Rodriguez v. Life Insurance Company of North America

Filing 31

OPINION and ORDER granting in part and denying in part 25 Motion for Summary Judgment, and granting in part and denying in part 27 Motion for Judgment on the Administrative Record - Signed by District Judge Nancy G. Edmunds. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ALBA RODRIGUEZ,
Case No. 15-12768
Plaintiff,
Honorable Nancy G. Edmunds
v.
LIFE INSURANCE COMPANY OF NORTH
AMERICA,
Defendant.
/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT [25], AND GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION FOR JUDGMENT ON THE
ADMINISTRATIVE RECORD [27]
Plaintiff Dr. Alba Rodriguez filed this action against Defendant Life Insurance
Company of North America (“LINA”) seeking long-term disability (“LTD”) income benefits
under Section 502(a)(1)(b) of the Employee Retirement Income Security Act ("ERISA").
Currently before the Court is Plaintiff’s motion for summary judgment and Defendant’s
cross motion for judgment on the administrative record. For the reasons set forth below,
the Court GRANTS IN PART and DENIES IN PART Plaintiff’s motion, and GRANTS IN
PART and DENIES IN PART Defendant’s motion.
I.

FINDINGS OF FACT
In 1986, Plaintiff was involved in a motor vehicle accident, and she sustained

fractures to her spine, left hip, left acetabulum, and pelvis. She underwent pelvic
reconstruction surgery with hardware implants. In 1987, Plaintiff underwent a total left hip
arthroplasty. She was diagnosed with a cervical herniation in 2004. Years later, on January

28, 2012, Plaintiff slipped and fell, allegedly in the course of her work. Worker’s
compensation benefits were denied, and the claim remains pending. As a result of this slip
and fall, Plaintiff re-injured her left hip and back. Plaintiff was 45 years old on her alleged
disability onset date of May 24, 2012.
Plaintiff is an eligible participant in the Long Term Disability Plan for employees of the
Henry Ford Health Service, for which Defendant LINA is the insurer. Under the LTD Plan,
the claimant must provide LINA with “satisfactory proof of Disability before benefits will be
paid,” and LINA requires “continued proof of the Employee’s Disability for benefits to
continue.” (Dkt. # 10-3, Pg ID 540). In relevant part, a claimant must provide LINA
satisfactory proof that she was continuously disabled throughout the entire “Elimination
Period,” which for Plaintiff was 180 days. See id. at Pg ID 527, 540.
The LTD Plan defines “Disability/Disabled” during the first 24 months (the “own
occupation” period) as follows.
The Employee is considered Disabled if, solely because of Injury or Sickness,
he or she is:
1. unable to perform the material duties of his or her Regular Occupation; and
2. unable to earn 80% or more of his or her Indexed Earnings from working
in his or her Regular Occupation.
Id. at Pg ID 526.
The LTD Plan defines “Disability/Disabled” after 24 months (the “any occupation”
period) as follows.
After Disability Benefits have been payable for 24 months, the Employee is
considered Disabled if, solely due to Injury or Sickness, he or she is:
1. unable to perform the material duties of any occupation for which he or she
is, or may reasonably become, qualified based on education, training or
experience; and
2. unable to earn 60% or more of his or her Indexed Earnings.
2

