Rucker v. Ascension Health Long and Short Term Disability Plan

Filing 45

OPINION, MEMORANDUM AND ORDER re: 31 28 ORDERED that Defendant's Motion for Summary Judgment (Doc. No. 28) is granted. FURTHER ORDERED that Plaintiff's Motion for Summary Judgment (Doc. No. 31) is denied. A separate judgment in accordance with this Opinion, Memorandum and Order is entered this same date.. Signed by District Judge Henry E. Autrey on 9/27/13. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LAJUANDA RUCKER,

)
)
Plaintiff,
)
)
vs.
)
)
ASCENSION HEALTH LONG AND )
SHORT TERM DISABILITY PLAN, )
)
Defendant.

Case No. 4:11CV2104 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court are the parties’ cross-motions for summary
judgment, 1 [Doc. No.’s 28 and 31].
Plaintiff brings this cause of action pursuant to the Employee Retirement
Income Security Act (ERISA), 29 U.S.C. §§ 1001, et seq., alleging that Defendant,
the sponsor of the self-funded Short Term Disability (STD) plan which includes
St. John Providence Health System, (St. John Health), wrongfully terminated her
short term disability benefits to which she was entitled under the plan. Plaintiff

1

Defendant filed a Motion to Strike Plaintiff’s Motion for Summary Judgment [Doc. No.
36], based on Plaintiff’s failure to file the motion within the time prescribed by the Court.
Essentially, Plaintiff’s motion is the contra-position to Defendant’s Motion for Summary
Judgment. Because the Court’s consideration of this matter is a review of the administrative
record in this action, Defendant’s Motion, while accurately observing Plaintiff’s untimely filing,
will be denied.

also alleges that defendants’ wrongful termination of her short term disability
benefits precluded her from receiving long term disability benefits, to which she
claims she was also entitled. Plaintiff seeks recovery of short term disability
benefits for the remainder of the period during which she claims she was eligible
for such benefits, recovery of long term disability benefits from the date upon
which she claims she would have otherwise been eligible to receive such benefits,
and recovery of her attorney’s fees and costs incurred in this action, pursuant to 29
U.S.C. § 1132(g)(1)
Plaintiff and Defendant now move for summary judgment, arguing that
there are no genuine issues of material fact and that they are each entitled to
judgment as a matter of law.
Pursuant to Fed.R.Civ.P. 56(c), a court may grant summary judgment if the
information before the court shows that there are no material issues of fact in
dispute and that the moving party is entitled to judgment as a matter of law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The burden of proof is
on the moving party to set forth the basis of its motion, Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986), and the Court must view all facts and inferences in the
light most favorable to the non-moving party, Matsushita Elec. Indus. Co. v.
Zenith Radio, 475 U.S. 574, 587 (1986). Once the moving party shows there are
no material issues of fact in dispute, the burden shifts to the adverse party to set

forth facts showing there is a genuine issue for trial. Id. The non-moving party
may not rest upon its pleadings, but must come forward with affidavits or other
admissible evidence to rebut the motion. Celotex, 477 U.S. at 324. “[T]he filing of
cross motions for summary judgment does not necessarily indicate that there is no
dispute as to a material fact, or have the effect of submitting the cause to a plenary
determination on the merits.” Wermager v. Cormorant Twp. Bd., 716 F.2d 1211,
1214 (8th Cir.1983). Instead, each summary judgment motion must be evaluated
separately on its own merits to determine whether a genuine issue of material fact
exists and whether the movant is entitled to judgment as a matter of law. Husinga
v. Federal–Mogul Ignition Co., 519 F.Supp.2d 929, 942 (S.D.Iowa 2007).
Facts and Background
Defendant sponsors the self-funded STD Plan for the benefits of eligible
associates of its affiliated hospitals and health systems, including St. John
Providence Health System, (St. John Health). The STD Plan is an employee
welfare benefit plan governed by ERISA. In accordance with the terms of the STD
Plan, Defendant has delegated the discretionary authority to make benefit
determinations to Sedgwick, the Claims Administrator.
In determining the instant motions for summary judgment, the Court has
reviewed the evidence and information submitted in support of the parties’
respective positions and finds there to be no genuine issues of material fact in

