Wittmann v. UNUM Life Insurance Company of America

Filing 140

ORDER AND REASONS DENYING 97 Motion for Summary Judgment; GRANTING 118 Motion for Summary Judgment. Signed by Judge Martin L.C. Feldman on 2/21/2019. (jeg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ANNE WITTMANN

CIVIL ACTION

v.

NO. 17-9501

UNUM LIFE INSURANCE
COMPANY OF AMERICA

SECTION “F”

ORDER AND REASONS
Before the Court are cross motions for summary judgment.
the

reasons

that

follow,

the

plaintiff’s

motion

for

For

summary

judgment is DENIED, and the defendant’s motion for summary judgment
is GRANTED.
Background
Anne Wittmann is a participant to a long-term disability
insurance plan through her employment as an attorney with Baker,
Donelson, Bearman, Caldwell, Berkowitz PC.

Unum Life Insurance

Company of America serves as both the administrator and underwriter
of the Plan.

On April 7, 2014, Wittmann filed a claim for

disability benefits under the Plan, asserting that she had been
unable to work since December 31, 2013. 1

1

The Plan defines “disability” as follows:
You are disabled when Unum determines that due to your
sickness or injury:
1. You are unable to perform the material and substantial
duties of your regular occupation and are not working in
your regular occupation or any other occupation
. . .
You must be under the regular care of a physician in
order to be considered disabled.
1

In

filing

this

claim,

Wittmann

described

her

medical

condition as “unknown – other than fibromyalgia and pericarditis,”
and identified her first symptoms as “chest pain, SOB, muscle/joint
pain, fatigue, lightheaded.”

When asked what “specific duties” of

her occupation she was unable to perform, she stated that she was
“unable to concentrate” and that her “physical endurance [wa]s
limited due to pain and fatigue.”
treating

physicians

as:

Dr.

In addition, she listed her
Frank

Cruz,

Internal

Medicine/Nephrology; Dr. William Davis, Rheumatologist; Dr. Robert
Lizana, Chiropractor; Dr. Robert Kelly, Physician; and Dr. Charles

The Plan further itemizes information that a claimant must submit
in order to establish such a disability.
Proof of your claim, provided at your own expense, must
show:
• the date your disability began;
• the existence and cause of your sickness or
injury;
• that your sickness or injury causes you to have
limitations on your functioning and restrictions
on
your
activities
preventing
you
from
performing the material and substantial duties
of your regular occupation;
• that you are under the regular care of a
physician . . . .”
In addition, the Plan vests Unum with “discretionary authority to
make benefit determinations under the Plan.”
(emphasis added).
Such “[b]enefit determinations include determining eligibility for
benefits and the amount of any benefits, resolving factual
disputes, and interpreting and enforcing the provisions of the
Plan.”
The
Plan
further
provides
that
“[a]ll
benefit
determinations must be reasonable and based on the terms of the
Plan and the facts and circumstances of each claim.”
2

Chester, Psychiatrist.

Unum acknowledged receipt of Wittmann’s

claim on April 7, 2014.
Soon after, an Attending Physician’s Statement dated April
15, 2014 was submitted by Dr. Cruz, Wittmann’s internist. He noted
that Wittmann had “an as-yet undiagnosed entity characterized by
fatigue, muscle and joint aches, tightness in the chest, Raynaud’s
phenomenon and, most recently, by cognitive dysfunction.”

He

further reported that Wittmann had seen various doctors in New
Orleans and been evaluated by three different subspecialties at
the Mayo Clinic.

In response to Unum’s query about Wittmann’s

physical and behavioral health restrictions and/or limitations,
Dr. Cruz stated: “As of this time she is unable to perform her
usual job.

I am not able to predict when she may resume usual

employment.”
Information

was

also

submitted

by

Wittmann’s

regarding her job description and duties as an attorney.

employer
It was

noted that an attorney at Baker Donelson must possess the following
skills and abilities:
1. Ability to concentrate and pay close attention to
detail for up to 100% of work time.
2. Analytical skills necessary to conduct complex and
detailed analysis of legal matters.
. . .
6. Work requires more than 40 hours per week to perform
the essential duties of the position.
7. Must be able to maintain regular attendance to meet
client and Firm’s needs.

3

Based

upon

this

information,

Unum

concluded

that

Wittmann’s

occupation was “performed at a sedentary exertional demand level
and require[d] frequent concentration/attention to detail/focus
and multi-tasking.”
Unum

next

conducted

an

Wittmann on April 29, 2014.

initial

telephone

interview

with

Wittmann advised that she had been

diagnosed with pericarditis in November of 2012, after which she
began to experience “horrible fatigue and muscle and joint pain.”
She further reported that, some days, the pain was so great that
she could not get up and that she did not get out of bed the day
before the interview.
Thereafter, Unum obtained Wittmann’s medical records from her
treating physicians.

These records were initially reviewed by

Nora Gregory, a registered nurse, on July 28, 2014.

Gregory noted

that Wittmann had undergone an extensive workup at the Mayo Clinic
in

February

of

2013,

during

which

Dr.

Timothy

Niewold,

a

rheumatologist, reported: “While she has a number of tender points,
I am not completely convinced of a diagnosis of fibromyalgia.”
Gregory

also

cardiologist,

noted
and

abnormalities noted.

that

Wittmann

had

gastroenterologist

seen
with

a

pulmonologist,
no

significant

She also reviewed records submitted by Dr.

Davis, Wittmann’s treating rheumatologist, who noted diagnoses of
fibromyalgia, arthralgia, Raynaud phenomenon, and celiac disease.
Ms. Gregory noted that Dr. Davis did not specifically mention
4

examining

tender

fibromyalgia,

but

points

to

evaluate

rather,

stated

a

possible

that

diagnosis

Wittmann

of

“exhibits

tenderness” and was “tender over all myofascial trigger points.” 2
Records from Dr. Chester, Wittmann’s psychiatrist, were also
reviewed.

Wittmann saw Dr. Chester regularly for her Attention

Deficit Disorder, which he treated with Adderall.

An office visit

note dated May 7, 2014 indicated that Wittmann complained of
fatigue, joint pain, and muscle spasms, and that Dr. Chester
recommended Wellbutrin, Elavil, or Pamelor.

Ms. Gregory also

reviewed records from the office of Dr. Robert Lizana and Dr.
Robert Kelly.

These notes reflected that Wittmann was treated for

chest pain and “all over muscle pain.”
On

July

clarification
attorney.

31,

2014,

regarding

Unum

wrote

Wittmann’s

to

Dr.

Davis

functional

to

capacity

request
as

an

When asked whether Wittmann was able to perform the

occupational demands of her job on a full-time basis, Dr. Davis
stated that he was “uncertain.”

However, he went to explain that

“she has chronic pain and fatigue that likely impair her ability
to focus for 8 hours on complicated issues.”

2

Ms. Gregory did not, however, review the April 24, 2013 report
submitted by Dr. Austin Fraser, a resident who practices in Dr.
Davis’s office.
After examining Wittmann, Dr. Fraser reported
that she exhibited tenderness over all 18 tender points
(“Fibromuscular exam: 18/18”).
He further noted that Wittmann
“[a]ppears to have fibromyalgia.”
5

In addition, Dr. Tony Smith, an Unum physician board certified
in Family Medicine, attempted to contact Dr. Cruz in August of
2014

to

discuss

Wittmann’s

condition.

After

several

failed

attempts to reach Dr. Cruz by telephone, Dr. Smith wrote to him on
August 4, 2014, inquiring as to what medical conditions precluded
Wittmann from returning to work full-time.

By letter dated August

21, 2014, Unum advised Wittmann that it would pay benefits under
a reservation of rights pending further evaluation of her claim;
at that time, Unum was still attempting to contact Dr. Cruz and
Dr.

Davis

for

clarification

regarding

Wittmann’s

functional

capacity. 3
On September 12, 2014, Dr. Davis responded to additional
questions posed by Unum’s Dr. Smith.

Dr. Davis stated that

Wittmann’s fatigue and pain precluded her return to work but
indicated that he had placed no work restrictions on her and was
unaware of any objective data supporting her alleged cognitive
deficits.

Specifically, Dr. Davis answered the questions as

follows:
Q: Are you currently giving Ms. Wittmann any specific
work restrictions?
A: No.

3

Although the record does not reflect the contents of the
communication between Dr. Smith and Dr. Cruz, the record does
contain notes submitted by Dr. Cruz concerning Dr. Smith’s efforts
to reach him. In those notes, Dr. Cruz remarks that “the problem
is also cognitive.”
6

Q: What medical condition(s) is currently precluding Ms.
Wittmann from returning to work full time?
A: Severe fatigue with intermittent lightheadedness,
diffuse musculoskeletal pain and tenderness.
Q: What is the medical etiology for the reported pain
and fatigue?
A:
Unknown
–
carries
descriptive
diagnoses
of
fibromyalgia and chronic fatigue.
Q: Please discuss/list if applicable, the medical data
currently available that supports the reported cognitive
deficits.
A: I am not aware of objective data or neurological
testing – cognitive problems are patient reported.
Q: Please indicate the time period in which you plan to
release Ms. Wittmann to return to work full time.
A: N/A. Consider functional capacity assessment and
neuropsych testing.
Dr. Smith then conducted a medical review of Wittmann’s file
on September 24, 2014.
extensive

medical

He noted that Wittmann had undergone

evaluations

and

abnormalities had been identified.

that

no

significant

He further noted that it was

unclear why she remained off work and indicated that he could find
no medical data within the available medical records to support
cognitive deficits.
restrictions

and

Ultimately, Dr. Smith concluded that the
limitations

noted

by

Wittmann’s

treating

physicians were not supported by the medical records before him,
which revealed no physical or cognitive deficits.
Because

of

the

disagreement

between

Dr.

Smith,

Unum’s

physician, and Dr. Cruz, Wittmann’s internist, as to whether
medical limitations precluded Wittmann from working, Unum referred

7

the file to another of its consulting physicians, Dr. James Bress.
After conducting his own review of the file, Dr. Bress, who is
board certified in internal medicine, agreed that there was no
support in the medical records that any restrictions or limitations
prevented Wittmann from being able to perform the duties of her
occupation.

He noted that, despite Dr. Cruz’s statement that

Wittmann suffered from cognitive impairment, there was no evidence
in the medical records of cognitive testing.

He further mentioned

that the medical records from Wittmann’s treating physicians did
not contain evidence describing tender point testing of specific
areas to support a diagnosis of fibromyalgia, and that Dr. Davis
provided no restrictions or limitations.
By letter dated October 3, 2014, Unum denied Wittmann’s claim
for long-term disability benefits because it had determined that
she was able to perform the duties of her occupation as an
attorney.

