Neubert v. Life Insurance Company of North America

Filing 30

Memorandum Opinion and Order: Though defendant's treatment of plaintiff's claim for disability benefits on remand fell far short of perfect, its ultimate decision denying benefits was rational, supported by record evidence, and not arbitrary and capricious. Accordingly, defendant's motion for summary judgment is granted and plaintiff's motion for summary judgment is denied. (Related Doc # 23 , 24 ). Judge Sara Lioi on 7/21/2014. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

WENDELL NEUBERT,

PLAINTIFF,
vs.

LIFE INSURANCE COMPANY OF
NORTH AMERICA,
DEFENDANT.

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CASE NO. 5:13-cv-643

JUDGE SARA LIOI

MEMORANDUM OPINION
AND ORDER

This matter is before the Court on cross-motions for judgment on the
administrative record filed by plaintiff Wendell Neubert (“Neubert”) and defendant Life
Insurance Company of North America (“LINA”). (Doc. Nos. 23 and 24, respectively.) The
parties have filed opposition briefs and reply briefs (Doc. Nos. 25, 26, 27, 28), and the matter is
ripe for disposition.
I. Factual and Procedural Background
In this case, Neubert again seeks reinstatement of long term disability (“LTD”)
benefits. Plaintiff sought the same relief in a 2010 case before this Court, Neubert v. Life Ins. Co.
of N. Am., No. 5:10CV1972, 2012 WL 776992, at *22 (N.D. Ohio Mar. 8, 2012), and the Court
remanded the LTD benefits claim to LINA for a full and fair review.
A. The Plan
Until 2006, plaintiff worked as an engineer for Lockheed Martin Corporation,
where he participated in the company’s Long Term Disability Group Insurance Plan (“the Plan”).

(Doc. No. 24-1 at 1291; see also Administrative Record [AR], Doc. No. 16 at 1192-1216.1)
Under the Plan, a claimant is disabled if, “because of Injury or Sickness, [the claimant is] unable
to perform each and every material duty of [the claimant’s] regular occupation.” (AR at 1200.)
After LINA pays twenty-four months of LTD benefits, a claimant qualifies as disabled under the
Plan only if the claimant’s “Injury or Sickness makes [the claimant] unable to perform all the
material duties of any occupation for which [the claimant] may reasonably become qualified
based on education, training or experience.” (Id. (emphasis added).) The claimant must provide
“satisfactory proof” of disability before benefits are paid and must further provide “continued
proof of [the] Disability” for benefits to continue. (Id. at 1203.)
Benefits terminate under the Plan when the claimant earns more than 80% of the
claimant’s covered earnings,2 when the claimant returns to active service, when LINA
determines that the claimant is no longer disabled, when the maximum benefit period ends, or
when the claimant dies. (AR at 1203.) The Plan also contains a mental illness, alcoholism, and
drug abuse limitation. Once LINA has paid twenty-four monthly benefits, a claimant will not
receive any further benefits if his or her disability is caused by or contributed to by, among
others, anxiety disorders, depressive disorders, or mental illness. (Id.)
Under the Plan terms, the plan administrator—Lockheed Martin—appointed
LINA as the named fiduciary for adjudicating claims and appeals for benefits under the Plan.
(AR at 1213.) Further, the plan administrator has given LINA “the authority, in its discretion, to

1

The Court’s Initial Standing Order quite clearly instructs the parties to cite to the record using the “Page ID #”
provided in the upper right corner of every document in the electronic case record. (Doc. No. 3 at 14.) Instead of
following these explicit instructions, the parties created their own pagination for the Administrative Record and
cited thereto. The parties are hereby cautioned to carefully read and review the Court’s orders.
2
Covered earnings are defined as the “annual wage or salary as reported by [the] Employer for work performed for
[the] Employer.” (AR at 1200.)
2

interpret the terms of the Plan, to decide questions of eligibility for coverage or benefits under
the Plan, and to make any related findings of fact.” (Id.)
B. Claim Denial and the 2010 Lawsuit
Plaintiff’s claim for LTD benefits under the Plan first came before this Court in
2010. In a memorandum opinion and order denying LINA’s motion for judgment on the
administrative record and granting in part plaintiff’s motion for same, the Court provided a
detailed account of plaintiff’s treatment and receipt of LTD benefits. The Court reproduces
relevant portions of its opinion below:
On March 24, 2006, Neubert suffered a stroke and was unable to continue
working for Lockheed. (AR 3, 15.) On April 10, 2006, Neubert suffered a second
stroke. (AR 15, 313.) On July 25, 2006, Neubert tried to return to work part-time
without success due to self-reported stress, anxiety, an inability to concentrate or
multitask, memory problems, fine motor difficulty and sensitivity to noise. (AR
345, 403.)
On July 31, 2006, Neubert applied for disability benefits from the Plan.
(AR 962.)
***
On November 7, 2006, LINA approved Neubert for LTD benefits
retroactive to October 10, 2006. (AR 230.) Neubert continued to see a neurologist
after he received LTD benefits. (AR 312.)
***
On April 28, 2008, LINA sent Neubert a letter notifying him that it had
begun a review of his file to determine his continued eligibility to receive LTD
benefits after October 10, 2008, the date upon which the definition of disability
applicable to his claims would change. (AR180-81.) LINA requested updated
information from Neubert and his treating physicians and indicated that upon
receipt of the information, it would compare his restrictions and limitations to his
training, education, and work experience. (Id.)
***
On May 15, 2008, Neubert completed a Disability Questionnaire, stating
that the primary physical or mental conditions preventing him from working were
an inability to focus, burning pain in his arm and leg, fatigue and lack of stamina,
neck pain, stress, and memory problems, all because of “permanent stroke
damage.” (AR 843-47.) He reported the following regular activities: a half hour of
cooking a day, one to two hours of shopping once a week, fifteen minutes of
laundry twice a month, one to two hours of gardening or yard work twice a week,
3

