Hall v. United of Omaha Life Insurance Company

Filing 14

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KATHY HALL,
Plaintiff,
Case No. 1:14-CV-08
v.
HON. ROBERT HOLMES BELL
UNITED OF OMAHA LIFE
INSURANCE COMPANY,
Defendant.
/
OPINION
In this action Plaintiff challenges Defendant’s second termination of her long-term
disability benefits. For the reasons that follow, the administrative decision terminating
benefits will be affirmed.
I.
Plaintiff Kathy Hall, who was born in 1966, began working as a per capita technician
in the accounting department of the Saginaw Chippewa Indian Tribal Casino in Mt. Pleasant,
Michigan in 1998. The Tribal Casino has a group long-term disability insurance plan (“the
Plan”) that is funded by a group long-term disability benefits insurance policy (Policy No.
GLTD-599I) issued by Defendant United of Omaha Life Insurance Company (“United”).

(AR 227-264.)1 Defendant United administered the Plan. Under the Plan, long-term
disability benefits begin after a 90-day Elimination Period. (AR 229, 236, 248.) Benefits
end when the participant is no longer disabled. (AR 249.) For the first two years of asserted
disability, disability is defined as the inability to perform “at least one of the Material Duties
of your Regular Occupation.” (AR 231, 260.) Thereafter, the test is the inability to perform
“all of the Material Duties of any Gainful Occupation.” (Id.) As a full-time employee of the
Tribal Casino, Plaintiff was eligible to participate in the Plan.
Plaintiff began developing back pain in June 2010. An MRI revealed that she had
“grade I anterolisthesis” with “possible bilateral pars defects at the L5-S1 level,” and
“[d]egenerative disc disease with posterolateral disc bulge causing bilateral nerve root
compromise” at the L5-S1 level. (AR 538.) Plaintiff continued working until February 16,
2011, when she went on leave for back surgery. On February 16, 2011, Dr. Naman Salibi
of Saginaw Valley Neurosurgery performed a lumbar fusion and laminectomy, including the
insertion of an L5-S1 OptiMesh pedicle screw with bilateral pre-bent rods. (AR 531-34.)
Dr. Salibi’s postoperative diagnoses were bilateral L5 spondylolysis with first and seconddegree spondylolisthesis and severe bilateral foraminal stenosis. (AR 531.)
Plaintiff applied for long-term disability benefits under the Plan. Defendant granted
benefits beginning on May 18, 2011, 90 days after Plaintiff became disabled, and ending on

1

The Administrative Record, which is found at ECF No. 10, will be cited as “AR”
followed by a number corresponding to the Page ID# assigned to the record in the CM/ECF
system.
2

May 29, 2011, when Plaintiff was released to return to work with restrictions. (AR 145-49.)2
Plaintiff filed an administrative appeal of the termination of benefits.
Following her first back surgery, Plaintiff continued to have pain in her back and
extremities. Plaintiff received post-surgical care from Dr. Salibi’s partner, Dr. Gerald
Schell. (AR 344-367.) On September 9, 2011, Dr. Schell reported to Dr. Vashista,
Plaintiff’s primary care physician, that a CT scan of that date showed poor stimulation of
Plaintiff’s interbody fusion at L5-S1. (AR 349.) On the same date, Dr. Schell reported that
Plaintiff’s lumbar spinal fusion had not healed. (Def. Resp. Ex. E, ECF No. 12.) In October
2011, Dr. Schell suspected that there might be pseudarthrosis at the L5-S1 level and he began
discussing potential surgical interventions with Plaintiff. (AR 350.)
On November 11, 2011, Dr. R. Scott Lazzara evaluated Plaintiff for the Disability
Determination Service in conjunction with Plaintiff’s application for Social Security
disability benefits. (AR 85-89.) With respect to Plaintiff’s musculoskeletal system, Dr.
Lazzara reported that Plaintiff had “no difficulty getting on and off the examination table,
mild difficulty heel and toe walking, mild difficulty squatting, and mild difficulty standing
on either foot. Straight let raising is negative bilaterally. There is no paravertebral muscle

