Brown v. Hartford Life Insurance Company

Filing 51

OPINION AND ORDER granting 46 defendant's Motion for Summary Judgment; denying 48 Motion for Summary Judgment on the Administrative Record. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JILL BROWN,
CASE NO. 17-CV-10868
HON. GEORGE CARAM STEEH

Plaintiff,
v.
HARTFORD LIFE
INSURANCE, CO.,
Defendant.
________________________/

OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR
JUDGMENT ON THE ADMINISTRATIVE RECORD (Doc. 46)
AND DENYING PLAINTIFF’S MOTION FOR
JUDGMENT ON THE ADMINISTRATIVE RECORD (Doc. 48)

Plaintiff Jill Brown alleges that defendant Hartford Life Insurance

Company (“Hartford”) wrongfully cut off her long term disability benefits
after paying such benefits for over five years, pursuant to an employee
benefit plan governed by the Employee Retirement Income Security Act
(“ERISA”), 29 U.S.C. § 1132(a)(1)(B). The parties filed cross motions for
judgment on the Administrative Record, which the court has duly
considered. For the reasons set forth below, Hartford’s termination of
Brown’s claim for long term disability benefits shall be AFFIRMED as
Brown has failed to come forward with objective medical evidence to
support her claim of total disability which is contradicted by surveillance
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evidence, an independent medical examination (“IME”), and the
conclusions of five physicians who performed Independent Medical
Reviews (“IMRs”).
I. Findings of Fact
A.

Plaintiff’s Employment
Brown is a 45-year old Registered Nurse who worked for Oakwood

Healthcare, Inc. until January 7, 2012 when she was unable to continue
working because of orthopedic spine problems she suffered after several
domestic assaults following fusion surgery.
B.

The Hartford Insurance Policy
Brown was a participant in the Group Long Term Disability Plan for

Employees of Oakwood Healthcare, Inc. (the “Plan”). The Plan is covered
by ERISA. The Hartford issued a group insurance policy, No. GLT-395280,
(“Policy”), to Brown’s employer, Oakwood Heathcare, Inc. on January 1,
1990. (POL 1-73). The Policy provided for long term disability benefits to
qualified employees. Specifically, the Policy provides:
Disability or Disabled means You are prevented from
performing one or more of the Essential Duties of:
1) Your Occupation during the Elimination Period;
2) Your Occupation, for the 24 month(s) following the
Elimination Period, and as a result Your Current Monthly
Earnings are less than 80% of Your Indexed Pre-disability
Earnings; and
3) after that, Any Occupation.
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(AR 1006). The Policy defines “essential duty” as a duty that is:
1) is substantial, not incidental;
2) is fundamental or inherent to the occupation; and
3) cannot be reasonably omitted changed.
Your ability to work the number of hours in Your regularly
scheduled work week is an Essential Duty.
(AR 1007). For the first 24-months of disability, an employee must show
that they are unable to perform their occupation. After that time, an
employee must establish that she is disabled from “Any Occupation,” which
is defined as:
any occupation for which You are qualified by education,
training or experience, and that has an earnings potential
greater than the lesser of: (1) the product of your Indexed
Pre-disability Earnings and the Initial Benefit Period
Percentage; or (2) the Maximum Monthly Benefit.
(POL 20).
C.

Payment of Benefits
Hartford began paying Brown short term disability benefits in March,

2012, and when the claim transitioned to long term disability, continued to
pay those benefits throughout 2014 when the definition of disability
changed to “any occupation” on July 9, 2014. The benefits were based on
Brown’s complaints of back and neck pain, and headaches. On January
30, 2015, Hartford ceased disability payments based on Brown’s failure to
provide proof of her ongoing disability. (AR 131). After she submitted
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certain medical records, benefits were reinstated. (AR 378). However,
following surveillance in September, 2015 which suggested that Brown was
not disabled, Hartford conducted an IME by Dr. Marvin Bleiberg, board
certified in physical medicine and rehabilitation, and an IMR from
psychiatrist Dr. Antionette Acenas, and allowed Brown to submit evidence
in support of her claim of continued disability. (AR 1128-38, 1108-12). On
August 10, 2016, Hartford determined that Brown was not disabled and
terminated benefits. (AR 30-35). Brown appealed through counsel on
January 31, 2017. (AR 964-73). Hartford obtained four additional IMRs,
considered the medical records submitted by Brown from her treating
physicians, and affirmed the denial of benefits. (AR 1-9). In her appeal,
Brown also stated that she had been awarded Social Security Disability
(“SSD”) benefits; however, her claim file did not include any SSD
documentation beyond the denial of benefits by the Administrative Law
Judge dated May 6, 2013, and Brown failed to submit any SSD
documentation for consideration on appeal. (AR 4). Having failed to submit
any SSD award documentation during the appeal process, there is no
information about the award of SSD benefits in the Administrative Record,
nor is there any such evidence before this court. On March 7, 2017,