walking on the treadmill or lifting weights three to four times a week, and
watching television three to four hours a day. (Id.) He stated that he did not
engage in outside activities and was mostly house bound with the exception of
walking a half-mile for twenty minutes four times a week. (Id.)
On September 24, 2008, Neubert’s primary care physician, Dr. Elizabeth
M. Salay, completed an Attending Physician’s Statement of Disability (“PSD”).
(AR 824.) Dr. Salay reported that she began treating Neubert in March 2006 and
that she saw him four times a year. (Id.) The PSD noted a diagnosis of
hemiparesis, vertebral artery dissection, and history of stroke without residual
deficits. (Id.) The reported subjective symptoms were weakness and memory
disturbance. (Id.) The PSD noted that Neubert’s progress was unchanged and that,
“he has had maximal therapy for his medical illness.” (Id.) In the prognosis
section, Dr. Salay indicated that Neubert was totally disabled from any work due
to impaired fine motor skills, memory and word finding problems, and balance
problems. (Id.) She stated that she did not expect his condition to improve in the
future, nor did she expect that he would be capable of working any job in the
future because the symptoms from his previous stroke were “not likely to
resolve.” (Id.) Dr. Salay also noted that Neubert was not a suitable candidate for
medical rehabilitation, that no job modifications would enable him to work with
his impairment, and she recommended against vocational counseling and/or
retraining. (Id.)
***
On November 19, 2008, Neubert saw Dr. Dipti Shah, his new primary care
physician. (AR 401.) Dr. Shah’s examination notes indicate that Neubert reported
residual symptoms from his previous strokes, including weakness, burning in his
right arm and leg, fine motor skill difficulties, trouble concentrating, anxiety,
limited cognitive function and memory problems. (AR 403.) He opined that
Neubert was permanently disabled. (Id.) Dr. Shah’s primary diagnosis of Neubert
was cerebrovascular accident with residual cognitive deficit. (AR 404.)
On November 20, 2008, Dr. Shah submitted a PSD form (AR 736-37) to
LINA, which was later updated by a Physical Ability Assessment form (“PAA”)
(AR 703-04). Dr. Shah indicated in the PSD that he took over treatment of
Neubert from Dr. Salay on November 19, 2008. (AR 736.) The PSD noted
diagnoses of stroke, Type 2 diabetes mellitus, hemiparesis, hyperlipidemia and
hypertension. (Id.) Dr. Shah reported Neubert’s subjective symptoms to be
residual weakness, burning in his right leg and arm, and memory problems. (Id.)
The PSD also noted: “patient has cognitive function.” (Id.) The response to the
objective findings section of the PSD was marked, “NA.” (Id.) Finally, in the
remarks section, Dr. Shah noted: “patient is totally disabled.” (AR 737.)
Dr. Shah’s PAA, which updated the PSD, indicated that Neubert can
frequently sit, reach, grasp, lift 10 to 20 lbs., carry 10 lbs., push 25 lbs., pull 25
lbs., and can occasionally stand, walk, use fine manipulation, lift 21 to 100 lbs.,
4

carry 11 to 100 lbs., climb stairs, stoop, kneel, crouch, crawl, and has difficulty
with fine motor activities, balancing, working extended shifts, using his feet for
foot controls, and cannot work around machinery. (AR 707-08.) Dr. Shah noted
that “patient has more problems with cognitive ability than physical ability
because of stoke.” (Id.)
On January 12, 2009, at the request of LINA, Neubert underwent an
independent neuropsychological evaluation with a neuropsychologist, Dr. Thomas
Swales. (AR 712-25.) Dr. Swales interviewed Neubert and reviewed his
laboratory reports and medical records, including the treatment notes and
physician statements from his doctors. (Id.) Neubert described to Dr. Swales that
he suffered from burning pain in his right leg, an inability to feel temperature,
neck pain, fatigue, difficulty focusing, stress, anxiety, and an inability to
multitask. (AR 714.) The report stated that, during the interview, Neubert
described himself as “a workaholic” and described his daily activities since
leaving his job due to his strokes, including mowing his lawn, gardening, having
dinner with friends or family once a month, and spending most of his time playing
“World of Warcraft.” (AR 713-15.) According to Dr. Swales’s report, “He
reportedly shoots a button over and over in a repetitive action,” and Neubert told
him, “I talk to people on a headset. I get a sense of accomplishment.” (AR 715.)
Dr. Swales administered a battery of tests to evaluate Neubert’s cognitive
function. Of the intelligence testing, Dr. Swales noted that Neubert scored in the
ninth percentile on the coding subtest, which he characterized as Neubert’s “worst
performance, in the borderline range, […] which reflects a slow speed of rapid
copying of symbols paired with numbers.” (AR 720.) Dr. Swales concluded that
Neubert’s memory and spatial skills were in the very superior range; his verbal
and nonverbal intelligence, confrontational word naming, working memory, and
list learning were in the high average range; and his attention/vigilance, frontal
systems, memory for stories, nonverbal memory and speed visual-motor
processing were in the average range. (AR 722.) Of the motor skills testing, Dr.
Swales found that Neubert’s fine motor coordination and grip strength were
uniformly in the low average range in his dominant hand, most likely due to
“some residual weakness” because of his stroke. (AR 721.) The results of
emotional testing revealed that Neubert was experiencing mild to moderate
emotional distress characterized by tension, anxiety, and dysphoria. (Id.) Dr.
Swales’s report indicated that Neubert put forth adequate cooperation and effort
throughout the tests and that there was no indication of malingering. (AR 719,
721.)
Based on his examination of Neubert, Dr. Swales concluded that Neubert
was free of cognitive disorders and performed in the average to high average
range in cognitive functioning. (AR 722.) The only meaningful finding, according
to Dr. Swales, was that Neubert’s fine motor coordination and grip strength were
in the low average range in his dominant hand, which Dr. Swales concluded
5

