Aljahmi v. United Omaha Life Insurance Company
ORDER granting 16 Motion for Judgment; denying 17 Motion for Judgment. Signed by District Judge Victoria A. Roberts. See Order for details (CPin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
MOHAMED AHMED MOKBEL-ALJAHMI,
Case No: 15-12537
Hon. VICTORIA A. ROBERTS
UNITED OF OMAHA LIFE INSURANCE
This matter is before the Court on cross-motions for summary judgment.
The Complaint alleges a violation of the Employee Retirement Income Security
Act of 1975 (“ERISA”) § 502(a) and 29 U.S.C. § 1132(a), (e), (f), and (g). Aljahmi
contends that United wrongfully terminated his long-term disability benefits. United
contends that Aljahmi has not established by a preponderance of the evidence that he
Aljahmi requests this Court, on de novo review, to: (1) reverse United’s decision
to terminate his benefits; (2) declare that Aljahmi was and is disabled under the plan
and policy; and, (3) grant Aljahmi relief.
For the reasons that follow:
Plaintiff’s Motion for Summary Judgment is GRANTED;
Defendant’s Motion for Summary Judgment is DENIED.
Aljahmi worked for L&W Engineering Company from August 31, 1998 until
February 11, 2011, Aljahmi performed various duties in the operation of welding
machinery. The job description indicates that the position requires light strength and
may require significant standing, walking, pushing, and/or pulling.
Aljahmi participated in L&W Inc.’s ERISA qualified benefit plan. United issued the
Group Long Term Disability Insurance Policy (“Policy”) to L&W Inc. Under the Policy,
United agreed to pay insured persons long-term disability benefits (“LTD”) subject to the
terms and conditions of the Policy. L&W Inc. self-insured a short-term disability (“STD”)
benefits program for eligible employees; it retained United to review claims under the
Aljahmi began experiencing neck and back pain in 2003. In 2011, he was
involved in a motor vehicle accident (“MVA”). His pain became more severe because of
the accident and he experienced increased back, left leg, and neck pain, along with
right arm pain and numbness. Aljahmi’s doctor recommended that Aljahmi take off work.
He did but never returned. Aljahmi’s last day of work was February 11, 2011. He
received STD benefits for 26 weeks.
Under the terms of the Policy, a participant is entitled to receive a monthly
disability benefits if he or she is “disabled.” The Policy defines disabled:
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 full-time basis; and
unable to generate Current Earnings which exceed 80% 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 or inability to
work. It is not determined by the availability of a suitable
position with Your employer.
The Policy defines Gainful Occupation as:
an occupation, for which You are reasonably fitted by
training, education, or experience, is or can be expected to
provide You with Current Earnings at least equal to 60% of
Basic Monthly Earnings within 12 months of Your return to
When Aljahmi stopped work, he earned $2,445.73 per month; Gainful
Occupation earnings would be 60% of that, or $1,467.44 per month.
Supporting his claim for LTD benefits were MRIs of his lumbar and cervical
spines, and both shoulders; an EMG of his lower and upper extremities; and, opinions
and medical records from his treating doctors.
Aljahmi’s treating neurologist for 12 years, Bassam Maaz, M.D. diagnosed
Aljahmi with lumbar radiculopathy, lower back pain from degenerative changes and
bulging discs, neck pain secondary to herniated discs C3-C4, C4-C5, shoulder rotator
cuff syndrome and depression. Dr. Maaz found that Aljahmi could not perform
sedentary or light work on a sustained basis, could not sit, stand, and/or walk for more
than one hour each day, could only lift and carry up to five pounds occasionally,
required complete freedom to rest frequently without restriction. Dr. Maaz concluded
that these impairments would last for life. 612; 11-1; Pg. ID 177-189. Dr. Maaz also
found that Aljahmi’s strength was 5/5 bilaterally in all upper extremities, 5/5 in all muscle
groups of the right leg, and 4/5 in all muscle groups on the left leg. He also said that
while Aljahmi uses a cane for support, his heel, toe and tandem walking are performed
without difficulty, and coordination was intact. 11-6, 907-09. In Dr. Maaz’s April 25, 2013
examination notes, he says that Aljahmi was able to work until his motor vehicle
accident, and observes that Aljahmi had increased low back and neck pain since the car
accident. 11-6, 904-06. Aljahmi underwent trigger point injections for pain relief; that
typically resulted in a mild decrease in pain by the end of the treatment. 11-8, 11111112; 11-6, 901-903.
