McGill v. UNUM Life Insurance Company of America

Filing 26

ORDER denying 22 Motion for judgment on the administrative record; granting 23 Motion to uphold the administrative decision. Signed by Magistrate Judge Mark R. Abel on 05/23/2014. (sr1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Bridgett McGill,

:
Plaintiff

v.

:

Civil Action 2:13-cv-00484

:

Unum Life Insurance Company of
America,

:

Magistrate Judge Abel

:
Defendant
:

Order
Plaintiff Bridgett McGill brought this action under the Employee Retirement
Income Security Act ("ERISA"), 29 U.S.C. §§ 1001, et seq., challenging defendant Unum
Life Insurance Company of America's termination of her long-term disability benefits.
This matter is before the Court on the parties’ March 18, 2014 simultaneous motions for
judgment on the administrative record (docs. 22 & 23).
I. Overview
McGill worked for Time Warner Cable LLC as a customer service representative
handling a high volume of incoming telephone calls. The job required her to use a
computer keyboard and mouse to make entries and move between computer screens
during telephone calls. The central issue in this case is whether the occupation of
customer service representative, as performed in the national economy, requires the
continuous use of hands for keyboarding and operating a computer mouse or only

frequent (up to two-thirds of the time) use of a keyboard and mouse. It is undisputed
that McGill's treating orthopedist told Unum that McGill was capable of frequent use of
a keyboard and mouse. Unum decided that McGill could perform the occupation of
customer service representative as it is performed in the national economy because it
only required frequent use of her hands.

II. Background
From May 2008 through July 2011, plaintiff Bridgett McGill was employed by
Time Warner Cable as a customer service representative. On July 10, 2011, McGill was
injured in a motorcycle accident. As a result of injuries to her right hand, McGill
submitted a claim for long term disability benefits through a plan administered by
defendant Unum Life Insurance Company of America (“Unum”). Unum is both the
administrator of the plan and the payor.
The policy provides:
You are disabled when Unum determine that:
- you are limited from performing the material and substantial duties of
your regular occupation due to your sickness or injury;
- you have a 20% or more loss in your indexed monthly earnings due to
the same sickness or injury.
After 24 months of payments, you are disabled when Unum determines
that due to the same sickness or injury, you are unable to perform the
duties of any gainful occupation for which you are reasonably fitted by
education, training or experience.
...
You must be continuously disabled through your elimination period.
Unum will treat your disability as continuous if your disability stops for

