Chester v. Mutual of Omaha Insurance Company

Filing 14

ORDER Granting Defendant's Motion for Summary Judgment 9 and Denying Plaintiff's Motion for Judgment 10 . Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LISA CHESTER,
Plaintiff,
Case No. 16-11647
v.
HON. DENISE PAGE HOOD
MUTUAL OF OMAHA
INSURANCE CO.,
Defendant.
_______________________________________/
ORDER GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT [Dkt. No. 9] and DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [Dkt. No. 10]
I.

INTRODUCTION
Plaintiff brought this action seeking continued long-term disability (“LTD”)

benefits under a policy issued by Defendant to Plaintiff’s employer, Great Lakes
Transportation Ventures (“Policyholder”). Plaintiff’s claim, brought pursuant to 29
U.S.C. § 1132(a)(1)(B) (§502(a)(1)(B) of the Employee Retirement Income Security
Act of 1974 (“ERISA”), stems from Defendant’s decision to terminate payment of
LTD benefits to Plaintiff in November 2014 because she “was able to return to work
at any Gainful Occupation [defined below] from November 16, 2014 and ongoing.”

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On October 24, 2016, the parties filed cross-motions for summary judgment.
Dkt. Nos. 9 and 10. Both motions have been briefed. A hearing on the motions is
scheduled for January 18, 2017. For the reasons that follow, the Court grants
Defendant’s Motion for Judgment, denies Plaintiff’s Motion for Summary Judgment,
and dismisses Plaintiff’s cause of action.
II.

BACKGROUND
In her Complaint, Plaintiff alleged that she has a “rotator cuff tear, adhesive

capsulitis [that] made it impossible for her to work.” Dkt. No. 1, Paragraph 6. On
August 16, 2012, Plaintiff presented to Matthew P. Steffes, MD (“Dr. Steffes”) with
a chief complaint of right shoulder pain. The MRI of the right shoulder revealed
significant partial-thickness tearing of the supraspinatus, questionable full-thickness
tear. Plaintiff was not interested in an injection and was given a prescription for
Mobic. On September 13, 2012, Plaintiff saw Dr. Steffes with a chief complaint of
a partial right supraspinatus tear. On September 26, 2012, Plaintiff underwent an MRI
of her right shoulder, which showed: (1) minimally retracted full-thickness rotator cuff
tear, (2) mild AC joint osteoarthritis. On October 1, 2012, Plaintiff presented to Dr.
Steffes with an MRI of her right shoulder that showeda full-thickness tear of her right
supraspinatus, and she was given injections of 1 cc 40 mg Depo-Medrol and 2 cc of
1% lidocaine. On October 30, 2012, Plaintiff saw Dr. Steffes for follow-up, with the

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same complaints. Dr. Steffes discussed rotator cuff repair with acromioplasty and
placed Plaintiff off work for the next month.
The Physician’s Statement (“Statement”) portion of Plaintiff’s claim for LTD
benefits was prepared and submitted by Dr. Steffes on November 20, 2012. The
Statement noted a diagnosis of rotator cuff tear, with shoulder pain and limited range
of motion. That Physician Statement further noted that Plaintiff’s condition was not
work-related. That Physician Statement went on to indicate a restriction on use of the
right shoulder/upper extremity, a limitation on commercial vehicle driving, a
prognosis for recovery saying “improved with surgery,” and the observation that
plaintiff had not achieved maximum medical improvement.”
Regarding an eight-hour workday, Dr. Steffes indicated that plaintiff could sit
for eight hours, stand for eight hours, and walk for eight hours. He also indicated
restrictions regarding driving/operating a motor vehicle, right-arm lifting/carrying, use
of right hand in repetitive actions, and reaching above right shoulder level. Plaintiff
had no restrictions on the use of her feet in repetitive movements, or on bending,
squatting, crawling, or climbing. Regarding his expectation as to plaintiff’s return to
prior level of functioning, Dr. Steffes wrote “pending surgery.”
On November 27, 2012, Defendant informed Plaintiff that it had received her