2

On May 27, 2011, Dr. Schell advised Defendant that Plaintiff was stable enough to
return to work on May 29, 2011, with restrictions of no excessive bending and no lifting over
20 pounds. (Def. Resp. Br. Ex. A, ECF No. 12.) This report was referenced in the
administrative record in this case (AR 145), and was part of the administrative record in Hall
v. United of Omaha Life Ins. Co., 1:12-CV-387 (W.D. Mich.) (Hall I). Although Plaintiff’s
doctors released her to work with restrictions, it appears that Plaintiff’s employer did not
permit her to return to work. (Def.’s Br. at 2.)
3

spasm. There is lumbar spine straightening and diminished space height.” (AR 86.) With
respect to her neurological system, Dr. Lazzara noted that Plaintiff’s “Cranial nerves are
intact. Motor strength is intact. Muscle tone is normal. Sensory is intact to light touch and
pinprick. The patient walks with a wide based gait without the use of an assistive device.”
(AR 88.) He concluded that although Plaintiff had diffuse tenderness over the peri-incisional
area and over the facet joints, neurologically she appeared stable, her degree of impairment
was “mild to moderate,” and her prognosis was “fair to guarded depending on her surgical
outcome.” (AR 89.) Dr. Lazzara indicated in his supplemental report that Plaintiff’s reflexes
were normal, and that she could sit, stand, bend, stoop, carry, push, pull, squat and arise from
squatting, and climb stairs, with some restrictions. (AR 90.)
On December 30, 2011, Nurse Practitioner Reed noted that Plaintiff’s pain had been
increasing over the last two months, that she had to increase her narcotic usage, and that the
pain was constant, sharp, and worse with standing or sitting. (AR 353.) Nurse Practitioner
Reed advised Dr. Vashishta that Dr. Schell was scheduling Plaintiff for a revision surgery.
(Id.)
On January 19, 2012, Plaintiff underwent a revision surgery to address what appeared
to be “chronic intractable back pain with pseudarthrosis at L5-S1.” (AR 738.) Dr. Schell
performed an interbody fusion at L5-S1 with lateral interbody fusion at L5-S1 using hip bone
autograft, structural allograft and a PEEK interbody implant. (AR 739.)
At her first post-operative appointment on February 15, 2012, approximately one

4

month after the surgery, Nurse Practitioner Nicole Reed documented that Plaintiff was
having problems with left foot pain that was worse with movement, buttock pain, and some
tingling in her toes. (AR 754.)
On March 5, 2012, Dr. Schell reported that Plaintiff’s back pain is “markedly
improved,” but she had some burning dysesthesia in the left foot. (AR. 755.) Dr. Schell
noted that a CT scan did “not demonstrate any evidence of retropulsion of the graft or
foraminal stenosis. Everything is in good position and alignment.” (Id.) Dr. Schell thought
they needed “to give this more time to settle and heal,” but that in light of her nerve irritation,
they might try a nerve root injection to “help facilitate some of the nerve swelling that she
is getting since that surgical intervention.” (Id.)
On April 7, 2012, the Social Security Administration determined that Plaintiff became
disabled under its rules on February 16, 2011, and the Plaintiff was entitled to disability
benefits beginning August 2011. (AR 548.) The ALJ’s decision, however, noted that
improvement was expected:
Medical improvement is expected with appropriate treatment. Consequently,
a continuing disability review is recommended in 12 months. The claimant’s
[sic] underwent a second surgery that may prove over time to be successful in
correcting the claimant’s spinal impairments, thereby restoring much of her
currently diminished functioning and capacity for work.
(AR 563.)
On March 9, 2012, Defendant upheld the May 2011 termination of Plaintiff’s longterm disability benefits. (AR 174.) On April 23, 2012, Plaintiff filed an action in this Court