Id.
Under the LTD Plan, LINA may reduce the amount of LTD benefits payable by the
amount of “Other Income Benefits,” which include any amounts received or assumed to
be received by the employee under social security and/or worker’s compensation. Id. at Pg
ID 540-41.
At the alleged disability onset date, Plaintiff had been employed by Henry Ford Health
Service as Associate Director of the Center for Integrative Wellness. Her job was
considered a Program Manager skilled job. According to the Program Manager job
description, Plaintiff’s duties included leading group wellness programs with 100+
attendees, traveling to corporate offices and conference centers, developing and
implementing all operational aspects of the group wellness programs, overseeing activities
and training of support personnel and group program leaders, serving on internal and
external committees, and writing publications. (Dkt. # 10-2 at Pg ID 406-07). The job
required a doctorate degree. Id. at Pg ID 407. According to the Dictionary of Occupational
Titles (“DOT”), the job of Program Manager has a Specific Vocational Preparation of four
to ten years (level 8 out of a possible 9 levels). It requires the ability to apply principles of
logical or scientific thinking to define problems, collect data, establish facts, and draw valid
conclusions; interpret an extensive variety of technical instructions in mathematical or
diagrammatic form; and deal with several abstract and concrete variables (Reasoning
Development level 5). The Program Manager job also requires Mathematical Development
at a level 5 and Language Development at a level 5 (out of a possible 6 levels).
On June 16, 2012, approximately five months after her slip and fall accident, Plaintiff
underwent an invasive and long revision surgery of the total left hip arthroplasty. Id. at Pg
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ID 449-51. Dr. Robb Weir, Plaintiff’s orthopedic surgeon, initially estimated that Plaintiff
would be able to return to work without restrictions on September 10, 2012. Id. at Pg ID
463. Plaintiff had a follow up visit with Dr. Weir on October 24, 2012. Id. at Pg ID 434. Dr.
Weir noted that Plaintiff was continuing to improve, was participating in physical therapy
and water therapy, and denied any pain with weightbearing in the leg. Dr. Weir further
noted that Plaintiff was somewhat limited due to her back, and he referred her to Dr.
Shlomo Mandel to address her back pain. Dr. Weir recommended another 4-6 weeks off
work. He delayed her work release date to December 10, 2012. Id. at Pg ID 427.
Plaintiff collected short-term disability (“STD”) benefits from June 25, 2012 through
December 9, 2012, at which point continued STD benefits were denied. (Dkt. # 10-1 at Pg
ID 272, 305). Plaintiff’s STD claim is not at issue in this case.
LINA first denied Plaintiff’s claim for LTD benefits on November 30, 2012, explaining
that Plaintiff had failed to provide satisfactory proof that she was “Disabled” throughout the
entire Elimination Period: “Your first day of disability was June 18, 2012. You would not
have satisfied the elimination period until December 24, 2012. According to the information
on file, you were released to work on December 10, 2012.” Id. at Pg ID 258.
Subsequently, LINA received additional medical records from Dr. Mandel and Dr.
Weir. These, along with all other records in the file, were reviewed by a Claim Manager and
a Nurse Claim Manager. Id. at Pg ID 233. On December 7, 2012, Dr. Mandel saw Plaintiff
and noted that an MRI conducted on November 23, 2012 showed disk bulging at the L5-S1
level. (Dkt. # 10-2, Pg ID 401). Dr. Mandel noted that Plaintiff has limited flexion and
extension and pain with straight leg rising. Dr. Mandel further noted that Plaintiff
complained of numbness and paresthesias. On December 12, 2012, Dr. Weir again
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delayed Plaintiff’s work release date until January 2, 2013. Id. at Pg ID 394. On December
18, 2012, the Nurse Case Manager reached out to Dr. Weir to clarify Plaintiff’s restrictions,
and Dr. Weir indicated that Plaintiff could return to work on January 2, 2013. Dr. Weir did
not place any activity restrictions at that time. (Dkt. # 10 at Pg ID 86). On December 19,
2012, Dr. Mandel completed a Physical Abilities Assessment form, and noted that
Plaintiff’s restrictions were limited sitting and no repetitive lifting, stooping, bending, or
twisting. (Dkt. # 10-2 at Pg ID 389-90). On December 21, 2012, the Nurse Claim Manger
spoke with Dr. Mandel’s office to clarify Plaintiff’s restrictions. According to the nurse’s
notes, Dr. Mandel’s staff indicated that Plaintiff was capable of sitting frequently with
position changes and capable of sedentary work. (Dkt. # 10 at Pg ID 86).
On December 28, 2012, LINA again denied Plaintiff’s claim for LTD benefits. (Dkt. #
10-1 at Pg ID 232-34). The denial letter notes that Plaintiff’s treating providers do not give
any measurable exam findings to support a functional impairment that would preclude her
from performing her own occupation as a Program Manager, a sedentary occupation under
the DOT.
Plaintiff filed her first administrative appeal on June 27, 2013. (Dkt. # 10-2 at Pg ID
374). Plaintiff submitted additional medical documentation, including a Work/School Letter
from Dr. Mandel, a letter from Dr. Ramon Nunez, an office visit note from Dr. Steven Fried,
and a Medical Questionnaire from Dr. Fried.
In a Work/School Letter, dated April 26, 2013, Dr. Mandel wrote that he examined
Plaintiff on April 8, 2013. He recommended that Plaintiff may return to work with the
following restrictions: no repetitive squatting, bending, or lifting; no lifting in excess of ten
pounds; and limited sitting with frequent position change as needed. Id. at Pg ID 385.
5