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LTD claim application, and on December 4, 2012, Defendant approved Plaintiff’s
claim for LTD benefits. Defendant indicated that Plaintiff became disabled on August
18, 2012 and that her elimination period extended from August 18, 2012 to November
16, 2012. On December 4, 2012, Defendant informed the Policyholder that Defendant
was approving Plaintiff’s claim for LTD benefits based on the medical information
Defendant received.
On February 4, 2013, Plaintiff presented to The Guidance Center for a
Comprehensive Biopsychosocial Assessment. Plaintiff reported episodes of nervous
shaking and fluttering in the previous 14 years since her father passed away, and that
since the summer of 2012, the shaking had been more consistent and severe. On
February 26, 2013, Plaintiff presented to The Guidance Center for a Psychiatric
Evaluation. Plaintiff’s main concern was that she had a nervous feeling that ran
through her chest and arms and “cannot shake it awake” and gets these feelings every
day and lasts on and off all day. Plaintiff was diagnosed with: (1) MDD recurrent
moderate panic disorder with agoraphobia, (2) NIDDM, (3) hypercholesterol, (4)
rotator cuff injury, and (5) poor relationship with peers. She was instructed to
continue Prozac, Trazodone and Xanax.
On March 31, 2013 and November 18, 2013, Plaintiff saw Dr. Steffes with the
continued complaint of right full thickness supraspinatus tear. She was given another

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injection at the first appointment and prescribed Norco and instructed to do exercises
on her own at the second appointment. On March 21, 2014, Plaintiff returned to The
Guidance Center with major depressive disorder, panic disorder without agoraphobia,
and generalized anxiety disorder.
On June 4, 2014, Defendant informed Plaintiff that Defendant was reviewing
Plaintiff’s claim to determine if she met the policy definition of Disability based on
her inability to perform all of the Material Duties of any Gainful Occupation beyond
November 16, 2014. “Gainful Occupation means an occupation, for which [Plaintiff
is] reasonably fitted by training, education or experience, is or can be expected to
provide [Plaintiff] with Current Earnings at least equal to 60% of Basic Monthly
Earnings within 12 months of [Plaintiff’s] return to work.” “Material Duties means
the essential tasks, functions, and operations relating to an occupation that cannot be
reasonably omitted or modified. In no event will [Defendant] consider working an
average of more than 40 hours per week in itself to be a part of material duties. One
of the material duties of [Plaintiff’s] Regular Occupation is the ability to work for an
employer on a full-time basis.”
On July 9, 2014, Plaintiff consulted with orthopedic surgeon Lawrence G.
Morawa, M.D. (“Dr. Morawa”), seeking an evaluation of her right shoulder. Dr.
Morawa’s physical examination of Plaintiff indicated limited range of motion because

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of pain, but no signs of impingement, with neurovascular being intact, and with no
issues other than range of motion. Dr. Morawa’s assessment was tendonitis of the
right shoulder. In connection with his July 9, 2014 evaluation, Dr. Morawa filled out
a general information form. The first page of the form repeated his diagnosis of right
shoulder tendonitis, his finding of limited range of motion, and stated his conclusion
that there were no secondary conditions contributing to the disability. On the first
page, Dr. Morawa also noted: (1) his opinion that Plaintiff has not achieved maximum
medical improvement; (2) his expectation of fundamental changes in Plaintiff’s
medical condition within 1-2 months; (3) his opinion that Plaintiff should be restricted
from lifting anything over 10 lbs, restricted to limited use of right arm, and restricted
from overhead reaching; and (4) his willingness to release Plaintiff to pursue
vocational rehabilitation. On page two of the form, Dr. Morawa recommended: (a) a
return-to-work date of July 28, 2014; (b) modified job responsibilities of no heavy
lifting; (c) no overhead work for one-month period; and (d) rehabilitation services
consisting of physical therapy.
On August 18, 2014, Plaintiff presented to The Guidance Center for a
Comprehensive Biopsychosocial Assessment. Plaintiff complained of increased
anxiety, depression, panic attacks, racing thoughts and insomnia and reported
experiencing episodes of nervous shaking and fluttering in the previous few years