5

challenging the administrative determination. Hall v. United of Omaha Life Ins. Co., 1:12CV-387 (W.D. Mich.) (Hall I).
On April 30, 2012, Dr. Schell reported that “the severe burning type pain has
dissipated out of the area of the ankle,” and that “[f]or the most part she is neurologically
stable” and “seems to be making good neurologic progress.” (AR 756.)
On July 11, 2012, Nurse Practitioner Reed documented Plaintiff’s complaints of some
rectal numbness, occasional infrequent stool leakage, numbness in her left and right toes, and
left toe weakness. (AR 757.)
An x-ray of Plaintiff’s lumbar spine, three views, in August 20, 2012, revealed
“[p]ostoperative changes at L5-S1 with a minimal anterolisthesis.” (AR 748.)
On August 20, 2012, Dr. Schell reported that the intensity of Plaintiff’s symptoms was
“beginning to show some signs for some resolution.” (AR 758.) “Her x-rays are stable. For
the most part she seems to be coming along relatively well from neurologic perspective.”
(Id.) “Neurologic status is stable.” (Id.)
On November 7, 2012, Plaintiff and Defendant reached a settlement in Hall I.
Defendant agreed to reinstate Plaintiff’s long term disability benefits from May 29, 2011, to
date, and advised that they had approved her for ongoing benefits. (AR 190-92.) On
November 19, 2012, the Court entered a “Consent Order of Dismissal” without prejudice in
Hall I. (AR 195; Case No. 1:12-CV-387, ECF No. 23).
On December 12, 2012, after Plaintiff’s long-term disability benefits were reinstated

6

pursuant to the consent order, Plaintiff filed a Supplementary Report of Disability on which
she reported that she was totally disabled from February 2011 to “current/indefinite.” (AR
814.) She reported that she still had “extreme back and foot pain,” and that “standing,
bending, sitting, lifting and too much walking makes worse.” (Id.)
An x-ray of Plaintiff’s lumbar spine, three views, on January 8, 2013, concludes with
“Impression: Post fusion at the lumbosacral junction. A complicating process is not apparent
on these plain films.” (AR 749)
On January 8, 2013, Plaintiff reported to Nurse Practitioner Felsing that she had
ongoing left foot numbness and weakness, and pain in the tailbone if she sat in one position
too long. (AR 759.) She reported, however, that overall the symptoms of intermittent low
back pain and numbness through the left thigh that she was experiencing prior to surgery did
feel a bit better. Nurse Practitioner Felsing reported:
Physical exam reveals the patient to be seated comfortably today. Her gait is
steady. Straight leg raise is negative. Dorsi/plantar flexion is strong and intact
bilaterally. Incision is well healed.
(Id.) Nurse Practitioner Felsing also reported that Plaintiff “states she can live with her
symptoms and does not seem overly aggravated by them.” (Id.)
The same day, Nurse Practitioner Felsing filled out a Physical Capacities Checklist
on Plaintiff’s behalf. (AR 794-95.) The Checklist indicated that in an 8-hour workday,
Plaintiff could sit for 3 hours in 1-hour intervals, walk for 2 hours in 1-hour intervals, and
stand for 1 1/2 hours in 1/2 hour intervals; Plaintiff could do repetitive movements with her

7

right hand and foot, and left hand, but not her left foot; Plaintiff could constantly lift, carry,
and push or pull up to 10 pounds and could occasionally lift, carry and push or pull 11-20
pounds; Plaintiff could constantly handle and finger; and Plaintiff could frequently climb
stairs, and occasionally (for short episodes only) balance, stoop, bend, kneel, crouch, squat,
crawl, reach forward, and reach overhead. (AR 794.)
On February 4, 2013, Dr. Malcolm Field, a neurosurgeon at Saginaw Valley
Neurosurgery, saw Plaintiff for a follow-up visit. He advised Dr. Vashishta that Plaintiff
reported ongoing left foot numbness and weakness and pain in the tailbone if she sat in one
position too long. (AR 624.) Her pre-surgery symptoms of low back pain and left thigh
numbness were feeling a bit better. (Id.) She was seated comfortably, her gait was steady,
her straight leg raise was negative, and her dorsi/plantar flexion was strong and intact
bilaterally. (Id.) Dr. Field concluded that Plaintiff had not reached maximal medical
improvement at the time, but that he expected fundamental changes within three to four
months. (AR 625.) Dr. Field’s medical prognosis for recovery was “good/stable.” (Id.)
On March 28, 2013, Defendant terminated Plaintiff’s long term disability benefits a
second time based on its determination that Plaintiff no longer met the definition of
disability. (AR 198-208.) Plaintiff filed an administrative appeal.
On May 9, 2013, Dr. Lakshmana Madala, a pain management doctor, documented
Plaintiff’s complaints of lower back pain and sacroiliac joint pain. (AR 394-96.) Dr. Madala
reported that Plaintiff was in no acute distress; she used no assistive devices; her lumbosacral