Dr. Mahmoud Rahim, M.D. Aljahmi’s treating internist, diagnosed Aljahmi with
bilateral carpal tunnel syndrome, osteoarthritis, major depression, hypertension,
cardiomyopathy, obesity, fatigue secondary to head, neck, back injury, low back pain
with disc lesion, and shoulder injury with pain. Dr. Rahim found Aljahmi to be in severe
pain and suffering severe weakness or fatigue. Dr. Rahim also found that Aljahmi could
not perform sedentary or light work on a sustained basis, could sit, stand, and/or walk
for less than one hour each day, could not lift up to five pounds on a regular and
sustained basis, could not use his hands on a regular and sustained basis, required
complete freedom to rest frequently without restriction, and would need to elevate his
lower extremities 3-4 hours a day. Admin R. 11-4, Pg. ID 613-23.
Aljahmi’s treating orthopedic specialist, Jiab Suleiman, M.D., limited Aljahmi to
three hours of sitting and one hour of standing and walking, with restrictions on
lifting/carrying, bending, squatting, crawling, climbing, and reaching above the shoulder
level. Dr.Suleiman said Aljahmi’s prognosis for recovery was poor, and concluded that
Aljahmi was disabled from doing housework, caring for his personal needs and driving.
Admin R. 11-7, Pg. ID 994,1017.
United concluded that Aljahmi was disabled from the Material Duties of his own
occupation and paid him LTD benefits for the full 24 months of the Policy’s own
United continued to assess and review Aljahmi’s eligibility for benefits. On August
27, 2013, United terminated Aljahmi’s LTD benefits, concluding that he did not meet the
requirements to continue to be disabled under the “Any Gainful Occupation”
requirement of the Policy. It discontinued his benefits. (Admin R. Doc. 11-5 Pg. ID 670).
Aljahmi appealed the termination of LTD benefits and submitted additional
evidence of disability.
On July 28, 2014, United announced it was overturning the denial of benefits
after August 27, 2013; LTD benefits were reinstated. On May 21, 2014, Aljahmi
underwent a medical examination scheduled by United, with Dr. Joseph Salama. Dr.
Salama believed that Aljahmi could work as a welder, should have restrictions of no
lifting of more than ten pounds with no bending, twisting, or squatting more than five
times an hour, and should continue with his medication regimen and trigger point
injections from time to time. Dr. Salama said that while Aljahmi is able to perform these
activities, it would increase his symptoms. Dr. Salama otherwise agreed with the
restrictions set forth by Aljahmi’s treating physicians. Dr. Salama was unable to
determine if the restrictions were permanent. Admin R. 11-3 Pg. ID 488.
Nurses reviewed various medical records for United. Nurse Julie Grancer did a
review on March 25, 2013. Grancer said Aljahmi could not carry more than twenty
pounds, and that he should avoid frequent neck flexion, overhead reaching, climbing,
crawling, frequent bending, extension and rotation, and repetitive wrist motion and
extremes of wrist flexion and extension. Admin R. Doc. 11-8 Pg. ID 1172. In a later
review of records, on July 13, 2013, Grancer precluded Aljahmi from constant neck
motion in flexion, extension and rotation, frequent overhead reaching, crawling and
climbing, repetitive motion of the right shoulder, repetitive bending/twisting, and lifting or
carrying greater than twenty pounds. Admin. R. Doc. 11-8 Pg. ID 1176.
