Thiry v. Meridian Behavioral Health, LLC Short-term Disability Plan et al

Filing 47

ORDER ADOPTING REPORT AND RECOMMENDATION of the Magistrate Judge 43 ; overruling Plaintiff's Objections 45 ; denying Plaintiff's Motion for Summary Judgment 32 ; granting Defendants United of Omaha Life Insurance Company and Meridian Behavioral Health, LLC Long-term Disability Plan's Motion for Summary Judgement 29 . (Written Opinion) Signed by Chief Judge John R. Tunheim on 09/17/2017. (JMK)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 15-3544 (JRT/KMM)

MARIANNE THIRY,
Plaintiff,
v.
UNITED OF OMAHA LIFE
INSURANCE COMPANY and
MERIDIAN BEHAVIORAL HEALTH,
LLC LONG-TERM DISABILITY PLAN,

MEMORANDUM
OPINION AND ORDER
ADOPTING THE REPORT AND
RECOMMENDATION OF THE
MAGISTRATE JUDGE

Defendants.
Matthew B. Newman, MATTHEW B. NEWMAN, P.A., 532 Hackmore
Drive, Eagan, MN 55123, for plaintiff.
Mark Scholle, SCHOLLE LAW FIRM, LTD., 8742 Leeward Circle,
Eden Prairie, MN 55344, and Todd Brenner, BRENNER HUBBLE, 555
Metro Place North, Suite 225, Dublin, OH 43017, for defendants.

Plaintiff Marianne Thiry filed the present action claiming Defendants United of
Omaha Life Insurance Company (“United”) and Meridian Behavioral Health, LLC LongTerm Disability Plan (the “Plan”) improperly denied Thiry long-term disability benefits
in violation of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29
U.S.C. § 1132(a)(1)(B). The parties filed cross-motions for summary judgment and U.S.
Magistrate Judge Katherine Menendez issued a report and recommendation (“R&R”),
advising the Court to grant Defendants’ motion for summary judgment and deny Thiry’s
motion for summary judgment. Thiry timely objected. The Court will overrule Thiry’s
objections and adopt the R&R.

BACKGROUND
Meridian Behavioral Health, LLC employed Thiry as a Director of Operational
Development from October 2008 through November 2014. (Admin. R. at 50, 152, 1 Apr.
28, 2017, Docket No. 42.) During her employment, Thiry participated in the Plan and
was covered under a Group Insurance Policy (the “LTD Policy”) that entitled Thiry to
benefits if she became disabled. (Id. at 2967.) The LTD Policy defined “Disability and
Disabled” as:
because of an Injury or Sickness, a significant change in Your mental or
physical functional capacity has occurred in which:
(a) during the Elimination Period, You are prevented from performing at
least one of the Material Duties of Your Regular Occupation on a part-time
or full-time basis; and
(b) after the Elimination Period, You are:
1. prevented from performing at least one of the Material Duties of
Your Regular Occupation on a part-time or full-time basis; and
2. unable to generate Current Earnings which exceed 99% of Your
Basic Monthly Earnings due to that same Injury or Sickness.
After a Monthly Benefit has been paid for 2 years, Disability and Disabled
mean You are unable to perform all of the Material Duties of any Gainful
Occupation.
Disability is determined relative to Your ability or inability to work. It is
not determined by the availability of a suitable position with the
Policyholder.

1

The Court will cite to the Administrative Record using the numerical portion of the
Bates pagination, omitting unnecessary zeros.
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(Id. at 2992.) The Plan granted United discretionary authority to administer claims and
vested United with “discretion and the final authority to construe and interpret the
Policy,” including “the authority to decide all questions of eligibility.” (Id. at 2988.)
Thiry stopped working on August 5, 2014 and, because of mental-health issues,
applied for short-term disability benefits. (Id. at 512-13, 1505.) United eventually
granted Thiry short-term disability benefits. (See Joint Stipulation for Approval of Pl. to
File Second Am. Compl. at 1-3, May, 12, 2016, Docket No. 14.)
In November 2014, Thiry completed an application for long-term disability
benefits. (Admin. R. at 152-65.) Thiry’s application related to both mental-health and
physical-impairment conditions. (See id. at 2524-53) On March 12, 2015, Thiry’s
counsel sent United a letter concerning the claim for long-term disability benefits. (Id. at
2524-53.) In relevant part, Thiry stated that she was entitled to long-term disability
benefits based on the disabling effects of pain and fatigue related to fibromyalgia and
related physical conditions. (See id.)
On June 10, 2015, United denied Thiry’s application for long-term disability
benefits. (Id. at 1502-12.) Following an appeal, United partially reversed its decision
and granted Thiry’s claim for long-term disability benefits relating to Thiry’s mentalhealth conditions. (Id. at 1257-60.) But the LTD Policy limited mental-health benefits to
a period of twenty-four months. (Id.)
United did not change its decision with regard to Thiry’s claim for long-term
disability benefits stemming from her physical impairments.