In providing Wittmann with “Information That Supports

Our Decision,” Unum’s October 3, 2014 claim denial letter states:
To assist us in our evaluation we obtained records from
Dr. William Davis, Dr. Robert Lizana/Dr. Robert Kelly,
Dr. Charles Chester, Dr. Frank Cruz, and the Mayo Clinic.
. . .
It has been medically opined that you have undergone an
extensive medical evaluation and testing to date with no
significant abnormalities identified.
Further, it is
opined that no medical data within the currently
available records supports cognitive deficits.
We asked a physician, board-certified in family
medicine, to review your file. The physician concluded
that your records do not support Dr. Cruz’s opinion that
8

you are unable to work . . . . Since the physician did
not agree with Dr. Cruz’s opinion about your functional
capacity, the physician contacted Dr. Cruz to gain a
better understanding of his opinion.
Despite their
communication, the reviewing physician and Dr. Cruz were
not able to reach an agreement about the extent of your
functional capacity.
At that time, in order to obtain a second opinion, a
physician board-certified in internal medicine reviewed
your file. The second reviewing physician agreed with
the conclusion of the first reviewing physician about
your functional capacity. The following was observed:
• You have undergone an extensive medical evaluation
and
testing
to
date
with
no
significant
abnormalities identified.
. . .
• There has been no evidence of any tender point
testing to support a diagnosis of Fibromyalgia.
All testing has been normal.
There has been no
evidence of pain behavior during any office visits.
That letter also advised Wittmann of her right to request an
appeal, which she exercised on January 26, 2015.

In her appeal

letter, Wittmann noted that Unum overlooked evidence of tender
point

testing

misconstrued

submitted

Dr.

Davis’s

by

Dr.

Davis

responses

to

and
Dr.

Dr.

Lizana,

Smith’s

and

questions.

Wittmann also stated that she did not dispute that she could engage
in sedentary employment; however, she asserted that she was unable
to focus and concentrate due to her fatigue and pain.

Finally,

Wittmann submitted a letter dated December 10, 2014 from Dr.
Chester, her psychiatrist.

Dr. Chester stated that Wittmann had

been diagnosed with fibromyalgia, which caused chronic fatigue and
pain, and impacted her ability to concentrate and remember details.
Dr. Chester went on to conclude: “I do not believe she has the
9

capacity to function in her job as a lawyer because of the fatigue,
the pain, and the lack of ability to concentrate.”
On April 4, 2015, Dr. Chris Bartlett, an Unum consultant board
certified in family medicine, conducted an “appeal review” of
Wittmann’s file.

Dr. Bartlett noted that Wittmann “may or may not

have Fibromyalgia, but available data does not support functional
impairment

from

her

fatigue,

problems.”

pain,

and

concentration/memory

He further stated:

Regardless of the presence or absence of FMS, however,
the insured’s functional capacity is what matters. FMS
is not in and of itself necessarily a disabling diagnosis
and many people with FMS work full-time, controlling
their symptoms with exercise and medications.
As to Wittmann’s functional capacity, Dr. Bartlett noted that the
“treating

physicians’

opinions

[regarding]

lack

of

full-time

sedentary work capacity were overly restrictive based on the
results of physical exams and the absence of data or testing
showing impairment from fatigue, weakness or cognitive deficits.”
He further noted that Wittmann had brought over 100 pages of
medical information with her to the Mayo Clinic, which she was
able to discuss with the specialists, and that she was able to
draft a detailed, extensive appeal letter.

Dr. Bartlett also

reached out to Dr. Chester to share his opinion that the medical
records did not support a conclusion that Wittmann’s fatigue,
memory, focus, or cognitive problems precluded her full-time work
capacity as an attorney.

In response, Dr. Chester reported a
10

diagnosis

of

Somatic

Symptom

Disorder

with

predominant

pain,

persistent and opined that Wittmann did not retain functional
capacity for full-time work as an attorney.
that

her

functional

capacity

was

Dr. Chester explained

significantly

impacted

by

physical problems and psychological sequalae (especially lack of
focus), and he offered to order neuropsychological testing.

Dr.

Bartlett concluded that the new information provided by Dr. Chester
did not change his prior opinion that the medical records contained
no

documentation

of

observed

cognitive

problems

that

would

preclude functional capacity for full time work as an attorney.
By letter dated May 29, 2015, Unum advised Wittmann that it
was upholding its determination that she was not entitled to
benefits.
remarked

In
that

difficulty
physician

summarizing
her

[we]re

Wittmann’s

“reports
out

of

observations,

available for [] review.”

of

pain,

proportion

medical
fatigue,
to

diagnostic

records,

the

tests,

and

cognitive

physical
and

lab

Unum

exams,
studies

Unum further stated that she may have

fibromyalgia based upon her reports of widespread unexplained pain
but that the relevant question was whether her sickness caused her
to have limitations on her functioning and restrictions on her
activities.
other

According to Unum, physicians at the Mayo Clinic and

local

confusion,

specialists

or

cognitive

had

documented

problems

and

no

observed

described

her

fatigue,
as

“cheerful,” looking “healthy,” and being “very comfortable.”
11

being
Unum

further explained that, because the available medical records did
not contain objective documentation of cognitive problems, it
could not conclude that memory, focus, or other cognitive issues
precluded her from performing her occupation as an attorney.

Unum

also stated that, “[w]hile there is no definitive test for the
presence or absence of fibromyalgia, there is neuropsychiatric
testing which can quantify both cognitive deficits and the presence
or absence of psychiatric conditions.”

Because Wittmann indicated

that she had undergone neuropsychological testing, Unum advised
that it would consider additional information if submitted by June
25, 2015.
Unum subsequently received correspondence from Wittmann on
June

22,

2015,

enclosing

the

following

information:

(1)

a

neuropsychological evaluation performed by Dr. Michael Chafetz,
Ph.D in Neuropsychology; (2) the results of a sleep study; and (3)
a printout of an Aquatic Home Exercise Program provided by Ochsner.
After performing neuropsychological testing, Dr. Chafetz noted the
follow impressions:
Anne Wittmann is a 55 year old attorney referred for
evaluation for a recent history of memory, confusion,
and word finding problems . . . . She has been diagnosed
with fibromyalgia, and she has a prior diagnosis of ADHD
for which she has been treated.
The current
neuropsychological
findings
show
generally
intact
abilities but are highly variable even within domains.
For example, she is showing widely varying attentional
abilities, but she demonstrates strong attention and
concentration on tasks that have a high requirement for
sustained attention and concentration.
Her executive
12

abilities and problem solving are strong, and she is
showing quick and agile processing speed.
Her memory
processes are again variable, but she is not showing
memory dysfunction. Language and reading abilities are
generally strong and at expected levels. She does not
have pronounced deficits in any neurocognitive domain.
While she is showing occasional attentional lapses, or
cognitive inefficiencies, these may be at least in part
attributable to a prior history of ADHD that is primarily
attentional in nature. However, she is also fatigued,
and is suffering from depression and poor sleep. The
poor sleep itself likely exacerbates her pain condition
and her depressive symptomology, making her more
distractible.
In this, she is likely in a negative
spiral. Her reported memory and concentration problems,
and problems with “disconnecting” are not borne out by
testing or a history of neuropathology.
Emphasis added.

Dr. Chafetz concluded by listing the following

diagnostic considerations: History of ADHD, Insomnia, Depressive
Disorder,

History

of

Fibromyalgia,

Neck

Injury

and

Surgery,

Chronic Fatigue.
Dr. Bartlett reviewed this new information but stated that it
did not change his opinion regarding Wittmann’s capacity to perform
her occupation as an attorney.

He also noted that the diagnoses

of depression and Somatic Symptom Disorder, as described by Dr.
Chester,

would

psychologist.
Zimmerman

be

reviewed

by

Dr.

Jana

Zimmerman,

Unum’s

In reviewing Wittmann’s file on July 13, 2015, Dr.

concluded

that

“the

totality

of

the

information

indicated a psychological contribution inclusive of depression and
somatic focus but not impairment as of 10/3/14 and beyond.”

She

noted that, as reported by Dr. Chafetz, the neuropsychological

13

test

results

did

not

support

Wittmann’s

reported

memory

and

concentration problems.
By letter dated July 20, 2015, Unum informed Wittmann that it
was again upholding its decision because the “results d[id] not
support reported memory and concentration problems and/or problems
with disconnection or a history of neuropathology as Dr. Chafetz
explained.”

That letter also advised:

Unum Life Insurance Company of America has completed our
review of your appeal. No further review is available
and your appeal is now closed.
. . .
If you disagree with this decision, you have a right to
bring a civil suit under section 502(a) of the Employee
Retirement Income Security Act of 1974.
On October 24, 2016, before filing suit, Wittmann submitted
to

Unum

a

disability

determination

by

the

Social

Security

Administration and invited Unum to reconsider its decision once
again.

Enclosed with the letter was correspondence from the SSA

dated October 3, 2015, informing Wittmann of her entitlement to
Social Security Disability Income benefits.
correspondence

did

not

explain

the

basis

for

Although the SSA
the

SSA

award,

Wittmann provided Unum with a copy of a Consultative Psychological
Evaluation Report prepared by board-certified psychologist, Dr.
William Fowler, in connection with her claim for SSDI benefits.
Dr. Fowler’s report summarized Wittmann’s self-reported complaints

14

of muscle and joint pain, fatigue, and forgetfulness.

In terms of

Wittmann’s mood, Dr. Fowler stated:
She reports that her doctors tell her that she is
depressed although she does not feel depressed.
She
reports limited energy however.
There are reportedly
days that she makes herself get out of bed and then sits
down and cannot seem to get up from the chair.
She
reportedly sometimes starts but cannot bring herself to
finish tasks. She denies crying spells. She does report
impaired attention and concentration.
She rates her
current depression as a 5 or 6/10. She does present as
dysphoric and worrisome today.
Dr. Fowler further noted:
She does report some periods of forgetfulness and
confusion but today shows fairly good ability to carry
out cognitive tasks of memory, although some focus and
persistent issues are noted.
She does show what is
likely some decline in attention and concentration.
Persistence appears shortened and pace is slow. Given
the cognitive demands of her profession, it does seem
that she would currently have some difficulty performing
work related tasks, including ability to focus, read,
retain, analyze, and recall information. Complaints of
lowered energy, pain, and fibromyalgia may render her
unable to perform even simple job tasks in a stable,
reliable manner.
Emphasis added.

Dr. Fowler concluded by noting the following

diagnostic impressions:
Major Depressive Episode
Anxiety NOS
Rule out pseudo dementia secondary to depression
On October 31, 2016, Unum advised that it would consider the new
information provided.

Thereafter, Unum made several attempts to

obtain the SSA file but ultimately never received it.