correlated with his history of stroke. (Id.) In Dr. Swales’s opinion, Neubert’s
“primary problems appear to be affective (psychiatric in nature) in that he is
struggling with anxiety, characteristic of a generalized anxiety disorder,” but he
also opined that “the intensification of anxiety following his stroke would indicate
that it is possible there may be also some organically-based component to his
anxiety, as a consequence of his cerebellar stroke.” (AR 724.) He concluded,
further, that “[Neubert’s] cognitive complaints appear to be the product of
anxiety, rather than true cognitive impairment. Overall, his cognitive capacity
appears at the best estimated level of his prior premorbid functioning while
working, based upon his performance on a variety of cognitive measures in this
neuropsychological evaluation.” (AR 725.) According to Dr. Swales, Neubert
“appears free of any cognitive impairment currently that would preclude a return
to gainful employment.” (AR 724.)
On February 19, 2009, LINA’s vocational department completed a
Transferrable Skills Analysis (“TSA”). (AR 699.) LINA noted that Neubert’s past
work experience was as a senior staff project engineer and identified his annual
salary as $96,669. (Id.) The TSA designates a wage requirement of $58,001.40,
which the parties agree represents 60% of Neubert’s past salary. (Id.) According
to the TSA, the restrictions identified by Dr. Shah were as follows:
Occasionally: lift 21-100 pounds, carry 21-100 pounds, fine
manipulation bilaterally, stand, walk, climb stairs, stoop, kneel,
crouch, crawl, exposure to extremes in heat and cold, exposure to
wet and humid conditions, exposure to vibration, exposure to
odors, fumes and particles; (2) Frequently: sit, reach in all
directions, simple grasping bilaterally, firm grasping bilaterally, lift
20 pounds, carry 20 pounds, push 25 pounds, pull 25 pounds; (3)
Continuously: see, hear, smell, taste; and (4) Unable: work around
machinery.
(Id.) The TSA noted that Dr. Shah observed that Neubert “has more problems
with cognitive ability than physical ability because of stroke.” (Id.) Based on
Neubert’s work history, his skills and abilities, and the wage requirement, without
consideration of any cognitive deficits, the TSA identified the following ‘light
duty’ occupations: (1) sales engineer, aeronautical products; (2) project engineer;
and (3) production planner. (AR 700.)
The same day that LINA completed its TSA, it issued a denial letter to
Neubert terminating his LTD benefits. (AR 162.) The letter set forth the Plan’s
definition of disability and outlined the information that LINA reviewed. (Id.)
First, the letter cited Dr. Shah’s PAA form completed November 26, 2008, noting
that Neubert had more trouble with his cognitive ability than his physical ability.
(AR 163.) The letter also summarized Dr. Swales’s report, stating that he had not
found “any major cognitive limitations or impairments that would be sufficient to
6

remove or preclude the option of returning to gainful employment[.]” (Id.) Next,
the letter cited the TSA, which LINA stated identified occupations comparable
with Neubert’s work capacity and that satisfy the earnings requirement for his
indexed covered earnings under the Plan. (Id.) The letter then outlined the appeal
procedures applicable to the denial of benefits. (AR 163-64.)
On August 7, 2009, Neubert appealed LINA’s denial of LTD benefits.
(AR 749.) LINA sent Neubert’s counsel a letter acknowledging the appeal and
requesting any additional information that would influence the appeal decision.
(AR 160-61.) Neubert subsequently submitted additional medical records.
Included in the additional information provided was information relating
to a March 20, 2009 general neurology follow-up Neubert had with Dr. Karla J.
Madalin. (AR 381.) The subjective part of Dr. Madalin’s exam findings indicated
that Neubert was experiencing severe pain in his right leg and the right side of his
neck, difficulty focusing and multi-tasking, increased fatigue, confusion, and
slowness of thinking. (AR 384.) Her objective medical findings indicated that
Neubert’s recent and remote memory was intact, his fund of knowledge was
normal, his attention span and concentration normal and he had decreased
sensitivity in his right extremities. (AR 390-91.) Dr. Madalin diagnosed Neubert
as follows: (1) thalamic syndrome, noting that the “significant discomfort” and
pain in his right arm and leg were due to his previous strokes; (2) stroke with
residual cognitive deficit, noting that he had residual right hemisensory deficit and
neurogenic pain; (3) hemiparesis, noting a right hemisensory deficit from his
previous strokes; (4) vertebral artery dissection, noting a stable occlusion of the
left vertebral artery. (AR 391-92.) She concluded that there was no “objective test
to determine the cause of [Neubert’s] inability to work,” and she stated she
believed “that as a consequence of [his] stroke, [he was] unable to work in [his]
previous job or any job.” (AR 392.)
Information was also provided regarding an April 7, 2009 follow-up exam
that Neubert had with Dr. Shah. (AR 375.) Neubert complained that his right foot
had turned red and blue for the past two years, and that he was experiencing
burning pain on his right side. (AR 377.) Dr. Shah’s objective findings noted that
Neubert spoke fast and was very anxious; his right foot was red/blue; no acute
neuro deficits; equal bilateral strength; and impaired fine motorskills. (AR 378.)
She diagnosed Neubert with hypertension, stroke with residual cognitive deficit,
hyperlipidemia, thromboangiitis obliterans, anxiety disorder, Type II diabetes,
contolled, hemiparesis, vertebral artery dissection, and pulmonary nodule. (AR
378-79.) She indicated that she was referring Neubert to the vascular surgery
department. (AR 379.)
Information was also provided regarding an August 24, 2009
neuropsychological evaluation performed by Harold S. Schaus, Jr., M.S., DAPA.
(AR 252.) Mr. Schaus indicates in his report that he reviewed Neubert’s medical
7