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since the death of her father. On September 9, 2014, Plaintiff underwent an MRI of
her brain at Oakwood Imaging Center, which showed: (1) no acute or new intracranial
process; and (2) previously described microadenoma not well appreciated, no definite
pituitary nodule seen. On September 22, 2014, Douglas Palmer, MS, performed a
transferable skills assessment of the Plaintiff at the Defendant’s request.
On October 20, 2014, an MRI of Plaintiff’s shoulder performed by Dr. Rob A.
Reed, MD showed: (1) redemonstration of a full-thickness tear of the supraspinatus
tendon with retraction, (2) full-thickness tear involving the long head of the biceps
tendon with associated retraction, findings unchanged from prior examination, (3)
trace glenohumeral effusion, and (4) mild acromioclavicular osteoarthrosis.

On

November 20, 2014, Defendant wrote to Plaintiff’s doctor, Dr. Morawa, requesting
that he agree with the Defendant’s determination that Plaintiff was capable of
performing light to medium work that did not require her to perform right arm heavy
lifting or overhead work.
On November 25, 2014, Plaintiff presented to Carlos Shelton, NP, with a
sudden onset of back pain which had been occurring in a consistent pattern for 10
days, described as a dull ache and was located in the lower to mid back. On
November 29, 2014, Plaintiff presented to Dr. John T. McCracken, MD (“Dr.

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McCracken”) with a complaint of back pain which had been occurring in a persistent
pattern for months and was increasing.
On December 2, 2014, Plaintiff presented to Vani Sebesan, MD, with right
shoulder pain; as noted above, Plaintiff previously had an MRI conducted which
showed a rotator cuff tear. On December 3, 2014, a progress note was entered by The
Guidance Center in which Plaintiff presented for treatment regarding her depression,
anxiety and panic attacks. Plaintiff reported experiencing agitation with other people,
feeling fatigued all the time, having no pleasure in life, getting poor sleep, feeling
isolated, withdrawn, tired, sad, depressed and cries all the time. Plaintiff had a loss
of appetite which lead to her losing 80 pounds.
On December 3, 2014, Defendant wrote to Plaintiff that Defendant had
completed its review of the change in definition of Plaintiff’s LTD eligibility.
Defendant determined that Plaintiff did not meet the policy definition of Disability
and Disabled from any Gainful Occupation and were unable to approve benefits
beyond November 15, 2014. Plaintiff appealed that denial of benefits.
On December 8, 2014, Plaintiff presented to The Guidance Center for a
Psychiatric Evaluation with Charlotte Baker, MD. Plaintiff complained of nervous
feeling that runs through her chest and arms and felt like she could not shake it and
that it kept her up at night with anxiety and racing thoughts. Plaintiff also complained

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that the sad feelings would not go away and she felt low, unmotivated and like crying.
Id. Plaintiff had been taking medication from The Guidance Center since 2013 with
little relief.
On January 8, 2015, Plaintiff saw Dr. McCracken for right shoulder pain.
Plaintiff had an MRI that showed a full thickness tear in the right shoulder. On March
2, 2015, Plaintiff presented to Dr. McCracken with a complaint of hypertension and
complained of right shoulder pain and back pain that had begun on November 15,
2014. On March 30, 2015, Plaintiff presented to Dr. McCracken with a complaint of
back pain that was increasing and precipitated by heavy lifting and aggravated by
prolonged sitting. On April 16, 2015, Plaintiff had an x-ray of the lumbar spine
performed, and it showed mild degenerative marginal spur formation, minimal
anterolisthesis at L4-L5 related to degenerative changes at facet joints.
An April 20, 2015 letter from Dr. McCracken indicated that Plaintiff continued
to have chronic right shoulder pain with restricted range of motion. As she had
previously, Plaintiff declined shoulder surgery at that time. She again complained of
persistent back pain that was aggravated by prolonged sitting, standing, and constant
laying down. Plaintiff reported being treated for anxiety and depression by a
therapist.