After

reviewing Dr. Fowler’s report on January 17, 2017, Dr. Zimmerman

15

maintained her opinion that the evidence indicated a psychological
contribution but not impairment.
not

mention

reviewing

She noted that Dr. Fowler did

Wittmann’s

medical

records

neuropsychological test results from Dr. Chaftez.

or

the

She further

noted that the limited information available to Dr. Fowler was not
sufficient to support his “psychiatric diagnostic impressions or
[for him to] rule in or out cognitive impairment from pseudodementia or any other [behavioral health] or physical etiology.”
By letter dated January 24, 2017, Unum granted Wittmann mental
illness disability benefits from June 30, 2014 through June 30,
2016 and stated that it would investigate further to determine her
entitlement to benefits beyond 24 months for a disability unrelated
to mental illness. 4

Unum explained its decision to Wittmann’s

attorney as follows:
You supplied a copy of your client’s Social Security
Disability award letter dated October 3, 2015, and a
copy of the independent exam with Dr. Fowler,
psychologist.
Dr. Fowler noted Major Depressive
4

Pursuant to the Plan, benefits are payable through the earliest
of the participant’s expected retirement date or the cessation of
the disability.
However, “[t]he lifetime cumulative maximum
benefit period for all disabilities due to mental illness is 24
months.”
The Plan defines “mental illness” as
a psychiatric or psychological condition classified in
the Diagnostic and Statistical Manual or Mental Health
Disorders (DSM), published by the American Psychiatric
Association, most current as of the start of a
disability. Such disorders include, but are not limited
to, psychotic, emotional or behavioral disorders, or
disorders relatable to stress.
16

Episodes, Anxiety NOS and rule out pseudo-dementia
secondary to depression.
As you know, we have not
received a copy of her Social Security claim file as
requested.
In giving significant weight to the Social Security
Administrator’s
finding
of
disability,
we
have
determined benefits are payable through June 30, 2015
for Ms. Wittman’s mental illness disability.
In response, Wittmann’s attorney advised Unum that Wittmann
had not made a claim for a disability due to mental illness and
that the reports of Dr. Fowler and Dr. Chafetz did not support the
existence of an impairing psychiatric condition.

The letter also

indicated that Wittmann would provide updated medical records.

On

May 12, 2017, Dr. Chester, Wittmann’s psychiatrist, submitted
updated records, along with a cover sheet stating: “FYI: I hope
you are also getting info from ALL HER OTHER MD’S.”

Among the

records submitted by Dr. Chester include a May 22, 2015 office
visit note in which he opined that Dr. Chafetz’s neuropsychological
testing would “probably not help her to be ‘disabled’” and a July
20, 2016 note in which he reported: “Fatigue is worse.
a lot of pain.
letter

from

She sleeps all the time.”

Susan

Costa,

Wittmann’s

Still in

Unum also received a

massage

therapist,

who

reported that Wittmann’s muscles “are contracted from head to toe”
and that the “fascia is thick and congested,” which “is consistent
with a client that would have an acute muscle injury or chronic
muscle instability.”

17

To further assess Wittmann’s alleged inability to work due to
a physical condition, Unum retained Hub Enterprises, Inc. to
surveil Wittmann on Wednesday, July 12, 2017 and Thursday, July
13, 2017 from the early morning through the afternoon hours.
According to the investigator’s report, Wittmann was observed
receiving a package from a delivery person while standing in her
doorway and walking onto her patio to move furniture pillows.

It

was also noted that Wittmann did not leave her residence during
either surveillance period.
The updated information was reviewed by Dr. Smith on July 25,
2017 and Dr. Bress on July 29, 2017.

Both physicians concluded

that the updated records did not support specific functional or
cognitive defects or lack of full-time sedentary work capacity.
By letter dated July 31, 2017, Unum notified Wittmann’s attorney
that Wittmann was not entitled to additional benefits because there
was “no evidence for any physical/organic medical problems which
would preclude full-time Sedentary work from June 30, 2016 to the
present.”

This letter did not discuss the results of Unum’s

surveillance.
On September 22, 2017, Wittmann sued Unum for the denial of
her claim for physical disability benefits under her long-term
disability plan, pursuant to Section 502(a)(1)(B) of the Employee
Retirement Income Act of 1974.

29 U.S.C. § 1132(a)(1)(B).

Four

months later, by letter dated February 25, 2018, Wittmann’s counsel
18

requested an administrative appeal of Unum’s July 2017 decision.
Because the request was made within the requisite 180-day appeal
period, Unum agreed to consider the appeal; it then filed a motion
to dismiss this lawsuit for failure to exhaust administrative
remedies, or in the alternative, to stay the proceedings pending
the exhaustion of administrative remedies.
the

opportunity

to

consider

that

Before the Court had

motion,

Unum

completed

its

administrative review, rendering the motion moot. 5
Several months later, Wittmann moved to strike from the
administrative record all documents generated after her complaint
was filed on September 22, 2017, and Unum moved for partial summary
judgment

that

all

documents

associated

with

Wittmann’s

post-

litigation administrative appeal are part of the administrative
record, or in the alternative, for summary judgment dismissing
Wittmann’s suit for failure to exhaust administrative remedies.
In granting Wittmann’s motion and denying Unum’s, this Court stated
that Wittmann exhausted her administrative remedies as of July 20,
2015, and that no documents generated after September 22, 2017
would

be

considered

in

determining

5

whether

Unum

abused

its

In considering the post-lawsuit administrative appeal, Unum
retained an independent rheumatologist to review new medical
information submitted by Wittmann.
Thereafter, Unum upheld its
determination that Wittmann was not entitled to benefits exceeding
24 months for a disability unrelated to mental illness.
19

discretion in denying her claim for long-term disability benefits.
See Order & Reasons dtd. 10/31/18.
Thereafter, Wittmann moved to supplement the administrative
record with the Unum Benefits Center Claims Manual and for summary
judgment that Unum acted arbitrarily and capriciously in denying
her claim for long-term disability benefits, such that she is
entitled to an award of benefits, as well as attorney’s fees and
costs.

Not to be outdone, Unum filed its own motion for summary

judgment on the administrative record and moved to strike the
expert report of Dr. Davis, as well as all other exhibits not
contained within the administrative record, and to remove this
matter from the Court’s trial docket to be decided on the parties’
briefs.

In response, on November 30, 2018, the Court removed this

matter from its trial docket to be decided upon the parties’ crossmotions for summary judgment.
Most recently, in its Order and Reasons dated December 13,
2018, this Court granted Wittmann’s motion to supplement the
administrative record with the Unum Benefits Center Claims Manual
and denied Unum’s motion to strike.
reasoned

that

the

Claims

Manual

In so doing, the Court

properly

forms

part

of

the

administrative record because Unum had access to and an opportunity
to consider its own manual during its pre-litigation review of
Wittmann’s claim, that Dr. Davis’s report would assist the court
in understanding medical terms and procedures contained within
20

administrative record, and that all other exhibits highlighted by
Wittmann fall within at least one of the five exceptions to the
general rule that judicial review in an ERISA action is limited to
the administrative record.

The Court also set forth a briefing

schedule for the parties’ cross-motions for summary judgment and
ordered Wittmann to submit supplemental briefing as to how the
admission of the Claims Manual, training documents, and Dr. Davis’s
expert report impacts the analysis of whether Unum abused its
discretion in denying her claim for long-term disability benefits.
Both sides have submitted supplemental memorandum in support
of their respective positions, and the Court now considers their
cross-motions for summary relief.
I.
A.
“Standard summary judgment rules control in ERISA cases.”
Ramirez v. United of Omaha Life Ins. Co., 872 F.3d 721, 725 (5th
Cir. 2017) (citations omitted).
56

instructs

that

summary

Federal Rule of Civil Procedure

judgment

is

proper

if

the

record

discloses no genuine dispute as to any material fact such that the
moving party is entitled to judgment as a matter of law.

No

genuine dispute of fact exists if the record taken as a whole could
not lead a rational trier of fact to find for the non-moving party.
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986).

A genuine dispute of fact exists only “if the
21

evidence is such that a reasonable jury could return a verdict for
the non-moving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986).
The mere argued existence of a factual dispute does not defeat
an otherwise properly supported motion.

See id.

In this regard,

the non-moving party must do more than simply deny the allegations
raised by the moving party.

See Donaghey v. Ocean Drilling &

Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992).

Rather, he

must come forward with competent evidence, such as affidavits or
depositions, to buttress his claims.

Id.

Hearsay evidence and

unsworn documents that cannot be presented in a form that would be
admissible

in

evidence

opposing evidence.

at

trial

do

not

qualify

as

competent

Martin v. John W. Stone Oil Distrib., Inc.,

819 F.2d 547, 549 (5th Cir. 1987); Fed. R. Civ. P. 56(c)(2).
“[T]he

nonmoving

conclusory

party

allegations,

scintilla of evidence.”

cannot

defeat

unsubstantiated

summary

judgment

assertions,

or

with

only

a

Hathaway v. Bazany, 507 F.3d 312, 319

(5th Cir. 2007) (internal quotation marks and citation omitted).
Ultimately, “[i]f the evidence is merely colorable . . . or is not
significantly

probative,”

summary

judgment

is

appropriate.

Anderson, 477 U.S. at 249 (citations omitted); King v. Dogan, 31
F.3d 344, 346 (5th Cir. 1994) (“Unauthenticated documents are
improper as summary judgment evidence.”).

22

Summary judgment is also proper if the party opposing the
motion fails to establish an essential element of his case. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In deciding
whether a fact issue exists, courts must view the facts and draw
reasonable inferences in the light most favorable to the nonmoving party.

Scott v. Harris, 550 U.S. 372, 378 (2007).

Although

the Court must “resolve factual controversies in favor of the
nonmoving party,” it must do so “only where there is an actual
controversy, that is, when both parties have submitted evidence of
contradictory facts.”

Antoine v. First Student, Inc., 713 F.3d

824, 830 (5th Cir. 2013) (internal quotation marks and citation
omitted).
B.
ERISA

confers

jurisdiction

on

federal

courts

to

review

benefit determinations by fiduciaries or plan administrators.
U.S.C. § 1132(a)(1)(B).

29

In other words, section 1132 of ERISA

gives a plan participant standing to bring suit in federal district
court “to recover benefits due . . . under the terms of [the] plan,
to enforce . . . rights under the terms of the plan, or to clarify
. . . rights to future benefits under the terms of the plan.”
The

standard

of

judicial

review

afforded

Id.

benefits

determinations depends upon whether a plan administrator is vested
with discretionary authority.
determinations de novo.

Courts generally review benefit

See Firestone Tire & Rubber Co. v. Bruch,
23

489 U.S. 101, 115 (1989); Conkright v. Frommert, 559 U.S. 506, 512
(2010). But “[w]hen an ERISA plan lawfully delegates discretionary
authority to the plan administrator, a court reviewing the denial
of a claim is limited to assessing whether the administrator abused
that discretion.”

Ariana M. v. Humana Health Plan of Tex., Inc.,

884 F.3d 246 (5th Cir. 2018) (en banc); see Anderson v. Cytec
Indus., Inc., 619 F.3d 505, 512 (5th Cir. 2010) (When a benefits
plan “gives the administrator or fiduciary discretionary authority
to determine eligibility for benefits or to construe the terms of
the plan,” the reviewing court applies an abuse of discretion
standard to the plan administrator’s decision to deny benefits.).
Thus,

where,

as

here, 6

“an

administrator

has

discretionary

authority with respect to the decision at issue, the standard of
review [is] abuse of discretion.”

