Hess vs. Metropolitan Life Insurance Company

Filing 47

OPINION and ORDER Denying Defendant's 33 MOTION for Summary Judgment and Granting Plaintiff's 33 Motion for Summary Judgment - Signed by District Judge Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Cynthia Hess,
Plaintiff,
v.

Case No. 13-cv-10696
Hon. Judith E. Levy
Mag. Judge R. Steven Whalen

Metropolitan Life Insurance
Company,
Defendant.
________________________________/
OPINION AND ORDER DENYING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT [31] AND GRANTING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT [33]
This is an Employee Retirement Income Security Act (“ERISA”)
case. Pending are cross motions for summary judgment. (Dkt. 31 and
33.)
I.

Background
Plaintiff brought suit on February 19, 2013, claiming that

defendant improperly terminated her long-term disability benefits

related to her claimed disabilities of orthostatic intolerance1 and
irritable bowel syndrome under an insurance policy governed by ERISA,
29 U.S.C. § 1001 et seq. (Dkt. 1.)2
Plaintiff, at the time of the events relevant to this claim, was
employed as an audit manager at an accounting company. Her longterm-disability coverage was effective on January 1, 2009. (AR 884.)3
Under that policy, defendant would not pay benefits for pre-existing
conditions, defined as “a Sickness or accidental injury for which [the
policyholder]: received medical treatment, consultation, care, or
services; took prescription medication or had medications prescribed; or
had symptoms or conditions that would cause a reasonably prudent
person to seek diagnosis, care, or treatment” in the three months prior
to the coverage taking effect. (AR 38.) Defendant refers to this threemonth period as a “look-back period.” (Dkt. 31 at 13.)

Orthostatic intolerance is an autonomic disorder in which the body’s
heart rate increases excessively on standing, and the body has difficulty
regulating blood pressure.
2 Because this case involves only allegations related to the abovereferenced claimed disabilities, the Court will forego discussion of
plaintiff’s other medical issues contained in the Administrative Record.
3 References to the Administrative Record are designated as “AR”.
2
1

Further, in order to qualify as disabled, a policy holder was
required to receive “Appropriate Care and Treatment and comply[] with
the requirements of such treatment,” and be unable to earn more than
eighty percent of her pre-disability earnings at her own job during the
Elimination Period (which was 180 days) as well as the next twentyfour months of sickness or accidental injury. (AR 21.)
Plaintiff ceased working on April 27, 2009. Plaintiff had a history
of migraine headaches.

On April 27, 2009, she suffered loss of

consciousness and vomiting, which she described as looking like coffee
grounds. (AR 757.) Plaintiff went to the emergency room at St. Joseph
Mercy Health System. During testing, the hospital staff conducted an
orthostatic vital sign check, and plaintiff reported a “slight feeling of
dizziness while standing.” (AR 794.) Plaintiff was diagnosed with an
acute upper gastrointestinal (“GI”) bleed, symptomatic anemia, syncope,
and headaches. (AR 765.) Plaintiff was discharged after her condition
had improved.
Plaintiff cites to a series of medical records relating to her issues
with dyspnea (shortness of breath) and fatigue following her discharge
from the emergency room. (See AR 848-51; 856-57; 862, 867.) On May
3

27, 2009, plaintiff visited Dr. Thomas P. O’Connor, a clinical associate
professor at the University of Michigan.

He found that plaintiff’s

stomach symptoms appeared to be resolving, and that her heart and
lungs were normal.

He also noted that plaintiff reported “some

shortness of breath over the last day or two” and a quickened heart
rate. (AR 850-51.)
Following her admission to the emergency room, plaintiff applied
for and received short-term disability benefits from April 27, 2009 to
October 26, 2009. On September 30, 2009, plaintiff first applied for
long-term disability benefits. (AR 908.) At the time, plaintiff alleged
her disabilities included “[f]atigue, severe migraines, severe stomach
pain, [and] inability to eat regularly.” (AR 889.)
On November 3, 2009, defendant denied plaintiff’s application.
(AR 883-84.)

Defendant requested specific medical information on

October 2, 2009, but plaintiff did not provide it. The letter stated that
defendant was “unable to substantiate [plaintiff’s] disability or complete
the pre-existing review without the medical records.”

(AR 884.)

Defendant did, however, give plaintiff the chance to submit the records
again for “April 2009 through current and October 1, 2008 through
4

December 31, 2008” so that it could make a decision based on the
merits. (Id. (emphasis in original).)
On December 11, 2009, plaintiff provided the requested medical
records.

