Conner v. Ascension Health et al

Filing 85

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Plaintiffs renewed motion for summary judgment is DENIED. ECF No. 74 . IT IS FURTHER ORDERED that Defendants motion for summary judgment 77 is GRANTED IN PART and DENIED IN PART, as set forth in this Order. IT IS FURTHER ORDERED that, on or before January 15, 2020, the parties shall submit a joint proposed schedule for Defendants counterclaim.( Joint Proposed Schedule due by 1/15/2020.). Signed by District Judge Audrey G. Fleissig on 12/26/19. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LISA CONNER,
Plaintiff,
v.
ASCENSION HEALTH and
SEDGWICK,
Defendants.

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No. 4:17-cv-00021-AGF

MEMORANDUM AND ORDER
This is an action under Section 502(a)(1)(B) of the Employee Retirement Income
Security Act (“ERISA”), 29 U.S.C. § 1132(a)(1)(B), for disability benefits under an
employer sponsored disability benefit plan. This matter previously came before the
Court on cross motions for summary judgment filed by Defendants Ascension Health and
Sedgwick and by Plaintiff Lisa Conner. ECF Nos. 36 and 39. On June 19, 2018, the
Court denied the motions and remanded the case to the plan administrator for further
evaluation. Now, the parties have again filed cross motions for summary judgment
following the plan administrator’s continued denial of disability benefits. The motions
have been fully briefed and are ready for disposition. For the reasons set forth below,
Defendants’ motion for summary judgment will be granted in part and denied in part, and
Plaintiff’s motion for summary judgment will be denied.
BACKGROUND
This case arises out of the denial of long-term disability benefits. For the purposes

of the motions before the Court, the record establishes the following facts. Prior to May
2013, Plaintiff was employed at St. Vincent’s Medical Center as a perioperative nurse,
and she was eligible to participate in the Ascension Health Long-Term Disability Plan
(“LTD Plan”). The LTD Plan provides:
Disability or disabled means that due to an Injury or Sickness which is
supported by objective medical evidence, 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 . . . 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 Occupation; 1 and

(B)

after the first 24 months of Benefit payments . . . any work or service
for which the Participant is reasonably qualified taking into
consideration the Participant’s training, education, experience and
past earnings. 2

AH 62. 3
Under the LTD Plan, “[t]he Claims Administrator [has] the discretionary authority
to decide all questions arising in connection with matters” set forth in the LTD Plan.
Further, the LTD Plan provides that “[a]ny interpretations or determinations made
pursuant to such discretionary authority of the Claims Administrator shall be upheld in

1

Subsection (A) will hereinafter be referred to as the “own occupation definition”
of disability.
2

Subsection (B) will hereinafter be referred to as the “any occupation definition” of
disability.
3

In light of the voluminous record, the Court will cite to documents as they have
been identified by the parties.
2

judicial review unless it is shown that the interpretation or determination was an abuse of
discretion.” AH 74. In other words, the LTD Plan gives the Claims Administrator, in
this case, Sedgwick, “discretionary authority to determine whether a Participant is
eligible to receive or continue to receive a Benefit under the Plan . . . .” Id.
Plaintiff was involved in a motor vehicle accident on May 20, 2013, causing
injuries to Plaintiff’s neck, left shoulder, and left arm. Plaintiff was treated by her
primary care physician, Dale Tucker, M.D., and she reported difficulties working due to
her inability to concentrate and her worry that she would make a mistake. Plaintiff
stopped working on May 22, 2013, after she was diagnosed with a rotator cuff tear and
cervical strain and pain.
On September 27, 2013, Plaintiff exhausted short-term disability benefits, and her
claim was converted to a claim for long-term disability (“LTD”) benefits. Under the
LTD Plan, a participant is eligible for benefits beyond 24 months only if she is disabled
from any occupation for which she is reasonably qualified. Sedgwick approved
Plaintiff’s LTD claim on November 20, 2013, with benefits beginning on November 27,
2013 and ending on November 26, 2015.
Plaintiff identified her treating physicians as Dr. Tucker; Stephen Augustine, D.O.,
an orthopedic surgeon; Lynn Norman, D.O., an orthopedic surgeon who later replaced
Dr. Augustine in the practice; and Stephen Kramarich, M.D., a spine and pain
management physician. The medical records reflect the following.
In June 2013, Dr. Augustine performed surgery on Plaintiff’s left shoulder to
repair her rotator cuff, which was torn in the accident. On August 19, 2013, Dr.
3