On August 8, 2013, United had a transferable skills analysis (“TSA”) done by
Palmer Vocational Services, LLC. Douglas Palmer found that Aljahmi could perform
three light exertion level jobs: inserting machine operator, cafeteria attendant, and
automobile self-serve attendant, all of which Palmer noted existed where Aljahmi
On November 4, 2014, United had another TSA done, this time by Patricia Thal
of University Disability Consortium (“UDC”). Her finding was that Aljahmi could perform
four light exertional level jobs: gate guard/security, cashier, small product assembler,
and solderer, and two sedentary jobs: surveillance-system monitor and assembler,
semi-conductor. Admin R. Doc. 11-3 Pg. ID 392.
United terminated Plaintiff’s LTD benefits for a second time on March 23, 2015.
United relied on Thal’s TSA and on a medical review performed by a consultant on
February 25, 2015, Admin. R. 11-2 Pg. ID. 246-47. Aljahmi alleges the review report
cannot be found in the record, and, therefore, there was no such review.
Aljahmi appealed and presented additional medical and vocational evidence. Dr.
Maaz’s updated opinion dated April 14, 2015 noted that Aljahmi’s medical condition and
residual functional capacity were substantially the same. 11-1,177.
Aljahmi submitted two vocational expert reports and opinions. James Fuller’s
report describes Aljahmi’s English language communication skills as adequate, and at
best, basic, and found that Aljahmi can read on a 3.9 grade level and is functionally
illiterate. Mr. Fuller concluded that Aljahmi has only unskilled employment in his work
history, has no transferrable skills from education or work history, and that he is
unemployable and not a candidate for vocational rehabilitation services. 11-2 193-96.
Scott Silver opined that the surveillance system monitor job identified by Thal in
her TSA no longer exists in the economy and had been replaced by TSA government
jobs and casino security jobs, which are semi-skilled to skilled jobs that are of a light
In response to Aljahmi’s second appeal, United ordered a medical file review by
Dr. James Lambur of UDC and another TSA by Thal. Dr. Lambur did not treat or
examine Aljahmi, and concluded there is no consistent evidence of neurological
muscular or functional deficit, that none of the findings are of a severe nature, and, that
Aljahmi is able to engage in a sedentary level of activity. He also found that the
restrictions and limitations provided by attending physicians were not supported and
that while there was no evidence to support malingering, the lack of clinical evidence
supports the possibility of magnification. 11-1 147-54
Thai’s June 5, 2015, TSA found that Aljahmi could perform six light exertion level
jobs: in-store greeter and parking lot attendant, and the four from her earlier TSA, and
the same two sedentary jobs. Thal did not consider Aljahmi’s treating doctors’ opinions
in her TSA, or the opinions of Fuller and Silver.
STANDARD OF REVIEW
Fed. R. Civ. P. 56(c) provides that summary judgment is appropriate “if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.” In reviewing a motion for
summary judgment, “the evidence as well as all inferences drawn therefrom must be
read in a light most favorable to the party opposing the motion.” Kochins v. LindenAlimak, Inc., 799 F.2d 1128, 1133 (6th Cir.1986).
The movant has the initial burden to demonstrate the absence of a genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets
this burden, the nonmoving party must, by affidavit or otherwise as provided by Rule 56,
"set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P.
56(e). A genuine issue of material fact exists "if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). The essential inquiry is "whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law." Id. at 251-52. If the nonmoving party does
not respond with specific facts showing a genuine issue for trial, summary judgment is
appropriate Emmons v. McLaughlin, 874 F.2d 351, 353 (6th Cir.1989).
When considering cross-motions for summary judgment, the Court addresses
“each party’s motion on its own merits, taking care in each instance to draw all
reasonable inferences against the party whose motion is under consideration.” Taft
Broadcasting Co. v. United States, 929 F.2d 240, 248 (6th Cir.1991) (quoting Mingus
Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed. Cir.1987). The fact that
both parties moved for “summary judgment, and each contends in support of his
respective motion that no genuine issue of fact exists, does not require the Court to rule
that no issue exists.” Begnaud v. White, 170 F.2d 323, 327 (6th Cir.1948).
