Moore v. Ascension Long Term Disability Plan

Filing 49

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment (ECF No. 24) is GRANTED, and Plaintiff's Complaint is DISMISSED with prejudice. An appropriate Order of Dismissal will accompany this Memorandum and Order. IT IS FURTHER ORDERED that Plaintiffs Motion for Summary Judgment (ECF No.31) is DENIED. Signed by District Judge Jean C. Hamilton on July 1, 2016. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MARIA DOMENICA MOORE,
Plaintiff,
v.
ASCENSION LONG-TERM DISABILITY
PLAN,
Defendant.

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No. 4:15CV328 JCH

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MEMORANDUM AND ORDER
This matter is before the Court on Defendant Ascension Long-Term Disability Plan’s
Motion for Summary Judgment, filed March 4, 2016, and Plaintiff Maria Moore’s Motion for
Summary Judgment, filed March 16, 2016. (ECF Nos. 24, 31). The motions are fully briefed
and ready for disposition.
BACKGROUND
At all relevant times Plaintiff Maria Moore was employed as a Medical Biller at St. John
Medical Resource Group, a part of St. John Providence Health System in Warren, Michigan.
(Defendant’s Statement of Uncontroverted Material Facts in Support of its Motion for Summary
Judgment (“Defendant’s Facts”), ¶¶ 1, 15, citing AH 223).1 As a Medical Biller, Plaintiff’s
responsibilities included providing detailed analysis of accounts after initial billing, in order to
ensure timeliness of payments, maximum collectability, and account resolution. (AH 310).
Plaintiff also provided assistance and feedback to billing clerks, as necessary. (Id.).
Ascension Health Alliance d/b/a Ascension (“Ascension”) was the sponsor and
administrator for the self-funded Long-Term Disability Plan (“LTD Plan”) available to eligible
1 Citations designated AH refer to the administrative record filed with the Court on October 16,
2015, and marked AH 1 – AH 1547.
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employees of St. John Providence Health System. (Defendant’s Facts, ¶¶ 1, 3, citing AH 12, 55,
106).1 In accordance with the terms of the LTD Plan, Ascension delegated the discretionary
authority with regard to claims administration to Sedgwick Claims Management Services, Inc.
(“Sedgwick”), the Claims Administrator. (Id., ¶¶ 4-6, citing AH 8, 15-18, 100, 122).
The LTD Plan contains the following relevant definitions:
1.11 Disability or Disabled means that due to an Injury or Sickness which is
supported by objective medical evidence,
(a)
the Participant requires and is receiving from a Licensed Physician
regular, ongoing medical care and is following the course of treatment
recommended by the Licensed Physician; and….
(1)

The Participant is unable to perform:
(A) during the first 24 months of Benefit payments, or eligibility
for Benefit payments, each of the Material Duties of the
Participant’s Regular Occupation2; and
(B) after the first 24 months of Benefits payments, or eligibility for
Benefits payments, any work or service for which the
Participant is reasonably qualified taking into consideration the
Participant's training, education, experience and past earnings.3

1.26 Material Duties means the essential tasks, functions and operations, and
the skills, abilities, knowledge, training and experience generally required by
employers from those engaged in a particular occupation that cannot be
reasonably modified or omitted.
1.40 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. If the Participant’s Regular
1

The LTD Plan is an employee welfare benefit plan, governed by the Employee Retirement
Income Security Act (“ERISA”). (Defendant’s Facts, ¶ 2).
2 Thus, during the first 24 months of Disability, an LTD Plan participant must be unable to
perform the activities she regularly performed when her Disability began, a standard known as
the “Own Occupation” standard. (Defendant’s Facts, ¶ 12, citing AH 8, 9, 11, 13, 132).
3 Thus, after the first 24 months of Disability, an LTD Plan participant must be unable to
perform “any work or service for which the Participant is reasonably qualified,” a standard
known as the “Any Occupation” standard. (Defendant’s Facts, ¶ 13, citing AH 8).
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Occupation involves the rendering of professional services and the Participant is
required to have a professional or occupational license in order to work, the
Participant’s Regular Occupation is as broad as the scope of his or her license.
(AH 8, 11, 13).
Plaintiff stopped working on or around November 16, 2011. (Defendant’s Facts, ¶ 17,
citing AH 158). On November 17, 2011, Dr. Andres Munk, M.D., an orthopedic spine surgeon,
performed anterior cervical decompression and fusion with instrumentation at the C5-C6 level.
(Id., ¶¶ 18, 20; AH 172-175). On December 1, 2011, Dr. Munk entered a Medical/Progress
Report, stating that two-weeks postoperative Plaintiff stated that she was feeling good, and most
of her right arm pain was gone. (AH 150). Dr. Munk noted that Plaintiff’s incision was healed
well, she only rotated about 20 degrees in each direction, and neurologically she was intact.
(Id.).
In a letter dated December 15, 2011, Sedgwick acknowledged receipt of Plaintiff’s claim
for Short-Term Disability (“STD”) benefits. (AH 141). At Sedgwick’s request, Dr. Munk
completed an Attending Physician Statement (“APS”) on December 22, 2011, in which he noted
that Plaintiff’s primary diagnosis was cervical radiculopathy. (AH 158). Dr. Munk indicated
Plaintiff was unable to work from November 17, 2011, through approximately February 17,
2012. (Id.). On December 30, 2011, Sedgwick informed Plaintiff that her STD benefits were
approved as of December 1, 2011. (AH 186). The letter informed Plaintiff that in order to
determine her benefits beyond January 11, 2012, Sedgwick would require updated objective
medical records from Dr. Munk, to document Plaintiff’s physical restrictions preventing her from
performing the substantial material duties of her occupation. (Id.).
On January 12, 2012, Dr. Munk completed a Medical/Progress Report, in which he
indicated that Plaintiff’s biggest complaint was her low back. (AH 190). Plaintiff stated her pain

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was “excruciating”, and she wanted to schedule a surgical intervention.