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Hartford notified Brown that her appeal had been denied, and the
discontinuance of benefits affirmed. (AR 1-9).
E.

Surveillance
Hartford conducted surveillance on Brown in July, August, and

September of 2013 on six separate days (AR 1747, 1742), but continued to
pay benefits. Beginning in 2015, Hartford doubted the physical restrictions
Brown reported as excessive, and thus, initiated surveillance again.
Surveillance took place on May 1, 2, 30, June 24 and 29,1 2015, and
September 21 and 22, 2015. (AR 1351-63, 1374-86). On May 1, 2015,
surveillance was conducted at Brown’s home but it was not determined if
she was at home. (AR 1351-63).
On May 2, 2015, she was observed pushing her 17-year old daughter
in a wheelchair, lifting and carrying a small wicker table and a large wicker
chair, jogging briefly in her front yard, reaching with both hands, turning her
head and neck, bending over and walking normally without any assistive
device or noticeable signs of difficulty. (Doc. 45). On September 21 and
22, 2015, Brown was observed walking in a normal manner without
assistive devices, turning her head and neck, and even hopping on her foot

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Brown was not observed on May 30, June 24 or 29, 2015.
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with a young child. Id. Brown was also observed pushing a child in a
grocery cart and lifting two gallons of milk. Id.
Brown argues the surveillance was consistent with her reported
limitations and that she has good and bad days, on most days that
surveillance was conducted she was not witnessed at all, and nevertheless,
her condition worsened since the surveillance was conducted as she fell off
a bar stool in October, 2015, and flipped over her walker in June, 2016.
The court questions the veracity of these claims as two months after her
fall, on December 14, 2015, Brown’s own treating physician Michaele
Oostendorp, D.O., noted that Brown had “no difficulty walking,” “no difficulty
with balance,” “good coordination,” and that her “head symptoms migraines
less severe.” (AR 742). Also, an x-ray of the cervical spine from October,
2015 showed only minor degenerative disc disease, and x-rays of her
pelvis and left hip showed no fracture as a result of her recent fall. (AR
1347-49). It is true, however, that Brown received a steroid injection into
her hip on October 31, 2015 (AR 675) and another injection into her
trapezius on November 5, 2015. (AR 673).
Hartford provided the surveillance to Brown’s treating physicians, Dr.
Michaele Oostendorp, Dr. Judy Macy, and Dr. Raznig Haladjian. (AR
1200-01, 1160-61, 1197) to inquire if it changed their opinions. Drs.
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Oostendorp and Dr. Macy responded that they still believed that Brown
lacked the ability to work, while Dr. Haladjian responded that he could not
determine Brown’s work restrictions. Id.
Hartford did not immediately discontinue benefits based solely on the
surveillance videos, and in fact, in July, 2015, found that the surveillance
was not sufficient to impact her claim and closed the investigation. (AR
2211).
E.

Plaintiff’s Headaches and Psychiatric Limitations
The record does not support Brown’s claims that migraine headaches