The Supreme Court ruled that “a denial of benefits challenged under §
1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives
the administrator or fiduciary discretionary authority to determine eligibility for benefits or
to construe the terms of the plan.” Firestone Tire and Rubber Co. v. Bruch, 489 U.S.
101, 115 (1989). “When applying a de novo standard in the ERISA context . . . [t]he
[plan] administrator’s decision is accorded no deference or presumption of correctness.”
Hoover v. Provident Life & Acc. Ins. Co., 290 F.3d 801, 808-09 (6th Cir.2006). The
district Court must take a “fresh look” at the administrative record. Wilkins v. Baptist
Healthcare System, Inc., 150 F.3d 609, 619 (6th Cir. 2003). The Court is to conduct its
review based “solely upon the administrative record,” id., and generally may not
consider “evidence not presented to the plan administrator.” Perry v. Simplicity Eng’g,
900 F.2d 963, 966 (6th Cir.1990).
To succeed on his claim for disability benefits under ERISA, Aljahmi “must prove
by a preponderance of the evidence that he was ‘disabled,’ as that term is defined” in
the Policy. Jarvey v. Lucent Techs., Inc. Long Term Disability Plan for Mgmt. Or LBA
Emples., 741 F.3d 686, 700 (6th Cir.2014).
Initially, it appears that post-appeal, Aljahmi complains of many ailments that he
alleges contribute to his disability. He added complaints of chronic obstructive
pulmonary disease, fatigued, impaired gait, side effects of medication, PSTD, obesity,
cardiomyopathy, and high blood pressure as causes of his disability. However, the
Court will not determine his disability for matters the administrator did not consider.
When it discontinued benefits in March, 2015, United had in its possession many
of the same documents that led it to re-instate Aljahmi’s LTD benefits on July 18, 2014.
These documents include:
-Dr. Suleiman’s February 8, 2013 Attending Physician’s Statement;
-Dr. Rahim’s examinations of Aljahmi, where United explains that on all thirty-five
of these occasions, Dr. Rahim found Aljahmi’s neck to be supple and without
swelling or tenderness and there was no complaint of shoulder pain. Twentythree of these reports were in United’s possession prior to re-instating Aljahmi’s
-Objective test results disclosed by Plaintiff, including five MRI’s and an
electrodiagnostic examination, all performed prior to April 30, 2011.
-Dr. Salama’s May 21, 2014 independent medical examination report.
United relied on all of this information in making its decision to re-instate
Aljahmi’s benefits. United did receive other information after re-instating Aljahmi’s
benefits on July 18, 2014 and before terminating benefits on March 23, 2015:
-Dr. Maaz’s September 11, 2014 and December 15, 2014 evaluations which note
that there is no numbness, tingling, or weakness in any of the extremities, no
joint pain, redness, or swelling, and no back pain. However, Dr. Maaz’s
assessment notes severe back and neck pain, secondary to herniated bulging
discs. He also says right cervical radiculopathy is a concern as well as bilateral
shoulder pain and left lumbar radiculopathy. These concerns are noted in all of
Dr. Maaz’s records.
-Thal’s November 14, 2014 TSA, which found Aljahmi able to perform two
sedentary jobs and four light level jobs.
-Dr. Maaz’s December 1, 2014 medical assessment, which notes that Aljahmi’s
medical condition and his residual functional capacity for work activity appear
worse than in the assessment completed on May 29, 2012. He said Aljahmi still
could not perform sedentary work or light work on a sustained basis, required
complete freedom to rest frequently without restriction, and was unable to work.
-Dr. Rahim’s December 21, 2014 Supplementary Report of Disability which
diagnosed Aljahmi as permanently and totally disabled.
-Dr. Rahim’s August 9, 2014 - January 6, 2015 consultation notes, which repeat
the same information from his notes upon examination taken prior to the reinstatement of LTD benefits: neck is supple with no swelling or tenderness, back
is tender on palpitation and muscles spasm, and there is normal movement of all
extremities, joint tenderness, muscle tenderness, and no swelling.