dispute. A recitation of the relevant undisputed facts follows:
The STD Plan defines “Disability/Disabled” in relevant part as follows:
Disability/Disabled You are considered to be Disabled or to have a
Disability, if due to an Injury or Sickness that is supported by
objective medical evidence, you require and are receiving the regular
care and attendance of a Licensed Physician and you are following
the course of treatment recommended by the Licensed Physician. In
addition, one of the following is true:
You are unable to perform each of the Material Duties of your
Regular Occupation …
The STD Plan also includes the following definitions:
Material Duties means the essential tasks, functions and operations,
and the skills, abilities, knowledge, training and experience that are
generally required by employers from those engaged in a particular
occupation and that cannot be reasonably modified or omitted.
Regular Occupation means the activities that the Participant regularly
performed when the Participant’s Disability began. In addition to the
specific position or job the Participant holds with the Participant’s
Employer, Regular Occupation also includes other positions and jobs
for which the Participant has training and/or education to perform in
the Participant’s profession at the Participant’s employer or any other
employer.
Defendant also sponsors the self-funded, Ascension Health Long-Term
Disability Plan (“LTD Plan”) for the benefit of eligible employees of St. John
Health. The LTD Plan is an ERISA-governed welfare plan. Defendant has
delegated the discretionary authority to make LTD claims determinations to
Sedgwick. The LTD Plan runs consecutively with the STD Plan. To be eligible to

receive benefits under the LTD Plan, a participant must first satisfy a 181-Day
Elimination Period, during which time the Participant must be Disabled (and
therefore exhaust benefits available under the STD Plan). During the first 24
months, the LTD Plan defines “Disability/Disabled” the same as the STD Plan.
The LTD Plan states that in order to be Disabled, a Participant must be unable to
perform “each of the Materials Duties of the Participant’s Regular Occupation.”
The LTD Plan also defines the terms “Materials Duties” and “Regular
Occupation” the same as the STD Plan.
Plaintiff was employed as a Laboratory Assistant/Phlebotomist at St. John
Health. She performed computer order and data entry functions, processing
laboratory specimens and provided customer service in the St. John Health
laboratory. Plaintiff’s job duties require physical ability for extensive walking,
standing, bending, and lifting. Her job responsibilities included collecting blood
specimens from patients, preparing and transporting specimens to the laboratory
and ensuring specimen integrity. Plaintiff was also required to maintain inventory,
place orders, receive supplies and rotate stock in an orderly and timely manner.
Plaintiff’s initial claim for disability, based on Dr. Arthur Bouier’s diagnosis
of cervical radiculitis stated that her disability began on February 4, 2010.
Plaintiff’s last day of work at St. John Health was February 3, 2010.
Plaintiff was seen at St John Health by Dr. Gina Gora on January 12, 2010.

At that time, Plaintiff stated that she slipped, fell and hit the back of her head. She
felt dizzy afterwards and had complaints of pain in her neck, shoulders, back, and
legs. Dr. Gora found musculoskeletal tenderness and tightness of the trapezius
muscles bilaterally, but no bony tenderness of the neck, T-spine or L-spine to
palpation. Dr. Gora also noted tenderness of the paraspinous muscles. Dr. Gora
noted that Plaintiff was alert and in no acute distress. Plaintiff was referred to her
primary physician, Dr. Manhal Tobia.
At Dr. Tobia’s request, Plaintiff was examined by Dr. Adolfo Medicor on
January 14, 2010. Dr. Medicor noted a slight narrowing of the C5/C6 disc space
but no compression fracture or subluxation. He also noted mild to moderate
degenerative arthritis of the entire lumbar spine.
Beginning February 4, 2010, Plaintiff began to visit Dr. Arthur Bouier with
Ascending Home Physicians, complaining of pain in her neck and back. Dr.
Bouier completed Plaintiff’s Leave of Absence paperwork on February 11, 2010,
noting that Plaintiff would need to miss work for approximately 1-2 days per
month for follow up visits. Dr. Bouier stated that Plaintiff was not unable to
perform work of any kind or unable to perform any one or more of the essential
functions of her job at that time.
Dr. Bouier completed an Attending Physician Statement on February 11,
2010. Dr. Bouier stated that Plaintiff was unable to perform her regular job duties,