and psychological limitations totally disabled her from working in any
occupation. First, Brown’s own treating physicians do not offer objective
evidence that her headaches or psychiatric limitations rendered her
completely disabled from all work. The medical records of Brown’s treating
physicians suggest that Brown’s condition was improving and did not
disable her from working. A September 1, 2011 CT scan of the head was
unremarkable. (AR 1947). On October 28, 2013, Brown’s treating pain
psychologist, Dr. Ross Halpern, noted that Brown had only “mild”
depression and noted that medication had “dramatically improve[d]” her
post-traumatic stress disorder. (AR 1692-93). In May, 2014, her
psychiatrist, Dr. Siddique, issued an Attending Physician’s Statement
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stating that her mood and sleep were improving and her depression was
decreased. (AR 617-19). Also, Dr. Judy Sorovetz, Brown’s internal
medicine physician, on January 23, 2015, stated in an Attending
Physician’s Statement that Brown did not have any psychiatric or cognitive
impairment. (AR 1465-66). On March 24, 2015, Dr. Sorovetz’s treatment
note states that Brown’s migraine headaches had improved with Topamax
treatment and was treating with a counselor and taking medication for her
depression. (AR 1403). On October 5, 2015, Dr. Oostendorp reported that
Brown’s migraine headaches were less severe. (AR 1343-46).
A CT head scan from February 17, 2016 was normal. (AR 1206). It
is true that on February 22, 2016, Brown’s psychiatrist, Dr. Macy, offered
her opinion that Brown had poor memory and cognitive skills as well as
severe headaches and bladder incontinence (AR 1160-61), but the court
does not give significant weight to Dr. Macy’s opinion as the medical
records of Brown’s treating physician, Dr. Haladjian, also from February,
2016, reflect that Brown denied any bladder incontinence, and that Brown
“exhibits no signs of aberrant behavior. Her speech is fluent; she is
interacting appropriately with staff.” (AR 667). Also, on March 5, 2016,
Brown’s psychiatrist, Dr. Mohamed Siddique, reported that Brown had fulltime occupational functionality from a mental health capacity. (AR 1194-8 

95). Dr. Siddique changed his opinion on May 21, 2016 stating that Brown
could not work full-time, but he had not treated Brown during this time and
submitted no medical records in support of his changed opinion. (AR 1125,
1106).
Hartford sought an Independent Medical Review (“IMR”) from boardcertified psychiatrist Dr. Antoinette Acenas who concluded that Brown’s
psychiatric condition did not preclude her from full-time work. She based
this conclusion on a myriad of factors, including the fact that Brown’s
depression and anxiety was never severe enough for intensive inpatient or
outpatient therapy and that she displayed coherent and appropriate
behavior. (AR 1108-12). Dr. Acenas shared her report with Brown’s
treating psychiatrist, Dr. Siddique, who replied on July 16, 2016, that her
report was “detailed and comprehensive” and that he concurred with her
conclusions. (AR 1071).
In addition to Dr. Acenas’s IMR, Hartford also retained board-certified
psychiatrist, Dr. Ronald Koshes, to conduct an additional IMR in order to
evaluate Brown’s appeal of the denial of long term disability benefits. He
concluded that Brown’s depression and anxiety were not severe enough to
prevent her from working, Brown had only seen her psychiatrist
sporadically since 2013, had not seen her mental health counselor, Silvia
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Fowler, since 2015, and had never been referred for psychological testing
or more intensive treatment. (AR 531-37). He also found no evidence of
medication side-effects causing cognitive issues. Id.
Hartford also retained board certified neurologist, Dr. Carol Foster, to
conduct an IMR to review Brown’s complaints of headaches as part of the
appeal process. (AR 505-516). She concluded that there were no physical
findings or cognitive testing to support any neurological impairment due to
chronic headaches, that her head CTs were consistently normal, and
Brown was never evaluated by a neurologist or headache specialist. She
concluded that Brown had full-time functional capacity. Id.
F.

Plaintiff’s Neck and Back Pain
Plaintiff also seeks long term disability benefits based on neck and