In deciding to terminate Aljahmi’s LTD benefits, United relied heavily on Dr.
Maaz’s September 11, 2014 and December 1, 2014 evaluation notes. These notes
mention there is no numbness, tingling, or weakness in any of the extremities, no joint
pain, redness, or swelling, and no back pain. It also relies on Thal’s TSA and
information it had prior to re-instating benefits. However, it appears to the Court that
United disregarded the rest of the documents submitted to it.
United had the opportunity to reconsider its decision to terminate Aljahmi’s
benefits, and possessed this additional medical evidence:
-Dr. Maaz’s April 3, 2015 evaluation which notes there is no numbness, tingling,
or weakness in any of the extremities, no joint pain, redness, or swelling, and no
back pain. However, the assessment notes severe back and neck pain,
secondary to herniated and bulging discs, and right cervical radiculopathy was a
concern. The record continued to reiterate bilateral shoulder pain and left lumbar
-Dr. Maaz’s April 14, 2015 medical assessment, which notes that Aljahmi’s
medical condition and his residual functional capacity for work activity are worse
than the assessment completed on May 29, 2012. Aljahmi still could not perform
sedentary work or light work on a sustained basis, required complete freedom to
rest frequently without restriction, and was unable to work.
-James Fuller’s April 14, 2015 Vocational Assessment which observed obvious
pain in Aljahmi’s movements, and noted that at best, Aljahmi had basic english
language communication skills, was functionally illiterate, incapable of using a
computer, incapable of working in competitive employment, had no wage earning
capacity, and was not a candidate for vocational rehabilitation services.
-Scott Silver’s May 20, 2015 Vocational Opinion, which explained that the
sedentary surveillance job suggested by United’s TSA’s no longer, exists.
-Thal’s June 5, 2015 TSA, where she found Aljahmi capable of two sedentary
jobs and six light level jobs.
-Dr. Lambur’s June 4, 2015 medical file review, which found no consistent
evidence was presented of notable neurological muscular or functional deficit
recorded, and he said the evidence of mild bilateral carpel tunnel and mild
lumbar radiculopathy was not severe in nature and Aljahmi was able to engage
at a sedentary level of activity.
In crafting her TSAs, Thal only considered the physical capacity limits set forth by
United’s nurse or doctors; she did not consider the limitations set forth by Aljahmi’s
treating doctors. In Spangler v. Lockhead Martin Energy Systems, 313 F.3d 356, 362
(6th Cir.2002), the Court concluded that an insurance company that did the same thing
was “cherry-picking” the file in hopes of obtaining a favorable report.
On June 8, 2015, United affirmed its decision to terminate Aljahmi’s benefits. The
Court regards the TSAs and paper review conducted by UDC with skepticism. The
Court in Velikanov, found the UDC to be biased and unreliable. Velikanov v. Union Sec.
Ins. Co., 626 F. Supp. 2d 1039, 1051-52. But this is not dispositive.
More importantly, the Court is puzzled by the little weight United gives to the
treating doctors’ opinions. While United did use parts of Dr. Maaz’s evaluations of
Aljahmi to justify its termination of the LTD benefits, it does not seem to have
considered the treating doctors’ opinions as a whole. While treating doctors’ findings are
not given deferential weight, United must give them due consideration and have good
reasons to reject their opinions. Elliot v. Metro. Life. Ins. Co., 473 F.3d 613, 620-21 (6th
Cir.2006). Nevertheless, giving great weight to a medical opinion that is neither the
result of treatment nor examination, for no apparent reason, in the face of ample
evidence of disability based on examinations and findings, leads this Court to conclude
that United acted arbitrarily in terminating benefits.