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90 days or less during the elimination period. The days that you are not
disabled will not count toward your elimination period.
Your elimination period is the later of:
- 26 weeks; or
- the date your Short Term Disability payments end, if applicable.
Doc. 16-2, PageID 1236. The terms of the policy dictate that a “regular occupation” is the
occupation that the claimant is routinely performing when disability begins and that
Unum will consider a claimant’s occupation “as it is normally performed in the national
economy, instead of how the work tasks are performed for a specific employer or at a
specific location.” Doc. 16-3, PageID 1253.
III. Evidence of Record
Edward L. Westerheide, M.D. On August 23, 2011, Dr. Westerheide, who
practices as an orthopedic and sports medicine specialist, examined McGill at the
request of James Patrick Johnston, D.O. McGill reported constant, burning pain in the
right hand since a July 10, 2011 motorcycle accident. She sustained small lacerations or
abrasions to the third, fourth, and fifth PIP dorsal knuckle region. Previous treatment
included sutures, casting, occupational therapy, and pain medication. McGill said she
experienced significant finger stiffness after seven occupational therapy sessions. Doc.
16-1, PageID 1135.
On examination, McGill had healed scars on the dorsum of the PIP joints for the
third, fourth and fifth digits. There was no abnormal swelling or color changes. There
was mild tenderness to palpation of the joints. She was unable to make a full fist. Her
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MCPs had nearly normal motion. The maximum flexion of the joints was to 80". There
was no instability. Grip strength was reduced. Id., PageID 1136. X-rays showed no
fractures, arthritic changes, or bone lesions. Dr. Westerheide’s assessment was
contracture of the right hand and reflex sympathetic dystrophy. He recommended pain
management and aggressive occupational therapy. He believed McGill should return to
work because it would be good therapy for her hands. His notes say she should return
to work the next day without restrictions. Id., PageID 1137.
Raymond Wurapa, M.D. On August 25, 2011, Dr. Wurapa, an orthopedist, began
treating plaintiff for injuries sustained in the July 2011 motorcycle. Id., PageID 1091.
Plaintiff suffered multiple abrasions to the right hand. She underwent occupational
therapy, which she did not tolerate well due to pain. Dr. Wurapa indicated that plaintiff
still had significant functional limitations with her right hand. On physical examination,
plaintiff had severe extension contracture involving the right middle, ring and small
digits. She was diffusely tender to palpation across all 3 digits. Passive flexion in these
digits were no more than her active motion and limited mainly by pain. She had mild
diffuse edema through the ulnar hand with palpable induration through the 3 digits.
Dr. Wurapa diagnosed post-traumatic contracture of the right middle, ring and small
digits. He recommended that plaintiff undergo occupational therapy under his
supervision. She would have limited use of her right hand in the interim. Id.
On November 10, 2011, Dr. Wurapa recommended that plaintiff undergo PIP
joint release with extensor tenolysis. Id., PageID 1102. The surgery was scheduled for
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November 28, 2011. Id., PageID 1112. On January 12, 2012, Dr. Wurapa saw her for a
follow up after the contracture release surgery. She was “making slow but steady
progress with her rehabilitation and therapy.” Doc. 16-2, PageID 1156. She still had
“significant pain requiring intermittent narcotic use.” Id. She was to continue with
therapy and home exercises, increasing activity as tolerated. Her restrictions prevented
her from performing work using her right hand. Dr. Wurapa planned to see her again in
six weeks. Id.
On February 23, 2012, Dr. Wurapa released McGill to work up to six hours a day
without restriction. He would evaluate whether she was able to tolerate work over the
following six weeks. Id., PageID 1173. On March 22, 2012, Unum sent McGill a letter
stating that it had approved her request for long term disability benefits. Id., PageID
1213. McGill worked six hours on March 31 and again on April 4, 2012, then went back
out on leave. Doc. 16-4, PageID 1384. McGill returned to Dr. Wurapa on April 5. He said
she was making “slow but steady progress with rehabilitation but appears to be
plateauing at this time.” Doc. 16-3, PageID 1331. She reported “difficulties with
prolonged or heavy use of her right hand.” Id. On examination there was minimal
edema over the right hand. Motion of her digits appeared to be limited more by
discomfort than by primary contracture. She had recently completed therapy and was
continuing home exercises. He talked with her about the possibility she could not
continue her current employment if her restrictions could not be accommodated. Id. Dr.
Wurapa scheduled her for a functional capacity evaluation. Doc. 16-3, PageID 1319.
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On May 8, 2012, Robert Crossman, OTR/L, CEAS, performed an occupational
evaluation at Mt. Carmel East Occupational Rehabilitation. Doc. 16-4, PageID 1392-1407.
Overall, he concluded that McGill made “high levels of physical effort” during testing
and made “reliable reports of pain and disability.” Id., PageID 1393. Her occupation was
reported as customer service representative, Dictionary of Occupational Titles Code
239.362.014. McGill said that “she sat with a headset on and worked at a computer
during the entire 10 hour shift.” Id. She reported “that she took 25 to 30 calls an hour.”
Id. She changed screens approximately 10 times during each customer call. Id.
In a section of the report labeled “Physical Abilities and Job Match”, Crossman
said that the that a customer service representative is required to type on a keyboard
and use a mouse constantly (greater than b day). Id., PageID 1394. During physical
capacities testing, McGill demonstrated “[g]ood ability but limited tolerance” to write
continuously while seated. She exhibited “[l]imited (R) hand function, speed and
efficiency” keyboarding.1 Id., PageID 1404. She primarily used the thumb, index and
middle fingers of the right hand while keyboarding. She avoided the use of her ring and
little finger. During 5 minutes and 25 seconds, she typed 130 words with 8 errors. Id.
Based on findings from the testing, it was recommended that plaintiff
Limit time in repetitive and sustained tasks (keyboarding, use of
computer mouse, writing with (R) hand to 10 minutes, take a break and
perform a different task. When return to work, perform a variety of tasks
throughout the day.”
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The writing and keyboarding work simulation testing both involved “copying
down a short story”. Id., PageID 1403.
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Id., PageID 1395.
On May 21, 2012, a Unum employee contacted McGill to obtain an update about
her right hand. Id., PageID 1409-11. McGill said that she could not bend the pinky, ring
and middle fingers of her right hand at all. She could use her index finger and thumb.
She had trouble with dressing and buttons. Id., PageID 1409. McGill said she could not
perform her job at Time Warner because she was unable to type or grasp a computer
mouse. She had no other source of income. Her spouse was on disability. She had two
children, 13 and 15 years old. Id., PageID 1410.
On June 5, 2012, a medical consultant for Unum wrote Dr. Wurapa a letter asking
him whether McGill could perform work consistent with the following vocational
assessment:
Exerting up to 10 pounds of force occasionally and/or a negligible amount
of force frequently to lift, carry, push, pull, or otherwise move objects,
sitting most of the time, may involve walking or standing for brief periods
of time. Occasionally standing and walking, and frequently reaching,
handling, fingering, and keyboard use. Frequent is defined as: Activity of
condition exists from 1/3 to 2/3 of the time (2.5 -5.5 hours a day in an 8hour workday).
Our vocational specialist has provided assessment of Ms. McGill's
occupation with exertional and physical demands as follows: requires
exerting up to 10 pounds. of force occasionally and/or a negligible force
frequently to lift, carry, push, pull, or otherwise move objects, sitting most
of the time, may involve walking or standing for brief periods of time.
Occasionally standing and walking and frequently reaching, handling,
fingering, and keyboard use. Occasionally = up to one-third of a workday
(zero to 2.5 hours per day in an 8 hour work day) and frequently= up to
two-thirds of a workday (2.5 to 5.5 hours per day in an 8 hour day).