records, his job description and Dr. Swales’s neuropsychological evaluation. (Id.)
After reviewing Neubert’s background, Mr. Schaus was critical of Dr. Swales’s
report, indicating that it lacked testing of divided attention, “or being able to keep
more than one thing in mind at a time.” (AR 253.) Mr. Schaus’s report states that,
“[t]his aspect of attention is crucial in assessing [Neubert’s] complaints about
troubles multitasking, and is one of the most common deficits anytime there has
been an insult to cortical tissue.” (Id.) Mr. Schaus selected tests based on this
observation and Neubert’s complaints about intolerance to noise and anxiety. (Id.)
Mr. Schaus’s report indicates that cognitive deficits were evidenced by the
results of two tests: the Paced Auditory Serial Addition Test (PASAT) and the
Integrated Variables of Attention (IVA), which assess multitasking and auditory
functioning. (AR 255.) On the four series in the PASAT, Neubert scored in the
9th, 21st, 24th, and 13th percentiles respectively. (AR 254.) On the IVA, Neubert
performed in the average range on the visual subtests, but Mr. Schaus noted that
he had “significant problems” with the auditory portion. (Id.) Mr. Schaus stated:
“There is no question about some cognitive deficits given the results of the
PASAT and the IVA. These cognitive deficits alone would make it unlikely that
Mr. Neubert could adequately perform his former job.” (AR 255.) Mr. Schaus
observed that Neubert’s cognitive deficits were compounded by emotional
factors. (Id.)
Based on these findings, Mr. Schaus diagnosed Neubert with generalized
anxiety disorder, adjustment disorder with depressed mood, dependent personality
traits, schizoid personality traits, avoidant personality features, obsessive
compulsive personality features, cognitive disorder (not otherwise specified),
illness or fatigue, moodiness, and a GAF score of 70. (AR 255-56.) He found no
evidence of malingering and concluded:
Mr. Neubert is unable to return to his previous job or one
approximating the level of difficulty required on his former job.
The cognitive deficits alone make it unlikely that he could resume
his previous employment. Add the emotional problems and it is a
real long shot that he could resume his duties at Lockheed.
(AR 256.)
On September 22, 2009, LINA notified Neubert by letter that it had
determined that it would need two Independent Peer Reviews in order to evaluate
Neubert’s disability claim. (AR 155.) On October 8, 2009, Dr. Linda Miller, an
internist, completed a file review at the request of LINA. (AR 470.) She
concluded that the medical information provided did not show any measured
limitations that would support off work restrictions from February 20, 2009
onward. (AR 476.) Dr. Miller states that, “Numerous clinic visits state that
[Neubert] has no residual from [his strokes] except possible patchy decreased
8

sensation in the right [arm] and complaints of burning pain on the right. There are
no measured limitations on any of his physical exams.” (Id.) Dr. Miller indicated
that she did not evaluate Neubert’s cognitive or psychiatric complaints because
that was not her area of expertise. (AR 477.) Finally, she noted that she spoke
with Neubert’s treating physician, Dr. Shah, who, according to Dr. Miller,
indicated that Neubert had no physical limitations or restrictions, but was unable
to work due to anxiety and problems with comprehension. (Id.)
On November 12, 2009, at the request of LINA, Dr. Elana Mendelssohn,
Psy. D., completed a file review. (AR 462.) She opined that “the provided clinical
information both based on review of documentation and a peer-to-peer
consultation did not support the presence of a functional impairment from a
neuropsychological perspective nor does this information support off-work
restrictions by the measured limitations from 02/20/2009 forward.” (AR 465.) Dr.
Mendelssohn reported that she spoke with Neubert’s treating physician, Dr. Shah,
and stated that Dr. Shah “was unable to provide [a] specific description of overt
cognitive difficulties[,]” and that Dr. Shah “noted the claimant’s report of
multiple cognitive problems and that the claimant tended to present as anxious
with fast speech.” (AR 465.) Dr. Mendelssohn found that the records “did not
include [a] clear description of direct and observed behaviors to corroborate”
Neubert’s claimed impairments. (Id.) Further, she disagreed with Mr. Schaus’s
report and indicated that Neubert’s performance on the tests administered by Mr.
Schaus “did not substantiate the claimant suffers from global impairment in
neuropsychological functioning.” (Id.)
In the meantime, on October 22, 2009, Neubert was awarded Social
Security disability benefits. (AR 590.) The ALJ found that Neubert was disabled
since March 23, 2006 due to severe impairments; specifically, post left cerebellar
and left medullary stroke and the effects thereof. (AR 596.) This “medically
determinable impairment,” as found by the ALJ, equals listing 12.02. (Id.) The
ALJ concluded that Neubert’s “impairments could reasonably be expected to
produce the alleged symptoms,” and his “statements concerning the intensity,
persistence and limiting effects of these symptoms are generally credible.” (Id.)
Neubert notified LINA of the SSA award.
On November 23, 2009, LINA issued its second denial letter to Neubert
affirming its earlier decision to terminate his LTD benefits. (AR 150.)
***
On February 1, 2010, Neubert appealed LINA’s second denial. (AR 455.)
***
On June 16, 2010, LINA issued its third and final denial letter of
Neubert’s claim for LTD benefits. (AR 142.)
***
On September 3, 2010, Neubert filed this action for wrongful denial of
benefits.
9