(AR 741-882; see also AR 103.)

On December 21, 2009,

defendant again denied the claim, stating that there was no evidence of
any disabling condition other than migraine headaches, which
constituted a preexisting condition.

(AR 709-11.)

The letter also

provided a right of appeal within 180 days. (AR 710.)
On January 25, 2010, Dr. O’Connor wrote a letter to defendant
stating that “the primary reason for her disability since April 27, 2009,
has been fatigue, stomach upset, nausea, as well as shortness of breath
and palpitations.” (AR 735.) On March 18, 2010, Dr. Aman Chugh, a
cardiologist, evaluated plaintiff and diagnosed her for the first time
with potential orthostatic intolerance and/or chronic fatigue syndrome.
(AR 684-85.) On April 19, 2010, Dr. O’Connor saw plaintiff again, and
he diagnosed her with orthostatic intolerance and chronic fatigue
syndrome. (AR 295.) On May 6, 2010, Dr. Chugh saw plaintiff again as
a result of Dr. O’Connor’s referral, and after reviewing test results,
stated that plaintiff “was found to be slightly orthostatic in the office
5

with Dr. O’Connor,” that “[h]er episodes occur on a random basis and
are reported as having good days, as well as bad days,” and that “this
phenomenon . . . has been occurring now for the past year.” (AR 285.)
Dr. Chugh stated in summary that her “symptoms . . . do correlate with
vasodepressor syncope.” (AR 286.)
Plaintiff filed her appeal of defendant’s denial of benefits on June
16, 2010, accompanied by an affidavit from Dr. Chugh that stated that
her conditions of orthostatic intolerance and chronic fatigue syndrome
prevented her from performing her job. (AR 702-03.) Defendant sent
the medical records to Dr. Christine Lawless, an independent
consultant reviewer, for determination as to whether plaintiff was
continuously disabled from April 27, 2009, to October 26, 2009, and
from October 27, 2009. until the then-present. On September 3, 2010,
Dr.

Lawless

reported

that

the

medical

information

supported

“continuous functional limitations from 4-27-09 to 10-26-09” based on
her anemia and migraines, but such limitations were “not clear 10-2709 and beyond, as anemia has resolved and migraines appear
improved.”

(AR 632.)

Dr. Lawless further noted that plaintiff’s

“orthostasis and fatigue syndrome became predominant around
6

December of 2009 (see Dr. Chughs [sic] consult dated 3-18-10), when
she experienced 5 weeks of fatigue.” (Id.)
On September 3, 2010, another doctor, Dr. R. Kevin Smith, also
reviewed plaintiff’s records for defendant.

(AR 639-47.)

Dr. Smith

found that the medical information supported significant functional
limitations from April 27, 2009, through May 27, 2009, no such
limitations from May 27, 2009, until March 18, 2010, and then
significant functional limitations again from March 18, 2010 onward.
(AR 639-40.)
On September 17, 2010, Dr. Lawless issued a clarification to her
September 3, 2010 report.

Dr. Lawless stated that plaintiff was

significantly limited from April 27, 2009, until August 19, 2009, based
on her anemia; from April 27, 2009, until June 10, 2009, based on her
peptic ulcer; and that plaintiff’s orthostatic intolerance did not become
predominant until December 2009.

(AR 609-10.)

Based on this

analysis, plaintiff’s only restrictions from August 19, 2009, until
December 2009, were “8 hours sitting, 8 hours standing and walking,
lifting 10 lbs., pushing/pulling 10 lbs., and use of fine motor movement
bilaterally.” (AR 610.)
7

Following these reports, defendant sought an analysis of plaintiff’s
job requirements. (AR 155, 163.) On October 11, 2010, defendant again
denied plaintiff’s claim, stating that plaintiff did not demonstrate
disability on the basis of her non-preexisting conditions between May
27, 2009, and March 18, 2010. (AR 605.) The letter defendant sent also
noted that, in a conversation with Dr. Smith, Dr. Chugh stated that
plaintiff’s orthostatic intolerance “can usually be managed with
medications and other modifications” and that “patients are usually
able to work with orthostatic intolerance.” (AR 605.) Finally, the letter
noted that a Vocational Rehabilitation Consultant (VRC) had reviewed
plaintiff’s job requirements and determined that plaintiff could perform
her own job from August 20, 2009, through November 30, 2009, and
became disabled again on December 1, 2009. (AR 606.) This letter
again indicated that plaintiff had 180 days to appeal her denial of
disability benefits.
Plaintiff filed her next appeal on April 8, 2011. (AR 486-89.) In
addressing the period of time that defendant found she was able to
work between August 20, 2009, and November 30, 2009, plaintiff stated
that “[i]n the real work world, this would necessarily mean that she
8