In a letter dated June 26, 2013, Dr. Ramon Nunez of the Waterford Center for
Integrative Medicine noted that his examination of Plaintiff revealed left hip pain with
movement; left pelvis pain on palpitation; muscle contractions of left hip flexors, quadriceps
femoris, and vastus medialis; spasms of the left quadratus lumborum, left lower multifidus,
right trapezius, right rhomboids, and right upper latissimus; overall increased muscle tone
of right and left intercostals; and left wrist pain with movement. Id. at Pg ID 384. His letter
does not specify dates of examination and does not note specific restrictions. It states that
Plaintiff continues with her pain management treatments, which include acupuncture,
neuromuscular reeducation, myofascial release, and therapeutic exercise.
Plaintiff saw Dr. Steven Fried, her primary care provider of many years, on June 25,
2013. The objective portion of the visit note indicates that Plaintiff had good strength in her
four extremities but decreased range of motion in her left hip. Id. at Pg ID 381. The note
further states that Plaintiff has chronic left hip pain; herniated lumbar intervertebral disc;
herniated nucleus pulposus, cervical; arthritis; compression fracture; and memory
impairment. Id. Dr. Fried noted that Plaintiff is taking Valium, Norco, Skelaxin, and
Oxycodone. Dr. Fried acknowledged that he has tried to help Plaintiff as her primary care
provider, but that he and Plaintiff agree that Plaintiff should see a physical medicine and
rehabilitation specialist. Id. at Pg ID 380, 382. Dr. Fried opined that Plaintiff’s restrictions
would likely prevent her from working in her usual occupation at that time. Id.
The Medical Questionnaire from Dr. Fried, dated June 26, 2013, indicates that
Plaintiff has acute and chronic back pain as well as left hip pain after replacement, and that
physical therapy has helped. Id. at Pg ID 376. Dr. Fried noted that Plaintiff has significant

6

trouble walking due to pain, and that she has a reasonable need to lie down during the day
for 1-2 hours due to pain. Id. at Pg ID 378. He opined that Plaintiff can travel alone, and
that she can occasionally carry a weight of 5 to 10 pounds. Id. He further opined that the
pain moderately interferes with Plaintiff’s concentration, attention, and performance. Id. at
Pg ID 379. Dr. Fried anticipated that Plaintiff’s physical impairments and treatment would
cause her to be absent from work four times a month or more. Id.
Following Plaintiff’s filing of her first administrative appeal, LINA had an Appeals
Specialist and a Medical Director (Dr. Nick Ghaphery, board certified in family practice)
review Plaintiff’s claim file in its entirety. (Dkt. # 10 at Pg ID 62). Dr. Ghaphery concluded
that the medical records did not support restrictions that would amount to an inability to
perform Plaintiff’s sedentary occupation of Program Manager.
On October 29, 2013, LINA affirmed its denial of Plaintiff’s LTD claim. (Dkt. # 10-1 at
Pg ID 219-21). The denial letter notes that Dr. Weir released Plaintiff to return to work
without restrictions on January 2, 2013. It further notes that the restrictions in Dr. Mandel’s
Work/School Letter and Dr. Fried’s Medical Questionnaire are not supported by the
medical information on file. The letter explains that Dr. Fried’s office visit note revealed that
Plaintiff had good strength in all four extremities and was in no distress, and that Dr. Nunez
did not provide additional physical examinations that would limit Plaintiff’s ability to function
at the sedentary demand level with ability to change positions.
Following this denial, Plaintiff submitted additional office visit notes and a Physical
Medical Questionnaire from Dr. Nuala Crotty. The first office visit note, dated September
6, 2013, indicates that Plaintiff has chronic low back pain and left thigh pain. (Dkt. # 10-2
at Pg ID 355). Dr. Crotty noted that Plaintiff’s overall condition is improving but fluctuates.
7

Id. at Pg ID 356. The objective portion of the note indicates that Plaintiff has antalgic gait,
atrophy of the left calf and buttock, guarded range of motion of the lumbar spine, severe
tightness in the hamstrings, and decreased muscle strength in the hip. Id. at Pg ID 358. Dr.
Crotty recommended regular stretching and prescribed diazepam, hydrocodoneacetaminophen, and oxycodone. Id. at Pg ID 352-53. She noted that Plaintiff feels
excessively sleepy during the day. Id. at Pg ID 356. The second office visit note, dated
September 13, 2013, indicates that Plaintiff has headaches and myofascial, lower back,
neck, shoulder, and leg pain that have worsened since her slip and fall accident. Id. at Pg
ID 350. The objective portion of the note indicates that Plaintiff’s right shoulder is
noticeably elevated compared to the left, that she has antalgic gait, and that her right
trapezius, right levator scapulae, right pectoralis, and right latissimus dorsi were noticeably
tight. Id. at Pg ID 351. Dr. Crotty reviewed a cervical spine MRI from 2004, which showed
disk herniations and increased T2 signal in the disks suggesting annular tears. Id.
The Medical Questionnaire, dated September 17, 2013, indicates that Dr. Crotty
specializes in “Physiatry / Medical Spine.” Id. at Pg ID 346. Dr. Crotty noted that Plaintiff’s
prognosis is “Fair / good.” She opined that Plaintiff does not have a reasonable need to lie
down during the day, but that she can continuously stand for only two minutes and sit
upright for only ten to fifteen minutes at a time. Id. at Pg ID 348. Dr. Crotty noted that
Plaintiff has moderate limitations in her ability to bend, balance, and twist and turn her
lower body, and that she has marked limitations in her ability to pull, push, twist and turn
her upper body, squat, kneel, and climb. Id. Dr. Crotty opined that Plaintiff’s pain
moderately interferes with her concentration, attention, and performance. Id. at Pg ID 349.