back pain stemming from complications from fusion surgery which were
aggravated by several domestic assaults perpetrated by her ex-husband.
Medical records from Brown’s treating physicians, and the conclusions of
the IME and IMRs obtained by Hartford, demonstrate that Brown’s neck
and back pain is not severe enough to preclude her from all work.
A June 7, 2012 MRI of the cervical spine showed some disc
protrusion at C4-5 resulting in mild stenosis of the spinal canal. (AR 1898).
Electrodiagnostic testing on August 2, 2011 revealed no evidence of right
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cervical radiculopathy, no right carpal tunnel syndrome, no right ulnar
neuropathy, and was otherwise unremarkable. (AR 1853). On June 28,
2012, Dr. Nilesh Patel, spine and orthopedic surgeon determined that
Brown’s arm was “not weak enough to fix level C4-5.” (AR 1888-89).
On May 7, 2013, Brown’s internal medicine physician, Dr. Sorovetz,
reported that Brown’s neck issues caused lifetime restrictions which limited
her to two hours of sitting, standing, and walking in the workplace
environment, occasional lifting up to 10 pounds, desk level reaching. (AR
1812). On October 14, 2013, Brown’s treating pain specialist, Dr. Razmig
Haladjian, reported that Brown’s neck paid had been helped “significantly”
by a change in medication. (AR 1667-68). A November 20, 2013 MRI of
the cervical spine was essentially normal and showed only mild findings of
disc degeneration. (AR 1496-97). On December 20, 2013, neurosurgeon
Dr. Jason Schwalb placed a cord stimulator in Brown’s spine. (AR 144064). Brown treated with Dr. Haladjian with injections for pain relief through
2014. In October, 2014, Brown reported that her medication routine was
providing her with some relief without medication side effects. (AR 1428,
1642). The same held true as of September 21, 2015. (AR 1282-84). On
October 5, 2015, Brown reported to Dr. Michaele Oostendrop, internist, that
her right shoulder pain was gone. (AR1343-46). That same visit, it was
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noted that Brown receives significant doses of narcotic pain medication
including, Gabapentin, Oxycodone, Oxycontin, Tizanidine, trazadone, and
Topomax. (AR 733-34).
A CT scan of Brown’s cervical spine on December 14, 2015 showed
only mild degenerative disc bulge. (AR 1202-03).

On March 29, 2016,

Brown saw neurosurgeon Samer Elfallai, D.O., (AR 812), who gave her a
nerve block injection on April 7, 2016. (AR 664). Dr. Haladjian gave her
another nerve block injection on April 30, 2016. (AR 663). On June 15,
2016, Dr. Michaele Oostendrop, internist, stated that Brown was unable to
ambulate without a walker. (AR 1115).
On May 2, 2016, an IME was conducted by Dr. Marvin Bleiberg,
M.D., board-certified in physical medicine and rehabilitation at Hartford’s
bequest. Dr. Bleiberg conducted a full examination, as well as reviewed
the surveillance and her medical records, and concluded that Brown was
physically capable of working 20 hours per week with some lifting
restrictions of less than 20 pounds, but opined that she could quickly
transition to full-time work. (AR 1128-38)2. Dr. Bleiberg found that Brown’s
self-proclaimed restrictions were contradicted by the surveillance videos.

2

The record indicates that Dr. Blieberg revised his original IME, but only
the revised IME was produced. (AR 319).
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(AR 1128-38). Dr. Bleiberg noted some limited range of motion in the
cervical and lumbar spine, but found there was no instability and a full
musculoskeletal examination revealed no spasms or atrophy, and normal
range of motion in all joints. Id. On May 12, 2016, Brown underwent a CT
myelogram which involves a spinal tap performed on the lumbar region of
the spine, which concluded that Brown had “[m]oderate narrowing of the
right lateral recess and neural foramen” at C4-5. (AR 762). On June 22,
2016, after reviewing additional surveillance videos, Dr. Bleiberg modified
his conclusions to opine that Brown could lift as much as 50 pounds. (AR
1122-23). Dr. Blieberg also found that there were inconsistencies between
“what she is truly capable of doing versus what she actually told me. She
is clearly able to do quite a bit more than she says she can do.” (AR 1137).
Hartford sent a copy of the IME to Brown’s treating physicians, Dr.
Haladjian, Dr. Oostendorp, and Dr. Macy. All three disagreed with Dr.
Blieberg’s conclusions. Dr. Haladjian continued to opine that Brown was
wheelchair bound and incapable of any work. (AR 1077, 79). Dr.
Oostendorp stated that Brown could not ambulate without a walker. (AR
1115). Dr. Macy reported that Brown had “spastic reflexes in lower
extremities.” (AR 1114).

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As part of Brown’s appeal of the denial of her continued long term
disability benefits, Hartford also retained Dr. Theodore Togliatii, boardcertified in pain medicine, to prepare an IMR. He concluded that the
physical exam findings generally demonstrated a lack of abnormal findings,
aside from mild disc bulging requiring only conservative treatment, and
opined that Brown was capable of full-time sedentary work. (AR 520-29).
G.

