lawyer with many accolades

239

Id.

240

Id. at 4–5.

241

Id. at 5 (citing AR 360).

242

Id. (citing AR 367).

243

Id. at 6.

244

Id. at 7 (citing AR 360).

245

Id. at 6-7.

38

prior to the onset of debilitating headaches that increased in severity in 2012. 246 Foster contends
that her psychotherapist’s notes indicating Foster’s ability to put on the “brakes” were simply
documenting a form of treatment in which Foster would relax before the onset of a headache. 247
This does not mean, Foster contends, that she is able to completely control her headaches as
Principal seems to suggest. 248
d. Objective clinical evidence shows that Foster is unable to perform her job
duties; alternatively, Principal abused its discretion in arguing a lack of
objective evidence as the policy does not contain subjective-symptom
exclusion
Next, Foster argues that Drs. Condon and Savant agreed with Foster’s treating physician,
Dr. Mohnot, that there is no objective testing for migraine headaches, which is a clinical
diagnosis. 249 However, Foster argues, there is objective clinical evidence of debilitating headaches,
including Foster’s headache diaries, which demonstrate that she is unable to perform her job
duties. 250 Foster contends that Dr. Kondapaneni, a peer review physician, actually found objective
evidence of daily migraine headaches, history of seizure disorder, and functional impairment. 251
Moreover, Foster contends that Principal’s failure to address her job duties as a healthcare
attorney indicates that it abused its discretion in denying Foster’s claims. 252 According to Foster,

246

Id. at 6.

247

Id.

248

Id.

249

Id.

250

Id. at 8 (citing AR 648, 847, 1679, 1257, 1763).

251

Id.

252

Id.

39

she met her burden to prove that she in unable to perform her job duties as a healthcare attorney,
as all of her doctors and two of Principal’s peer reviewing doctors, her employer, her
psychotherapist, and the IME doctor agree that her headaches prevent her from doing so. 253 Foster
contends that Principal failed to analyze her medical condition in light of her job duties, which
required “the utmost ability to concentrate.” 254 Moreover, Foster argues, Principal did not ask any
of its peer reviewing doctors if they thought that Foster’s condition would preclude her from
performing her duties as a healthcare attorney. 255
Foster maintains that Principal’s failure to address the opinions of Foster’s doctors, as well
as the opinions of its own peer reviewing doctors, such as Drs. Condon and Kondapaneni, who
believed she suffers from a headache disorder, constitutes a clear abuse of discretion. 256 According
to Foster, similar facts were addressed in Kaufmann v. Metropolitan Life Insurance Company, a
decision from the Eastern District of Pennsylvania, in which Foster represents that the court found
that the insurance company could not rely on the opinion of a physician who performed a peer
review because the opinion did not depend on an understanding of the plaintiff’s job, but rather,
on the physician’s declaration that there was no objective evidence to support the plaintiff’s
subjective symptoms. 257 Foster asserts that the Kaufmann court found that the insurance
company’s acceptance of the reviewing physician’s opinion, without explaining its decision to

253

Id. at 9.

254

Id.

255

Id. at 10.

256

Id. at 11 (citing Black & Decker Disability Plan, 538 U.S. at 834).

257

Id. at 11–12 (citing 658 F.Supp.2d 643 (E.D. Pa. 2009)).

40

choose one opinion over the other, indicated that the insurance company was attempting to deny
the claim. 258
e. Misrepresentations of fact by Principal
Next, Foster contends that Principal makes several misrepresentations in its brief and
argues the following: (1) Foster’s medical records are not full of contradictions, as argued by
Principal, and her symptoms have been consistently reported; (2) Foster’s medical records do not
indicate that her headaches are psychosomatic; (3) even if Foster’s employer suggested she pursue
disability benefits, this does not suggest that Foster is not disabled under the Policy; (4) the fact
that Foster helps take care of her children does not mean that she is able to work as a healthcare
attorney; (5) Foster’s medical chart indicates that she is unable to keep up with household duties
and that she is not free to write due to her headaches; (6) Foster is attempting to take as few opioids
as possible; (7) Foster has been awarded Social Security disability benefits and has been found
unfit to perform the duties of any occupation; (8) Foster is not operating a business out of her home
but had only served on the board of a neighborhood nonprofit until resigning, nor were Foster’s
activities in a non-profit neighborhood organization cited by Principal as a reason for its denial;
(9) Foster’s attempt to “defer headaches” was ultimately unsuccessful, and Principal cannot
present this argument as a post-hoc rationale for claim denial, as it never stated this as a reason for
denying Foster’s claims; and (10) Foster’s maintenance of a Facebook page and blog does not
support a termination of disability benefits. 259
f. The reviewing court must weigh all relevant factors including Principal’s
258

Id. at 12 (citing Kaufmann, 658 F.Supp.2d at 651).

259

Id. at 13–14 (citing AR 364, 1183, 5223, 4584, 4586, 298–299, 2152).