(Id.).

Dr. Munk

continued as follows:
PHYSICAL EXAMINATION:
Her previous incision around the cervical
spine is healed and is otherwise benign. She is relatively stiff in the neck and she
needs to work with physical therapy still. As far as her low back is concerned her
abdomen is flat. She has a Pfannenstiel type of incision from her previous tummy
tuck.
RADIOGRAPHS: X-rays of her cervical neck show a one-level ACDF in
perfect position. There is no back out or failure or adjacent level disease.
IMPRESSION:

Discogenic type pain at L4-L5 and L5-S1.

PLAN:
I will set her up to see Dr. Hares to decide if we can do a surgical
approach after a tummy tuck procedure. I will also get an updated MRI and I will
see her back in two to three weeks.
(Id.). Dr. Munk completed another Medical/Progress Report on January 26, 2012, in which he
indicated that Plaintiff has obvious discogenic changes at L4-L5 and L5-S1, with some foraminal
stenosis at each of those levels. (AH 205). Dr. Munk indicated his plan to arrange for a surgical
intervention, once Plaintiff was cleared by Dr. Hares. (Id.).
On February 2, 2012, Dr. Mustafa A. Hares, a bariatric surgeon, reported to Dr. Munk on
his surgical consult. (AH 217-218).4 Dr. Hares reported Plaintiff was in serious pain, and
wanted to go forward with surgery as soon as possible. (AH 218). He concluded Plaintiff was a
very good candidate for an anterior lumbar interbody fusion of L4-5 and L5-S1. (Id.).
On February 3, 2012, Sedgwick acknowledged receipt of Plaintiff’s claim for LTD
benefits. (AH 194). In a letter dated February 27, 2012, Sedgwick approved Plaintiff’s claim for
LTD benefits, beginning February 15, 2012. (AH 235-236). The letter advised Plaintiff that in
order to qualify for future benefits, she must comply with all relevant Plan provisions, be under

4 This report apparently was sent to Sedgwick as well.
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the regular care of a licensed physician, and continue to be unable to perform the material and
substantial duties of her own occupation. (AH 235).
Dr. Munk performed anterior lumbar fusion on February 22, 2012, and posterior lumbar
fusion on February 24, 2012. (AH 256-260). Plaintiff had an MRI on March 22, 2012, due to
her complaint of new pain extending down both legs. (AH 261-262). The MRI revealed no
finite recurrent disc herniation, but mild effacement of the anterior thecal sac at L5-S1 on the
left, and mild facet arthrosis at L4-5. (Id.). Dr. Munk met with Plaintiff on March 28, 2012,
reviewed those findings, and concluded that Plaintiff’s continuing discomfort was “just more
recovery.” (AH 254). Confusingly, he apparently completed one Patient Disability Statement on
March 28, 2012, indicating Plaintiff was disabled until April 18, 2012, and a second that same
date indicating the end of her disability period was “to be determined.” (AH 239, 240).
On May 22, 2012, Dr. Munk completed an evaluation of Plaintiff at Sedgwick’s request.
He stated that Plaintiff’s primary diagnosis was lumbar radiculopathy, and her secondary
diagnosis was cervical radiculopathy. (AH 265-267). Dr. Munk approximated Plaintiff’s return
to work date as July 13, 2012. (Id.).
From March 6, 2012, through August 23, 2012, Plaintiff continued to follow-up with Dr.
Munk for her anterior-posterior fusion, with Dr. Jeffrey D. Mendelson for her previous shoulder
surgery, and with Dr. Anthony J. Oddo, D.O., regarding her pain management. (Defendant’s
Facts, ¶ 28, citing AH 271-279, 303-305, 365-366, 382-383).

Plaintiff further attended

numerous physical therapy sessions between June 26, 2012, and September 4, 2012. (AH 342360).5 On September 11, 2012, Dr. Munk completed an APS, noting Plaintiff’s current course of
treatment included pain management, medication, and follow-up, and stating her return to work
date was undetermined, pending pain management progress. (AH 368).
5 Plaintiff’s physical therapist, Bernard F. Tonsor, described her plan of care as “increase
abdominal strength.” (AH 342-360).
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Plaintiff returned to Dr. Munk on September 12, 2012, who noted she was ambulating
with the assistance of a single prong cane, her upper and lower extremity strength was intact, she
had no neurological deficits, and no atrophy of the extremities. (AH 386). Dr. Munk further
noted x-rays of Plaintiff’s cervical and lumbar spine showed that her fusions were in good
position, without any back out or failure, but that there was a small disc bulge at C3-C4
(unchanged from her prior MRI). (Id.).
Plaintiff continued to meet with Dr. Oddo for pain management between September 24,
2012, and October 26, 2012. (Defendant’s Facts, ¶ 32, citing AH 446-448). She further
continued physical therapy from September 17, 2012, through November 8, 2012. (Id., ¶ 34,
citing AH 399-417). On November 8, 2012, physical therapist Tonsor noted that Plaintiff
reported feeling much stronger overall, and that she had increased functional mobility with
performance of exercises. (Id., citing AH 399). He discharged her at that time, however, for
having reached a plateau in therapy gains. (Id.).
In a letter dated October 26, 2012, the Social Security Administration notified Plaintiff
that she qualified for Social Security Disability benefits, beginning November, 2011. (AH 421424). As a result, Plaintiff’s LTD benefits were reduced. (AH 426).
Plaintiff continued to meet with Dr. Oddo for pain management from November 19,
2012, through March 28, 2013. (Defendant’s Facts, ¶¶ 38-39, citing AH 443-444, 530-535).
She further continued physical therapy from December 3, 2012, through February 5, 2013, with
the plan of care cited as “work on posture.” (AH 455-460, 483-492, 497-508).
On January 9, 2013, Dr. Munk completed a medical/progress report on Plaintiff, saying
her MRI “actually looks very perfect.” (AH 534). He further noted that she continued to
complain of both neck and low back pain, but that her lumbar spine showed anterior and