See White v. Life Ins. Co. of

N. Am., 892 F.3d 762, 767 (5th Cir. 2018) (quoting Conn. Gen. Life
Ins. Co. v. Humble Surgical Hosp., LLC, 878 F.3d 478, 483 (5th
Cir. 2017) (citations omitted)).
decision

to

deny

Wittmann’s

Accordingly, in reviewing Unum’s
claim

for

long-term

disability

benefits, this Court is limited to determining whether Unum abused
its discretion.

Id.

The deference inherent in an abuse of discretion standard of
review means that “no court may substitute its own judgment for

6

Here, it is undisputed that the Plan vests Unum with discretionary
authority to make benefits determinations.
24

that of the plan administrator.”

McCorkle v. Metro. Life Ins.

Co., 757 F.3d 452, 457-58 (5th Cir. 2014) (citations omitted).
Indeed, the Fifth Circuit has cautioned district courts that “they
are serving in an appellate role . . . and their latitude in that
capacity is very narrowly restricted by ERISA and its regulations.”
Id. at 456-57.
Under

the

abuse

of

discretion

standard,

the

Court

must

determine whether the administrator's decision was “arbitrary and
capricious.”

Anderson v. Cytec Indus., Inc., 619 F.3d 505, 512

(5th Cir. 2010) (per curiam).

A decision is arbitrary only if

made “without a rational connection between the known facts and
the

decision

or

between

the

found

facts

and

the

evidence.”

Bellaire Gen. Hosp. v. Blue Cross Blue Shield, 97 F.3d 882, 828
(5th

Cir.

1996).

administrator’s

Moreover,

decision

need

the
not

Court’s
be

“review

particularly

of

complex

the
or

technical; it need only assure that the administrator’s decision
fall[s] somewhere on a continuum of reasonableness—even if on the
low end.”

Corry v. Liberty Life Assur. Co., 499 F.3d 389, 398

(5th Cir. 2007) (quotation omitted).

As a factor in determining

whether Unum has abused its discretion in denying benefits, the
Court must also consider Unum’s conflict of interest that arises
from its dual role in evaluating claims for benefits and paying
benefits.

See Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 108

(2008); see also Holland v. Int’l Paper Co. Retirement Plan, 576
25

F.3d 240, 247 n.3 (5th Cir. 2009) (noting that the Supreme Court
in Glenn “directly repudiated the application of any form of
heightened standard of review to claims denials in which a conflict
of interest is present”).

The significance of this factor is

determined on a case by case basis; a structural conflict of
interest
should
prove
more
important
(perhaps
of
great
importance) where circumstances suggest a higher
likelihood that it affected the benefits decision,
including, but not limited to, cases where an insurance
company administrator has a history of biased claims
administration. It should prove less important (perhaps
to the vanishing point) where the administrator has
taken active steps to reduce potential bias and to
promote accuracy, for example, by walling off the claim
administrators from those interested in firm finances,
or
by
imposing
management
checks
that
penalize
inaccurate decisionmaking irrespective of whom the
inaccuracy benefits.
Glenn, 554 U.S. at 108, 117.

“When a claimant . . . does not come

forward with any evidence that the conflict of interest influenced
the . . . benefits decision, the court gives this factor little or
no weight.”

McCorkle, 757 F.3d at 458 n.17 (citations omitted).

On the other hand, “a reviewing court may give more weight to a
conflict of interest, where the circumstances surrounding the plan
administrator’s decision suggest ‘procedural unreasonableness.’”
Schexnayder v. Hartford Life & Accident Ins. Co., 600 F.3d 465,
469 (5th Cir. 2010) (quoting Glenn, 554 U.S. at 118). 7

7

Wittmann asks this Court to apply a “moderately heightened level
of scrutiny,” in light of Unum’s conflict of interest and
26

Whether

the

administrator's

decision

substantial evidence is the next inquiry.

is

supported

by

Anderson, 619 F.3d at

512 (citation omitted) (“In addition to not being arbitrary and
capricious, the plan administrator’s decision to deny benefits
must be supported by substantial evidence.”); Truitt v. Unum Life
Ins. Co. of America, 729 F.3d 497, 509 (5th Cir. 2013) (where the
parties did not dispute that there was substantial evidence to

procedural unreasonableness. To support this contention, Wittmann
points to Robinson v. Aetna Life Insurance Co., 443 F.3d 389, 396
(5th Cir. 2006), in which the Fifth Circuit applied a “modified
abuse of discretion standard” because of the administrator’s
conflict of interest in serving both as the administrator and
insurer under the plan. Specifically, the Robinson court noted
that a conflicted administrator “is ‘entitled to all but a modicum’
of the deference afforded to unconflicted administrators.”
Id.
(quoting Lain v. UNUM Life Insurance, 279 F.3d 337, 343 (5th Cir.
2002)). Wittmann also invokes Lamanna v. Special Agents Mutual
Benefits Association, 546 F. Supp. 2d 261, 288 (W.D. Pa. 2008), in
which the U.S. District Court for the Western District of
Pennsylvania perceived within the administrative record “an
inexplicable chasm between the opinions of Plaintiff’s own
physicians and those who performed IMEs at [the administrator’s]
request.”
The Lamanna court went on “to apply a moderately
heightened level of scrutiny,” in light of the administrator’s
structural conflict of interest, coupled with numerous procedural
irregularities in handling the claim. Id. Because Unum operates
under a similar structural conflict of interest and has allegedly
acted unreasonably in a procedural sense, Wittmann invites this
Court to apply a moderately heightened level of scrutiny in
reviewing Unum’s handling of her claim.
But, binding precedent post-dating Robinson precludes this
Court from acceding to Wittmann’s request. See Metro. Life Ins.
Co. v. Glenn, 554 U.S. 105, 108 (2008); see also Holland v. Int’l
Paper Co. Retirement Plan, 576 F.3d 240, 247 n.3 (5th Cir. 2009).
As such, the Court will consider the conflict of interest that
arises from Unum’s dual role in evaluating claims and paying
benefits as a factor in determining whether Unum abused its
discretion in denying Wittmann’s long-term disability claim.
27

support benefits decision, the court need only consider whether
the

plan

denying

administrator

“otherwise

benefits). 8

abused

“Substantial

its

evidence

discretion”

is

more

than

in
a

scintilla, less than a preponderance, and is such relevant evidence
as

a

reasonable

conclusion.”

mind

might

accept

as

adequate

to

support

a

Corry, 499 F.3d at 398 (citations omitted).

Given the deference this Court owes the plan administrator,
Wittmann bears the burden to prove that the denial of benefits was
arbitrary and capricious or that substantial evidence does not
support Unum’s decision.

White, 892 F.3d at 770 (citing George v.

Reliance Standard Life Ins. Co., 776 F.3d 349, 352 (5th Cir.
2015)); Anderson, 619 F.3d at 512-13.
II.
Wittmann

contends

that

Unum

arbitrarily

and

capriciously

denied her claim for long-term disability benefits because its
decisions

contravene

the

evidence,

ERISA’s

claims-handling

procedures, and Unum’s own internal documents.

Along the way,

Wittmann repeatedly takes issue with Unum’s refusal to credit

8

The focus of the substantial evidence inquiry is on the plan
administrator’s decision; it is irrelevant to the reviewing court
whether substantial evidence exists to support a plaintiff’s
claim. See Ellis v. Liberty Life Assur. Co., 394 F.3d 262, 273
(5th Cir. 2004) (rejecting the plaintiff’s argument that
substantial evidence supported her claim of total disability as
“misapprehending the burden of proof under ERISA” and noting that
“[w]e are aware of no law that requires a district court to rule
in favor of an ERISA plaintiff merely because he has supported his
claim with substantial evidence, or even with a preponderance.”).
28

evidence favorable to her, the shifting bases for its decisions,
and its structural conflict of interest.

Unum counters that it

did not abuse its discretion in determining that Wittmann failed
to prove she is disabled because of fibromyalgia, or in providing
her with 24 months of benefits due to a mental illness, because
both decisions were based upon substantial evidence.
(1)

Failure to Credit Opinions of Treating Physicians &
Complaints of Subjective Symptoms

The Court first considers Wittmann’s contention that Unum
abused its discretion by ignoring or arbitrarily refusing to credit
the

opinions

and

medical

evidence

submitted

her

treating

physicians, as well as her own subjective complaints of pain,
fatigue, and concentration problems.
a.
At the outset, Wittmann complains that, in initially denying
her claim in October of 2014, Unum wholly ignored evidence of
tender point testing submitted by her physicians. 9

In providing

9

According to Unum’s training materials and Dr. Davis’s report,
tender point testing is often used to diagnose fibromyalgia.
Unum’s “Fibromyalgia and Chronic Fatigue Syndromes Overview”
provides, in part:
FMS is a syndrome of widespread pain, decreased pain
threshold
(tenderness)
and
other
characteristic
symptoms.
The 1990 American College of Rheumatology
Criteria for the Classification of FMS is often used for
diagnoses:
• History of widespread pain
29

Wittmann with “Information That Supports Our Decision,” Unum’s
October 3, 2014 claim denial letter states:
The
second
reviewing
physician
agreed
with
the
conclusion of the first reviewing physician about your
functional capacity. The following was observed:
• You have undergone an extensive medical evaluation
and
testing
to
date
with
no
significant
abnormalities identified.
. . .
• There has been no evidence of any tender point
testing to support a diagnosis of Fibromyalgia.
All testing has been normal.
There has been no
evidence of pain behavior during any office visits.
Emphasis added.

However, Wittmann notes, on April 24, 2013, Dr.

Austin Fraser, a rheumatologist who practices in Dr. Davis’s
office, reported that she exhibited tenderness over all 18 tender

•

o Pain that occurs on both sides of the body,
above and below the waist and involving the
skull and vertebrae
o Present for greater than 3 months
Tender points
o Discreet tender spots located in the skeletal
muscle band
o At least 11 out of the 18 tender points should
be present

Since persons with FMS have no objective abnormalities
on physical examination and no abnormalities on
diagnostic testing, the diagnosis is based upon the
person’s subjective report and subjective response to
physical examination.
Rec. Doc. 126-10 at 000095-000096. Similarly, Dr. Davis explains
in his report that tender point testing is “performed by the
examining clinician placing normal pressure on the patient’s body
over the 18 designated points, and asking the patient to indicate
tenderness or observing the patient grimace or withdraw from the
painful pressure.” See Report of William E. Davis, Rec. Doc. 1222.
30

points (“Fibromuscular exam: 18/18”).
“[a]ppears to have fibromyalgia.”

He also indicated that she

Moreover, on January 3, 2014,

Dr. Davis – her treating rheumatologist – reported a diagnosis of
fibromyalgia

and

observed

that

myofascial trigger points.”

she

was

“[t]ender

over

all

Similarly, on March 21, 2014, Dr.

Lizana reported that “Palpation Evaluation Revealed Tenderness in
the: cervical Spine C2-C3; Thoracic Spine mid; Lumbar Spine L5, S1
and Sacro-Iliac Joint R/L.”
Unum counters that its reviewing physician was correct in
noting that the records of Wittmann’s treating physicians do not
discuss a physical examination of specific tender points and the
results

of

palpating

those

areas.