Augustine completed a Fitness for Duty Certification stating that Plaintiff could return to
work with a lifting restriction of 25 pounds. Sedgwick consulted with Ascension Health
to determine whether it could accommodate such a restriction in Plaintiff’s nursing job.
Ascension Health responded that it could not accommodate that restriction, so Plaintiff
remained off work.
In August 2013, Plaintiff began treating with Dr. Kramarich on a monthly basis to
manage her pain following surgery. Dr. Kramarich’s treatment notes reflect that Plaintiff
experienced chronic pain in her neck, left shoulder, and left arm following the accident,
and he prescribed medications to manage Plaintiff’s pain. He also administered cervical
epidural steroid injections between September and October 2013.
On November 11, 2013, Dr. Kramarich opined that Plaintiff remained disabled,
but deferred comment on Plaintiff’s limitations and return-to-work status to Dr. Tucker.
On December 5, 2013, Plaintiff reported to Dr. Tucker that she was experiencing side
effects from the medication that she had been prescribed. AH 326. Dr. Tucker’s notes
reflect that the dosage was reduced, and “[t]he side effects have completely resolved.”
Id. He also noted that physical therapy decreased Plaintiff’s pain intensity. 4
Plaintiff treated with Dr. Kramarich in January, February, and March 2014 to
obtain refills of her pain medication. On February 3, 2014, Plaintiff saw Ashutosh
Pradhan, M.D., a neurologist, for her neck pain. Dr. Pradhan found her neck range of

Plaintiff attended physical therapy until May 28, 2015. AH 770-828. However,
the records are difficult to decipher, and neither party sets forth the contents of those
records in their statements of material facts, instead citing to treating physicians’ notes
concerning Plaintiff’s treatment. The Court will do the same.

4

4

motion to be “normal” and was “unimpressed” with the MRI of Plaintiff’s cervical spine.
Plaintiff never followed up with Dr. Pradhan.
On February 6, 2014, Plaintiff treated with Ronak Patel, D.O., and complained of
continued aching and burning pain. Dr. Ronak noted that Plaintiff “is currently taking
Norco with moderate pain relief and no side effects.” AH 388.
On February 24, 2014, Plaintiff complained to Dr. Tucker about pain in her left
shoulder and increased frequency of headaches. Dr. Tucker adjusted Plaintiff’s
medications after she complained of unsteadiness in the morning, and he was hopeful that
the new medication would help with headaches.
Plaintiff’s treatment records reflect that she continued to complain of left shoulder
pain in March, April, July, and September 2014. On April 23, 2014, Dr. Norman noted
that Plaintiff did not have much pain with range of motion and had fair strength in her
arm at 30 degrees. Dr. Norman indicated on an April 25, 2014 disability update that
Plaintiff may be able to return to work with light duty, which Dr. Norman would discuss
with Plaintiff at her next appointment.
On September 9, 2014, Dr. Kramarich noted that Plaintiff was experiencing “signs
and symptoms involving cognition,” but he did not include any other description or
notations. AH 497. That same day, Plaintiff underwent PHQ-9 5 and GAD-7 6 tests at

5

PHQ–9 is the nine-item depression scale of the Patient Health Questionnaire. The
PHQ–9 is a tool for assisting primary care clinicians in diagnosing depression as well as
selecting and monitoring treatment. Castiner v. Astrue, No. 2:10 CV 17 DDN, 2011 WL
902964, at *2 (E.D. Mo. Mar. 15, 2011).