but was expected to return to work with full abilities on February 25, 2010. Dr.
Bouier stated that Plaintiff’s return to work plan will be determined after her EMG
and X-ray results. He also stated that Plaintiff’s prognosis was “guarded.”
At Dr. Bouier’s request, Dr. David Jackson with Rehabilitation Physicians,
Inc. examined Plaintiff on February 19, 2010, and documented the results of his
examination as follows:
The exam does show some slight flattening of the hypothenar
eminence, but no real weakness. The nerve conduction studies
revealed slightly low amplitude of the left ulnar motor nerve at 2.3
millivolts. The right ulnar motor nerve was normal at 6.1 millivolts.
The distal latencies were normal. The left ulnar sensory and left
median sensory distal latencies were borderline prolonged at 3.7, but
the amplitudes were well within normal limits. The right ulnar
sensory amplitude and distal latency were normal. The needle
examination sampling the anterior myotomes in the left upper
extremity was completely normal.
Dr. Jackson performed a Neuromuscular Electro diagnosis of Plaintiff on
February 19, 2010. The Electro diagnosis revealed an asymmetrically low ulnar
motor amplitude on the left. He also noted there was no evidence for cervical
radiculophathy based on the normal anterior myotomes in the left upper extremity.
Dr. Bouier provided Sedgwick with an updated report on or around
February 23, 2010, diagnosing Plaintiff with cervical radiculophathy and pushing
Plaintiff’s return to work date back to March 18, 2010. This report did not note
any restrictions of movement or limitations on daily activities.

On March 5, 2010, Sedgwick initially approved Plaintiff’s STD claim and
provided STD benefits to Plaintiff from February 24, 2010 onward. Sedgwick
then began collecting updated medical records from Plaintiff’s health care
providers.
Dr. Bouier provided Sedgwick with Disability Updates in March 2010,
extending Plaintiff’s return to work from March 18th to March 30th and March
30th to April 13th, thus determining she was disabled at that time, but
provided no information as to any restrictions in movement or daily activities
Plaintiff was unable to perform.
On March 22, 2010 and April 5, 2010, Sedgwick requested additional
information from treating specialist Dr. Teck Mun Soo, Clinical Director of the
Complex Spine Program and Chief of Neurosurgery at the Van Elslander
Neurosciences Institute, and Dr. Bouier.
On April 5, 2010, Dr. Bouier provided Sedgwick with another Disability
Update, extending Plaintiff’s return to work date from April 13, 2010 to May 4,
2010. Dr. Bouier generally stated that Plaintiff experienced limitations in
the “use of [her] hands.” Dr. Bouier states that Plaintiff had carpal tunnel
syndrome and post concussion syndrome. No additional restrictions or limitations
were noted.
On April 6, 2010, Dr. Bouier referred Plaintiff to ITD Physical Therapy for