8

On November 8, 2013, LINA informed Plaintiff via letter that the new documentation
from Dr. Crotty was reviewed and did not change LINA’s prior decision because Dr. Crotty
provided no further limitations that would interfere with Plaintiff’s ability to perform
sedentary work. (Dkt. # 10-1 at Pg ID 209).
On April 28, 2014, Plaintiff re-submitted the documentation from Dr. Crotty and
requested that LINA reconsider its October 29, 2013 decision affirming its denial of
Plaintiff’s LTD claim. On May 9, 2014, LINA responded that a second request for appeal
must include new medical information relevant to the time period at issue. Id. at Pg ID 208.
On March 26, 2015, Plaintiff submitted a second appeal with additional
documentation, including medical records from Dr. Simon Faynzilberg and a fully favorable
decision from the Social Security Administration (“SSA”). (Dkt. # 10-2 at Pg ID 325).
Plaintiff first saw Dr. Faynzilberg, board certified in anesthesiology and pain medicine,
at the Anna Jaques Hospital Comprehensive Pain Center on July 10, 2014. Id. at Pg ID
342. His notes indicate that Plaintiff tried several medications but they made her sleepy,
and she could not tolerate them. Dr. Faynzilberg reviewed an MRI, dated November 23,
2012, which revealed mild degenerative changes: “Facet arthropathy at L4-L5 and L5-S1.
Bilateral pars articularis defect with minimal anterolisthesis at L5-S1.” Id. Dr. Faynzilberg
also performed a physical examination, which revealed ambulation with a limp, decreased
range of motion in the lumbar spine, and a positive facet loading test. Dr. Faynzilberg
described his impressions as follows.
Ms. Rodriguez presented with a very complex chronic pain syndrome status
post initial injury in ‘86, and a second injury in 2012. Status post left total hip
revision. As far as her lumbosacral area pain, most likely it is related to
degenerative disk disease and facet arthropathy. Significant myofascial
component as well. Left lower extremity pain is definitely related to very
9

invasive surgery / left total hip revision.
Id. at Pg ID 343. Dr. Faynzilberg noted that he believes that the myofascial pain is “very
significant in this case.” He recommended two different muscle relaxants as well as “medial
branch blocks / facet joint injection and radiofrequency ablation.” Id.
Plaintiff had a follow-up visit with Dr. Faynzilberg on August 20, 2014. Id. at Pg ID
340. Dr. Faynzilberg noted that the muscle relaxants he prescribed the last time did not
provide significant pain relief. The physical examination results and impressions were the
same as during the last visit. Dr. Faynzilberg and Plaintiff again discussed medial branch
blocks and radiofrequency ablation to address her facet joint arthropathy, and Plaintiff
again requested more time to consider it.
Plaintiff next saw Dr. Faynzilberg on December 5, 2014. Id. at Pg ID 338. The physical
examination results and impressions were the same as during the last visit. Dr. Faynzilberg
and Plaintiff again discussed medial branch blocks and radiofrequency ablation: “The
patient is still, I believe, not very comfortable with this idea. I spent a long time to discuss
it and explained potential side effects and benefits.” Id. Lastly, Dr. Faynzilberg noted that
Plaintiff asked him to complete a form, which was “essentially a functional capacity test.”
He explained that the form should be completed in a special setting with a physical
therapist who specializes in conducting functional capacity tests.
On January 6, 2015, the SSA issued a fully favorable decision in Plaintiff’s case.
Administrative Law Judge B. Lloyd Blair (the “ALJ”) found Plaintiff has a “residual functional
capacity to perform sedentary work . . . except that she requires the ability to change
positions every 15 minutes; . . . and due to pain and other symptoms of her impairments,

10

she would be off task for 20% of the work shift.” Id. at Pg ID 332. The ALJ noted that
Plaintiff testified that she “spends most typical days sitting in a recliner and getting up as
needed. She estimated that she can lift about five to ten pounds and stand for a couple of
minutes. She can sit in a recliner for about 15 minutes.” Plaintiff estimated that she has a
bad day during which she cannot walk at all about one to three times per week. Plaintiff
testified that she lies down for about one or two hours due to fatigue and pain, and that her
pain medications knock her out.
The ALJ found Plaintiff to be credible in particular because of her work history and
earnings records prior to the time she became disabled:
The claimant has a doctoral degree and in each of the 10 years before her
alleged onset on [sic] disability she earned at least $50,000 per year working
in various medical-academic professions that were generally sedentary or light
in exertional demands . . . . With such earning capacity, the claimant would be
highly motivated to return to work and it is highly unlikely that she would
remain unemployed if she were not genuinely unable to work as a result of her
impairments.
Id. at Pg ID 333.
The ALJ further found that, as a result of Plaintiff’s “persistent pain that has not
responded well despite revision surgery, rehabilitative therapy, acupuncture, myofascial
release therapy, and medications,” Plaintiff would be off task for 20% of the work shift. The
ALJ then went on to find that Plaintiff was unable to perform any past relevant work, and
that Plaintiff is disabled because her additional limitations so narrow the range of sedentary
work that she might otherwise perform.
On Plaintiff’s second appeal, LINA sent her entire claim file to Dr. Sloane R. Blair,
board certified in orthopedic surgery, for an Independent Peer Review. Id. at Pg ID 316.
In his report, dated May 15, 2015, Dr. Blair summarized Plaintiff’s records and attempted
11