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Id., PageID 1447. Dr. Wurapa responded that plaintiff could perform work consistent
with those job requirements, but would “require frequent breaks to accommodate
conditioning.” Id., PageID 1455. He recommended “HEP as instructed in therapy” and
“pain control” to manage her condition. Id.
Beth S. Darman, M.Ed., NCC, CRC, LPC. On May 30, 2012, Ms. Darman, a senior
vocational rehabilitation consultant at Unum, was asked to review the file and
determine the physical demands of the job McGill performed for Time Warner, as that
job is performed in the national economy. McGill’s job title was “Rep 2, Customer Care
Rep”. Doc. 16-4, PageID 1421. Although there was no job description from the employer
in the file, Darman believed, based on her previous experience with Time Warner and
McGill’s description of the job, that plaintiff’s occupation was most consistent with that
of a call center representative, eDOT# 299.357-201. Doc. 16-4, PageID 1421-23. Darman
concluded that call center representative was more consistent with the job description
than customer service representative because “the amount of time spent on the
telephone and sitting is greater in a call center than in a typical office environment
where a Customer Service Representative would be working.” Id., PageID 1423. But she
did advise that if a job description that appeared to contradict that occupation later
became available, she should be contacted again for an additional assessment. Id. The
duties of a call center representative were described as follows:
Answers general inbound and places outbound calls in a call center with the goal
of increasing business, customer satisfaction and customer retention. Follows
basic procedures and scripts, using fundamental knowledge to navigate
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company’s customer information systems and/or order system along with a
basic knowledge of company, services and products. Responds to customer
questions, explains available services, corrects errors, provides information on
pricing, takes orders, develops leads and/or sells products and services.
Id., PageID 1422. The position of call center representative required frequent keyboard
use. Frequent was defined as activity existing from one-third to two-thirds of the time.
Id. Ms. Darman opined that plaintiff could use her left hand for manipulating the
mouse. Id., PageID 1423.
Richard Oestreich, Ph.D.: November 14, 2012 Vocational Report. In a November
14, 2012 report, Dr. Oestreich stated that based on a phone interview with plaintiff and
examining a variety of sources, her job can best be described as that of a customer
service representative, skilled and sedentary, Dictionary of Occupational Titles Code
239.362.014. McGill told him that all of the fingers of her dominant right hand were
virtually useless for keyboarding. Since her late November 2011 tendon release surgery,
the fingers do not bend and become painful with repetitive use. Doc. 16-6, PageID 1590.
Plaintiff told Dr. Oestreich that she took 6-12 calls an hour, one after the other, each call
lasting 5-10 minutes. From the job descriptions he researched and McGill’s knowledge
and experience with her customer service representative job, Dr. Oestreich concluded
that the “her job required her to use her fingers and hands constantly and continuously
at the job she was doing before [her] motorcycle accident . . . .” Id., PageID 1591. The job
required that there be no limits on the use of the hands. Using a keyboard was so
integral to the job that she used a telephone headset to allow her to use her hands at all