Although

this

contention

overlooks the reports of Dr. Fraser and Dr. Lizana, which do
discuss

the

palpation

of

tender

points,

this

discrepancy

nonetheless appears to be one without consequence.
Notably, the administrative record reveals that Wittmann’s
claim was not denied because she failed to meet the diagnostic
criteria for fibromyalgia.
denied

in

October

of

Rather, Wittmann’s claim was initially

2014,

in

part,

because

the

reviewing

physicians – Dr. Smith and Dr. Bress – found no objective evidence
in her medical records to support the conclusion that she could
not perform her occupational duties as an attorney.
Moreover, on appeal, Dr. Bartlett explicitly recognized that,
although

Wittmann

may

have

been
31

validly

diagnosed

with

fibromyalgia, the relevant issue is her capacity to perform her
occupational duties.

Specifically, Dr. Bartlett stated:

Regardless of the presence or absence of FMS, however,
the insured’s functional capacity is what matters. FMS
is not in and of itself necessarily a disabling diagnosis
and many people with FMS work full-time, controlling
their symptoms with exercise and medications. 10
Indeed, the plain terms of the Plan required Wittmann to provide
proof of your claim, . . . at your own expense, [which]
must show: . . . that your sickness or injury causes you
to have limitations on your functioning and restrictions
on your activities preventing you from performing the
material and substantial duties of your regular
occupation.
Emphasis added. And Unum denied her claim for long-term disability
benefits on the ground that she did not satisfy her burden of
proving that she could not perform her occupational duties as an
attorney.
In this regard, Wittmann contends that Unum acted arbitrarily
and capriciously because it credited neither the submissions of
her treating physicians, who opined that she was unable to work

10

In Burell v. Prudential Insurance Company of America, 820 F.3d
132 (5th Cir. 2016), the Fifth Circuit addressed a similar argument
advanced by a plaintiff that an insurer committed flagrant
procedural violations by ignoring a treating physician’s MS
diagnosis.
In determining that the insurer did not abuse its
discretion, the Fifth Circuit reasoned:
Regardless of any disagreement between Prudential’s
claim reviewers, a diagnosis of MS is not sufficient on
its own for Burell to qualify for long-term disability
benefits under the Plan. To qualify, Burell’s MS must
also render him “unable to perform the material and
substantial duties of [his] regular occupation.”
Id. at 138-39.
32

full-time as an attorney, nor her own subjective complaints of
pain and fatigue; instead, Unum cited an absence of objective
evidence

to

support

Wittmann’s

functional

limitations.

Unum

counters that it considered, but was not obliged to accept, the
conclusory opinions of Wittmann’s treating physicians that she was
“unable to work,” which were largely based upon her own subjective
complaints.
Importantly, the Supreme Court has held that administrators
are not required to embrace the opinions of treating physicians:
Plan administrators, of course, may not arbitrarily
refuse to credit a claimant’s reliable evidence,
including the opinions of a treating physician. But .
. . 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.
Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003).
Moreover, the Fifth Circuit has instructed that “it is the role of
the ERISA administrator, not the reviewing court, to weigh valid
medical opinions.”

Killen v. Reliance Std. Life Ins. Co., 776

F.3d 303, 309 (5th Cir. 2015).

Faced with arguments very similar

to those raised by Wittmann, the Fifth Circuit, in Corry v. Liberty
Life Assurance Co., 499 F.3d 389 (5th Cir. 2007), concluded that
an administrator did not abuse its discretion by terminating
benefits for a disability arising from fibromyalgia.

Although the

Corry court acknowledged that “the administrator did not accept
33

the opinion of [the claimant’s] experts as to the disabling effects
of her symptoms,” it emphasized that “given the three qualified
medical

experts

who

found

no

objective

medical

evidence

of

disability, the administrator . . . was not obliged to accept the
opinion of [the claimant’s] physicians.”
added).

Id. at 401 (emphasis

Courts in the Fifth Circuit have also recognized that a

“plan administrator does not abuse its discretion by making a
reasonable

request

for

some

objective

verification

of

the

functional limitations imposed by a medical . . . condition.”
Dudley v. Sedgwick Claims Mgmt. Servs., 495 F. App’x. 470, 475
(5th Cir. 2012) (quoting Anderson v. Cytec Indus., 619 F.3d 505,
514 (5th Cir. 2010) (per curiam)); see also Foster v. Principal
Life Ins. Co., 280 F. Supp. 3d 871, 901-02 (E.D. La. 2017) (Brown,
J.) (“[W]hile 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 . . . . Principal did not abuse its discretion in
concluding that Foster was not functionally impaired as a result
of the headaches.”); Keller v. AT&T Disability Income Plan, 664 F.
Supp. 2d 689, 702 (W.D. Tex. 2009) (“Furthermore, Sedgwick did not
abuse its discretion when it did not take Keller’s pain into
account because there was no objective evidence in Keller’s medical

34

records proving that the pain would prevent her from performing
her job duties.”). 11
In this case, Unum’s reviewing physicians indeed considered
the opinions of Wittmann’s treating physicians – Dr. Cruz, Dr.
Davis, and Dr. Chester - that Wittmann’s complaints of pain and
fatigue impaired her ability to concentrate and precluded her from
working as an attorney. 12

They simply found that those opinions

11

As to her contention that Unum abused its discretion by relying
on an absence of objective evidence to support her functional
limitations, Wittmann invokes Torgeson v. Unum Life Insurance Co.,
466 F. Supp. 2d 1096 (N.D. Iowa 2006).
In Torgeson, the U.S.
District Court for the Northern District of Iowa determined that
Unum abused its discretion by “demanding objective medical
evidence to support [the claimant’s] fibromyalgia and chronic
fatigue conditions . . . and limitations imposed by those
conditions” and “by rejecting the opinions of [] treating
physicians concerning appropriate restrictions and limitations
and, instead, relying on the opinions of reviewing physicians that
her restrictions and limitations were not supported by the record.”
Id. at 1131-32.
Wittmann’s reliance on Torgeson is misplaced because the
Fifth Circuit has held that an administrator does not abuse its
discretion in crediting the opinions of reviewing physicians that
no objective medical evidence supports the purported disabling
effects of a claimant’s fibromyalgia. See Corry, 499 F.3d at 401.
12 Dr. Cruz, Wittmann’s internist, provided an Attending Physician
Statement, in which he reported: “[A]s of this time she is unable
to perform her job. I am not able to predict when she may resume
usual employment.”
Dr. Davis, Wittmann’s treating rheumatologist, opined that
Wittmann “has chronic pain and fatigue that likely impair her
ability to focus for 8 hours on complicated issues.” In response
to additional questions posed by Dr. Smith, Dr. Davis stated that
Wittmann’s fatigue and musculoskeletal pain precluded her return
to work.
However, he indicated that he had placed no work
restrictions on Wittmann and was unaware of any objective data
supporting her alleged cognitive deficits.
He also noted that
neuropsychological testing and a functional capacity assessment
should be considered.
35

were unsupported by objective medical evidence.

In addition,

Unum’s physicians affirmatively reached out to Wittmann’s treating
physicians

in

an

attempt

to

understand

the

bases

for

their

opinions.

In initially reviewing Wittmann’s claim, Dr. Smith

reached out to Dr. Davis and Dr. Cruz, and on appeal, Dr. Bartlett
contacted

Dr.

Chester. 13

Because

the

opinions

of

Wittmann’s

Similarly, Dr. Chester, Wittmann’s psychiatrist, stated: “I
do not believe she has the capacity to function in her job as a
lawyer because of fatigue, pain and lack of ability to
concentrate.”
13 In contending that Unum failed to apply an appropriate level of
scientific analysis to the review of her medical information,
Wittmann alleges that Unum violated the following principles set
forth in the “Medical Information and Resources” section of the
Unum Benefits Center Claims Manual:
• An opinion from an AP/HCP [Attending Physician/Health
Care Provider] with a higher level of expertise,
specialization
or
training
is
generally
more
persuasive than the opinion from a provider with a
lesser
level
of
expertise,
specialization
or
training.
• The claim file should include the rationale for why,
or why not, alternative sources of information
gathering were pursued.
See “Medical Information and Resources,” Rec. Doc. 132-7.
Specifically, Wittmann contends that Unum’s internists failed
to credit the opinions of her treating rheumatologists – Dr. Davis
and Dr. Niewold – who had more expertise respecting fibromyalgia.
In this regard, Wittmann overlooks that Dr. Cruz – an internist –
submitted an Attending Physician’s Statement in which he reported:
“As of this time she is unable to perform her usual job. I am not
able to predict when she may resume usual employment.”
To the
contrary, Dr. Davis initially reported that he was “uncertain” as
to whether Wittmann could perform the duties of her occupation
full-time and later stated that he was providing her with no
specific work restrictions. And Dr. Niewold did not opine on her
functional capacity whatsoever.
In a similar vein, Wittmann submits that Unum declined to
undergo a thorough assessment of her subjective symptoms as
contemplated by the “Evaluation of Subjective Symptoms” section of
36

treating physicians did little more than repeat what she had told
them – that her pain and lack of focus prevented her from working
– Unum’s physicians were not obliged to accept their opinions.
See Love v. Dell, Inc., 551 F.3d 333, 337 (5th Cir. 2008) (“ERISA
does

not

require

the

opinions

of

treating

physicians

to

be

preferred over those of other physicians reviewing a file; ERISA
merely requires that the opinions of treating physicians, as with
all evidence submitted by the claimant, actually be taken in
account in an administrator’s determination.”); see also Stiltz v.
Metro. Life Ins. Co., No. 1:05-CV-3052-TWT, 2006 U.S. Dist. LEXIS
65394, at *44 (N.D. Ga. Aug. 30, 2006) (“Based on the record, it
appears

that

Plaintiff’s

[the

treating

capabilities

and

physician’s]
his

disability

opinions
status

of
are

the
based

the Claims Manual, which directs Unum employees to evaluate reports
of subjective symptoms in the following manner:
1.
obtain
sufficient
information
to
assess
the
claimant’s reported symptom(s);
2. assess the validity of the reported symptom(s) by
determining if:
• the reported symptom is consistent with the
underlying medical signs and/or diagnos(es);
• the
symptom’s
reported
effect
on
physical/emotional/cognitive
functioning
is
consistent with other relevant factors; and
3. determine if any restrictions on activities,
particularly work-related activities, are consistent
with supported limitations on function.
Once again, the record reflects that Unum indeed considered
Wittmann’s subjective complaints of pain but noted that the
“absence of data or testing showing impairment from fatigue,
weakness, or cognitive deficits” precluded a finding that she could
not perform her occupational duties on a full-time basis.
See
Appeal Letter dtd. May 29, 2015.
37

primarily on the Plaintiff’s diagnoses and subjective complaints.
Absent any corroborating objective evidence, this is insufficient
to establish that the Plaintiff’s illnesses prevent him from
performing the duties of his occupation.”).
Moreover, Unum’s determination on May 29, 2015 that Wittmann
was not impaired from symptoms of fibromyalgia was based upon “more
than a scintilla of evidence” – namely, its reviewing physicians’
observations regarding the following evidence in the record:
•

Dr. Chester’s only support for concluding that
Wittmann’s chronic pain and fatigue had seriously
impacted her concentration and ability to remember
details was that she had missed two appointments with
his office.