Neubert v. Life Ins. Co. of N. Am., No. 5:10CV1972, 2012 WL 776992, at *2-10 (N.D. Ohio
Mar. 8, 2012) (footnote omitted).
After the parties filed cross-motions for judgment on the administrative record in
the 2010 case, the Court granted plaintiff’s motion in part and denied defendant’s motion. It
remanded plaintiff’s claim for LTD benefits to LINA for a full and fair review.
The Court identified the following errors in LINA’s benefits denials: (1) LINA
failed to explain why it adopted Dr. Swales’s opinion over Neubert’s treating physicians, who
each opined that Neubert was permanently disabled; (2) LINA’s benefits denial occurred the
same day it received plaintiff’s vocational review, indicating that LINA had made up its mind
before receiving the review; (3) the vocational review improperly used a 60% wage requirement,
which did not appear in the plan provisions; (4) the vocational review failed to explain its basis
for rejecting Neubert’s treating physicians’ descriptions of his limitations; (5) LINA’s file review
prior to its second denial of benefits contradicted plaintiff’s treating physicians as to plaintiff’s
physical and neuropsychological conditions and did not explain these discrepancies; (6) Dr.
Mendelssohn, whom insurance companies frequently employed as a consultant, reviewed
Neubert’s file using a “global impairment” standard not defined in the benefits plan; (7) LINA
did not consider Neubert’s benefits award from the Social Security Administration (SSA) before
issuing the second denial of benefits; and (8) LINA’s third denial of benefits suffered from the
same deficiencies described above. Neubert, 2012 WL 776992 at *13-21.
C. Proceedings on Remand
LINA conducted another review of Neubert’s claim for disability benefits after
remand. Dr. Swales, who had previously conducted a neuropsychological evaluation of Neubert
10

in January 2009, reviewed Neubert’s entire file. (AR at 806.) LINA asked Dr. Swales to answer
nine questions in his file review, four of which dealt with the value and reliability of Mr.
Schaus’s neuropsychological testing:
2) Please review the tests and results of the testing performed by Mr. Harold
Schaus, and comment on the tests that were administered. Specifically address
how these tests are different than those conducted January 12, 2009.
3) Are the tests administered by Mr. Schaus an acceptable measure for
determining a global impairment of functioning, please provide your rationale?
[sic]
4) Does the testing from Mr. Schaus support a finding that Mr. Neubert has
difficulties in divided attention and anxiety to an extent to impact his
functionality?
5) Is the testing conducted by Mr. Schaus supported by measured validity testing,
please provide your rationale? [sic]
(Id.) The other questions asked Dr. Swales to identify Neubert’s restrictions and limitations, with
particular attention to Neubert’s use of his hands and his anxiety disorder. (Id. at 806-07.) LINA
asked Dr. Swales to determine whether Neubert had a functional impairment as a result of any
organic process and whether the medical documents in Neubert’s record revealed any impaired
functionality in mental and social abilities.3 (Id.)
After review, Dr. Swales concluded that the tests administered by Mr. Schaus “do
not in themselves provide sufficient evidence of a cognitive disorder . . . that would interfere
with [Neubert’s] ability to work, nor lead to any limitations.” (AR at 815.) Further, Mr. Schaus’s

3

LINA provided Dr. Swales with the following list of mental and social abilities: ability to carry out activities of
daily living; ability to focus and concentrate; short term memory; working memory and comprehension; intellectual
capabilities; problem solving capabilities; higher-level executive functioning; ability to deal with change; ability to
deal with everyday stressful situations; ability to multi-task; ability to understand, carry out, and follow instructions;
ability to respond appropriately to instructions and questions; ability to function socially and relate interpersonally to
others; ability to persist and maintain pace; ability to plan and sustain activities; ability to influence other people’s
opinions, attitudes and judgments; and ability to exercise good judgment and make decisions. (AR at 807.)
11

tests were “not an acceptable measure for determining a Global Assessment of Functioning[,]”
were “not consistent with community or professional neuropsychology standards of a
comprehensive neuropsychological evaluation[,]” and did not sufficiently “determine whether
difficulties in divided attention and anxiety exist to an extent that impact upon Neubert’s
functionality.” (AR at 816-17.) In total, Mr. Schaus’s tests, according to Dr. Swales, had limited
clinical applications.
Nor did Dr. Swales identify any restrictions or limitations in the medical
documentation in Neubert’s file. (AR at 815.) Neubert’s medical records were “inconsistent with
severe motor impairment” in his hands and, moreover, indicated no impaired functionality other
than anxiety. (Id. at 818.) Finally, Dr. Swales concluded that Neubert suffered no impaired
functionality in mental and social abilities. (Id. at 818-20.)
In addition to Dr. Swales’s file review, LINA revisited on remand the vocational
review conducted on February 19, 2009, which had identified three occupations in Neubert’s
labor market: sales engineer, project engineer, and production planner. (AR at 825.) On remand,
the vocational review used the correct wage threshold of 80% of Neubert’s covered earnings.
(Id.) LINA determined that project engineer and production planner, both light duty occupations,
were still appropriate. (Id.) In identifying these occupations, LINA “stipulate[d]” to the physical
restrictions detailed by plaintiff’s treating physician, Dr. Shah. (Id. at 231.)
D. LINA’s Decision on Remand
On August 8, 2012, LINA again denied benefits. (AR at 230.) LINA concluded
that “the medical documentation does not support an impairment of such a severity as to
preclude [Neubert] from performing the material duties of any occupation.” (Id. at 231.)
“Furthermore, any impairment that does exist is caused by or directly related to an anxiety
12

disorder for which benefits have been paid through the 24 month limitation contained in Mr.
Neubert’s policy under the Mental Illness, Alcoholism and Drug Abuse Limitation.” (Id.)
To support its decision, LINA relied on file reviews, physicians’ opinions, and
several articles, giving these materials greater weight than materials supporting Neubert’s claim.
LINA expressly relied on Dr. Swales’s file review, as well as the revised vocational review.
Unlike its previous denials, LINA on remand discredited the treating physicians’ opinions that
Neubert had cognitive impairments. According to LINA, these opinions were supported only by
Neubert’s self-reported symptoms, not clinical testing or observed behavior. (Id. at 231.) LINA
also discredited the conclusions of Mr. Schaus, whose neuropsychological testing (the PASAT
and IVA tests) had determined that Neubert could not return to work. (Id. at 232.) Here, LINA
relied on Dr. Swales’s refutation of Mr. Schaus’s opinions and also cited a journal article
evaluating the efficacy of the PASAT test:4 Tom N. Tombaugh, A Comprehensive Review of the
Paced Auditory Serial Addition Test (PASAT), 21 ARCHIVES

