Schmitz v. Sun Life Assurance Company of Canada

Filing 51

MEMORANDUM OPINION AND ORDER granting defendant's 28 Motion for Summary Judgment; denying plaintiff's 36 Motion for Summary Judgment (Written Opinion). Signed by Judge John R. Tunheim on October 31, 2014. (DML)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
JEFF SCHMITZ,

Civil No. 13-622 (JRT/FLN)
Plaintiff,

v.
SUN LIFE ASSURANCE COMPANY OF
CANADA,

MEMORANDUM OPINION AND
ORDER ON CROSS MOTIONS FOR
SUMMARY JUDGMENT

Defendant.

Mark M. Nolan NOLAN THOMPSON & LEIGHTON, 5001 American
Boulevard West, Suite 595, Bloomington, MN 55437, for plaintiff.
Mark E. Schmidtke, OGLETREE DEAKINS NASH SMOAK &
STEWART PC, 56 South Washington Street, Suite 302, Valparaiso, IN
46383, for defendant.

Plaintiff Jeffrey Schmitz brings this action pursuant to the Employee Retirement
Insurance Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001 et seq., seeking
long-term disability (“LTD”) benefits under a policy issued to Schmitz’s former
employer, Banner Engineering Inc., (“Banner”) by Defendant Sun Life Assurance
Company of Canada (“Sun Life”).
Schmitz began working at Banner in 1993 as a director of sales and marketing and
later as a corporate business manager. Schmitz was terminated in July 2008 based on
poor work performance. Schmitz’s coverage under the LTD policy issued by Sun Life
ceased at the time of his termination. In July 2011, Schmitz was diagnosed with multiple

27

sclerosis, and in October 2011 he brought a claim for benefits under the LTD policy
contending that the mental health issues and cognitive difficulties that resulted in his poor
work performance and ultimately led to his termination were caused by multiple
sclerosis.
Sun Life denied Schmitz’s application for LTD benefits, and Schmitz filed this
lawsuit contesting that denial. Both parties now move for summary judgment. Sun Life
argues that it is entitled to summary judgment on numerous grounds including that its
denial of LTD benefits was neither arbitrary nor capricious. Schmitz argues that Sun
Life’s denial was not supported by reasonable and substantial evidence. Because the
Court concludes that Sun Life’s denial of LTD benefits was supported by substantial
evidence in the record, the Court will grant Sun Life’s motion for summary judgment and
dismiss Schmitz’s ERISA claim.

BACKGROUND
I.

THE POLICY
During Schmitz’s employment, Banner sponsored LTD benefits to its employees

under an employee disability benefit plan (“the Plan”) pursuant to ERISA. LTD benefits
under the Plan were funded in part by an insurance policy (“the Policy”) issued by Sun
Life to Banner. (Second Decl. of Mark E. Schmidtke, Ex. A (Administrative Record
(“AR”)) at 65, Mar. 7, 2014, Docket Nos. 32-35.)1

1

The Administrative Record was filed as Exhibit A to the Second Declaration of Mark E.
Schmidtke, and spans Docket Numbers 32 through 35. Page references to the Administrative
Record in this Order refer the consecutive Bates number pagination.
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A.

Policy Benefits

Under the Policy all full-time employees were eligible for LTD coverage. (AR
67.) With respect to that coverage, the Policy provides:
If Sun Life receives Notice and Proof of Claim that an Employee is Totally
or Partially Disabled, a Net Monthly Benefit will be payable, subject to the
Limitations and Exclusions.
To be eligible to receive a Net Monthly Benefit, the Employee must:
1. satisfy the Elimination Period with the required days of Total or Partial
Disability;
2. provide proof of continued Total or Partial Disability; and
3. have regular and continuing care by a Physician who provides
appropriate treatment and regular examination and testing in accordance
with the disabling condition.
(AR 104.) The Policy defines the elimination period as “a period of continuous days of
Total or Partial Disability for which no LTD Benefit is payable.”

(AR 81.)

The

elimination period specified in the LTD schedule of benefits is ninety days and begins on
the first day of total or partial disability. (AR 72, 81.)
The Policy defines “Partial Disability or Partially Disabled” as meaning that “the
Employee, because of Injury or Sickness, is unable to perform the Material and
Substantial Duties of his Own Occupation and the Employee has Disability Earnings of
less than 80% of his Indexed Total Monthly Earnings.” (AR 82.) “Total Disability” or
“Totally Disabled” means that “the Employee, because of Injury or Sickness, is unable to
perform the Material and Substantial Duties of his Own Occupation.” (AR 83.) For
employees such as Schmitz that earned more than $100,000 annually, the Policy places

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no durational limit on the receipt of LTD benefits in the event those employees become
totally disabled within the meaning of the Policy. (AR 101, 127.)
The Policy states that “Material and Substantial Duties means, but is not limited
to, the essential tasks, functions, skills or responsibilities required by employers for the
performance of the Employee’s Own Occupation. Material and Substantial Duties does
not include any tasks, functions, skills or responsibilities that could be reasonably
modified or omitted from the Employee’s Own Occupation.” (AR 81.) The Policy
defines “Own Occupation,” in turn, as “the usual and customary employment, business,
trade, profession or vocation that the Employee performed as it is generally recognized in
the national economy immediately prior to the first date Total or Partial Disability began.
Own Occupation is not limited to the job or position the Employee performed for the
Employer or performed at any specific location.” (AR 82.)
“Sickness” under the Policy “means illness, disease or pregnancy.” (AR 76.) And
the Policy specifies that “[a]ny disability, because of Sickness, must begin while the
Employee is insured under this Policy.” (AR 76.) The Policy includes coverage for
mental illness but such coverage ceases after a period of twenty-four months unless the
employee is “confined in a Hospital or Institution licensed to provide psychiatric
treatment.” (AR 110.)

B.

Claims

With respect to claims, the Policy provides that “Sun Life must receive Notice and
Proof of Claim prior to any payment under this Policy.” (AR 122.) For LTD coverage,
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“written notice of claim must be given to Sun Life no later than 30 days before the end of
the applicable Elimination Period or, within 30 days after the termination of this Policy, if
earlier.” (AR 122.) Notably, an employee ceases to be insured under the Policy on “the
date employment terminates.” (AR 114.) As for proof of an LTD claim, the Policy
provides that “proof of claim must be given to Sun Life no later than 90 days after the
end of the Elimination Period.” (AR 122.) With respect to the content of Proof of Claim,
the Policy provides that:
Proof of Claim must consist of:
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a description of the loss or disability;

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the date the loss or disability occurred; and

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the cause of the loss or disability.

....
Proof of Claim for disability must include evidence demonstrating the
disability including, but not limited to, hospital records, Physician records,
Psychiatric records, x-rays, narrative reports, or other diagnostic testing
materials as appropriate for the disabling condition.
Proof must be satisfactory to Sun Life.
(AR 122-23.)
Finally, under the Policy, Sun Life has the
entire discretionary authority to make all final determinations regarding
claims for benefits under the benefit plan insured by this Policy. This
discretionary authority includes, but is not limited to, the determination of
eligibility for benefits, based upon enrollment information provided by the
Policyholder, and the amount of any benefits due, and to construe the terms
of this Policy.
(AR 123.) With respect to judicial review, the Policy provides that “[a]ny decision made
by Sun Life in the exercise of this authority, including review of denials of benefit, is
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conclusive and binding on all parties. Any court reviewing Sun Life’s determinations
shall uphold such determination unless the claimant proves Sun Life’s determinations are
arbitrary and capricious.” (AR 123.)

II.

SCHMITZ’S EMPLOYMENT AT BANNER
Schmitz began working for Banner on September 30, 1993. (AR 27.) From 2000

until his termination on July 2, 2008, Schmitz held the position of corporate business
manager. (AR 27, 47.) As a corporate business manager, Schmitz’s job duties involved
providing territory support to sales representatives and distributor organizations,
developing strategic action plans, maintaining and growing existing accounts, visiting
account holders, providing in-house support to other Banner departments, training sales
representatives, and developing trade shows and promotional activities. (AR 31.)

A.

Performance Evaluations

Performance evaluations of Schmitz early in his employment at Banner reflect
generally positive impressions of his work performance. (AR 323-30.) As early as 1998,
however, evaluations indicate that Schmitz needed “to work on his organizational skills,
paperwork, time management, etc.” and also needed “to take care in his communication
style and working relationship with his co-workers.” (AR 330; see also AR 332.)
A September 2005 performance review included many complimentary remarks
about Schmitz’s knowledge of the business and his “good working relationship” with
other members of his group. (AR 317.) The review also stated:

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In each of Jeff’s previous reviews, we have discussed the need for Jeff to
use tact and diplomacy when dealing with people inside Banner
Engineering. The same applies to dealing with those external to our
building and to Banner. He is aware of this issue and I think he works to
improve himself in this area. I still hear comments that he can be a pain-inthe neck and that he can at times be a bit of a “bull in the china closet”.
Some of these comments are relevant, some of these comments are made
by those who want the bureaucracy of the company to determine priorities.
Jeff is learning to recognize when and how hard to push.
(AR 317.) The review concluded “I am pleased with Jeff’s performance in this position
at Banner. He is a good hard worker. He gives us his best effort. He is an excellent
employee for Banner Engineering.” (AR 317.)
In an evaluation reviewing Schmitz’s performance from September 2005 to
September 2006, Schmitz’s supervisor concluded that Schmitz needed “to continue to
make significant progress in most areas.” (AR 311.) The supervisor explained that “the
only area where I feel you are performing at a level you need to be is the Product
knowledge area.” (AR 311.) The evaluation noted that Schmitz had organized factory
resources personnel well and did a “Good Job” of communicating new product
development activities. (AR 312.) The supervisor concluded “Jeff: You are a very
talented person. As you indicated yourself; your performance during the past year has
not been what either you or I would like. We need you to perform at the top of your
game in the future. I would like to start ‘fresh’ for the coming year and erase the past.”
(AR 314.)

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B.

Termination

No information documenting Schmitz’s performance in 2007 or 2008 is contained
in the Administrative Record.

(AR 1515.)

However, Banner made a decision to

terminate Schmitz on June 16, 2008, with an effective termination date of July 2, 2008,
apparently based on poor work performance. (AR 1515.)2

III.

MENTAL HEALTH TREATMENT DURING BANNER EMPLOYMENT
A.