(Id.)

United, instead,

referenced the information it used to come to its decision and informed Thiry that its
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“review ha[d] not found physical restrictions or limitations, due to fibromyalgia or any
other conditions, which would preclude [] Thiry from performing the Material Duties of
her Regular Occupation.” (Id. at 1259.) United reasoned that, while Thiry indisputably
has fibromyalgia, her condition is not disabling. (See id. at 1259-60.)
Thiry filed the Second Amended Complaint on June 3, 2016, alleging Defendants
violated ERISA, 29 U.S.C. § 1132(a)(1)(B), for failure to pay Thiry long-term disability
benefits under the LTD Policy. (Second Am. Compl. ¶¶ 17-18, June 3, 2016, Docket No.
18.) The parties filed cross-motions for summary judgment on January 20, 2017, which
the Court referred to the Magistrate Judge. On May 30, 2017, the Magistrate Judge
issued an R&R recommending the Court grant Defendants’ motion for summary
judgment and deny Thiry’s motion for summary judgment. (R&R at 2, 13, May 30,
2017, Docket No. 43.) Thiry timely objected to the R&R.

DISCUSSION
I.

STANDARD OF REVIEW
After a magistrate judge files an R&R, a party may file “specific written

objections to the proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2);
accord D. Minn. LR 72.2(b)(1). “The objections should specify the portions of the
magistrate judge’s report and recommendation to which objections are made and provide
a basis for those objections.” Mayer v. Walvatne, No. 07-1958, 2008 WL 4527774, at *2
(D. Minn. Sept. 28, 2008).

For dispositive motions, the Court reviews de novo a

“properly objected to” portion of an R&R. Fed. R. Civ. P. 72(b)(3); accord D. Minn. LR

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72.2(b)(3). “Objections which are not specific but merely repeat arguments presented to
and considered by a magistrate judge are not entitled to de novo review, but rather are
reviewed for clear error.” Montgomery v. Compass Airlines, LLC, 98 F. Supp. 3d 1012,
1017 (D. Minn. 2015). Here, Thiry objects to the Magistrate Judge recommending the
Court grant Defendants’ motion for summary judgment.
Summary judgment is appropriate when there are no genuine issues of material
fact and the moving party can demonstrate 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 lawsuit, and
a dispute is genuine if the evidence could lead a reasonable jury to return a verdict for
either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A court
considering a summary judgment motion 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, 587-88 (1986). Summary judgment is appropriate if the nonmoving party “fails to
make a showing sufficient to establish the existence of an 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 (1986). “To defeat a motion for summary judgment, a party
may not rest upon allegations, but must produce probative evidence sufficient to
demonstrate a genuine issue [of material fact] for trial.” Davenport v. Univ. of Ark. Bd.
of Trs., 553 F.3d 1110, 1113 (8th Cir. 2009) (citing Anderson, 477 U.S. at 247-49).

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II.

ERISA
The Court generally reviews the denial of ERISA benefits de novo. Firestone Tire

& Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). But if “the benefit plan gives the
administrator . . . discretionary authority to determine eligibility for benefits or to
construe the terms of the plan,” abuse of discretion is the proper standard of review.
Johnson v. United of Omaha Life Ins. Co., 775 F.3d 983, 986-87 (8th Cir. 2014) (quoting
Bruch, 489 U.S. at 115). Here, the Magistrate Judge found, and Thiry does not contest,
that “[t]he LTD Policy gave United discretion to interpret eligibility for [long-term
disability] benefits.” (R&R at 4 (citing Admin R. at 2988).)
Applying the abuse-of-discretion standard, the Court “will uphold [United’s]
decision to deny benefits if it is reasonable.” Johnson, 775 F.3d at 989 (alteration in
original) (quoting Maune v. Int’l Bhd. of Elec. Workers, Local No. 1 Health & Welfare
Fund, 83 F.3d 959, 963 (8th Cir. 1996)). The Court “measure[s] reasonableness\ by
whether substantial evidence exists to support the decision, meaning more than a scintilla
but less than a preponderance.” Id. (quoting Wakkinen v. UNUM Life Ins. Co. of Am.,
531 F.3d 575, 583 (8th Cir. 2008)). “Substantial evidence ‘means such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.’” McGee v.
Reliance Standard Life Ins. Co., 360 F.3d 921, 924 (8th Cir. 2004) (quoting Consol.
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “If substantial evidence supports the
decision, it should not be disturbed even if a different, reasonable interpretation could
have been made.” Id.

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III.