8

spine movements were normal; flexion was not painful; extension produced only mild pain;
she had mild paraspinal tenderness; and moderate joint sacroiliac joint tenderness that was
greater on the left. (AR 395-96.)
On May 15, 2013, Plaintiff underwent a CT guided left sacroiliac injection. (AR 216.)
On May 21, 2013, Dr. Schell noted the possibility of sacroiliitis on the left side. (AR 364.)
He also noted that Plaintiff “was up to walking 5 miles a day and that is when things got
aggravated.” (Id.) Plaintiff reported that she occasionally had stabbing pain in her back, but
Dr. Schell thought they could continue to treat her conservatively by repeating a sacroiliac
injection or getting CT myelographic studies. (Id.) “But if she can tolerat[e] her pain, since
she is not having neurologic deficits, we certainly can wait this out.” (Id.)
On July 14, 2013, Dr. Schell performed another CT guided sacroiliac joint injection
on Plaintiff. The same day, Dr. Schell updated his Physician Statement of Disability. Dr.
Schell reported that “[d]espite surgical intervention, Mrs. Hall has not seen much in the way
of medical improvement.” (AR 216.) Dr. Schell noted that Plaintiff’s benefits had been
terminated on the basis of office notes completed by Nurse Practitioner Felsing and Dr. Field
while Dr. Schell was on medical leave. Dr. Schell reported that Nurse Practitioner Felsing
had only seen Plaintiff on one occasion and that Dr. Field had not physically examined
Plaintiff. Dr. Schell stated that Plaintiff “has not received medical improvement and it is not
my medical opinion that she could expect to see ‘fundamental changes’ in three to four
months. Her medical conditions are longstanding and I do not see where her medical

9

prognosis at this time is either ‘good’ and/or ‘stable.’” (AR 217.) Dr. Schell noted that
Plaintiff continues to experience right leg cramping, left foot numbness and weakness, pain
in her tailbone with prolonged sitting, rectal numbness/bowel incontinence, left and right toe
numbness and weakness, burning dysesthesias in left foot, buttock pain, and left sided
weakness. (AR 216.) Dr. Schell concluded that Plaintiff “continues to be disabled from her
regular occupation as a Per Capita Technician and any other full-time occupation at this
time.” (Id.) According to Dr. Schell, the opinions of Dr. Field and Nurse Felsing on which
Defendant relied were substantially misinformed. He stated that Plaintiff’s lumbar spinal
fusion was not healed, that she was completely unstable, and that her medical prognosis was
neither good nor stable, and that she continued to be disabled from any full-time occupation.
(AR 215-17.)
Following receipt of Dr. Schell’s Statement of Disability, Defendant sought an
independent medical record review from Dr. Kogan, a board certified neurologist. In his
November 13, 2013, report, Dr. Kogan noted that Plaintiff’s medical record after her revision
surgery “documents multiple symptoms,” including persistent lower back pain, tailbone pain,
buttock pain, left leg pain, left foot pain, left arm pain, toe tingling, left and right toe
numbness, left lower extremity weakness, rectal numbness, and stool leakage. (AR 77.) Dr.
Kogan noted that there was no specific dermatomal or myotomal distribution documented,
and no specific proposed etiology for Plaintiff’s symptoms. (Id.) He noted that Dr. Schell
documented in March 2012 that a CT scan showed everything in place. According to Dr.