OF

CLINICAL NEUROPSYCHOLOGY

53 (2006). (Id. at 232, 778.) The article noted that the PASAT is dependent upon age, IQ, and
math ability, does not readily detect malingering test-takers, and is extremely susceptible to
practice efforts. (Id. at 796.) LINA cited a portion of the article’s conclusion:
the PASAT represents a reliable test that has legitimate but restricted clinical
applications. As suggested above, a low score on the PASAT does not necessarily
indicate or confirm the presence of neurological pathology. Perhaps the best way
to characterize the PASAT is to state that it is a highly sensitive, non-specific test
and care must be taken to identify the reasons underlying any low score before
interpreting it as clinically significant.
(Id. at 232, 796.)
4

The PASAT requires the participant to add a series of single digit numbers. (AR at 779.) If the numbers 3, 6, and 2
were presented to the participant, he must first respond with 9, the sum of 3 and 6, and then with 8, the sum of 6 and
2. If the next number in the sequence were 4, the participant would add the two most recent numbers, 2 and 4, and
answer with 6. (Id.)
13

Having discredited the opinions of the treating physicians and Mr. Schaus, LINA
gave “greater weight” to the opinions of Dr. Swales and Dr. Mendelssohn, which were “based on
clinical observation, validated neuropsychological testing, and review of Mr. Neubert’s entire
medical file[.]” (Id. at 232.) Dr. Swales and Dr. Mendelssohn both opined that Neubert did not
suffer from any cognitive deficit or impairment, with Dr. Swales concluding that any impairment
“was the product of anxiety, rather than a true cognitive impairment.” (Id.) LINA also relied on
Dr. Swales’s opinion that Neubert’s anxiety did not rise to a level “that would interfere with his
everyday functioning.” (Id.)
LINA considered, but ultimately did not give great weight to, the SSA benefits
award. While the Administrative Law Judge awarding benefits relied on evidence that “could
reasonably be expected to produce the alleged symptoms[,]” LINA relied on the record as a
whole, including clinical studies that were not part of the Social Security case. (Id. at 233.) LINA
further noted that the Plan requirements for LTD benefits differ from the requirements for Social
Security Disability benefits. (Id.)
Finally, LINA noted that playing World of Warcraft (“WoW”), a frequent activity
of Neubert’s, requires a level of cognitive ability inconsistent with his claimed impairments. (Id.)
To support this conclusion, LINA relied on the findings of the Gains Through Gaming Lab,
which focuses on improving the cognitive abilities of older adults through gaming. According to
a Lab researcher, WoW “is a cognitively challenging game in a socially interactive environment
that presents users with novel situations.” (AR at 233, 722.) Playing WoW includes
“multitasking and switching between multiple cognitive abilities such as memory and spatial
manipulations[.]” (Id.) LINA concluded, therefore, that Neubert’s purported limitations were

14

inaccurate because “the skills required for [WoW] . . . are outside the scope of what Nr. Neubert
reports that he is capable.” (AR at 233.)
Considering the entire file, LINA concluded that Neubert was not disabled under
the Plan and was not entitled to any further benefits. After this decision, Neubert submitted
additional medical materials, which LINA did not accept. (AR at 227.) LINA indicated that
Neubert had exhausted all administrative levels of appeals (id.), and Neubert filed the instant
action.
II.

Law and Analysis
A. Standard of Review
An ERISA plan administrator’s decision to deny benefits is reviewed de novo,

unless the benefit plan grants the administrator discretionary authority to determine eligibility for
benefits or construe the terms of the plan. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101,
115, 109 S. Ct. 948, 103 L. Ed. 2d 80 (1989). When there is a clear grant of discretionary
authority to the plan administrator under the terms of the plan, the court applies an arbitrary and
capricious standard of review to the administrator’s decision to deny benefits. McClain v. Eaton
Corp. Disability Plan, 740 F.3d 1059, 1063-64 (6th Cir. 2014) (citations omitted). Here, the
parties agree that the terms of the Plan grant discretionary authority to LINA, and the arbitrary
and capricious standard of review applies. (See Doc. No. 23 at 1271; Doc. No. 24-1 at 1300.)
Described as the “‘least demanding form of judicial review[,]’” the arbitrary and
capricious standard entails extreme deference to the ERISA plan administrator. McClain, 740
F.3d at 1064 (quoting Cozzie v. Metro. Life Ins. Co., 140 F.3d 1104, 1107-08 (7th Cir. 1998)). In
McClain, the Sixth Circuit cautioned that commonly invoked metaphors for the arbitrary and
capricious standard—rubber stamping decisions and toothless review—must not eclipse the
15