would be disable [sic] for that entire time. It is highly unlikely that an
employer of a CPA who is an audit manager will tolerate an employee
whose work life varies such that she may be disabled one month and
not another or need to rest for a portion of the day.” (AR 488.)
On May 19, 2011, defendant obtained another review of the record
from Dr. Mark Friedman, a cardiologist.

Dr. Friedman found that

“[t]he medical information does support continuous physical functional
limitations/restrictions beyond April 27, 2009” based on her orthostatic
intolerance. (AR 442.) Dr. Friedman also stated that plaintiff “may
need to sit or lay down should she experience symptoms of dizziness or
lightheadedness related to orthostatic hypotension.”

(Id.)

Dr.

Friedman contacted Dr. O’Connor, who advised Dr. Friedman that he
had not seen plaintiff in the prior four to six months. Dr. Friedman also
attempted to discuss plaintiff’s medical issues with Dr. Chugh, but did
not receive a return call.
Plaintiff also provided further supporting documentation from
other doctors. (AR 395-7; 399-401.) In relevant part, Dr. Chugh stated
on April 11, 2011, that plaintiff “must be able to lie down during the day
if symptoms warrant.” (AR 399-400.)
9

Defendant provided the additional medical records to Dr.
Friedman, who again set forth plaintiff’s potential need to sit or lay
down during the work day.

(AR 366.)

Defendant then conducted

another vocational review. On July 15, 2011, defendant again denied
plaintiff’s appeal. (AR 356-62.)
In the July 15, 2011 letter, defendant stated that its “consultant
advised that the clinical medical information does support continuous
physical functional limitations beyond April 27, 2009” based on
orthostatic intolerance.

(AR 360.)

The consultant also stated that

plaintiff may need to sit or lay down as needed.

(Id.)

However,

defendant relied on its VRC’s assessment that plaintiff “was capable of
performing all of the essential duties and functions of her own job as an
audit manager” because she would be permitted to “sit as needed.” (AR
361.)
Following this, plaintiff submitted additional information to
defendant, which defendant sent to Dr. Friedman for consideration. Dr.
Friedman certified that the information would not have changed his
opinion, and defendant confirmed its denial on September 8, 2011. (AR
243-44.)
10

II.

Standard of Review
In an ERISA case seeking a review of a denial of benefits under 29

U.S.C. § 1132(a)(1)(B), the default standard of review is de novo.
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). If “the
benefit plan gives the administrator or fiduciary discretionary authority
to determine eligibility for benefits or to construe the terms of the plan,”
the Court applies a highly deferential arbitrary and capricious
standard. Id. at 115. “Under this standard, [the Court] uphold[s] the
administrator's decision if it is the result of a deliberate, principled
reasoning

process

and

if

it

is

supported

by

substantial

evidence.” Bennett v. Kemper Nat'l Servs., Inc., 514 F.3d 547, 552 (6th
Cir. 2008) (quotation marks and further citation omitted).
The

Summary

Plan

Description

(“SPD”)

attached

to

Certificate of Insurance contains a section stating the following:
Discretionary Authority of Plan Administrator
and Other Plan Fiduciaries
In carrying out their respective responsibilities under the
Plan, the Plan administrator and other Plan fiduciaries shall
have discretionary authority to interpret the terms of the
Plan and to determine eligibility for and entitlement to Plan
benefits in accordance with the terms of the Plan. Any
interpretation or determination made pursuant to such
11

the

discretionary authority shall be given full force and effect,
unless it can be shown that the interpretation or
determination was arbitrary and capricious.
(AR 53.)

SPDs are federally mandated ERISA plan documents

regulated by the Department of Labor under 29 C.F.R. 2520.102-3.
Plaintiff argues that Mich. Admin. Code R. 500.2202, entitled
“Insurance Policy Forms – Discretionary Clauses” and in effect as of
July 1, 2007, prohibits the enforcement of discretionary clauses in any
part of an ERISA plan. The rule states in relevant part that on or after
July 1, 2007, “an insurer shall not issue, advertise, or deliver to any
person in this state a policy, contract, rider, indorsement, certificate, or
similar contract document that contains a discretionary clause.” Id. at
(2)(b).