10

Kogan, this implied that there was no structural cause for Plaintiff’s symptoms at that time.
(Id.) Dr. Kogan noted that CT guided sacroiliac joint injections gave Plaintiff significant,
although temporary, relief from her new diagnosis of sacroiliitis. Dr. Kogan identified
inconsistencies in Dr. Schell’s report based on the lack of a specific, unifying diagnosis for
the Plaintiff’s complaints after her revision surgery; the lack of specific structural causes for
her symptoms on lumbar spine imaging after her revision surgery; indications in Dr. Schell’s
clinical notes that Plaintiff was neurologically stable; and evidence that Plaintiff’s
neurological status had improved to the point that she was walking five miles per day as of
May 2013. (AR 78-79.) Dr. Kogan concluded that the records did not support Dr. Schell’s
opinion that Plaintiff was disabled from her own or any occupation. (AR 80.) Dr. Kogan did
not find any direct evidence of symptom magnification, exaggeration, or secondary gain
documented in the record, although he did note that Plaintiff refused a psychiatry consult in
March 2011. (AR 80.)
On December 5, 2013, Defendant upheld the termination of Plaintiff’s long term
disability benefits as “appropriate.” (AR 59-63.) Defendant concluded that there was no
medical support for restrictions and limitations that would prevent Plaintiff from performing
the material duties of her regular occupation beyond March 27, 2013. Plaintiff is able to
perform the material duties of her regular occupation due to inconsistencies in the medical
record and reports from Dr. Schell indicating that on various occasions she was
neurologically stable. (AR 62.)

11

Plaintiff filed this action challenging Defendant’s decision to terminate her long-term
disability benefits pursuant to Section 502(a)(1)(B) of the Employees’ Retirement Income
Security Act (“ERISA”), 29 U.S.C. § 1132(a)(1)(B).
II.
Plaintiff filed this action under Section 502(a)(1)(B) of the Employees’ Retirement
Income Security Act (“ERISA”), 29 U.S.C. § 1132(a)(1)(B), challenging Defendant’s
decision to terminate her long-term disability benefits. There is no dispute that the Plan is
an employee welfare benefit plan governed by ERISA, nor is there any dispute that Plaintiff
was a participant in the Plan. (Answ. ¶¶ 4, 5.)
The parties agree that the Court should apply the de novo standard of review. (Joint
Status Report, ECF No. 7; Case Management Order, ECF No. 9.) “‘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.” Shelby Cnty. Health Care
Corp. v. Majestic Star Casino, 581 F.3d 355, 368 (6th Cir. 2009) (quoting Hoover v.
Provident Life & Acc. Ins. Co., 290 F.3d 801, 808–09 (6th Cir. 2002)).
In ERISA cases such as this, the Court bases its de novo review solely upon the
administrative record. Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609,619 (6th Cir.
1998). This means that the Court is “‘required to consider only the facts known to the plan
administrator’ at the time of the decision.” Judge v. Metro. Life Ins. Co., 710 F.3d 651, 658

12

(6th Cir. 2013) (quoting Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376, 381 (6th
Cir.1996)).
III.
On de novo review, this Court is required to determine whether, as of March 28, 2013,
Plaintiff was disabled from performing any of the material duties of her past occupation, and
whether Defendant’s decision to terminate benefits as of March 28, 2013, was correct in light
of the administrative record.
A. Relevant Time Period
At various times in her briefs, Plaintiff has asserted that Defendant effectively
determined she was disabled from her first surgery on February 16, 2011, until November
19, 2012, the date of the Consent Order. Plaintiff contends that Defendant has improperly
concentrated on medical records from the time period surrounding the first and second
surgeries through November 2012, a time period that Defendant has effectively conceded
Plaintiff was disabled. Plaintiff in effect is arguing that her medical records prior to
November 2012 are not relevant to the Court’s review.
The Court disagrees. There is no evidence that Defendant ever conceded that Plaintiff
was disabled as of November 2012. Defendant entered into a settlement of a contested case.
The settlement resulted in the entry of a consent order that placed Plaintiff back on benefits.
It does not appear, however, that Defendant undertook a review of Plaintiff’s full medical
file at that time, or that it made any specific findings or admissions concerning Plaintiff’s

13

status at that time.3 Accordingly, for purposes of reviewing Defendant’s termination of
Plaintiff’s disability status in March 2013, the Court will focus on Plaintiff’s medical records
from after her second surgery in January 2012.
B. Relevant Records
Plaintiff objects to Defendant’s reference to medical records that were not a part of
the administrative record filed in this case. Plaintiff’s objection is not well-taken. The
records Defendant has attached to its response brief were part of the administrative record
in Hall I, so there can be no dispute that this information was known to the plan administrator
at the time of the March 2013 determination. See Judge, 710 F.3d at 658.
C. Failure to Place Greater Weight on Treating Physician’s Opinion
Plaintiff asserts that Defendant’s decision to terminate her benefits was not objectively
correct because the evidence of disability from her treating neurosurgeon, Dr. Schell, far
outweighs the contrary opinion of Defendant’s retained file reviewer, Dr. Kogan, who did
not personally examine or treat Plaintiff.
Plaintiff’s argument raises issues concerning the weight should be accorded the
opinion of a treating physician, the weight to be accorded the opinion of a file reviewer, and
the potential conflict of interest when a plan administrator relies on its own hired medical
expert.