Furthermore, Dr. Lambur limited Aljahmi to sedentary work; this eliminates the
six light level jobs in Thal’s most recent TSA. That leaves the surveillance-system
monitor job and the assembler, semi-conductor job. Vocational expert Scott Silver
explained that the surveillance-system monitor job no longer exists: that job was taken
over by Homeland Security. Casinos security monitoring jobs now require more
experience and qualifications, and usually involve more than sedentary work.
To sum, the Court finds that Aljahmi is entitled to benefits.
Enlargement of the Record
United objects to Exhibit 1 of Plaintiff’s Brief, which is a letter from the Social
Security Administration dated September 9, 2014, and Exhibit 2 of Plaintiff’s Brief in
Response to Defendant’s Cross-Brief for Judgment, which is a letter from the Appeals
Council of the Social Security Administration dated October 20, 2015. The
administrative record closed on June 8, 2015. Exhibit 1 was available during
administrative review, but Aljahmi failed to submit it. Exhibit 2 came after June 8, 2015,
after the administrative record was closed.
The general rule is that “review of a denial of benefits by a district Court is
confined to the administrative record developed by the plan administrator.” Wilkins v
Baptist Healthcare Sys., Inc., 150 F.3d 609, 618 (6th Cir.1998) (citing Perry v. Simplicity
Engin'g, 900 F.2d 963, 966 (6th Cir.1990)). The exception is “where the plaintiff alleges
that she has been denied due process by the plan administrator, or the administrator
was burdened with a conflict of interest — issues on which the administrative record
itself would shed no light — circuit precedent permits additional evidence relevant to
those issues to be presented to the district court.” Id. at 619.
Price v. Hartford Life & Accident Ins. Co., 746 F. Supp. 2d 860, 862 (E.D. Mich. 2010)
Aljahmi alleges that these exhibits were filed solely to establish a procedural fact
concerning Aljahmi’s Social Security Disability case and to rebut Defendant’s
speculative conclusion that the claim was denied. The exhibits are stricken.
In his brief, Aljahmi argues that he should be awarded costs, attorney’s fees,
penalty, prejudgment, and postjudgment interest. Beyond citing to the five-factor test in
King, plaintiff provides no argument on how these factors should be applied. Sec’y of
the Dep’t of Labor v. King, 775 F.2d 666 (6th Cir.1985). Furthermore, he fails to provide
any guidance to the Court on calculation of interest. It is the Court’s belief that the 12%
penalty that Aljahmi refers to may be unlawful. Ford v. Uniroyal Pension Plan, 154 F.3d
613, 616 (6th Cir.1998). Defendant fails to address Plaintiff’s request for relief.
Accordingly, the Court directs the parties to attempt to stipulate to a judgment
amount that addresses these requests. Short of that, the parties will need to brief these
Aljahmi submitted medical evidence from numerous doctors who directly treated
him for years and consistently concluded that he was unable to work. Although there
were a few inconsistencies in Dr. Maaz’s evaluations, overall Dr. Maaz and the rest of
Aljahmi’s treating doctors repeatedly found him unable to work. The opinions of the
treating doctors presented to United after it reinstated benefits repeat essentially the
same information as the opinions prior to reinstatement. The only differences are Thal’s
TSAs and Dr. Lambur’s file review, which the Court views with skepticism and which
contradict each other. Neither Thal nor Lambur examined Aljahmi. United offers little to
contradict Aljahmi’s evidence. The Court finds by a preponderance of the evidence that
Aljahmi is entitled to benefits.
United’s decision is reversed. Aljahmi is entitled to benefits in the amount of
$1,467.44 per month from March 23, 2015 to the date of judgment. The parties are to
present a stipulated judgment that covers attorney’s fees, costs, penalty, prejudgment
and postjudgment interest. If they are unable to do that, they are required to file
A stipulated judgment or Plaintiff’s supplemental brief is due on October 14,
The Court DENIES Defendant’s Motion for Summary Judgment and GRANTS
Plaintiff’s Motion for Summary Judgment.
IT IS ORDERED.
s/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: September 30, 2016
The undersigned certifies that a copy of this
document was served on the attorneys of record
by electronic means or U.S. Mail on September
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