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On June 18, 2015, in conjunction with Plaintiff’s appeal of the denial of
benefits, Lyle Forehand, Jr., MD (“Dr. Forehand”), performed a medical file review
at the request of Defendant. Dr. Forehand opined that, within a reasonable degree of
certainty, Plaintiff did not have any psychiatric impairment from November 16, 2014
through June 3, 2015. Dr. Forehand admitted that the record supported a diagnosis of
unspecified depressive disorder based on Plaintiff’s consistently depressed mood,
reports of hopelessness and intermittent morbid thoughts. Dr. Forehand also noted
that two psychiatrists had diagnosed her with major depressive disorder but concluded
that Plaintiff’s most likely diagnosis was persistent depressive disorder.
On June 19, 2015, William M. Strassberg, MD (“Dr. Strassberg”), performed
a medical record review at the request of the Defendant. Dr. Strassberg opined that
the information he reviewed supported a diagnosis which included: (1) chronic low
back complaints, (2) right shoulder rotator cuff tear, (3) right should adhesive
capsulitis, and (4) sleep apnea, prolactinoma, morbid obesity, diabetes mellitus,
hypertension, depression, and panic attacks.

Dr. Strassberg agreed with the

restrictions set forth in the records, examinations and diagnostic tests he reviewed.
On July 9, 2014 Plaintiff was seen by Kelli Crawford, MD (“Dr. Crawford”), for
evaluation of her right shoulder. Dr. Crawford’s impression was tendonitis of the
right shoulder and injected Plaintiff’s right shoulder with 2 cc of 1%Xylocaine and

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40 mg of Kenalog. On September 9, 2015, Defendant informed Plaintiff that it: (1)
agreed Plaintiff was impaired and unable to perform the material duties of her regular
occupation as a Bus Driver beginning August 18, 2012; but (2) the medical evidence
did not support restrictions preventing Plaintiff from returning to work at any Gainful
Occupation beginning on November 16, 2014. Defendant upheld its prior decision
to deny benefits. On May 6, 2016, Plaintiff filed the instant cause of action.
III.

APPLICABLE LAW & ANALYSIS

A.

Standard of Review
A court reviews de novo the denial of benefits sought under §502(a)(1)(B) of

ERISA “unless the benefit plan gives the administrator or fiduciary authority to
determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire
& Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). Where the plan affords the
administrator or fiduciary the discretion to make those decisions, the denial of benefits
is reviewed only to determine if such decisions were “arbitrary and capricious.” Miller
v. Metropolitan Life Insurance Co., 925 F.2d 979, 983 (6th Cir. 1991).

The

administrator’s or fiduciary’s decision “is not arbitrary and capricious if it is based on
a reasonable interpretation of the plan,” Shelby Co. Health Care Corp. v. Southern
Council of Indus. Workers Health & Welfare Fund, 203 F.3d 926, 933 (6th Cir. 200),
and will be upheld if it is supported by “substantial evidence,” which is evidence that