The rule further states that on or after July 1, 2007, “a

discretionary clause issued or delivered to any person in this state in a
policy, contract, rider, indorsement, certificate, or similar contract
document is void and of no effect.” Id. at (2)(c).

The Sixth Circuit has

determined that this rule falls within ERISA’s savings clause and is not
preempted by ERISA’s express preemption clause. Am. Council of Life
Insurers v. Ross, 558 F.3d 600, 604-07 (6th Cir. 2009).

12

To enforce this Rule, insurers are required to submit to the
Commissioner of Michigan’s Office of Financial and Insurance Services
(“Commissioner”) “a list of all forms in effect in Michigan that contain
discretionary clauses” along with “a certification that the list is
complete and accurate.”

Mich. Admin. Code R. 500.2202(e).

The

meaning of the word “form” is defined by M.C.L. § 500.2236(1). Mich.
Admin. Code R. 500.2201(d).
M.C.L. § 500.2236(1) refers to “basic insurance policy” forms,
“annuity contract” forms, “insurance or annuity application” forms,
“printed rider or indorsement” forms, “form of renewal certificate[s],”
and “group certificate[s]” as forms for the purposes of Mich. Admin.
Code R. 500.2202. As the court noted in Markey-Shanks v. Metro. Life
Ins. Co., Case No. 12-cv-342, 2013 WL 3818838 (W.D. Mich. July 23,
2013), “[a]n ERISA Plan or SPD is not among the documents subject to
approval by the Commissioner.” Id. at *6.
Plaintiff argues that the SPD was, in fact, subject to approval by
the Commissioner, citing a May 1, 2007 letter in which the
Commissioner’s officer disapproved of a March 5, 2007 statement by
defendant that it would continue to act in accordance with the
13

discretionary clause in its summary plan description. (Dkt. 38-3 at 12.)
Defendant removed that statement, and the Commissioner approved
the forms defendant submitted to it. Plaintiff argues that this shows
that the discretionary clause in the SPD was deemed unenforceable by
the Commissioner.
That is not, however, what the full, months-long exchange
between defendant and the Commissioner reveals. In December 2006,
defendant

submitted

three

forms

to

the

Commissioner:

forms

#G.LTC4097 NH-MI, #G.LTC297 COMP NW, and #G.24303. (Dkt. 38-3
at 3.)

On December 21, 2006, the Commissioner objected to

discretionary clauses in each of the forms. In relation to this case, the
Commissioner objected to the discretionary clause in the long-term
disability insurance policy form, #G.24303, which read, “MetLife in its
discretion has authority to interpret the terms, conditions, and
provisions of the entire contract.

This includes the Group Policy,

Certificate and any Amendments.” (Id.)
Plaintiff does not contend, nor is there any evidence showing, that
#G.24303 was an ERISA SPD. Neither the Commissioner’s December
21, 2006 letter nor its May 1, 2007 letter reaches the discretionary
14

clause in the SPD. Instead, it found that defendant’s March 5, 2007
caveat regarding enforcement of the discretionary clause in the SPD
notwithstanding Michigan requirements for other forms was an
insufficient certification that the forms actually submitted to and
considered by the Commissioner did not contain discretionary clauses.
Accordingly, the Court will apply the arbitrary and capricious
standard to this case, based on the reservation of discretionary
authority reserved to defendant in the SPD.
III.

Analysis

Defendant denied plaintiff’s application for long-term disability
benefits four times, although this suit appears to concern primarily the
denials that relied on Dr. Friedman’s reports. “When it is possible to
offer a reasoned explanation, based on the evidence, for a particular
outcome, that outcome is not arbitrary or capricious.” Davis v. Ky. Fin.
Cos. Retirement Plan, 887 F.2d 689, 693 (6th Cir. 1989) (internal
quotations and citation omitted).
As a threshold matter, plaintiff’s complaint sets forth that her
disability claim is based on both her orthostatic intolerance and her
irritable bowel syndrome. Plaintiff does not argue in either her motion
15

or her response to defendant’s motion that irritable bowel syndrome
would serve as a basis for long-term disability benefits. Further, the
record clearly indicates that irritable bowel syndrome was a preexisting
condition.

