Keskey v. United of Omaha Life Insurance Company

Filing 21

ORDER Adopting 18 Report and Recommendation, Granting Defendant's 11 Motion for Declaratory Judgment, and Denying Plaintiff's 10 Motion for Declaratory Judgment. Signed by District Judge Thomas L. Ludington. (Sian, M)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
JEAN KESKENY,
Plaintiff,

Case No. 16-cv-11362

v.

Honorable Thomas L. Ludington

UNITED OF OMAHA LIFE INSURANCE
COMPANY,
Defendant.
__________________________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION,
GRANTING DEFENDANT’S MOTION FOR DECLARATORY JUDGMENT,
AND DENYING PLAINTIFF’S MOTION FOR DECLARATORY JUDGMENT
On April 14, 2016 Plaintiff Jean Keskeny initiated the above-captioned matter against
Defendant United of Omaha Life Insurance Company pursuant to the civil enforcement
provision of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 11322(a).
Plaintiff alleges that Defendant wrongfully denied her long term disability benefits. See Compl.,
ECF No. 1.

The matter was referred to Magistrate Judge Patricia T. Morris for pretrial

management. See ECF No. 6. On September 23, 2016 Plaintiff and Defendant each filed a
motion for declaratory judgment on the administrative record. See ECF Nos. 10, 11. On
February 24, 2017 the magistrate judge issued her report, recommending that Defendant’s
motion be granted and Plaintiff’s motion be denied. See ECF No. 18. Plaintiff filed objections
on March 8, 2017. See ECF No. 19. For the reasons stated below, Plaintiff’s objections will be
overruled and the report and recommendation will be adopted.
I.

Plaintiff Keskeny is a licensed Practical Nurse, and was employed as a Charge Nurse by
MediLodge beginning on January 5, 2009. At the time of the relevant events, MediLodge
sponsored a Group Disability Plan (the “Plan”), which was issued and administered by
Defendant United of Omaha Life Insurance Company. Under the Plan, Defendant agreed to pay
certain short-term disability benefits (“STD benefits”) and long-term disability benefits (“LTD
benefits”) to covered, eligible persons who established a qualifying disability. For the purpose of
LTD benefits, the Plan defined disability as follows:
Disability and Disabled means that because of an Injury or Sickness, a significant
change in Your mental or physical functional capacity has occurred in which You
are:



prevented from performing at least one of the Material
Duties of Your Regular Occupation on a part-time or fulltime basis; and
unable to generate Current Earnings which exceed 99% of
Your Basic Monthly Earnings due to that same Injury or
Sickness.

After a Monthly Benefit has been paid for 24 months, Disability and Disabled
mean You are unable to perform all of the Material Duties of any Gainful
Occupation.
Disability is determined relative to Your ability to work. It is not determined by
the availability of a suitable position with Your employer.
See Tr. 000013, ECF No. 9-1.
Plaintiff ceased working on February 4, 2013. In March of 2013, Plaintiff filed a claim
with Defendant for STD benefits, claiming that the nature of her illness was “head & neck pain.”
See Tr. 001111.

The request was supported by documentation from Plaintiff’s treating

neurologist, Doctor Steven Beall, who found that Plaintiff’s activities were limited by an
inability to bend, squat, stoop, or lift or carry any weight. Tr. 001115-16. Dr. Beall concluded
that Plaintiff “should not work til condition healed.” Id. Defendant approved Plaintiff’s request

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for STD benefits beginning on February 11, 2013. Tr. 001013-14.

Defendant ultimately

extended Plaintiff’s STD benefits through August 11, 2013, at which time Plaintiff’s STD
benefits under the Plan were exhausted. Tr. 000957-58.
After exhausting her STD benefits, Plaintiff sought and obtained LTD benefits from
Defendant commencing on August 12, 2013. Tr. 000863-68. In approving the LTD benefits,
Defendant relied upon Plaintiff’s STD claim, as well as on medical records obtained from North
Ridge Family Practice, Doctor Steven Beall, and Nurse Practitioner Beth Weaver. Plaintiff
proceeded to collect LTD benefits for 24 months. Therefore, to continue receiving monthly
benefits under Defendant’s Plan after August 11, 2015, Plaintiff was required to demonstrate that
she was “unable to perform all of the Material Duties of any Gainful Occupation.” Tr. 000013
(emphasis added).
By a letter dated June 25, 2015, Defendant informed Plaintiff that her request for LTD
benefits beyond August 11, 2015 was denied. Tr. 00483-91.

The denial was based upon

Defendant’s finding that Plaintiff was able to perform the material duties of gainful occupations
requiring only light or sedentary work, such as a manicurist, phlebotomist, hospital-admitting
clerk, and appointment clerk. Tr. 000488.