•

The records contained
cognitive deficits.

•

Dr. Davis acknowledged that there was no objective
data in the medical records to validate Wittmann’s
report of cognitive issues, although he recommended a
functional capacity assessment and neuropsychological
testing.

•

There were no notations regarding observed evidence
of pain, fatigue or cognitive issues during extensive
evaluations at the Mayo Clinic or with local
specialists; rather, notes from Wittmann’s physical
exams described her to be “cheerful,” looking
“healthy,” and “very comfortable.” 14

no

14

test

data

to

support

Although Wittmann criticizes Unum for using her attempts to
maintain a positive attitude against her, she overlooks that Unum’s
own training materials required it to consider whether her alleged
limitations were supported by observation. Specifically, Unum’s
“Fibromyalgia and Chronic Fatigue Syndromes Overview” instructs
Unum personnel to consider, among other things, whether the
restrictions and limitations provided by the Attending Physician
are
“reasonable
and
supported
by
observation,
physical
38

Furthermore, in upholding its decision on May 29, 2015, Unum
offered to consider the results of neuropsychological testing
Wittmann had undergone if such results were submitted within 30
days.

In his report, Dr. Michael Chafetz, a neuropsychologist,

explained

that

the

testing

showed

generally

despite high variability within domains.
demonstrated

varying

attentional

intact

abilities

For example, Wittmann

abilities

but

showed

strong

attention and concentration on tasks that have a “high requirement
for

sustained

attention

and

concentration.”

Her

executive

abilities and problem solving were also reported to be strong, and
she showed quick and agile processing speed.
memory

processes

dysfunction.
occasional

Dr.

were

variable,

Chafetz

attentional

she

further

lapses

could

Although Wittmann’s

exhibited

reported
be,

attributable to her prior history of ADHD.

at

that

no

memory

least

Wittmann’s
in

part,

Dr. Chafetz also noted

that she was fatigued and suffering from depression; he believed
that the poor sleep itself likely exacerbated her pain condition
and

depressive

Ultimately,

he

symptomology,
opined

that

making

her

Wittmann’s

more

distractible.

“reported

memory

and

concentration problems, and problems with ‘disconnecting’ [we]re
not borne out by testing or a history of neuropathology.”

After

referring these test results to Dr. Bartlett and Dr. Zimmerman,

examination, and/or diagnostic testing.”
000099-000100.
39

Rec. Doc. 126-10 at

Unum’s reviewing psychologist, who concluded that the “totality of
the information indicated a psychological contribution inclusive
of depression and somatic focus but not impairment,” Unum upheld
its decision once again on July 20, 2015.
Accordingly, the Court finds that Unum did not abuse its
discretion in requiring some objective evidence of Wittmann’s
functional

limitations

or

in

upholding

its

decision

when

neuropsychological test results did not corroborate her reported
concentration problems. See Dudley, 495 F. App’x. at 475 (“Without
objective

evidence

of

Plaintiff’s

limitations,

the

plan

administrator had no way to determine whether [her] concentration
was impaired to the point that [she] could not perform [her] job.”)
(internal citations omitted); Foster, 280 F. Supp. 3d at 901-02;
Keller, 664 F. Supp. 2d at 702.
(2)

Failure to Consult with Rheumatologist During Appeals

Wittmann next alleges that Unum violated an ERISA procedural
regulation by failing to consult with a rheumatologist in reviewing
her claim on appeal.

Section 2560.503-1(h)(3)(iii) of Title 29 of

the Code of Federal Regulations provides:
[I]n deciding an appeal of any adverse benefit
determination that is based in whole or in part on a
medical judgment . . . the named fiduciary shall consult
with a health care professional who has appropriate
training and experience in the field of medicine
involved in the medical judgment.

40

Emphasis added.

Wittmann contends that, because her claim was for

a physical disability caused by a rheumatic condition – that is,
fibromyalgia – Unum was required to consult with a rheumatologist
in deciding her appeals.

Instead, in conducting the first appeal

review, Unum consulted with Dr. Bartlett, an internist.
reviewing

her

second

appeal,

Zimmerman, a psychologist.

Unum

consulted

with

And in

Dr.

Jana

Accordingly, Wittmann submits, Unum

violated a clear mandate of law.
Notably,
proposition

Wittmann
that

§

points

to

no

case

2560.503-1(h)(3)(iii)

law

to

support

requires

a

the
plan

administrator to consult with a specialist in conducting an appeal
review. To the contrary, courts have noted that “[t]his regulation
is not so hyper-technical . . . that it requires a medical
diagnosis by [one type of] specialist to be reviewed by another
equally credentialed specialist.”

See Larque v. SBC Commc'ns Inc.

Disability Income Plan and Core, Inc., No. SA-04-CA-0883-XR, 2005
U.S. Dist. LEXIS 35263, at *23 n.13 (E.D. Tex. Dec. 14, 2005).
During the first appeal review, Wittmann’s file was reviewed by
Dr. Bartlett, who is board certified in Family Medicine.
previously

discussed,

Dr.

Bartlett

indicated

that

As

Wittmann’s

condition may well meet the diagnostic criteria for fibromyalgia
but recognized that fibromyalgia is not necessarily a disabling
diagnosis in and of itself.

41

Nonetheless, Wittmann contends that Dr. Bartlett was not
qualified to review her medical records because he erroneously
noted that her “complaints of pain, fatigue and cognitive problems”
were not in “proportion” to “diagnostic tests and lab studies in
the file.”

According to Unum’s own training materials pertaining

to fibromyalgia, Wittmann submits, no such diagnostic tests and
lab studies exist for fibromyalgia:
Since persons with FMS have no objective abnormalities
on physical examination and no abnormalities on
diagnostic testing, the diagnosis is based upon the
person’s subjective report and subjective response to
physical examination.”
See “Fibromyalgia and Chronic Fatigue Syndromes Overview,” Rec.
Doc.

126-10

at

000095-000096.

In

a

similar

vein,

Wittmann

contends, Dr. Davis’s expert report sheds lights on the profound
lack of understanding of fibromyalgia demonstrated by Unum in its
claims decisions.

For instance, Dr. Davis explains:

The tests done to support a diagnosis of fibromyalgia
are those tests needed to exclude a peripheral cause of
the patient’s pain. The physical examination is [sic]
should be normal except for tenderness out of proportion
to physical abnormalities.
See Report of William E. Davis, Rec. Doc. 122-2 at p. 2.

In so

arguing, Wittmann overlooks that Dr. Bartlett’s report opined on
whether her symptoms were impairing – not on whether fibromyalgia
was a proper diagnosis.

See Hysick v. Reliance Standard Life Ins.

Co., No. A-04-CA-176LY, 2006 WL 8431990, at *14 (W.D. Tex. Dec.
18, 2006) (rejecting claimant’s argument that administrator was
42

required to consult with a specialist in each area of her diagnoses
where reviewing physician “did not opine as to the validity of
[her]

diagnoses”

and

instead

“focused

on

whether

or

not

her

symptoms were impairing”).
Moreover,

Unum’s

training

materials

pertaining

to

fibromyalgia also emphasize the importance of “focusing on the
impact of the claimant’s functioning rather than the diagnosis
itself.”

See

“Fibromyalgia

and

Chronic

Overview,” Rec. Doc. 126-10 at 000098.

Fatigue

Syndromes

Notably, Unum stated in

its May 29, 2015 appeal letter that “[w]hile there is no definitive
test

for

the

presence

neuropsychiatric

or

testing

absence
available

of

fibromyalgia,

which

can

there

quantify

is

both

cognitive deficits and the presence or absence of psychiatric
conditions.”

As

neuropsychological

previously
testing

discussed,

performed

by

Wittmann

Dr.

had

Chafetz,

a

practitioner of her own choosing, after he which he opined that
her “reported memory and concentration problems, and problems with
‘disconnecting’ [we]re not borne out by testing or a history of
neuropathology.”
Bartlett’s

lack

administration

of

Because Wittmann has not demonstrated how Dr.
of
her

specialized
claim,

she

knowledge
has

failed

compromised
to

the

establish

a

procedural violation on this basis.
The second administrative appeal of Wittmann’s claim amounted
to a review of Dr. Chafetz’s neuropsychological test results to
43

determine whether Wittmann exhibited cognitive deficits.

As such,

Unum reasonably consulted with a psychologist, Dr. Jana Zimmerman,
to perform this review.

Wittmann’s contention that Unum was

required to have a rheumatologist review the results of Wittmann’s
neuropsychological evaluation performed by a neuropsychologist is
unpersuasive.

Accordingly,

the

Court

finds

no

procedural

unreasonableness associated with Unum’s failure to consult with a
rheumatologist during the appeal review process.
(3)

Mental Illness Disability Benefits: Refusal to Credit
SSA’s Disability Determination & Failure to Comply with
ERISA Regulations

Wittmann

next

takes

issue

with

Unum’s

January

24,

2017

decision to award her mental illness disability benefits based on
depression, payable for 24 months. She contends that, in so doing,
Unum

(1)

arbitrarily

Administration’s

refused

disability

to

credit

the

determination,

Social

and

(2)

Security
failed

to

comply with two ERISA claims-handling regulations.
a.
The Supreme Court had held that an ERISA administrator’s
failure to acknowledge an SSA determination is a factor to consider
in determining whether the denial of benefits was an abuse of
discretion.
Unum

See Glenn, 554 U.S. at 108.

Benefits

Center

Claims

Manual

In a similar vein, the

provides

that

“the

SSA’s

judgment that a claimant is disabled will weigh heavily in the
claimant’s favor as we make our own disability determination under
44

the applicable company policy” and that “any decision which is
contrary to the SSA award requires a well-articulated reason
supported by the facts.” See “Social Security Significant Weight,”
Rec. Doc. 132-4 at p. 1.
After receiving a favorable disability determination from the
SSA, Wittmann asked Unum to reconsider its decision, and Unum
agreed to do so.

She then provided Unum with a disability award

letter from the SSA, which did not state the basis for the award,
and a copy of a “Consultative Psychological Evaluation” conducted
by Dr. Fowler, a psychologist. In his report, Dr. Fowler indicated
that he had performed a Mental Status Evaluation, and he noted
diagnoses of Major Depressive Disorder and Anxiety NOS.

As to her

functional capacity, Dr. Fowler opined:
Given the cognitive demands of her profession, it does
seem that she would currently have some difficulty
performing work related tasks, including ability to
focus, read, retain, analyze, and recall information.
Complaints of lowered energy, pain, and fibromyalgia may
render her unable to perform even simple job tasks in a
stable, reliable manner.
Wittmann contends that Dr. Fowler’s report can only lead to
one

conclusion

fibromyalgia.