41

conflict of interest to determine whether Principal abused its discretion in
denying benefits
Finally, Foster notes that many of the cases cited by Principal to lay out the standard of
review in this matter occurred before the United States Supreme Court articulated the
“combination of factors” method of review applicable to ERISA cases like this one. 260 According
to Foster, whether there is substantial evidence supporting a denial of benefits is determined by
weighing all relevant factors, and any one factor may act as a tiebreaker where the other factors
are closely balanced. 261 Here, Foster argues, even if this case were a close call, Principal’s conflict
of interest could act as a tiebreaker that would tip the scales towards an abuse of discretion. 262
Thus, Foster argues that Principal abused its discretion in terminating her LTD and LWOP
benefits. 263
3.

Principal’s Arguments in Reply to Foster’s Opposition

In reply, Principal maintains that its determination to terminate Foster’s benefits was
reasonable and that judgment should be granted in its favor. 264 Principal asserts that Foster’s case
lacks any objective evidence that her headaches – regardless of the etiology – are disabling and
preventing Foster from performing the material and substantial duties of her regulation occupation
as a healthcare attorney. 265 Additionally, Principal did not cherry-pick the evidence; rather

260

Id. at 15 (citing Glenn, 128 S.Ct. 2343).

261

Id. (citing Glenn, 128 S.Ct. at 2351).

262

Id. at 16 (citing Schexnayder v. Hartford Life Ins. & Acc. Ins. Co., 600 F.3d 465, 471 (5th Cir. 2010)).

263

Id.

264

Rec. Doc. 36 at 8.

265

Id. at 1.

42

Principal continued to evaluate the claim as new and more specialized opinions became
available. 266 Principal contends that substantial evidence exists to support its termination of LTD
benefits. 267
a. Glenn did not alter the standard of review and the inquiry remains whether
Principal’s determination is reasonable
In reply, Principal contends that Glenn did not alter the standard of review, and the Court’s
inquiry remains whether Principal’s determination is supported by substantial evidence in the
administrative record. 268 Whether a plan administrator has a conflict of interest is but one factor
for consideration by the court. 269 Thus, Principal asserts, its alleged conflict of interest should not
be accorded great weight, if any, and its decision should be upheld as it falls “somewhere on a
continuum of reasonableness.” 270 Principal further contends that the Court’s review is limited to
the administrative record and the facts known to the claims administrator at the time of its
determination. 271 Thus, Principal argues that the Court cannot consider the additional facts
presented by Foster that are not in the record, including an alleged subsequent award of SSDI
benefits. 272
b. Principal’s decision to terminate benefits is supported by substantial
evidence
266

Id.

267

Id. at 2.

268

Id. at 2-3.

269

Id. at 3.

270

Id. at 4 (internal quotations omitted).

271

Id. at 5 (citing S. Farm Bureau Life Ins. Co. v. Moore, 993 F.2d 98, 102 (5th Cir. 1993)).

272

Id.

43

According to Principal, its decision to terminate Foster’s claim is supported by substantial
evidence, including the results of the neuropsychological evaluation and “numerous opinions of
specialists from December 2014 through 2015.” 273 Principal asserts that it never requested or
required objective evidence of Foster’s headaches. 274 Rather, Principal asserts that it requested
objective evidence of functional incapacity, i.e. the restrictions and limitations that prevented
Foster from performing her job duties, but that Foster has not presented any such evidence. 275
According to Principal, “the results of her neuropsychological evaluation defeat her claim that
objective evidence of a cognitive impairment exists.” 276 Principal contends that Foster has not
presented any evidence that would defeat Dr. Chafetz’s findings as to Foster’s cognitive
functionality and that Foster’s attempt to discredit Dr. Chafetz is unavailing, as his report was not
internally inconsistent. 277 Specifically, Principal contends, Dr. Chafetz never suggested that Foster
was faking symptoms or malingering as Foster argues; rather, Dr. Chafetz found that Foster was
not functionally impaired by the headaches. 278
c. Principal did not cherry pick the evidence
Principal asserts that it did not disregard the opinions of its own physicians, Dr. Condon
and Dr. Kondapaneni, but rather, changed its position after receipt of additional and more

273

Id.

274

Id. at 6.

275

Id.

276

Id.

277

Id. at 6–7 (citing AR 350–374).

278

Id. at 6.

44

specialized medical opinions. 279 Indeed, Principal initially approved disability benefits in October
2013, in light of Dr. Condon’s September 2013 review, in which Dr. Condon concluded that Foster
was incapable of “consistent full time employment.” 280 After receiving Dr. Knodapaneni’s
January 2014 assessment, Principal continued paying benefits until December 2014, after Principal
received additional and more specialized medical opinions. 281 Principal maintains that an insurer
is permitted to change its determination when additional evidence arises. 282
d. No evidence exists of biased claim review
Principal also notes that it allowed Foster an additional level of appeal, conducted an
independent neuropsychological review in excess of that required by ERISA and the Group Policy,
and consulted with numerous specialists to fully evaluate Foster’s claims, including evaluating
Foster’s cognitive abilities in light of the intellectual demands of her occupation. 283 Moreover,
Principal asserts, Principal did not communicate directly with the independent consultants so that
any potential bias was reduced or eliminated. 284
e. Alternatively, Foster’s claim is subject to the 24-month mental health
limitation
Even if the Court were to find that Foster had met her burden to demonstrate that she cannot
perform the duties of her occupation, Principal argues, her claim would still be subject to the Group

279

Id. at 7 (citing AR 2151–2154).

280

AR 4850.

281

Rec. Doc. 36 at 7 (citing AR 2151-2154).

282

Id. at 8.

283

Id. at 4.

284

Id.

45

Policy’s mental health condition, limiting benefits to a 24-month period. 285
III. Law and Analysis
A.

Standard of Review for ERISA Claims
ERISA “permits a person denied benefits under an employee benefit plan to challenge that

denial in federal court.” 286 When reviewing a denial of benefits made by an ERISA plan
administrator, the Court applies a de novo standard of review “unless the benefit plan gives the
administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe
the terms of the plan.” 287 In such cases, the reviewing court applies an abuse of discretion standard
to the plan administrator’s decision to deny benefits. 288 In this case, the plan provides that
“Principal has discretion to construe or interpret the provisions of this Group Policy, to determine
eligibility for benefits, and to determine the type and extent of benefits, if any, to be provided.” 289
Therefore, as the plan empowers Principal with discretionary authority to determine eligibility for
benefits and to construe the plan’s terms, the Court applies an abuse of discretion standard to
review Principal’s decision to deny Foster’s claim for continued long-term disability benefits and
life insurance waiver of premium benefits.
The Fifth Circuit has articulated a two-step process for review of a plan administrator’s
interpretation of its plan. First, the court "must determine the legally correct interpretation of the

285

Id. at 8 (citing AR 13).

286

Glenn, 554 U.S. 105 (citing 29 U.S.C. § 1001 et seq.; § 1132(a)(1)(B)).

287

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).

288

Anderson v. Cytec Indus., Inc., 619 F.3d 505, 512 (5th Cir. 2010) (citing Bruch, 489 U.S. at 115).

289

AR at 22; see also AR 117.

46

plan" and whether the administrator gave the plan a legally correct reading. 290 If the plan
administrator’s interpretation was legally correct, there is no abuse of discretion. 291 If the plan
administrator’s interpretation was legally incorrect, then the court must ask whether the plan
administrator’s decision constituted an abuse of discretion. 292 The Fifth Circuit has held that a
court may proceed directly to the second inquiry if the court can more readily determine that the
decision was not an abuse of discretion. 293
The competing motions for judgment on the administrative record address two separate
claims: (1) Principal’s denial of long term disability benefits beyond December 9, 2014; and (2)
Principal’s denial of life insurance waiver of premium benefits pursuant to the group life insurance
policy’s coverage during disability provision.
B.

Principal’s Denial of Long Term Disability Benefits
The Group Policy provides that a Member will qualify for disability benefits if all of the

following conditions are satisfied:
a.
b.
c.
d.
e.
f.
g.

The Member is Disabled under the terms of this Group Policy.
The Disability begins while he or she is insured under this Group Policy.
The Disability is not subject to any Limitations listed in this PART IV, Section O.
An Elimination Period of 180 days is completed.
A Benefit Payment Period is established.
The Member is under the Regular and Appropriate Care of a Physician.
The claim requirements listed in this PART IV, Section Q are satisfied.

290

Gosselink v. Am. Tel. & Tel., Inc., 272 F.3d 722, 726 (5th Cir. 2001); Holland, 576 F.3d at 246, n.2.

291

Id.

292

Gosselink, 272 F.3d at 726. This test applies only in cases, such as the one here, where the administrator
has the authority to interpret the plan and participants' eligibility for benefits. Id.
293

Holland, 576 F.3d at 246, n.2.

47

A Benefit Payment Period will be established on the later of:
a. The date the Member completes an Elimination Period; or
b. The date six months before The Principal received Written proof of the
Member’s Disability. 294
The definitions section of the Group Policy applicable to long term disability benefits provides:
A Member will be considered Disabled if, solely and directly because of sickness,
injury, or pregnancy:
During the Elimination Period and the Benefit Payment Period, one of the following
applies:
a.

The Member cannot perform one or more of the material and substantial
duties of his or her Own Occupation.

b.

The Member is performing the duties of his or her Own Occupation on a
Modified Basis or any occupation and is unable to earn more than 80% of
his or her Indexed Predisability Earnings. 295

“Substantial and material duties” are defined as the “essential tasks generally required by
employers from those engaged in a particular occupation that cannot be modified or omitted.”296
“Own Occupation (for Attorneys)” is defined as the “specialty in the practice of law the Member
is routinely performing for the Policyholder when his or her Disability begins.” 297
The parties provide little discussion as to whether Principal’s interpretation of the Group
Policy’s LTD benefits provisions was legally correct. 298 Rather, the parties dispute whether

294

AR 35.

295

AR 10-11.

296

AR 19.

297

AR 17.

298
The parties agree that the Group Policy provides an “own occupation” definition of disability. Rec Doc.
25-1 at 11; Rec. Doc. 26-1 at 2.

48

Principal’s denial of LTD benefits was an abuse of discretion. Because the Court can more readily
determine whether Principal’s denial of LTD benefits was an abuse of discretion, the Court need
not consider whether Principal’s interpretation of the policy provisions governing LTD benefits
was legally correct and instead, proceeds to the second step of the analysis. 299
1.

Abuse of Discretion Standard

The Court’s review of factual determinations under the abuse of discretion standard is
limited to the evidence contained in the administrative record. 300 As a claimant under
§1132(a)(1)(B), Foster bears “the initial burden of demonstrating . . . that [the] denial of benefits
under an ERISA plan [was] arbitrary and capricious.” 301 “[T]he law requires only that substantial
evidence support a plan fiduciary’s decision . . . not that substantial evidence (or, for that matter,
even a preponderance) exists to support the employee’s claim of disability.” 302 The Fifth Circuit
instructs that “[i]f the plan fiduciary’s decision is supported by substantial evidence and is not
arbitrary or capricious, it must prevail.” 303 The Fifth Circuit has held:
Substantial evidence is more than a mere scintilla, less than a preponderance, and
is such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion. . . . An arbitrary decision is one made without a rational connection
between the known facts and the decision or between the facts and the evidence….
299

Holland, 576 F.3d at 246 n.2. As here, the Holland parties did not address whether the plan administrator’s
interpretation was legally correct. Thus, the Fifth Circuit concluded that the court was permitted to bypass the first
inquiry of the two-step analysis and consider only whether the plan administrator’s determination was an abuse of
discretion. Id.
300

Gooden v. Provident Life & Accident Ins. Co., 250 F.3d 329, 333 & n.5 (5th Cir. 2001) (noting, as an
exception to this general rule, that a district court may consider evidence outside the administrative record if it will
assist the court in understanding the medical terminology or practice related to the claim).
301

Anderson, 619 F.3d at 512–13.

302

Ellis, 394 F.3d at 273.

303

Id.

49

Ultimately, [the Court’s review] of the administrator’s decision need not be
particularly complex or technical; it need only assure that the administrator’s
decision fall somewhere on a continuum of reasonableness–even if on the low
end. 304
Moreover, “when a court reviews a plan administrator's decision for abuse of discretion, it must
‘not disturb an administrator's decision if it is reasonable, even if the court would have reached a
different decision.’” 305
The Court must additionally measure the conflict of interest that arises from the dual role
of an entity acting as an ERISA plan administrator and also as a payer of plan benefits, as a factor
in determining whether the plan administrator has abused its discretion in denying benefits. 306
However, if a claimant presents no other evidence (other than the company’s dual role) as to the
degree that a conflict exists and affects the decision to deny benefits, the Court reviews the
administrator’s decision “with only a modicum less deference than [it] otherwise would.” 307 Foster
has presented no evidence to establish a conflict of interest beyond Principal’s dual role; thus, the
Court reviews Principal’s determination with substantial deference. 308
2.

Analysis

Foster contends that: (1) Principal abused its discretion by basing its denial on an alleged

304

Corry, 499 F.3d at 398–99 (citations and internal quotations omitted).

305

McCorckle v. Metropolitan Life Ins. Co., 757 F.3d 452, 459 (5th Cir. 2014) (citing Donovan v. Eaton
Corp. Long Term Disability Plan, 462 F.3d 321, 326 (4th Cir.2006) (emphasis in original)).
306

Glenn, 554 U.S. at 108.

307

Corry, 499 F.3d at 398 (quoting Vega v. Nat’l Life Ins. Serv., Inc., 188 F.3d 287, 301 (5th Cir. 1999) (en

banc)).
308
See Anderson v. Cytec Indus., Inc., No. 07-5518, 2009 WL 911296, at *6 (E.D. La. Mar. 27, 2009)
(Feldman, J.), aff'd, 619 F.3d 505 (5th Cir. 2010); Holland, 576 F.3d at 249.

50

lack of objective evidence of Foster’s migraines, because a migraine diagnosis is clinical, and her
medical records provide “overwhelming evidence” of persistent, intractable headaches that
supports the inability to perform her job duties as an attorney; (2) Principal abused its discretion
by failing to analyze Foster’s medical condition in relation to the actual duties of her occupation;
and (3) Principal abused its discretion by selectively reviewing evidence in the record. 309 Principal
argues that its decision was reasonable and was not an abuse of discretion. Specifically, Principal
contends that: (1) Foster’s medical records do not support a finding that she is disabled under the
terms of the Policy; (2) Principal was entitled to rely on the opinions of the independent physicians
involved in the assessment of Foster’s medical records; and (3) Foster’s claim is subject to the
mental health condition limitation.310
a. Whether Principal Terminated Benefits Based on a Lack of Objective
Evidence of Headaches
Foster’s contention that Principal terminated her LTD benefits based on a lack of objective
evidence of headaches is misplaced. Principal initially approved LTD benefits in October 2013,
based on a September 2013 report by Dr. Ethel Condon and continued paying LTD benefits in
light of Dr. Pranathi Kondapaneni’s January 22, 2014 report. Thereafter, Principal continued to
assess Foster’s disability status and obtained several medical opinions in that regard.
In November 2014, an independent neurologist, Dr. David Hoenig, concluded that Foster’s
neurological examination was completely normal. 311 Dr. Hoenig opined that there was no

309

Rec. Doc. 25-1 at 14, 16, 18.

310

Rec. Doc. 26-1 at 19, 22, 24.

311

AR 2175.

51

objective evidence of functional impairment, and from a neurological perspective, “there are
clinical findings of full functionality with no difficulties.” 312 Dr. Hoenig further noted that Foster
“has significant mental health pathology” not addressed by Foster’s physicians. 313 Importantly,
Dr. Hoenig opined that neurologically, there was nothing to indicate that Foster would be unable
to perform sedentary work activities on a full time basis. 314 Similarly, independent clinical
psychologist Sydney K. Register opined in November 2014, that Foster does not have any
“significant functional impairment from a psychological condition.” 315 Considering the lack of
objective evidence of a functional impairment resulting from the complained of headaches,
Principal concluded that Foster was not “Disabled” as defined by the Group Policy, and thus,
Principal terminated Foster’s LTD benefits as of December 9, 2014. 316
These findings were confirmed during the appeal process by psychiatrist, Dr. Daniel
Harrop, on July 13, 2015, and by Dr. Michael Chafetz who performed an independent
neuropsychological evaluation on December 2, 2015. 317 Dr. Harrop opined that “[m]emory,
cognition, and concentration are not demonstrated by mental status examination findings to be
impaired.” 318 Moreover, “the severity of symptoms noted in the medical records do not support

312

Id.

313

Id.

314

Rec. Doc. 26-1 at 10; AR 2177.

315

Rec. Doc. 26-1 at 10; AR 2186.

316

AR 2151.

317

AR 350.

318

AR 1942.

52

severity of impairment nor the treatment being provided.” 319 Dr. Chafetz highlighted the
psychological nature of Foster’s headaches, noting that Foster “is meek and unassertive” and has
psychological control over her headaches. 320 Foster has learned to use her headaches to “put the
brakes on” when she needs her life to slow down, can will her headaches away, and has
“considerable control over her pain experience.” 321 Dr. Chafetz further noted that Foster’s
complaints to her physicians are inconsistent with her reports to her therapist, Ms. Shnaider.322
Ms. Shnaider’s therapy notes indicate that Foster uses her headaches to avoid things that cause her
discomfort. 323 As Dr. Hoenig noted, “Ms. Foster’s functional and daily activity level is not
consistent with the severity of the complaints she reports.” 324 Importantly, Dr. Chafetz found no
evidence of psychological or neuropsychological impairment. 325
Thus, while Foster’s complaints of headaches were “subjectively affecting [her]
functionality,” no objective or clinical evidence was presented to demonstrate that Foster was
functionally impaired by the headaches. The Court finds that Principal did not abuse its discretion
in concluding that Foster was not functionally impaired as a result of the headaches.
b. Whether Principal Abused its Discretion in Concluding that Foster was
Not Disabled Without Addressing Foster’s Specific Job Requirements

319

AR 1943.

320

AR 366.

321

AR 366, 367, 368.

322

AR 368.

323

Id.

324

AR 2176.

325

AR 368.

53

Next, Foster asserts that Principal abused its discretion by failing to address her medical
condition in relation to her actual job duties as a healthcare attorney. Foster bears the burden of
proving that she is disabled, i.e., that her medical condition prevents her from performing the
material and substantial duties of her occupation as a healthcare attorney. 326 Foster described her
specific job requirements as including drafting and reviewing lease agreements, researching and
advising clients on government laws and regulations, representing clients in administrative
appeals, and drafting compliance plans. 327 Although Foster contends that her physicians concluded
that she is unable to work full-time as an attorney, Foster points to no evidence that addresses the
specific job requirements of a healthcare attorney. Thus, Foster has not satisfied her burden of
proving that she cannot perform one or more of the material and substantial duties of her
occupation as a healthcare attorney, and Foster’s caim that Principal abused its discretion in failing
to address her specific job requirements is without merit.
Moreover, as previously discussed, Drs. Hoenig and Register found no evidence of
functional impairment. Rather, Dr. Register concluded that Foster showed signs of depression and
anxiety. 328 This is consistent with the opinions of Foster’s treating therapist, Ms. Shnaider, who
treated Foster for depression and anxiety as early as 2012, and noted that Foster’s headaches were
associated “with times of stress or just after stress.” 329
Principal’s determination that Foster is not disabled as defined by the Group Policy is

326

AR 10-11.

327

Rec. Doc. 25-1 at 14.

328

AR 1134.

329

AR 5201.

54

further supported by the opinion of Dr. Norman Miller, a physician board certified in both
neurology and psychiatry, who found that Foster’s medical records indicate an “opioid
dependency, opioid induced mood disorder, and opioid induced hypalgesia and somatoform
disorder.” 330 By report dated July 20, 2015, Dr. Miller found “no evidence documented in the
medical records or independent medical evaluation that Ms. Foster is not capable of full-time
sedentary work activities as of December 10, 2015 [sic] 331 to the present date.” 332
On December 21, 2015, Principal upheld its termination of benefits, 333 citing Dr. Chafetz’s
conclusion that Foster was able to perform at an average or above average level, even after she
had a headache and took medication. 334 The opinions of Drs. Hoenig, Register, Harrop, Miller,
and Chafetz provide “substantial evidence” to support Principal’s determination that Foster is not
“disabled” as defined by the Group Policy. Thus, Principal did not abuse its discretion in
terminating LTD benefits, concluding that Foster was not disabled as defined by the Group
Policy’s LTD provisions.
c. Whether Principal Abused its Discretion in Relying on the Opinions of
Independent Doctors Rather than Foster’s Treating Physicians
Finally, Foster’s contention that Principal abused its discretion in relying on the opinions
of independent doctors rather than Foster’s treating physicians likewise is without merit. Although

330

Rec. Doc. 26-1 at 11-12; AR 1807, 1903.

331
By correspondence dated July 22, 2015, Dr. Miller confirmed that his opinion was effective as of
December 10, 2014. See AR 1853 – 1854.
332

AR 1904.

333

AR 342–345.

334

Id.

55

a plan administrator may not arbitrarily ignore a treating physician’s opinion, “courts have no
warrant to require administrators automatically to accord special weight to the opinions of a
claimant’s physician; nor may courts impose on plan administrators a discrete burden of
explanation when they credit reliable evidence that conflicts with a treating physician’s
evaluation.” 335
As noted, Principal initially approved Foster’s claim for LTD benefits in October 2013, in
light of Dr. Ethel Condon’s September 2013 report. Principal later terminated Foster’s LTD
benefits in light of the opinions of Drs. Hoenig, Miller, Register, and Chafetz, which provide
“substantial evidence” 336 that Foster was not “disabled” as defined by the Group Policy. Notably,
the records of Ms. Shnaider, Foster’s treating therapist, are replete with evidence that Foster (1)
used her headaches to “put brakes on” her life when confronted with difficult tasks; 337 (2) was able
to defer her headaches until after an important event or talk them down; 338 (3) was able to resolve
her pain through breathing exercises but that the pain returned when Foster became anxious; 339 (4)
used her headaches as a way for Foster to stay at home with her children after being shamed by
her mother for working full time rather than parenting; 340 and (5) would rather write novels and

335

Holland, 576 F.3d at 250.

336

See Corry, 499 F.3d at 398-99.

337

AR 5155, 5154, 5152, 5148, 5182, 3752, 3759, 366.

338

Id.

339

AR 3752, 3749.

340

AR 3727, 5180, 5157.

56

children’s books than work as an attorney. 341 Ms. Shnaider classified Foster’s headaches as
psychogenic and somatic. 342 Ms. Shnaider noted that Foster was “reacting to having to work,” had
“feeling of guilt for breaking promise to husband that she would be the breadwinner and he would
stay home with kids,” 343 and has “inner resentment that she is not free to just write.” 344 Ms.
Shnaider also noted that Foster “felt well” when she was free to write, and Foster’s husband
“expresses strong support for her writing.” 345 Principal’s reliance on the opinions of Drs. Hoenig,
Miller, Harrop, Chafetz, and Register and the medical records of Ms. Shnaider falls “somewhere
on a continuum of reasonableness.” 346 Thus, Principal did not abuse its discretion in terminating
Foster’s LTD benefits effective December 9, 2014.
d. Whether the Mental Health Limitation Applies
Principal determined that Foster’s headaches are a symptom of an emotional and/or mental
disorder rather than physical in nature based on Ms. Shnaider’s classification of Foster’s headaches
as psychogenic and somatic. 347 However, Principal denied LTD benefits, concluding that the
record does not contain evidence that such “emotional and/or mental disorder” had become
disabling. 348 Principal asserts that if the Court concludes that the mental disorder is disabling,

341

See AR 368.

342

AR 4574, 4586.

343

AR 5148.

344

AR 4586.

345

AR 5148.

346

Id; See Corry, 499 F.3d at 398–99.

347

AR 4574, 4586.

348

Id.

57

which Principal denies, then the LTD benefits are subject to the twenty-four month mental health
limitation.349
Foster denies that she suffers from a mental health condition. In fact, Foster concedes that
she has not filed a claim for mental health benefits under the Group Policy. 350 Moreover, for the
reasons stated herein, the Court finds that Principal did not abuse its discretion in concluding that
Foster is not “disabled” as defined by the Group Policy. Therefore, Foster is not entitled to 24
months of LTD benefits due to her mental health condition.
C.

Principal’s denial of life insurance waiver of premium benefits
Foster claims that she was entitled to continuance of her life insurance benefits during her

disability without continued payment of premiums; thus, Principal abused its discretion in denying
her claim for LWOP. The Group Policy provides that “Premium will not be charged for Member
Life and Member Accidental Death and Dismemberment Insurance while the Member’s Coverage
During Disability is in force.” 351 The “Coverage During Disability” benefit provides:
Article 6 – Member Life Insurance – Coverage During Disability
A Member may be eligible to continue his or her Member Life and Member
Accidental Death and Dismemberment Insurance coverage during the Member’s
Total Disability.
a. Coverage Qualification
To be qualified for Coverage During Disability, a Member must:

349

The Group Policy provides that disabilities caused by a “Mental Health Condition” are subject to a
limited pay period of 24 months. AR 48.
350

Rec. Doc. 35 at 10–12.

351

AR 142.

58

(1)
(2)
(3)
(4)
(5)
(6)
(7)

become Totally Disabled while insured for Member Life Insurance; and
become Totally Disabled prior to the attainment of age 60; and
remain Totally Disabled continuously; and
be under the regular care and attendance of a Physician; and
send proof of Total Disability to The Principal when required; and
submit to Medical Examinations or Evaluations when required; and
return to The Principal, without claim, any individual policy issued under
his or her Individual Purchase Rights as described in PART III, Section F,
Article 1. Upon return of such policy, The Principal will refund premiums
paid, less dividends and less any outstanding policy loan balance. 352

Thus, the threshold requirements for LCDD, and therefore, for LWOP benefits, are proof
of “total disability” by a “member” as those terms are defined by the group life insurance policy.353
Total disability is defined by the group life insurance policy as “[a] Member’s inability, as
determined by The Principal, due to sickness or injury, to perform the majority of the material
duties of any occupation for which he or she is or may reasonably become qualified based on
education, training or experience.” 354 A member is defined by the group life insurance policy as a
person “who is a full-time employee” and “who regularly works at least 30 hours per week.”355
Thus, to qualify for coverage during disability benefits, one must be a full-time employee who
regularly works 30 hours per week and who is unable to perform the material duties of any
occupation.
Principal denied LCDD benefits, concluding that Foster was not unable to work in any

352
AR 141. Coverage During Disability is effective for a qualified member nine months after the date that
the member becomes totally disabled or on the date that the member dies. AR 142.
353

AR 141-142.

354

AR 114.

355

AR 112.

59

occupation, either on a full or part-time basis. 356 Thus, Foster was not “totally disabled” as defined
by the group life insurance policy. Moreover, Principal maintains, Foster ceased being a “Member”
as defined by the policy when she stopped working full-time on March 8, 2013; thus, Foster’s
Group Term Life Insurance coverage ended on April 1, 2013. 357 Because Foster did not have life
insurance coverage when she stopped working on June 25, 2013, she was not entitled to LCDD
and LWOP benefits. 358
Foster contends that the policy language does not support the conclusion that Foster ceased
to be a “member” when she was forced to decrease her hours on March 8, 2013 due to her
worsening medical condition. 359 However, Foster admits that the definition of total disability for
determination of her LWOP claim differs from the definition of disability applicable to the LTD
claim (inability to perform any occupation v. inability to perform one’s own occupation). 360
Because the Court can more readily determine whether Principal abused its discretion in denying
LWOP benefits, the Court need not consider whether Principal’s interpretation of the LCDD and
LWOP beneit requirements was legally correct, and instead, proceeds to the second step of the
analysis. 361
1.

Whether Principal Abused its Discretion in Concluding that Foster was not
“Totally Disabled” as Defined by the Life Insurance Policy

356

Rec. Doc. 26-1 at 10-11; AR 2164.

357

Id.

358

AR 2164.

359

Rec. Doc. 25-1 at 22 - 23.

360

Id.

361

Holland, 576 F.3d at 246 n.2.

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Foster has cited no evidence that she is unable to perform the material duties of “any
occupation,” as required to prove “total disability” under the group life insurance policy. Indeed,
Foster admits that she has written one short story and an unpublished manuscript and served on
the board of a neighborhood nonprofit since she stopped working as a healthcare attorney. 362 This
is evidence that Foster is able to complete the material duties of an occupation and defeats Foster’s
claim for LCDD and LWOP benefits.
Moreover, disability for purposes of LCDD and LWOP benefits is a more encompassing
standard than that needed to prove disability for LTD benefits. Foster concedes that she was able
to work part-time from March 8, 2013 until June 25, 2013. In January 2014, Dr. Kondapaneni
concluded that Foster could perform part-time work. 363 Thus, Foster was not “totally disabled” as
defined by the group life insurance provisions, and Principal did not abuse its discretion in denying
LWOP benefits.
Finally, as discussed above, Principal did not abuse its discretion in concluding that Foster
is not unable to perform the material duties of her own occupation as a healthcare attorney. Thus,
it follows that Foster is not unable to perform the material duties of any occupation. Therefore,
Principal did not abuse its discretion in concluding that Foster is not “totally disabled” as defined
by the group life insurance policy.
2.

Whether Principal Abused its Discretion in Concluding that Foster Ceased to
be a Member Entitled to Life Insurance Waiver of Premium Benefits

362

Rec. Doc. 29 at 13-14.

363

AR 4043. Foster’s ability to perform part-time work precludes LWOP benefits.

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The group life insurance policy defines a “member” as a person “who is a full-time
employee” and “who regularly works at least 30 hours per week.” 364 Foster admits that she ceased
working full-time on March 8, 2013. Thus, Principal did not abuse its discretion in concluding
that Foster was no longer a member at that time, and thus, was not entitled to life insurance
coverage. Moreover, entitlement to LWOP benefits is a two-part burden of proof; because
substantial evidence exists to support Principal’s conclusion that Foster was not “totally disabled”
as defined by the group life insurance policy, Foster was not entitled to LWOP benefits. Principal
did not abuse its discretion in denying Foster’s claim for LWOP benefits.
IV. Fees, Costs and Interest
Pursuant to 29 U.S.C. § 1132(g), the Court, in its discretion, may allow a reasonable
attorney’s fees and costs award to either party. The Fifth Circuit has articulated five factors for
district courts to consider in determining whether to award attorney’s fees: “(1) the degree of the
opposing parties’ culpability or bad faith; (2) the ability of` the opposing parties to satisfy an award
of attorney’s fees; (3) whether an award of attorney’s fees against the opposing parties would deter
other persons acting under similar circumstances; (4) whether the parties requesting attorney’s fees
sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant
legal question regarding ERISA itself; and (5) the relative merits of the parties’ positions.”365
However, the Fifth Circuit also stated that “[n]o one of these factors is necessarily decisive, and
some may not be apropos in a given case, but together they are the nuclei of concerns that a court

364

AR 112.

365

Iron Workers Local No. 272 v. Bowen, 624 F.2d 1255, 1266 (5th Cir. 1980).

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should address.” 366
A.

Principal’s Motion for Attorney’s Fees and Costs
Although Principal’s motion includes a request for “such other and further relief as the

Court deems just and equitable, including an award of its reasonable attorneys [sic] fees and costs
pursuant to 29 U.S.C. § 1132 (g),” 367 Principal provides no argument in support of an attorney’s
fees and costs award. 368Moreover, applying the Bowen factors to this case, the Court denies
Principal’s request for attorney’s fees and costs.
The first Bowen factor concerns the bad faith of a party. 369 No evidence exists that Foster
was in bad faith in asserting her claims. Foster cites to several competing medical opinions in
support of her claims. Thus, although Principal’s denial of benefits is supported by “substantial
evidence,” some evidence supports Foster’s arguments, and it cannot be said that Foster’s claims
were made in bad faith. The second and third Bowen factors also weigh in favor of denying
Principal’s request for attorney’s fees and costs. No evidence exists that Foster has the ability to
satisfy an award of attorney’s fees, nor that condemning Foster to pay attorney’s fees and costs
would deter other individuals from contesting a denial of benefits.
The fourth Bowen factor considers whether the party requesting fees and costs sought to
benefit all participants and beneficiaries of an ERISA plan or resolve a significant legal question
regarding ERISA itself. Certainly, in denying Foster’s claim and filing the Motion for Judgment

366

Id.

367

Rec. Doc. 26 at 1.

368

Rec. Docs. 26, 26-1, 30, 36.

369

See Bowen, 624 F.2d at 1266.

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on the Administrative Record, Principal is not seeking to benefit plan participants and
beneficiaries. Moreover, Principal’s motion does not seek resolution of a significant legal question
regarding ERISA itself. Thus, the fourth Bowen factor weighs against an award of attorney’s fees
and costs.
Finally, the relative merits of the parties’ position likewise weighs in favor of a denial of
attorney’s fees and costs. As noted above, Foster’s position is not unfounded, it was simply
unsuccessful. Considering all of the Bowen factors, the Court denies Principal’s request for
attorney’s fees and costs.
B.

Foster’s Request for Attorney’s Fees, Costs, and Interest
Foster’s motion also includes a request for attorney’s fees, costs, and pre and post-judgment

interest. 370 29 U.S.C. § 1132(g)(1) permits the Court to award attorney’s fees and costs “to either
party.” 371 Although a litigant need not be the “prevailing party” to obtain a fees and costs award,
the United States Supreme Court explained that “a fees claimant must show ‘some degree of
success on the merits’ before a court may award attorney’s fees under § 1132(g)(1).” 372 Foster has
not satisfied that standard. Thus, Foster is not entitled to an award for attorney’s fees and costs. 373
V. Conclusion
Based on the foregoing, the Court GRANTS, in part, “Defendant’s Motion for Judgment

370

Rec. Doc. 25 at 1.

371

29 U.S.C. § 1132(g)(1).

372

Hardt, 560 U.S. at 243.

373

No judgment is awarded in favor of Foster. Thus, Foster’s claim for pre and post-judgment interest has

no merit.

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Pursuant to F.R.Civ.P. 52,” 374 upholding Principal’s denial of LTD and LWOP benefits. The Court
DENIES Principal’s motion to the extent that it requests attorney’s fees and costs. The Court
DENIES Foster’s “Motion for Judgment Based on the Administrative Record” 375 including
Foster’s request for attorney’s fees, costs, and interest. Accordingly,
IT IS HEREBY ORDERED that Principal’s “Motion for Judgment Pursuant to
F.R.Civ.P. 52,” 376 is GRANTED IN PART, upholding Principal’s denial of LTD benefits beyond
December 9, 2014, and denial of LWOP benefits;
IT IS FURTHER ORDERED that Principal’s “Motion for Judgment Pursuant to
F.R.Civ.P. 52,” 377 is DENIED IN PART to the extent that Principal requests attorney’s fees and
costs;
IT IS FURTHER ORDERED that Foster’s “Motion for Judgment Based on the
Administrative Record” 378 is DENIED, including Foster’s request for attorney’s fees, costs, and
interest.
NEW ORLEANS, LOUISIANA, this ______ day of November, 2017.
21st

________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

374

Rec. Doc. 26.

375

Rec. Doc. 25.

376

Rec. Doc. 26.

377

Id.

378

Rec. Doc. 25.

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