3

Defendant has asserted that it made the decision to continue benefits without the
benefit of all of the post-revision surgery records.
14

The Court does not take issue with Plaintiff’s assertion that the opinions of treating
physicians will ordinarily outweigh the contrary opinions of physicians who have merely
undertaken a cold review of the medical file. However, the Court notes, as a preliminary
matter, that the treating physician is not entitled to any special deference: the treating
physician rule that applies in Social Security actions does not apply in the ERISA context.
Calvert v. Firstar Fin., Inc., 409 F.3d 286, 293 (6th Cir. 2005). “[W]hile plan administrators
may not arbitrarily reject or refuse to consider the opinions of a treating physician, they ‘are
not obligated to accord special deference to the opinions of treating physicians.’” Id. (quoting
Black & Decker Disability Plan v. Nord, 538 U.S. 822, 825 (2003)). In addition, the Sixth
Circuit has held that there is “nothing inherently objectionable about a file review by a
qualified physician in the context of a benefits determination.” Id. at 296. Nevertheless,
whether an independent expert hired by the administrator has a possible conflict of interest,
and whether a doctor has physically examined the claimant, are factors the Court must bear
in mind in evaluating the administrator’s decision. Kalish v. Liberty Mut./Liberty Life Assur.
Co. of Boston, 419 F.3d 501, 507-08 (6th Cir. 2005).
The Court will not place great weight on the opinion of a treating physician if it is not
supported by the medical records. Even in the social security context where the treating
physician rule is applied, deference is accorded the treating physician’s opinion “only if it
is based on objective medical findings and is not contradicted by substantial evidence to the
contrary.” Jackson v. Metro. Life, 24 F. App’x 290, 293 (6th Cir. 2001) (citations omitted).

15

In addition, the Court is “not required to accept a treating physician’s conclusory opinion on
the ultimate issue of disability.” Id.
It is with these principles in mind that the Court considers Plaintiff’s contention that
the opinion of Dr. Schell, her treating neurosurgeon, far outweighs the contrary opinion of
Dr. Kogan, Defendant’s retained medical records reviewer.
Dr. Schell’s July 2013 opinion that Plaintiff is totally disabled from any occupation
is not consistent with Dr. Schell’s statements after the revision surgery that everything was
in good position and alignment, that the intensity of Plaintiff’s symptoms was showing signs
of resolution, that she was making good neurologic progress, that her x-rays were stable, and
that her neurologic status was stable. Dr. Schell’s opinion that Plaintiff is totally disabled
is not supported by any test results or any new objective medical findings. Dr. Schell noted
areas in which Plaintiff continued to experience weakness, numbness, and pain, but he did
not explain what was causing those symptoms, or the extent of those symptoms. Dr. Schell’s
July 2013 Statement of Disability is not consistent with the opinions of his nurse practitioner
and partner regarding Plaintiff’s abilities and prognosis. Although Dr. Schell attempted to
discount their opinions because Nurse Practitioner Felsing had only seen Plaintiff on one
occasion, and Dr. Field had not physically examined her, Dr. Schell did not explain what they
overlooked, or why their opinions were in correct.
Plaintiff asserts that Dr. Schell’s July 2013 Statement of Disability includes findings
that she has a “severe L5-S1 disk pathology,” that “her lumbar spinal fusion is not healed,”