Defendant rejected Dr. Beall’s suggestion that

Plaintiff’s medical records demonstrated that multiple sclerosis prevented her from performing
such work, noting that “[t]he examinations that we received from Dr. Beall’s office include
checklists without comprehensive examinations, impressions or plans.” See Tr. 000487.
Defendant further noted that recent medical imaging of her cervical and lumbar spine “showed
degenerative changes without significant stenosis, disc herniation or cord compromise,” and that
“examinations did not show any significant strength, sensation, motion or coordination
abnormalities.” Tr. 000487. Defendant also observed that Plaintiff had continued to consume

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alcohol and smoke cigarettes on a daily basis in contravention of medical advice. Tr. 000485-87.
Finally, Defendant found that Plaintiff had not established that her other chronic conditions of
obesity, hypertension, GERD, anxiety, COPD/asthma, sleep apnea, gastritis and hair loss caused
significant physical functional impairment.
Plaintiff appealed. In conducting its review of the appeal, in January of 2016 Defendant
retained neurologist Robert L. Marks, M.D., to conduct a medical record review.

After

reviewing all of the relevant records, Dr. Marks concluded that, “although it is very possible that
demyelinating disease such as MS is a correct diagnosis, it cannot be considered an absolutely
definitive diagnosis. Time will eventually provide verification.” See Tr. 000079. Dr. Marks also
noted that he “could not find substantiation that the claimant was unable to arise from a chair to
stand and walk, although an assistive device may be necessary. Basic functional use of the upper
extremities, possibly with some weakness, appeared to be present.” See Tr. 000080. While
agreeing that “restrictions and limitations are appropriate in this case,” Dr. Marks warned that
“caution is needed to avoid relying too much on purely subjective symptoms.” Id. On February
26, 2016 Defendant sent Plaintiff a letter upholding the denial decision, largely relying on Dr.
Marks’ opinion. See Tr. 00067-72. Plaintiff responded by filing the present suit. See Compl.
ECF No. 1.
II.
Pursuant to Federal Rule of Civil Procedure 72, a party may object to and seek review of
a magistrate judge’s report and recommendation. See Fed. R. Civ. P. 72(b)(2). Objections must
be stated with specificity. Thomas v. Arn, 474 U.S. 140, 151 (1985) (citation omitted). If
objections are made, “[t]he district judge must determine de novo any part of the magistrate
judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). De novo review

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requires at least a review of the evidence before the magistrate judge; the Court may not act
solely on the basis of a magistrate judge’s report and recommendation. See Hill v. Duriron Co.,
656 F.2d 1208, 1215 (6th Cir. 1981). After reviewing the evidence, the Court is free to accept,
reject, or modify the findings or recommendations of the magistrate judge. See Lardie v. Birkett,
221 F. Supp. 2d 806, 807 (E.D. Mich. 2002).
Through her objections, Plaintiff argues that Defendant should have required Plaintiff to
undergo an independent medical examination, that Defendant (and the magistrate judge) did not
give sufficient deference to the opinion and comments of Dr. Beall – a treating source – and
overly relied upon the opinion of Dr. Marks – a non-treating source –, and that Defendant (and
the magistrate judge) improperly found Plaintiff lacking in credibility. These objections are
without merit for the reasons discussed by the magistrate judge in her report. The objections also
ignore the fact that Plaintiff bore the ultimate burden of establishing a disability within the
meaning of Defendant’s Plan.
While Defendant was not entitled to “arbitrarily disregard reliable medical evidence
proffered by a claimant, including the opinions of a treating physician,” Defendant “was not
obligated to blindly accept the treating physicians’ opinions either.” Cooper v. Life Ins. Co. of N.
Am., 486 F.3d 157, 167 (6th Cir. 2007). “Requiring a claimant to provide objective medical
evidence of disability is not irrational or unreasonable.” Id. In the present case, Defendant
largely relied upon Dr. Beall’s medical opinions in initially finding Plaintiff disabled and
approving her STD benefits and LTD benefits under the Plan. However, Dr. Beall’s June of
2015 statement that Plaintiff was “weaker than 4 [year] old girl” and his assignment of a 6.5
Kurtzke score “by history” are conclusory findings unsubstantiated by objective record evidence.
Defendant gave good reason for discounting such unsupported opinions in determining the extent

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of Plaintiff’s functional limitations. Plaintiff has not identified any Sixth Circuit precedent or
any Plan language requiring Defendant to conduct an independent medical examination instead
of a file review here, where Plaintiff’s self-reported symptoms could have been verified by
objective medical data. C.f. Okuno v. Reliance Standard Life Ins. Co., 836 F.3d 600, 610 (6th
Cir. 2016) (holding that file reviews may be insufficient where a plaintiff’s claimed disability
necessarily involves subjective symptoms, such as in the case of mental illness). Plaintiff’s
objections will therefore be overruled, and the report and recommendation adopted.
III.
Accordingly, it is ORDERED that Plaintiffs’ objections, ECF No. 19, are
OVERRULED.
It is further ORDERED that the report and recommendation, ECF No. 18, is
ADOPTED.
It is further ORDERED that the Defendant’s motion for declaratory judgment, ECF No.
11, is GRANTED.
It is further ORDERED that Plaintiff’s motion for declaratory judgment, ECF No. 10, is
DENIED.

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: April 20, 2017

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on April 20, 2017.
s/Michael A. Sian
MICHAEL A. SIAN, Case Manager

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