treatment.
Dr. L. Donalunet of Occupational Health Partners submitted additional
medical records to Sedgwick on May 3, 2010, including an Examining Physician’s
Statement of Physical Capabilities. This report stated that Plaintiff was still unable
to work due to a neck, back, lower extremity injury.
Dr. Soo likewise submitted medical records to Sedgwick on May 4,
2010 of an examination and cervical spine x-ray, performed on March 11, 2010. In
connection with his examination, Dr. Soo noted some degenerative changes to the
cervical spine, as well as some stiffness of the neck muscles and pain in the
lumbar area. Dr. Teck Mun Soo observed that Plaintiff’s range of motion in her
cervical spine was normal, she experienced no arm or hand weakness or difficulty
with hand dexterity, and she stated that her symptoms were tolerable. For these
reasons, Dr. Soo recommended that Plaintiff reserve surgery as a treatment of last
resort and return to see him if she needed operative care. Dr. Soo described
Plaintiff’s activities of daily living in stating that she could stand for 10 minutes,
sit for one hour and walk for 10 minutes. Plaintiff also reported she experiences
problems when falling asleep and experiences waking up at night. Dr. Soo also
viewed X-rays of the lumbar spine which revealed anterolisthesis and
retrolisthesis of L2 on L3 and degenerative disc disease at L2-3, L3-4 and L5-S1.
A final diagnosis was given of: Congenital canal stenosis, Mild cord flattening,

Bilateral froaminal stenosis at C5-6, Degenerative disc disease of he cervical
spine, Anterolisthesis and retrolisthesis of L2 on L3, Degenerative disc disease at
L2-3, L3-4 and L5-S1. Dr. Soo provided no opinion as to whether Plaintiff could
return to work, or as to whether her symptoms limited her in any of her job
functions.
On May 25, 2010, Sedgwick received records from IDT Physical
Therapy related to Plaintiff’s physical therapy treatments. These records
contained an Initial Physical Therapy Evaluation for Plaintiff, completed by ITD
Physical Therapist Jeanette Saari (“Ms. Saari”) on April 22, 2010. This evaluation
noted that Plaintiff presents difficulties with sitting, walking, standing, getting up
from a chair, reaching out and overhead, reaching behind her back, sleeping,
squatting, lying down, looking up, going up and down stairs, and bending. It was
reported that Plaintiff had normal static and dynamic balance.. The goals of
physical therapy were to improve muscle strength, decrease pain in the neck and
left arm and improve range of motion.
That same day, Sedgwick received additional records from Dr. L. Russo at
Occupational Health Partners. These records demonstrated that Occupational
Health Partners had performed another return to work evaluation of Plaintiff on
May 19, 2010 and released Plaintiff to return to regular work beginning on May
20, 2010. Specifically, the clinical progress notes state, “RTW eval headaches

better . . .dizziness better . . .only taking Vicodin at night . . .In PT . . . Improved.”
Shortly thereafter, on June 8, 2010, Sedgwick requested updated records
from Dr. Bouier and from ITD Physical Therapy for the period of May 2010 to the
date of the request. After receiving no response to its request for updated medical
records and tests, Sedgwick informed Plaintiff on June 18, 2010 that it would be
unable to make a determination of her eligibility for continued benefits until it
received additional documentation to substantiate her claim of ongoing disability.
On July 1, 2010, Sedgwick finally received Plaintiff’s physical therapy
records, but no records were received from Dr. Bouier despite its repeated requests
to both Dr. Bouier’s office and to Plaintiff herself. On July 1, 2010, Plaintiff was
notified that her claim was being denied due to the fact that Sedgwick had not
been supplied with sufficient medical to substantiate the claim that Plaintiff
remained disabled.
On July 20, 2010, Dr. Bouier’s office finally sent additional medical records
for office visits on May 6, 2010 and May 20, 2010, however not much medical
information was available. Both notes are difficult to read and basically just state
that Plaintiff was following up for a refill of her Vicodin. The May 6, 2010 report
states that Plaintiff still complains of vertigo and neck pain. A diagnosis was
made of cervical myosotis, lumbar myosotis and cephalgia. In the May 20, 2010
report, Dr. Bouier indicates that Plaintiff’s condition remains unchanged.