OBJECTIONS TO R&R
Thiry raises five objections to the R&R: (1) the Magistrate Judge failed to apply

Eighth Circuit precedent when recommending United did not abuse its discretion, (Pl.’s
Objs. to R&R (“Pl.’s Objs.”) at 2-3, June 12, 2017, Docket No. 45); (2) the Magistrate
Judge misapplied Corker v. Metropolitan Life Insurance Co., 281 F.3d 793, 799 (8th Cir.
2002), (Pl.’s Objs. at 6); (3) the Magistrate Judge improperly relied on the absence of
“objective” tests, (id. at 10); (4) the Magistrate Judge incorrectly asserted that Thiry
argued her doctors were entitled to special weight, (id. at 15); and (5) the Magistrate
Judge misapplied Pralutsky v. Metropolitan Life Insurance Co., 435 F.3d 833 (8th Cir.
2006), (Pl.’s Objs. at 15). The Court addresses Thiry’s objections below.

A.

Abuse of Discretion

Citing a series of Eighth Circuit cases, Thiry first argues the Magistrate Judge
erroneously applied the abuse-of-discretion standard when denying Thiry long-term
disability benefits. (Id. at 2-3.) According to Thiry, United’s decision is entitled to less
deference because United “cherry-picked, failed to analyze, or ignored key evidence” in
determining Thiry’s eligibility for long-term disability benefits. (Id. at 3.)
The Court does not disagree that United would be entitled to less deferential
review if “a serious procedural irregularity existed which caused a serious breach of the
administrator’s duty to the plan beneficiary,” including failure to “obtain all . . . hospital
records” or “provide . . . detailed reasons regarding the denial of . . . benefits.” Wald v.
Sw. Bell Corp. Customcare Med. Plan, 83 F.3d 1002, 1007 (8th Cir. 1996). But the

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Magistrate Judge applied the Eighth Circuit’s caselaw regarding procedural irregularity.
(R&R at 5-6 (acknowledging that serious procedural irregularities require “a less
deferential standard of review”).) And, contrary to Thiry’s assertions, the record shows
United considered the evidence Thiry submitted when it determined Thiry did not qualify
for long-term disability benefits under the LTD Policy. See Waldoch v. Medtronic, Inc.,
953 F. Supp. 2d 979, 1006 (D. Minn. 2013) (“The record reveals that [the plan
administrator] did consider all of the evidence submitted, even if not every item was
specifically mentioned in the notification letter.”); (see also Admin. R. at 1260-61, 132637, 1502-12).
The Court will, therefore, overrule Thiry’s objection, as the record does not reflect
serious procedural irregularities.

B.

Corker

Thiry next asserts the Magistrate Judge misapplied Corker when it relied on a
report written by Dr. Alfred Becker.

The Magistrate Judge cited Corker 2 for the

proposition that “the record supports Dr. Becker’s conclusions regarding Ms. Thiry’s
physical limitations, validating United’s decision to rely upon his opinion even to the
exclusion of Dr. [Carolyn] Kampa’s opinions.” (R&R at 12.)

2

Notably, the Magistrate Judge cited Corker in a citing parenthetical to Johnson v.
Metropolitan Life Insurance Co., 437 F.3d 809 (8th Cir. 2006) for the proposition that “[w]hen
there is a conflict of opinion between a claimant’s treating physicians and the plan
administrator’s reviewing physicians, the plan administrator has discretion to deny benefits
unless the record does not support denial.” (R&R at 12 (quoting Johnson, 437 F.3d at 814).)
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In Corker, the claimant argued a plan administrator’s “denial of benefits [was] not
based on substantial evidence” because the plan administrator “utilize[ed] reviewing
physicians who employed medical records rather than a physical examination to
determine that [the claimant] was ineligible for long-term disability benefits.” 281 F.3d
at 799. The Eighth Circuit disagreed, holding that
[w]here there is a conflict of opinion between a claimant’s treating
physicians and the plan administrator’s reviewing physicians, the plan
administrator has discretion to find that the employee is not disabled unless
“the administrative decision lacks support in the record, or . . . the evidence
in support of the decision does not ring true and is . . . overwhelmed by
contrary evidence.”
Id. (emphasis added) (alteration in original) (quoting Donaho v. FMC Corp., 74 F.3d 894,
901 (8th Cir. 1995)). The Eighth Circuit reasoned that because the claimant “provided
only subjective medical opinions, which [were] unsupported by objective medical
evidence, such as the results of diagnostic tests,” the plan administrator’s decision to
deny benefits was not unreasonable. Id.
Here, the Magistrate Judge correctly found the evidence Thiry presented – while
compelling – did not “overwhelm” the record such that United did not have discretion to
determine Thiry was not disabled. (See R&R at 10-11.) Like in Corker, Thiry provided
subjective evidence of disability, (Admin. R. at 2502-18, 2554-69), but did not provide
any diagnostic tests substantiating the extent of Thiry’s disability, (see, e.g., id. at 133537, 1510). Therefore, United had the discretion to rely on Dr. Becker’s report and the
Magistrate Judge did not err in its application of Corker. The Court will overrule Thiry’s
objection.

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C.

“Objective” Tests

Thiry also objects to the Magistrate Judge’s reliance on “objective” tests because
there is no objective measurement for limitations based on fibromyalgia. But a plan
administrator’s denial of long-term disability benefits is based on substantial evidence
where the claimant has diagnosed fibromyalgia, but fails to set forth “objective medical
evidence to support the [alleged] limitations” caused by the disease. Johnson, 775 F.3d
at 989.

Thus, the Eighth Circuit has not held fibromyalgia is a condition where

“objective evidence simply cannot be obtained, and it would be unreasonable for a[ plan]
administrator to demand the impossible.”

Pralutsky, 435 F.3d at 839 (“Given this

potential for varying impact of [fibromyalgia] among different patients, [the plan
administrator] was requesting objective information to verify that this claimant, whom it
acknowledged was afflicted with fibromyalgia, was disabled to the point that she could
not perform even sedentary or light-duty work.”); Schultz v. 3M Co., No. 15-3062, 2016
WL 3620738, at *4 (D. Minn. June 29, 2016) (“[T]o the extent that Schultz argues that a
diagnosis of fibromyalgia, in particular, is not amenable to objective medical
evidence, . . . . [the diagnosis of] ‘fibromyalgia may not lend [itself] to objective clinical
findings, [but] the physical limitations imposed by the symptoms . . . do lend themselves
to objective analysis.’” (quoting Boardman v. Prudential Ins. Co., 337 F.3d 9, 17 (1st Cir.
2003))).
The Court will overrule Thiry’s objection to the Magistrate Judge’s reliance on the
absence of objective tests.

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D.

Treating Physicians

Thiry next argues the Magistrate Judge improperly characterized Thiry’s
arguments to the Court. Thiry asserts she never argued her treating physician was
entitled to special weight. The Magistrate Judge did not characterize Thiry’s argument in
this way. (See R&R at 13.) Further, as set forth above, the record shows United
considered the opinions of Thiry’s treating physicians when it denied her claim for longterm disability benefits. (See Admin. R. at 1260-61, 1326-37, 1502-12.) The Court will
overrule Thiry’s objection.

E.

Pralutsky

Finally, Thiry objects to the Magistrate Judge’s application of Pralutsky to this
case. In particular, Thiry argues that under Pralutsky, contrary to the Magistrate Judge’s
recommendation, Thiry did provide objective clinical evidence in the form of documents
filled out by treating physicians and her husband’s statement.
First, reviewing the Magistrate Judge’s thorough analysis of Pralutsky, the Court
finds the Magistrate Judge properly applied Pralutsky to this case. (See R&R at 5-7.)
Second, it may be arguable whether the forms filled out by Thiry’s treating
physicians are objective evidence.

See Pralutsky, 435 F.3d at 840-41 (describing

objective evidence as including “clinical notes or answer[s to] specific questions about
[the doctor’s] assessment of [the claimant’s] prognosis and current functional abilities”);
(R&R at 12 (finding the questionnaires “consist[] of . . . Thiry’s own statements and Dr.
Kampa’s marking of a box indicating that each statement is ‘consistent with her medical
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conditon’”). But, as pointed out by the Magistrate Judge, the forms do not change the
outcome of this case. As set forth above, “[w]here there is a conflict of opinion between
a claimant’s treating physicians and the plan administrator’s reviewing physicians, the
plan administrator has discretion to find that the employee is not disabled unless . . .
[there is] ‘overwhelm[ing] . . . contrary evidence.’” Corker, 281 F.3d at 799 (emphasis
added) (quoting Donaho, 74 F.3d at 901). Here, there is no evidence United abused its
discretion in finding Thiry did not satisfy the LTD Policy’s definition of disabled. The
Court will, therefore, overrule Thiry’s objection.

ORDER
Based on the foregoing, and all the files, records, and proceedings herein, the
Court OVERRULES Plaintiff Marianne Thiry’s Objections [Docket No. 45] and
ADOPTS the Report and Recommendation of the Magistrate Judge dated May 30, 2017
[Docket No. 43]. Accordingly, IT IS HEREBY ORDERED that:
1.

Plaintiff Marianne Thiry’s Motion for Summary Judgment [Docket

No. 32] is DENIED.
2.

Defendants United of Omaha Life Insurance Company and Meridian

Behavioral Health, LLC Long-Term Disability Plan’s Motion for Summary Judgment
[Docket No. 29] is GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: September 19, 2017
at Minneapolis, Minnesota.

____________s/John R. Tunheim__________
JOHN R. TUNHEIM
Chief Judge
United States District Court
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