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times. All of her work involved inbound calls. Dr. Oestreich opined that McGill was
“unable to do her prior job as a customer service representative due to her limited
ability to finger, feel, or use a keyboard with her dominant right hand.” Id.
Richard Oestreich, Ph.D.: November 21, 2012 Supplemental Vocational Report.
Dr. Oestreich compared the job that Ms. Darman identified as McGill’s job with the
position of a customer service representative. Dr. Oestreich was unable to locate the
position of call center representative in the Dictionary of Occupational Titles. In
reviewing the job description provided by Ms. Darman, Dr. Oestreich noted that half of
the stated duties refer to outbound calling in addition to sales scripts and a goal of
increasing business by developing leads and initiating the sale of products. McGill’s
position only entailed inbound calling, which requires a great deal of documentation
and differs appreciably from the documentation connected with outbound calling
where the vast majority of calls either do not reach anyone or result in a hang-up or an
expression of lack of interest. Inbound calls, on the other hand, are initiated by a
customer who wants to talk to an actual representative to solve a problem. Doc. 16-6,
PageID 1587. Ms. Darman defined “frequent” as between one-third and two-thirds of
the day, but Dr. Oestreich noted that McGill indicated that she used her keyboard
nearly 100 percent of the time. He argued:
One who uses the keyboard for what Ms. McGill described as nearly 100%
of the time simply cannot do the job with three basically useless finges for
any vocationally competitive amount of time and certainly not for two
thirds of the time.

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Id., PageID 1588. Ms. Darman also suggested that plaintiff could use her left hand for
manipulating the mouse, but Dr. Oestreich disagreed with this contention on the basis
that McGill would then have to use her less effective hand for keyboarding. Dr.
Oestreich maintained that the job which he assigned to plaintiff appeared to most
accurately reflect McGill’s job with Time Warner and had an actual DOT code defining
its duties. Id.
Shannon O’Kelley, M.Ed., CRC. On January 17, 2013, O’Kelley, a senior
vocational rehabilitation consultant for Unum, responded to a request to evaluate
whether plaintiff’s job was most consistent with the occupation of customer service
representative and, if so, to determine whether the occupation as performed in the
national economy requires constant and/or repetitive use of the hands. Doc. 16-6,
PageID 1622-26. O’Kelley reviewed the reports authored by Oestreich and Darman, her
current medical restrictions, the DOT, eDOT, and O*NET. Id., PageID 1625-26. She
concluded that McGill’s occupation was customer services representative, eDot 239.362014. Further, she stated the opinion that the occupation “would require frequent use of
hands which would not be characterized as repetitive (without the ability to alter or
change the method of an activity and at a specific rate of speed).” Id., PageID 1626.
IV. Decision
Section 502(a)(1)(B) of ERISA authorizes an individual to bring an action to
recover benefits due to her under the terms of her plan. 29 U.S.C. § 1132(a)(1)(B). A plan