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posterior cages in perfect position without back out or failure. (Id.). Dr. Munk concluded as
follows:
This is a very challenging individual. She had complaints both of significant neck
and low back pain status post decompression and fusions. I do not have any other
surgical options for her. She is going to continue with pain management at this
point. She may also have some fibromyalgia and we talked to her about maybe
seeing a rheumatologist at some point. She would rather hold off on that. We
also talked about a spinal cord stimulator just for her low back symptoms as a last
resort, but she also is not interested in that as of yet. I will see her back in about
four months to see how she is coming along.
(Id.)
On February 28, 2013, Sedgwick requested information from Dr. Charles Huebner, a
rheumatologist. (Defendant’s Facts, ¶ 42; AH 515). The form was returned, stating as follows:
“No rheumatic condition warranting disability. We diagnosed fibromyalgia and do not write for
disability for it.” (Id.).
Dr. Munk completed another APS for Sedgwick on April 25, 2013. (AH 541-543). He
noted her primary diagnosis was lumbar radiculopathy, and her secondary diagnosis was
sacroiliitis. (AH 541). Dr. Munk concluded Plaintiff remained totally disabled, with additional
restrictions including no prolonged standing/sitting, no prolonged walking, no lifting, bending,
stooping, no pushing or pulling. (AH 542-543). Finally, Dr. Munk approximated her return to
work date as October 10, 2013. (AH 543).
Plaintiff visited Dr. Oddo four more times from April 25, 2013, through October 24,
2013. (AH 553-554, 556-557, 638-639, 641-642). Plaintiff’s chief complaints remained neck
and back pain. (AH 553, 556, 638). Dr. Oddo consistently noted her strength in her lower and
upper extremities as 5 out of 5, however. (AH 553, 556, 638, 641).
On July 22, 2013, Sedgwick informed Plaintiff that effective February 14, 2014, she
would exhaust her benefits under the Own Occupation definition of Disability. (Defendant’s
Facts, ¶ 44, citing AH 571-572). Thereafter, in order to be eligible for benefits, Plaintiff would
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have to be disabled from Any Occupation. (Id.). In an effort to gather more information,
Sedgwick requested that Plaintiff complete a Daily Activities Review. (AH 594-599).
Plaintiff returned to Dr. Munk on October 23, 2013. (Defendant’s Facts, ¶ 47, citing AH
640). He noted that Plaintiff still had neck and low back pain, “but part of this is probably more
fibromyalgia related.” (AH 640). Dr. Munk continued as follows:
RADIOGRAPHS: Her x-rays show a one-level ACDF in good position
without back out or failure. When compared to prior films there is no change.
We did get a postoperative MRI, which looks excellent. Her x-rays of her lumbar
spine show an anterior-posterior fusion L4-S1. Everything there also looks good
and similar. Her postoperative MRI of that area also shows a nice decompression
and no adjacent level disease….
PLAN:
The patient most likely has just fibromyalgia. She will follow up
with pain management. I need to see her back on an annual basis.