On July 13, 2010, Sedgwick approved benefits through May 20, 2010 but
referred the case to its Nurse Case Manager to determine whether Plaintiff
remained eligible for benefits beyond May 20, 2010. Once again, Nurse Case
Manager Vargo approved benefits through June 26, 2010 so that Sedgwick could
make a final attempt to gather additional medical information from Plaintiff and
from Dr. Bouier. (AR 905-906).
On August 5, 2010, Sedgwick spoke with Plaintiff to gather additional
information to assist with the Nurse Case Manager’s determination of benefits
beyond June 26, 2010. Plaintiff stated that she performed stretching/strengthening
activities at home on days when she did not go to physical therapy. She said that
she was able to perform activities of self care and to drive herself to and from
therapy. She said she wore a back brace at times and said that she was only
treating with Dr. Bouier. She reported that her next visit was not until August
19th.
On August 12, 2010, Sedgwick once again requested medical treatment
records from Dr. Bouier’s office for the period of June 18, 2010 through the
present.
On August 16, 2010, Dr. Bouier provided a few additional medical notes
and records, including notes from office visits on June 17, 2010 and July 22, 2010
and an Attending Physician Statement dated August 12, 2010.

The June 17, 2010 office visit note merely notes that Plaintiff is continuing
physical therapy and Vicodin. In addition, in an attending physician statement
dated July 17, 2010, Dr. Bouier extended Plaintiff’s “return to work date” to
August 12, 2010 but stated that Plaintiff’s only restrictions were that she could not
perform heavy lifting over ten (10) pounds or overhead reaching. Plaintiff was not
restricted in repetitive movements, bending, walking, driving or typing. The July
22nd note states that the patient is following up for a refill of Vicodin. The note
states that examination taken on that date confirms the continued diagnosis of
radiculitis and myositis.
The August 12, 2010 Attending Physician Statement from Dr. Bouier notes
that Plaintiff was released to return to work as of August 12, 2012 without
restriction. However, as is noted above, Dr. Bouier last saw Plaintiff on July 22,
2010.
Sedgwick submitted Plaintiff’s entire file to its Nurse Case Manager, Ms.
Vargo, for review. After a thorough review, Ms. Vargo recommended that
benefits be approved through the date of the last office visit – July 22, 2010 – and
discontinued beyond that date.
Sedgwick notified Plaintiff on August 25, 2010 that she did not qualify for
additional STD benefits beyond July 22, 2010, because as of that date there was no
objective evidence that Plaintiff was “unable to perform each of the Material

Duties of [her] Regular Occupation.” Plaintiff’s sole treating physician had
opined that as of the date of the letter, Plaintiff was no longer Disabled.
Sedgwick also advised Plaintiff of her right to appeal the determination within 180
days, and provided an appeal packet of information. Prior to this denial, 167 days
had passed since Plaintiff left work on Disability. Consequently, Plaintiff was not
eligible to receive LTD benefits, as she did not satisfy the LTD Plan’s Elimination
Period. Sedgwick further determined that, based upon the same medical records
reviewed in connection with Plaintiff’s STD claim, Plaintiff did not meet the LTD
Plan’s definition of Disabled – which required objective medical evidence
establishing that she was unable to perform each of the material duties of her job.
Plaintiff submitted an appeal of the denial of additional STD benefits, dated
September 29, 2010. Sedgwick received the appeal on or around October 11,
2010.
In support of her appeal, Plaintiff listed Dr. Bouier as her only treating
physician. Plaintiff also generally stated that she was still unable to return to
work. She attached a note from Dr. Bouier, dated September 1, 2010, which stated
“Patient is totally disabled to work for an indefinite period. 9/4/2010-10/31/2010
estimate.”
On October 28, 2010, Sedgwick received notice that Plaintiff was
represented by her current counsel. Plaintiff’s counsel requested and Sedgwick