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administrator's decision to deny benefits is typically reviewed de novo. However, when
the plan administrator has discretionary authority to determine eligibility and construe
policy terms, the more deferential arbitrary and capricious standard of review is
applied. Sanford v. Harvard Indus., Inc., 262 F.3d 590, 595 (6th Cir.2001). Here, the Court
must apply the arbitrary and capricious standard because the policy grants Unum
discretionary authority to interpret eligibility for benefits and to construe the policy’s
terms. See doc. 16-3, PageID 1260 (“Benefit determinations include determining
eligibility for benefits and the amount of any benefits, resolving factual disputes, and
interpreting and enforcing the provisions of the Plan.”).
When applying the arbitrary and capricious standard, a court must review the
plan provisions and the record evidence to determine if the administrator's decision
was “rational.” Shields v. Reader's Digest Ass'n, Inc., 331 F.3d 536, 541 (6th Cir. 2003).
Even if there is evidence sufficient to support a finding of disability, the decision is not
arbitrary or capricious if there is a reasonable explanation for the administrator's
decision denying benefits. Williams v. Int'l Paper Co., 227 F.3d 706, 712 (6th Cir. 2000).
Despite the deferential standard of review, courts do not rubber stamp a plan
administrator's decision; rather, a court must review the quantity and quality of the
medical evidence on each side. Evans v. UnumProvident Corp., 434 F.3d 866, 876 (6th Cir.
2006). “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.’” Schwalm v. Guardian Life Insurance. Co. of America, 626 F.3d 299,
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308 (C.A.6 (Ohio),2010)(quoting Baker v. United Mine Workers of Am. Health & Ret. Funds,
929 F.2d 1140, 1144 (6th Cir.1991)). The court's review is limited to the administrative
record, and only evidence presented to the plan administrator at the time he
determined the employee's eligibility may be considered. Wilkins v. Baptist Healthcare
System., Inc., 150 F.3d 609, 618 (6th Cir.1998).
Plaintiff argues that because Unum is both the claims administrator and payor
there is a conflict of interest that requires a heightened standard of review:
We have recognized that a conflict of interest exists when the insurer both
decides whether the employee is eligible for benefits and pays those
benefits. Gismondi v. United Techs. Corp., 408 F.3d .295, 299 (6th .Circuit
2005); see Killian v. Healthsource Provident Adm'rs, 1'52 F.3d 514 at 521 (6th
Circuit 1998)(observing "there is an actual, readily apparent conflict . . .
not a mere potential for one" where a company both funds and
administers an LTD policy because "it incurs a direct expense as a result of
the allowance of benefits, and it benefits directly from the denial or
discontinuation of benefits"). In this case, because defendant maintains
such a dual role, "the potential for self-interested decisionmaking is
evident". Univ. Hospitals. of Cleveland v. Emerson Elec. Co., 202 F.3d 839, 846
n.4 (6th Cir. 2000). However, this conflict of interest does not displace the
arbitrary and capricious standard of review; rather, it is a factor that we
consider when determining whether the administrator's decision to deny
benefits was arbitrary and capricious. Kalish v. Liberty Mut/Liberty Life
Assurance Co. of Boston, 419 F.3d 501, 506 (6th Circuit 2005). The reviewing
court looks to see if there is evidence that the conflict in any way
influenced the plan administrator's decision. Carr v. Reliance Standard Life
Insurance. Co., 363 F.3d 604, 606 n.2 (6th Circuit 2004).
Evans v. Unum Provident Corp., 434 F.3d 866, 876 (6th Circuit 2006). See also Peruzzi v.
Summa Med. Plan, 137 F.3d 431 , 433 (6th Circuit 1998).
Defendant counters that case law establishes that “if the conflict of interest did
not actually motivate [the] decision, then it is given no weight as a factor in determining
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whether the decision was arbitrary and capricious.” Pflaum v. Unum Provident Corp., 175
F. App’x 7, 10 (6th Cir. 2006). Since plaintiff offers no example of any bias that resulted
from a conflict of interest, there is no evidence that the structural conflict of interest
adversely impacted her. Consequently, defendant argues that the conflict should not
factor in the court’s review under the arbitrary and capricious standard.
Peruzzi, above, involved the denial of coverage for a high dosage chemotherapy
and bone marrow transplantation procedure because the treatment was experimental.
The plaintiff in Peruzzi argued that there was a conflict of interest because the defendant
both determined and paid the claim. The Sixth Circuit held that the factor did not
warrant overturning the lower court’s grant of summary judgment since the panel
making the determination had no financial interest in the outcome of their decision and
plaintiff had offered no evidence the decision was motivated by cost. 137 F.3d at 433. In
Pflaum, the Circuit held that "[b]ecause Pflaum points to nothing beyond the mere
existence of a conflict of interest to show that UNUM's decision was motivated by
self-interest, we give no further consideration in the arbitrary and capricious analysis to
the possibility that the conflict affected UNUM's decision-making." Accord, Hockin v.
Kmart Corp. Long Term Disability Income Plan, 105 Fed.Appx. 755 (6th Cir. July 27, 2004).
Here plaintiff has offered no evidence supporting a finding that Unum's decision
was influenced by the cost of continuing long term disability payments. I will consider
the conflict of interest as a factor in the arbitrary and capricious standard of review.