standard itself. Id. Instead, a “‘decision reviewed according to the arbitrary and capricious
standard must be upheld if it results from a deliberate principled reasoning process and is
supported by substantial evidence.’” Id. at 1064-65 (quoting Schwalm v. Guardian Life Ins. Co.
of Am., 626 F.3d 299, 308 (6th Cir. 2010) (further citations and quotation marks omitted)). If a
“‘reasoned explanation, based on the evidence’” supports the plan administrator’s decision, the
decision “‘is not arbitrary or capricious.’” Id. at 1065 (quoting Shields v. Reader’s Digest Ass’n,
Inc., 331 F.3d 536, 541 (6th Cir. 2003)). Most importantly, even if discrete acts by the plan
administrator are arbitrary and capricious, the court asks only whether the ultimate decision
denying benefits was arbitrary and capricious. Id. at 1066 (quoting Spangler v. Lockheed Martin
Energy Sys., Inc., 313 F.3d 356, 362 (6th Cir. 2002)).
Review is “limited to the administrative record[,]” i.e., “‘the facts known to the
plan administrator’” at the time of the administrator’s decision. Judge v. Metro. Life Ins. Co., 710
F.3d 651, 658 (6th Cir. 2013) (quoting Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376,
381 (6th Cir. 1996)). The court may consider evidence outside the administrative record only
when it supports a procedural challenge, such as “an alleged lack of due process afforded by the
administrator or alleged bias on its part.” Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609,
619 (6th Cir. 1998) (Gilman, J., concurring).
B. Analysis
Because the Court may only determine whether the ultimate decision denying
benefits was arbitrary and capricious, the Court must grant LINA’s motion for judgment on the
administrative record and deny plaintiff’s. LINA’s “full and fair review” was less than perfect. It
repeated past mistakes, ignored portions of the Court’s previous opinion, and appeared to have
specifically ordered a selective file review on remand. Yet, constrained by the arbitrary and
16

capricious standard of review as laid out by the Sixth Circuit, the Court cannot say that LINA’s
ultimate decision denying benefits rose to the level of arbitrary and capricious. In its letter
denying benefits on remand, LINA found that “any impairment that does exist is caused by or
directly related to an anxiety disorder for which benefits have been paid through the 24 month
limitation contained in Mr. Neubert’s policy under the Mental Illness, Alcoholism and Drug
Abuse Limitation.”5 (AR at 231.) A “‘reasoned explanation, based on evidence[]’” supports
LINA’s conclusion that an anxiety disorder contributed to Neubert’s disability; therefore,
LINA’s decision denying benefits was not arbitrary and capricious. McClain, 740 F.3d at 1065
(quoting Shields, 331 F.3d at 541).
The Court begins by describing the improper actions of LINA on remand. LINA
gave “greater weight” to Dr. Swales and Dr. Medelssohn’s opinions than the treating physicians’
opinions, noting that only the former opinions were based on clinical observation and valid
testing.6 (AR at 232.) The Court has already determined that Dr. Mendelssohn’s review “lacks a
reasoned analysis.” Neubert, 2012 WL 776992, at *17. Her file review ignored evidence of

5

This section provides:
We will pay Monthly Benefits on a limited basis for a Disability caused by, or contributed to by,
any one or more of the following conditions. Once 24 Monthly Benefits have been paid, no further
benefits will be payable for any of these conditions.
1.
Alcoholism
2.
Anxiety disorders
3.
Delusional (paranoid) disorders
4.
Depressive disorders
5.
Drug addiction or abuse
6.
Eating disorders
7.
Mental illness
8.
Somatoform disorders (psychosomatic illness)
(AR at 1203.)
6
By stating that Dr. Mendelssohn and Dr. Swales’s opinions were “based on clinical observation, validated
neuropsychological testing, and review of Mr. Neubert’s entire medical file[,]” LINA gives the impression that Dr.
Mendelssohn examined Neubert personally. (AR at 232.) This is not the case. Dr. Mendelssohn “defer[red] to the
neuropsychological evaluation conducted” by Dr. Swales in her file review and has never examined Neubert. (Id.)
17

Neubert’s cognitive difficulties and used a global impairment standard not defined in the record
or the Plan. Id. Dr. Mendelssohn’s file review did not acquire a reasoned analysis on remand.
The vocational review conducted on remand ignored the Court’s previous
opinion, in which the Court noted:
[t]he vocational review identifies three occupations that are classified as light duty
work, 20 C.F.R. § 404.1567(b), despite Dr. Shah’s report that Neubert is only
occasionally able to walk or stand, which would indicate sedentary work, 20
C.F.R. § 404.1567(a). In its first denial letter, LINA does not explain the
discrepancy between Dr. Shah’s analysis and that of the vocational review. What
is more, the vocational review indicates, ‘no consideration [was] taken for any
cognitive deficits’ (AR 699), presumably, because Dr. Swales did not find any
cognitive impairment; however, as outlined above, no explanation is given for
rejecting the differing conclusions reached by Neubert’s treating physicians.
Neubert, 2012 WL 776992, at *15. While Dr. Shah limited Neubert to occasional walking and
standing, to which LINA purportedly stipulated, the second vocational review inexplicably
produced two light duty occupations—project engineer and production planner—both of which
“[c]an include walking and or standing frequently[.]” (AR at 803, 805.) After four years of
analysis and evaluation, LINA has not identified even one occupation in Neubert’s labor market
that accommodates his restrictions and limitations. LINA’s failure to conduct a vocational
review in compliance with either the Court’s previous opinion or its own stated standards is
disturbing to the Court.
Though the Court required LINA to perform a “full and fair review” of Neubert’s
file on remand, when LINA asked Dr. Swales to conduct a full file review, four of its nine
questions dealt exclusively with Mr. Schaus’s neuropsychological tests, among the strongest
evidence supporting Neubert’s disability. (AR at 806-07.) LINA did not require or request such
exacting analysis relative to any other testing or medical opinion.