Psychiatrist Dr. William Callahan

From February 2007 through September 2008 Schmitz was treated by psychiatrist
Dr. William Callahan for bipolar disorder, major depression, anxiety disorder, and
obsessive personality traits. (AR 731-44.) During these meetings, Dr. Callahan made
notes that are relevant to the present motions, including:
 February 13, 2007: Returns for reassessment of major depression,
generalized anxiety disorder, obsessive personality traits, medication
management and brief supportive psychotherapy. Jeffrey reports that
his mood and affect are bright. . . . He’s coping well at work and
actually enjoying it. He’s no longer looking for a new job, he’s not
seeing a therapist. (AR 731.)
 April 17, 2007: Jeffrey called last week. He was talking rapidly. He
was over excited. He came in today with his wife. She describes him as
talking rapidly, being rude and intrusive, having little insight, having
poor judgment about social circumstances. (AR 732.)
 July 24, 2007: Jeff is awake, alert, animated and below hypomanic
today.
He’s thinking clearing.
He reports that his business
decisionmaking is sound. . . . Jeff has stress at work because of the
ongoing challenges of managing his production and marketing team but
this is business he says. (AR 734.)
2

Following his termination, Schmitz applied for and received unemployment benefits
from the state of Minnesota. (AR 45, 304-07.) Schmitz received $6,456 in unemployment
benefits in 2008 and $10,497 in 2009. (AR 828-29.)
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 September 4, 2007: He has switched into a depressed phase. He’s
depressed and anxious. . . . He’s having some trouble concentrating at
work. He states “I have to maintain a leadership posture.” (AR 735.)
 September 11, 2007: Today Jeff is anxious, obsessive and moderately
depressed. . . . he’s advised to return to Michael Driscoll, an individual
therapist who has worked with him before when he has been anxious
and depressed. (AR 736.)
 October 2, 2007: Today Jeff is less anxious, less obsessive but still
mildly to moderately depressed. . . . His mania and expansive thinking
are gone, he did have some mild self referential thinking about whether
he would get fired for his mental illness. Apparently, he was reassured
by his employer that this is not the case. (AR 737.)
 October 23, 2007: Jeff is less anxious and less depressed but quite
obsessive. . . . Jeff is getting along with his wife, he is working, he is
adequately productive, he has been assured that there is no plan afoot to
fire him or lay him off. (AR 738.)
 January 22, 2008: Jeff is managing his anxiety and depression but he
tends to still be obsessive and somewhat narcissistic. . . . Jeff is getting
along well with his wife, he is working fulltime, he is traveling and
performing. (AR 1756.)
 April 1, 2008: Jeff reports that he has energy at work, he is creative, he
has just recently had a good 360 degree evaluation. His wife reports
that on a family vacation he was over the top and obnoxious with his
parents and with her. (AR 740.)
 April 22, 2008: [H]is wife reports that his mood has stabilized
substantially, he is less irritable, he is sleeping better, he is not
grandiose, he is less erratic. (AR 741.)
 May 20, 2008: Jeffrey is awake, alert with neutral mood today. . . .
Things are going well at work and at home. (AR 742.)
 July 22, 2008: Jeffrey continues to see Mike Driscoll to deal with
couples issues. His couples problems are complicated by losing his job,
he was laid off, he has a reasonable severance package but is now
looking for employment in sales marketing of devices. (AR 743.)
 September 23, 2008: Jeffrey remains unemployed, he continues to look
for work daily. . . . [H]is mood has leveled off. . . . He is getting along
well with his wife although she is concerned about his unemployment.
(AR 744.)

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B.

Therapist Mike Driscoll

Schmitz began seeing therapist Michael Driscoll in October 2007, and continued
to see Driscoll on and off until October 28, 2011. (AR 152-228.) Driscoll’s treatment
notes include the following:3
 October 15, 2007: Represents after a one year absence. Continues to
struggle with disenchantment in his work & the thought that he is
ineffective. (AR 227.)
 October 26, 2007: Continues to doubt his capability to manage and lead
and work. (AR 226.)
 October 31, 2007: Continues to flounder at work . . . . his inner voice
seems to conflict with a[n] accurate perception of his work. (AR 225.)
 December 10, 2007: Performance appraisal at work was subpar. 6
months to get things shaped up. (AR 223.)
 December 28, 2007: Continuing to struggle at work. (AR 222.)
 January 23, 2008: Get[ting] more accomplished at work. (AR 221.)
 March 3, 2008: Had a peer review at work (360) plus a work up
through their pscyh consultant at the company. Feels relieved the genie
is out of the bottle. Wife believes Jeff’s behavior at work is
jeopardizing the family security. Clearly struggles with accurate
perception. (AR 220.)
 March 28, 2008: Work is going better. (AR 219.)
 April 2, 2008: Work is going better.
examination. (AR 218.)
 May 2, 2008:
(AR 214.)

3

Mood is stable.

No fallout from recent

Endeavoring to be more patient.

Driscoll’s notes are largely illegible. (See AR 2058 (“Psychotherapy notes from
Dr. Driscoll (10/15/07-10/28/11) indicated that Mr. Schmitz was seen 76 times during this time
period. The notes on file are brief and illegible. The first note indicated that therapy resumed
after more than a year of absence. Sessions focused on work and relationship issues. Notes do
not contain information regarding mental status examinations.”).) Given the illegibility of the
notes, this Order cites to these notes, but has relied on the parties’ and reviewing doctors’
recitations of the contents of Driscoll’s notes in interpreting the handwriting.
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 May 31, 2008: Jeffrey has a job review on Monday. Prepared to get a
lot of feedback. Mood has been elevated the last couple of days. (AR
212.)
 June 6, 2008: Job appraisal was a major ass-kicking. Realizes the
situation is untenable to sustain. Jeff has arranged a meeting with VP of
HR. (AR 211.)
 June 16, 2008: Got fired today & offered a severance package. 14
years’ service – very distraught. (AR 210.)
 July 7, 2008: Completed resume – got it posted on web sites. Hoping
to experience a successful job search. (AR 207.)
 July 14, 2008: Job search is feeling productive. Mood is stable no
evidence of hypomania. (AR 206.)
 July 21, 2008: No interviews yet. Mood is stable no hypomania.
(AR 205.)
 July 28, 2008: No real movement with the job search. Networking with
consistency. (AR 204.)
 September 15, 2008: Job search has proven unfruitful. (AR 203.)
 September 29, 2008: Increased insights that his job search is halfbaked. Increased anxiety – at times panicked – no evidence of
hypomania – increased struggles with sense of self-worth. (AR 202.)
 October 22, 2008: Interview at Honeywell yesterday. Going back on
Monday for a second look. Some concern about managing potential
hypomania. (AR 201.)
 November 3, 2008: Honeywell position is still in flux. (AR 200.)
 January 14, 2009:
(AR 199.)

Mood is stable – no evidence of hypomania.

 January 23, 2009: Wife continues to have concern – perceives
increased mania of late. Questions how realistic his goals are.
(AR 198.)
 February 25, 2009: Wife reports that Jeff often has inappropriate social
behavior. (AR 194.)
 March 23, 2009: Job prospects are bleak. Recent opportunities have
dried up. (AR 191.)
 May 15, 2009: Got a job with a Banner connection. Contract 2-3
months and possibly to fulltime. (AR 189.)
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IV.

EMPLOYMENT AT PPT
Schmitz accepted an offer of employment from PPT Vision, Inc. (“PPT”) in May

2009 to work as a contract employee in a marketing and sales position. (AR 46, 251-52.)
Schmitz was paid $7,000 per month and worked forty hours per week. (AR 251.)
Schmitz’s job description was similar to the position he held at Banner. (AR 253.) At
PPT Schmitz was to be responsible for doubling sales in the Asian sales area over a three
year period by generating leads, improving PPT’s website, developing a public relations
plan, creating sales tools, reestablishing PPT’s brand, improving customer satisfaction,
and conducting market research. (AR 253-54.) The position required Schmitz to have
problem solving skills, be able to “effectively manage multiple projects and priorities,”
display “maturity and ability to maintain enthusiasm and confidence during the highs and
lows associated with building a business,” and be disciplined, passionate, dedicated,
approachable, aggressive, self-starter, a team focused contributor and forthright
communicator, resourceful and tenacious with a high level of self-confidence. (AR 255.)

A.

Performance

Schmitz was offered a full-time position as a regular, non-contract employee on
April 26, 2010. (AR 1452-57, 1471.) An evaluation of Schmitz’s performance between
November 1, 2009 and October 31, 2010 revealed that Schmitz was meeting or exceeding
PPT’s expectations in a number of work areas. (AR 1416-17.) The evaluation noted that
“Jeff Schmitz has the right background, temperament and machine vision business
experience to become a high performing Marketing leader.” (AR 1417.) In terms of
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improvements the evaluation noted that Schmitz needed to “[c]ontinue more attention to
detail, demonstrated by correct spelling, grammar and thoughtful messages on all
communications.” (AR 1417.) Schmitz was also instructed to exercise “[m]ore patience
in meetings – do not interrupt others.” (AR 1417.)
One of Schmitz’s supervisors at PPT met with Schmitz for “performance and
behavior coaching” on numerous occasions between Fall 2010 and early 2011. (AR
1415.) The administrative record contains emails from PPT employees indicating that
Schmitz was struggling to create good marketing materials, sent emails reflecting poor
business judgment, and sent confidential emails to the wrong recipients. (AR 1422-38.)
Schmitz submitted a statement indicating that his wife assisted him in his work at
PPT – such as reviewing emails and keeping track of his appointments. (AR 1186.) He
also stated that he was only able to retain his job at PPT for as long as he did because his
boss was his friend. (AR 1187.)

B.

Termination

Schmitz was terminated from his position with PPT on February 24, 2011 for
unsatisfactory work performance. (AR 1364, 1370.) PPT indicated that Schmitz was
discharged because he was “not the right person for the position,” explaining that there
were “many pieces of evidence that pointed to the wrong person being in the wrong

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position and no improvement was shown to correct this by the employee.” (AR 137778.)4

V.

SCHMITZ’S MENTAL HEALTH
FOLLOWING PPT EMPLOYMENT
A.

TREATMENT

DURING

AND

Therapist Mike Driscoll

Schmitz continued to see Driscoll during and immediately following the
termination of his employment at PPT. During these sessions, Driscoll observed:
 June 17, 2009: New job is going – managing anxiety levels. Happy to
be signed on as permanent employee. Mood is stable – no evidence of
hypomania. Moderately less anxious. (AR 188.)
 June 29, 2009: Job is going well. (AR 187.)
 August 5, 2009: Contract has been extended at work. (AR 184.)
 August 12, 2009: Spinning his wheels a bit at work.
Slept the
weekend away – less excited about the prospect of being offered
permanent employment. (AR 183.)
 October 12, 2009: Energy for work has increased. Fruitful trade show
produced viable leads. Hopeful to make sales products numbers. (AR
180.)
 December 2, 2009: Job situation is seeming more stressed. Also got a
good call from a head hunter. (AR 178.)
 April 26, 2010: Finally offered a permanent situation at work –
reasonable offer. Enjoying the job. Mood is stable. (AR 173.)
 May 26, 2010: Recent negative feedback in a management meeting
where the quality of marketing materials need improvement. Tried not
to be defensive. Boss is leaning on another veteran. Feeling vulnerable
again. (AR 172.)
 June 9, 2010: Job situation is status quo. Boss has left the organization
– new Boss to follow. (AR 171.)
4

Following his termination from PPT, Schmitz again applied for unemployment benefits,
and received weekly benefits in the amount of $572 between February 27, 2011 and

September 24, 2011. (AR 250.)
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 July 12, 2010: Work . . . is status quo. Looking at opportunities
through head hunters. (AR 170.)
 October 6, 2010: Job is going very well. Getting along famously with
new Boss. Mood is stable – no evidence of hypomania. (AR 169.)
 February 7, 2011: Job . . . tensions – starting to look for other options.
(AR 167.)
 March 4, 2011: As expected lost job last week. 2 wks severance pay –
hopefully will qualify for unemployment compensation wages although
given advance notice this would happen is predictably anxious. (AR
166.)
 May 18, 2011: Still unemployed. I need to develop direction.
Continues to be active in networking groups – no leads – no interviews.
(AR 161.)

B.

Dr. Floyd Anderson

On January 6, 2009 Schmitz saw Dr. Floyd Anderson on referral from
Dr. Callahan for a psychiatric evaluation. (AR 242-43.) Schmitz told Anderson that he
has been diagnosed with bipolar disorder as well as obsessive compulsive disorder.
(AR 242.) Schmitz’s chief complaint to Dr. Anderson was attention deficient disorder
(AR 242.)

Dr. Anderson’s mental status examination revealed that Schmitz was

“pleasant, cooperative, and well groomed.” (AR 243.) Dr. Anderson reported a current
Global Assessment of Functioning (“GAF”) score of 60 and in the past year a maximum
score of 85 – which is within the range of absent or minimal symptoms, good function in
all areas, and no more than everyday problems or concerns. (AR 243.)
In June 2009 Schmitz reported to Dr. Anderson that his medications were working
well. “He denies side effects and states that he is able to concentrate well. His job is still
difficult, with him in the middle of a three month trial period. However, he is optimistic
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stating that he knows what he is doing and that he expects to be given an excellent job
review.” (AR 240.)
In September 2009 Schmitz reported to Dr. Anderson “that he has felt depression
coming on as the days get shorter. . . . His work remains a stressor. He states that he was
passed over for full-time work, but he did have his part-time contract extended.”
(AR 239.) Dr. Anderson’s assessment was “[p]atient with a number of worries, currently
trying to cope with higher doses of antidepressants.” (AR 239.)
In March 2010, Dr. Anderson’s assessment was “[b]ipolar disorder, stable.”
(AR 237.) At his appointment, Schmitz reported that “he is looking for a new job with a
larger company and overall a better position.” (AR 237.)
In May 2010, Dr. Anderson’s evaluation indicates that Schmitz’s “[m]ental status
shows normal function.” (AR 233.) In September 2010, Dr. Anderson again noted that
“[m]ental status is really normal.” (AR 232.) In December 2010, Dr. Anderson assessed
Schmitz as “[b]ipolar Disorder, currently stable as we try to switch mood stabilizers.”
(AR 231.)

VI.

MULTIPLE SCLEROSIS DIAGNOSIS
A.

Dr. Eric Schenk

On July 22, 2011, Schmitz was mowing his lawn when his left leg “stopped
working.” (AR 508.) He went to urgent care where an MRI was performed. (AR 508.)
Based on this MRI Schmitz was referred to neurologist Dr. Eric Schenk for an evaluation.
(AR 508, 857.) On July 26, 2011, Dr. Schenk performed the evaluation and concluded
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that Schmitz’s “symptomatology [was] strongly suggestive of multiple sclerosis.”
(AR 859.) Dr. Schenk also suspected that Schmitz “has probably had the condition at
least 9 years” based on Schmitz’s report that he began experiencing problems with his
left leg nine years ago. (AR 857, 859.) Dr. Schenk ordered a second MRI to confirm the
diagnosis. (AR 859, 1949-53.)

B.

August 2011 Hospitalization

Schmitz was hospitalized at the University of Minnesota Medical Center
(“Riverside”) from August 16 through August 30, 2011 “with a 2-day history of
delusional thoughts and manic behavior as well as personality changes which have
occurred over the past several years.” (AR 664-80.) Schmitz was diagnosed at discharge
with, among other things, “[o]rganic psychosis and mood disorder secondary to multiple
sclerosis.” (AR 664.) Upon discharge, Schmitz’s internal medicine assessment stated
“[b]ipolar illness, incompletely compensated. Uncertain as to what degree mood liability
may be contributed to by patient’s multiple sclerosis.”

(AR 665.)

An in-patient

neurology consult “concluded that regarding the patient[’]s psychiatric dysfunction, it is
nearly impossible to know how much of it can be exampled by an underlying mood
disorder vs. cognitive changes secondary to multiple sclerosis vs both.” (AR 665.) But
the consult did explain that “nearly two-thirds of patients with MS have detectable
psychopathology at some time.” (AR 674.)

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C.

Dr. Erin Holker

Dr. Holker completed a neuropsychological evaluation of Schmitz on August 25,
2011, which included an interview with Schmitz as well as a review of his medical
records. (AR 246-49.) Dr. Holker noted that Schmitz reported “a long standing history
of depression, which was treated for many years by a psychiatrist.”

(AR 246.)

Dr. Holker also stated that he was diagnosed with bipolar affective disorder and that
“medications have allowed his bipolar disorder to be fairly well controlled.” (AR 246.)
During the interview Schmitz reported that he “noticed difficulty with memory for some
time” and “[h]e has noticed difficulty with word finding for about a year as well as
comprehension, attention and concentration” but “denied difficulty with decision making
or organization.” (AR 246.)
Schmitz’s performance on a global measure of cognitive function was “low
average.” (AR 248.) Dr. Holker concluded:
Current results indicate mild executive dysfunction, including impairment
in problem solving, conceptualization and perseverations. He had difficulty
shifting cognitive set, and behaviorally he was somewhat impulsive and
careless, particularly in his drawings. Visual construction reflected a
relative weakness for him, although again this appeared to be associated
with difficulty in impulsivity. Psychomotor processing speed was slowed.
Verbal learning and memory, sustained attention, and language abilities all
fell within normal limits.
(AR 248.) With respect to daily functioning, Dr. Holker opined that “Schmitz may
require some assistance managing his instrumental activities of daily living for the time
being, particularly those that involve significant organization, such as managing

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medications or finances. . . . He may have difficulty managing large, complex tasks . . . .”
(AR 248.)

D.

Dr. Floyd Anderson

On September 29, 2011, Schmitz returned to see Dr. Anderson. Dr. Anderson
noted that Schmitz “presents with his baseline mental status again.”

(AR 234.)

Dr. Anderson also explained that “[t]he working diagnosis of Bipolar Disorder should be
changed to an Organic Affective Syndrome Associated with Multiple Sclerosis.”
(AR 235.)

VII.

SOCIAL SECURITY APPLICATION
Schmitz filled out an application for Social Security Administrative disability

income (“SSDI”) dated October 14, 2011. (AR 256-71.) In the application, Schmitz
described how his illnesses limited his ability to work, explaining “limited cognitive
capabilities from multiple sclerosis exasperation. Poor judgment from bipolar disorder.
When I am depressed, I am completely shutdown mentally and am bedridden. When I
am manic I make bad judgments and am offensive. I cannot manage my time or actions
to productive tasks.” (AR 261.) With respect to “Getting along with others” Schmitz
reported
[t]his is one of my greatest challenges. I have had a very difficult time in
the workplace working alongside colleagues. Others have a difficult time
understanding me and my quirkiness. At my last job, there were several
people who refused to work with me. I still do not understand what I did
wrong. Also, my boss had to pull me aside to tell me to watch my behavior
among two female employees as they had told my boss that they felt
uncomfortable around me. . . . I have worked for 7 years with a therapist to
- 19 -

change my behaviors but am told that I continue to decline relationally. It
doesn’t seem to matter how hard I try, this part of daily living just doesn’t
work for me.
(AR 269.)

VIII. CLAIM SUBMISSION
On October 13, 2011, Schmitz submitted a claim for LTD benefits under the
Policy. (AR 46.) In his application Schmitz indicated that he “first noticed symptoms of
[his] illness” in March 2002.

(AR 44.)

Schmitz described “the nature of [his]

illness/condition and its first symptoms” as “Multiple Sclerosis – loss of cognitive
capabilities/Bipolar Disorder.” (AR 44.) Schmitz indicated that he was first treated by a
physician on July 26, 2011, that the first day he was unable to work was July 1, 2008, and
that he had not returned to work since that day. (AR 44.)
Attending physician Dr. Philip Davis completed an “Attending Physician’s
Statement” as part of Schmitz’s application and stated a primary diagnosis of “MS,
Bipolar depression.”

(AR 58.)

He noted objective findings of left leg weakness,

cognitive changes, and bipolar, and indicated that “symptoms first appeared” in 2002.
(AR 58.) Dr. Davis also noted “long standing mood issues leading to diagnosis of
bipolar, MS recently diagnosed but felt to be active prior to diagnosis.” (AR 60.)
Dr. Davis also noted that Schmitz first showed signs of depression in August 2006, and
that depression limited Schmitz’s functional capacity by making it difficult for him to
concentrate.

(AR 61.)

Davis noted “severe” or “extreme impairment of ability to

function” with respect to interpersonal relations, daily activities, ability to think/reason,
- 20 -

understand and carry out instructions, sustain work performance, attention span,
concentration, past/present memory disturbance, and “moderate” impairment with respect
to “Occupational/social (e.g., respond appropriately to supervision, supervise or manage
others)”. (AR 62.)
In a letter dated October 24, 2011, Sun Life notified Schmitz that it had received
his claim. (AR 137.) In the letter Sun Life explained that “this claim is submitted
outside of the Notice and Proof of Claim Timeframes for submission.” (AR 137.) Sun
Life requested that Schmitz provide, “[a] brief note explaining why this claim was
submitted beyond the time frames allowed for in the policy,” information regarding his
work at PPT, and other materials. (AR 138.)
On November 2, 2011, Schmitz provided Sun Life with the reason for his delay in
applying for benefits, explaining:
I was diagnosed with bipolar disorder in 2007. The medical evidence
(MRIs, Neuro psychological test, . . .) of my cognitive disability that
impaired me in 2007 and 2008 just became available.
The MS that impaired my cognitive ability was just recently diagnosed
(August 2011). I had an MRI brain scan done at the time which revealed
many brain lesions and the neurologist assigned my case stated that based
on the number of lesions that this condition has been ongoing for many
years. I was hospitalized in August of this year and at the discharge
meeting the attending psychiatrist stated that “the final diagnosis is the
patient has MS and resulting from that has bipolar.” . . . Had I been
correctly diagnosed when the MS episodes began, I would have applied for
disability insurance as the link to my diminished cognitive ability would
have been clear. The combined diagnosis of MS with bipolar condition
explains my erratic behavior, poor decision making and lack of lucid
thinking that contributed to my dismissal from Banner Engineering. My
cognitive capabilities were impaired such that they were no longer adequate
for performing the duties of my position at Banner.
- 21 -

(AR 245.)

IX.

SUN LIFE’S DECISIONMAKING PROCESS
A.

Investigation

Claims Bureau USA, Inc. was retained by Sun Life to “conduct background
investigation on and a face-to-face visit with [Schmitz],” to assess the viability of
Schmitz’s claim of long-term disability. (AR 374.) Alex Graber of Claims Bureau
completed an investigative report dated November 17, 2011, summarizing his findings,
including Schmitz’s professional and social activity on social media. (AR 374-502.)
Patricia Johnson of Claims Bureau conducted a face-to-face visit with Schmitz on
November 12, 2011. (AR 503-04.) Johnson and Schmitz discussed his employment
history, and Schmitz could not recall a specific incident that led to his termination “but
knew he was manic during then.”

(AR 511.)

Following his termination, Schmitz

reported to Johnson that he looked for another job from July 2008 to May 2009 using job
searching assistance through a company and also extensive networking with a “job club.”
(AR 511-12.)
With respect to his employment at PPT, Schmitz stated that his “duties became too
difficult. During manic episodes he might have overestimated the weight of his own
opinions.”

(AR 512.)

Schmitz explained that he was terminated “for poor job

performance and not getting along with coworkers.” (AR 512.) Schmitz also stated that
some of his treating mental health professionals “told him that some of his employment
issues were related to his mental health issues.” (AR 512.)
- 22 -

Johnson also inquired about Schmitz’s restrictions and limitations.
Mrs. Schmitz reported [Schmitz]’s MS has affected his cognitive ability.
She takes care of the family’s finances and helps [Schmitz] manage his
medical appointments. She attends as many of his medical appointments as
she can because it is difficult for [Schmitz] to remember details.
[Schmitz]’s thought processes have slowed and he gets confused easily
while taking direction. He is more fatigued and less focused. His memory
is poor.
(AR 512.)
Finally, Johnson discussed with Schmitz the reason for his delay in filing his claim
with Sun Life. Schmitz explained “that he did not learn of his MS diagnosis until July
and it explained much. Prior to his diagnosis, he did not accept that he suffers from
bipolar disorder and mania. It makes sense to him now, considering his work issues and
other problems.” (AR 514.)

B.

Review by Dr. Margaret O’Connor

On January 22, 2012, board certified neuropsychologist Dr. Margaret O’Connor
reviewed Schmitz’s medical file. (AR 2055-59.) O’Connor reviewed psychiatric notes
from Dr. Callahan and Dr. Anderson, the neurology consultation conducted on
August 17, 2011, the evaluation conducted by Dr. Holker on August 25, 2011, medical
records from Riverside, and psychotherapy notes from Driscoll.

(AR 2055.)

Dr. O’Connor noted that Schmitz’s file “indicates th[e] presence of mild executive
deficits with impairment in problem solving, conceptualization and perseveration.”
(AR 2058.) Dr. O’Connor was asked to opine on whether Schmitz’s MS diagnosis in

- 23 -

August 2011 “may be responsible for his issues in holding employment since 2008.”
(AR 2058-59.) Dr. O’Connor responded:
There is no information on file indicating that Mr. Schmitz had cognitive
problems around 6/16/08. A note from his psychiatrist dated 7/22/08
indicated that he was laid off from work and that he was looking for
employment in marketing sales. This suggests that his cognitive functions
were sufficient[ly] intact at that time. Psychiatric notes from Dr. Anderson
indicate that Mr. Schmitz complained of concentration problems in January
2009 but most notes between 6/16/08 and the time that testing was
performed in 2011 suggest intact mental status.
(AR 2059.)

C.

Review by Dr. Peter Mirkin

On January 30, 2012, board certified psychiatrist and neurologist Dr. Peter Mirkin
also reviewed Schmitz’s medical records “from the perspective of his mental health
issues.” (AR 2064-75.) Dr. Mirkin was asked to opine on whether Schmitz’s medical
records reflected an increase in symptoms or treatment leading up to his termination “that
would support that his firing was a result of his mental health issues,” whether the
medical records indicate any period of time between his termination and the present when
Schmitz was “psychiatrically incapacitated,” and whether the medical records “support
the diagnosis of bipolar disorder.” (AR 2065.) In forming his opinion Dr. Mirkin
reviewed employment documents from Banner as well as Schmitz’s medical records.
(AR 2065-71.) In his analysis, Dr. Mirkin explained:
It is evident that Mr. Schmitz has a bipolar disorder as well as multiple
sclerosis. It should be noted that both of these conditions have a range of
symptom criteria that need to be present for periods of time before a
criteria-based diagnosis can be established. It should also be noted that
- 24 -

both of these conditions have a fluctuating course with symptoms that come
and go over periods of time.
(AR 2071.) Dr. Mirkin further explained that although “[t]here is a connection between
mood disorders and multiple sclerosis” the relationship is “multi-factorial and complex,
and the extent to which they are direct consequences of the disease process or
psychological reactions to it remains unclear.” (AR 2071 (internal quotation marks
omitted).)
Upon review of Schmitz’s medical records, Dr. Mirkin opined that although
Schmitz “has been diagnosed with multiple sclerosis and the evidence from his brain
MRI suggests that this disease process has been going on for some time . . . . there is no
evidence that he had any neurological symptoms until July 2011.”

(AR 2071-72.)

Dr. Mirkin also noted that “[e]ven with his recent neurological symptoms his treating
physicians, Dr. Davis and Dr. Schenk, do not believe that he is impaired as a result of any
neurological or physical deficits.” (AR 2072.) With respect to Schmitz’s mood disorder
generally, Dr. Mirkin concluded:
He has been treated for his mood disorder for many years. However,
although there have been periods of time when his mood disorder
symptoms have interfered with his functionality, his mood symptoms have
mostly not been at a level of severity that interfered with his capacity to
function.
(AR 2072.)
With respect to whether Schmitz’s medical records reflected an increase in
symptoms or treatment immediately prior to termination, Dr. Mirkin concluded that the
records did not describe symptoms “at a level of severity that interfered with his capacity
- 25 -

to function.” (AR 2072.) Dr. Mirkin conceded that the notes from Driscoll provided
“some evidence that he was having mood changes in the period leading up to his 6/16/08
termination” but “these symptoms were not described as at a level of severity that would
have obviously interfered with his performance at his job.” (AR 2073.) Dr. Mirkin
concluded, “I am not able to state whether his mental health issues or his behavior were
responsible for his job termination because the concerns of his supervisor and evaluator
were not available to assess. Apparently he was given a satisfactory severance package it
can be assumed that he was not terminated for cause.” (AR 2073.)
With respect to whether Schmitz’s medical records reflected a worsening in his
condition between his termination from Banner and the present, Dr. Mirkin reflected that
“from the time he was terminated from his job on 6/16/08 until he was hospitalized in
August 2011 the records do not show that he had symptoms of a mental illness at a level
that would support that he was psychiatrically incapacitated.” (AR 2074.) Dr. Mirkin
further explained:
It should be noted that there is little doubt that throughout the period that is
under review Mr. Schmitz had an underlying neurodegenerative disease
process taking place. It is inaccurate to state that because he was eventually
discovered to have this illness that this automatically implies that he was
impaired by the process. It appears that he had no recognizable symptoms
of multiple sclerosis and it cannot be assumed that his mood disorder was
solely the result of his multiple sclerosis although unrecognized at that
time. Even if his mood symptoms could in part be attributable to this
disease his mood symptoms were not at a level of severity that would have
limited him.
(AR 2074.)

- 26 -

Finally, Dr. Mirkin opined that Schmitz’s medical records “do support that he has
a diagnosis of bipolar disorder and the treatment has been appropriate for this condition.”
(AR 2075.)

D.

Occupational Analysis

On January 31, 2012, Mary O’Malley, a vocational consultant, performed an
occupational analysis of Schmitz’s employment at Banner and PPT, for purposes of
providing an analysis of the required physical and cognitive requirements of those
positions. (AR 2107-21.) O’Malley concluded that Schmitz’s Banner position “had
supervisory responsibilities” while his PPT position did not. (AR 2107.) O’Malley
concluded that both job positions involved “interpersonal relationships in job situations
beyond receiving work instructions,” making judgments and decisions, and directing,
controlling, or planning activities for others.

(AR 2112-13, 2119.)

O’Malley also

concluded that both positions required an employee to frequently maintain attention and
concentration, adhere to an ordinary routine without special supervision, work in
coordination with others or in close proximity to others without being distracted, and
make simple work-related decisions. (AR 2113, 2120.) Both positions required frequent
to constant public and peer interaction, and occasional to frequent ability to maintain
socially appropriate behavior. (AR 2114, 2120.)

X.

DENIAL OF BENEFITS
On February 3, 2012, Sun Life denied Schmitz’s LTD claim. (AR 966-86.) Sun

Life began its analysis by explaining that Schmitz’s late notice may have caused them
- 27 -

prejudice. (AR 973.) Despite the late notice, Sun Life engaged in “a comprehensive
review of all the information currently available and either provided by [Schmitz] or
gathered independently.” (AR 974.)
Sun Life then described the information it had considered in reaching its coverage
determination. Sun Life considered Schmitz’s claim for benefits, Schmitz’s application
for social security disability benefits, statements from the interview with Johnson,
information available from the public record included in Graber’s investigation,
information from Banner including Schmitz’s personnel file, Schmitz’s applications for
unemployment benefits, employment and personnel information from PPT, O’Malley’s
occupational analysis, medical records from Driscoll, Dr. Callahan, Dr. Davis, the urgent
care location, Dr. Anderson, Dr. Schenk, a Dr. Nelson, a Dr. Kholomyanski, Dr. Holker,
and Riverside, as well as the medical reviews from Dr. Mirkin and Dr. O’Connor (AR
974-83.) Based on review of this information Sun Life “determined that you were not
Totally or Partially disabled based on the terms of the policy at the time you left Banner
Engineering.” (AR 983.)
Sun Life explained “[a]lthough it is clear that you have a long standing Bipolar
Disorder and that at times you may have experienced exacerbations from this condition,
the evidence does not support that you were Totally Disabled by this, or any other
condition at the time that you were terminated from Banner Engineering.” (AR 984.)
Rather, the information demonstrates that you were terminated for poor
performance and by your own admission you did not inform your Employer
that you had a medical condition that might interfere with your ability to
perform your job duties. There is no information in your employment file
to help us understand any issues experienced around the time you were
- 28 -

terminated. The consulting psychiatrists review of the medical information
around that time does not support an incapacitating psychiatric disorder was
responsible for your leaving work.
(AR 984.) Sun Life noted that this conclusion was supported by several facts including
that Schmitz sought unemployment benefits and in doing so “would have indicated on a
weekly basis that you were ready, willing and able to work,” and that Schmitz worked for
almost two years at PPT and was hired as a full time employee within his first year there,
explaining “[c]learly, if you were not providing acceptable results or performance at that
time PPT Vision would have had no obligation to hire you.” (AR 984.) Sun Life also
noted that the job duties at Banner and PPT were substantially similar, indicating that
Schmitz was not totally disabled when he left Banner. (AR 984.)
Sun Life noted that the relevant inquiry was whether Schmitz was totally or
partially disabled on July 2, 2008, when his coverage ceased under the Policy. (AR 966,
984-85.) Therefore, Sun Life reasoned:
[I]n August 2011 (when it appears you decompensated, were hospitalized
and neuropsychological testing documents mild executive deficits) you
were not eligible for coverage under the above captioned policy as your
coverage terminated more than three years earlier. Our psychiatric and
neuropsychological consultants opinions and all other information in the
file does not support you were cognitively or psychiatrically incapacitated
prior to that time.
(AR 984-85.) Sun Life concluded:
The evidence does not support that the mild executive deficits in cognition
demonstrated in the testing of August 2011 began while you were insured
under this policy as your coverage had terminated. Additionally, you were
not receiving care of treatment for cognitive deficits or Multiple Sclerosis
(MS) prior to August 2011 as would be required by the policy. Although it
is clear that you have been diagnosed with these conditions as of August
2011 unfortunately coverage was not in effect at that time. Also your own
- 29 -

physicians have indicated that any physical deficits from MS are not
disability.
(AR 985.)

XI.

APPEAL
On July 25, 2012, Schmitz requested an appeal of Sun Life’s determination

denying benefits. (AR 1096.)

Schmitz filed his appeal on October 25, 2012, and

included additional documentation that had not been available to Sun Life at the time of
its denial. (AR 1110.)

A.

Additional Materials

As part of his appeal, Schmitz included several new medical evaluations.

1.

Dr. Michael Fuhrman Evaluation

First, Schmitz submitted a neuropsychological evaluation performed by
Dr. Michael Fuhrman on January 20 and 25, 2012.

(AR 991-97.)

Dr. Fuhrman

concluded that Schmitz’s
neuropsychological results are abnormal. His cognitive abilities are lower
than expected on a variety of the procedures. Intellectual abilities are
moderately low, specifically under nonverbal conditions. Memory abilities
are moderately low, especially under nonverbal conditions. Attentional
abilities are mildly or moderately low. Executive abilities are mildly low.
The overall results are compatible with cerebral dysfunction of mild-tomoderate magnitude. The dysfunction is localized in the prefrontalsubfrontal circuitry (e.g., centrum semiovale), right hemisphere greater than
left hemisphere.

- 30 -

This neuropsychological presentation is characteristic in the setting of
demyelinating disease. The dysfunction is attributable to MS, despite the
possibility of a minor development component.
(AR 996.) With respect to Schmitz’s personality function in particular, Dr. Fuhrman
concluded that “most individuals with [Schmitz’s] profile are experiencing anxiousdepressive disorder. . . . Importantly, many individuals with this profile may demonstrate
an element of stoicism or denial. These individuals are image-conscious and eager to
appear ‘well’ in front of other people. They may minimize personal shortcomings. They
may somatize emotional/interpersonal conflicts by emphasizing ‘medical’ (as contrasted
with mental-health) symptoms.” (AR 996.) Dr Fuhrman also noted “[i]n reviewing the
old electronic records . . . , I noted with interest the head CT for right-sided paresthesia in
1994. Although the question of demyelinating disease was not entertained at the time, I
suppose that stigmata of MS may have been emerging by then” and that “[t]he history of
bipolar disorder is relevant, because some features of emotional/behavioral disinhibition
are likely to reflect multifocal involvement in the right hemisphere and the prefrontalsubfrontal circuitry.”

(AR 997.)

With respect to future employment Dr. Fuhrman

explained “[h]e hopes to return to work. . . . After taking into account the diagnosis of
MS and the totality of physical and mental symptoms. I question whether he is capable
of substantial gainful employment. I support the application for SSDI.” (AR 997.)

2.

Dr. Richard Lentz

Schmitz initially saw Dr. Lentz for a psychiatric evaluation from April through
October 2012. (AR 1148.) Dr. Lentz concluded that “[a]fter an extensive evaluation, it
- 31 -

remains difficult to determine whether he has bipolar illness . . . entirely secondary to MS
or in addition to.”

(AR 1150.) Dr. Lentz explained that “[t]he degree of his

demyelization suggests long-standing MS as well. Individuals with cognitive problems
from MS frequently ha[ve] mood symptoms as well.”

(AR 1150.)

Dr. Lentz’s

assessment diagnosed “[m]ood disorder with manic depressive symptoms secondary to
Multiple Sclerosis. Bipolar mood disorder type 2, possibly an independent process,
although hard to be certain.

Cognitive problems secondary to multiple sclerosis.

Personality change secondary to multiple sclerosis.” (AR 1151.)
At an initial visit in April 2012, Dr. Lentz opined that “it seems quite clear based
on clinical history and examination that he would qualify for long-term disability by any
definition, because of his cognitive and emotional problems, which I think are largely
secondary to multiple sclerosis.” (AR 1158.)

Dr. Lentz also noted that Schmitz’s

“judgment [is] significantly impaired by cognitive and affective symptoms.” (AR 1158.)
In a later April 2012 visit, Dr. Lentz again expressed uncertainty about the relationship
between Schmitz’s cognitive symptoms and his MS, explaining “because he has severe
cognitive and personality change on the basis of some cortical demyelinating plaques, it
is not clear that his bipolar disorder was independent of multiple sclerosis as opposed to
intrinsic to that disease process.” (AR 1161.) At the later visit Dr. Lentz noted that there
was much improvement in Schmitz’s medical status “indicating that bipolar symptoms
caused some of his disinhibition, not just frontal lobe lesions.” (AR 1162.)
Dr. Lentz wrote a letter to Schmitz’s attorney dated October 22, 2012. (AR 118990.) In the letter Dr. Lentz opined:
- 32 -

To a reasonable degree of . . . medical certainty, Mister Schmitz had
significant symptoms of MS prior to the time that he was terminated by at
[sic] Banner Engineering. These symptoms were manifested by cognitive
problems and by bipolar symptoms that were more like than the [sic] the
direct manifestation of Multiple Sclerosis. At the that time he was
terminated from Banner Engineering, he clearly had symptoms of both MS
and bipolar mood disorder secondary to MS.
(AR 1190.) Dr. Lentz also explained that during his time at PPT Schmitz’s behavior was
“still problematic” but “apparently attracted less attention at a smaller and more tolerant
company. Nevertheless, he was terminated by PPT Vision for the same kinds of behavior
noted at his previous employer.” (AR 1190.) Dr. Lentz concluded:
To a reasonable degree of medical certainty, the behavior of Mister Schmitz
clearly impacted his functioning at both employers mentioned above, and
caused the poor performance that led to his being fired by both employers.
It is more likely than not the chest [sic] Bipolar Mood Disorder is a direct
result of his MS. These symptoms of MS and secondary bipolar disorder in
2008 was [sic] the direct cause of lost employment. These same symptoms
were the cause of his termination from PPT Vision in early 2011. He
functioned at the second job only with the help of his wife, Chris, who
managed his calendar, kept track of his appointments, and provided
organization that he could not provide for himself. To a reasonable degree
of medical certainty, despite employment at PPT Vision, he has been
disabled from adequately performing employment that requires executive
functioning, interaction with people, and cognitive skills, since June of
2008.
(AR 1190.)

3.

Statement from Mrs. Schmitz

Schmitz’s ex-wife, Kris Schmitz, submitted a statement on Schmitz’s behalf for
purposes of appeal. (AR 1182-83.) Kris explained that “beginning in approximately
2005 and getting worse in 2007-2008, I began to notice changes in both Jeff’s
- 33 -

managerial/cognitive skills and/or his moods.” (AR 1182.) Kris noted that Schmitz
showed significant sings of fatigue, his memory declined markedly, and his intellectual
and organizational skills declined also.

(AR 1182.)

Kris began keeping track of

Schmitz’s business appointments and took over the family’s finances. (AR 1182-83.)
Kris also explained that people at work noticed changes in his moods, “[h]e could be very
high or manic at times and depressed at others. . . . When he was manic he seemed to
have no control or sense of appropriateness. He would interrupt, make racist or sexist
comments; be belligerent and generally obnoxious.” (AR 1183.)

4.

Statement from Coworker

For purposes of appeal, Schmitz also produced a statement from a coworker,
Stephen Maves, who worked with Schmitz at both Banner and PPT. (AR 1179.) Maves
worked with Schmitz from 2002 to 2008 and stated that Schmitz “became known at
Banner as a person with poor impulse control. He would frequently interrupt during
meetings, and say or do things that were inappropriate in group settings.” (AR 1179.)
Maves noted that Schmitz’s “attention and concentration also became a problem. The
materials that Jeff produced . . . were of low quality. Again this was a surprise to those
who had worked with him the longest because we had come to expect better products
from him.” (AR 1179.) Finally, Maves explained that he had seen “the same lack of
impulse control, and generally inappropriate behavior” by Schmitz hinder his
performance at PPT. (AR 1179.)

- 34 -

B.

Review by Dr. Marcus Goldbloom

On January 17, 2013, board certified psychiatrist Dr. Marcus Goldbloom reviewed
Schmitz’s medical records and the other files in Schmitz’s claim for LTD benefits.
(AR 1287-88.) Dr. Goldbloom first noted that Schmitz’s diagnosis of bipolar disorder
was adequately supported by his medical history, explaining that “[t]he claimant has a
history of hypomanic/manic behavior accompanied by inappropriate behavior,
disinhibition, and pressured speech and was ultimately hospitalized for severe
abnormalities in mental status and markedly inappropriate behavior.” (AR 1293.) But
Dr. Goldbloom concluded that “[w]hether or not a diagnosis of mood disorder due to
multiple sclerosis or mood disorder due to medication issues can be established is beyond
my expertise.” (AR 1293.)
With respect to the worsening of Schmitz’s condition prior to termination,
Dr. Goldbloom opined that “for the time period leading up to 6/16/08, there was no
evidence of worsening in the claimant’s condition.

Data strongly suggests overall

stability with no significant alteration or changes in treatment planning and no emergent
transition to more intense levels of care.” (AR 1293.) Dr. Goldbloom also indicated that
“[f]rom 7/3/08 through 10/1/08, the claimant was largely stable and the medical data do
not support any evidence of continuous functional impairment due to a psychiatric issue
or condition.” (AR 1294.) Dr. Goldbloom opined that although there were distinct
periods of Schmitz’s medical history in which he was impaired “continuous functional
impairment cannot be supported since more times than not, the claimant revealed a

- 35 -

completely intact mental status examination with no overt evidence of significant or
severe psychopathology.” (AR 1295.)

C.

Review by Dr. Michael Raymond

On January 17 and 22, 2013, Dr. Michael Raymond, a board certified
neuropsychologist conducted a review of Schmitz’s claim file.

(AR 1298-1311.)

Dr. Raymond concluded that Schmitz’s medical file supported the finding that Schmitz
had cognitive impairment “in areas including executive functions, visual construction,
processing speed, and psychomotor abilities. . . . Similar findings are often observed with
multiple sclerosis, although psychological factors may exacerbate this executive
dysfunction as well.” (AR 1304.) With respect to the period between July 3, 2008 and
October 1, 2008, Dr. Raymond noted “[t]here is no evidence within the reviewed medical
records to support or suggest cognitive impairment that had resulted in a
neuropsychological referral.” (AR 1305.) Additionally, Dr. Raymond explained that
there was no evidence that Schmitz was experiencing cognitive impairment that
precluded him from performing the mental capacities required for the occupation of
Corporate Business Manager. (AR 1310-11.)
With respect to Dr. Lentz’s October 2012 letter, Dr. Raymond explained:
There is no documented objective evidence (e.g., neuropsychological data)
to support Dr. Lentz’s statements in his letter dated 10/22/12, indicating
that “he has been disabled from adequately performing employment that
requires executive functioning, interaction with people, and cognitive skills,
since June of 2008.” Thus, during that time period, there is no
neurocognitive evidence to support Mr. Schmitz’s inability to perform the
occupational duties of a Corporate Business manager.
- 36 -

(AR 1308.)
Finally, Dr. Raymond concluded:
As previously noted, Mr. Schmitz has demonstrated a gradual
neurocognitive and behavior deterioration dating back many years. Initial
signs and symptoms of a demyelinating disorder (MS) apparent began with
muscle weakness and paresthesias commencing sometime in 1994. Over
the course of many years, the symptoms gradually worsened especially
with regard to behavior decompensation. He had previously been
diagnosed and treated for depression and bipolar disorder. A formal
diagnosis of demyelination (MS) was made after he had undergone a
cerebral MRI in 2011. A combination of behavioral and neurocognitive
changes/deficits resulted in him being terminated from positions at Banner
Engineering and PPT Vision. Most recent neuropsychological test results
(1/25/12) support neurocognitive deficits associated with frontal and
subcortical involvement, greater in the right than left hemisphere. These
findings would clearly translate into restrictions and limitations in the
position of business manager.
(AR 1309.) Raymond clarified that this conclusion “was based on subjective reports of
cognitive dysfunction” and that “from a neuropsychological standpoint there was no
objective evidence to support that there was cognitive impairment that resulted in him
being terminated.” (AR 1311.)

D.

Outcome of Appeal

On March 8, 2013, Sun Life informed Schmitz that it was upholding its denial of
LTD benefits. (AR 1508.) Sun Life relied on the conclusions of Dr. Goldman and Dr.
Raymond that no disabling cognitive impairment existed at the time of Schmitz’s
termination from Banner. (AR 1522-25.) Sun Life explained:
Sun Life acknowledges that Mr. Schmitz was diagnosed with MS in 2011,
and that the condition likely started years earlier. However, because the
cause of Mr. Schmitz’ symptoms was identified, it does not automatically
mean that those symptoms rendered him Totally Disabled since July of
- 37 -

2008. Inarguably, as of August 2011, when Mr. Schmitz was hospitalized
due to a psychotic episode, and when he underwent his first
neuropsychological evaluation, at that time he was unable to perform the
occupational duties of Corporate Business Manager. However, as we find
that Mr. Schmitz was not Totally and/or Partially Disabled from July 3,
2008, his LTD coverage under the Policy terminated once his employment
with Banner Engineering ended, in accordance with the Policy’s
termination provisions. Since his coverage under the Policy was not in
effect as of August 2011, Mr. Schmitz does not qualify for benefits for
August 2011 onward under this Policy. Additionally, we restate that
Mr. Schmitz was not under regular and continuing care with respect to his
claimed cognitive deficits, as required by the Policy, until August 2011.
(AR 1529.)

XII.

THE PRESENT ACTION
On March 18, 2013, Schmitz filed a complaint in this Court against Sun Life

seeking judicial review of Sun Life’s denial of LTD benefits pursuant to 29 U.S.C.
§ 1132(a)(1)(B). (Compl., Mar. 18, 2013, Docket No. 1.) Schmitz alleges that “[t]he
decision to deny the LTD benefits is in violation of the Plan, a violation of ERISA, and a
violation of the fiduciary duties owed by the Defendant to the Plaintiff.” (Id. ¶ 10.) The
parties now bring cross motions for summary judgment.

ANALYSIS
I.

STANDARD OF REVIEW
Summary judgment is appropriate where there are no genuine issues of material

fact and the moving party can demonstrate that it is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). A fact is material if it might affect the outcome of the suit,
and a dispute is genuine if the evidence is such that it could lead a reasonable jury to
- 38 -

return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A court considering a motion for summary judgment must view the facts in the
light most favorable to the non-moving party and give that party the benefit of all
reasonable inferences to be drawn from those facts. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).

Summary judgment is appropriate if the

nonmoving party “fails to make a showing sufficient to establish the existence of [each]
element essential to that party’s case, and on which that party will bear the burden of
proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
To decide if either party is entitled to summary judgment, the Court must
determine if Sun Life abused its discretion in denying Schmitz’s claim. “[A] denial of
benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard
unless the benefit plan gives the administrator . . . discretionary 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).

If the plan confers discretion on the plan

administrator, the Court applies a deferential abuse-of-discretion standard of review.
Green v. Union Sec. Ins. Co., 646 F.3d 1042, 1050 (8th Cir. 2011); see also Bounds v.
Bell Atl. Enters. Flexible Long-Term Disability Plan, 32 F.3d 337, 339 (8th Cir. 1994). It
is undisputed that the Policy at issue here provides Sun Life with the “entire discretionary
authority” to determine eligibility for benefits and construe the terms of the Policy. (AR
123.) Accordingly, the Court will apply the abuse of discretion standard to Sun Life’s
determination.

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Under the abuse of discretion standard, the Court “will reverse the plan
administrator’s decision only if it is arbitrary and capricious.” Midgett v. Wash. Grp.
Int’l Long Term Disability Plan, 561 F.3d 887, 896 (8th Cir. 2009) (internal quotation
marks omitted). In ascertaining whether a decision was arbitrary and capricious the
Court asks “whether the decision to deny benefits was supported by substantial evidence,
meaning more than a scintilla but less than a preponderance.” Id. at 897 (alteration and
internal quotation marks omitted). “Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” River v. Edward D.
Jones Co., 646 F.3d 1029, 1033 (8th Cir. 2011) (internal quotation marks omitted).
“Review of an administrator’s decision under an abuse of discretion standard, though
deferential, is not tantamount to rubber-stamping the result. On the contrary [the Court]
review[s] the decision for reasonableness, which requires that it be supported by
substantial evidence that is assessed by its quantity and quality.” Torres v. UNUM Life
Ins. Co. of Am., 405 F.3d 670, 680 (8th Cir. 2005). But “[p]rovided the decision is
supported by a reasonable explanation, it should not be disturbed, even though a different
reasonable interpretation could have been made.” Schatz v. Mut. of Omaha Ins. Co., 220
F.3d 944, 949 (8th Cir. 2000) (internal quotation marks omitted). “The requirement that
the [plan administrator’s] decision be reasonable should be read to mean that a decision is
reasonable if a reasonable person could have reached a similar decision, given the
evidence before him, not that a reasonable person would have reached that decision.”
Jackson v. Metro. Life Ins. Co., 303 F.3d 884, 887 (8th Cir. 2002) (emphasis in original)
(internal quotation marks omitted). Where, as here, the insurer “had the responsibility of
- 40 -

both determining eligibility for benefits and also paying those benefits” the Court
considers “that conflict as a factor when determining if an administrator has abused its
discretion.” Silva v. Metro. Life Ins. Co., --- F.3d ---, 2014 WL 3896156, at *5 (8th Cir.
2014) (internal quotation marks omitted).
In its motion for summary judgment Sun Life argues, among other things, that its
determination that Schmitz was not entitled to LTD benefits is supported by substantial
evidence and should therefore be affirmed. Schmitz contends that summary judgment in
his favor is warranted because Sun Life’s decision was arbitrary and capricious.

II.

SUBSTANTIAL EVIDENCE SUPPORTING SUN LIFE’S DECISION
In order to be eligible for LTD benefits under the Policy, Schmitz is required to

demonstrate that he was totally or partially disabled within the meaning of the Policy as
of July 2, 2008 (the day his coverage terminated) and continuously through the 90 day
elimination period until September 30, 2008. (AR 72, 101.) Schmitz bears the burden of
proving his entitlement to benefits under the terms of the Policy. See Farley v. Benefit
Trust Life Ins. Co., 979 F.2d 653, 658 (8th Cir. 1992). The Court notes that the relevant
inquiry for purposes of appeal (and Sun Life’s determination) is, more specifically,
whether Schmitz’s multiple sclerosis caused him to be disabled within the meaning of the
Policy upon his termination from Banner in July 2008. This is so because the Policy
requires that the disability claim be “because of Injury or Sickness.” (AR 83.) Therefore,
it is irrelevant whether Schmitz was disabled when he was diagnosed with multiple
sclerosis in 2011 or whether he may have been disabled by some other condition at the
- 41 -

time of his termination from Banner. See Eastman v. Prudential Ins. Co. of Am., Civ. No.
06-4123, 2008 WL 250597, at *17 (D. Minn. 2008) (noting that “[t]he parties agree that
Eastman is disabled and that Eastman has been diagnosed with fibromyalgia” but finding
that plaintiff was required to prove that her impairment was “caused by fibromyalgia”
and that she “was disabled by fibromyalgia” during the relevant time period). The Court
concludes that, based on all of the evidence before Sun Life at the time it made its
determination that Schmitz was not disabled, Sun Life’s decision was supported by
substantial evidence, and was neither arbitrary nor capricious.
Schmitz argues that Sun Life’s decision was unreasonable because he “provided a
consistent medical history, witness statements, objective testing, and the opinion of two
treating doctors in support of his position.” (Pl.’s Mem. in Opp’n to Mot. for Summ. J. at
13, Apr. 15, 2014, Docket No. 44.)

Schmitz argues that Sun Life’s decision was

unreasonable and not supported by substantial evidence for a number of reasons which
generally fall into three categories: (1) his treating physicians supported disability dating
back to 2008 and Sun Life acted unreasonably in disregarding those opinions in favor of
its reviewing physicians; (2) the reviewing physicians actually found disability dating
back to 2008 and to the extent they did not, they inappropriately relied on a totally
incapacitated standard for determining disability – rather than the total disability
definition from the Policy; and (3) the reviewing physicians did not acknowledge the
statements of Schmitz, his ex-wife, and his coworker. The Court will address each of
these contentions in turn.

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A.

Treating Physicians

Schmitz argues that his treating physicians presented overwhelming evidence that
he was totally disabled in July 2008 because of his multiple sclerosis. This interpretation
overstates the actual conclusions reached by his treating physicians, as demonstrated by
the record before Sun Life.

The Administrative Record reflects that it was not

unreasonable for Sun Life to conclude that doctors treating Schmitz at the time he
allegedly became disabled did not consider Schmitz’s cognitive and mental issues –
whether caused by multiple sclerosis or not – to be preventing him from performing the
essential functions of his job at Banner. Schmitz was treated by Dr. Callahan from
February 2007 through September 2008. Although the notes from Dr. Callahan indicate
that Schmitz suffered from mental health issues – including anxiety and depression and
bipolar disorder, the notes also contain numerous indications that these problems were
not causing Schmitz to be unable to perform the essential tasks and functions of his
position at Banner. For example, in October 2007 Schmitz was described as “less
anxious and less depressed” and reported that “he is working, he is adequately
productive, he has been assured that there is no plan afoot to fire him or lay him off.”
(AR 738.) In January 2008 Schmitz continued to work full time and was “traveling and
performing.” (AR 1756.) In April 2008, Schmitz reported that he had energy and
creativity at work, and had just received a good evaluation. (AR 740.) Therapist Driscoll
similarly noted that in the spring of 2008 Schmitz reported that his mood was stable and
that work was going better. (AR 214, 218-19.) Furthermore, notes from Driscoll after
Schmitz’s termination reflect that Schmitz continued to look for work, and there was no
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discussion that Schmitz’s mental and cognitive issues may have affected his ability to
work.
Schmitz’s treating physician Dr. Anderson also indicated, based on his tests in
January 2009 that Schmitz had a GAF score of 60 and in the past year a maximum score
of 85 – within the range of absent or minimal symptoms, good function in all areas, and
no more than everyday problems or concerns. (AR 241.) In June 2009 Dr. Anderson
also reported that Schmitz was doing well on his medications and was able to
concentrate. (AR 240.) Significantly, in both May and September 2010 Anderson noted
that Schmitz’s “[m]ental status shows normal function” and that his “[m]ental status is
really normal,” and in December 2010 reported that Schmitz’s mood was stable.
(AR 231-32.) Therefore, the Court cannot conclude that Sun Life abused its discretion
when it concluded that there was no contemporaneous evidence of cognitive and mental
disability such that Schmitz was totally disabled within the meaning of the Policy at the
time of Schmitz’s July 2008 termination.
Additionally, the opinions of Schmitz’s treating physicians immediately preceding
and following his multiple sclerosis diagnosis do not, as Schmitz claims, unequivocally
establish the necessary connection between his work performance in 2008 and his
multiple sclerosis. After his August 2011 hospitalization, Schmitz was diagnosed with
“[o]rganic psychosis and mood disorder secondary to multiple sclerosis.” (AR 664.)
And his internal medicine assessment specifically stated that it was “[u]ncertain as to
what degree mood liability may be contributed to by patient’s multiple sclerosis.” (AR
665.) An in-patient neurology consult further concluded that “it is nearly impossible to
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know” what extent of Schmitz’s “psychiatric dysfunction” were related to an underlying
mood disorder as opposed to “cognitive changes secondary to multiple sclerosis.”
(AR 665.)

When Dr. Schenk evaluated Schmitz in December 2011 he opined that

Schmitz had probably had MS for “at least nine years,” but that assessment was based
solely on Schmitz’s self-report that he began experiencing problems with his left leg nine
years ago. Dr. Schenk noted that Schmitz’s cognitive impairment “likely relates to both
the multiple sclerosis as well as perhaps his psychiatric disorder” but “further evaluation”
was clearly needed. (AR 2011.) Similarly, Dr. Davis – who provided an attending
physician statement as part of Schmitz’s application for LTD benefits opined that
Schmitz was severely or extremely impaired as of October 2011. With respect to the
effects of MS on Schmitz prior to October 2011, Dr. Davis explained only that Schmitz
had “long standing mood issues leading to diagnosis of bipolar, MS recently diagnosed
but felt to be active prior to diagnosis.” (AR 60.) None of these opinions goes directly to
the issue of whether, in July 2008, Schmitz was unable to perform the primary functions
of his job because of multiple sclerosis. At most, these opinions rely on the general
proposition that mood disorders often accompany multiple sclerosis, but say nothing
about whether Schmitz’s mood disorder – even if caused by multiple sclerosis was severe
enough in July 2008 to prevent him from performing his job at Banner.
Finally, Schmitz relies heavily on the two doctors that examined him in 2012.
Dr. Fuhrman concluded that Schmitz’s neuropsychological results are abnormal. (AR
996.) Dr. Fuhrman also indicated he had reviewed Schmitz’s head CT scan from 1994,
and hypothesized that “[a]lthough the question of demyelinating disease was not
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entertained at the time, I suppose that stigmata of MS may have been emerging by then,”
and that Schmitz’s history of bipolar was relevant because some of these features were
likely related to the involvement of MS. (AR 997.)
Dr. Lentz also saw Schmitz for a psychiatric evaluation from April through
October 2012. After an initial evaluation Dr. Lentz explained that “it seems quite clear
based on clinical history and examination that he would qualify for long-term disability
by any definition, because of his cognitive and emotional problems, which I think are
largely secondary to multiple sclerosis.” (AR 1158.) Dr. Lentz concluded on multiple
occasions that it was difficult to determine whether Schmitz had bipolar illness entirely
secondary to, or in addition to MS. (AR 1150, 1161.) In particular Dr. Lentz noted that
Schmitz’s mental status and cognitive difficulties had changed over the course of Lentz’s
evaluation suggesting that “bipolar symptoms caused some of his disinhibition, not just
frontal lobe lesions.” (AR 1162.) Despite these somewhat equivocal findings regarding
Schmitz’s status as disabled in July 2008 because of multiple sclerosis, the letter
Dr. Lentz sent to Schmitz’s attorney in October 2012 after Schmitz’s claim was denied
takes a much stronger stance, concluding that “[t]o a reasonable degree of . . . medical
certainty, Mister Schmitz had significant symptoms of MS prior to the time that he was
terminated by at [sic] Banner Engineering.” (AR 1190.) Dr. Lentz further opined that
Schmitz’s symptoms of multiple sclerosis and secondary bipolar disorder were the direct
cause of his lost employment. (AR 1190.)
Although Dr. Lentz, and to a lesser extent Dr. Fuhrman opined that multiple
sclerosis disabled Schmitz as of July 2008, as explained more fully below – a plan
- 46 -

administrator’s decision is not arbitrary and capricious merely because it rejects the
opinion of a treating physician5 “unless the record does not support the denial.” Midgett,
561 F.3d at 897 (internal quotation marks omitted); see also Weidner v. Fed. Express
Corp., 492 F.3d 925, 930 (8th Cir. 2007) (explaining that the administrator did not abuse
its discretion in accepting the opinions of consultative neurology specialists, even though
claimant’s treating physician opined that the claimant continued to be “fully disabled”
because “ERISA affords courts no warrant to require administrators automatically to
accord special weight to the opinions of a claimant’s physician” (internal quotation marks
omitted)).

In other words, “[w]hen a conflict in medical opinions exists, the plan

administrator does not abuse his discretion by adopting one opinion, if reasonable, and
finding that the employee is not disabled.” Smith v. Unum Life Ins. Co. of Am., 305 F.3d
789, 794 (8th Cir. 2002). Therefore, based on the numerous opinions of the physicians
that treated Schmitz in 2008 – and did not describe disabling psychological and cognitive
dysfunctions – and the opinions of the reviewing physicians concluding that Schmitz was
not disabled, the Court cannot conclude that Sun Life abused its discretion in rejecting
Dr. Lentz’s opinion.
Furthermore, the Court reviews “both the quantity and quality of evidence before
a plan administrator.” Smith, 305 F.3d at 794 (emphasis added). Here, it was not an
5

It does not appear from the record that Dr. Lentz was actually a treating physician, as
the term is used in the case law, but was instead retained for a short period of time for purposes
of conducting an independent evaluation of Schmitz’s psychological condition. Because
Dr. Lentz’s characterization as a treating physician does not change the Court’s conclusion that
Sun Life was entitled to reject his opinion in favor of the opinions of the reviewing physicians,
the Court has adopted the characterization of Dr. Lentz advocated by Schmitz for purposes of
this opinion.
- 47 -

abuse of discretion for Sun Life to give less weight to Dr. Lentz’s conclusion in October
2011 that Schmitz’s multiple sclerosis was the direct cause of his lost employment,
because this conclusion was somewhat inconsistent with the determinations Dr. Lentz
made after examining Schmitz. Specifically, the October 2011 conclusion was at odds
with Dr. Lentz’s earlier determination that it was almost impossible to tell whether the
symptoms Schmitz originally suffered were due to a bipolar disorder independent from
his multiple sclerosis and that fluctuations in Schmitz’s mood during the course of
Dr. Lentz’s evaluation suggested involvement of a disorder other than multiple sclerosis.

B.

Reviewing Physicians

Schmitz also contends that Sun Life’s denial was not supported by substantial
evidence because some of the reviewing physicians actually support his contention that
he was disabled, and the others did not opine on the relevant issue – whether Schmitz was
disabled in July 2008 within the meaning of the Policy. The Court concludes, however,
that based on the evidence as a whole, Sun Life was reasonable in relying on the opinions
of the reviewing physicians to determine that Schmitz was not disabled.
In her January 2012 review, Dr. O’Connor was specifically asked to address
whether Schmitz’s August 2011 multiple sclerosis diagnosis could have been responsible
“for his issues holding employment since 2008.” (AR 2058-59.) This question was
directed at the relevant inquiry – whether Schmitz, because of multiple sclerosis was
unable to perform the essential tasks, functions, skills, or responsibilities of his job.
Dr. O’Connor’s response was an unequivocal no, explaining “[t]here is no information on
- 48 -

file indicating that Mr. Schmitz had cognitive problems around 6/16/08.” (AR 2059.)
Dr. O’Connor noted that psychiatrist notes indicated complaints about concentration and
other issues but the notes largely “suggest intact mental status.” (AR 2059.)
Dr. Mirkin was also asked to opine on questions directly relevant to Sun Life’s
disability determination such as whether Schmitz’s medical records reflected an increase
in symptoms or treatment leading up to his termination “that would support that his firing
was a result of his mental health issues.” (AR 2065.) Dr. Mirkin did acknowledge that
the relationship between multiple sclerosis and mood disorders remains unclear and also
acknowledged that, based on Schmitz’s MRI he had likely had multiple sclerosis for
“some time.” (AR 2071-72.) But Dr. Mirkin still concluded that there was no evidence
that Schmitz had any neurological symptoms as a result of multiple sclerosis until July
2011. Dr. Mirkin also noted that Driscoll’s notes provided some evidence of mood
changes in the period leading up to Schmitz’s termination but “these symptoms were not
described as at a level of severity that would have obviously interfered with his
performance at his job.” (AR 2073.) Finally, Dr. Mirkin directly addressed the argument
advanced in this litigation by Schmitz, explaining:
It should be noted that there is little doubt that throughout the period that is
under review Mr. Schmitz had an underlying neurodegenerative disease
process taking place. It is inaccurate to state that because he was eventually
discovered to have this illness that this automatically implies that he was
impaired by the process. It appears that he had no recognizable symptoms
of multiple sclerosis and it cannot be assumed that his mood disorder was
solely the result of his multiple sclerosis although unrecognized at that
time. Even if his mood symptoms could in part be attributable to this
disease his mood symptoms were not at a level of severity that would have
limited him.
- 49 -

(AR 2074.) These opinions were based on the information in Schmitz’s medical file,
and, contrary to Schmitz’s contention, did specifically address the issue in question –
whether Schmitz’s multiple sclerosis was affecting his cognitive functions in July 2008
such that he was unable to perform his job and was therefore terminated. Because both
Dr. O’Connor and Dr. Mirkin answered no to this question, Sun Life did not act
unreasonably in crediting their conclusions and denying Schmitz’s request for benefits.
Furthermore, after Schmitz appealed, Sun Life obtained opinions from two
additional reviewing physicians.

Although Dr. Goldbloom could not say whether

Schmitz’s mood disorder was due to his multiple sclerosis, he concluded based on the
evidence in Schmitz’s medical record that leading up to his termination there was
“overall stability” in Schmitz’s condition and “no significant alteration or changes in
treatment planning and no emergent transition to more intense levels of care” that would
likely be present had Schmitz’s condition changed and caused him increased impairment.
(AR 1293-94.) This opinion further supported Sun Life’s conclusion that Schmitz was
not disabled.
Finally, Schmitz makes much of Dr. Raymond’s opinion.

Dr. Raymond

concluded that there was no evidence that Schmitz was experiencing cognitive
impairment that precluded him from performing the mental functions required for his
position at Banner. (AR 1308, 1310-11.) Dr. Raymond did state that “[a] combination
of behavioral and neurocognitive changes/deficits resulted in [Schmitz] being terminated
from positions at Banner Engineering and PPT Vision,” (AR 1309), but clarified, upon
Sun Life’s request that this conclusion “was based on subjective reports of cognitive
- 50 -

dysfunction” and that “from a neuropsychological standpoint there was no objective
evidence to support that there was cognitive impairment that resulted in him being
terminated.” (AR 1311.) Dr. Raymond’s opinion – even viewed in the light most
favorable to Schmitz and prior to being clarified – does not provide direct support for
Schmitz’s contention that mental and cognitive issues associated with multiple sclerosis
resulted in his termination from Banner and therefore demonstrated that he was disabled
at that time. The opinions of these reviewing physicians, taken together, “accurately
represent [Schmitz]’s medical record and adequately address the evidence supporting
h[is] claim for disability.” See Midgett, 561 F.3d at 898. Specifically each reviewing
doctor acknowledged the existence of mood disorder issues observed by Schmitz’s
treating physicians in 2008 but concluded that “these findings did not demonstrate that
[Schmitz] was unable to perform h[is] job duties” as a result of multiple sclerosis. See id.
Schmitz relies heavily on Woo v. Deluxe Corp., 144 F.3d 1157 (8th Cir. 1998),
abrogated in part by Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 115-17 (2008), as
recognized in Waldoch v. Medtronic, Inc., --- F.3d ---, 2014 WL 3264187, at *6 n.3
(8th Cir. 2014) and Bray v. Sun Life & Health Ins. Co. (U.S.), 838 F. Supp. 2d 1183
(D. Colo. 2012) to support his claim. The Court concludes, however, that these cases are
readily distinguishable. In Woo, the court concluded that the administrator – Hartford –
lacked sufficient support in the record to justify its denial of benefits. 144 F.3d at 1162.
Hartford had denied Woo’s claim “without seeking any independent medical review” and
had disregarded the opinions of two treating physicians who examined Woo immediately
before and after her termination. Id. at 1161. Both treating physicians – although they
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were unaware that Woo had scleroderma at the time of her resignation – “connected the
physical problems that she experienced during the insured period to her eventual
diagnosis of scleroderma.” Id. at 1162. The court concluded that it was error for
Hartford to deny this claim “without having it reviewed by an appropriate expert.” Id.
Unlike in Woo, here Sun Life obtained four expert reviews of Schmitz’s medical file to
support their denial of benefits. Furthermore, unlike Woo’s treating physicians, Schmitz
presented no evidence from physicians that had treated him at the time of the onset of the
alleged disability that connected his disability to his later diagnosis of multiple sclerosis.6
Therefore, Woo does not control the outcome here.
Similarly, in Bray, the court concluded that the administrator had abused its
discretion in denying LTD benefits because it had ignored overwhelming medical
evidence that connected Bray’s termination to his later diagnosis of a brain tumor. Id. at
1198. But in Bray the administrator did not present any of its own medical evidence and
ignored the opinions of numerous treating doctors that unequivocally tied Bray’s
termination to his brain tumor. Id. at 1195-96. Here, Sun Life did provide numerous
medical opinions to rebut the medical providers relied upon by Schmitz, and Schmitz did
not present the same type of “substantial medical and non-medical evidence” that he was
unable to perform his job duties satisfactorily because of his undiagnosed multiple
sclerosis. Id. at 1198.

6

Additionally, Woo applied a more exacting standard of review than the abuse of
discretion review that governs the Court’s review of Sun Life’s claims. 144 F.3d at 1161-62.
- 52 -

C.

Consideration of Witness Statements

Finally, Schmitz argues that Sun Life was unreasonable in adopting the opinions
of the reviewing doctors because those doctors did not review the statements provided by
Schmitz, his ex-wife, and his coworker. Although it can be an abuse of discretion for an
administrator to adopt opinions of reviewing physicians that are based on incomplete or
inadequate materials, the Court concludes that there was no abuse of discretion here
because the information contained in the statements submitted by Schmitz was largely
duplicative of information already in the administrative record. For example, Schmitz’s
and his ex-wife’s concerns about his mental status are reflected in the notes of his
medical providers in 2008, and the statement of his coworker is largely duplicative of
performance reviews received by Schmitz at Banner. Furthermore it is unclear how the
opinions from these statements that Schmitz suffered from a mood disorder at the time of
his termination – which even Sun Life does not dispute – would have required the
reviewing doctors to conclude that Schmitz was disabled by multiple sclerosis at the time
of his termination.
Accordingly, the Court concludes that Sun Life’s decision to deny benefits was
not arbitrary or capricious and was based on substantial evidence. The Court notes that
the administrative record in this case certainly contains evidence “both for and against
[Schmitz]’s claim.” Smith, 305 F.3d at 796; see also Weidner, 492 F.3d at 930 (“Weidner
is seriously impaired by multiple sclerosis, and whether that disease was totally disabling
in April 2003 is a close question. However, after careful review, like the district court we
conclude that substantial evidence in the administrative record as a whole supports the
- 53 -

Committee’s decision . . . .”). The Court’s role here is limited by the deferential standard
of review. In other words, it is irrelevant whether the Court might have reached a
different conclusion based on the evidence here. It is sufficient that it was reasonable for
Sun Life to reach its conclusion that Schmitz was not disabled because of multiple
sclerosis as of July 2008, as required to obtain benefits under the Policy. Specifically, the
record demonstrates that four reviewing physicians concluded that Schmitz was not
disabled, contemporaneous treating physicians did not describe Schmitz as disabled, and
Schmitz continued to be employed in a relatively similar position following his
termination at Banner. Therefore, the Court will grant Sun Life’s motion for summary
judgment.7
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1.

Defendant’s Motion for Summary Judgment [Docket No. 28] is

GRANTED.
2.

Plaintiff’s Motion for Summary Judgment [Docket No. 36] is DENIED.

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: October 31, 2014
at Minneapolis, Minnesota.

7

____s/
____
JOHN R. TUNHEIM
United States District Judge

Because the Court concludes that Sun Life’s decision was supported by substantial
evidence it has not considered Sun Life’s additional arguments in support of summary judgment
– including that Schmitz’s claim was untimely under the Policy and was barred by a release
agreement he signed with Banner Engineering after his termination.
- 54 -