(Id.).
On December 17, 2013, Sedgwick requested that Plaintiff have an Independent Medical
Examination (“IME”) with Dr. David M. Gast, M.D., board certified in physical medicine and
rehabilitation. (AH 647, 654). Dr. Gast completed the IME on January 21, 2014, and concluded
in relevant part as follows:
History of Present Illness: This is a 54-year-old right-handed female who
presents for an independent medical opinion. She presents with multiple
complaints. She states that she hurts throughout her entire spine, from the base of
her head, all the way down her body. She has neck pain that radiates to her
shoulders. She has numbness in the right leg when she sits for a long time. She
has numbness and tingling in her hands. The spine pain feels like someone is
twisting her spine and then bending it to try and break it. She has a constant low
back pain with intermittent burning sensations. She’s been told she has bursitis in
her left hip. She has cramping in her feet. She’s been told that she has arthritis in
her back, but no pinched nerve has been found. She has been told she has
inflammation of her sacroiliac joint. For treatment, she has had multiple sessions
of physical therapy, a fusion at C5 and C6. In the lumbar spine she’s had a fusion
from L4-S1. Her current plan is to be tested for spinal cord stimulator. She has
had EMGs and multiple MRI tests for workup.
Currently, she states that she has a lot of difficulty bending. She had to give up
bowling and playing with her grandkids because of her pain issues. Cooking has
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been very limited because of the difficulty she has standing for long periods. She
also mentions that she has difficulty using a can opener and opening bottles. She
uses a shower chair to avoid standing in the shower. She has difficulty reaching
to shave her legs and reaching overhead to dry her hair. She has difficulty folding
clothes and states that her husband does a great deal of the housework and
cooking. She also states that driving aggravates her back, as does riding as a
passenger. She is currently using a 2002 PT cruiser with an automatic
transmission. She ambulates with a cane, but has used a walker in the past. She
states that she does not do any of the outdoor activities and always washes her
vehicle with an automatic car wash….
Discussion: Overall, she moved around very well. Her grip strength testing did
show some inconsistencies, but is in the average range for a sedentary female
worker….
She drove herself in her PT cruiser….
She regularly uses a cane. She has used a walker and a back brace in the past, but
not currently.
Her most recent job as a medical biller primarily had her seated in front of a
computer screen entering and gathering information. However, she would
occasionally have to get up for printing supplies, mail, and to answer billing
questions for the doctors or patients. One of her jobs did require her to drive to
the post office. She could not be specific on the weight of a full box of billing
forms.
The claimant states that she is unable to perform activities such as cutting grass,
raking leaves, shoveling snow, and vacuuming because of her low back pain and
shoulder problems. She does do some dishes by hand, preferring not to
repeatedly bend to place things in the dishwasher. She does fold laundry, but
states her husband carries the baskets. She also states her husband does the
vacuuming.
Objectively, I did not find any focal deficits in strength. Her grip strength is
average. Her range of motion is sufficient to perform the medical billing job that
she describes to me. The only impediment to her returning to work is her
subjective complaints of pain. On a social level, the fact that she is on Social
Security Disability, her husband is retired and they have relocated to Northern
Michigan, are additional impediments to her returning to work. I do agree that
she was impaired from working during the healing process after her cervical and
lumbar fusions. However, at this point, these are well healed and stable. The
rotator cuff surgeries are well healed, also and would not prevent her from
returning to her medical billing occupation.
(AH 651, 653-654).

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In a letter dated February 11, 2014, Sedgwick denied Plaintiff’s claim for continuing
LTD benefits, stating she did not satisfy the definition of disability beyond February 14, 2014.
(AH 655-657). After delineating the LTD Plan’s definitions of disability and the findings of Dr.
Gast, the letter stated as follows:
Although we are aware that you have been previously awarded Social Security
Disability benefits, current medical do not indicate that you continue to be
disabled from all work activity. Based on this review it has been determined that
you do not meet the definition of disability beyond 02/14/2014. Accordingly, we
reached the decision that you do not qualify for benefits under the terms of the
Ascension Health Long Term Disability Plan.
(AH 656).
On March 12, 2014, Plaintiff met with Dr. Herman Ruiz, M.D., of Michigan Spine &
Pain. (AH 668-670). It was decided that Plaintiff might benefit from a trial of a Spinal Cord
Stimulation. (AH 669). Dr. Ruiz noted that if Plaintiff had a good experience with the trial,
including significant improvement in terms of pain and/or function, he then would refer her to a
neurosurgeon for permanent implantation of the stimulator. (AH 670). Plaintiff returned to Dr.
Ruiz on March 18, 2014, when he noted that she reported approximately 50% pain relief. (AH
671). Plaintiff further reported interest in having the permanent implant done. (Id.).
On April 16, 2014, Plaintiff visited Dr. R. Blaine Rawson, M.D., of Neurosurgical Spine
Specialists, who recommended a T7-8 laminectomy with placement of spinal cord stimulator on
her left side. (AH 675-676). Plaintiff then submitted her formal appeal of Sedgwick’s decision
on May 14, 2014, attaching her medical records and explaining that she had the new surgery
scheduled for May 20, 2014.6 (Defendant’s Facts, ¶ 51-52, citing AH 663-677).7 On May 27,