to contact Dr. Nunez, Dr. Mendel, and Dr. Weir. Dr. Nunez phone number was
disconnected, and Dr. Blair could not locate an alternate number. Id. at Pg ID 319. Dr. Blair
spoke with an office assistant for both Dr. Mendel and Dr. Weir. She stated that Plaintiff
had not seen Dr. Mendel since April 2013, and that he had released her to work with the
following restrictions, which were effective until July 8, 2013: no repetitive squatting,
bending, or lifting; no lifting in excess of 10 pounds; limited sitting with frequent position
changes as needed. Id. The office assistant further stated that Plaintiff had not seen Dr.
Weir since April 2013. After three months following Plaintiff’s surgery, Dr. Weir did not
prescribe any restrictions but recommended additional weeks off work. Id. at Pg ID 320.
There is no indication in the report that Dr. Blair ever attempted to contact Plaintiff, Dr.
Fried, Dr. Crotty, or Dr. Faynzilberg, the doctors that Plaintiff had more recently been
treating with.
Dr. Blair determined that for the period of June 18, 2012 to May 15, 2015, Plaintiff
was functionally limited, noting that the pathology of her lumbar spine and left hip require
frequent position changes while sitting. Id. Dr. Blair goes on to find that Plaintiff requires
medically necessary work activity restrictions described as follows.
Work restrictions would include limitations to sitting to allow for position
changes every 15 to 30 minutes. Limitations to standing or walking,
occasionally, up to 1/3 of the day with use of an assistive devise as necessary.
Lifting and carrying of up to 10 pounds, occasionally up to 1/3 of the day.
Reaching and overhead lifting of no more than 10 pounds, occasionally, to up
to 1/3 of the day. No climbing stairs, stools and ladders. No bending or twisting
at the waist, stooping, kneeling, crouching, or crawling. No restrictions to fine
manipulation and simple grasping (frequently/constantly, up to 2/3 of the day).
Id. at Pg ID 321.
Dr. Blair noted in his report that the SSA determined that Plaintiff has been disabled
12

since May 2012, but he did not discuss the SSA decision any further. Id. at Pg ID 319.
Following her second appeal, Plaintiff’s claim file was also reviewed by a Vocational
Specialist and an Appeals Specialist. (Dkt. # 10-1, Pg ID 199). The Vocational Specialist
was asked to review Dr. Blair’s report and comment as to whether or not the restrictions
and limitations were consistent with the physical demands of Plaintiff’s own occupation. Id.
at Pg ID 40. She concluded that the restrictions noted in Dr. Blair’s report “are consistent
with the required physical demands of her occupation as Program Manager, 189.167-030,
Sedentary, at this time.” Id.
On June 4, 2015, LINA upheld its decision denying Plaintiff’s claim for LTD benefits.
Id. at Pg ID 198. The letter concludes that Plaintiff’s restrictions and limitations are
consistent with the physical demands of Plaintiff’s regular occupation, and that the
available medical information does not support that Plaintiff was functionally impaired
continuously throughout the Elimination Period. Id. at Pg ID 199. The letter also states that
LINA considered the fact that SSA awarded benefits to Plaintiff, without discussing the
SSA decision. Id.
II.

STANDARD OF REVIEW
“[A]n administrator’s decision to deny benefits is reviewed under a de novo standard

unless the plan provides the administrator with ‘discretionary authority to determine
eligibility for benefits or to construe the terms of the plan.’” Hoover v. Provident Life &
Accident Ins. Co., 290 F.3d 801, 807 (6th Cir. 2002) (quoting Firestone Tire & Rubber Co.
v. Bruch, 489 U.S. 101, 115 (1989)). The parties in this case agree that the appropriate
standard of review is de novo.

13

When applying a de novo standard in the ERISA context, the role of the court
reviewing a denial of benefits is to determine whether the administrator made
a correct decision. The administrator’s decision is accorded no deference or
presumption of correctness. The review is limited to the record before the
administrator and the court must determine whether the administrator properly
interpreted the plan and whether the insured was entitled to benefits under the
plan.
Hoover, 290 F.3d at 808-09 (citing Perry v. Simplicity Eng’g, 900 F.2d 963, 966-67 (6th Cir.
1990)) (quotations and citations omitted).
III.

ANALYSIS
A. Plaintiff’s Long Term Disability During the “Own Occupation” Period
Plaintiff argues that Defendant wrongfully denied her LTD claim relying on the

opinions of its record reviewers without giving adequate consideration to the opinions of
her treating physicians and her combined medical impairments. Plaintiff also argues that
Defendant failed to make the required vocational showing that Plaintiff can return to
appropriate work.
Defendant responds that it properly denied Plaintiff’s claim because two physicians,
a nurse case manager, and a vocational rehabilitation counselor concluded that the
medical records on file did not demonstrate functional impairments that would preclude
Plaintiff from performing her own sedentary occupation. Defendant argues that Plaintiff
failed to submit satisfactory proof of disability as required by the Policy and Sixth Circuit
precedent.
When evaluating conflicting physician opinions in the ERISA context, a treating
physician’s opinion is not afforded special weight. Black & Decker Disability Plan v. Nord,
538 U.S. 822, 834 (2003). Nonetheless, plan administrators “may not arbitrarily refuse to

14

credit a claimant’s reliable evidence, including the opinions of a treating physician.” Id.
“[W]hen a plan administrator favors a conclusory independent medical consultant report
over the findings of a claimant’s treating physician, that decision may properly be
considered arbitrary.” Blajei v. Sedgwick Claims Mgmt. Servs., Inc., 721 F. Supp. 2d 584,
602 (E.D. Mich. 2010) (citing Kalish v. Liberty Mutual/Liberty Life Assur. Co. of Boston, 419
F.3d 501, 509-10 (6th Cir. 2005); Calvert v. Firstar Finance, Inc., 409 F.3d 286, 296-97 (6th
Cir. 2005)).
While a plan administrator's reliance on file reviews is not, standing alone, inherently
objectionable, "the failure to conduct a physical examination — especially where the right
to do so is specifically reserved in the plan — may, in some cases, raise questions about
the thoroughness and accuracy of the benefits determination. Calvert, 409 F.3d at 295.
This is particularly true where the plan administrator does not explain why it disagrees with
a favorable SSA determination. See Bennett v. Kemper Nat'l Servs., Inc., 514 F.3d 547,
555 (6th Cir. 2008).
The proof of disability submitted by Plaintiff in this case included multiple
examinations and physician statements referencing what has been consistently described
as a very invasive revision surgery of a total left hip arthroplasty in 2012, as well as
objective tests, MRIs, X-rays, and consistent subjective complaints of chronic pain. The
medical evidence shows the existence of the following physical impairments that form the
basis of Plaintiff’s chronic pain syndrome diagnosis: degenerative disk disease,
spondylosis, facet arthropathy and disk bulging at at L4-L5 and L5-S1, bilateral pars
articularis defect with minimal anterolisthesis at L5-S1, T12-L1 compression fracture with

15

loss of vertebral height at L1, decreased muscle strength and decreased range of motion
in the left hip, decreased range of motion in the lumbar spine, atrophy of the left calf and
buttock, severe tightness in the hamstrings, antalgic gait, and arthritis. Indeed, Dr. Blair
recognized the sources of Plaintiff’s pain in his Independent Peer Review report prepared
at LINA’s request:
[T]he claimant is functionally limited from 06/10/2012 to present. The claimant
had sustained an injury to the left hip previously which was complicated by a
fall in January 2012. The claimant underwent a left revision total hip
arthroplastly and repair of a femur fracture that was discovered
intraoperatively. During the claimant's postoperative recovery and
rehabilitation, she reported difficulty due to increased pain to the left lower
extremity and low back. Results from an MRI of the lumbar spine done in
11/2012 revealed degenerative changes with a prior T12-L1 compression
fracture with loss of vertebral height at L1. The claimant is noted to have
spondylosis and facet arthropathy of the lumbar spine with limited range of
motion, as well as chronic left hip pain with limited range of motion due to the
pain. Weakness was noted to the left lower extremity with examination findings
in 09/2013. Hip flexion 5/2+, hip abduction 4/2-. Quadriceps 5/jerking, able to
extend only 90% of the way. Tibalis anterior, 5/5/, peroneal 5/jerking about 4and EHL 5/5. The claimant has continually reported pain with weakness to the
left lower extremity following the 06/2012 total left hip arthroplasty revision and
repair of femur fracture. X-rays revealed the hip and hardware are aligned.
However, due to the nature of the injury and surgery, the claimant continues
to complain of pain with weakness to the left lower extremity. The claimant has
developed atrophy to the muscles to the left lower extremity since her 01/2012
injury.
(Dkt. # 10-2, Pg ID 320).
Based on the aforementioned medical evidence, and after conducting objective
testing during physical examinations on September 6 and 13, 2013, Dr. Crotty concluded
that Plaintiff’s pain is likely to interfere to a moderate degree with her ability to maintain
sustained concentration, attention, and performance in a work setting — in addition to
finding that Plaintiff has several physical limitations. See id. at Pg ID 351, 358, 363.
Likewise, Dr. Fried, who has been Plaintiff’s primary care physician for many years, opined
16

that Plaintiff’s severe pain is likely to interfere to a moderate degree with her ability to
maintain sustained concentration, attention, and performance in a work setting — in
addition to finding that Plaintiff has several physical limitations. Id. at Pg ID 376-79.
Dr. Fried noted that he reviewed the 2012 MRI, and he also conducted a physical
examination of Plaintiff on June 25, 2013, which revealed decreased range of motion in the
left hip. Id. at Pg ID 376, 381. Dr. Fried opined that Plaintiff’s restrictions would likely
prevent her from working in her usual occupation at that time. Id. at Pg ID 382.
Subsequently, the SSA also determined that Plaintiff’s pain limits her ability to
concentrate at work, finding that the opinions of Dr. Crotty and Dr. Fried are well supported
by objective evidence:
Considering the evidence as a whole including the left hip replacement
surgeries and the consistent findings of antalgic gait and reduced strength in
the left lower extremity on physical examinations along with the MRI findings
of lumbar spondylosis, the undersigned finds that the claimant is limited to a
reduced range of sedentary work with the specific additional restrictions
identified above. Notably, as a result of her persistent pain that has not
responded well despite revision surgery, rehabilitative therapy, acupuncture,
myofascial release therapy, and medications, she would be off task for 20%
of the work shift.
Id. at Pg ID 335.
Consistent with the findings of Dr. Crotty, Dr. Fried, and the SSA, Dr. Faynzilberg
found that Plaintiff has a very complex chronic pain syndrome after reviewing Plaintiff’s
history and conducting objective testing during his physical examinations on July 10, 2014,
August 20, 2014, and December 5, 2014. In his capacity as a pain medicine expert, he
opined that the myofascial pain in Plaintiff’s case is “very significant.”
Reviewing LINA's decision to deny benefits to Plaintiff under the de novo standard,
based on the administrative record, the Court finds that LINA's decision was incorrect and
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that Plaintiff submitted satisfactory proof of Disability as required by the Policy. After
conducting file reviews at LINA’s request, two physicians, a nurse, and a Vocational
Specialist all concluded that the medical records did not support restrictions and limitations
that would preclude Plaintiff from the demands of her own occupation. However, nothing
in the record indicates that these reviewers considered the cognitive demands of Plaintiff’s
own occupation, or the degree to which Plaintiff’s pain interferes with her ability to
concentrate and meet the cognitive demands of her own occupation. See Rabuck v.
Hartford Life & Acc. Ins. Co., 522 F. Supp. 2d 844, 876 (W.D. Mich. 2007) (finding that
physician file reviewer’s utter failure to assess the plaintiff’s nonexertional limitations
rendered his opinion incredible). As discussed above, the Program Manager job requires
highly functioning cognitive abilities. Notably, LINA never addressed Plaintiff’s treating
physicians’ opinions that Plaintiff’s severe pain is likely to interfere with her ability to
maintain sustained concentration, attention, and performance in a work setting. Nor did
LINA address the SSA’s determination regarding Plaintiff’s pain. Pointing to existing
objective data in the record, the SSA agreed with Plaintiff’s treating physicians and
determined that Plaintiff was totally disabled, finding that she would be off task for 20% of
the work shift due to chronic pain that has not responded well to a variety of interventions.
While the SSA decision is not binding on LINA, it is "far from meaningless." See Calvert,
409 F.3d at 294 (noting that, at minimum, a favorable SSA determination provides support
for the conclusion that an administrative agency charged with examining the plaintiff's
medical records found objective support for the opinions of the plaintiff's treating
physician). While LINA did not have to specifically refute the SSA’s reasoning, it is notable

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that Dr. Blair did not discuss at all the degree to which Plaintiff’s pain would interfere with
her ability to concentrate and meet the cognitive demands of her own occupation. The
Court also notes that while Dr. Blair attempted to contact Dr. Weir, Dr. Mandel, and Dr.
Nunez, he did not attempt to contact Plaintiff or Dr. Crotty, Dr. Fried, or Dr. Faynzilberg, the
treating physicians that had been more recently treating Plaintiff. See Dkt. # 10-2, Pg ID
319-20. Further, while Dr. Blair’s report contains brief mention of some of the medications
that Plaintiff has taken, it lacks any substantive discussion of the medications’ actual or
potential impact on Plaintiff’s ability to perform her own occupation. See id. at Pg ID 31621.1
Plaintiff’s argument that she cannot perform her own skilled occupation of Program
Manager because of her pain and combined medical impairments is persuasive. Dr. Fried,
Dr. Crotty, and Dr. Faynzilberg all supported the underlying diagnosis of chronic pain. Dr.
Crotty and Dr. Fried both opined that Plaintiff’s pain would moderately interfere with her
ability to concentrate and perform her own occupation. In addition, Dr. Fried opined that
Plaintiff had a reasonable need to lie down during the day for relief from pain, that her
restrictions would likely prevent her from working in her usual occupation, and that her
physical impairments and treatment would cause her to be absent from work four times a