18

These problems notwithstanding, LINA’s ultimate decision denying benefits
relied on ample record evidence that Neubert’s anxiety disorder contributed to his disability. The
record is replete with references to Neubert’s anxiety. On January 22, 2009, Dr. Swales noted
that Neubert “endorsed criteria currently for a generalized anxiety disorder following the stroke
in that he is frequently restless, easily fatigued, and has concentration difficulties and irritability,
as well as neck tension and sleep difficulties, all related to his worries.” (AR at 464.) Neubert
told Dr. Swales that “[a]nxiety is an issue.” (Id.) Dr. Swales ultimately concluded that Neubert
“meets criteria for an Anxiety Disorder Not Otherwise Specified (DSM-IV 300.00)” and that
“[h]is cognitive complaints appear to be the product of anxiety, rather than true cognitive
impairment.” (Id. at 472-73.) Dr. Swales did caution that the anxiety disorder could be
“organically-based[,]” i.e., a result of Neubert’s past strokes. (Id. at 473.)
Asked to describe his limitations, Neubert repeatedly cited his anxiety as one of
the primary mental problems preventing him from working. In a November 2008 email, Neubert
writes, “the primary mental problems preventing me from working are: . . . [o]verload and stress
out to point of crippling anxiety . . . .” (Id. at 513.) In documents submitted to LINA describing
his disability, Neubert again detailed the primary physical and/or mental conditions preventing
him from working: “constant burning in right arm and leg along with severe neck pain that forces
[him] to lie down, anxiety problems, unable to focus or multitask, and memory problems due to
permanent brain damage from stroke. This also causes fatigue and lack of stamina.” (Id. at 518;
see also id. at 592, 720.)
Neubert’s treating physicians frequently remarked on Neubert’s anxiety,
particularly anxiety about returning to work and performing satisfactorily at work. (See, e.g., id.
at 683, 937, 972, 975, 977, 979, 986, 1033.) Even Mr. Schaus, a strong supporter of Neubert’s
19

claim of cognitive impairments, believed that Neubert has “psychological dysfunction in the
mild to moderate range of severity[,]” specifically, generalized anxiety disorder and an
adjustment disorder with depressed mood. (Id. at 884.) While Mr. Schaus believed that Neubert’s
cognitive defects alone rendered him “unlikely” to return to work, he also noted that, when
combined with the emotional problems, “it is a real long shot that he could resume his duties at
Lockheed.” (Id. at 886.)
In particular, the file review performed by Dr. Swales on remand highlighted
Neubert’s anxiety disorder. First, Dr. Swales recalled his own January 22, 2009 evaluation of
Neubert, in which he concluded that Neubert’s main problem was anxiety disorder. (Id. at 807.)
Dr. Swales cited ample record evidence to show he was not alone in this opinion. He noted that
Mr. Schaus diagnosed Neubert with anxiety disorder (id. at 808), and that Neubert’s treating
physician, Dr. Salay, remarked on Neubert’s anxiety (id. at 810), as did Dr. Parmar, another
treating physician. (Id. at 813.) After reviewing the file, Dr. Swales found “no other indication of
a limitation to Mr. Neubert’s functionality other than his anxiety.” (Id. at 818.) Substantial
evidence supported Dr. Swales’s opinion, and LINA’s reliance on his opinion, as well as the rest
of the record evidence of Neubert’s anxiety disorder, was reasonable. Under the Plan’s plain
language, once LINA determined that Neubert’s anxiety disorder “contributed to” his disability,
LINA had no duty to pay disability benefits beyond twenty-four months. (Id. at 1203.)
Courts considering similar mental disorder limitations in ERISA plans have
upheld benefits denials. For example, when an ERISA plan capped benefits for disabilities
“caused by or contributed to by mental or nervous disorders[,]” a district court held that
plaintiff’s anxiety disorder contributed to her disability, even though it was caused by her
medical condition. Guo v. Reliance Standard life Ins. Co., No. 08-11027, 2009 WL 2386084, at
20

*6 (E.D. Mich. July 30, 2009). Because the plan language did not differentiate between nervous
disorders caused by medical conditions and those caused by psychological conditions, the court
held that capping benefits under the limitation for a medically-induced nervous disorder was not
arbitrary and capricious. Id. at *8; see also Atkins v. Guardian Life Ins. Co. of Am., 969 F. Supp.
2d 788, 798 (E.D. Ky. 2013) (applying plan’s special limitation provision regarding mental or
nervous conditions); Neely v. Metro. Life Ins. Co., 326 F. Supp. 2d 871, 875 (W.D. Tenn. 2004)
(limiting benefits under mental disorder limitation provision when “ample evidence” of
depression); Laird v. Metlife Life & Accident Ins. Co., No. 08-13075, 2009 WL 2496491, at *22
(E.D. Mich. Aug. 17, 2009) (concluding that plaintiff’s disability resulted from major depressive
disorder, not organic brain syndrome, an exception to the plan’s mental disorder limitation).
Under this Plan, disabilities caused by or contributed to by “anxiety disorders” are
limited to twenty-four months of benefits. The plain terms of the Plan do not exempt from the
twenty-four month limitation anxiety disorders caused by strokes or other medical conditions.
Nor do the plain terms of the Plan require the anxiety disorder to be the main or overriding
contributing factor to the disability. It was not arbitrary and capricious, therefore, for LINA to
determine that Neubert suffered from an anxiety disorder and that his anxiety disorder
contributed to his disability. Because a reasoned explanation based on evidence in the record
supports this conclusion, the Court may not second guess LINA’s decision terminating benefits
after twenty-four months.
III.

Conclusion
Though LINA’s treatment of Neubert’s claim for disability benefits on remand

fell far short of perfect, its ultimate decision denying benefits was rational, supported by record

21

evidence, and not arbitrary and capricious. Accordingly, defendant’s motion for summary
judgment is GRANTED and plaintiff’s motion for summary judgment is DENIED.

IT IS SO ORDERED.
Dated: July 21, 2014
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

22