6 Plaintiff’s May 20, 2014, surgery apparently was postponed due to her brother’s illness. (AH
738).
7 Plaintiff’s primary care physician, Dr. Christopher D. Milan, D.O., submitted additional
medical records on May 28, 2014, and Plaintiff herself submitted additional records from
Michigan Spine and Pain on May 30, 2014. (Defendant’s Facts, ¶¶ 55, 56, citing AH 700-737).
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2014, John Paul Jones, Ph.D., a licensed psychologist, submitted a letter to Sedgwick on
Plaintiff’s behalf, in which he opined in relevant part as follows:
Maria D. Moore was seen for initial evaluation on October 30, 2012. She has
remained in treatment since that time. Based on my initial evaluation and
subsequent treatment of her, she was and has been diagnosed with Adjustment
Disorder with Mixed Anxiety and Depressed Mood, ICD-9-CM 309.28 and Pain
Disorder associated with both psychological factors and a general medical
condition, 309.89….
Mrs. Moore denied any prior history of mental health treatment prior to entering
treatment with John Paul Jones, Ph.D., Fully Licensed Board Certified
Psychologist, on October 30, 2012….Her primary reason for entering treatment
was for Depression that was exasperated (sic) by her pain. She recorded
symptoms of irritability, loss of libido, moderate to severe depressed mood, loss
of interests in usual activities, lack of energy, withdrawing from people, having
mood swings and loss of motivation. Much of her Depression is driven by her
physical pain which is unrelenting….
It is my clinical opinion that Mrs. Maria D. Moore is totally disabled from work
due to moderate to severe physical pain and moderate to severe Depression.
(AH 738-739).
On June 6, 2014, Sedgwick referred Plaintiff’s complete claims file to Dane Street,
which in turn remitted her medical records to three independent physician advisors (“IPAs”) for
review. (Defendant’s Facts, ¶ 58, citing AH 740-1149, 1382). Dr. Richard Kaplan, M.D., board
certified in physical medicine and rehabilitation, completed an independent review from a pain
medicine and rehabilitation perspective. (AH 1152-1162). Prior to issuing his review, Dr.
Kaplan attempted to consult with Drs. Herman Ruiz, Christopher Milan, and Blaine Rawson, but
was unable to establish contact. (AH 1154). After summarizing Plaintiff’s treatment history, Dr.
Kaplan concluded as follows:
The claimant is not disabled from the ability to perform any occupation for which
she may be qualified by education, training or experience as of 02/15/14 to RTW.
The claimant is a 55-year-old female with a diagnosis of brachial neuritis, chronic
backache, chronic neck pain, chronic pain, fibromyalgia, and anxiety. The
claimant works as a medical biller with job duties to include responsible for the
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detailed of accounts after initial billing in order to obtain timeliness of payments,
maximum collectability and account resolution.
The claimant has a history of multifocal chronic pain including fibromyalgia, C56
fusion, and L4-s1 fusion. She has been treated with multiple medication classes,
spinal cord stimulation, and physical therapy. The claimant continues to have
complaints of pain. However, no specific impairing neurological deficits have
been documented. An IME by Dr. Gast noted mild tenderness and slightly
limited range of motion. Dr. Gast stated that the claimant’s recent surgeries to
include cervical and lumbar fusions and rotator cuff surgery was all healed.
In this situation, encouragement of functional restoration and increased activity is
recommended. I would defer to a mental health reviewer for any additional
assessment from that perspective.
In summary, the claimant has subjective symptoms, but they do not correspond to
any clinical or diagnostic findings. The records lack any clinical data to support
that the claimant is disabled from the ability to perform any occupation for which
she may be qualified by education, training or experience as of 02/15/14 to RTW
from a pain medicine and rehabilitation perspective.
(AH 1160). Dane Street also referred Plaintiff’s file to Dr. Fred Moss, M.D., board certified in
psychiatry, who completed an independent review from a psychiatric perspective. (AH 11631172). Prior to issuing his review on June 12, 2014, Dr. Moss attempted to consult with Dr.
Milan, but was unable to establish contact. (AH 1165). Dr. Moss was able to consult with Dr.
Jones, and he summarized their discussion as follows:
I spoke to John Paul Jones, PhD. Dr. Jones reports that he sees the claimant
approximately 3 times per month working on management of her physical pain
through the tools of mindfulness and cognitive restructuring. He reports that she
frequently reports feeling depressed to Dr. Jones and reports that the depression
primarily stems from her physical pain. The claimant recently complained that
she has been more stressed due to the death of her mother and then brother.
He notes that she uses a cane when ambulating, always on time with her
appointments, well dressed, well groomed, and if she does miss an appointment
will often notify Dr. Jones and reschedule. He reports he last saw her May 16 and
that she is slowly improving using the tools that they have been practicing.
In summary, he reports that he thinks her physical pain is the primary problem
and that this is worsening her symptoms of depression.