(See AR 395, 631, 638 (notes from physicians and other

medical treaters indicating that plaintiff’s irritable bowel syndrome was
a preexisting condition).) Accordingly, her claim cannot survive based
on her irritable bowel syndrome, and can only proceed based on her
orthostatic intolerance.
The first three denials by defendant were not arbitrary and
capricious.

The November 3, 2009 denial occurred because plaintiff

failed to provide necessary medical records for adjudication.

The

December 21, 2009 denial found no evidence of orthostatic intolerance
in the medical record, and indeed, Dr. Chugh would not make his
diagnosis of orthostatic intolerance for nearly another four months. The
October 11, 2010 denial was based on the findings of two doctors that
there was a window of just over three months where plaintiff was
capable of performing her job as defined under the plan. “Generally,
when a plan administrator chooses to rely upon the medical opinion of
one doctor over that of another in determining whether a claimant is
16

entitled to ERISA benefits, the plan administrator's decision cannot be
said to have been arbitrary and capricious because it would be possible
to offer a reasoned explanation, based upon the evidence, for the plan
administrator's decision.” McDonald v. W.-S. Life Ins. Co., 347 F.3d
161, 169 (6th Cir. 2003).
The issue, then, is whether it was arbitrary and capricious on July
15, 2011, for defendant to rely on the certification of its VRC that
plaintiff only needed to sit down to accommodate her orthostatic
intolerance, and thus that plaintiff was capable of performing the
functions of her job.4
Plaintiff accuses defendant of “cherry-picking” because it did not
rely on plaintiff’s statements regarding her disability, and it
“discredited without explanation the opinions of its own paid paper
Plaintiff also argues that the plan at issue contemplates obtaining a
medical examination rather than conducting “paper reviews” such as
the ones defendant obtained here. Plaintiff does not, however, indicate
what provision in the plan requires a medical examination. The only
relevant provision the Court can identify is the “Physical Exams”
section of the plan, which states that “[i]f a claim is submitted for
insurance benefits, We have the right to ask the insured to be examined
by a Physician(s) of Our choice as often as is reasonably necessary to
process the claim. We will pay the cost of such exam.” (AR 44.) Unless
the plan language “expressly bars a file review by a physician in lieu of
such a physical exam,” a paper review is permitted in lieu of a physical
exam. Calvert v. Firstar Fin., Inc., 409 F.3d 286, 295 (6th Cir. 2005).
17
4

reviewers.” Further, it did not ask Dr. Friedman to clarify whether
plaintiff would actually or definitely need to lie down when experiencing
symptoms of orthostatic intolerance. (Dkt. 33 at 38.) Citing Spangler v.
Lockheed Martin Energy Sys., Inc., 313 F.3d 356 (6th Cir. 2002),
plaintiff argues that such “cherry-picking” is impermissible, even under
an arbitrary and capricious standard.
In Spangler, the Sixth Circuit determined that an ERISA
administration acted arbitrarily and capriciously when it requested a
transferable skills analysis, but sent only a single report out of the
entire medical record to the reviewing doctor. Spangler, 313 F.3d at
361-62. This generated an “aberrant” report that was inconsistent with
the rest of the record, for the apparent purpose of “obtaining a favorable
report from the vocational consultant as to [that plaintiff’s] ability to
work.” Id. at 362.
Defendant is accused of two transgressions: first, not asking Dr.
Friedman to further clarify whether “may need to sit or lay down”
meant that plaintiff would definitely need to lie down, and second,
relying on a VRC assessment that disregarded both Dr. Friedman and

18

Dr. Chugh’s statements that plaintiff either “may need to” or “must” lie
down when symptoms of orthostatic intolerance are present.
Defendant argues at length that the record demonstrated that
plaintiff was not disabled between August 20, 2009 and November 30,
2009, and that this supports each of its denials, including denials on
July 15, 2011, and September 8, 2011.
Those latter denials rely entirely on Dr. Friedman’s evaluation,
which did “support continuous physical functional limitations beyond
April 27, 2009.” (AR 360.) In other words, the final denial was not
based on a finding that plaintiff was not substantially functionally
limited, because the only evaluating physician report relied on led to
the conclusion that “the clinical medical information supported
restrictions and limitations for the non-pre-existing condition[] of . . .
orthostatic intolerance/dizziness . . . beyond April 27, 2009.” (AR 36162.) The final denial was based solely on the finding that “the medical
information supported that [plaintiff] has the capability of performing
her own occupation” because her “job would allow her to sit as needed if
she experienced symptoms of dizziness or lightheadedness.” (Id.)