Appeal Denied
Hartford discontinued Brown’s long term disability benefits effective

as of August 10, 2016. (AR 1). Brown appealed via counsel. Id. On
March 7, 2017, Hartford denied the appeal and affirmed the discontinuation
of benefits. (AR 1-9). Among the reasons given for the denial of Brown’s
appeal, were physician notes from Brown’s treating physician, Dr. Samer El
Fallal, D.O., on May 20, 2016, which indicated that Brown’s use of a walker
was “deliberately slow” and that there was a “very strong component of
poor effort.” (AR 3, 806-07). Hartford also relied on the IME and the
opinions of the doctors who performed IMRs, and considered the reports of
Brown’s treating physicians. (AR 1-9). Hartford noted that although
Brown’s appeal letter stated she had been awarded Social Security
Disability benefits after a finding that she was completely disabled, there
was no documentation before Hartford beyond the denial of her application
by an Administrative Law Judge dated May 6, 2013. Hartford explained
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that the award of SSD benefits did not require the continuation of long term
disability benefits under the policy because unlike Hartford, the Social
Security Administration is required to give special consideration to the
opinions of treating physicians and would not have had the benefit of the
surveillance videos. (AR 4). The award of SSD benefits is not part of the
Administrative Record and forms no basis for the court’s findings of fact
and conclusions of law here.
II. Standard of Review
This matter is before the court on the parties’ cross motions for entry
of judgment on the Administrative Record. A district court reviewing a
decision regarding benefits under ERISA is to “conduct a . . . review based
solely upon the administrative record, and render findings of fact and
conclusions of law accordingly.” Wilkins v. Baptist Healthcare Sys., Inc.,
150 F.3d 609, 619 (6th Cir. 1998). The court may consider the parties’
analysis of the evidence, but may not admit or consider any evidence not
presented to the administrator. Id. The parties agree that the de novo
standard of review applies. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105,
111 (2008); Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115
(1989). Because the de novo standard of review applies, the decision of
the insurer is not entitled to any deference or presumption of correctness,
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but the court is to determine whether the denial of benefits was “objectively
correct.” Perry v. Simplicity Eng., 900 F.2d 963, 965 (6th Cir. 1990).
III. Conclusions of Law
The accumulated evidence in the record supports Hartford’s decision
that Brown was not disabled from Any Occupation after August 9, 2016.
The objective medical evidence does not support her claim of total
disability, and the surveillance videos contradict her claims. The records of
her own treating physicians, Dr. Sorovetz, Dr. Haladjian, and Dr.
Oostendrop, from 2015 reflect improvement in her headaches and overall
pain. (AR 1403; 1282-84, 1343-46). Spine scans from 2015 and 2016 and
an EMG study show only minor degenerative disc disease and minimal
findings. (AR 1347-49; 1202-03; 944-45; 938-39; 810-11). A CT scan of
Brown’s head from February 17, 2016 was normal. (AR 1206). There is no
evidence that Brown ever treated with a neurologist or headache specialist.
The surveillance evidence contradicts her claims regarding her lifting
and other restrictions and show that she exaggerated her limitations. Her
claims that her condition significantly worsened and that she was injured
more seriously following the surveillance videos is also contradicted by the
records of her own treating physician and other objective medical evidence.
(AR 742; 1347-49).
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The IME of Dr. Bleiberg and the four IMRs by Dr. Togliatti, Dr. Foster,
Dr. Acenas, and Dr. Koshes, support the conclusion that Brown was not
disabled from Any Occupation after August 9, 2016.
The court does not accord weight to Dr. Macy’s opinion that Brown
had cognitive issues because her opinion conflicted with that of her treating
internist, Dr. Sorevetz, (AR 1465-66), and there is no evidence of
neuropsychological testing.
Brown is not disabled from all work from a mental health standpoint
based upon the opinions of Dr. Acenas, Dr. Togliatti, and Dr. Koshes, as
well as the fact that Brown never received intensive inpatient or outpatient
treatment, had only seen her psychiatrist sporadically, and had never been
referred for psychological testing. (AR 531-37).
Hartford was not required to defer to the opinions of Brown’s treating
physicians, Dr. Haladjian and Dr. Oostendorp, that Brown is unable to work
in Any Occupation.
The medical records show that Brown suffered only from minor spine
issues requiring conservative treatment that would not be totally disabling.
IV. Conclusion
For the reasons set forth above, Brown’s motion for judgment on the
administrative record (Doc. 48) is DENIED, Hartford’s’ motion for judgment
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on the administrative record (Doc. 46) is GRANTED, and the decision of
Hartford to deny long term disability benefits is AFFIRMED.
IT IS SO ORDERED.
Dated: August 20, 2018
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
August 20, 2018, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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