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(AH 1165-1166). Dr. Moss then summarized Plaintiff’s treatment history, and concluded as
follows:
The claimant is not disabled from the ability to perform any occupation for which
she may be qualified by education, training or experience as of 02/15/14 to rtw.
The claimant is a 55-year-old female who worked as a Medical Biller, the job
duties of which are noted above. The claimant has been diagnosed with brachial
neuritis, chronic backache, chronic neck pain, chronic pain, fibromyalgia, and
anxiety.
Based on the information presented and a review of the overall medical
documentation with respect to psychiatric issues, there is no information to
substantiate or warrant a determination of impairment as of 02/15/14 to rtw.
The records reflect in one letter from John Paul Jones, Ph.D.
(Psychology/Cognitive and Behavioral Psychology) on 05/27/14 that the clamant
was seen and treated for the diagnoses of adjustment disorder with mixed anxiety
and depressed mood as well as panic disorder associated with both psychological
and general medication factors since 10/30/2012. However, there are no progress
notes or evaluations to indicate the course of treatment, progress, or mental status
evaluations to determine the level of functionality, or provide evidence that
clinically supports the claimant as impaired due to a psychiatric condition.
Therefore, the claimant is not disabled from the ability to perform any occupation
for which she may be qualified by education, training or experience as of
02/15/14 to rtw….
It was indicated [in Dr. Jones’ 5/27/14 letter] that the claimant had no prior
history of any mental health treatment, but she remained under treatment since
10/30/2012 primarily due to depression secondary from pain. It was indicated
that the claimant had signs and symptoms of irritability, loss of libido, moderate
to severe depressed mood, anhedonia, anergia, social withdrawal, mood swings
and motivation loss. There were no suicidal ideations or hospitalizations due to
psychiatric manifestations. There are no progress notes or evaluations to indicate
course of treatment, progress, or mental status evaluations to determine the level
of functionality, or provide evidence that clinically supports the claimant as
impaired from any occupation due to a psychiatric condition.
(AH 1170-1171).
On June 20, 2014, Dr. Rawson performed a T7-8 Thoracic Laminectomy and initial
placement of spinal cord stimulator and generator on Plaintiff. (AH 1175-1176). Plaintiff
submitted those records to Sedgwick for review, and further submitted additional medical
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records from Michigan Spine and Pain and Neurological Spine Specialists on July 15, 2014.
(Defendant’s Facts, ¶¶ 69, 71; AH 1177-1189). Dr. Kaplan then submitted an addendum to his
original IPA review on July 25, 2014. (AH 1191-1194). Prior to submitting the report, Dr.
Kaplan established contact with Dr. Herman Ruiz, and summarized their discussion as follows:
On 07/25/14, I spoke with Dr. Ruiz. Dr. Ruiz agrees that given the claimant’s
recent spinal stimulator trial, it would be appropriate to attempt functional
restoration with a job involving minimal lifting as well as sitting versus standing.
(AH 1192). In response to a question whether the new, additional medical documentation and/or
discussion with Dr. Ruiz altered his determination, Dr. Kaplan stated as follows:
The new information supports, but does not change, my prior determination in
this case. This claimant is status post spinal cord stimulator placement of
06/20/14.
The fundamental indication for a spinal cord stimulator is as part of an
unequivocal active functional restoration program. After such a procedure, the
rationale for encouraging activity is stronger than prior to this procedure.
Therefore the new information strengthens my prior recommendation to
encourage usual activity without restrictions or limitations.
(AH 1192-1193).
Finally, Dane Street submitted Plaintiff’s records to Dr. Leo Lombardo, M.D., board
certified in pain management, for an independent evaluation. Dr. Lombardo submitted his
findings on August 15, 2014, concluding in relevant part as follows:
Given the documented findings, medical conditions and diagnoses, the claimant’s
condition requires restrictions or limitations for the period beginning
02/15/2014….
The claimant has chronic neck and back pain, refractory to surgical fusion as well
as conservative treatments like physical therapy. However, postsurgical imaging
of the neck and spine are noted to be normal by a spine surgeon, the claimant is
able to participate in physical therapy, and there are no abnormalities in sensory
or motor function noted on recurrent physical examinations. The only consistent
physical examination abnormality of the musculoskeletal system is that of diffuse
tenderness of muscles. Given the history of fusion of the neck and back,
limitations in range of motion of the spine impair the claimant’s movements. The
claimant is unable to reach overhead, bend, stoop, and crawl at any frequency.
The claimant can lift, carry, push, and pull up to 20 pounds occasionally and 10
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pounds frequently. The claimant can stand or walk for 20 minutes at a time and
for a total of two (2) hours. There are no other restrictions or limitations
supported by the medical records provided.
(AH 1219-1220).

Dr. Lombardo continued to opine that while the expected duration of

Plaintiff’s restrictions/limitations was permanent, she could perform any work within those
restrictions/limitations. (AH 1220).
On August 21, 2014, Sedgwick referred Plaintiff’s matter to Genex Services to conduct a
Transferrable Skills Analysis (“TSA”). (Defendant’s Facts, ¶ 78, citing AH 1248). The TSA
was to be based on Plaintiff’s job description, work history, and independent physician reviews
of her claims file, including any restrictions reported therein. (Id.). Genex further was instructed
that all transferrable occupations must have minimal earnings of $2337.92 per month, or
$28,055.04 annually. (Id.).
Genex completed its TSA on August 25, 2014. (AH 1306-1308). Genex concluded the
following occupations would be appropriate for Plaintiff: Medical Record Coder, Hospital—
Admitting Clerk, and Benefits Clerk II. (AH 1307).
On September 12, 2014, Dr. Lombardo submitted an addendum to his prior report, based
on his teleconference with Plaintiff’s treating physician, Dr. Milan.8 Dr. Lombardo concluded as
follows:
Based on the outcome of the attempted teleconferences with the claimant treating
providers, the previous determination has not been altered.
I spoke to Dr. Milan regarding signs of physical impairment. It was his opinion
that the claimant has the capacity for sedentary work with limited lifting, pulling,
and pushing and no bending, crawling, or lifting overhead due to a limitation in
range of motion and muscle stiffness on physical examination. He believes that
the claimant does require opportunities every 30-60 minutes for changing of
position, such as by standing for a short time. This is reasonable and consistent
with the claimant’s documented physical examination and imaging findings, and
does not change the prior determination. The claimant’s condition requires
8 Dr. Lombardo attempted to establish contact with Dr. Ruiz and Dr. Rawson, but was
unsuccessful. (AH 1314).
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restrictions or limitations for the period beginning 02/15/2014 from a pain
management perspective.
(AH 1315).
Finally, Michigan Spine & Pain submitted an additional progress note on October 8,
2014, relating to Plaintiff’s appointment there on October 7, 2014. (AH 1318-1321). After
reviewing the progress note Dr. Lombardo submitted a second addendum on October 16, 2014,
stating in relevant part as follows:
Attempts were made to have a successful teleconference with no success.9 The
prior determination is unchanged by the additional medical records.
On 10/07/2014, examination revealed that the claimant was well developed, well
nourished, and was not in acute distress. She had right antalgic gait. She also
used a straight cane as an assistive device. She was alert and was oriented to
time, place, and persons. On assessment, she had post laminectomy syndrome of
the lumbar region, chronic pain not elsewhere classified (NEC), degenerative disc
disease not otherwise specified (NOS), lumbago, cervicalgia, joint pain of the hip,
and limb pain. There are no ROM provided for review, or other findings that
would alter the prior determination.
The newly submitted medical records reveal the claimant continues with pain
located on the lower back, neck, and hips. The claimant continues to require
restrictions or limitations as noted in the prior determination.
(AH 1324).
In a letter dated November 3, 2014, Sedgwick affirmed the denial of benefits for the
period of February 15, 2014, and ongoing. (AH 1335-1337). Specifically, Sedgwick stated that
its medical file review, together with the independent reviews of Drs. Kaplan and Moss, did not
support Plaintiff’s inability to perform any occupation as defined in the LTD Plan for the period
of February 15, 2014, and ongoing. (AH 1337).