–

that

she

is

disabled

due

to

symptoms

of

Accordingly, she submits, Unum arbitrarily refused

to credit the findings contained within this report by concluding
that she received SSDI benefits because of a mental illness.
The Court disagrees that Unum abused its discretion in making
this determination. Rather, the Court finds that it was reasonable
45

for Unum to conclude that Dr. Fowler’s report supported the SSA’s
issuance of disability benefits on the basis of a mental illness.
As previously discussed, the SSA award letter does not identify
the reason that benefits were awarded.

And the consultative

report, which supports the SSA’s disability determination, was
prepared by a psychologist, to whom Wittmann was referred “to
assess a claim for disability due to depression and fibromyalgia,”
and who noted diagnoses of depression and anxiety.

Indeed, if the

SSDI benefits were based upon Dr. Fowler’s remarks concerning
fibromyalgia, the SSA relied upon an opinion that a psychologist
is not qualified to give.

See Wildman v. Astrue, 596 F.3d 959,

967 (8th Cir. 2010) (“[T]he psychologists largely based their
determination that [the claimant] could not work on their analysis
of [her] physical ailments.

Since this is indeed beyond their

expertise as psychologists, the ALJ did not err when he disregarded
their opinions for this reason.”).
In a similar vein, Wittmann complains that Unum’s decision to
award

mental

illness

substantial evidence.

disability

benefits

was

not

based

upon

She contends that this determination wholly

ignored that (1) she has never claimed to be disabled due to any
mental illness, (2) no medical professional has concluded she is
disabled due to any mental illness, and (3) Unum’s own reviewing
psychologist, Dr. Zimmerman, determined that Wittmann did not
suffer any psychiatric impairment from depression. The Court finds
46

that Unum’s January 2017 decision did not amount to an abuse of
discretion on any of these bases.

As to the first proposition,

Wittmann does not explain how the fact that she never claimed to
be disabled due to a mental illness assists her cause.

Pursuant

to the Plan, “[t]he lifetime cumulative maximum benefit period for
all disabilities due to mental illness is 24 months.”

The Plan

further defines “mental illness” to include “psychotic, emotional
or behavioral disorders” and “disorders relatable to stress.”
Plan

does

disorder.

not,

however,

require

Wittmann

to

claim

a

The

mental

See Bistany v. Reliance Standard Life Ins. Co., 55 F.

Supp. 3d 956, 966 n.7 (S.D. Tex. 2014).

Second, while Wittmann

contends that no medical professional ever concluded that she is
disabled due to a mental illness, she overlooks that she provided
Unum with evidence regarding her mental health diagnoses:
•

Dr. Chester, Wittmann’s treating psychiatrist, noted a
diagnosis of Somatic Symptom Disorder with predominant pain,
persistent;

•

Dr.
Chafetz,
a
neuropsychologist,
listed
Disorder” as a diagnostic consideration;

•

Dr. Fowler, a psychologist, performed a mental status
examination and diagnosed Wittmann with (1) Major Depressive
Episode, (2) Anxiety NOS, and (3) Rule out pseudo-dementia
secondary to depression.
Third,

determined

in
that

emphasizing
Wittmann

that

was

not

Unum’s

own

impaired

Dr.

from

“Depressive

Zimmerman
depression,

Wittmann misconstrues Dr. Zimmerman’s overall impression regarding
Dr.

Fowler’s

report

–

namely,
47

that

the

limited

information

available

to

Dr.

Fowler

was

not

sufficient

to

support

his

“psychiatric diagnostic impressions or [for him to] rule in or out
cognitive impairment from pseudo-dementia or any other [behavioral
health] or physical etiology.”

(emphasis added).

Accordingly,

had Unum relied upon Dr. Zimmerman’s opinion, as Wittmann suggests
it should have done, Unum would have determined that Wittmann
exhibited impairment from neither a mental nor a physical disorder.
Finally, Wittmann repeatedly takes issue with Unum’s failure
to recognize that depression was a symptom of her fibromyalgia.
In an attempt to bolster this position, she points to Unum’s
training materials pertaining to fibromyalgia, which explain that
many people “report they are depressed as a result of their
Fibromyalgia

symptoms.”

Actually,

those

training

materials

provide that fibromyalgia “is often associated with other comorbid

conditions

and

symptoms

such

as

.

.

.

anxiety

[and]

depression” and that many people “report they are depressed as a
result of their Fibromyalgia symptoms.” See “Fibromyalgia and
Chronic Fatigue Syndromes Overview,” Rec. Doc. 126-10 at 000099.
This

resource

also

provides

that,

“when

assessing

functional

impairment,” Unum personnel are to consider whether the individual
has “a co-morbid condition that may impact recovery.”
000099-000100.

Id. at

Accordingly, while it is true that depression can

result from fibromyalgia, the training materials make clear that,

48

where the claimant’s depression affects her ability to work,
recovery may be limited.
b.
Wittmann

next

contends

that

Unum

violated

two

ERISA

procedural regulations in rendering its January 24, 2017 decision
to grant her mental illness disability benefits. Section 2560.5031(h)(4)(ii) provides that, “before the plan can issue an adverse
benefit determination on review on a disability benefit claim based
on a new or additional rationale, the plan administrator shall
provide the claimant, free of charge, with the rationale.”
C.F.R.

§

2560.503-1(h)(4)(ii).

Wittmann

alleges

that

29
Unum

violated this regulation by applying the mental illness limitation
on appeal without giving her prior notice of that new rationale.
She

submits

that

Unum’s

January

24,

2017

decision,

“without

question,” constitutes an “adverse benefit determination” because
it stigmatizes her as having a “mental illness,” and provides
limited

short-term

benefits,

rather

through her expected retirement age.

than

long-term

benefits

Under the circumstances of

this case, the Court finds that it is arguable as to whether the
January

24,

2017

determination.”

decision

constitutes

an

“adverse

benefit

Indeed, Unum had already made an adverse benefit

determination on Wittmann’s claim by determining that she was not
entitled to receive any benefits under the Plan, and then upholding
that decision during two rounds of appeals.
49

Accordingly, in

rendering its January 24, 2017 decision, Unum awarded disability
benefits to Wittmann to which she had previously been determined
not entitled to receive.
Wittmann

also

claims

that

Unum

violated

§

2560.503-

1(j)(6)(i)(B), which requires an adverse benefit determination
regarding disability benefits to provide “an explanation of the
basis for disagreeing with or not following . . . [t]he views of
medical . . . experts whose advice was obtained on behalf of the
plan

in

connection

determination.”

with

a

claimant’s

adverse

29 C.F.R. § 2560.503-1(j)(6)(i)(B).

benefit
Wittmann

correctly notes that Unum’s January 24, 2017 letter does not
mention its own psychologist’s opinion that Wittmann did not suffer
from

any

psychological

impairment

or

explain

disagreeing with or not following that opinion.

the

basis

for

Unum clarifies in

its papers that, based on Dr. Fowler’s failure to review Wittmann’s
medical records, Unum’s psychologist felt that he did not have a
sufficient basis for rendering an opinion regarding Wittmann’s
alleged

impairment.

Unum

contends

that

it

nonetheless

gave

substantial weight to the SSA disability award, which it believed
was based on Dr. Fowler’s diagnoses of depression and anxiety.
previously

noted,

because

Unum

had

already

made

a

As

final

determination that Wittmann was entitled to no benefits under the
Plan, § 2560.503-1(j)(6)(i)(B) too appears not to apply to Unum’s
January 24, 2017 decision.

Accordingly, the Court finds that
50

Unum’s failure to adhere to the two aforementioned ERISA procedural
regulations was not unreasonable.
(4)

Failure to Provide Relevant Documents & Inadequate Claim
File Documentation
a.

Wittmann next argues that Unum failed to provide her with all
information and documents relevant to her claim, despite repeated
requests.

Section 560.503-1(h)(2)(iii) of Title 29 of the Code of

Federal Regulations requires a plan administrator to provide,
“upon request and free of charge, reasonable access to, and copies
of, all documents, records, and other information relevant to the
claimant’s claim for benefits.”

Section 560.503-1(m)(8)(i)-(iii),

in turn, defines relevant information as that which “[w]as relied
upon

in

making

the

benefit

determination;”

“[w]as

submitted,

considered, or generated in the course of making the benefit
determination;”

or

“[d]emonstrates

compliance

with

administrative process and safeguards required” by ERISA.
U.S.C. § 560.503-1(m)(8)(i)-(iii).

the
29

Wittmann argues that Unum

violated the requirements of § 560.503-1(h)(2)(iii) by failing to
provide her with information regarding communications with or
among counsel until after she prevailed on a motion to compel
discovery, and by waiting until February of 2018 to provide her
with a copy of its Claims Manual.
Unum counters that, by letter dated September 14, 2017,
Wittmann’s counsel requested a number of documents and that the
51

Manual was not among the items enumerated.

Rather, Unum submits,

Wittmann first requested the Manual in discovery propounded on
January 22, 2018, to which Unum complied on February 23, 2018.

In

response, Wittmann notes that Unum nonetheless did not provide
“many of the requested documents” until after she prevailed on a
motion to compel.

Because Wittmann points to no evidence to

support a finding that Unum failed to provide her with relevant
information

and

documents

in

contravention

of

§

560.503-

1(h)(2)(iii), the Court places little weight on the parties’ backand-forth about Unum’s production of documents.
b.
In a similar vein, Wittmann submits that Unum violated the
“Claim File Documentation” section of the Unum Benefits Center
Claims Manual by failing to include in her claim file the substance
of

relevant

discussions

disability claim.

and

communications

regarding

her

This section of the Claims Manual provides:

[D]ocumentation of conversations (telephone calls,
resource consultations, etc.) should capture key
statements and conclusions from the conversation which
include:
• the date and time the conversation took place;
• the names of the parties involved in the
conversation;
• details of the conversation, as well as any
follow-up items or required actions; and
• references to the applicable policy provisions
discussed.
See “Claim File Documentation,” Rec. Doc. 132-2 at p. 2.

For

example, Wittmann contends, the administrative record alludes to
52

the occurrence of three forum discussions during 2014 regarding
the merits of her claim but fails to document the “key statements
and conclusions” that led to the consistent finding that “available
documentation does not readily support EE’s inability to work.”
But, a review of the administrative record reveals that each
discussion highlighted by Wittmann is documented by a two-page
summary

replete

with

details

about

the

date

and

time

each

conversation took place, the names of the parties involved, key
statements and conclusions made, and the next steps that would be
taken. 15

Although these summaries do not explicitly reference the

applicable policy provisions discussed, it is clear that these

15

For instance, the record documents a CVM (“Clinical-VocationalMedical”) forum discussion conducted on June 25, 2014 and completed
at 9:47 a.m.
During this discussion, named participants noted
that: (1) “available documentation does not readily support EE’s
inability to work,” (2) “[a]dditional medical records are pending
(Mayo Clinic) and are needed for review,” and (3) the DBS
(“Disability Benefit Specialist”) is “to follow-up on the
requested records (Mayo Clinic and Ochsner Medical Center)” and
that “[a]dditional action will be determined upon receipt of the
requested medical information.”
The two other forum discussions Wittmann references are
documented in a similar manner. Documentation pertaining to the
July 8, 2014 forum discussion notes that Unum had received medical
records from Wittmann’s chiropractor but was still waiting on
records from the Mayo Clinic and Ochsner. And notes from the July
31, 2014 discussion indicate that the documentation received
showed that Wittmann had “undergone extensive testing and work up
to determine a cause for [her] claimed symptoms,” all of which had
been negative and that her file would be referred to an OSP (“OnSite Physician”) to contact Dr. Cruz. It was also noted that the
Disability Benefit Specialist would send an APQ (“Attending
Physician Questionnaire”) to Dr. Davis and that Unum would contact
the offices of Dr. Glade, Dr. Friedman, and Dr. Wilklow to confirm
the last dates of treatment.
53

forum discussions concerned Wittmann’s ability “to perform the
material and substantial duties of [he]r regular occupation.”
Wittmann also challenges the absence of details concerning a
discussion of whether she was covered under the Unum policy. In
this regard, the administrative record reflects that, on August
21, 2014, the Disability Benefit Specialist sought a legal opinion
from H. Austin Pedigo, an in-house attorney, to determine the date
coverage was effective for Wittmann under the policy.