1

LINA makes much of the fact that Dr. Weir, the orthopedic surgeon who
performed Plaintiff’s revision surgery, cleared Plaintiff to return to work in December
2012 (later postponed to January 2013), but there is no indication that Dr. Weir
continued to treat Plaintiff after she sufficiently recovered from immediate impact of the
surgery. Rather, other doctors took over her care and rehabilitation. There is also some
indication in the record that Plaintiff was unable to secure another appointment with Dr.
Weir as planned due to his limited availability, and that Plaintiff lost her health
insurance sometime in 2012 and had limited access to care. See Dkt. # 10-2, Pg ID
334, 380.
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month or more. While the opinions of Plaintiff’s treating physicians are not afforded a
presumption of correctness, the Court notes that these doctors physically examined
Plaintiff a number of times and were in a better position than LINA’s file reviewers to
observe and evaluate Plaintiff’s subjective levels of pain caused by her underlying
conditions. Furthermore, while the opinions of Plaintiff’s treating physicians do not perfectly
track each other, the Court finds that they support each other and are substantially in
agreement. Looking at the administrative record as whole under the de novo standard, the
Court concludes that the opinions of Plaintiff’s treating physicians discussed above are well
supported. The Court also finds the SSA’s determination that Plaintiff would be off task
20% of her work shift and is unable to perform any past relevant work to be persuasive,
given that Plaintiff’s pain has been consistently documented throughout the years, and
given that the physical impairments that form the source of Plaintiff’s pain have been
objectively identified. LINA has not shown how someone with Plaintiff's chronic pain
syndrome could be expected to function on a daily basis at the level of concentration and
cognitive functioning required of a Program Manager. The Court notes that LINA reserved
the right to physically examine Plaintiff yet chose not to exercise that right.
B. Plaintiff’s Long Term Disability During the “Any Occupation” Period
Plaintiff also seeks judgment in her favor as to benefits beyond December 24, 2014
during the “any occupation” period. The Court declines this request because there has
been no administrative determination as to whether Plaintiff is eligible for benefits during
the “any occupation” period. Defendant correctly notes that LINA denied Plaintiff’s LTD
claim at inception and only ever analyzed it under the “own occupation” standard, and the
administrative record does not contain any information regarding Plaintiff’s ability to
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perform the material duties of any occupation and earn 60% or more of her Indexed
Earnings. Accordingly, the Court will remand this matter for LINA to make that initial
determination. See, e.g., Pierzynski v. Liberty Life Assur. Co. of Boston, No. 10-14369,
2012 WL 3248238, at *7 (E.D. Mich. Aug. 8, 2012); Counsell v. Liberty Life Assur. Co. of
Boston, No. 08-14236, 2010 WL 1286695, at *6-7 (E.D. Mich. Mar. 31, 2010).
For this reason, the Court will also deny Plaintiff’s request for a declaratory judgment
regarding future benefits. Additionally, Plaintiff continues to be subject to the Policy
requirement of providing continuous and satisfactory proof of Disability.
C. Accounting
Lastly, in her motion, Plaintiff seeks an accounting by Defendant. Defendant correctly
notes that Plaintiff did not seek an accounting in her Complaint. The Court finds that this
type of relief is inappropriate in this straightforward claim for LTD benefits under ERISA
Section 502(a)(1)(b). See Rochow v. Life Ins. Co. of N. Am., 780 F.3d 364, 372-73 (6th Cir.
2015), cert. denied, 136 S. Ct. 480 (2015) (explaining that the availability of equitable relief
under ERISA Section 502(2)(3) is contingent on a showing that the claimant could not avail
herself of an adequate remedy pursuant to Section 502(a)(1)(B)).
IV. CONCLUSION
For the reasons set forth above, the Court GRANTS IN PART Plaintiff’s motion to
the extent that she seeks LTD benefits for the “own occupation” period. LINA is ordered
to award Plaintiff retroactive benefits payable from December 24, 2012 to December
24, 2014, together with interest, costs, and reasonable attorney’s fees. The Court
DENIES IN PART Plaintiff’s motion to the extent that she seeks LTD benefits for the

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“any occupation” period, a declaratory judgment regarding future benefits, and an
accounting by Defendant. Defendant’s motion is DENIED IN PART and GRANTED IN
PART as discussed above. This matter is REMANDED to the insurer for an
administrative determination of eligibility for benefits during the “any occupation” period.
SO ORDERED.

s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: January 12, 2018
I hereby certify that a copy of the foregoing document was served upon counsel of
record on January 12, 2018, by electronic and/or ordinary mail.
s/Lisa Bartlett
Case Manager

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