9 Dr. Lombardo attempted to contact Dr. Herman Ruiz, and Dr. Christopher Nolan/Dr. Marvin
Blieberg. (AH 1322-1323).
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Plaintiff filed her Complaint in the matter on February 20, 2015. (ECF No. 1). As stated
above, Defendant filed its Motion for Summary Judgment on March 4, 2016, and Plaintiff filed
her Motion for Summary Judgment on March 16, 2016. (ECF Nos. 24, 31).
SUMMARY JUDGMENT STANDARD
The Court may grant a motion for summary judgment if, “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The substantive law determines which facts are critical and which are irrelevant. Only disputes
over facts that might affect the outcome will properly preclude summary judgment. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is not proper if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party. Id.
A moving party always bears the burden of informing the Court of the basis of its motion.
Celotex, 477 U.S. at 323. Once the moving party discharges this burden, the nonmoving party
must set forth specific facts demonstrating that there is a dispute as to a genuine issue of material
fact, not the “mere existence of some alleged factual dispute.” Fed. R. Civ. P. 56(e); Anderson,
477 U.S. at 247. The nonmoving party may not rest upon mere allegations or denials of its
pleadings. Anderson, 477 U.S. at 256.
In passing on a motion for summary judgment, the Court must view the facts in the light
most favorable to the nonmoving party, and all justifiable inferences are to be drawn in its favor.
Anderson, 477 U.S. at 255. The Court’s function is not to weigh the evidence, but to determine
whether there is a genuine issue for trial. Id. at 249.
DISCUSSION

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The Eighth Circuit has held that, “[u]nder ERISA, a plan participant may bring a civil
action to ‘recover benefits due to him under the terms of his plan, to enforce his rights under the
terms of the plan, or to clarify his rights to future benefits under the terms of the plan.’”
Pralutsky v. Metropolitan Life Ins. Co., 435 F.3d 833, 837 (8th Cir.), quoting 29 U.S.C. §
1132(a)(1)(B), cert. denied, 549 U.S. 887 (2006). “The district court reviews de novo a denial of
benefits in an ERISA case, unless a plan administrator has discretionary power to construe
uncertain terms or to make eligibility determinations, when review is for abuse of discretion.”
Rittenhouse v. UnitedHealth Group Long Term Disability Ins. Plan, 476 F.3d 626, 628 (8th Cir.
2007) (emphasis in original) (citation omitted).
In the instant case, Plaintiff does not dispute that the LTD Plan granted Sedgwick
(through a grant of authority from Ascension) the discretionary authority to determine eligibility
for benefits and construe terms of the Plan. (AH 8, 15-18, 100, 122). The standard of review for
this Court thus is abuse of discretion.
Under the abuse of discretion standard, the proper inquiry is whether the plan
administrator’s decision was reasonable; i.e., supported by substantial evidence.
In considering the reasonableness of a plan administrator’s fact-based disability
determination, courts should consider whether the decision is supported by
substantial evidence. Substantial evidence is more than a mere scintilla. It means
such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.
Fletcher-Merrit v. NorAm Energy Corp., 250 F.3d 1174, 1179 (8th Cir. 2001) (internal quotation
marks and citations omitted). In making its determination “a reviewing court must focus on the
evidence available to the plan administrators at the time of their decision and may not admit new
evidence or consider post hoc rationales.” King v. Hartford Life and Acc. Ins. Co., 414 F.3d 994,
999 (8th Cir. 2005) (internal quotation marks and citation omitted).

Finally, “[a] decision

supported by a reasonable explanation will not be disturbed even if another reasonable
interpretation could be made or if the court might have reached a different result had it decided
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the matter de novo.” Phillips-Foster v. UNUM Life Ins. Co. of America, 302 F.3d 785, 794 (8th
Cir. 2002) (citation omitted).