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is “rational in light of the plan’s provisions.” Borda v. Hardy, Lewis, Pollard & Page,
P.C., 138 F.3d 1062, 1066 (6th Cir. 1998) (quotation omitted); Smith v. Ameritech,
129 F.ed 857, 863 (6th Cir. 1997); Baker v. United Mine Workers of America Health
and Retirement Funds, 929 F.2d 1140, 1144 (6th Cir. 1991). An interpretation is
unreasonable if it imposes a requirement that cannot be found in the plan’s language.
Shelby, 203 F.3d at 935.
The Sixth Circuit summed up the arbitrary and capricious standard in the
ERISA context this way:
. . . Where the benefit plan at issue gives the plan administrator the
discretionary authority to construe and interpret the plan, as in the instant
case, the plan administrator’s decision is reviewed under the arbitrary
and capricious standard. Id.; Hunter v Caliber Sys., Inc., 220 F.3d 701,
710 (6th Cir. 2002). In the instant case, the parties do not dispute the applicability of
the arbitrary and capricious standard of review.
“The arbitrary and capricious standard is the least demanding form of
judicial review of administrative action. When it is possible to offer a
reasoned explanation, based on the evidence, for a particular outcome,
that outcome is not arbitrary or capricious.” Hunter, 220 F.3d at 710
(citations and quotation marks omitted). Under this deferential standard
of review, an appellate court will uphold the plan administrator’s
decision if it is “rational in light of the plan’s provisions.” Univ. Hosps.
of Cleveland v. Emerson Elec. Co., 202 F.3d 839, 846 (6th Cir. 2000)
(quoting Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376, 381
(6th Cir. 1996)). Stated differently, if the decision “is the result of a
deliberate, principled reasoning process and if it is supported by
substantial evidence,” the decision will be upheld. Elliott v. Metro. Life
Ins. Co., 473 F.3d 613, 617 (6th Cir. 2006) (quoting Glenn v. Metro.
Life. Ins. Co., 461 F.3d 660, 666 (6th Cir. 2006)).

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Rose v. Hartford Financial Servs. Group, 268 F. App’x 444, 449 (6th Cir. 2008).
B.

Analysis
A party claiming LTD benefits under § 502(a)(1)(B) of ERISA must prove

entitlement to the claimed benefits by a preponderance of the evidence. Javery v.
Lucent Techs.,Inc., Long Term Disability Plan for Mgmt. or LBA Emples., 741 F.3d
686, 701 (6th Cir. 2014). Plaintiff’s Complaint alleges that she was wrongfully denied
LTD benefits after November 15, 2014, for the injury to her right shoulder. In her
briefs, she also asserts that she is entitled to LTD benefits based on an injury to her
back and psychiatric issues.
It is undisputed that, because Plaintiff could not perform her job duties as a bus
driver for the Policyholder, Defendant paid Plaintiff a monthly benefit from
November 16, 2012 to November 15, 2014 pursuant to the Policy. The Policy
provides that “[a]fter a Monthly Benefit has been paid for 2 years, Disability and
Disabled mean [Plaintiff is] unable to perform all of the Material Duties of any
Gainful Occupation.” Defendant contends that, despite Plaintiff’s assertion that “there
is sufficient evidence [Plaintiff] has been unable to return to work at any gainful
occupation since November 16, 2014,” there is no evidence that Plaintiff was unable
to perform all of the Material Duties of any Gainful Occupation.

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Defendant argues that none of the health professionals who saw Plaintiff
concluded that she could not work. Defendant notes that, between August 2012 and
July 2014, Plaintiff’s orthopedic surgeons, Dr. Steffes and Dr. Morawa, stated that
Plaintiff could return to work with certain specific restrictions pertaining to her right
shoulder. In the November 20, 2012 Statement, Dr. Steffes stated that Plaintiff could
sit for eight hours, stand for eight hours, and walk for eight hours. He further
represented that Plaintiff was not restricted, except that she could not drive a
commercial vehicle, should restrict her right-arm lifting and carrying, should restrict
use of her right hand for repetitive tasks, and should restrict reaching her right arm
about shoulder level. Dr. Steffes also opined that Plaintiff had not reached maximum
improvement and that surgery would improve her prognosis for recovery. Dr. Steffes
reached the same conclusions in March 2013 and November 2013.
In July 2014, Dr. Morawa diagnosed Plaintiff with tendonitis of her right
shoulder with a limited range of motion. Dr. Morawa indicated that Plaintiff had not
achieved maximum medical improvement and that he expected Plaintiff’s medical
condition to fundamentally change within 1-2 months. Dr. Morawa restricted Plaintiff
from lifting more than 10 pounds, directed limited use of the right arm, barred any
overhead reaching, and was willing to release Plaintiff to pursue vocational

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rehabilitation. Dr. Morawa recommended a return-to-work date of July 28, 2014, with
modified job responsibilities, no heavy lifting or overhead work, and physical therapy.
Dr. McCracken saw Plaintiff from May 2013 to March 2014. There is no
evidence in the record that Dr. McCracken opined that Plaintiff could not perform
work that would fall within “Material Duties” of any “Gainful Occupation.” Contrary
to Plaintiff’s implication, Dr. McCracken’s letter dated April 20, 2015 does not
suggest that Plaintiff was unable to perform any such work. In June 2015, Dr. Mukhi
conducted an MRI examination of Plaintiff’s right shoulder and found the same results
as the previous MRI examination(w).

Dr. Strassberg agreed with the stated

restrictions and limitations prescribed by Dr. Morawa and did not dispute the findings
and opinions of Dr. Steffes, Dr. Morawa, and Dr. Mukhi.1
With respect to psychiatric issues, Defendant first asserts that the absence of
any reference to them in Plaintiff’s complaint demonstrate that Plaintiff does (or did)
not believe that psychiatric issues constituted a basis for proving that Plaintiff could
not perform any Gainful Occupation. Defendant next asserts that Plaintiff has not
shown, and cannot show, that her psychiatric issues justify the award of LTD benefits.
Defendant notes that there is no medical opinion or assessment in the record that

1

The Social Security Administration also denied Plaintiff’s claim for disability benefits
after concluding that there were many thousands of positions in the region (and more than a
million nationally) that Plaintiff could perform, including small parts assembler, inspector and
hand packager, and assembly machine tender.
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suggests Plaintiff was unable to work in any position, and Defendant contends the
evidence shows that she could work. Defendant cites the April 10, 2015 treatment
notes from The Guidance Center that state that: (a) Plaintiff was in compliance with
her medication, (b) her mental health status was stable; (c) her presentation was alert,
cooperative and verbal; (d) her response was active assertive, attentive, engaged,
receptive; and (e) she had gained insight. Defendant also relies on Dr. Forehand’s
concurrence in the finding that Plaintiff did not have any psychiatric illness that
limited her functioning.
Defendant concludes by arguing that Plaintiff’s claim for LTD benefits must
fail, even if she had an otherwise viable claim. Defendant relies on a Policy provision
that bars recovery of LTD benefits for more than 24 months for Mental Disorders.
The “Mental Disorder Limitation” provides:
If you are disabled because of a Mental Disorder, Your benefits will be
limited to a total of 24 months while insured under the Policy, unless you
are confined as a resident inpatient in a Hospital at the end of that 24month period. The Monthly Benefit will continue to be paid during such
confinement.
It is undisputed that Plaintiff was not confined in a hospital at any relevant time.
Defendant contends that Plaintiff is barred from recovering for a Mental Disorder
under the Policy after November 16, 2014 because she had received LTD benefits for
the two years (24 months) preceding that date.

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Plaintiff does not address this issue. If there was evidence to support a
psychiatric condition that disabled her from her position (which there is not), an
argument could be made on Plaintiff’s behalf that she would be entitled to recover for
a Mental Disorder beyond November 16, 2014. The Policy states that Monthly
Benefits are limited to a total of 24 months “[i]f you are Disabled because of a Mental
Disorder[.]” In this case, the Disabled condition for which Plaintiff was paid Monthly
Benefits from November 16, 2012 to November 16, 2014 was the injury to her right
shoulder, not a Mental Disorder. Arguably, if Plaintiff had a Mental Disorder as of
November 16, 2014, she would be entitled to another 24 months of LTD benefits
under the original definition of Disabled or Disability.
Plaintiff asserts that Defendant has tried to minimize her injuries and exaggerate
her work capacity, despite the opinions of her physicians and psychologists. Plaintiff
argues that Dr. Forehand, who conducted only a medical file review, admitted that
Plaintiff was correctly diagnosed with major depressive disorder but contradicted that
finding by concluding Plaintiff did not have any psychiatric impairment from
November 16, 2014 (the day the definition of Disabled changed to “any Gainful
Occupation”) to June 3, 2015. Plaintiff suggests that this case is like a Sixth Circuit
case involving Defendant, Koning v. United of Omaha Life Ins. Co., 627 F. App’x 425
(6th Cir. 2015), and should be remanded for purposes of a consideration of the treating