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In a January 18, 2013 letter to plaintiff’s attorney, Unum outlined its reasons for
concluding that the job of Customer Service Representative, as performed in the
national economy, did not require constant keyboarding:
You also indicated Ms. McGill’s work involved exclusively inbound
calling as opposed to outbound calls. During the course of the calls she
had to use both hands to move from screen to screen. The calls come in
non-stop. She has to go from one call to another with no break in between.
You indicate she would spend most of the time writing with one hand and
entering data on the computer with the other.
Many of the tasks you describe appear to be specific to Ms. McGill’s job at
Time Warner Cable. This includes the types of calls (inbound vs.
outbound) and the number of computer screens she had to navigate. The
Long Term Disability policy covers Ms. McGill for an inability to perform
her occupation, not the inability to perform certain job-specific
requirements of the position she held or the inability to function within a
specific employer’s environment.
As part of the appeal review, we had another vocational specialist review
Ms. McGill’s occupation in consideration of Dr. Oestreich’s conclusions.
Our vocational specialist agrees that Ms. McGill’s occupation is most
consistent with that of a “Customer Service Representative” in the
national economy. Although the title of the occupation is different from
what was used in the prior vocational reviews, the physical demands
relating to hand use and keyboarding are unchanged. The prior comments
about the ability for intermittent breaks in keyboarding activities and the
use of the mouse with the left hand also remain appropriate to this
occupation. This would not alter the description of the physical demands
previously provided to Dr. Wurapa.
Our vocational specialist indicate the occupation of Customer Service
Representative (eDOT 239.362-014) as performed in the national economy
requires frequent keyboarding and occasional to frequent handling. There
is no indication of a requirement for “constant” or “repetitive” tasks
involving hand use or keyboarding as the occupation exists nationally. If
Ms. McGill was required to perform such constant or repetitive activities,
this would be specific to her job at Time Warner Cable. It is not
representative of the occupation as a whole.
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Doc. 16-6, PageID 1631.
There is substantial evidence supporting Unum's determination that McGill can
perform her occupation of customer service representative as it is performed in the
national economy. Two vocational experts, Darman and O'Kelley gave the opinion that
the occupation of customer service representative as it is performed in the national
economy requires frequent, not continuous, use of the hands to keyboard and operate a
mouse. Dr. Wurapa said that, given that job requirement, McGill could perform the job.
As an alternative argument, plaintiff contends that even accepting Unum’s
finding that the job of customer service representative requires the use of her right hand
for typing and keyboarding frequently rather than constantly, the Functional Capacity
Evaluation demonstrates McGill can only tolerate the use of her hand for typing and
keyboarding occasionally. The term “occasionally” is defined as up to one-third of the
day. While that was Crossman's conclusion, Unum was entitled to evaluate all the
evidence and come to its own, independent conclusion. In August 2011, Dr.
Westerheide, an orthopedist, believed McGill had the ability to return to work. She
went to Dr. Wurapa, who recommended contracture release surgery. Following that
surgery, Dr. Wurapa concluded that McGill could return to work. The opinions of two
orthopedist is substantial evidence supporting the finding that plaintiff could perform
the frequent use of hands required by her occupation, even though other, contrary,
evidence was in the record.

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Plaintiff’s also argues that the record does not contain a complete copy of
Darman’s report or statement of her credentials is not born out by a review of the
record. Her degrees and credentials are included. Moreover, her analysis is set out and
reported. Doc. 16-4, PageID 1421-23. Further, Unum did not base its decision on the
characterization of plaintiff’s job as call center representative rather than a customer
service representative. Instead, Unum maintains that either position, as it is typically
performed, requires only frequent keyboarding rather than continuous keyboarding as
plaintiff maintains.
To support his conclusion that the position of customer service representative
required constant keyboard, Dr. Oestreich relied on job descriptions from O*NET
Online, callcenterkit.com, bestjobinterview.com, and hrvillage.com. Based on these job
descriptions, Dr. Oestreich concluded that plaintiff would have to use her fingers and
hands constantly and continuously.
The record offers a reasonable explanation for Unum’s decision that plaintiff was
not eligible for long-term disability benefits. Unum concluded that the job of customer
service representative, as it typically performed in the national economy, only requires
frequent, rather than continuous, keyboarding. When presented with a description of
tasks, including frequent keyboarding, Dr. Wurapa opined that plaintiff could perform
the job as described. While it is true Mr. Crossman concluded in the Functional
Capacity Evaluation that plaintiff did not match the requirements of a customer service
representative, Mr. Crossman based his job description on the job as described by
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plaintiff at Time Warner Cable. The job descriptions relied upon by Dr. Oestreich do not
provide an approximate percentage of the day that an individual in these positions
would be using the keyboard. Unum specifically found that the job as performed by
plaintiff at Time Warner Cable did not reflect the occupation as it exists nationally.
Although Unum does not provide the basis for Ms. Darman’s assertion that the position
required only frequent keyboarding, plaintiff has not shown that keyboarding in such
positions is continuous. Given the deferential review granted Unum, I cannot say that
Unum’s decision was unreasonable or unsupported by substantial evidence give that
plaintiff’s treating doctor concluded that plaintiff could perform the position which
required frequent keyboarding.
V. Conclusion
For the reasons stated above, plaintiff Bridgett McGill’s February 18, 2014 motion
for judgment on the administrative record (doc. 22) is DENIED and defendant Unum’s
motion to uphold the administrative decision (doc. 23) is GRANTED.

s/Mark R. Abel
United States Magistrate Judge

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