granted Plaintiff an additional 30 days to submit any documentation that Plaintiff
wished to have considered in connection with the appeal.
On November 12, 2010, Plaintiff’s attorney requested a copy of the claims
file from Sedgwick.. The claims file was sent to counsel on around November 24,
2010.
On November 15, 2010, Sedgwick received a progress note from Dr. Dewit
Teklehaimanot . This record evidenced that Dr. Teklehaimanot had conducted a
physical examination of Plaintiff on October 12, 2010, and had observed the
following:
The patient is walking independently without any assisted device. She
is not using a cane or walker. Her balance is good. Her mobility is
good. She is able to get up from the chair and stand without any
difficulties and also able to get on to the table without any
difficulties.
Dr. Teklehaimanot further noted:
She does have significant tenderness in palpating the soft tissues over
the cervical and paraphinal muscles and also the suboccipital muscles
on the left side. There is slight radiation of pain into the temples on
the left side compared to the right. The patient also has significant
limitation of range of motion of the lumbar spine. Her flexions were
limited to 60 degrees, extension limited to 10 degrees, side bending to
the right and left limited to 10 degrees, rotation to the right and left
limited to 10 degrees. Her fingertip to the floor test shows that the
patient has limitations of range of motion the distance being 40 cm.
There is spasm in the lumbar paraspinal muscles during these
examinations.
Dr. Teklehaimanot did not offer any opinion as to whether Plaintiff could return to

work, or perform her job duties.
On November 29, 2010, Sedgwick granted Plaintiff’s counsel a further 30day extension of time up to and including December 29, 2010, to submit any
additional documentation relevant to determining Plaintiff’s appeal.
On December 1, 2010, counsel submitted the same medical records that
had already been examined in connection with the initial claims determination,
along with the report from Dr. Teklehaimanot referenced above .
On December 27, 2010, Sedgwick referred Plaintiff’s appeal to Network
Medical Review Co., which remitted Plaintiff’s medical records to independent
specialist advisor Dr. Jamie Lee Lewis for review. Dr. Lewis, who is Board
Certified in physical medicine, rehabilitation, and pain medicine, reviewed
Plaintiff’s medical records, job description, and claim log. Dr. Lewis also
contacted Drs. Bouier, Tobia, Teklehaimanot, and Soo twice on December 28 and
29, 2011 but was unable to reach them. Dr. Lewis left messages including his call
back number for each of the physicians but did not receive return calls. Following
his review, Dr. Lewis concluded that Plaintiff was not disabled from
her regular unrestricted job as of July 23, 2010. Specifically, Dr. Lewis noted as
follows:
Medical documentation identifies the patient has sustained a slip and
fall injury and is reporting cervical and lumbar pain. Physical
examination is primarily focused on cervical spine. Imaging studies

demonstrate degenerative changes without high-grade central
foraminal stenosis. Physical examination does not demonstrate clinical
weakness that would be expected to compromise performance of job duties. Range
of motion is noted to be in functional ranges. From a physical medicine and
rehabilitation perspective, the objective findings do not support the presence of a
musculoskeletal condition that would prevent the claimant’s ability to perform her
regular occupation or support [that] performance of her regular occupation would
place the claimant at increased risk of harm or injury. As such, from a physical
medicine and rehabilitation perspective, the patient is not disabled from her regular
unrestricted job as of 07/23/10.”
On January 8, 2011, Sedgwick notified Plaintiff that based upon its medical
file review and the independent physician review completed by Dr. Lewis,
Sedgwick had determined that Plaintiff was not eligible for continuing STD
benefits under the STD Plan as of July 23, 2010 and upheld the denial of benefits
on appeal.
Sedgwick sent Plaintiff a letter which provided: “although some findings are
referenced, none are documented to be so severe as to prevent Ms. Rucker from
performing her job duties as a Laboratory Assistant from July 23, 2010 through her
return to work date.” Sedgwick also informed Plaintiff of her right to bring a civil
action under Section 502(a) of ERISA.
Plaintiff filed this lawsuit on September 22, 2011, alleging a single claim for
additional disability benefits under Section 502(a) of ERISA.
Standard of Review
In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989), the Supreme