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physician opinions of Dr. Steffes, Dr. Morawa, and Dr. McCracken. In Koning, the
court found that the plan failed to adequately evaluate and consider evidence favorable
to plaintiff, a selective review that courts have held to be “arbitrary and capricious,”
id. at 434-36, and remanded the matter to the district court for a consideration of all
of the evidence in the record.
Plaintiff asserts that she underwent several psychiatric evaluations at The
Guidance Center that confirmed she suffered from anxiety, depression, panic attacks,
racing thoughts, insomnia, and episodes of nervous shaking and fluttering. Plaintiff
contends Defendant disregarded those evaluations and relied upon only Dr.
Forehand’s conclusions. Plaintiff’s arguments fail to identify any professional who
indicated that she was disabled from a position that would fall under the definition of
any Gainful Occupation.
The Court finds that Plaintiff’s assertions that Defendant (or Dr. Forehand)
failed to give credible reasons to support the conclusion that Plaintiff did not have any
psychiatric impairment from November 16, 2014 to June 3, 2015 are irrelevant. In the
absence of anyone indicating that Plaintiff was Disabled because she could not
perform any Gainful Occupation, Defendant (or Dr. Forehand) had no reason to
discuss why it was rejecting and rebutting a finding or conditions that supported a
finding that was disabled from any Gainful Occupation after November 16, 2014. The

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Court finds that Defendant cannot be said to have made an arbitrary and capricious
decision to deny Plaintiff LTD benefits under the Policy.
For the reasons discussed above, Koning and the other cases cited by Plaintiff
do not support a finding that Plaintiff was unable to perform any Gainful Occupation.
The record is devoid of objective evidence of disability by Plaintiff’s treating
physicians or any other health professionals. See Shaw v. AT&T Umbrella Benefit
Plan No. 1, 795 F.3d 538, 548 (6th Cir. 2015) (citation and internal quotations
omitted) (a plan acted arbitrarily and capriciously when it “completely ignored
evidence from [claimant’s] treating physicians” and “engage[d] in a selective review
of the administrative record to justify a decision to terminate coverage); Elliot v.
Metro. Life Ins. Co., 473 F.3d 613, 620 (6th Cir. 2006) (a plan cannot ignore favorable
evidence from a treating physician, but must “give reasons for adopting an alternative
opinion”); Black & Decker Disability Plan v. Nord, 538 U.S. 822, 825, 834 (2003)
(“plan administrators are not obliged to accord special deference to the opinions of
treating physicians” but they “may not arbitrarily refuse to credit a claimant’s reliable
evidence, including the opinions of a treating physician.”); Blajei v. Sedgwick Claims
Mgmt. Servs., Inc., 721 F.Supp.2d 584, 603-06 (E.D. Mich. 2010) (plan acted
arbitrarily and capriciously when it denied benefits based on conclusory reports from
independent medical consultants stating that claimant was able to work, when
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independent medical consultant did not adequately address objective evidence of
problems identified by treating physicians).
The Court concludes that Plaintiff cannot establish that Defendant acted
arbitrarily or capriciously in denying LTD benefits for her after November 16, 2014,
or that she is entitled to the LTD benefits she seeks in this case. The Court grants
Defendant’s Motion for Judgment, denies Plaintiff’s Motion for Summary Judgment,
and dismisses Plaintiff’s cause of action, with prejudice.
IV.

CONCLUSION
Accordingly,
IT IS ORDERED that Defendant’s Motion for Judgment [Dkt. No. 9] is

GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary Judgment
[Dkt. No. 10] is DENIED.

IT IS FURTHER ORDERED that Plaintiff’s cause of action is DISMISSED
WITH PREJUDICE.
IT IS ORDERED.
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S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: August 31, 2017
I hereby certify that a copy of the foregoing document was served upon counsel of
record on August 31, 2017, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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