19

Accordingly, the reports previously used as a basis for denial of
plaintiff’s application cannot justify the subsequent denial of benefits on
July 15 and September 8, 2011, when the record is clear that defendant
did not rely on those prior reports in making its determination.5
Plaintiff argues that, because she might need to lie down due to
orthostatic intolerance, and there was no finding that her job could
accommodate that need, the defendant’s denial was arbitrary and
capricious. With regard to the July 15, 2011 denial, she is correct.
Under the arbitrary and capricious standard, a decision must be
supported by substantial evidence. In building that support, “a plan
administrator may not arbitrarily disregard reliable medical evidence
proffered by a claimant, including the opinions of a treating physician.”
Evans v. UnumProvident Corp., 434 F.3d 866, 877 (6th Cir. 2006). The
consistent medical evidence at the time of the July 15, 2011 decision
indicated that plaintiff was both continuously substantially functionally
limited since April 27, 2009 (as defendant found in its denial letter),
The July 15, 2011 denial letter, for instance, states that “[defendant]
had her entire claim file reviewed by two independent physician
consultants; one board certified in cardiology/internal medicine and the
other board certified in psychiatry. The consultants reviewed Ms. Hess’
entire file, including all office notes, test results and procedure notes
submitted.” (AR 359.) The cardiologist was Dr. Friedman.
20

5

and that plaintiff would require the potential accommodation of needing
to lie down on the job.
The distinction between Dr. Friedman and Dr. Chugh’s notes is
small, but critical. Defendant reads Dr. Friedman’s “may need to sit or
lie down” as stating that either was an equally sufficient remedy for
symptoms related to plaintiff’s orthostatic intolerance, and that no
clarification from Dr. Friedman was necessary, as sitting was an option
always available to plaintiff. (AR 224.) Dr. Chugh, on the other hand,
stated that plaintiff must be able to lie down if the situation warranted.
A denial of benefits based on a reading of Dr. Friedman’s note that
plaintiff “may need to sit or lie down” to require only sitting as an
accommodation is arbitrary and capricious.

Defendant arbitrarily

disregarded the consistent opinions of both plaintiff’s treating physician
and Dr. Friedman that plaintiff may need to lie down while working in
order to accommodate the substantial functional limitations arising
from her orthostatic intolerance.
Plaintiff showed that, based on reliable medical evidence, lying
down would be an accommodation possibly required for her to continue
working. Defendant’s consultant agreed with this assessment. No part
21

of plaintiff’s job description or any assessment in the administrative
record allows for plaintiff to lie down on the job. Defendant, rather than
address this potential accommodation, read Dr. Friedman’s assessment
not as it actually read, that plaintiff might need to sit or lay down based
on her orthostatic intolerance, but instead that either sitting or lying
down would do equally well.
That is not what Dr. Friedman said. If he had, then defendant
would have offered a reasoned explanation for its denial: sitting would
accommodate orthostatic intolerance, and plaintiff’s job permitted
sitting, so she would still have been able to earn more than eighty
percent of her pre-disability earnings at her own job. Instead, what Dr.
Friedman said is that sitting or lying down might be required to
accommodate plaintiff. Defendant was required, in assessing whether
plaintiff could do her job with her substantial functional limitations, to
assess the impact of her potential need to lay down on her ability to do
her job.

Defendant did not, and that failure renders its decision

arbitrary and capricious.
IV.

Conclusion

For the reasons stated above, it is hereby ordered that:
22

Defendant’s motion for summary judgment (Dkt. 31) is DENIED;
Plaintiff’s motion for summary judgment (Dkt. 33) is GRANTED;
The Court enters JUDGMENT in favor of plaintiff on her claim to
recover benefits under ERISA, 29 U.S.C. § 1132(a)(1)(B); and
Defendant is ORDERED to pay to plaintiff all unpaid long-termdisability benefits owed to her under the plan at issue from the time
benefits became payable to the present along with prejudgment interest
on those unpaid benefits, and to pay ongoing benefits in accordance
with that same plan.
Plaintiff may file a motion seeking reasonable attorney fees and
costs.
IT IS SO ORDERED.

Dated: February 17, 2015
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

23

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on February 17, 2015.

s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

24