6

The Generalized Anxiety Disorder Screener, GAD-7, is used to assess for
5

Riverside Pain Physicians, which reflected that Plaintiff was experiencing “minimal”
depression (score 2/27) and “minimal anxiety” (score of 3/21). In the patient survey,
Plaintiff reported no issues with concentration.
Dr. Kramarich’s treatment notes from November and December of 2014 continue
to include the “signs and symptoms involving cognition” notation with no further details.
However, his notes between September 2014 and February 2015 reflect that Plaintiff was
oriented to person, place, and situation; that Plaintiff’s judgment and insight were
seemingly intact; and that Plaintiff readily participated in decision-making and expressed
understanding. The last notation reflecting any issues related to cognition appears on
treatment notes from January 2015.
On December 2, 2014, Dr. Norman performed an arthroscopy, exploration, and
debridement of Plaintiff’s left shoulder. At a follow-up visit on January 25, 2015,
Plaintiff reported that her left shoulder was feeling a little better.
During an office visit with Dr. Tucker on March 9, 2015, Plaintiff reported that
she still experienced severe left shoulder pain, which had reduced her function and
strength in her left arm. She reported that she had not been taking any medication since
her shoulder surgery and requested that pain medication be prescribed to her. Dr. Tucker
prescribed Celexa and noted, “I do not believe that patient can return to work.” AH 609.
He further noted that Plaintiff “continues to complain of severe left shoulder pain with
range of motion deficits and some upper extremity weakness in that left arm. I do not

generalized anxiety disorder. Blattenbauer v. Berryhill, No. 3:18-CV-41, 2018 WL
7364817, at *4 (D.N.D. Dec. 13, 2018).
6

feel that the patient would be able to lift repetitively anything over 10 pounds. She would
not be able to do any repetitive reaching, pushing, pulling, bending, or twisting.” Id.
Plaintiff again reported severe left shoulder pain on May 28, 2015, and Dr. Tucker
increased the dosage of her Celexa prescription.
By letter dated April 9, 2015, Sedgwick informed Plaintiff that her benefits under
the LTD Plan’s “own occupation definition” of disability would terminate on November
26, 2015. The letter explained that after that date, Plaintiff would have to satisfy the “any
occupation definition” of disability to receive continued LTD benefits. Sedgwick also
asked Plaintiff to complete a Daily Activities Review.
On May 11, 2015, Plaintiff completed the Daily Activities Review, stating that she
was able to walk without assistance for short distances and perform light housework.
However, Plaintiff reported that she requires assistance washing and fixing her hair and
dressing herself. She stated that she prepares meals about twice a week, but she cannot
lift a pot of water or heavy pans. She could “do light shopping,” but reported being
unable to push a grocery cart due to left arm weakness and neck pain. She reported
problems with concentration. Plaintiff complained of severe headaches that cause nausea
and dizziness. She concluded that “[i]f I found a job that I could physically perform, my
anxiety/depression, daily headaches, and medications that I take would prevent me from
being a dependable employee.” AH 586.
On June 1, 2015, Plaintiff saw Dr. Norman. Plaintiff reported pain on a scale of
5/10, depression, and pain in her left arm with neck pain radiating down her left arm. She
also reported that the epidural injections were not helping with her forearm pain. Upon
7

physical examination of the left shoulder, Dr. Norman noted normal sensation in both
hands, normal motor function in the hand and wrist, and fair strength in abduction with
some mild discomfort. AH 680.
On July 22, 2015, Dr. Kramarich prescribed MS Contin to Plaintiff to address her
pain. On July 31, 2015, Dr. Norman completed a form requested by Sedgwick, in which
she opined that Plaintiff could sit for six hours, stand or walk for four hours, bend for one
hour, stoop for less than one hour, crouch for ten minutes, perform gross handling or fine
fingering for six hours, and could lift, carry, push, or pull a maximum of ten pounds. AH
665.
On September 8, 2015, Plaintiff saw Dr. Tucker and reported that her medication
had changed to MS Contin, which significantly relieved her pain but increased her level
of sedation. Dr. Tucker noted that “[Plaintiff] states that she does not feel comfortable
driving due to the sedation. She is able to perform her [activities of daily living] while
taking the medication.” AH 716.
On September 23, 2015, Dr. Kramarich noted that Plaintiff continued to
experience pain due to her cervical issues, and Plaintiff rated her pain intensity as 2/10.
Dr. Kramarich continued to prescribe MS Contin and Norco through April 2016. On
October 15, 2015, Dr. Tucker noted that Plaintiff denied experiencing headaches, was in
no acute distress, and was alert and oriented. On November 30, 2015, Plaintiff reported
to Dr. Kramarich that she continued to have pain on her left side, with an average pain
score of 2/10. He reported that Plaintiff was doing “very well on the MS Contin.” AH
2171. Upon examination, Dr. Kramarich noted that Plaintiff was oriented to person,
8

place, and situation; judgment and insight were seemingly intact; and that Plaintiff
participated readily in decision-making and expressed understanding.
On November 12, 2015, Plaintiff underwent a functional capacity evaluation
(“FCE”). The FCE indicated that Plaintiff was able to occasionally lift up to 20 pounds
but was unable to reach overhead with her left upper extremity. The FCE concluded that
Plaintiff was able to function in the light physical demand category. The FCE also noted
that Plaintiff was taking a number of medications, including MS Contin for pain; Lortab
for breakthrough pain; Zanaflex, a muscle relaxer; Celexa for depression; Estradiol for
hormones; Fiorinal for migraines; and Xanax for sleep and anxiety. Plaintiff was driven
to her FCE appointment by a family member due to her taking MS Contin. AH 853-867.
On November 30, 2015, Catherine Phillis-Harvey, MS, a certified vocational
evaluator, completed an LTD transferable skills analysis (“TSA”) on behalf of Sedgwick,
which relied heavily on the FCE. The TSA identified multiple occupations suitable for
Plaintiff’s training, experience, education, and physical abilities, including nurse
instructor, office nurse, school nurse, and nurse consultant. Id. at 388.
On December 4, 2015, Sedgwick terminated Plaintiff’s LTD benefits based upon
its review of the FCE, the TSA, and Plaintiff’s medical records. Plaintiff appealed the
decision on May 25, 2016, claiming, inter alia, that the side effects of her medications
caused cognitive impairments. In support of her appeal, Plaintiff attached a
psychological evaluation completed by Richard Nay, M.D., on February 4, 2016; more
recent medical records from Dr. Tucker and Dr. Kramarich; and a vocational assessment
(“VA”) performed by Mark Capps, a vocational expert.
9

In his psychological evaluation of Plaintiff, Dr. Nay opined that Plaintiff
demonstrated severe deficits in attention and concentration skills and had a very difficult
time staying focused and remaining on task. AH 2009. Dr. Nay determined that Plaintiff
“continues to be fully and totally disabled from a psychological perspective, and as such
would not be able to perform any work on an 8-hour per day, 5-day per week basis.” He
concluded that it was “quite clear that medication side effects do play a significant role in
her clinical presentation, particularly with respect to cognitive dysfunction and
attention/concentration deficits.” Id.
On December 31, 2015, Dr. Kramarich noted that Plaintiff “does report that she
has noticed increased fatigue and reduced energy which she is attributing to the
medication. She does mention some issues with short term memory however, unclear as
to the medications part in this however, she feels that the pros of the medication is worth
the perceived adverse side effects.” AH 2176. In Plaintiff’s more recent medical
records, Dr. Kramarich confirmed that he had continued to prescribe Norco and MS
Contin due to continued pain that Plaintiff had experienced since the May 2013 car
accident. Dr. Tucker noted in his records that Plaintiff took morphine for chronic pain,
which caused sedation and impaired judgment. Dr. Tucker also completed an
interrogatory on April 4, 2016, in which he opined that “the medication [Plaintiff] takes
would impair her cognitive function. She would be unable to work as a nurse or any
other job.” AH 2025.
In his VA performed on May 24, 2016, Mr. Capps opined that in light of Dr.
Nay’s psychological evaluation, Plaintiff could not perform any of the occupations
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identified by the TSA due to her “cognitive/mental impairments and side effects of her
medication.” AH 2028. Specifically, he concluded that Dr. Nay’s assessment revealed
that Plaintiff could not perform the occupation of nurse consultant, nurse instructor,
office nurse, or school nurse because all of those occupations are high skilled and require
the ability to perform activities that Plaintiff cannot do, such as, inter alia, maintaining
attention for two-hour segments and completing a normal workday without interruption
from psychologically-based symptoms. He also noted that Plaintiff would be unable to
perform certain work activities for more than 20% of the workday, including
understanding, carrying out, and remembering very short and simple instructions, and
sustaining an ordinary routine without special supervision. Id.
Plaintiff’s appeal was reviewed on behalf of Sedgwick by Susan Orenstein, Ph.D.,
a board-certified psychologist, and Martin Mendelssohn, M.D., a board certified
orthopedic surgeon. Dr. Orenstein opined that because there was no indication that
Plaintiff was being treated for a mental health condition, Plaintiff did not suffer from
“impaired functioning requiring restrictions or limitations due to a primary mental health
condition.” AH 2200. However, Dr. Orenstein specifically stated that she would “defer
to another specialist regarding [Plaintiff’s] primary medical conditions, medication side
effects[,] and functioning as a result.” Id.
Dr. Mendelssohn found that although Plaintiff had “ongoing self-reported
complaints, a comprehensive history and physical examination indicating functional or
neurological deficits is not provided that would substantiate the need for restrictions from
November 27, 2015 through return to work.” AH 2208. Thus, Dr. Orenstein and Dr.
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Mendelssohn found no necessary restrictions or limitations on Plaintiff’s ability to work.
Sedgwick subsequently notified Plaintiff that its decision to terminate LTD benefits was
upheld on August 1, 2016.
On November 1, 2016, Plaintiff filed this lawsuit, claiming that she was
improperly denied continuing LTD benefits. On June 19, 2018, the Court held that
Defendants failed to fully evaluate Plaintiff’s claims that the side effects of the
medication impacted her ability to perform work and that she was unable to perform any
work in light of the limitations on her ability to reach. Thus, the Court remanded the case
with directions to reopen the administrative record for further evaluation.
Plaintiff asked C. Kimball Heartsill, a vocational expert, to review the November
30, 2015 TSA prepared by Ms. Phillis-Harvey and complete an independent TSA. Mr.
Heartsill concluded that the jobs identified in Ms. Phillis-Harvey’s report would not be
within Plaintiff’s functional capacity because Plaintiff’s training, education, and
experience would not allow for the performance of the occupation of nurse instructor, and
her physical limitations would not allow Plaintiff to perform the occupations of office
nurse, nurse consultant, or school nurse. AH 2708.
On August 8, 2018, Ms. Phillis-Harvey updated her report in light of Mr.
Heartsill’s TSA. She opined that because Plaintiff has sixteen years of experience as a
nurse, she would be qualified to teach nursing classes, such as nursing assistant classes,
medical terminology, and anatomy, without additional training. AH 4476. Ms. PhillisHarvey further maintains that based on the limitations contained in the FCE, the
occupations of school nurse, office nurse, and nurse consultant would permit Plaintiff to
12

change positions between sitting, standing, and walking during the course of doing her
job duties, thus accommodating her physical limitations.
Dr. Mendelssohn also performed a supplemental review of his July 20, 2016 report
in light of the Court’s concerns regarding Plaintiff’s medication and her ability to reach,
and he reviewed additional medical records from Plaintiff’s physicians. Ah 4441-4450.
He opined that the prescription and use of medication does not constitute documentation
of the presence or severity of impairment in functioning. He concluded that in the
absence of findings from examinations that speak to Plaintiff’s functioning as of
November 27, 2015, no impairments are supported.
Dr. Mendelssohn further concluded that although Plaintiff reported radiating pain,
“a clinical examination noting degrees of the restriction in the range of motion of her
shoulder or weakness of her rotator cuff is not documented.” AH 4446. He opined that
diagnostic studies do not correlate with Plaintiff’s complaints. Dr. Mendelssohn thus
concluded that in the absence of quantified findings from physical examinations
confirming the presence and severity of an impairment, the need for restrictions or
limitations was not supported.
On August 24, 2018, Dr. Mendelssohn again supplemented his report after
reviewing the TSA reports of Ms. Phillis Harvey and Mr. Heartsill. He noted that Mr.
Heartsill’s opinions were based on Plaintiff’s self-reported complaints, as well as
Plaintiff’s responses to activities that were needed to do a functional capacity
examination, which could be self-limited. Dr. Mendelssohn concluded that his own
opinion that Plaintiff “can return to her regular unrestricted occupation as a Registered
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Nurse for the period of November 27, 2015 through return to work” was unchanged. AH
4449.
Dr. Orenstein also supplemented her report in light of the Court’s Order. She
opined that there were no specific observations from Plaintiff’s providers related to
Plaintiff’s cognitive defects to support any limitations. She opined that the first mention
of specific cognitive deficits was noted in Dr. Nay’s psychological testing, which
determined that Plaintiff experienced cognitive defects as a result of her medications. Dr.
Orenstein noted, however, that it is not clear whether those effects were due to Plaintiff’s
pain medications or psychotropic medications, such as anti-anxiety medications. Dr.
Orenstein concluded that to make a more detailed determination regarding the role of
medications, it would be necessary for Plaintiff to abstain from Xanax and re-take the
test. Dr. Orenstein also believed that further neuropsychological testing was warranted to
determine the severity of Plaintiff’s problems with attention and concentration.
Dr. Orenstein also noted that Plaintiff’s providers never mentioned any
impairment due to a mental health condition, nor did their notes reflect observations of
Plaintiff having difficulty with cognitive functioning, social interactions, or activities of
daily living. Dr. Orenstein pointed out that no physician referred Plaintiff to
psychotherapy or recommended a higher level of care to address any mental condition.
Thus, Dr. Orenstein concluded that she “did not find clinical evidence for impairment
based on [Plaintiff’s] mental health condition alone.” AH 4470. She did not, however,
opine whether the side effects of Plaintiff’s medication caused any impairment, as it was
outside her expertise.
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On August 24, 2018, Dr. Orenstein provided an addendum after reviewing the
TSA reports prepared by Mr. Heartsill and Ms. Phillis-Harvey. Dr. Orenstein noted that
Mr. Heartsill did not mention Plaintiff needing any restrictions or limitations due to a
mental health condition, and she concluded that “there remains no clinical evidence
supporting functional impairment due to a primary mental health condition.” AH 4472.
Sedgwick requested an additional review of the medical record by Howard
Grattan, M.D., a specialist in pain management, physical medicine, and rehabilitation.
On August 24, 2018, Dr. Grattan prepared a report concluding that the medical records
did not support any restrictions or limitations on Plaintiff. He opined that on November
30, 2015, Plaintiff reported “doing very well” on MS Contin. Dr. Grattan noted that
Plaintiff was alert and oriented and in no acute distress. He further opined that “the goal
of pharmacological management is for increased function.” He stated that “if the current
medication is not resulting in increased functionality”, a treating physician would rotate
Plaintiff “to a more tolerable agent” to allow her to function. He noted that there was no
evidence of Plaintiff’s medication being altered, which would be appropriate if it were
necessary to achieve increased functioning. AH 4395.
With regard to Plaintiff’s ability to reach, Dr. Grattan opined that the progress
notes did not describe a comprehensive neurological or musculoskeletal examination, and
thus the medical evidence did not support activity restrictions for the time frame under
review. Specifically, the progress notes did not describe any significant musculoskeletal
or neurological abnormalities that would rise to the level of functional impairment
resulting in restrictions or limitations.
15

On November 1, 2018, after reviewing the entire medical record and the reports
prepared by Dr. Mendelssohn, Dr. Orenstein, and Dr. Grattan, Sedgwick advised Plaintiff
of its decision to uphold the denial of her claim. Sedgwick noted that although Dr.
Kramarich and Dr. Nay reported that Plaintiff required medication for ongoing
symptoms, which rendered her unable to work, their records contained no documentation
of a clinical examination correlating with Plaintiff’s complaints in this regard. Further, it
determined that the degree of Plaintiff’s cognitive defects was not determined by the
testing provided, and there was no other evidence in the record that Plaintiff’s mental
health conditions, i.e. mood disorder and anxiety, were impairing.
Sedgwick further found that a “clinical examination noting degrees of the
restriction in the range of motion of her shoulder or weakness in her rotator cuff were not
documented.” AH 4514. Further, “[t]he diagnostic studies provided included MRIs of
the cervical spine and lumbar spine[,] however the findings from these studies do not
correlate with [Plaintiff’s] complaints.” Id. Sedgwick noted that the record was devoid
of any postoperative complications, nor was there a comprehensive examination by
Plaintiff’s surgeon or physical therapist demonstrating an inability to reach overhead or
marked weakness. Sedgwick thereafter concluded that Plaintiff could “return to her
regular, unrestricted occupation as a Registered Nurse for the period of November 27,
2015 through return to work.” AH 4515.
On March 1, 2019, Plaintiff filed a renewed motion for summary judgment,
arguing that: (1) Sedgwick failed to offer any reasonable explanation for denying benefits
in light of the overwhelming evidence in the record that Plaintiff experienced limitations
16

on her ability to work; (2) Sedgwick’s new conclusion that Plaintiff has no limitations on
her ability to work is an abuse of discretion; and (3) Sedgwick again failed to properly
recognize the side effects of Plaintiff’s medications on her ability to work. Sedgwick, in
its cross motion for summary judgment, maintains that its determination was reasonable
in light of the record as a whole, the opinions of its reviewing physicians, and the TSA
prepared by Ms. Phillis-Harvey. Sedgwick also seeks summary judgment on its
counterclaim, which asserts that Plaintiff owes Sedgwick for overpayments made while
Plaintiff was receiving social security benefits. Plaintiff did not respond to this portion of
Sedgwick’s motion.
DISCUSSION
Standard of Review
“Summary judgment is appropriate when, viewing the facts in the light most
favorable to the non-movant, there are no genuine issues of material fact and the movant
is entitled to judgment as a matter of law.” Metro. Prop. & Cas. Ins. Co. v. Calvin, 802
F.3d 933, 937 (8th Cir. 2015) (citation omitted). On a motion for summary judgment,
facts and all reasonable inferences must be construed in favor of the nonmoving party;
however, “facts must be viewed in the light most favorable to the nonmoving party only
if there is a genuine dispute as to those facts.” Torgerson v. City of Rochester, 643 F.3d
1031, 1042 (8th Cir. 2011) (en banc) (citation omitted). “The nonmovant must do more
than simply show that there is some metaphysical doubt as to the material facts, and must
come forward with specific facts showing that there is a genuine issue for trial.” Briscoe
v. County of St. Louis, Mo., 690 F.3d 1004, 1011 (8th Cir. 2012) (citations omitted). The
17

movant is entitled to summary judgment when the nonmovant has failed “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, 322-23 (1986).
ERISA Standard
“In general, a claim administrator’s denial of benefits is subject to de novo review
by the district court. Where the plan grants the administrator or fiduciary ‘discretionary
authority’ to determine eligibility for benefits, however, the standard of review is relaxed,
and abuse of discretion becomes the appropriate benchmark.” Cooper v. Metro. Life Ins.
Co., 862 F.3d 654, 660 (8th Cir. 2017). “To determine whether the benefit plan gives
the administrator or fiduciary discretionary authority, courts must look for explicit
discretion-granting language in the policy or in other plan documents.” McKeehan v.
Cigna Life Ins. Co., 344 F.3d 789, 793 (8th Cir. 2003) (citations omitted). Here, the LTD
Plan at issue includes the requisite language triggering the Court’s abuse of discretion
standard. See Cooper, 862 F.3d at 660.
Under the abuse of discretion standard, the Court will uphold a claim
administrator’s decision so long as it is reasonable and supported by substantial evidence.
Hampton v. Reliance Standard Life Ins. Co., 769 F.3d 597, 600 (8th Cir. 2014). “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.”
Ingram v. Terminal R.R. Ass’n of St. Louis Pension Plan for Nonschedule Emps., 812
F.3d 628, 634 (8th Cir. 2016) (citation omitted). The court must not substitute its own
weighing of the evidence for that of the decision-maker. Gerhardt v. Liberty Life Assur.
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Co. of Boston, 736 F.3d 777, 780 (8th Cir. 2013).
Upon careful consideration of the record before it, the Court cannot say that
Sedgwick abused its discretion in denying Plaintiff LTD benefits. As noted above,
Sedgwick approved Plaintiff’s claim for LTD benefits for the entire 24-month period of
disability allowable under the “own occupation” standard. After 24 months, the standard
shifts to the “any occupation” definition of disability, which is broader than the “own
occupation” standard.
Plaintiff’s FCE, performed in November 2015, reflected that she could
occasionally lift up to twenty pounds floor to waist, push and pull ten pounds of force,
stand and sit frequently, walk occasionally, climb stairs occasionally, engage in constant
object handling and fingering, and occasionally reach floor level. It determined that
Plaintiff could not reach overhead with her left upper extremity. Plaintiff’s medical
records indicate that although Plaintiff continued to experience some pain due to her left
shoulder and neck, Plaintiff was “doing well” on her pain medications, and evaluations of
Plaintiff’s range of motion were generally normal. A TSA performed by Ms. PhillisHarvey, which accounted for any limitations in Plaintiff’s ability to reach, concluded that
Plaintiff could work as a nurse instructor, school nurse, office nurse, or nurse consultant.
Ms. Phillis-Harvey noted that these occupations would allow Plaintiff to change positions
often, and Plaintiff’s sixteen years as a nurse made her well-qualified for those
occupations.
Sedgwick relies heavily on the opinions of its retained experts, Dr. Orenstein, Dr.
Mendelssohn, and Dr. Grattan. Cumulatively, those reports conclude that, based upon
19

the objective findings in her medical records, Plaintiff is not limited by any mental or
physical condition. Dr. Mendelssohn and Dr. Grattan specifically reviewed Plaintiff’s
records to determine whether the side effects of any medications were disabling.
Although Plaintiff complained of side effects that might have been the result of
medications, Sedgwick reasonably relied on Dr. Grattan’s opinion if the side effects were
debilitating, Plaintiff’s treating physicians would have adjusted the dosage or explored
alternative medications. Further, with the exception of one medical record noting
decreased flexion, extension, and abduction of the left shoulder, the record generally
lacks evidence of severe limitations in Plaintiff’s range of motion after her shoulder
surgeries. And, assuming that Plaintiff is unable to reach, the occupations identified by
Ms. Phillis-Harvey account for that limitation.
Although Dr. Kramarich and Dr. Tucker submitted interrogatories stating that
Plaintiff could not return to work, Sedgwick did not err when it relied on the opinions of
its reviewing physicians. “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). Moreover, as pointed out by the reviewing physicians, Plaintiff relies solely on
her own subjective complaints as evidence of her disability.
Even if the Court’s interpretation of the submitted medical evidence may not have
been identical to that of the adjudicators for Sedgwick, the Court’s interpretation need not
be the same as the claim administrator. Presi v. Ascension Health Alliance, No.
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4:16CV01857JCH, 2019 WL 1200347, at *14 (E.D. Mo. Mar. 14, 2019). This Court
“may not simply substitute its opinion for that of the plan administrator.” FletcherMerrit, 250 F.3d 1174, 1180 (8th Cir 2001). In this case, Sedgwick gave detailed reasons
for denying Plaintiff’s LTD claim, clearly pointed to the basis for its decision, and noted
Plaintiff’s lack of objective support for her claimed disability. Upon consideration of the
record before it, the Court cannot say that Sedgwick abused its discretion in denying the
Plaintiff’s claim for LTD benefits. The denial of benefits based upon lack of objective
evidence of the Plaintiff’s disability is not unreasonable. See Coker v. Metro. 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 Am., 748 F.3d 797, 806
(8th Cir. 2014) (same). The record reflects that there exist occupations which Plaintiff
may be reasonably qualified to perform. After careful review, the Court concludes that
Sedgwick’s denial of LTD benefits under the Plan reasonable and supported by the
medical evidence.
Sedgwick also seeks summary judgment on its counterclaim, which seeks the
reimbursement of overpayments resulting from Plaintiff’s receipt of social security
benefits. Plaintiff did not file any opposition to this aspect of the motion. However,
“when a plaintiff fails to respond adequately to a motion for summary judgment, a district
court should not treat such a non-response as sufficient to dispose of the motion.” Buck
v. Am. Family Mut. Ins. Co., No. 4:12CV1879 SNLJ, 2014 WL 272343, at *2 (E.D. Mo.
Jan. 24, 2014) (citations omitted). “Courts should proceed to examine those portions of
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the record properly before them and decide for themselves whether the motion is well
taken.” Id. (citation omitted).
The Eighth Circuit has affirmed the reimbursement by an employee beneficiary of
an overpayment by an ERISA Plan administrator. See Dillard’s Inc. v. Liberty Life
Assurance Co. of Boston, 456 F.3d 894 (8th Cir. 2006). The record reflects that on
December 4, 2016, Plaintiff received a retroactive Social Security Award of $39,366 for
the period of November 2013 through November 2016. ECF No. 30 at 53. Sedgwick
contends that during this period, it made overpayments in the amount of $22,792.44.
However, there is no affidavit or other evidence in the record supporting the amount
overpaid or how the calculation was made. Accordingly, to the extent Defendants seek
reimbursement for any overpayments made to Plaintiff, the motion will be denied.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s renewed motion for summary
judgment is DENIED. ECF No. 74.
IT IS FURTHER ORDERED that Defendants’ motion for summary judgment is
GRANTED IN PART and DENIED IN PART, as set forth in this Order.
IT IS FURTHER ORDERED that, on or before January 15, 2020, the parties
shall submit a joint proposed schedule for Defendants’ counterclaim.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 26th day of December 2019.
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