See also Midgett v. Washington Group Intern. Long Term

Disability Plan, 561 F.3d 887, 897 (8th Cir. 2009) (emphasis in original) (internal quotation
marks and citation 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.”).
Upon consideration of the record before it, the Court cannot say that Sedgwick abused its
discretion in denying Plaintiff LTD benefits. As noted above, Sedgwick originally approved
Plaintiff’s claim for LTD benefits beginning February 15, 2012, based on Dr. Munk’s progress
reports and Plaintiff’s planned surgeries. (AH 235-236). The benefits lasted until February 14,
2014, the entire 24 month period of Disability allowable under the Own Occupation standard.
On July 22, 2013, after Dr. Munk opined that Plaintiff was a “challenging individual,”
and Dr. Huebner opined that Plaintiff had fibromyalgia10, a condition not warranting disability,
Sedgwick requested that Plaintiff complete a Daily Activities Review and undergo an IME11, in
order to assess her continued eligibility for benefits under the Any Occupation standard. (AH
534, 515, 571-582, 647). It was only after receiving the IME, in which Dr. Gast concluded that
Plaintiff was not precluded from performing her own job, much less any job for which she was
qualified, that Sedgwick denied Plaintiff’s claim for LTD benefits. (AH 651-657).
Once Sedgwick received Plaintiff’s appeal, including both her updated medical
documentation and notification of her scheduled laminectomy with placement of spinal cord
stimulator, it sent Plaintiff’s complete claims file to Dane Street, which in turn remitted it to
three separate IPAs for review. First Dr. Richard Kaplan, board certified in physical medicine
10 Dr. Munk concurred that Plaintiff probably had “just fibromyalgia.” (AH 640).
11 Sedgwick requested the IME in December, 2013. (AH 647).
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and rehabilitation, concluded Plaintiff was not disabled from the ability to perform any
occupation for which she was qualified, as she had only subjective symptoms not corresponding
to any clinical or diagnostic findings. (AH 1160).12 In an addendum, submitted after Plaintiff
underwent the thoracic laminectomy and initial placement of spinal cord stimulator and
generator, Dr. Kaplan stated that his prior determination was unchanged, as “[a]fter such a
procedure, the rationale for encouraging activity is stronger than prior to this procedure.” (AH
1192-1193).13 Second Dr. Fred Moss, board certified in psychiatry, concluded after speaking
with Plaintiff’s treating psychologist14 that Plaintiff was not disabled from the ability to perform
any occupation for which she was qualified, as “[t]here are no progress notes or evaluations to
indicate course of treatment, progress, or mental status evaluations to determine the level of
functionality, or provide evidence that clinically supports the claimant as impaired from any
occupation due to a psychiatric condition.” (AH 1170-1171). Finally Dr. Leo Lombardo, board
certified in pain management, concluded that while Plaintiff’s condition warranted restrictions on
her activities, she was able to perform work within those limitations. (AH 1219-1220).
Sedgwick did not end its review at this time. Instead, after reviewing Dr. Lombardo’s
proposed limitations, Sedgwick referred the matter to Genex to conduct a TSA based on
Plaintiff’s job description, work history, and claims file. (AH 1248). Sedgwick received both
the TSA, which concluded several occupations would be appropriate for Plaintiff within her
stated limitations (AH 1306-1308), and two addenda from Dr. Lombardo, in which he opined
after speaking with Dr. Milan and reviewing additional records that Plaintiff had the capacity for

12 As noted above, prior to submitting his original report Dr. Kaplan was unable to establish
contact with Drs. Herman Ruiz, Christopher Milan, and Blaine Rawson. (AH 1154).
13 Dr. Kaplan expressed this opinion after establishing contact with Dr. Ruiz, who agreed that
“given [Plaintiff’s] recent spinal stimulator trial, it would be appropriate to attempt functional
restoration with a job involving minimal lifting as well as sitting versus standing.” (AH 1192).
14 As noted above, Dr. Moss was unable to establish contact with Dr. Christopher Milan. (AH
1165).
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certain forms of sedentary work. (AH 1314-1316, 1322-1325).15 Only then did Sedgwick affirm
the denial of Plaintiff’s benefits for the period of February 15, 2014, and ongoing. (AH 13351337).
“When 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.” Johnson v. Metropolitan Life Ins. Co., 437 F.3d 809,
814 (8th Cir. 2006) (citation omitted).

Here, all four physicians reviewing Plaintiff’s file,

including Dr. Gast who physically examined Plaintiff, concluded that she was not so disabled as
to require LTD benefits. They did so after noting there was little or no objective evidence of
impairment, leaving only Plaintiff’s subjective, uncorroborated complaints as evidence of her
ailments. See Id., citing Coker v. Metropolitan Life Ins. Co., 281 F.3d 793, 799 (8th Cir. 2002)
(holding that providing only subjective medical opinions, which were unsupported by objective
medical evidence, did not suffice to prove a claim for benefits); see also Prezioso v. Prudential
Ins. Co. of America, 748 F.3d 797, 806 (8th Cir. 2014) (same).16 Under these circumstances, the
Court finds Sedgwick’s decision to deny Plaintiff benefits was not an abuse of discretion, and
thus even if another reasonable interpretation exists, this Court, “may not simply substitute its
opinion for that of the plan administrator.” Fletcher-Merrit, 250 F.3d at 1180. See also Midgett,
561 F.3d at 897-98 (holding the decision to deny the plaintiff’s short-term disability claim was
supported by substantial evidence, as the peer reviews “accurately represent[ed] [Plaintiff’s]
medical record and adequately address[ed] the evidence supporting her claim for disability,” but
“explained that these findings did not demonstrate that [Plaintiff] was unable to perform her job

15 Dr. Milan concurred with this assessment of Plaintiff’s capabilities. (AH 1315).
16 Plaintiff complains that none of the reviewing physicians considered the effects of her
prescribed medications on her ability to work. The Court’s review of the record reveals that
none of her treating physicians opined on such a limitation, however, and as acknowledged by
Plaintiff it is the claimant’s obligation to submit proof of disability.
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duties.”); Rittenhouse, 476 F.3d at 632 (internal quotation marks and citation omitted) (“[The
Plan’s] decision is supported by substantial evidence, i.e., such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”). Defendant’s Motion for Summary
Judgment must therefore be granted.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment (ECF No.
24) is GRANTED, and Plaintiff’s Complaint is DISMISSED with prejudice. An appropriate
Order of Dismissal will accompany this Memorandum and Order.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary Judgment (ECF No.
31) is DENIED.

Dated this

1st

Day of July, 2016.

\s\ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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