16

that “she is completely unstable at this point in time.” This language is found in Dr. Schell’s
July 2013 opinion, but it all relates to Plaintiff’s condition before her revision surgery in
January 2012. (Phys. Statement of Disability ¶¶ 8, 14, AR 216-17.) Dr. Schell did not
present any medical findings from after Plaintiff’s January 2012 revision surgery. Dr. Schell
did not address any of his own clinical notes or letters he wrote to Plaintiff’s primary
physician after the revision surgery, nor did he address any of the diagnostic tests that were
done after the revision surgery. He did not address the success of the revision surgery, or
whether the hip bone auto graft had properly fused. Overall, Dr. Schell fails to give any basis
for his determination that Plaintiff’s medical prognosis is neither good nor stable, and that
she continues to be disabled.
Although Dr. Kogan did not examine Plaintiff, his report contains a more thorough
report of the records from all of Plaintiff’s medical practitioners and diagnostic tests. Dr.
Kogan’s report also highlights significant ways in which Dr. Schell’s July 2013 Statement
of Disability is inconsistent from Dr. Schell’s prior reports and the other medical evidence.
The Court does not agree, under the circumstances, that Dr. Schell’s opinion on the ultimate
issue of disability as expressed in the July 2013 Statement of Disability is entitled to any
greater weight than the opinion of Dr. Kogan.
Plaintiff asserts that “the record is studded with a plethora of various positive
electrodiagnostic confirmations of her disability since her first surgery.” (Pl. Br. 19.)
Although the failure of Plaintiff’s first surgery is documented in the record, Plaintiff has not

17

identified any diagnostic confirmations of her disability after her revision surgery.
D. Conflict of Interest
Where the plan administrator both determines eligibility for benefits and pays benefits
out of its own pocket, this dual role creates a conflict of interest that should be considered
by the reviewing court as a factor in determining whether the plan administrator has correctly
denied benefits. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 108 (2008). This conflict of
interest may be reflected in the plan’s choice of physicians. For example, physicians
“repeatedly retained” by a plan may have an incentive to make a finding of “not disabled”
in order to benefit the plan and preserve their own consulting arrangement. Black & Decker
Disability Plan, 538 U.S. at 832.
[A]lthough “routine deference to the opinion of a claimant’s treating
physician” is not warranted, we may consider whether “a consultant engaged
by a plan may have an ‘incentive’ to make a finding of ‘not disabled’” as a
factor in determining whether the plan administrator acted arbitrarily and
capriciously in deciding to credit the opinion of its paid, consulting physician.
Kalish, 419 F.3d at 508; see also Calvert, 409 F.3d at 292 (noting that a plan’s conflict of
interest provides it with a clear incentive to contract with individuals who are inclined to find
in the plan’s favor).
Nevertheless, the Court will not assume that a doctor hired an paid by the plan is
biased simply because the plan has a conflict. Conclusory allegations of bias with respect
to a plan-chosen reviewer are not sufficient to permit a conclusion that it was improper to
rely on that reviewer. Some evidence, such as statistical evidence that the reviewer

18

consistently opined the claimants were not disabled, is required. Morris v. Am. Elec. Power
Long-Term Disability Plan, 399 F. App’x 978, 989 (6th Cir. 2010) (citing Kalish, 419 F.3d
at 508). Plaintiff has presented no facts to show that Dr. Kogan had a long-term relationship
with Defendant, that he had a history of finding claimants not disabled, or that there were any
other circumstances that would suggest that Dr. Kogan’s opinion was biased. Accordingly,
the Court does not find that Dr. Kogan’s opinion was motivated by a conflict of interest.
Plaintiff notes that in cases governed by ERISA, the administrator is required to
review and balance the quantity and quality of the medical evidence and the opinions on both
sides of the issue rather than cherry-picking the record for evidence that supports denial.
Spangler v. Lockheed Martin Energy Sys., Inc., 313 F.3d 356, 361-62 (6th Cir. 2002)
(holding that administrator acted arbitrarily and capriciously when it sent only a single report
to the reviewing doctor). Here, Plaintiff has presented no facts to suggest that Defendant
failed to provide Dr. Kogan with all relevant records, or that it cherry-picked the record in
order to find that Plaintiff was not disabled.
E. Failed Back Syndrome
Plaintiff asserts that she is disabled from performing her previous occupation because
she is suffering from “failed back syndrome.” In support of this argument, Plaintiff has
submitted an article from Wikipedia that is based on peer-reviewed medical studies.
Defendant opposes Plaintiff’s attempt to bring in evidence of a condition that is not
described in the administrative record.

19

Plaintiff acknowledges Dr. Schell did not use the term “failed back syndrome” to
describe her condition. Nevertheless, she contends that he could have done so because it is
essentially a euphemism for “pseudarthrosis,” a term that Dr. Schell did use. (Pl. Br. 20.)
Plaintiff contends that it is not improper to bring in information regarding a well-recognized
medical condition in order to explain the record, as evidenced by the fact that the record
already includes numerous Wikipedia and other medically-oriented articles defining terms
used in the record. (Pl. Reply Br. 5.)
Although Plaintiff contends that failed back syndrome is a euphemism for
pseudarthrosis, Plaintiff has not presented evidence that this is so. Plaintiff’s evidence of
failed back syndrome is not properly before this Court because the syndrome was not
described or diagnosed in the administrative record. Moreover, although Dr. Schell opined
that Plaintiff was suffering from pseudarthrosis when he performed her revision surgery, Dr.
Schell did not opine that she continued to suffer from pseudarthrosis after he performed the
revision surgery. Accordingly, pseudarthrosis is not a term that requires explanation in order
to understand the medical record after Plaintiff’s revision surgery.
F. Functional Vocational Testing
Finally, Plaintiff contends that Defendant’s termination of her long-term disability
benefits is erroneous because Defendant did not justify its determination by reference to
functional vocational testing. Plaintiff contends that the denial letter did not indicate the
source of the conclusion that Plaintiff’s appropriate “restrictions and limitations” were

20

anything specific to her condition as opposed to the generic restrictions and limitations
applied to sedentary work.
Plaintiff cites Rabuck v. Hartford Life, 522 F. Supp.2d 844 (W.D. Mich. 2007)
(Scoville, M.J.), in support of his contention that an insurer is required to independently
justify its benefits determination on both medical and vocational grounds. In Rabuck, the
Court determined that the company’s determination that the plaintiff could perform his
previous occupation as a company president was arbitrary and capricious where the
administrator relied on a report from someone with no vocational expertise who incorrectly
referred to plaintiff’s occupation as “engineer” and never assessed the potential impact of
plaintiff’s high stress occupation of company president. Id. at 880.
In contrast to Rabuck, the administrator in this case clearly did obtain a professional
assessment of Plaintiff’s prior occupation. In Hall I, a vocational rehabilitation consultant
performed an occupational analysis which looked at the elements and tasks related to
Plaintiff’s job, analyzed it in terms of occupational data, and concluded that the job was
sedentary. (Hall I, ECF No. 16-5, Page ID#549-50.) Defendant referenced the vocational
rehabilitation consultant’s analysis in its September 14, 2011, denial and its March 9, 2012
denial of appeal that included in the administrative record in this case. (AR 147, 174.)
Plaintiff concedes that her job before she stopped working in February 2011 was sedentary
in nature. (Pl. Br. 1.) Plaintiff submitted the Physical Capacities Checklist completed on
January 8, 2013, by Nurse Practitioner Felsing and Dr. Lazzara’s November 11, 2011, range

21

of motion study to Defendant for its consideration in determining her ability to perform her
past occupation. (AR 83-92, 793-96.)
Upon de novo review of the administrative record, the Court concludes that
Defendant’s determination that Plaintiff was no longer disabled from performing her
sedentary job was not erroneous. The medical records support a finding that she was
disabled prior to her revision surgery due to the failure of her first fusion to heal. However,
the records indicate that after her revision surgery, her condition improved, a CT scan did not
demonstrate any evidence of retropulsion of the graft, or any foraminal stenosis, and
everything appeared to be in good position and alignment. Later x-rays revealed that she was
neurologically stable, and that there was no evident complicating process. She also reported
that she was walking five miles. Her treating physician’s opinion that she was disabled from
any full time employment was not supported by any diagnostic testing or diagnosis of any
problems related to the revision surgery. Based on a de novo review of the administrative
record, the Court concludes that Defendant’s determination that Plaintiff was no longer
disabled from performing her sedentary job was not erroneous. Accordingly, the Court will
uphold Defendant’s administrative decision terminating Plaintiff’s long-term disability
benefits as of March 28, 2013.
An order and judgment consistent with this opinion will be entered.

Dated: June 23, 2015

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE

22