Court established the standard of review applicable to ERISA benefit claims. In
Firestone, the Court determined that such claims are to be reviewed de novo unless
the plan gives the “administrator or fiduciary the discretionary authority to
determine eligibility for benefits or to construe the terms” of the plan. Id. at 115. If
the plan grants the administrator or fiduciary such discretionary authority, the
Court must determine whether the administrator abused its discretion in reaching
its decision. See id.; see also Hackett v. Standard Ins. Co., 559 F .3d 825, 829–30
(8th Cir.2009).
In reviewing for abuse of discretion, the Court must affirm the plan
administrator’s action under the plan unless it is arbitrary and capricious. Manning
v. American Republic Ins. Co., 604 F.3d 1030, 1038 (8th Cir.2010). To determine
whether a plan administrator’s decision was arbitrary and capricious, the Court
examines whether the decision was reasonable. Id. Any reasonable decision will
stand, even if the Court would have determined the matter differently as an original
matter. Id.
The Court will review the plan administrator’s decision to terminate and/or
deny plan benefits for abuse of discretion
Discussion
In reviewing for an abuse of discretion, the plan administrator's decision
should be reversed only if it is arbitrary and capricious. Green v. Union Sec. Ins.

Co., 646 F.3d 1042, 1050 (8th Cir.2011); Midgett, 561 F.3d at 896. To determine
whether a plan administrator’s decision was arbitrary and capricious, the Court
must look to whether the decision to deny benefits was supported by substantial
evidence, “meaning more than a scintilla but less than a preponderance.” Midgett,
561 F.3d 897 (internal quotation marks and citation omitted). The Court should not
disturb the decision if it is supported by a reasonable explanation, even though a
different reasonable interpretation could have been made. Id. “[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.” Id. (internal quotation marks and citations omitted) (emphasis in
original). For the following reasons, Defendant’s decisions here were reasonable
and supported by substantial evidence.
During initial review, Sedgwick had before it medical evidence from which
it found that Plaintiff was entitled to STD until the time when no further medical
documentation was forthcoming. Plaintiff’s own treating physician originally
determined that Plaintiff was able to return to work, (albeit his date was beyond his
last visit, and the date which Plaintiff was last disabled). Plaintiff had the
opportunity to provide further medical records which would support her further
disability. Plaintiff was unable to produce additional documentation.
Notwithstanding that Dr. Bouier determined Plaintiff was no longer disabled, he

did a complete turn around with no further clinical data to support his later
conclusion that Plaintiff was indeed disabled. Such conclusory opinion not only
detracts from the treating physician’s later opinion, but entitles it to no greater
deference than would ordinarily be given to a treating physician. Based on the
conflicting information provided by Dr. Bouier, it was not unreasonable for
Sedgwick to rely on the records before it and lack of further evidence of continued
disability.
Plaintiff’s argument that the reviewing physician did not examine her does
not require reversal of the decision. Dr. Lewis and Nurse Vargo reviewed the
entire medical record, as well as Plaintiff’s physician’s recommendation. Dr.
Bouier’s finding of disability was not documented subsequent to his determination
that Plaintiff was able to return to work. The reviewer’s determination accurately
represent Plaintiff’s medical record and adequately address the evidence supporting
her claim for disability. The reviewer’s findings did not demonstrate that Plaintiff
was unable to perform her job duties.
Likewise, Plaintiff’s claim that the physician reviewers’ opinions were given
more weight than her treating physician does not require a finding of abuse.
The Supreme Court has recognized that treating physicians are not automatically
entitled to special weight in disability determinations under ERISA:
Plan administrators may not arbitrarily refuse to credit a claimant’s

reliable evidence, including the opinions of a treating physician. But,
we hold, courts have no warrant to require administrators automatically to accord
special weight to the opinions of a claimant's physician; nor may courts impose on
plan administrators a discrete burden of explanation when they credit reliable
evidence that conflicts with a treating physician's evaluation.

Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003).
In Weidner v. Fed. Express Corp., 492 F.3d 925, 930 (8th Cir. 2007), the
Eighth Circuit applied Nord to hold that a plan administrator did not abuse its
discretion in denying a claimant total disability benefits despite a treating
physician’s opinion that the claimant was “fully disabled.” The Court emphasized
that consultative specialists had concluded that the medical evidence did not reflect
total disability and that the claimant’s annual MRI scans indicated that her
condition had “progressed very little during the relevant period.” Id. Furthermore,
in Dillard’s Inc. v. Liberty Life Assurance Co. of Boston, 456 F.3d 894, 899 (8th
Cir.2006), the Court rejected the contention that the plan administrator abused its
discretion when it “credited [a reviewer’s] analysis over [a primary care
physician’s] conclusions because [the reviewer] did not physically examine [the
claimant].” The Court noted that “[w]e have held ... that a plan administrator has
discretion to deny benefits based upon its acceptance of the opinions of reviewing
physicians over the conflicting opinions of the claimant’s treating physicians unless
the record does not support the denial.” Id. at 899-900 (citing Johnson v. Metro.

Life Ins. Co., 437 F.3d 809, 814 (8th Cir.2006); Coker v. Metro. Life Ins. Co., 281
F.3d 793, 799 (8th Cir.2002)). See also, Midgett, 561 F.3d at 897.
In light of the conflicting medical opinions from Dr. Bouier and the reviews
by Dr. Lewis and Nurse Vargo, Defendant’s continued denial of Plaintiff’s
disability claim was not arbitrary and capricious. Midgett, 561 F.3d at 898; see also
Coker, 281 F.3d at 799 (denial of benefits not unreasonable where subjective
medical opinions were not supported by objective medical evidence, and objective
medical evidence showed no disabling medical condition). Indeed, in view of Dr.
Lewis’ comprehensive review of all of the evidence submitted, a reasonable person
could have reached a similar decision. Midgett, 561 F.3d at 897. Defendant
therefore did not abuse its discretion in its decision to affirm the termination of
Plaintiff's short term disability benefits. Id. at 898.
Plaintiff also claims that Defendant abused its discretion by picking and
choosing what evidence upon which to rely in making its adverse determination.
Plaintiff avers that such selective reference is evidenced by Defendant’s failure to
acknowledge Plaintiff’s specific job description. The evidence and information
reviewed by Defendant in making its final decision included the type of job
Plaintiff had and her daily activities in that job. In its final determination on
appellate review, however, Defendant was not required to discuss the specific
evidence submitted by Plaintiff. Midgett, 561 F.3d at 896 (citing 29 C.F.R. §

2560.503–1(j)). As such, the failure of Defendant to discuss the specific details of
Plaintiff’s written description of what is required to be an employee at St. John
Health does not detract from the reasonableness of Defendant’s determination to
deny Plaintiff disability benefits.
Finally, because plaintiff's disability status terminated effective July 22,
2010, Plaintiff did not meet the 181–day elimination period of continuous disability
in order to become eligible for long term disability benefits. The decision to deny
Plaintiff long term disability benefits on account of her inability to meet the Plan's
required elimination period was reasonable. Butts v. Continential Cas. Co., 357
F.3d 835, 839 (8th Cir.2004).
Conclusion
For all of the foregoing reasons, there was substantial evidence to support
Defendant’s decision to terminate Plaintiff’s short term disability benefits effective
July 22, 2010, and to deny Plaintiff’s request for long term disability benefits. As
such, Defendant did not abuse its discretion in its determinations.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion for Summary
Judgment (Doc. No. 28) is granted.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary
Judgment (Doc. No. 31) is denied.

A separate judgment in accordance with this Opinion, Memorandum and
Order is entered this same date.
Dated this 27th day of September, 2013.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE