Johnson v. United of Omaha Life Insurance Company et al

Filing 56

MEMORANDUM AND ORDER- The defendant's motion for summary judgment (Filing No. 31 ) is denied. The plaintiff's motion to strike the declaration of Molly Kuehl (Filing No. 40 ) is denied as moot. The plaintiff's motion for summa ry judgment or, in the alternative, motion for judgment on the administrative record (Filing No. 46 ) is granted. Judgment will be entered in favor of the plaintiff and against defendant for disability benefits due under the policy in an amount to be later determined. The parties shall meet and confer with respect to the calculation of those benefits and report to the court within 21 days of the date of this order. The plaintiff shall file a motion for attorney fees within three weeks of the date of this order; the defendant shall respond to that motion within 14 days thereafter. Ordered by Judge Joseph F. Bataillon. (MKR)



IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

VICKI JOHNSON,
Plaintiff,

8:11CV296

v.
MEMORANDUM AND ORDER
UNITED OF OMAHA LIFE INSURANCE
COMPANY,
Defendant.

This matter is before the court on the defendant’s motion for summary judgment,
Filing No. 31, and the plaintiff’s motions for summary judgment or, in the alternative,
judgment on the administrative record, Filing No. 46, and to strike the declaration of
Molly Kuehl, Filing No. 40.1 This is an action for judicial review of an administrative
determination denying benefits under the Employee Retirement Income Security Act
(“ERISA”), 29 U.S.C. § 1101 et seq. The plaintiff alleges she was wrongfully denied
long-term disability benefits under an employer-sponsored disability insurance plan
purchased by her employer from defendant United of Omaha of Omaha Life Insurance
Co. (“United of Omaha”).
The administrative record has been filed. Filing No. 32, Index of Evid., Ex. 1(B),
Administrative Record (“Admin. Rec.”), Part I (AR 1 to AR 424) (Doc # 32-3, Page ID #
137-560); Part II (AR 425 to AR 623) (Doc # 32-4, Page ID # 561-759); Part III (AR 62428) (Doc # 32-5, Page ID # 760-64) (citations to evidence in the record will refer to the
Bates-labeled page numbers preceded with “Johnson AR” on the lower right corner of
1

Defendant submits the declaration of Molly Kuehl as foundation for its exhibits and to support its
contention that the defendant was not operating under a conflict of interest. Filing No. 52, Index of Evid.,
Ex. 1, Declaration of Molly Kuehl. Because the resolution of the conflict-of-interest issue is a question of
law, the court will not consider Ms. Kuehl’s declaration in connection with the issue. The court finds it is
not necessary to strike the declaration and the plaintiff’s motion to strike will be denied as moot.

the documents). An index of the Bates-labeled documents is filed as Ex. 1(A) (Doc #322).

Also, the plaintiff was granted leave to supplement the record to include the

plaintiff’s long-term disability (“LTD”) claim form. Filing No. 42, Motion to Expand the
Record, Exs. 1 & 2, LTD claim form, AR 628-39 (Doc #48-1, Page ID #891-901). United
of Omaha agrees that the claim form should be part of the record. See Filing No. 51,
text order granting unopposed motion to expand. Accordingly, the matter is ripe for
resolution on the record.
I. FINDINGS OF FACT
A. Plan Terms
The employee benefits plan at issue is a disability insurance policy (“the Policy”
or “the Plan”) issued by defendant United of Omaha to Johnson’s employer, Colorado
Real Estate. Filing No. 32, Index of Evid., Admin. Rec., Part I at AR 1-48. A Summary
Plan Description, which is required under ERISA, appears at pages 28 to 30 of a “Group
Long-Term Disability Insurance Summary of Coverage” booklet. Id., AR 48-51. The
Summary of Coverage provides that “[i]n the event of a discrepancy between this
Summary of Coverage and the Certificate, the Certificate will control” and further states:
“This Summary of Coverage is not a contract.

You are not necessarily entitled to

insurance under the Policy because You received this Summary of Coverage. You are
only entitled to insurance if You are eligible in accordance with the terms of the
Certificate.”

Id., AR 14.

The “Standard Provisions” section of the Summary of

Coverage provides that the “Insurance Contract consists of (a) the policy; (b) the
Policyholder’s application attached to the policy; and (c) your application, if required.

2

Id., AR 48.

The Summary Plan Description, under the heading “AUTHORITY TO

INTERPRET POLICY,” provides:
By purchasing the Policy, the Policyholder [Colorado Real Estate] grants
Us [United of Omaha] the discretion and the final authority to construe and
interpret the Policy. This means that We have the authority to decide all
questions of eligibility and all questions regarding the amount and
payment of any Policy benefits within the terms of the Policy as interpreted
by Us. Benefits under the Policy will be paid only if We decide, in Our
discretion, that a person is entitled to them. In making any decision, We
may rely on the accuracy and completeness of any information furnished
by the Policyholder or an Insured Person. Our interpretation of the Policy
as to the amount of benefits and eligibility shall be binding and conclusive
on all persons.
Id., AR 51.

Further, the SPD provides that the “persons with authority to change,

including the authority to terminate, the Plan or the Policy on behalf of the Policyholder
are the Policyholder’s Board of Directors or other governing body, or any person or
persons authorized by resolution of the Board or other governing body to take such
action.” Id.
To qualify for disability benefits, a claimant must demonstrate that he or she is
disabled within the meaning of the Policy. See, e.g., id., AR 37. The Policy provides
that United of Omaha will pay benefits upon receipt of an “acceptable proof of loss” and
that benefits will continue until the claimant fails to provide United of Omaha with
“satisfactory proof” that the claimant is disabled. Id., AR 37-43. Under the Plan, “total
disability” is defined as follows:
Total Disability and Totally Disabled . . . means that because of an Injury
or Sickness:
(a) You [the beneficiary] are unable to perform all of the
material duties of Your regular occupation on a full-time
basis; and

3

(b) You are unable to generate Current Earnings which
exceed 20% of Your Basic Monthly Earnings due to that
same Injury or Sickness; and
(c) after a Monthly Benefit has been paid for 2 years, You
are unable to perform all of the material duties of any gainful
occupations for which you are reasonably fitted by training,
education or experience.
Id., AR 25.
The Policy further provides, under the heading “Proof of Loss
Requirements,” that:
1. You can meet the proof of loss requirement by giving Us [United
of Omaha] a written statement of what happened. Such statement should
include:
(a) that You are under the Regular Care of a Physician;
(b) the appropriate documentation of Your job duties at Your
regular occupation and Your Basic Monthly Earnings;
(c) the date Your Total and/or Partial Disability began;
(d) the cause of Your Total and/or Partial Disability;
(e) any restrictions and limitations preventing You from
performing Your regular occupation;
(f) the name and address of any Hospital or institution where
You received treatment, including attending Physicians.
2. Next, You and Your employer must complete and sign Your
sections of the claim form, and then give the claim form to the Physician.
Your Physician should fill out his or her section of the form, sign it, and
send it directly to us.
Id., AR 42. Further, the Policy states that United of Omaha “sometimes require[s] that a
claimant be examined by a Physician or vocational rehabilitation expert of Our choice,”
and that United of Omaha will pay for the examinations. Id., AR 43. The Policy also
provides that benefits would cease to an insured person receiving benefits on “the day
You fail to comply with Our request to be examined by a Physician and/or vocational

4

rehabilitation expert of Our choice.” Id., AR 37. The Policy also sets forth Disability
Claim Review Procedures (As Federally Mandated)” and procedures for appeal of an
adverse decision. Id., AR 44-47.
B. Plaintiff’s Medical History
Records show Vicki Johnson (“Johnson”) had complained of neck pain as far
back as 1994. Filing No. 32, Admin. Rec. Part II at AR 505. Following a lengthy
conservative course of treatment and EMG diagnostic study, she underwent bilateral
carpal tunnel release surgery in 1994-95. Id., Admin. Rec. Part I at AR 226-7. She
returned to work June 26, 1995. Within two weeks she was diagnosed with possible
cervical disc problems causing posterior shoulder and upper arm pain. Id., AR 227.
Her neck and shoulder pain was also treated in 1997. Id., AR 241, 152-57.
On June 9, 2003, she was diagnosed with cervical spondylosis with stenosis and
bone spurring from C5-6 through C7-T1. Id., Admin. Rec., Part II at AR 447. She
reported intermittent numbness to her hands for several years with pain and a burning
sensation. Id., AR 445. She also reported chiropractic treatment. Id. Her bilateral
carpal tunnel surgery had not resolved the hand symptoms. Id., AR 442-448. She had
also undergone a conservative course of physical therapy with no relief of symptoms.
Id., AR 439-441.

Previous medications included Advil, Flexeril, Xanax, Vioxx and

multiple NSAIDs. Id., AR 445.
A nerve study in 2004 showed “electrodiagnosis evidence of a chronic cervical
polyradiculopathy involving bilateral C6 and left C7 nerve roots suggesting that there is
permanent nerve injury in the arms at this point.” Id., AR 191. The permanent nerve

5

damage was caused by “disk material extending into each neuroforamen,” “central disk
protrusion,” and “Ligamentum Flavum Hypertrophy.” Id., AR 191-92.
In June 2004, the plaintiff had spine surgery for “symptomatic cervical
spondylosis with stenosis of C4-5, C5-6 and C6-7.” Id., AR 421. She underwent: “(1)
Anterior cervical discectomy and decompression of C4-5, C5-6, and C6-7; (2) Anterior
interbody fusion C4-5, C5-6, and C6-7; (3) Anterior interbody space C4-5, C5-6, and
C6-7; (4) Small effused bone morphogenic protein; (5) Local bone graft.” Id., AR 423.
Dr. McClellan testified under oath that Johnson’s surgical procedure was “a removal of
the disk at three levels, the C4/5, C5/6 and C6/7. A fusion of those three sites from C4
to C7, and the fusion was completed with bone graft and an anterior plate.” Id., AR 192.
The record reflects that the interbody spacers, graft and plate are held together with
eight surgical screws. Id., AR 423-24. He described it as a significant procedure that
significantly limits range of motion. Id., AR 193. He also stated that Johnson was more
likely to need another surgery with the fusion of three vertebrae as a result of “overusing
the other disk spaces that have not been fused to do more work after the fusion.” Id.,
AR 194. Johnson achieved some relief after the surgery and was able to return to work
in 30 days. Id., AR 157.
In September 2004, Johnson returned to her spine surgeon reporting neck and
right shoulder pain. Id., AR 194. Dr. McClellan stated that the return of her symptoms
three months after surgery indicated a poor prognosis. Id., AR 194-95. Six months
after the surgery, Johnson was again examined by Dr. McClellan. Id., AR 196. She
complained of posterior neck, right shoulder and right arm pain. Id. Dr. McClellan
conducted outcome tests, a paper test known as SF36, which showed that her neck

6

disability index score was a value of 62, which suggests a high/moderate disability. Id.,
AR 197. Dr. McClellan described the outcome testing process as a “scientific process
intended to elicit from the patient from visit to visit the degree of problems they’re
experiencing.”

Id., AR 197-98.

The tests are standardized by the National Spine

Network and are “well-accepted standardized outcome tests that have been validated,”
similar to functional capacity evaluations. Id., AR 198-99. Dr. McClellan testified that
based on those objective tests Johnson was “moderately disabled as early as seven
months after surgery.” Id., AR 199.
Johnson was treated by Dr. Cochran in 2005 for arthritis in her hands and
Achilles tendinitis. Filing No. 32, Admin. Rec. Part II at AR 502. At that time, Dr.
Cochran noted that Johnson had been prescribed Trazadone, Lortab and Flexeril. Id.
In February 2009, Johnson’s treating family practice physician, Dr. Cheryl MacDonald,
reported that Johnson was “having pain all the time into her neck, into her arms, into her
hips, and in her side. . . . Her chronic pain continues to worsen.”

Filing No. 32,

Attachment 3, Admin. Rec. Part I at AR 293. Dr. MacDonald’s assessment was: “1)
Anxiety and depression; 2) Fibromyalgia and chronic pain.” Id.
Johnson applied for short-term disability on February 26, 2009. Filing No. 32,
Attachment 4, Admin. Rec. Part III at AR 604-05. In the Attending Physician Statement
section of the claim completed on March 3, 2009, under “Subjective/Objective Findings,”
Dr. MacDonald wrote:

“Pain-neck, hips, shoulders, some legs, panic attacks,

depression, trouble with memory, concentration,” listing as contributing conditions “neck
fusion, arthritis.” Id., AR 488.

7

Johnson was again seen by her family physician, Dr. MacDonald, on June 19,
2009. Id., AR 129-30. She reported pain in her arms and was prescribed Lyrica for
pain and Neurontin for nerve pain. Id. Dr. MacDonald observed that Johnson was
“really struggling” and had “incredible problems with her neck and arms,” to the point
that she could not “stand for over 15 minutes, cannot hold or bend without having
significant pain” and was “unable to complete any tasks.” Id., AR 289. Dr. MacDonald
noted that Johnson was “[o]bviously uncomfortable” and it was difficult to examine her
neck.”

Id., AR 289.

Dr. MacDonald’s diagnosis was “[n]eck pain with radicular

symptoms.” Id. The doctor’s notes show that Johnson was “trying to avoid narcotics
and muscle relaxants.” Id., AR 289. On physical examination, Dr. MacDonald noted
that there was “definitely atrophy of the deltoid on the left versus the right.” Id. Dr.
MacDonald’s notes indicate that Johnson was “unable to consistently do anything or
even participate with activities with her children and grandchildren.”

Id.

Dr.

MacDonald’s plan was to try Solu-Medrol/Medrol Dosepak to slow down swelling and
discomfort, continue with anti-inflammatories, and consider neurosurgery evaluation. Id.
Johnson returned for further treatment on October 12, 2009. Dr. MacDonald
conducted a physical examination involving fibromyalgia trigger points as described by
the Mayo Clinic and found Johnson was tender at all 18 points.2 Id., AR 287. Dr.

2

Fibromyalgia is a rheumatic disease with symptoms that include “significant pain and fatigue,
tenderness, stiffness of joints, and disturbed sleep.” DuPerry v. Life Ins. Co. of North Amer., 632 F.3d
860, 863 n.1 (4th Cir. 2011); Stedman’s Concise Medical Dictionary for the Health Profession 361 (4th ed.
2001) (defining fibromyalgia as “a condition of chronic diffuse widespread aching and stiffness affecting
muscles and soft tissues; diagnosis requires 11 of 18 specific tender points. . . .”); Meraou v. Williams Co.
Long Term Disability Plan, 221 Fed. Appx. 696, 705 (10th Cir. 2007) (stating that “Fibromyalgia is a
disorder characterized by achy pain, tenderness and stiffness of muscles, areas of tendon insertions and
adjacent soft-tissue structures”). Fibromyalgia is diagnosed “based on tenderness of at least eleven of
eighteen standard trigger points on the body.” DuPerry, 632 F.3d at 863 n.1. The “trigger point” test is

8

MacDonald’s assessment was “Fibromyalgia per testing points positive” and
“Depression, still struggling. Mood severe and ongoing.” Id. Dr. MacDonald’s notes
indicate that “we discussed Cymbalta3 as another viable option but currently [she is]
without insurance [and it] is not financially a viable option.” Id. at AR 287.
Dr. MacDonald thereafter completed a Long Term Disability Claim Physician’s
Statement noting Johnson had the following restriction and limitations:
Unable to lift more than 15lbs.
No push/pull/lean/reach
Avoid sources of stress
Not able to work @ computer
Can’t sit or stand for any length of time
Unable to walk for > 1 hour in a day.
Id., Admin Rec. Part II at 495. Dr. MacDonald also restricted Johnson’s use of her
hands in repetitive activities, use of feet in repetitive movements, and restricted
bending, squatting, crawling, climbing, and reaching above shoulder level. Id. Further,
Dr. MacDonald noted that Johnson’s neck symptoms were expected to deteriorate. Id.
After she applied for disability, Johnson was examined on May 12, 2010, by her
spine surgeon, Dr. John McClellan. Id., AR 132-35. He noted that she presented with
“complaints of pain in the neck and down the upper extremities with parasthesias and
some weakness, right greater than left.” Id. at AR 132. Dr. McClellan’s examination
recognized in the case law and the medical literature as a prerequisite to a diagnosis of fibromyalgia.
See Chronister v. Baptist Health, 442 F.3d 648, 656 (8th Cir.2006) (discussing the trigger point test);
Hawkins v. First Union Corp. Long-Term Disability Plan, 326 F.3d 914, 919 (7th Cir. 2003) (noting that the
condition can be objectively diagnosed by examining for pain 18 trigger points on the body). The Eighth
Circuit Court of Appeals recognizes that trigger-point test findings consistent with fibromyalgia constitute
objective evidence of the disease. Johnson v. Metro. Life Ins. Co., 437 F.3d 809 (8th Cir. 2006).
Fibromyalgia can be treated by a primary care physician but is often detected by a rheumatologist. See
http://www.rheumatology.org/practice/clinical/patients/diseases_and_conditions/fibromyalgia.asp
3

Cymbalta is an anti-depressant that has been approved by the Food and Drug Administration
for the management of diabetic peripheral neuropathic pain and fibromyalgia. See http://www.
cymbalta.com/Pages/cymbaltaandfibromyalgia.aspx

9

revealed arm weakness and “diffuse pain over the cervical bony and soft tissues” with
“moderately limited range of motion of the cervical spine in all planes.” Id. He ordered
CT and MRI imaging to “evaluate adjacent stenosis at C7-T1,” and noted that Johnson
was “disabled from [her] neck problem,” commenting that she had “increasing
symptoms down the arms and numbness and tingling into the 4th and 5th digit.” Id.
On May 24, 2010, Dr. McClellan reviewed the imaging reports and physician’s
assistant Erin Strufing discussed the findings with Johnson. Id., AR 140. Strufing’s
notes indicate that the MRI scan showed Johnson “has disc herniations at T1-2 and T23. This correlates with her upper back pain, the pain that radiates underneath her axilla
and around her rib cage. She also does have some numbness, tingling down the upper
extremities.”

Id.

Notes also indicate that Johnson was told that treatment for her

condition would be very difficult and would “involve an anterior fusion C7-T3 which
would be technically very difficult followed by a posterior spine fusion at C4 down
through T3.” Id. Further, she noted that Johnson was “relieved to know that we have
explained the source for the significant pain that she experiences every day” and that
“[t]he patient would like to call back when she has medical coverage. She pays out of
pocket currently for this.” Id. Mrs. Johnson later testified that she had to pay $5,000 in
advance for her Spine Center appointment and tests. Id., AR 179-80.
Johnson visited her primary care doctor, Dr. MacDonald, on June 22, 2010. Id.,
AR at 129. Dr. MacDonald’s notes indicate she prescribed an anti-inflammatory, a
muscle relaxant, and Lyrica and Neurontin for nerve pain.

Id., AR 130.

Dr.

MacDonald’s findings indicated “half arm numb and pain in arms.” Id. Her “plan” noted
“gabapentin,” “flexeril,” and “Norco.” Id.

10

In his August 23, 2010, sworn statement, Dr. McClellan testified that Johnson
has moderate to severe stenosis in multiple locations, suggesting that she has a “fairly
aggressive degenerative process” involving the majority of the neck and extending into
the upper thoracic spine.”

Id., AR 203-04.

A CT scan shows her spinal canal is

moderately to severely narrowed in the upper thoracic spine. Id., AR 203-04. He stated
that her “neck problem [was] now compressing the nerves again and it’s even more
widespread than when we started.” Id. The condition would be expected to cause
symptoms including myelopathy, moderate to severe neck pain, headaches and
radicular symptoms. Id., AR 204. He testified that Johnson’s complaints are consistent
with the findings on the MRI and CT scans. Id., AR 209. Based on his experience and
on a research project he conducted, he stated that people with radicular symptoms like
Johnson are most likely to be disabled and would be expected to have pain even from
activities of daily living. Id. at 209-212. Pain at a level of 8 to 10 on a scale of 10 is also
consistent with the condition. Id. at 212. Dr. McClellan also stated that “Vickie has no
pain-free days” and that “Sitting at a computer, working on a keyboard, looking at a
computer in one position for any length of time would be very difficult for Vicki.” Id., AR
210. He concluded she is “significantly impaired by this condition.” Id., AR 212.
Dr. McClellan explained that Johnson’s 2004 surgery was performed specifically
to address her nerve injury and relieve the C-6 nerve pain, which the surgery
accomplished, but Dr. McClellan believed that in her case “we underestimated the
symptoms that were going to be caused by the adjacent structures . . . the arthritis or
the degeneration or the other areas of narrowing.” Id., AR 200. He stated that the
potential surgery to address her current problems would involve “essentially fusing her

11

entire neck down into the thoracic spine” and that “[a] surgery that is that extensive
essentially eliminates the majority of the motion in your neck,” accordingly, the surgery
is “[o]nly done in extreme cases.” Id., AR 208. He further stated that other treatments
are “just coping mechanisms [that] will never fix the problem.” Id. Based on her status
six months after the surgery, he stated the doctors “knew it would not be a good
outcome” and that they “could have anticipated or expected this type of result several
years down the road.” Id., AR 209. He noted her pain “makes perfect sense” and “her
complaints are realistic given the findings on the CT and MRI.” Id., AR 209. He stated
a person with Johnson’s condition would be “[d]ramatically affected by it” and that his
patients with persistent arm pain, persistent limb symptoms, sciatica or radiculopathy
are at highest risk for permanent disability that would affect their livelihood. Id., AR 210.
His concern is Johnson’s progressive arm complaints that suggest she is “slowly
developing nerve damage similar to that she had before the first surgery.” Id. He stated
that repeat nerve testing would show this, but would not change the treatment or
recommendation. Id.
The record also includes the plaintiff’s sworn testimony.

Id., AR 142-185.

Johnson stated under oath that her condition steadily worsened. Id., AR 172. She
testified that she now has pain, numbness and tingling that has gradually increased
immediately below where fusion was. Id., AR 164-65. She testified the pain is constant
and is often at a level of ten on a pain scale. Id. She also stated she experiences sharp
pain into shoulders and arms, runs down the torso and into rib cage. Id. She stated
that her typical day includes sitting in a chair with ice on her arms most of the time. Id.,
AR 177-78. She can perform only minimal housekeeping tasks Id., AR 175. She

12

testified that she would have gone to her spine doctor earlier but did not have health
insurance.

Id., AR 179-80.

She reported taking pain medication, anti-seizure

medication, and anti-inflammatory drugs. Id., AR 174.
At Johnson’s counsel’s request, a certified vocational rehabilitation counselor
prepared a long-term disability report.

Id., AR 215-52.

She reviewed voluminous

medical and prescription records, spoke to Johnson by telephone, reviewed
questionnaires and inventories filled out by Johnson, and analyzed Johnson’s skills and
abilities based on her education and experience. Id., AR 216-21. At that time, Johnson
reported taking Meloxicam, Hydrocodone, Flexeril, Simvastin, Prozac, Trazodone and
Gaba Pentin. Id. at 216. She found that the job definition of “sedentary work” did not
necessarily define the job Johnson was required to do as a rent-roll specialist, and
found the job would be characterized as light rather than sedentary work. Id., AR 223.
She concluded that Johnson was incapable of working on a full-time basis and would be
unable to perform the job she was doing or any other job within the competitive labor
market. Id., AR 224. No evidence in the record refutes Ms. Freeman’s report.
C. Procedural History
The plaintiff first applied for short-term disability benefits on February 26, 2009,
indicating she was disabled as a result of “severe depression/anxiety, fibromyalgia and
pain syndrome.” Filing No. 32, Attachment 5, Admin. Rec. Part III at AR 604-605; Filing
No. 32, Attachment 4, Admin. Rec. Part II at AR 487-88.
United of Omaha’s internal records show that Johnson’s file was referred by
Group Disability Analyst Julie Shahan to the Vocational Rehabilitation Department and
to a nurse case manager for review on April 3, 2009. Filing No. 32, Attachment 3,

13

Admin Rec. at AR 323-24. An initial review was performed by Sadie Burr, MA, LMHP,4
on April 8, 2009. She reported that Johnson was “diagnosed with Depression, Panic
Attacks, and Fibromyalgia.”

Id., AR 324.

The diagnosis category was listed as

“nervous-Mental-Addiction.” Id., AR 325. Burr concluded:
It appears Johnson voluntarily terminated her employment due to
stress and complaints of fibromyalgia pain. However, it seems she then
presented to Dr. MacDonald because she was worried and “wanting to try
for disability”. There’s no indication that Johnson is psychiatrically unable
to perform the essential duties of her job. The records clearly indicate that
she quit her job because she was “unable to handle it.”
Id., AR 324. On April 13, 2009, Julie Shahan wrote to Johnson, informing her that the
short-term disability claim was denied. Filing No. 32, Attachment 5, Admin. Rec. Part II
at AR 576. The letter stated only that the determination had been based on medical
records received from Dr. MacDonald and that “[i]n summary, the documentation
received does not support impairment from performing the essential duties of your job.”
Id.
On May 12, 2009, Johnson wrote to Julie Shahan at United of Omaha regarding
United’s decision to deny her request for disability benefits. Id., AR 466, 568-71. In the
letter, Johnson explained that her depression was a byproduct of Fibromyalgia and neck
pain. Id., AR 569. United of Omaha’s internal records show that a file was opened on
Johnson’s appeal of her short-term disability claim on August 11, 2009. Filing No. 32,
Attachment 3, Admin. Rec. Part I at 326. At that time the file was referred by Chris

4

LMHP stands for Licensed Mental Health Practitioner.

14

Rodenbiker for physician review by Dr. Timothy Tse., MD, MBA, FAPA.5 Id. He was
asked to review:
additional medical records submitted to include an updated office note
from Dr. MacDonald, prior medical history from Dr. Cochran from 11/15/94
to 02/07/05, and prior medical history from Dr. McClellan from 06/09/03 to
09/08/05, as well as the CH [certificate holder’s] letter of appeal. She
requests reconsideration of benefits upon appeal as she believes her
neck, arm, and shoulder pain, fibromyalgia, contributed to her depression
and resulting inability to work. No counseling notes were submitted upon
appeal.
Filing No. 32, Attachment 3, Admin. Rec. Part I at AR 326-27. On August 24, 2009, Dr.
Tse responded that he needed additional medical records to establish the diagnoses of
fibromyalgia, depression, and panic attack/anxiety. Id., AR 328. There is no evidence
that additional records were ever provided to Dr. Tse. See id., AR 336.
United of Omaha’s internal notes in the summer of 2009 indicate that some of
Johnson’s medical records were lost or misplaced. Filing No. 32, Attachment 4, Admin
Rec. Part II at AR 560-62; Attachment 3, Admin. Rec. Part I at AR 336.
On September 1, 2009, in a letter signed by Chris Rodenbiker, Appeals and
Resolution Specialist, United of Omaha denied Johnson’s appeal of the denial of shortterm disability benefits.

Id., AR 499-500.

In the denial letter, Rodenbiker stated:

“According to the information in your file, you stopped working as a Rent Roll Specialist
February 26, 2009, due to . . . fibromyalgia. . . . Your medical records from Dr. Cochran
and Dr. McClellan do not support a diagnosis of fibromyalgia and there is very little
medical evidence to support a diagnosis of depression, panic attack, or anxiety” and
concluded, “[i]n summary, the documentation in your file does not support any functional

5

FAPA stands for Fellow, American Psychiatrist Association. Dr. Tse is a psychiatrist.

15

or global psychiatric impairments that would have prevented you from performing the
material duties of your regular job.”

Id.

The letter discussed only psychiatric

impairments and did not address either chronic neck pain or fibromyalgia Id.
Johnson also filed a Long Term Disability (LTD) Claim, and United of Omaha
received the claim on October 15, 2009, and opened a file for the claim in December
2009. Filing No. 32, Attachment 3, Admin. Rec. Part I at AR 56; Attachment 4, Admin.
Rec. Part II at 494-95

The LTD Claim Physician’s Statement, completed by Dr.

MacDonald, indicates a primary diagnosis of Depression and Chronic Pain Syndrome.”
Id., AR 494. Correspondence dated January 18, 2010, indicated that United of Omaha
was awaiting medical records from Dr. MacDonald. Id., Attachment 3, Admin. Rec. Part
I at AR 305.
United of Omaha’s internal notes show that on February 10, 2010, the claim was
referred to a nurse case manager for review. Id., AR 58, 339. In the referral, Group
Disability Management Services employee Sophie Feng states that “The current
restrictions and limitations, as indicated in the medical records, for the Insured are; sit<
2 hrs, Stand < 1 hr and walk < 2 hrs in 8 hrs period, lifting< 15 lbs, uses hands and feet
repetitively, banding, squatting, climbing, crawling, reach above shoulder.” Id. at 339.
Carol Johnson, RN, BS, reviewed the claim and stated in her medical analysis dated
February 19, 2010, that:
it appears from the records that the claimant terminated her employment
due to stress and complaints of fibromyalgia pain. There is no new
treatment for her complaints of her fibromyalgia other than medications
from 02/26/09-10/12/09. The records indicate that she quit her job
because she was “unable to handle it” which appears to be due mainly to
a condition other than her fibromyalgia. It was noted that the claimant had

16

this condition, fibromyalgia, that it was chronic, and that she had been
working with it prior to her quitting her job.
Id., AR 340. Nurse case manager Johnson reviewed the following records: “Office
notes from Dr Cheryl MacDonald dated from 02/26/09-10/12/09, Office note from Dr
Patrick McCarville, MD dated 10/21/09, Attending Physician’s statement from Dr Cheryl
MacDonald dated 10/12/09.” Id. at 339.
The record shows the claim was also referred to Nervous and Mental Health
Coordinator Sadie Burr, MA, LMHP, NCC, for review, noting that “all known medical
records have not been received to date.” Id. at 335. Ms. Burr was asked to determine
“if the restrictions, limitations and the mental capacity the Insured’s physician(s) has
indicated the Insured is capable of performing, is supported by the medical
documentation” and if not, to “identify the mental capacity the Insured should be
capable of performing and if there would be any specific restrictions and limitations.”
Id., AR 337. Ms. Burr noted that Dr. Tse had requested additional documentation and
that information requested in August 2009 had not yet arrived, and concluded that “it
seems pertinent to gather such information before a full review can be completed.” Id.,
AR 336. Further, the recommended handling of the file “changed format to a walk-up.”
Id. The diagnosis category was listed as “Nervous-Mental-Addiction” and the result of
the review was “need additional info.” Id.
The claim was also referred on December 18, 2009, to “rehab,” specifically to
Kim Rhen, MS, for an occupational review.

17

Id., AR 330.

Rhen reviewed the job

description provided by Johnson’s employer6 and compared it with the Dictionary of
Occupational Titles.

Id.

She concluded that the job was comparable to that of a

bookkeeper and would be characterized as a sedentary physical demand job. Id. The
occupational review, however, shows that physical demands of sedentary work include
lifting up to 10 lbs. occasionally and a negligible amount frequently.

Id., AR 331.

Sedentary work also involves frequent reaching, handling, and fingering. Id.
On March 3, 2010, United of Omaha sent a letter to Johnson denying the claim.
Id., AR 259-61.

The letter stated “you are claiming disability for fibromyalgia,

depression and anxiety.” Id. United of Omaha acknowledged Johnson was “tender on
all 18 fibromyalgia points, but stated “[h]owever there is no other test and no new
treatment for your fibromyalgia.” Id., AR 261. On August 27, 2010, Johnson, through
counsel, appealed the denial. Id., AR 122-27.
United of Omaha’s internal records dated November 18, 2010, refer to “1st
Appeal,” and show the file was referred to nurse case manager Nancy Rosenstock, RN,
BSN, COHN-S CLNC, for review. Id., AR 343. The referral states “The APS [attending
physician statement] completed by Dr. MacDonald on 2/27/09 gives DX [diagnosis] of
depression, panic attacks & fibro.” Id.

6

The employer’s job description stated:

While performing the duties of the job, the employee is frequently required to use hands
and fingers to operate a computer keyboard, mouse, 10 key calculator, and telephone to
talk or hear. The employee is occasionally required to stand, sit, carry items, and reach
with hands and arms. The employee must occasionally lift and/or move up to 15 pounds
or more. Specific vision abilities required by this job include close vision, color vision,
and ability to adjust focus.
Id., AR 275.

18

On review, Rosenstock recommended on December 8, 2010, that the file be sent
for an external peer review by an Orthopedic Spine Surgeon.7 Id. Nurse Rosenstock
recommended that the peer reviewer be asked to identify “what significant change
occurred, if any, in claimant’s overall physical status, as of February 2009, which would
have precluded her from being able to sit up to 6 hours out of an 8 hour day and lift up
to 10 lbs., per Department of Labor guidelines?” Id.
United of Omaha then referred Johnson’s file and medical records to a consulting
specialist for review.8 Id., AR 345. The specialist, Dr. James Boscardin, an orthopedic
surgeon, was asked to “[r]eview all records including video surveillance (if provided)”
and to determine “the medical conditions that are supported by this information,” to
“[d]ocument any consistencies and inconsistencies in the diagnosis, treatment, and
claimed impairment,” to answer the question set forth above and “to determine whether
the restrictions and limitations provided by the attending physician were supported.”
Filing No. 32, Attachment 5, Admin. Rec. Part 3, AR 624-27.
Dr. Boscardin reviewed Johnson’s medical records and other information
supplied by United of Omaha.9 Id., AR 95. In response to the query, “What medical

7

Interestingly, internal records also include a blank referral document with a Diagnosis Category
listed as “Musculoskeletal-Connective Tissue-Rheumatic.” Id. at 341.
8

In December 2010, Johnson’s counsel wrote to United of Omaha expressing concern over the
length of time the appeal had been pending, noting that “when Mrs. Johnson needed more time prior to
filing her appeal, [the defendant] refused.” Id., AR 109.
9

Specifically, Dr. Boscardin stated that he reviewed:

1. Job Description
2. Reviewed a document from Resolutions, Inc., authored by Paulette Freeman on 8/27/10.
3. Reviewed letters from Attorneys Lathrop from 8/27/10 and 12/6/10.
4 Reviewed sworn statements by Dr. McClellan on 8/23/10
5. Reviewed sworn statements from the claimants on 8/05/10.

19

diagnoses are supported by this information?”, Dr. Boscardin stated that “The claimant
has a chronic pain problem associated with her neck, upper thoracic spine and right
upper extremity. This is mainly based on self-reported complaints and the physical
exam does not reveal any specific atrophy, loss of strength, or sensation abnormalities,”
explaining that “[h]er Imaging Studies are not specific to explain her ongoing complaints.
It appears, after review of the medical records, including Imaging and physical exams,
that this represents a situation where the claimant is offering multiple physical
complaints without conclusive, objective evidence to support the claim.” Id., AR 197-98.
He based his finding on Johnson’s failure, despite her complaints, to return to her
operating surgeon from December 2004 to May of 2010. Id., AR 198. Further, he
stated that the “use of pain medication on an ongoing, more consistent, basis would
appear to be appropriate treatment for any impairing condition with this claimed degree
of severity and chronicity, but none is noted.” Id. Also, he noted, “[t]he medication and
its ingestion also leaves me unsettled in that someone complaining of pain at eight to
ten level is not requiring a greater degree of medication.” Id.
He found that Johnson had “some ongoing restrictions and limitations that would
limit repetitive extension of her neck, lifting over 10 lbs., and no twisting activities with

6. Reviewed the medical records of Dr. Cochran from 11/15/94 through 2/7/05.
7. Reviewed the medical records of Dr. John McClellan from 6/9/03 through 5/24/10.
8. Reviewed the medical records of Excel P.T. 6/18/03 and 7/17/03.
9. Reviewed MRs of the cervical spine performed on 4/1904 and 5/20/10.
10. Reviewed cervical CT reports for 9/8/05 and 5/20/10.
11. Reviewed EMG report performed by Dr. Devney 4/28/04.
12. Reviewed the Operative Report 6/8/04 of the anterior cervical decompression and fusion.
13. Reviewed the medical records of Dr. MacDonald from 2/26/09 through 6/27/10.
Id., AR 95-96.

20

the cervical spine.” Id. He found the claimant can sit “unlimited with change of position
as needed.” Id. Dr. Boscardin concluded:
After review of the medical records provided, I am not convinced that there
has been an adequate explanation for her continued complaints of pain.
Clearly, her records, including physical exams do not support significant
functional limitation beyond a sedentary level. The Imaging results are not
unusual in her age group and often Imaging of the thoracic spine is noted
to show lesions which have very little clinical correlation. A lesion at T1,
T2 is not in any way going to cause headaches or cause pain or
symptoms in the right arm.
Id. He stated that Johnson’s diagnoses were “based on self-reported complaints and
the physical exam does not reveal any specific atrophy, loss of strength, or sensation
abnormalities.” Id. at 621. He found the attending physician’s restriction and limitations
were not supported by the medical evidence, stating “I do not believe that claimant can’t
work with a computer, cannot stand for any length of time, and can sit for only one hour
a day.” Id., AR at 623. Also, he could identify no change in her physical status in
February 2009 that would have precluded her “from being able to sit up to six hours out
of ten hours a day and lift to ten pounds per Department of Labor Guidelines.” Id., AR
622.
Notably, he stated that his opinion was “solely based on the musculoskeletal
issues and does not take into consideration panic attacks or depression.” Id., AR 95.
He acknowledged that Johnson was diagnosed as having fibromyalgia, but made no
further mention of the disease. Id. at 96-98. Dr. Boscardin was paid $1,695.00 for the
file review. Id., AR 78-79.
Nurse Rosenstock subsequently approved Dr. Boscardin’s opinion. Id., AR 348.
Filing No. 32, Attachment 3, Admin Rec. Pt. 1, AR 348. The peer review report was

21

faxed to Dr. McClellan for his review. Id., AR 105, 107; 63. Dr. McClellan was asked
his “opinion on the results of the exam, particularly regarding the patient’s work
capacity,” specifically, if he believed Johnson could perform a job with physical
demands of “frequently using hands and fingers to operate a computer keyboard,
mouse, 10-key calculator and telephone. She would be required to occasionally stand,
sit, carry items and reach with hands and arms. She would be required to occasionally
lift and/or move up to 15 pounds or more.” Id., AR 105. Dr. McClellan responded that
“[o]verall, [he] agree[d] with Dr. Boscardin’s opinion,” noting that it was recommended
that she see a physical medicine and rehab pain specialist. Id., AR 102. He did not
answer the question regarding work capacity. Id.
United of Omaha denied Johnson’s appeal on January 28, 2010, stating “[w]e
acknowledge the fact that Johnson has a history of cervical discectomy and fusion of
C4-C7 in 2004 and would have some restrictions as a result of that surgery. However,
the medical information does not document functional impairment that would prevent
her from performing the duties of her occupation.” Id., AR 93.
II. LAW
Summary judgment is appropriate if there are no disputed issues of material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);
Aviation Charter, Inc. v. Aviation Research Group/US, 416 F.3d 864, 868 (8th Cir.
2005). “Where the unresolved issues are primarily legal rather than factual, summary
judgment is particularly appropriate.” Koehn v. Indian Hills Cmty. Coll., 371 F.3d 394,
396 (8th Cir. 2004). Under ERISA, when a denial of benefits is challenged through
judicial review, “the record that was before the administrator furnishes the primary basis

22

for review.” Trustees of Electricians’ Salary Deferral Plan v. Wright, 688 F.3d 922, 925
(8th Cir. 2012); see also Brown v. Seitz Foods, Inc., Disability Benefits Plan, 140 F.3d
1198, 1200 (8th Cir. 1998) (suggesting a district court should ordinarily limit its review to
the evidence contained in the administrative record).
The underlying purpose of ERISA is to protect the interests of participants in
employee benefit plans and their beneficiaries. 29 U.S.C. § 1001(b); see also Firestone
Tire & Rubber Co. v. Bruch, 489 U.S. 101, 113 (1989).

Under ERISA, a plan

“participant or beneficiary” 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.” 29 U.S.C. § 1132(a)(1)(B); see
CIGNA Corp. v. Amara, — U.S. —, —, 131 S. Ct. 1866, 1871 (2011).
An administrator’s decision is reviewed for an abuse of discretion when an
ERISA plan grants discretionary authority to the plan administrator to determine
eligibility for benefits. Jobe v. Medical Life Ins. Co., 598 F.3d 478, 481 (8th Cir. 2010);
Bruch, 489 U.S. 115. However, the district court should apply a de novo standard of
review, rather than an abuse of discretion standard, when the “administrator did not
exercise the discretion granted to it.” Alliant Techsystems, Inc. v. Marks, 465 F.3d 864,
868 (8th Cir. 2006). A less deferential standard of review (de novo review) is also
appropriate where there is material, probative evidence demonstrating that a serious
procedural irregularity existed that caused a serious breach of the plan administrator’s
fiduciary duty. Woo v. Deluxe Corp., 144 F.3d 1157, 1160 (8th Cir. 1998), abrogated in
part by Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008); see Wrenn v. Principal Life
Ins. Co., 636 F.3d 921, 924 n.6 (8th Cir. 2011) (recognizing “[a]fter the Supreme Court’s

23

decision in Glenn, the Woo sliding-scale approach is no longer triggered by a conflict of
interest,” but “[t]he procedural irregularity component of the Woo sliding scale approach
may . . . still apply in our circuit post-Glenn); Wade v. Aetna Life Ins. Co., 684 F.3d
1360, 1362 n. 2 (8th Cir. 2012).
Summary plan descriptions form part of the written documents required by
ERISA and will prevail “in cases where the summary granted a beneficiary certain rights
or privileges that the policy did not.”

Jobe, 598 F.3d at 481 (emphasis added).

However, an SPD cannot grant a plan administrator discretion to determine eligibility for
benefits when the plan itself does not.

Id. at 481-86.

A grant of discretion to an

administrator is a critical provision. Id. at 483-84 (stating that “a grant of discretion to
the plan administrator, appearing only in a summary plan description, does not vest the
administrator with discretion where the policy provides a mechanism for amendment
and disclaims the power of the summary plan description to alter the plan.”). “The
policy’s failure to grant discretion results in the default de novo standard.” Id. at 486
(noting that due to the policy’s silence in the face of a decades-old Supreme Court
ruling establishing a default de novo standard of review, the summary plan description
does not summarize a provision of the policy related to discretion, but instead enlarges
the administrator’s authority).

In the Eighth Circuit, the policy will control over the

inconsistent grant of discretion to the administrator in the summary plan description. Id.;
see also Ringwald v. Prudential Ins. Co. of Amer., 609 F.3d 946, 949-50 (8th Cir. 2010)
(finding de novo review appropriate where “there are no terms in the plan which allow it
to be amended by inserting into the SPD such critical provisions as the administrator’s
discretionary authority to interpret the plan or to determine eligibility for benefits.”).

24

In conducting de novo review, the court gives no deference to the administrator’s
decision. Farley v. Benefit Trust Life Ins. Co., 979 F.2d 653, 660 (8th Cir. 1992). The
district court is not limited to the fiduciary’s explanation of its denial. Donatelli v. Home
Ins. Co., 992 F.2d 763, 765 (8th Cir. 1993).
Under the abuse of discretion standard, the court will reverse if the plan
administrator’s decision is inconsistent with plan goals, renders other terms
meaningless, superfluous or internally inconsistent, conflicts with the substantive or
procedural requirements of ERISA, is inconsistent with prior interpretations of the same
words, or is contrary to the plan’s clear language. Carrow v. Standard Ins. Co., 664
F.3d 1254, 1258 (8th Cir. 2012).

When the administrator is also the insurer, the

administrator has a conflict of interest that must be given “some weight” in the abuse-ofdiscretion calculation. Id. at 1258-59; Glenn, 554 U.S. at 118. The significance of this
factor depends on the circumstances of the particular case. Id.
A plan administrator’s decision is an abuse of discretion if it is not supported by
substantial evidence. Wrenn, 636 F.3d 925. Substantial evidence means “more than a
scintilla but less than a preponderance.” Darvell v. Life Ins. Co. of North Amer., 597
F.3d 929, 935 (8th Cir. 2010). A plan administrator abuses its discretion when it ignores
relevant evidence or fails to “address the extensive medical evidence relating to [the
claimant’s] disability or the consistent conclusions of her doctors and various [plan
administrator] personnel that she could not work.” Wilcox v. Liberty Life Assurance. Co.
of Boston, 552 F.3d 693, 701-02 (8th Cir. 2009) (quoting Norris v. Citibank, N.A.
Disability Plan (501), 308 F.3d 880, 885 (8th Cir. 2002)): see also Torres v. UNUM Life
Ins. Co. of Am., 405 F.3d 670, 681 (8th Cir. 2005) (stating that it is abuse of discretion

25

to ignore evidence that is directly related to a plan’s definition of disability”). A plan
administrator abuses its discretion when it “focuse[s] on slivers of information that could
be read to support a denial of coverage and ignore[s]—without explanation—a wealth of
evidence that directly contradicted its basis for denying coverage.” Wilcox, 552 F.3d at
701-02. An obligation as an ERISA fiduciary requires more than combing the record for
evidence in its favor and abandoning its review upon discovering “more than a scintilla”
of such evidence. Metropolitan Life Ins. Co. v. Conger, 474 F.3d 258, 265 (8th Cir.
2007).
A plan fiduciary abuses its discretion in accepting the opinion of a reviewing
physician over the conflicting opinion of a treating physician when the record does not
support it. Midgett v. Washington Group Intern. Long Term Disability Plan, 561 F.3d
887, 897 (8th Cir. 2009). However, although an ERISA plan administrator need not
accord special deference to a treating physician’s opinion, an administrator may not
“arbitrarily refuse to credit a claimant’s reliable evidence, including the opinions of a
treating physician.”
(2003).

Black & Decker Disability Plan v. Nord, 538 U.S. 822, 825, 834

Further, an ERISA administrator, though entitled to seek and obtain a

professional peer review opinion, “is ‘not free to accept this report without considering
whether its conclusions follow logically from the underlying medical evidence.” Wilcox
552 F.3d at 700-01; see Glenn, 554 U.S. at 118 (finding a plan administrator had
emphasized a certain medical report that favored a denial of benefits, had
deemphasized certain other reports that suggested a contrary conclusion, and had
failed to provide its independent vocational and medical experts with all of the relevant
evidence.).

26

A Functional Capacity Evaluation (“FCE”) provides “objective clinical evidence”
regarding how a benefits claimant’s medical conditions affect his or her ability to work.
Green v. Union Security Ins. Co., 646 F.3d 1042 (8th Cir. 2012). Gannon v. Metro. Life
Ins. Co., 360 F.3d 211, 213 (1st Cir. 2004). The Eighth Circuit has endorsed the use of
FCEs in evaluating the effect of fibromyalgia on ERISA benefits claimants. See, e.g.,
Pralutsky v. Metro. Life Ins. Co., 435 F.3d 833, 841 (8th Cir. 2006) (stating plaintiff’s
failure to submit an FCE in support of her disability may have affected the benefits
determination); Farfalla v. Mutual of Omaha Ins. Co., 324 F.3d 971, 974 (8th Cir. 2003)
(stating functional capacity assessment that indicated plaintiff was not disabled
supported plan administrator’s benefits denial decision).
If a plan requires a claimant to provide “documented proof” and “satisfactory
documentation” of a disability, but does not define what sort of proof or documentation
is “satisfactory,” the administrator “is entitled to define those ambiguous terms as long
as its interpretation is reasonable.” Pralutsky v. Metro. Life Ins. Co., 435 F.3d 833, 841
(8th Cir. 2006).
III. DISCUSSION
The court finds that the policy does not give discretion to United of Omaha to
construe the terms of the plan. The grant of discretion in the SPD cannot be afforded
effect under Eighth Circuit precedent. Therefore, it would be appropriate to review
United of Omaha’s denial of benefits under the de novo standard of review. Further, de
novo review is warranted because there were considerable procedural irregularities in

27

the review of Johnson’s claims for short- and long-term disability benefits.10 That finding
is of no consequence, however, because even under the more deferential standard, the
court finds United of Omaha’s actions are unreasonable and an abuse of discretion.
Considering the record as a whole, there is no reasonable basis for United of
Omaha’s denial of Johnson’s claim. In making this determination, the court gives some
weight to the structural conflict of interest presented here by virtue of United of Omaha’s
dual role as insurer and administrator of the plan. The record shows that Johnson
suffers from chronic and progressive diseases that are potentially debilitating. She has
presented substantial evidence from her treating physicians that these diseases do, in
fact, prevent her from working. She has presented her own sworn testimony and the
testimony of her spine surgeon attesting to the severity of her symptoms.

Her

subjective complaints of pain are fully supported by objective evidence that she has
permanent nerve damage in her arms, has three fused discs, three presently herniated
discs, fibromyalgia,11 some degree of mental illness and moderate to severe arthritis in
her spine.
The only evidence to controvert the evidence of substantial disabling conditions
is the peer review report by Dr. Boscardin. United of Omaha’s decision to credit the
opinions of Dr. Boscardin over other medical evidence is questionable for several

10

The record shows that United of Omaha initially failed to consider evidence of Johnson’s
physical disabilities and processed her claim as one for disability by reason of mental health. It continued
to focus on mental health as the reason for her disability in the face of evidence that clearly showed her
primary complaint was neck pain. Claims reviewers repeatedly mischaracterized medical and vocational
evidence. Further, it appears that United of Omaha lost or misplaced medical records, failed to timely
process the claims, failed to resubmit additional evidence to a physician for review, and generally gave
Johnson and her counsel “the run-around.”
11

The record contains objective evidence that fully supports a diagnosis of Fibromyalgia—the 18point trigger test.

28

reasons. First, unlike Drs. McClellan and MacDonald, Dr. Boscardin did not physically
examine Johnson; he only reviewed her some of her medical records. His analysis of
those records does not support the conclusion that the combined effects of symptoms of
Johnson’s diagnosed fibromyalgia, herniated discs, nerve damage, radiculopathy,
depression, panic attacks and anxiety are not sufficiently severe as to prevent her from
working. United of Omaha is authorized under the contract to require a claimant to
undergo a physical examination. United of Omaha did not do so.
Also, in the peer review report, Dr. Boscardin mischaracterizes the medical
evidence in several important respects. His statement that physical examination did not
reveal a specific atrophy, loss of strength, or sensation abnormalities is patently false.
The record is replete with evidence of numbness and tingling in Johnson’s right arm and
objective evidence dating back to 2003 that she had permanent nerve damage.
Next, Dr. Boscardin discounted Johnson’s subjected complaints based on the
absence of pain medication and her failure to return to her spine surgeon for several
years. The record shows that Johnson has consistently sought medication for her pain.
Over the years Johnson has been prescribed numerous narcotics, muscle relaxants,
anti-inflammatories, mood stabilizers, sleep aids, and nerve-pain medications. She was
not able to obtain some medications, i.e., Cymbalta for fibromyalgia, because of cost.
Johnson’s reluctance to revisit her surgeon is also explained by lack of resources and
insurance coverage and by the fact that the surgeon was of limited assistance. Dr.
Boscardin’s reliance on Johnson’s failure to undergo an EMG is similarly explained by
cost and by Dr. MacClellan’s testimony that the test would not change the treatment

29

plan or outcome in any event.

The record shows that Johnson regularly and

consistently visited her primary care physician.
Dr. Boscardin’s statement that nothing happened in 2009 that would have made
Johnson unable to work is similarly unsupported. The evidence shows that after her
spinal-fusion surgery in 2004, her condition was expected to, and did, progressively
worsen. Her spine surgeon testified that her prognosis after the surgery was poor. Her
latest MRI shows she presently has three herniated discs, a condition that developed
sometime between her surgery and her examination in 2010. Her spine surgeon also
stated that Johnson’s reports of pain were consistent with the objective evidence and
that her condition would be expected to cause excruciating and debilitating pain. He
noted that she had permanent nerve damage even before the surgery in 2004 and
suspected that she was experiencing further nerve damage.
Dr. Boscardin did not specifically refute Dr. McClellan’s findings, but summarily
concluded that her complaints of pain and limited functionality “are not supported” by
the medical evidence.

To the contrary, objective records and testimony support

Johnson’s subjective complaints and support the conclusion that Johnson suffered
additional damage to the cervical and thoracic vertebrae that had not been fused.
Importantly, Dr. Boscardin’s opinion is expressly limited to consideration of
musculoskeletal issues only.

In fact, the opinions of both Drs. MacClellan and

Boscardin are constrained by their status as orthopedic surgeons. A peer review by
either an internist or rheumatologist would have been more appropriate to address the
fibromyalgia issues.

30

There is also evidence in the record that could support a finding of some level of
mental illness. United of Omaha’s own psychiatrist stated he needed more records in
order to complete his review.

Those records were never provided to him.

The

consulting physician never addressed either fibromyalgia or mental health issues.
Johnson’s mental health issues disappeared from the analysis, along with her
fibromyalgia complaints.
The record shows that every medical professional who has actually examined
Johnson uniformly accepted that her symptoms were real. She has a documented
history of complaints of neck pain for many years. She has a stable work history, and
there is no evidence that she has been, or is, a malingerer. She worked steadily for 14
years as rent-roll specialist.
Dr. McClellan’s purported “agreement” with Dr. Boscardin’s assessment provides
little support for United of Omaha’s denial of Johnson’s claim. Dr. Boscardin’s opinion
was limited to musculoskeletal complaints. It was based on a mischaracterization of the
medical record and on a job description that is not supported by the record.

Dr.

McClellan had stated at his deposition that he was not in a position to offer an opinion
about vocational rehabilitation; his summary agreement should not be construed to
include agreement with Dr. Boscardin’s purported vocational rehabilitation opinion.
Moreover, Dr. MacClellan’s supposed agreement with Dr. Boscardin’s report contradicts
his own statement that there is “no question” that Johnson is “significantly impaired” by
her condition, and the court should afford it little weight.
Tellingly, in approving Dr, Boscardin’s report, Dr. McClellan avoided answering
United of Omaha’s “work-capacity” question. Neither of the doctors are qualified to

31

make a vocational assessment. The vocational assessment by Ms. Freeman is the only
evidence in the record that addresses Johnson’s impairments from a vocational
perspective, taking into consideration the functional limitations.

United of Omaha’s

reliance on a cursory review by their vocational rehabilitation department is misplaced.
Its vocational specialist relied only on the employer’s description of job duties, did not
review medical records, and did not address functional limitations. Her review did no
more than conclude that a rent-roll specialist is similar to a bookkeeper; it did not
address Johnson’s impairments or the functional limitations those impairments might
impose on her ability to work. Under the terms of the disability insurance contract,
United of Omaha was authorized to request a vocational examination of Johnson. It did
not do so. There is a failure of proof with respect to United of Omaha’s contention that
Johnson can perform work.
Dr. Boscardin’s conclusions with respect to Johnson’s functional limitations are
particularly dubious in that he does not dispute that Johnson has numerous severe
conditions, but only states that the conditions would not result in pain of sufficient
magnitude to preclude work.

He acknowledges that Johnson has limitations, just

quibbles about their extent. Although he concedes that Johnson’s history of spinal
fusion “would probably call for some ongoing restrictions and that limited repetitive
extension of her neck, lifting over ten pounds, twisting activities with the cervical spine,”
and that those restrictions would be permanent, he did not quantify the restrictions. Id.,
AR 98. There is objective evidence that Johnson suffers from fibromyalgia and has
arthritis, a chronic and progressive disease. United of Omaha’s summary treatment of
the fibromyalgia condition was to acknowledge that Johnson was “tender on all 18

32

fibromyalgia points,” thus acknowledging the diagnosis, but concluding “there is no
other test and no new treatment for your fibromyalgia,” which is a completely
meaningless statement. United of Omaha did not assess or analyze the severity of the
condition or the functional limitations the illness would impose on Johnson’s ability to
work.
Further, the unrebutted evidence from a vocational specialist establishes that
Johnson’s impairments result in functional limitations that preclude even sedentary
work. There is evidence that her former position involved light work. United of Omaha
argues that vocational evidence is not necessary, because there is no objective
evidence of functional limitations.

To the contrary, the court finds ample objective

evidence, most notably MRI and CT studies and the widely-accepted trigger-point test,
as well as the opinions of treating physicians, to support Johnson’s complaints of pain
that result in functional limitations. Here, the vocational expert’s functional capacity
evaluation, based on the medical evidence and reports of Johnson’s physicians,
supports a disability finding.
In essence, United of Omaha was presented with a certificate holder who had
three arguably debilitating problems: neck and arm pain connected to her spinal fusion;
mental illness including depression; and fibromyalgia. Its review of Johnson’s claim
addressed only one of those ailments. United of Omaha simply ignored or lost track of
the other two. Nowhere did it assess Johnson’s overall condition or discuss Johnson’s
objectively supported conditions in combination. United of Omaha’s failure to address
those allegedly disabling conditions or to consider Johnson’s condition as a whole
amounts to an abuse of discretion. In view of the foregoing, the court finds that United

33

of Omaha abused its discretion in denying benefits to the plaintiff. The court finds the
record contains evidence that establishes she is disabled. Accordingly,
IT IS ORDERED:
1. The defendant’s motion for summary judgment (Filing No. 31) is denied.
2. The plaintiff’s motion to strike the declaration of Molly Kuehl (Filing No. 40) is
denied as moot.
3. The plaintiff’s motion for summary judgment or, in the alternative, motion for
judgment on the administrative record (Filing No. 46) is granted.
4. Judgment will be entered in favor of the plaintiff and against defendant for
disability benefits due under the policy in an amount to be later determined.
5. The parties shall meet and confer with respect to the calculation of those
benefits and report to the court within 21 days of the date of this order.
6. The plaintiff shall file a motion for attorney fees within three weeks of the date
of this order; the defendant shall respond to that motion within 14 days thereafter.
Dated this 11th day of March, 2013.
BY THE COURT:

s/ Joseph F. Bataillon
United States District Judge

34