Pedigo

responded on August 28, 2014 that the issue would be discussed
with the legal issues group. Although the record does not identify
the participants in the legal issues group or contain minutes from
that meeting, it does capture Pedigo’s response to the Disability
Benefit Specialist’s coverage inquiry.

Specifically, on December

5, 2014, Pedigo opined that Wittmann was covered under the policy
because the purpose of the “Continuation of Coverage” provision
was to ensure no loss of coverage due to the transfer in carriers.
Wittmann

next

spotlights

Unum’s

failure

to

discuss

results of its surveillance conducted in July of 2017.

the

To further

assess the extent and nature of Wittmann’s functional limitations,
Unum retained an independent investigator to surveil her on two
weekdays from the early morning through the afternoon hours.
According to the investigator’s report, Wittmann was observed
receiving a package from a delivery person while standing in her
doorway and walking onto her patio to move furniture pillows.
54

It

was also noted that Wittmann did not leave her residence during
either surveillance period. However, Unum’s July 31, 2017 decision
letter denying her claim for benefits beyond 24 months for a
disability unrelated to mental illness fails to mention this
surveillance.

According to Wittmann, Unum’s failure to divulge

the results of its surveillance evidences that it did not fairly
review her claim or thoroughly evaluate how her symptoms might
affect her job performance.

In its defense, Unum argues that it

was not required to describe the results of the surveillance
because they were inconclusive and not relied upon as a basis for
its benefit determination.

Although the Court recognizes that it

would have been provident of Unum to address the surveillance
results in its decision letter, the Court nonetheless finds that
its failure to do so did not compromise the administration of
Wittmann’s claim.
(5)

Unum’s Conflict of Interest

Finally, the Court considers the impact of Unum’s conflict of
interest on its handling of Wittmann’s long-term disability claim.
See Schexnayder, 600 F.3d at 469-71.
operates

under

a

structural

It is undisputed that Unum

conflict

of

interest

by

both

determining eligibility for benefits and paying for the benefits
it determines are owed.

Accordingly, a decision to pay benefits

affects Unum’s bottom-line.

In an attempt to demonstrate that

this conflict affected the administration of her claim, Wittmann
55

notes

that

Unum’s

performance

employees to deny benefits.

bonus

system

incentivizes

its

To support this proposition, Wittmann

directs the Court’s attention to Unum’s “Total Compensation FAQs,”
which provide, in part:
Whether there is a payout AND the amount of the payout
depends
on:
Corporate
Performance
and
Business
Performance.
A corporate earnings threshold is the
primary source of funding for the [performance bonus];
therefore, the Corporation must achieve this threshold
in order for there to be a payout.
Wittmann also points to the deposition testimony of H. Austin
Pedigo, an Unum in-house attorney involved in the administration
of her claim, in which he attests that performance bonuses comprise
roughly 20% of his annual income.

But, this evidence does little

more than reinforce that a conflict exists by virtue of Unum’s
dual role in evaluating claims and paying benefits.
Wittmann also calls attention to handwritten “work notes”
taken by Pedigo during a legal issues group meeting, which include
a reference to the law firm of Stone Pigman Walther Wittmann years
before she retained the firm to handle her ERISA review. According
to Wittmann, her estranged husband is a member of Stone Pigman.
Although the Court recognizes that a discussion of Stone Pigman
bears no relevance to Wittmann’s disability claim, the Court also
notes that Wittmann has not indicated how a notation regarding her
husband’s prominence in the legal community would adversely affect
the handling of her claim.

To the contrary, common sense suggests

56

that

flagging

Wittmann

as

a

high-profile

claimant

would

incentivize Unum to more carefully administer her claim.
Finally, Wittmann contends that the shifting bases Unum has
advanced

for

its

various

decisions

is

probative

of

a

claims

administration “aimed more at denying or limiting” benefits.”
her

supplemental

memorandum,

Wittmann

alleges

that

In

Unum’s

justifications for its denials evolved from “no evidence of tender
point testing” (October 3, 2014) to she “may have fibromyalgia”
but is not disabled (May 29, 2015) to she has a “mental illness
disability” but “there is no evidence for any physical/organic
medical problems which would preclude full-time Sedentary work”
(January 24 and July 31, 2017).
But, after carefully reviewing the administrative record, the
Court finds that the bases for Unum’s decisions changed because
Wittmann

submitted

new

information

consideration during each appeal review.

for

the

administrator’s

In other words, a “case-

specific” review of the administrative record reveals that Unum’s
conflict of interest was “outweighed by the substantial evidence
supporting [Unum’s] decision[s].”

Truitt, 729 F.3d at 513-15; see

also Avena v. Unum Life Ins. Co. of Am., No. 13-5947, 2015 U.S.
Dist. LEXIS 49598, at *12-13 (E.D. La. Ap. 14, 2015) (Milazzo, J.)
(“Here

too,

the

Court

finds

that

Defendant

gave

thorough

consideration to Plaintiff’s claim. It had three physicians review
Plaintiff’s record, entertained an appeal, waited for Plaintiff to
57

visit

a

neurosurgeon

before

deciding,

and

reached

out

to

Plaintiff’s treating physician to discuss Plaintiff’s condition.
This Court does not find any circumstance that suggests a higher
likelihood that Unum’s conflict affected the benefits decision.”).
The Plan requires Wittmann to provide proof that she has a
medical condition that “causes [her] to have limitations on [her]
functioning and restrictions on [her] activities preventing [her]
from performing the material and substantial duties of [her]
regular

occupation.”

In

applying

for

disability

benefits,

Wittmann was asked: “What specific duties of your occupation are
you

unable

to

perform

due

to

your

medical

condition?”

She

responded that she was “unable to concentrate” and that “physical
endurance [wa]s limited due to pain and fatigue.”

Thereafter, an

Attending

Dr.

Physician

internist.

Statement

was

provided

by

Cruz,

her

When asked to list Wittmann’s physical restrictions

and limitations, he referred Unum to an enclosed letter, in which
he stated: “As of this time she is unable to perform her usual
job.

I

am

employment.”

not

able

to

Similarly,

predict
when

when

Dr.

she

Davis,

may

resume

Wittmann’s

usual

treating

rheumatologist, was asked whether Wittmann was able to perform her
occupational demands on a full-time basis, he indicated that he
was “uncertain.”

However, he also noted that she had “chronic

pain and fatigue that likely impair[ed] her ability to focus for
8 hours on complicated issues.”
58

Weeks later, Dr. Davis stated

that he was not providing specific work restrictions, but that
Wittmann’s

“severe

fatigue

with

intermittent

lightheadedness,

diffuse musculoskeletal pain and tenderness” precluded her from
returning to work full-time.

As to Wittmann’s cognitive deficits,

Dr. Davis indicated that he was aware of no objective data or
neurological testing because such cognitive problems were patient
reported.

However, he also recommended that Unum consider a

functional capacity assessment and neuropsychological testing.
In administering Wittmann’s claim, Unum had four different
medical professionals review her file, and Unum’s doctors reached
out

to

three

of

Wittmann’s

physicians

to

discuss

her

claim.

Further, in upholding its decision on appeal on May 29, 2015, Unum
invited Wittmann to submit additional information within 30 days
because she advised that she had undergone neuropsychological
testing. Importantly, Wittmann had stated that she did not dispute
that she could engage in sedentary employment; rather, she asserted
that she was unable to focus and concentrate due to her fatigue
and pain.

But, the testing she had performed by Dr. Chafetz, a

neuropsychologist of her own choosing, did not support her reported
“memory

and

concentration

problems,

and

problems

with

‘disconnecting.’”
Moreover, a year after Wittmann exhausted her administrative
remedies, she presented a favorable SSA disability determination
to Unum and requested reconsideration.
59

Even though Wittmann did

not disclose this information to Unum until one year after she
received

notice

of

the

additional appeal review.

decision,

Unum

agreed

to

conduct

an

Based on its review of a “Consultative

Psychological Report” prepared by Dr. Fowler, a psychologist, who
noted diagnoses of depression and anxiety, Unum agreed to pay
benefits

under

the

mental

illness

limitation,

after

having

determined that Wittmann was entitled to no benefits under the
Plan.

Wittmann argues that Unum’s decision to pay benefits based

on a mental illness disability for 24 months was motivated by its
desire to bolster its bottom line.

In other words, she submits

that

appear

Unum

paid

these

benefits

to

accommodating

while

avoiding the more substantial financial burden of paying long-term
disability benefits based on a physical disability. Unum counters,
quite logically, that if it sought to bolster its bottom line, it
could

have

simply

determination,

or

refused
upheld

to

its

consider

decision

the

that

SSA

disability

Wittmann

was

not

entitled to any benefits.
Finally,

Unum

invited

Wittmann

to

submit

additional

information to determine her eligibility for benefits beyond 24
months

for

a

disability

condition (fibromyalgia).

attributable

to

a

physical

medical

After two Unum physicians – board-

certified in family medicine and internal medicine, respectively
– reviewed her file and found “no evidence for any physical/organic
medical problems which would preclude full-time Sedentary work
60

from June 30, 2016 to the present,” Unum refused to continue the
payment of disability benefits.
Although
procedural

Unum’s

review

propriety,”

process

Wittmann

has

was

“not

not

the

shown

paragon
that

of

Unum’s

decisions were not supported by substantial evidence, or that
Unum’s

“evaluation

warrants vacatur.”

was

so

procedurally

unreasonable

that

it

See Rittinger v. Healthy Alliance Life Ins.

Co., No. 17-20646, 2019 U.S. App. LEXIS 3201, at *15 (5th Cir.
Jan. 31, 2019) (per curiam); Hayes v. Dearborn Nat’l Life Ins.
Co., 744 F. App’x 218, 223-24 (5th Cir. 2010) (per curiam).
Accordingly, for the foregoing reasons, IT IS ORDERED: that
the plaintiff’s motion for summary judgment is hereby DENIED, and
that the defendant’s motion for summary judgment is GRANTED.

New Orleans, Louisiana, February 21, 2019

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

61